Miller v. West Valley City

2017 UT App 65

THE UTAH COURT OF APPEALS

SAMANTHA MILLER,
Appellant,
v.
WEST VALLEY CITY,
Appellee.

Opinion
No. 20150449-CA
Filed April 13, 2017

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.
Miller v. West Valley City

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

1. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Koerber v.
Mismash, 2013 UT App 266, ¶ 3, 315 P.3d 1053 (citation and
internal quotation marks omitted).

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Miller v. West Valley City

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

2. Typically, “[i]mmunity is an affirmative defense which must
be proved by the defendant.” Van de Grift v. State, 2013 UT 11,
¶ 23, 299 P.3d 1043 (citation and internal quotation marks
omitted). But in some cases, “the existence of the affirmative
defense may appear within the complaint itself.” Id. (citation and
internal quotation marks omitted). Though Miller did not raise
this issue on appeal, our analysis would be the same had it been
raised. Miller’s complaint alleged a teenage girl in her swim lane
was a “hazardous condition.” This is sufficient to show that
Miller did not qualify for the “defect or dangerous condition”
exception to immunity. See infra ¶¶ 14–22. As for Miller’s
negligence claim, because we determine that WVC did not owe a
duty to Miller, we need not decide whether WVC was entitled to
governmental immunity. See Scott v. Universal Sales, Inc., 2015 UT
64, ¶ 14, 356 P.3d 1172 (“In negligence cases involving a defense
of governmental immunity, we first determine whether the
defendant owed a duty of due care to the plaintiff before
deciding whether the defendant is entitled to the affirmative
(continued…)

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Miller v. West Valley City

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).

(…continued)
defense of governmental immunity.” (citation and internal
quotation marks omitted)).

3. Because Miller’s accident occurred in 2013, we refer to the
version of the statute that was in effect at that time. See State v.
Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (“[I]f a law regulates a
breach of contract or a tort, we apply the law as it exists when
the alleged breach or tort occurs—i.e., the law that exists at the
time of the event giving rise to a cause of action.”).

4. Miller’s complaint alleged the teenager’s presence was a
“hazardous condition,” “[t]he hazard was hidden,” and “WVC
owed [her] a duty to warn of hidden or latent hazardous
conditions.” But in her opposition to WVC’s motion to dismiss,
(continued…)

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Miller v. West Valley City

¶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

(…continued)
Miller argued “the condition was not latent” because she had
informed the lifeguard of the obstruction and “a reasonably
careful inspection . . . would have revealed the dangerous
condition.” Miller distinguished between what was hidden to
her and what was “hidden or latent” to WVC, but because we
conclude the condition was not a “dangerous or defective
condition of a public building” under Utah Code section 63G-7-
301(3)(a), this distinction is ultimately immaterial. See infra ¶ 8 n.5.

5. The district court concluded that even if the presence of a
teenager in the swimming lane were considered a defect, the
defect would “result in a waiver of immunity only if it were a
latent defect.” (Emphasis added.) This is a misstatement of the
(continued…)

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Miller v. West Valley City

¶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.

ISSUE AND STANDARD OF REVIEW

¶10 On appeal, Miller contends the district court improperly
granted WVC’s rule 12(b)(6) motion to dismiss. “A trial court’s

(…continued)
law. Section 63G-7-301(3)(b)(ii) of the Utah Code provides that
“[i]mmunity from suit of each government entity is not waived if
the injury arises out of . . . a latent dangerous or latent defective
condition of any public building.” (Emphasis added.) The
allegedly “open and obvious” nature of the danger was not an
additional preclusion to waiver, but essential to Miller’s position
that immunity was waived. This is because immunity is waived
if an injury is caused by a defective condition, then reinstated if
that defective condition is latent. See Utah Code Ann. § 63G-7-
301(a)–(b) (LexisNexis 2011). But the court’s error on this point is
not material. Its determination rested on the fact that Miller had
not alleged facts amounting to a defective or dangerous
condition, and so whether the condition was latent makes no
difference to its decision. See supra ¶ 6 n.4.

