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Colosimo v. Gateway Community Church

Supreme Court of Utah

June 26, 2018

Lawrence and Sarah Jean Colosimo, Petitioners,
v.
Gateway Community Church, Respondent.

          On Certiorari to the Utah Court of Appeals Third District, West Jordan The Honorable Barry G. Lawrence No. 120414704

          Jefferson W. Gross, Aida Neimarlija, Salt Lake City, for petitioners

          Mark Dalton Dunn, Trystan B. Smith, Troy L. Booher, Beth E. Kennedy, Salt Lake City, for respondent

          Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce, and Judge Johnson joined.

          Due to her retirement, Justice Durham did not participate herein; District Court Judge Christine S. Johnson sat.

          Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter and accordingly did not participate.

          OPINION

          DURRANT, CHIEF JUSTICE

         Introduction

         ¶1 A teenage boy died from injuries he sustained while trespassing on the roof of a one-story building owned by a local church. Due to faulty wiring of a sign, he was electrocuted while of the Court attempting to climb down. The boy's parents brought a wrongful death suit against the church, claiming that the church breached its duty to their son under the common law and under a city sign ordinance. On summary judgment, the district court held that because the boy was a trespasser the church owed him no duty. The court of appeals affirmed the district court on both grounds and we granted certiorari. We now must decide whether the court of appeals erred in affirming the district court's grant of summary judgment. Because the boy's parents failed to show a duty existed under either the common law or the sign ordinance, we affirm the court of appeals' decision.

         Background

         ¶2 In 2012, sixteen-year-old A.C. and his two cousins decided to go "roofing," i.e., climbing on roofs after dark. They climbed up a permanently-fixed ladder onto the roof of a one-story building owned by Gateway Community Church (Gateway), located in Draper, Utah. It is undisputed that the boys climbed onto the roof without permission. Unbeknownst to A.C. and his cousins, the building contained an oval sign that was improperly wired. Due to the faulty wiring, the metal flashing[1] on the roof had become electrified. While scaling the ladder, both A.C. and one of his cousins felt a shock when they inadvertently touched the flashing.

         ¶3 After ten minutes or so on the roof, and after discussing the possible reasons for the electrified flashing, the boys decided to cautiously vacate the roof. The two cousins made it down safely, but on A.C.'s way down, his foot got caught between the ladder and the metal flashing, and he was electrocuted for ten to fifteen seconds. He lost consciousness and was taken to the emergency room. A.C. passed away ten days later due to complications from the electrocution.

         ¶4 After the accident, a Draper City building inspector- with the assistance of a Draper police officer and Gateway's pastor- inspected the roof but found no problem. He concluded that "everything was up to code." The following day, a fire marshal, along with a Gateway board member, inspected the roof for over an hour without being able to pinpoint the source of the electricity in the flashing. Finally, through a process of elimination, the fire marshal was able to determine that an oval "Welcome to Gateway" sign was electrifying the roof's flashing. Further investigation revealed that the sign had been improperly installed. Lawrence and Sarah Jean Colosimo, A.C.'s parents and heirs, then had the sign inspected by an electrical engineer, who also identified the sign as the source of the problem.

         ¶5 Beginning as early as 1996, Draper City adopted several ordinances (collectively the "Ordinance")[2] regulating the "installation, maintenance or dilapidation" of signs within the city.[3]One of the express purposes of the Ordinance "is to protect and promote the health, safety and welfare of City residents."[4] In order to "protect the safety and welfare of the people of the City," the Ordinance prohibits any sign that "constitutes a hazard to safety or health by reason of inadequate installation, maintenance or dilapidation."[5] The Ordinance requires all signs to be "maintained in good and safe structural condition, [and] in compliance with all building and electrical codes."[6] Any person who violates this Ordinance is "guilty of a Class B misdemeanor."[7] The Ordinance also contains a provision entitled "Liability for Damages," which provides that "[t]he provisions of this ordinance shall not be construed to relieve or to limit in any way, the responsibility or liability of any person, firm, or corporation which erects or owns any sign, for personal injury or property damaged caused by the sign."[8]

