Simons v. Sanpete County

2018 UT App 106

THE UTAH COURT OF APPEALS

DAVID SIMONS AND ALLISON SIMONS,
Appellants,
v.
SANPETE COUNTY,
Appellee.

Opinion
No. 20170258-CA
Filed June 7, 2018

Sixth District Court, Manti Department
The Honorable Wallace A. Lee
No. 150600057

Charles A. Gruber and David L. Morgan, Attorneys
for Appellants
Jesse C. Trentadue, Noah M. Hoagland, and Britton
R. Butterfield, Attorneys for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY
concurred.

HAGEN, Judge:

¶1 This case arises from a tragic car accident that resulted in
the death of Brady Simons.1 Brady’s parents, David and Allison
Simons (collectively, the Simonses), brought this wrongful death
action against Sanpete County in their capacities as heirs and
personal representatives of Brady’s estate. The district court
granted summary judgment in favor of Sanpete County, ruling

1. Because the appellants share a last name with the decedent,
we refer to the decedent by his first name throughout this
opinion. We intend no disrespect by the apparent informality.
Simons v. Sanpete County

that the county did not owe Brady a duty of care. Because we
conclude that the public duty doctrine applies and that Sanpete
County did not form a special relationship with Brady, we
affirm.

BACKGROUND

¶2 After a motorist hit and killed a deer on SR-89 outside of
Gunnison, Utah, she called Sanpete County’s dispatch center at
6:21 a.m. to report the incident and notify authorities that the
deer was lying in the middle of the road. Unfortunately, Utah
Highway Patrol—the agency responsible for responding to such
calls—never received notification of this dangerous road
condition.2

¶3 At approximately 6:50 a.m., a second motorist, who was
driving northbound on SR-89, hit the deer carcass, causing her
vehicle to cross the center line and collide head-on with Brady’s
vehicle. Both drivers died as a result of the accident.

¶4 The Simonses sued Sanpete County,3 alleging that

[b]ut for the negligence of [Sanpete County], the
Second Motorist would not have hit the dead deer
carcass, would not have lost control of her vehicle,

2. Although the dispatcher testified that he did not recall
whether he reported the call to Utah Highway Patrol, he noted
that it would have been his custom and habit to do so.

3. The complaint also listed the State of Utah (Utah Department
of Transportation, Utah Department of Wildlife Resources, Utah
Department of Public Safety, and Utah Highway Patrol) and
Gunnison City (Gunnison City Police Department) as
defendants. Pursuant to an agreement among the parties, the
district court dismissed these defendants with prejudice.

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would not have crossed over into Brady’s lane, and
would not have collided with Brady resulting in
the Accident and serious injuries which took
Brady’s life.

¶5 Sanpete County filed a motion for summary judgment,
contending that the public duty doctrine bars the Simonses’
negligence claims as a matter of law. In granting summary
judgment, the district court concluded that the public duty
doctrine applies in this case because Sanpete County’s obligation
to maintain its highways extends to anyone who may travel on
them, and its failure to remove the deer carcass was an omission
that did not contribute to the danger that otherwise existed. In
addition, the district court determined that no special
relationship had been created by statute or by Sanpete County’s
conduct. Accordingly, the court concluded that “the public duty
doctrine prevents [the Simonses’] recovery in this case.”

¶6 The Simonses timely appeal.

ISSUES AND STANDARD OF REVIEW

¶7 The Simonses contend that the district court erred in
granting summary judgment in favor of Sanpete County.
Specifically, the Simonses argue that (1) the public duty doctrine
is inapplicable because Sanpete County performed an
affirmative act when the dispatcher answered the warning call
and (2) upon learning of the dangerous road condition, Sanpete
County formed a special relationship with Brady making it
reasonable to impose a duty of care.

¶8 We review a district court’s legal conclusions and grant of
summary judgment for correctness. See Orvis v. Johnson, 2008 UT
2, ¶ 6, 177 P.3d 600. Summary judgment is appropriate if “there
is no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law.” Utah R. Civ. P.
56(a). Because the relevant facts are undisputed for the purposes

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of Sanpete County’s motion for summary judgment and this
appeal, our review is limited to determining whether summary
judgment is appropriate as a matter of law. See id.

