Orosco v. Clinton City

IN THE UTAH COURT OF APPEALS

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Fernando Orosco, ) MEMORANDUM DECISION
)
Plaintiff and Appellant, ) Case No. 20120013‐CA
)
v. ) FILED
) (November 29, 2012)
Clinton City, )
) 2012 UT App 334
Defendant and Appellee. )

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Second District, Farmington Department, 100700782
The Honorable David R. Hamilton

Attorneys: Zane S. Froerer, Ogden, for Appellant
David L. Church, Salt Lake City, for Appellee

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Before Judges Davis, Thorne, and Christiansen.

DAVIS, Judge:

¶1 Fernando Orosco appeals the trial court’s grant of summary judgment in favor of
Clinton City (the City), arguing that the trial court erroneously concluded that even if
the continuing tort doctrine applied, Orosco’s claims were barred by the statute of
limitations. We reverse and remand.

¶2 “A challenge to a summary judgment presents solely a question of law that we
review for correctness. We assess only whether the trial court erred in applying the
governing law and whether the trial court correctly held that there [were] no disputed
issues of material fact.” Walker Drug Co. v. La Sal Oil Co. (Walker II), 972 P.2d 1238, 1243
(Utah 1998) (citations and internal quotation marks omitted).
I. The Continuing Tort Doctrine

¶3 The characterization of a tort as continuing or permanent is important for statute
of limitations purposes. See Walker Drug Co. v. La Sal Oil Co. (Walker I), 902 P.2d 1229,
1232 (Utah 1995). “Where a nuisance [or trespass] is of such character that it will
presumably continue indefinitely it is considered permanent, and the limitations period
runs from the time the [tort] is created.” Id. (first alteration in original) (citation and
internal quotation marks omitted).

However, if the [tort] may be discontinued at any time it is
considered continuing in character. Under theories of
continuing trespass or nuisance, each harmful act constitutes
a new cause of action for statute of limitations purposes.
Therefore, in the case of a continuing trespass or nuisance,
the person injured may bring successive actions for damages
until the nuisance is abated, even though an action based on
the original wrong may be barred, but [r]ecovery is limited
. . . to actual injury suffered [within the applicable
limitations period] prior to commencement of each action.[1]

1. The difference between a continuing tort and a permanent tort may be better
explained by example. Compare Cannon v. United States, 338 F.3d 1183, 1193–94 (10th Cir.
2003) (applying Utah law and concluding that a “‘debris field’ of exploded and
unexploded ordnance and chemical contamination on and under the surface” of the
plaintiff’s property did not constitute a continuing trespass where the tortious conduct
resulting in the trespass ceased in 1945, and noting that the continuing harm of the
trespass is irrelevant for the application of the continuing tort doctrine), and Breiggar
Props., LC v. H.E. Davis & Sons, Inc., 2002 UT 53, ¶ 14, 52 P.3d 1133 (determining that a
pile of debris amounted to a permanent, not continuing, trespass on the plaintiff’s
property), with Bingham v. Roosevelt City Corp., 2010 UT 37, ¶¶ 58–59, 235 P.3d 730
(characterizing the city’s continued pumping of specific wells “in a manner that
unreasonably disregard[ed] the potential harm that [would] flow to nearby
landowners” as a continuing tort), Ludlow v. Colorado Animal By‐Products Co., 137 P.2d
347, 352, 354 (Utah 1943) (affirming the trial court’s determination that the stench
produced by an animal rendering plant constituted a continuing nuisance because the
(continued...)

20120013‐CA 2
Id. (second alteration and omission in original) (citations and internal quotation marks
omitted); accord Breiggar Props., LC v. H.E. Davis & Sons, Inc., 2002 UT 53, ¶ 11, 52 P.3d
1133 (“If there are multiple acts of trespass, then there are multiple causes of action, and
the statute of limitations begins to run anew with each act. We characterize a trespass as
‘permanent’ to acknowledge that the act or acts of trespass have ceased to occur. We
characterize a trespass as ‘continuing’ to acknowledge that multiple acts of trespass
have occurred, and continue to occur, and that, in the event the statute of limitations has
run on prior acts of trespass, recovery will only be allowed for those acts which are
litigated in a timely fashion.”).