         ¶6 The installation date of the oval sign is unknown. Gateway leased a suite within the building starting in 1999 and eventually purchased the entire building in 2003. Sometime in 2003 or 2004, Gateway had a new acrylic faceplate installed in the existing sign cabinet that was attached to the building. The Colosimos' electrical expert posited that the sign was not installed during the original construction of the building in 1999. The pastor testified that, "[a]s far as [he was] aware, the Church did not purchase, manufacture, design, or install the oval exterior sign," and that, "[t]o the best of [his] knowledge, the oval exterior sign was affixed to the property prior to the Church's purchase of the property."

         ¶7 The Colosimos brought a wrongful death and survival suit against Gateway for negligence. Gateway moved for summary judgment, arguing that it owed A.C. no duty because he was a trespasser. In opposing summary judgment, the Colosimos argued that, despite A.C. being a trespasser, Gateway owed him a duty under the common law and under the Ordinance. Specifically, they argued that Gateway was aware of constant trespassing on the roof and so had a duty to trespassers under sections 334 and 335 of the Restatement (Second) of Torts. In support, the Colosimos pointed to the fact that Gateway had known of two instances, one in 2004 and the other in 2010, where people trespassed on its roof over the past twelve years. The Colosimos also provided the court with evidence of instances of loitering, littering, and break-ins on Gateway's property (but not on its roof), as well as evidence that "roofing" had occurred on other buildings in Draper.

         ¶8 Additionally, they argued that Gateway owed a duty under the attractive nuisance doctrine as set forth in section 339 of the Restatement. The Colosimos asserted that because of A.C.'s age, he failed to appreciate the danger of electrocution on the roof. They also claimed that Gateway owed A.C. a duty under the Ordinance.

         ¶9 The district court granted summary judgment in favor of Gateway, concluding that because A.C. was a trespasser Gateway owed him no duty. Specifically, the district court held that the Colosimos failed to produce sufficient evidence to create a genuine issue of fact as to whether Gateway knew or should have known that people were constantly trespassing under sections 334 and 335, and as to whether Gateway knew or had reason to know of the existence of a dangerous condition on its roof, an additional element required under section 339. The district court also held that the Ordinance did not create an independent duty under tort law.

         ¶10 The Colosimos timely appealed and the court of appeals affirmed the district court's holdings.[9] While the court of appeals did not address the parties' burden on summary judgment, it stated that the Colosimos failed to show that Gateway knew of constant trespassing, a requirement the court believed applied to all three Restatement sections.[10] The court also held that Gateway owed no duty under the Ordinance because ordinances should be strictly construed when they conflict with the common law.[11] The Colosimos thereafter filed a petition for writ of certiorari with our court, which we granted. We have jurisdiction pursuant to section 78A-3-102(3)(a) of the Utah Code.

         Standard of Review

         ¶11 We granted certiorari on two issues: first, whether the court of appeals erred in concluding Gateway could not be held liable for A.C.'s death under a common law theory of negligence, and second, whether the court of appeals erred in concluding Gateway could not be held liable for A.C.'s death under a municipal ordinance regulating signs. "On certiorari, we give the court of appeals' decision no deference and review its decision under a correctness standard."[12] Further, "'[t]he question of whether a duty exists is a question of law' and is reviewed for correctness."[13]

         Analysis

         ¶12 The Colosimos' claims for wrongful death and survival are based in negligence.[14] To prevail on a negligence claim, "the plaintiff must [first] establish . . . that the defendant owed the plaintiff a duty" and "that the defendant breached that duty."[15] "Absent a showing that the defendant owed any duty, the plaintiff's claim has no merit, and he or she may not recover."[16]

         ¶13 The court of appeals affirmed the district court's holding that the Colosimos failed to show that Gateway owed a duty to A.C. under the common law or under the Ordinance. The court of appeals was correct on both counts. The Colosimos did not show that there was a genuine issue of fact on the question of whether Gateway knew that there was constant trespassing on the roof as required under sections 334 and 335 of the Restatement (Second) of Torts, or on the question of whether Gateway knew that the metal flashing on the roof was electrified, thereby creating a dangerous condition under section 339. The Colosimos also failed to show that the Ordinance created an independent duty in tort. The court of appeals did err, however, in failing to reach the question of what burden the parties bore on summary judgment and in conflating the knowledge requirement of section 339 of the Restatement (Second) of Torts with the knowledge requirement of sections 334 and 335. We correct those errors and ultimately affirm the court of appeals' decision.