ANALYSIS

¶9 To establish a claim of negligence, a plaintiff must prove
that “(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.”
Miller v. West Valley City, 2017 UT App 65, ¶ 23, 397 P.3d 761
(quotation simplified). “A plaintiff’s failure to present evidence
that, if believed by the trier of fact, would establish any one of
the elements of the prima facie case justifies a grant of summary
judgment to the defendant.” Morgan v. Intermountain Health Care,
Inc., 2011 UT App 253, ¶ 8, 263 P.3d 405 (quotation simplified).

¶10 In this case, the district court ruled that the Simonses
could not establish the first element of negligence: that Sanpete
County owed Brady a duty of care. “Without a duty, there can
be no negligence as a matter of law, and summary judgment is
appropriate.” Nelson ex rel. Stuckman v. Salt Lake City, 919 P.2d
568, 572 (Utah 1996) (quotation simplified). Under the public
duty doctrine, a governmental entity cannot be held liable for a
“breach of an obligation owed to the general public at large.” Id.
(quotation simplified). Because “a duty to all is a duty to none,”
a plaintiff “must show that a duty is owed to him or her as an
individual” rather than to the general public. Cope v. Utah Valley
State College, 2014 UT 53, ¶ 12, 342 P.3d 243 (quotation
simplified).

¶11 Where, as here, a plaintiff’s claim is based on a
government actor’s failure to adequately discharge a public
duty, “a presumption arises that this duty may not be a basis for
liability in a lawsuit.” Id. ¶ 30. But a plaintiff may rebut that
presumption by establishing that “there is some special
relationship between the government agency and the

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individual[] that makes it reasonable to impose a duty.” Francis
v. State, 2013 UT 65, ¶ 25, 321 P.3d 1089 (quotation simplified).

¶12 To evaluate whether the public duty doctrine applies in
this case, we must first determine whether the Simonses’ claims
are based on Sanpete County’s failure to adequately discharge a
public duty. It is undisputed that the Simonses’ theory of
liability rests upon a public duty; the question is therefore
whether Sanpete County failed to discharge that duty by
omission or whether it engaged in affirmative acts outside the
scope of the public duty doctrine. Because we conclude that
Sanpete County’s conduct (or lack thereof) was an omission, we
next consider whether the special relationship exception to the
public duty doctrine applies.

I. Sanpete County’s Alleged Negligence Constituted an
Omission.

¶13 The Simonses contend that the public duty doctrine is
inapplicable to this case because Sanpete County performed an
affirmative act when it “worked to become the designated 911
call center”; therefore, according to the Simonses, the dispatcher
had a duty to act reasonably when answering the warning call
and receiving detailed information about the dangerous road
condition. In response, Sanpete County contends that the public
duty doctrine applies to this case because “the alleged failure to
report the deer carcass to Utah Highway Patrol is an omission by
Sanpete County, not an affirmative act.”

¶14 The Utah Supreme Court has determined that the public
duty doctrine applies only to a government actor’s omissions,
not its affirmative acts. See Cope v. Utah Valley State College, 2014
UT 53, ¶¶ 25, 27, 342 P.3d 243. Affirmative acts include “active
misconduct working positive injury to others.” Id. ¶ 35
(quotation simplified). Conversely, omissions are defined as
“passive inaction, i.e., a failure to take positive steps to benefit
others, or to protect them from harm not created by any
wrongful act of the defendant.” Id. (quotation simplified). In

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other words, “a negligent affirmative act leaves the plaintiff
positively worse off as a result of the wrongful act, whereas in
cases of negligent omissions, the plaintiff’s situation is
unchanged; she is merely deprived of a protection which, had it
been afforded her, would have benefitted her.” Faucheaux v.
Provo City, 2015 UT App 3, ¶ 16, 343 P.3d 288 (quotation
simplified).

¶15 The district court correctly concluded that the Simonses’
claims are based on Sanpete County’s alleged omissions. In the
complaint, the Simonses claim that Sanpete County failed to
notify Utah Highway Patrol of the dangerous condition, remove
the deer carcass from the highway, or warn motorists. According
to the Simonses, Sanpete County should be held liable for its
inaction because, “by taking the warning call and receiving
specific information about a specific accident in a specific
location, [Sanpete County] put its figurative ‘hand to the plow’
such that it had a duty to go forward.” The Simonses’ argument
is based on the Utah Supreme Court’s decision in Cope.
Specifically, the Simonses contend that “[j]ust as Utah Valley
State College assumed a duty to act reasonably when it took the
affirmative action of offering a ballroom dance class and hiring a
dance instructor, once Sanpete County determined to be the 911
call center . . . and hired dispatchers to take calls and dispatch
them in emergency situations, it took on the specific affirmative
duty to act reasonably.”

