District, Utah County The Honorable Lynn W. Davis No.
K. Young, Tyler S. Young, Provo, for appellant
Vincent J. Velardo, Thomas J. Rollins, Salt Lake City, for
appellee J. Lyne Roberts and Sons, Inc.
Spencer Brown, Jack D. Smart, Salt Lake City, for appellee
H&H Steel Fabricators, Inc. Associate Chief Justice Lee
authored the opinion of the Court, in which Chief Justice
Durrant, Justice Himonas, Justice Pearce, and Justice
ASSOCIATE CHIEF JUSTICE
In this case we are asked to decide whether a contractor who
created an artificial condition on the land of another owes a
duty of reasonable care to the employees of the land owner.
Becky Sumsion, the plaintiff-appellant in this case, contends
that we answered this question in the affirmative in
Tallman v. City of Hurricane, 1999 UT 55, 985 P.2d
892. She argues that Tallman announced a categorical
rule establishing a duty of all contractors who create
artificial conditions on the land of another, which extends
to all foreseeable users of such conditions. The
defendants-appellees see the matter differently. They insist
that the existence of a duty in this circumstance depends on
an analysis of the factors set forth in AMS Salt
Industries, Inc. v. Magnesium Corp. of America, 942 P.2d
315 (Utah 1997).
The district court agreed with the defendants. It granted
their motion to dismiss the plaintiff's claims on the
ground that she had failed to carry the burden of presenting
grounds for the establishment of a duty under AMS
Salt and its progeny. We reverse and remand. We hold
that the Restatement (Second) of Torts framework endorsed in
Tallman, and not the factors set forth in AMS
Salt, controls in a case like this one. And we thus
reverse the district court's decision, which was premised
on a contrary conclusion. In so doing, however, we do not
conclusively resolve the extent of a contractor's duty in
a case like this one. We stop short of resolving that
question because the parties failed to brief a few dimensions
of the relevant duty inquiry under the Restatement (Second)
of Torts framework adopted in Tallman. Instead we
offer some points of clarification under the Tallman
framework in a manner that we hope will be useful to the
parties and the district court on remand.
In 2012, the City of Springville decided to construct a
"splash pad" recreation area in a public park. The
City retained MGB as the lead architect. MGB hired JRCA
Architects, Inc. ("JRCA") to help design a pump
house that would host the pumps supplying water to the splash
pad. The city contracted with J. Lyne Roberts and Sons, Inc.
("JLR") to construct the splash pad and pump house.
JLR was instructed to install a ladder in the pump house to
access the pump pit, which housed some of the controls. JLR
subcontracted with H&H Steel Fabricators, Inc.
("H&H") to manufacture the ladder. The entire
splash pad project was completed in April 2013.
Becky Sumsion began working for the City in May 2014. Her
duties required her to make regular adjustments to the pumps
located in the pump pit. On June 2, 2015, Sumsion fell off
the pump house ladder as she was climbing down into the pump
pit and broke her ankle. That injury gave rise to this suit.
Sumsion first sued JLR alleging negligence related to the
design and manufacture of the ladder in question. Four months
later, she amended her complaint to include MGB, JRCA, and
H&H. The claim against each party was substantially the
same-failure to properly design and construct the access
ladder leading to the pump pit resulted in her injury. MGB
and JRCA settled claims against them, leaving JLR and H&H
as the only named defendants.
In September 2017, H&H and JLR filed motions for summary
judgment. They both contended that summary judgment was
appropriate because they owed Sumsion no duty of care. They
further argued that Sumsion could not prove that her fall was
directly and proximately caused by a defect in the ladder.
The district court granted JLR and H&H's motions for
summary judgment on the ground that they did not owe Sumsion
a legal duty. In framing its decision, the court first cited
what it believed to be the relevant duty standard-a standard
requiring consideration of four factors: "(1) the extent
that the [defendant] could foresee that its actions would
cause harm; (2) the likelihood of injury; (3) the magnitude
of the burden of guarding against it; and (4) the
consequences of placing the burden on the defendant."
Niemela v. Imperial Mfg., Inc., 2011 UT App 333,
¶ 19, 263 P.3d 1191 (quoting Slisze v.
Stanley-Bostitch, 1999 UT 20, ¶ 12, 979 P.2d 317).
Sumsion offered no substantial analysis on the last three of
these factors. She instead argued that as an employee of the
City she was a foreseeable user of the ladder. And she
insisted that JLR and H&H thus owed her a duty to provide
a reasonably safe ladder for her authorized use.
Sumsion cited Tallman v. City of Hurricane, 1999 UT
55, 985 P.2d 892, in support of her position. In
Tallman we held that "Utah follows the
foreseeability rule set forth in the Restatement (Second) of
Torts and followed by a majority of states" in assessing
whether a manufacturer of an artificial condition owes
another a duty of care. Id. ¶ 8. The
Restatement rule first states:
One who on behalf of the possessor of land erects a structure
or creates any other condition thereon is subject to
liability to others upon or outside of the land for physical
harm caused to them by the dangerous character of the
structure or condition after his work has been accepted by
the possessor, under the same rules as those determining the