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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 review for correctness.” Fishbaugh v. Utah Power &
Light, 969 P.2d 403, 405 (Utah 1998) (citation and internal
quotation marks omitted).

ANALYSIS

¶11 Miller’s appeal raises two main issues. First, she contends
the district court erred in dismissing her premises liability claim
for failure to demonstrate that immunity was waived under the
GIA. She further contends the court erred in determining she
failed to plead a negligence claim. But as a threshold matter,
Miller asserts the case should be remanded because the district
court “did not apply the correct standard” in that it “did not
accept [her] description of the facts in the complaint to be true”
or “consider all reasonable inferences to be drawn from those
facts in a light most favorable to [her].”

I. Pleading Standard

¶12 Rule 8 of the Utah Rules of Civil Procedure requires a
plaintiff “to submit a short and plain statement showing that the
pleader is entitled to relief and a demand for judgment for the
relief.” Peak Alarm Co. v. Salt Lake City Corp., 2010 UT 22, ¶ 69,
243 P.3d 1221 (ellipsis, citation, and internal quotation marks
omitted). The pleadings must be sufficient to give “fair notice of
the nature and basis or grounds of the claim and a general
indication of the type of litigation involved.” Id. (citation and
internal quotation marks omitted). “A motion to dismiss is
appropriate only where it clearly appears that the plaintiffs
would not be entitled to relief under the facts alleged or under

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Miller v. West Valley City

any set of facts they could prove to support their claim.” Baker v.
Angus, 910 P.2d 427, 430 (Utah Ct. App. 1996). “[M]ere
conclusory allegations in a pleading, unsupported by a recitation
of relevant surrounding facts, are insufficient to preclude
dismissal. Additionally, the court need not accept legal
conclusions or opinion couched as facts.” Koerber v. Mismash,
2013 UT App 266, ¶ 3, 315 P.3d 1053 (citations and internal
quotation marks omitted).

¶13 In this case, the district 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.” But nothing in the court’s ruling suggests it did
not accept as true Miller’s recitation of the facts; rather, the court
concluded that the facts she pleaded, even if true, were not
sufficient to demonstrate a cause of action. In addition, the court
did not accept Miller’s legal conclusions pertaining to her
premises liability claim. In other words, it determined that, even
assuming all of the facts Miller set forth as true, Miller could not
show a cause of action for premises liability or negligence. We
thus conclude the court did not apply the wrong standard.

II. Premises Liability

¶14 We next determine whether the district court properly
dismissed Miller’s premises liability claim. The court determined
dismissal was appropriate because Miller had not demonstrated
that governmental immunity was waived.

¶15 Although governmental entities are usually immune from
suit, immunity is sometimes waived. See Utah Code Ann. § 63G-
7-301 (LexisNexis 2011). “Generally, to determine whether a
governmental entity is immune from suit under the [GIA], we
apply a three-part test, which assesses (1) whether the activity
undertaken is a governmental function; (2) whether
governmental immunity was waived for the particular activity;
and (3) whether there is an exception to that waiver.” Blackner v.

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Miller v. West Valley City

Department of Transp., 2002 UT 44, ¶ 10, 48 P.3d 949. The parties
agree WVC’s operation of the fitness center is a governmental
function, but disagree as to whether WVC’s immunity was
waived. In arguing for waiver, Miller relied on section 63G-7-
301(3)(a)(ii), which states that governmental immunity is waived
“as to any injury caused by . . . any defective or dangerous
condition of a public building, structure, dam, reservoir, or other
public improvement.” Utah Code Ann. § 63G-7-301(3)(a)(ii).