         I. The Court of Appeals Correctly Held that Gateway Owed No Duty Under the Common Law

         ¶14 The Colosimos first argue that the court of appeals erred when it affirmed the district court's holding that Gateway owed A.C. no duty under the common law. When deciding whether a possessor of land owes a duty to another person, we must first determine "whether that person is an invitee, a licensee, or a trespasser."[17] We have defined the term "trespasser" as a person who enters on a possessor's land "without a privilege to do so created by the possessor's consent or otherwise."[18] It is clear that A.C. climbed on Gateway's roof without Gateway's consent, and neither party disputes that A.C. was a trespasser in this case. So the Colosimos' argument turns on what duty is owed to a trespasser under the common law.

         ¶15 In Whipple v. American Fork Irrigation Co., we stated that, under our case law, it appears that "the only duty a possessor of land owes to a trespasser is to not willfully or wantonly injure him."[19] But we also held that this rule did not completely sum up the duty a landowner owes to a trespasser, and we expressly adopted section 333 of the Restatement (Second) of Torts as our standard, noting that it "more accurately states the duty owed."[20]

         ¶16 Under section 333, "a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care."[21] But section 333 also recognizes exceptions to this rule, which are set forth in sections 334 through 339 of the Restatement.[22] These exceptions "deal generally with activities and artificial conditions highly dangerous to constant trespassers on a limited area or to known trespassers, controllable forces dangerous to known trespassers, and artificial conditions highly dangerous to trespassing children."[23] Accordingly, because A.C. was a trespasser on Gateway's property, the Colosimos must find a duty under one of these exceptions in order to gain relief under the common law.

         ¶17 In its order below, the district court concluded that none of these exceptions applied. Before the court of appeals, the Colosimos challenged only the district court's holding on three of these exceptions-sections 334, 335, and 339-and the court of appeals limited its analysis to these three exceptions.[24] On certiorari, the Colosimos argue that the court of appeals erred in affirming the district court's decision on these three exceptions. We therefore also limit our analysis to these three exceptions, and hold that the court of appeals correctly affirmed the district court's holding on each of these exceptions.

         A. The Court of Appeals Correctly Held that Sections 334 and 335 of the Restatement (Second) of Torts Do Not Apply

         ¶18 The court of appeals correctly held that sections 334 and 335 of the Restatement (Second) of Torts do not apply in this case because there was no genuine issue of material fact as to whether Gateway knew or should have known that trespassers "constantly intrude" upon its rooftop. Section 334, entitled "Activities Highly Dangerous to Constant Trespassers on Limited Area," provides:

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.[25]

Section 335, entitled "Artificial Conditions Highly Dangerous to Constant Trespassers on Limited Area," likewise provides:

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
(a)the condition
(i) is one which the possessor has created or maintains and
(ii) is, to his knowledge, likely to cause death or seriously bodily harm to such trespassers and
(iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and
(b)the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.[26]

         ¶19 Both of the above sections require the plaintiff to produce evidence that trespassers constantly intrude upon a specific portion of the landowner's property containing the dangerous activity or condition. In other words, "[i]n order that the possessor of land may be subject to liability under the rule in [sections 334 and 335], it is necessary that he know, or from facts within his knowledge should know, that persons constantly and persistently intrude upon some particular place within the land."[27]