¶4 Here, Orosco’s complaint alleges that the City’s culinary water system was
leaking in a manner that caused flooding in the basement of his home “each year from
2005 through [2010],” and produced various sinkholes on his property. He sought
damages on theories of negligence and nuisance. Because Orosco alleged that “multiple
acts of” flooding have occurred throughout a five‐year span and “continue[d] to occur”
at the time Orosco filed his complaint, we determine that the continuing tort doctrine
applies. See Breiggar Props., 2002 UT 53, ¶ 11; see also Bingham v. Roosevelt City Corp., 2010
UT 37, ¶ 56, 235 P.3d 730 (recognizing that the continuing tort doctrine applies in
nuisance claims and extending the doctrine to negligence claims); cf. Sycamore Family,
LLC v. Vintage on the River Homeowners Ass’n, Inc., 2006 UT App 387, ¶¶ 3–4, 145 P.3d
1177 (mem.) (noting that although the pipes installed under the plaintiffs’ property

1. (...continued)
nuisance was recurring—it was temporarily abated when the plant was destroyed by a
fire and restarted after the plant was rebuilt), Peteler v. Robison, 17 P.2d 244, 245, 247–48
(Utah 1932) (describing the defendant’s negligent medical treatment of the plaintiff that
started with an allegedly botched tonsillectomy and continued until four months before
the plaintiff filed a complaint with the defendant’s ongoing negligent treatment of the
plaintiff’s medical complications arising in the wake of that surgery as a continuing
tort), and Thackery v. Union Portland Cement Co., 231 P. 813, 814 (Utah 1924) (classifying
as a continuing nuisance the recurrent invasion of cement dust onto the plaintiff’s
property from the defendant’s nearby cement plant, and noting that even though the
“structure was permanent,” the nuisance experienced by the plaintiff was “dependent
largely upon the extent to which the plant [was] in operation and the condition of the
elements, particularly direction of the wind” (citation and internal quotation marks
omitted)).

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constituted a permanent trespass, if “the contents of the pipes ha[d] leaked or otherwise
affected the land,” it might have changed the trespass to a continuing trespass).

II. Statute of Limitations

¶5 A one‐year statute of limitations applies in this case, as established by the Utah
Governmental Immunity Act (the UGIA). See Utah Code Ann. § 63G‐7‐402 (LexisNexis
2011). That limitations period began running when Orosco’s claim against the City
accrued, i.e., “upon the happening of the last event necessary to complete the cause of
action,” see Berenda v. Langford, 914 P.2d 45, 50 (Utah 1996) (citation and internal
quotation marks omitted), or when Orosco “knew, or with the exercise of reasonable
diligence should have known: (i) that [he] had a claim against [a] governmental entity
. . . and (ii) the identity of [that] governmental entity,” see Utah Code Ann. § 63G‐7‐
401(1)(b). See also id. § 63G‐7‐401(1)(a) (“Except as provided in Subsection (1)(b), a claim
arises when the statute of limitations that would apply if the claim were against a
private person begins to run.”). We agree with the trial court’s determination that
February 2009, around when Orosco prepared and sent a letter to the City’s insurance
carrier requesting damages and describing the ongoing flooding problems at his house
and his belief that the source of the flooding was the City’s culinary water system, was
the latest time his claim for damages occurring prior to that date could have accrued.

¶6 To comply with that one‐year statute of limitations, Orosco was required to “file
a written notice of claim with the [governmental] entity before maintaining an action”
within one year of February 2009. See id. § 63G‐7‐401(2); id. § 63G‐7‐402. “The notice of
claim shall set forth: (i) a brief statement of the facts; (ii) the nature of the claim asserted;
[and] (iii) the damages incurred by the claimant so far as they are known . . . . ” Id.
§ 63G‐7‐401(3)(a)(i)–(iii).2

2. Additionally, the UGIA requires that a complaint be filed within one year of the
denial of a claimant’s notice of claim or, in the event that no formal denial is issued, that
a complaint be filed within one year and sixty days of the date the notice of claim was
filed. See Utah Code Ann. § 63G‐7‐403 (LexisNexis 2011). Orosco’s complaint was filed
on December 28, 2010, well within one year and sixty days of his May 2010 notice of
claim.

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¶7 The parties do not dispute that Orosco filed a notice of claim in May 2010.3 The
trial court granted summary judgment in favor of the City, concluding that Orosco’s
notice of claim was untimely because his claim had accrued in February 2009, and he
did not file his notice of claim until May 2010, more than one year later. The trial court
reached this conclusion assuming that the continuing tort doctrine applied. Orosco
seems to argue in his opening brief that the continuing tort doctrine negates the
application of the statute of limitations in its entirety. We disagree with Orosco’s
interpretation, but we also disagree with the trial court’s conclusion.