¶16 The district court interpreted section 63G-7-301(3)(a)(ii) to
“create liability as it concerns the structure or building itself, as
the word ‘of’ refers only to the physical structure, not conditions
found within.” It declined to adopt Miller’s broader
interpretation of the statute, which inferentially would add the
phrase “or in” after “of” to the statute. On appeal, Miller does
not address the district court’s reasoning but relies on Barneck v.
Utah Department of Transportation, 2015 UT 50, 353 P.3d 140, to
argue the district court misinterpreted the statute because it
should be read through the lens of the common law. See id. ¶ 16.
Miller thus bases her argument on section 344 of the Restatement
(Second) of Torts and asserts that WVC’s immunity is waived
because she “was an invitee” whose injury was caused by a third
party.

¶17 Barneck indicates that the “operative terms of the
Governmental Immunity Act . . . coincide with the key terms . . .
used to define the scope of premises liability in tort. . . . And we
therefore interpret [those terms] in a manner incorporating the
‘old soil’ . . . long carried at common law.” Id. (citations and
additional internal quotation marks omitted). Barneck goes on to
define a “dangerous condition” as “‘[a] property defect creating
a substantial risk of injury when the property is used in a
reasonably foreseeable manner.’” Id. ¶ 17 (quoting Black’s Law
Dictionary 335 (9th ed. 2009)). The Barneck court concluded that
governmental immunity is waived for injuries caused by
dangerous conditions which the government defendant created

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or of which it was aware, and which it should reasonably foresee
would expose others to an unreasonable risk of harm. Id.

¶18 Using Barneck’s reasoning that the term-of-art sense of
common law terms should be incorporated into the statute,
Miller argues WVC’s immunity is waived because “Utah courts
have recognized liability against landowners for injuries to
invitees caused by third parties on the premises.” She relies on
section 344 of the Restatement (Second) of Torts, which states:

A possessor of land who holds it open to the public
for entry for his business purposes is subject to
liability to members of the public while they are
upon the land for such a purpose, for physical
harm caused by the accidental, negligent, or
intentionally harmful acts of third persons or
animals, and by the failure of the possessor to
exercise reasonable care to (a) discover that such
acts are being done or are likely to be done, or (b)
give a warning adequate to enable visitors to avoid
the harm, or otherwise to protect them against it.

Restatement (Second) of Torts § 344 (Am. Law Inst. 1981).

¶19 But the cases on which Miller relies to support her
position do not involve statutes or address governmental
immunity. See Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183–84
(Utah 1991) (holding that under section 344 of the Restatement
(Second) of Torts, a jewelry business was not liable for injuries
the plaintiff sustained during a robbery of the store); Steffensen v.
Smith’s Mgmt. Corp., 820 P.2d 482, 489 n.5 (Utah Ct. App. 1991)
(noting that the district court’s finding that the defendant
grocery corporation owed the customer plaintiff “a duty to take
reasonable precautions to protect her from the criminal acts of
third parties was correct” where the defendant had foreseen that
the criminal acts would occur). And section 63G-301(3)(a)(ii) of
the GIA, the basis of Miller’s claim for waiver, does not address

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Miller v. West Valley City

harm “caused by the accidental, negligent, or intentionally
harmful acts of third persons or animals.” See Restatement
(Second) of Torts § 344. Nor does it distinguish invitees from
other classes of persons. Thus it is not clear that the statute
should “incorporate the term-of-art sense[s] of these terms.” See
Barneck, 2015 UT 50, ¶ 16.

¶20 Miller also argues that an obstruction in a swim lane is a
dangerous condition that creates a substantial risk of injury for
swimmers who are using the lane in a reasonably foreseeable
manner. But her contentions do not address the basis of the
district court’s decision: that governmental immunity is only
waived for defective or dangerous conditions of a building, and
waiver does not extend to conditions inside a building. In order
to persuade us that the district court’s interpretation of the
statute was incorrect, Miller must address the reasoning of the
district court’s decision to interpret the statute as it did. See
Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153,
¶ 8, 257 P.3d 441. Because Miller has not done so, we are not
persuaded that the court erred.

