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Miller v. City

Court of Appeals of Utah

April 13, 2017

Samantha Miller, Appellant,
West Valley City, Appellee.

         Third District Court, Salt Lake Department The Honorable Richard D. McKelvie No. 140903126

          Ryan J. Schriever, Attorney for Appellant

          J. Eric Bunderson, Claire Gillmor, Brandon M. Hill, and Adrienne H. Bossi, Attorneys for Appellee

          Judge Kate A. Toomey authored this Opinion, in which Judges J. Frederic Voros Jr. and Stephen L. Roth concurred.


          TOOMEY, JUDGE.

         ¶1 This appeal involves an accident in a West Valley City (WVC) swimming pool during which appellant Samantha Miller was injured. Miller sued WVC, and the district court dismissed the case. We must decide whether the court properly granted WVC's rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. We conclude that it did and therefore affirm.

          BACKGROUND [1]

         ¶2 WVC owns and operates West Valley City Family Fitness Center. In May 2013, Miller was swimming laps in the fitness center pool when some teenage girls came into her lane and "interfere[d] with her laps." Miller alleged the "lifeguard did not take adequate action to remove the girls from the pool." While Miller was doing the backstroke she ran into one of the teenagers, "became disoriented . . . and collided with the [pool] wall." Miller "sustained a closed-head injury, neck injuries and other bodily injuries."

         ¶3 Miller sued WVC asserting premises liability and negligence. She first contended she was an invitee to the fitness center and WVC had "a duty to keep the premises free from hazardous conditions." She further argued that WVC, through its lifeguard employee, "should have known that there was an unreasonably dangerous condition in [her] swimming lane" that she would be unable to see while doing the backstroke and because of this, the condition "was hidden to [her]." She argued WVC owed a duty to warn her of the "hidden or latent hazardous conditions."

         ¶4 Second, in support of her negligence claim, Miller contended that WVC "undertook an obligation to monitor the swimming lanes" at the fitness center "to keep them clear of hazards for people swimming"; WVC "should have recognized it was necessary for the protection of others to maintain the swimming lanes free of hazards"; WVC "failed to exercise reasonable care, " which "increased the risk of harm"; Miller relied on WVC "to maintain the swimming lanes free of hazards"; and WVC's failure to exercise reasonable care was the proximate cause of her injuries.

         ¶5 WVC filed a motion to dismiss. It asserted Miller's suit should be dismissed for lack of jurisdiction under rule 12(b)(1) of the Utah Rules of Civil Procedure because Miller failed to file a bond as required by section 63G-7-601(2) of the Utah Code. Further, WVC argued Miller's complaint "should be dismissed under Utah Rule of Civil Procedure 12(b)(6)" for failure to "state any claim under which she could be entitled to relief." Miller subsequently filed a bond and cured the jurisdictional defect.

         ¶6 WVC's motion to dismiss argued that Miller's complaint failed "to establish a waiver of governmental immunity" and should be dismissed as a matter of law.[2] Specifically, WVC argued Miller did not properly plead that immunity was waived due to a "defective or dangerous condition of a public building . . . or other public improvement" as allowed by the Governmental Immunity Act of Utah (the GIA). See Utah Code Ann. § 63G-7-301(3)(a)(ii) (LexisNexis 2011).[3] That is, Miller did not allege that the defective and dangerous condition was related to the structures of "the building, the pool, [or] the sides of the pool." Rather, she claimed the dangerous condition was the teenager in her swimming lane, but did not show how the teenager "could be a dangerous condition sufficient to support a cause of action for premises liability." WVC argued the "plain language of the statute requires that there be a defect in the physical condition of the improvement in order for [WVC] to be liable." (Emphasis added.) WVC also argued that even if Miller could establish "that a young girl in a swimming pool can constitute a dangerous or defective condition of a public building, " WVC would still be immune because immunity is not waived if the injury results from a latent dangerous or defective condition, and Miller herself characterized the condition as "hidden or latent" in her complaint.[4] See id. § 63G-7-301(3)(b).

          ¶7 WVC argued Miller's negligence claim failed because WVC owed Miller no duty of care, in that Miller based her claim on section 323 of the Restatement (Second) of Torts but failed to allege facts sufficient to satisfy the requirements of that section. WVC also argued that because Miller's complaint alleged a lifeguard's omission caused her injury, the public duty doctrine applied, and therefore WVC owed no duty of care to Miller. Finally, WVC noted that Miller had not established there was a special relationship between herself and WVC and therefore could not demonstrate an exception to the public duty doctrine.

         ¶8 The district court agreed. As to the premises liability claim, it determined the plain language of section 63G-7-301(3)(a)(ii) required that liability be premised upon a defect in "the structure or building itself" and Miller had failed to plead or demonstrate this. In addition, the court determined that Miller had not "alleged a latent condition" because "the facts alleged in the complaint make clear that the 'defect' complained of, the teenage girl in the swimming lane, [was] open and obvious, " and Miller was aware of the condition and notified the lifeguard.[5]

          ¶9 And in regard to the negligence claim, the court agreed with WVC that Miller "did not plead that [WVC] made a voluntary undertaking to protect her, that the voluntary undertaking was done without reasonable care, and that [Miller] reasonably relied on this undertaking." Additionally, the court determined that under Cope v. Utah Valley State College, 2014 UT 53, 342 P.3d 243, Miller needed to demonstrate that WVC had a special relationship imposing a "specific duty of care toward" her if her claim was "based upon a public duty." Because Miller failed to "allege[] any facts to establish a special relationship, " she could not "overcome the standard employed in Cope." Accordingly, the court determined Miller's complaint did not "state an actionable claim" and dismissed the suit. Miller appeals.


         ¶10 On appeal, Miller contends the district court improperly granted WVC's rule 12(b)(6) motion to dismiss. "A trial court's decision to dismiss a case based on governmental immunity is a determination of law that we afford no deference. . . . Because the propriety of a 12(b)(6) dismissal is a question of law, we give the trial court's ruling no deference and review it under a correctness standard." Van de Grift v. State, 2013 UT 11, ¶ 6, 299 P.3d 1043 (citation and internal quotation marks omitted). Likewise, "the issue of whether a duty exists is a question of law which we ...

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