¶8 Assuming that city water had, in fact, been flooding Orosco’s property at least
once a year throughout the five‐year period preceding the filing of his complaint, under
the continuing tort doctrine, each new incident of flooding constitutes a new cause of
action “and the statute of limitations begins to run anew with each act.” See Breiggar
Props., LC v. H.E. Davis & Sons, Inc., 2002 UT 53, ¶ 11, 52 P.3d 1133. Thus, the
“continuing” designation “acknowledge[s] that multiple” incidents of flooding “have
occurred, and continue to occur.” Id. Nevertheless, where, as here, the statute of
limitations has run on prior incidents of flooding, “recovery will only be allowed for
those acts which are litigated in a timely fashion.” Id. This language from Breiggar
Properties indicates that acts amounting to continuing torts must, despite the
designation as “continuing,” be “litigated in a timely fashion,” thereby recognizing that

3. We cannot find record support for this date, and in fact, the record contains a
document titled “Notice of Claim” that is dated September 20, 2010. Nonetheless, we
adopt the May 2010 date that the parties do not dispute. Additionally, the City suggests
that we determine that the February 2009 letter amounted to Orosco’s notice of claim,
which would ensure that Orosco’s cause of action is barred by the UGIA’s one‐year
statute of limitations. However, it is plain that the letter is not a notice of claim as such
notices are described by the UGIA. See generally Utah Code Ann. § 63G‐7‐401(3) (listing
several elements that must be contained in a notice of claim and describing with
specificity how and to whom a notice of claim must be delivered); Gurule v. Salt Lake
Cnty., 2003 UT 25, ¶ 7, 69 P.3d 1287 (declining to permit “reasonably strict compliance
with the statute[’s]” notice of claim requirement, and noting that “[t]he only authority
for allowing less than strict compliance [with the UGIA’s requirements] is found in
cases which depended upon ambiguities in the Act”); Rushton v. Salt Lake Cnty., 1999 UT
36, ¶ 19, 977 P.2d 1201 (recognizing that Utah appellate courts “have consistently
required strict compliance with the [notice of claim] requirements of the [UGIA]”).

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statutes of limitations apply to bar the untimely litigation of continuing torts. Id. ¶ 11
(emphasis added); see also Cannon v. United States, 338 F.3d 1183, 1192 (10th Cir. 2003)
(rejecting a claim for continuing trespass on timeliness grounds). Further, a contrary
interpretation would undermine the efficacy of the UGIA’s one‐year limitation period
and “the intent of the Utah Legislature in adopting” it. See generally Breiggar Props., 2002
UT 53, ¶ 13. Thus, we reject Orosco’s assertion that the continuing nature of the tort
precludes application of the statute of limitations to his claims for damages occurring
more than one year before his May 2010 notice.

¶9 The trial court’s decision to grant summary judgment in favor of the City,
however, was also incorrect. “A motion for summary judgment should be granted only
when no genuine issues of material fact exist and the moving party is entitled to
judgment as a matter of law.” Lovendahl v. Jordan Sch. Dist., 2002 UT 130, ¶ 13, 63 P.3d
705. “In reviewing a summary judgment, we consider the facts in the light most
favorable to the nonmoving party.” Hansen v. Mountain Fuel Supply Co., 858 P.2d 970,
972 (Utah 1993). Here, Orosco alleged in his complaint and in an affidavit supporting
his opposition to the City’s motion for summary judgment that the flooding continued
through 2010. See generally Utah R. Civ. P. 56(e). Though Orosco’s claim for the
February 2009 incident of flooding may be time‐barred by the UGIA, Orosco asserts that
flooding continued throughout 2009 and 2010. The City does not dispute this factual
assertion. We are thus left with the presumption that flooding did indeed continue
throughout 2009 and 2010 and, so long as at least one additional incident occurred
within one year of the May 2010 notice of claim, Orosco’s action is not untimely.4
¶10 Consequently, summary judgment was inappropriate. The trial court’s dismissal
is reversed, and the case is remanded for further proceedings in accordance with this
opinion.

4. The City argues that because Orosco has not asserted any specific claims of damages
for the flooding that allegedly continued throughout 2009 and 2010, Orosco’s claim
must fail and he is left with the option of taking up the subsequent flooding incidents in
separate actions. We disagree. Orosco pleaded enough facts as to damages from the
alleged 2009 and 2010 flooding incidents to at least survive summary judgment.
However, the damages he may recover will be limited to those sustained within the
one‐year limitations period prior to the 2010 filing of this action. See Walker I, 902 P.2d
1229, 1232 (Utah 1995).

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____________________________________
James Z. Davis, Judge

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¶11 WE CONCUR

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William A. Thorne Jr., Judge

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Michele M. Christiansen, Judge

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