         ¶20 The court of appeals held that sections 334 and 335 were inapplicable because the Colosimos failed to show that Gateway knew or, from the facts within its knowledge, should have known that trespassers "constantly intrude" on the roof.[28] The Colosimos had originally provided the district court with evidence of two instances where Gateway knew of trespassers on Gateway's roof; one in 2004 and another in 2010. The district court held that these two instances were insufficient to establish constant trespassing as required by the Restatement. On appeal, the court of appeals rejected the Colosimos' contention that "the [district] court erred when it found as a matter of law that Gateway's actual knowledge of two instances of trespass over a decade was insufficient to put Gateway on notice of habitual trespassers."[29] Relying on Lopez v. Union Pacific Railroad Co., [30] the court of appeals pointed out that our court has found "habitual trespassing" when a "[p]laintiff produced evidence that [others] habitually [trespass]" and that the defendant was "aware of [such] practice," but not when there were merely "an isolated couple of instances."[31] The court ultimately affirmed the district court, concluding that "[t]wo incidents of trespassing over so many years do not rise to the level of constant intruding and are not enough to put Gateway on notice."[32]

         ¶21 We agree with the court of appeals. Two incidents of known trespass on its roof over a decade do not create a genuine issue of fact as to whether Gateway knew or should have known that trespassers were "constantly intrud[ing]" on its roof. In defining the constant intrusion requirement of sections 334 and 335, courts have held that a plaintiff must show that trespassers "regularly"[33] and "persistently"[34] intruded upon the limited area, and that even a showing of "frequent" trespass will not suffice.[35] We have likewise described this requirement as "habitual" intrusion.[36] It can hardly be said that two instances of trespass over a period of more than ten years amounts to regular, persistent, or habitual intrusion. And it is even more farfetched to suggest that two instances of intrusion within ten years places a party on constructive notice of regular, persistent, or habitual trespass. So the Colosimos cannot establish that Gateway owed a duty under section 334 or 335.

         ¶22 The Colosimos also argue, however, that the court of appeals erred by failing to consider other circumstantial evidence- beyond the two known prior instances of trespass on the roof-that they believe further show the presence of a genuine issue as to whether constant trespassing was occurring on Gateway's property. The Colosimos provided the district court with evidence of prior instances of loitering, graffiti, littering, and break-ins on Gateway's property, none of which took place on its roof. The Colosimos also offered testimony of witnesses who stated that children were known to climb on roofs in Draper City and that Gateway knew of the existence of a box near the caged ladder, which the Colosimos contend made access to the ladder easier for intruders. They also cite to evidence where a board member of Gateway allegedly admitted that Gateway's roof was a "public place" where children were likely to intrude.[37] Lastly, the Colosimos state that Gateway's concession that a genuine issue of material fact exists as to section 339(a)'s requirement-that the possessor of land know or have reason to know that "children are likely to trespass" on the property-further evidences that Gateway knew or should have known of constant trespassing on the property.[38] Neither the district court, nor the court of appeals, mentioned these facts in their determinations on sections 334 and 335.[39]

         ¶23 The Colosimos argue that the court of appeals "disregarded all such evidence" and that with this additional evidence, along with the direct evidence of two known instances of rooftop trespass, "a reasonable jury could infer that Gateway had a reason to know that there likely were a lot more trespassing incidents on Gateway's roof than the two admitted instances." They argue that a court should not limit the evidence it considers only to direct evidence but should consider all relevant evidence on summary judgment. But Gateway argues that this additional evidence cannot give rise to an inference that constant trespassing occurred on Gateway's rooftop.[40] Gateway states that because the break-ins, graffiti, and littering did not occur on the roof, it is not relevant to the "limited area, "-i.e., the roof- required in sections 334 and 335. Gateway also contends that "the fact that other people in Draper knew that teenagers were climbing onto other roofs" does not show that "Gateway knew about trespassing on its roof." Gateway further states that its concession regarding section 339(a)'s requirement that it knew or had reason to know that its rooftop is a place where children are likely to trespass is not a concession that there is a genuine issue of material fact as to habitual trespassing under sections 334 and 335.