¶21 In any event, we conclude the district court’s statutory
interpretation was correct. When interpreting statutes, “we look
first to the statute’s plain language,” and “[w]hen the plain
meaning of the statute can be discerned from its language, no
other interpretive tools are needed.” LPI Services v. McGee, 2009
UT 41, ¶ 11, 215 P.3d 135 (citation and internal quotation marks
omitted). As stated, section 63G-7-301(3)(a)(ii) waives immunity
for injuries caused by “any defective or dangerous condition of a
public building.” Utah Code Ann. § 63G-7-301(3)(a)(ii)
(LexisNexis 2011). This waives immunity if there exists a
dangerous condition of the building, but it does not specify that
liability reaches to the conditions within a public building. We
agree with the district court that “to adopt [Miller’s] broader
interpretation of the statute” would, in effect, have it read: “any
defective or dangerous condition of or in a public building.”
(Emphasis added.) As the district court noted, “[a] plain reading

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makes clear that the legislature intended to create liability as it
concerns the structure or building itself, . . . not conditions found
within.”

¶22 Additionally, Barneck defines a dangerous condition as a
“‘property defect.’” Barneck v. Utah Dep’t of Transp., 2015 UT 50,
¶ 17, 353 P.3d 140 (quoting Black’s Law Dictionary 335 (9th ed.
2009)). Although property defects may occur within a building,
such flaws do not encompass conditions unrelated to the
structure of a building. The “dangerous condition” alleged by
Miller was a teenager obstructing a swim lane. This is not a
property defect and is not connected to a dangerous condition of
the building itself. Therefore, the district court was correct in
determining that Miller’s complaint failed to sufficiently plead
waiver of immunity under the GIA.

III. Negligence

¶23 Miller next contends the district court erred in
determining that WVC was immune from a negligence claim. In
its decision, the court noted the GIA waives governmental
immunity “as to any injury proximately caused by a negligent
act or omission of an employee committed within the scope of
employment.” Utah Code Ann. § 63G-7-301(4). To prevail in a
negligence action, a plaintiff must prove “(1) the defendant
owed the plaintiff a duty of care, (2) the defendant breached that
duty, and (3) the breach proximately caused (4) the plaintiff to
suffer legally compensable damages.” Cope v. Utah Valley State
College, 2014 UT 53, ¶ 11, 342 P.3d 243. In determining whether a
government entity owes a duty of care to a plaintiff, courts
“must evaluate whether the public duty doctrine dictates that an
individual may not enforce a public duty in tort.” Id. ¶ 12. The
district court determined that the public duty doctrine barred
Miller from bringing a claim against WVC and that Miller had
not alleged any facts to establish the special relationship
exception to the public duty doctrine, and therefore dismissed
her negligence claim.

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Miller v. West Valley City

¶24 First, we determine whether the public duty doctrine
applies, and if it does, we then determine whether Miller
demonstrated an exception to it.

A. Public Duty Doctrine

¶25 The Utah Supreme Court addressed the public duty
doctrine in Cope. A public duty is “an obligation owed to the
general public at large.” Id. ¶ 31 (citation and internal quotation
marks omitted). Under the doctrine, “a plaintiff cannot recover
for the breach of a duty owed to the general public, but must
show that a duty is owed to him or her as an individual.” Id. ¶ 12
(citation and internal quotation marks omitted). Thus, “a duty to
all is a duty to none.” Cannon v. University of Utah, 866 P.2d 586,
588 (Utah Ct. App. 1993) (citation and internal quotation marks
omitted). By precluding liability actions when a government
entity has “assume[d] a duty to protect the general public from
harms,” this doctrine prevents a municipality from being “mired
hopelessly in civil lawsuits . . . for every infraction of the law.”
Cope, 2014 UT 53, ¶ 12 (citation and internal quotation marks
omitted). “If a plaintiff’s negligence claim is based upon a public
duty,” an exception to the doctrine applies when the plaintiff
“establishes a special relationship that imposes a specific duty of
care toward the plaintiff as an individual that is distinguishable
from a public duty owed to the general public.” Id.