         ¶24 The Colosimos are correct that we have never limited a district court's review on summary judgment to direct evidence. Rather, we have expressly stated "the nonmoving party . . . 'is entitled to the benefit of having the court consider all of the facts presented, and every inference fairly arising therefrom"[41] and that "all facts and the reasonable inferences to be made therefrom should be construed in a light favorable to the non-moving party."[42] But even considering the additional evidence mentioned above, along with the reasonable inferences made therefrom, the evidence taken as a whole does not raise a genuine issue of material fact as to whether trespassers were constantly intruding on the "limited area" at issue, i.e., the roof, as required under sections 334 and 335. Much of the circumstantial evidence the Colosimos cite concerns instances of possible trespass on areas other than the roof-trespass that occurred away from the dangerous condition. As the comments to the Restatement sections provide, "[i]t is not enough that [the landowner] know or have reason to know that persons persistently roam at large over his land."[43] Rather, the land owner must know or should know "that persons constantly and persistently intrude upon some particular place within the land."[44] Thus, while evidence of loitering, graffiti, littering, and break-ins may support the notion that trespassing occurred on Gateway's property in addition to the two rooftop instances, this additional evidence does not necessarily provide Gateway with knowledge that "persons constantly and persistently intrude" upon the rooftop.[45]

         ¶25 Similarly, testimony about other citizens' knowledge of children climbing other roofs in Draper does not prove children constantly climbed Gateway's roof. Rather, this testimony supports section 339(a)'s requirement that the possessor know or have reason to know that "children are likely to trespass" on the limited area.[46]The only evidence relevant to the question of whether habitual trespassing actually occurred therefore was the two instances of known trespassing on Gateway's roof. Accordingly, the court of appeals correctly held that two instances of trespassing over more than a ten-year period did not create a genuine issue of material fact as to whether constant trespassing occurred or whether Gateway had notice of such constant trespassing.

         B. The Court of Appeals Correctly Concluded that Section 339 of the Restatement (Second) of Torts Does Not Apply

         ¶26 The court of appeals also correctly held that Gateway did not owe A.C. a duty under section 339 of the Restatement. The court concluded that because the Colosimos failed to establish section 339(a)'s requirement-that children were likely to trespass on the roof-they could not sustain a claim under section 339. The court's reliance on section 339(a) as grounds for dismissal was error, however, because it incorrectly inferred that section 339(a)'s knowledge requirement is identical to those in sections 334 and 335, and Gateway had already conceded that section 339(a) was a disputed issue of fact. But this error does not undermine the court's ultimate determination on section 339 because the Colosimos failed to satisfy an additional requirement, which is set forth in section 339(b). We outline the Colosimos' failure below and affirm the court of appeals' decision on alternative grounds.

         ¶27 On certiorari, the Colosimos maintain that Gateway also owed A.C. a duty under section 339 of the Restatement. We have expressly adopted section 339 as the "complete statement of the attractive nuisance doctrine" in our jurisprudence.[47] It provides that:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a)the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b)the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d)the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e)the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.[48]

         In order for a plaintiff trespasser to prevail on an attractive nuisance claim, he or she must prove the existence of all five elements listed above.[49]

         ¶28 The district court originally held on summary judgment that Gateway could not be liable under section 339 because the Colosimos did not provide sufficient evidence to create a genuine dispute as to section 339(b)'s requirement-that the possessor of land know or have reason to know of the existence of a particularly dangerous condition on the property. Specifically, the district court stated that "Gateway had no knowledge of, or reason to have known of [the defectively wired sign or electrified metal flashing] and could not have realized that there was a potentially lethal condition on its property." The court of appeals did not, however, affirm the district court's conclusion on the same grounds. Instead, the court appears to have concluded that section 339 did not apply in this case because the Colosimos could not prove section 339(a)'s requirement-that Gateway's rooftop was a place where children were likely to trespass. The court specifically stated that "[t]wo incidents of trespassing over so many years do not rise to the level of constant intruding and are not enough to put Gateway on notice that 'children are likely to trespass' as expressed in the exceptions outlined in the Restatement."[50] The court's reliance on section 339(a) was misplaced for two reasons.

         ¶29 First, it appears the court incorrectly applied the same knowledge requirement found in sections 334 and 335-that the possessor know or should know that trespassing occurs on the property-to section 339. The court expressly stated that it chose not to address the Restatement sections separately "because all of the sections upon which [the Colosimos] rely have the common requirement that the possessor of land know or should know that trespassers are likely to intrude."[51] The court then went on to state that the Colosimos failed to show constant trespassing.[52] As noted above, sections 334 and 335 require knowledge of actual and constant trespassing on the owner's property-not that trespassers are likely to intrude. But by stating that the sections shared the same knowledge requirement, it appears the court operated under the assumption that knowledge that "children are likely to trespass" is analogous to knowledge of actual trespassing. This interpretation misreads what is required under section 339(a). Section 339(a) requires the plaintiff to show that "the possessor [of land] knows or has reason to know that children are likely to trespass."[53] Knowledge that children are likely to trespass is not, as the court of appeals suggested, the same as knowledge of actual trespassing. Rather, knowledge that children are likely to trespass means that the possessor knows that it is probable that children will trespass on his or her property in the foreseeable future.[54] Thus, while two instances of actual trespassers on the roof, and the circumstantial evidence noted above, may not be sufficient to show constant trespassing on Gateway's roof, it may be sufficient to show that Gateway knew or had reason to know that children are likely to trespass on its roof. Accordingly, the court of appeals erred in rejecting the Colosimos' section 339 claim on this ground.

         ¶30 The court also improperly relied on section 339(a) in its dismissal of the Colosimos' attractive nuisance claim because Gateway admitted that a dispute existed regarding section 339(a) in its memorandum in support of summary judgment below. Gateway argued before the district court that summary judgment was proper because the Colosimos failed to provide evidence of sections 339(b) and (c) and conceded that there may be disputes concerning sections 339(a), (d) and (e). The district court granted Gateway's motion for summary judgment on the Colosimos' section 339 claim under section 339(b) alone. The court of appeals, however, affirmed the district court's decision on the grounds that there was no disputed issue of fact on section 339(a)-the very element that Gateway conceded was disputed. Accordingly, the court of appeals erred in dismissing the Colosimos' section 339 claim on this ground.

         ¶31 The court's error here does not, however, change the end result in this case. The court's decision to dismiss the Colosimos' section 339 claim was correct on alternative grounds-the Colosimos failed to produce evidence, as required by section 339(b), that Gateway knew or had reason to know about the defective wiring or the electrified metal flashing and that these conditions created an unreasonable risk of death or serious bodily harm to children.[55] The record shows that the Colosimos were unable to provide sufficient evidence that Gateway had actual knowledge that the sign was improperly wired or that it had observed any problem indicating that such was the case. While Gateway knew the sign had stopped working approximately one month before the accident, that does not support the inference that Gateway knew or had reason to know that the metal flashing had become electrified or that such condition would "cause an unreasonable risk of death or serious bodily harm" to a child.[56] The court of appeals therefore correctly affirmed the district court's dismissal of the Colosimos' section 339 claim.

         ¶32 Accordingly, although the court of appeals erred in its review of section 339(a), this error does not affect the ultimate outcome of the case because, as the district court correctly concluded, no genuine issue existed as to whether Gateway knew or had reason to know of the sign's defective wiring or the electrified metal flashing. Nor did Gateway realize, or should have realized, that such condition would cause death or serious bodily injury to children. The court of appeals therefore correctly affirmed the district court's holding.

         ¶33 Because the Colosimos failed to raise a genuine issue of fact regarding Gateway's knowledge of constant trespassing and its knowledge of a dangerous condition on the property, the Colosimos failed to satisfy an exception to our general bar on trespasser liability. So we affirm the court of appeals' determination that Gateway owed no duty to A.C. under the common law.

         C. Summary ...


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