¶26 In Cope, our supreme court determined that the public
duty doctrine applies only to omissions of a government actor,
not to its affirmative acts: “Where the harm is directly caused by
a third party . . . the government is not liable for its failure to
rescue the plaintiff from the external harm. Where the
affirmative acts of a public employee actually cause the harm,
however, the public duty doctrine does not apply.” Id. ¶ 24
(footnote omitted). Affirmative acts are defined as “active
misconduct working positive injury to others,” and omissions
are “passive inaction, a failure to take positive steps to benefit
others, or to protect them from harm not created by any

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Miller v. West Valley City

wrongful act of the defendant.” B.R. ex rel. Jeffs v. West, 2012 UT
11, ¶ 7, 275 P.3d 228 (citation and internal quotation marks
omitted).

¶27 Cope explains, however, that “[a]ctive misfeasance” is not
“confined to situations where an affirmative act directly causes
harm to the plaintiff” but extends to situations where defendants
“had affirmatively created conditions that gave rise to a duty to
act in order to prevent harm.” Cope, 2014 UT 53, ¶ 35. For
example, “a surgeon who fails to sterilize instruments, causing
an infection” or “an automobile manufacturer that neglects to
adequately inspect an automobile for defects before selling it to a
consumer” could be liable for misfeasance because their “actions
had advanced to a stage where inaction would commonly result
in injury.” Id.

¶28 The facts in Cope illustrate this point. A college student
enrolled in a ballroom dance class sustained an injury while
practicing a particular lift. Cope v. Utah Valley State College, 2014
UT 53, ¶¶ 4–5, 342 P.3d 243. The parties emphasized different
aspects of the incident to characterize the college’s conduct as
either an act or an omission: the student claimed the injury was
caused by the instructor’s direction to practice a new maneuver
without spotters, and the college claimed the injury arose from a
failure to provide spotters who could have prevented the injury.
Id. ¶ 34. Our supreme court, noting that the issue did not depend
“upon the semantic framing of [the] negligence claim,”
determined that the college’s “actions in creating and overseeing
the ballroom dance team had advanced to a stage where it had a
duty to act in a reasonable manner to prevent injuries caused by
participation with the dance team.” Id. ¶¶ 35–36. Thus, the
college’s conduct was an affirmative act because the student did
not allege that the college “failed to rescue her from an external
threat,” and because the college “created the conditions that led
to her injury by creating the ballroom dance team.” Id. ¶ 37.
Accordingly, the public duty doctrine did not bar the student’s
claim. Id.

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Miller v. West Valley City

¶29 Referencing Cope, Miller contends that WVC’s conduct
was likewise an affirmative act. She asserts that WVC “actively
engaged in the business of running a swimming pool,”
“promoted the swim lanes as a place where swimmers could
rely on the swim lanes to be free of obstructions,” and “hired
lifeguards to monitor the swim lanes and establish[] rules for
their safe use.” She alleges these “affirmative acts” “launched a
force or instrument of potential harm.” See id. ¶ 35.

¶30 We disagree and conclude that WVC’s conduct was an
omission and not an affirmative act. First, Miller’s complaint
repeatedly characterized WVC’s actions as a “failure to exercise
reasonable care,” and specifically noted WVC failed to keep the
swimming lanes clear of hazards. Though her complaint implied
that WVC engaged in the business of running a swimming pool,
and therefore owed a duty to its patrons, it did not allege facts
showing the public duty doctrine did not apply to her.
Furthermore, Miller’s complaint alleged her injury occurred
because the lifeguard failed to remove a third person from her
swim lane. The harm was directly caused by the presence of a
third party, not by the affirmative acts of the lifeguard, and thus
was caused by an omission. See id. ¶ 24.

¶31 We recognize the superficial similarity of these facts to
those in Cope. In Cope, the college created and oversaw the
ballroom dance team, which created “a duty to act in a
reasonable manner to prevent injuries caused by participation
with the dance team.” Id. ¶ 36. In the same vein, WVC engaged
in running a swimming pool, and by Miller’s argument, should
have a duty to act in a reasonable manner to prevent injuries to
users of that facility. But a key difference distinguishes this case
from Cope.

¶32 In Cope, the student was injured while following the
direction of the dance instructor; here, Miller’s injury was caused
by her collision with a teenager in her swim lane, not by an act of
or direction by the lifeguard. There is a difference between the

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Miller v. West Valley City

direct supervision an instructor gives while teaching students to
perform a new maneuver and the general observations of a
lifeguard over an entire pool. Because Miller’s harm was
“directly caused by a third party”—the teenager—and not by
“the affirmative acts of a public employee”—the lifeguard—we
conclude the public duty doctrine bars Miller’s claim against
WVC. See Cope, 2014 UT 53, ¶ 24. We next determine whether
Miller qualifies for the special relationship exception to the
public duty doctrine.

B. Special Relationship

¶33 Because Miller’s negligence claim is based upon a public
duty, she must demonstrate a special relationship between
herself and WVC “that imposes a specific duty of care toward
[her] as an individual that is distinguishable from a public duty
owed to the general public.” See Cope v. Utah Valley State College,
2014 UT 53, ¶ 12, 342 P.3d 243. Miller asserts she had a special
relationship with WVC because she was an invitee. But for
Miller to establish a special relationship, she had to show WVC
owed a duty “specifically to [her] as [an] individual[], rather
than a duty owed to the public at large.” See Cannon v. University
of Utah, 866 P.2d 586, 589 (Utah Ct. App. 1993). That is not the
case here. WVC did not owe Miller a duty different from that
which it would owe all members of the public, namely, to monitor
the swimming pool to keep the lanes free of obstructions.

¶34 In Cannon v. University of Utah, the Cannons crossed the
street separating a parking lot from the University of Utah
campus. Id. at 587. Two police officers were assigned “to the
crosswalk to assist in controlling traffic.” Id. “It had been raining
and snowing intermittently, and the officers . . . had marked the
crosswalk with flares.” Id. But by the time the Cannons crossed
the street, “the flares had burned out, and the two officers were
sitting in their patrol car.” Id. As the Cannons crossed the street,
a vehicle struck them. Id. They sued the University, and the trial
court “entered summary judgment in favor of the University,

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Miller v. West Valley City

concluding that . . . the officers owed [them] no duty of care.” Id.
at 588. This court determined that “to establish a negligence
claim,” the Cannons needed to demonstrate they had a special
relationship with the University by “show[ing] that the
University breached a duty owed specifically to them as
individuals.” Id. at 589. This court concluded the officers did not
owe the Cannons a duty distinct from “a general duty owed to
the public at large.” Id. Rather, neither “the Cannons nor the
University did anything to set apart the Cannons . . . from the
general public. The service provided by the officers was the
same for all pedestrians using the crosswalk . . . .” Id. Thus,
“there was no special relationship between the Cannons and the
University,” because “the officers did not owe any specific duty
to the Cannons which they did not already owe to the general
public.” Id. at 590.

¶35 Here, the lifeguard did not owe Miller a duty specific to
her. Rather, WVC’s lifeguards were employed to ensure the
safety of the general public. The lifeguard monitoring the pool in
which Miller was swimming was there to survey the conditions
of the entire pool and ensure the safety of all its patrons. We thus
conclude that Miller did not have a special relationship with
WVC.

¶36 Because Miller’s negligence claim is barred by the public
duty doctrine and because she has not established a special
relationship, we conclude the district court correctly dismissed
her claim.

CONCLUSION

¶37 For the foregoing reasons, we affirm the decision of the
district court.

20150449-CA 17 2017 UT App 65