¶16 The lawsuit in Cope arose when a student sued her college
because she was injured after a ballroom dance instructor
encouraged her to perform a lift that she and her partner had
never successfully completed. 2014 UT 53, ¶¶ 6–7. Our supreme
court held that “the public duty doctrine [did] not negate [the
college’s] duty of care toward student members of a ballroom
dance team [that had been] created and overseen by the college.”
Id. ¶ 3. In concluding that the college’s conduct amounted to an
affirmative act, the court determined that the college’s actions
“had advanced to a stage where it had a duty to act in a

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reasonable manner to prevent injuries caused by participation
with the dance team.” Id. ¶ 36.

¶17 Sanpete County’s conduct is distinguishable from Cope.
Significantly, Sanpete County did not create the dangerous road
condition, nor did it undertake to act in such a manner that it
“launched a force or instrument of harm.” See id. ¶ 35 (quotation
simplified). Instead, in failing to rectify the dangerous road
condition, Sanpete County had “stopped where inaction [was] at
most a refusal to become an instrument for good.” See id.
(quotation simplified); see also Miller v. West Valley City, 2017 UT
App 65, ¶¶ 30–32, 397 P.3d 761 (explaining that failure to
remove a third person from the plaintiff’s swimming lane was
an omission because the harm was caused by that third party,
not an affirmative act of the lifeguard). And although Sanpete
County created the dispatch center, this case is further
distinguishable from Cope because, unlike a ballroom dance
team, the service that Sanpete County offered was itself a public
duty. See 2014 UT 53, ¶ 38 (“Ballroom dance instruction is not a
public duty owed to the general public at large.” (quotation
simplified)).

¶18 Indeed, in Cope, our supreme court cited with approval a
case recognizing that “the public duty doctrine protects police
dispatchers ‘because such dispatchers do not create the
plaintiff’s peril.’” Id. ¶ 24 (quoting Fried v. Archer, 775 A.2d 430,
444 (Md. Ct. Spec. App. 2001)). While the facts of Fried are
distinguishable because the caller provided misleading
information, see 775 A.2d at 435–36, the policy behind limiting a
government actor’s liability is nevertheless instructive, see Cope,
2014 UT 53, ¶ 12. If providing a dispatch center and answering
emergency calls, without more, are affirmative acts outside the
protection of the public duty doctrine, the exception would
swallow the rule and municipalities would be “mired hopelessly
in civil lawsuits.” Id. (quotation simplified). Applying the public
duty doctrine to 911 personnel ultimately prevents depletion of
government resources that might cause a “reduction of public
safety services, including emergency response programs and

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personnel, to the community.” Muthukumarana v. Montgomery
County, 805 A.2d 372, 397 (Md. 2002) (quotation simplified).

¶19 Sanpete County neither created nor increased the danger
that existed on the roadway. Instead, it allegedly failed to
adequately discharge its public duty by not relaying the 911
caller’s information to the Utah Highway Patrol or taking other
action to remove the obstruction or warn motorists. But, under
the public duty doctrine, a governmental entity that assumes a
duty to protect the general public from such harm cannot be
held liable whenever it fails in this duty. Because this is such a
case, the district court correctly ruled that the public duty
doctrine applies.

II. No Special Relationship Existed Between Sanpete County and
Brady.

¶20 Because the public duty doctrine prevents an individual
from enforcing a public duty in tort, Sanpete County did not
owe a duty of care to Brady unless it had created a special
relationship with him. See Cope v. Utah Valley State College, 2014
UT 53, ¶ 12, 342 P.3d 243. The Simonses contend that “[b]y
taking the 6:21 am call[,] the Sanpete County dispatcher
undertook specific action to protect persons or property, clearly
creating a circumstance that may give rise to [a] special
relationship.” In addition, the Simonses contend that the first
caller relied, to Brady’s detriment, “on the Sanpete County
dispatcher to dispatch the information and to protect other
motorist approaching the dangerous traffic condition.”

¶21 The Utah Supreme Court has recognized that the special
relationship exception to the public duty doctrine applies in at
least four circumstances:

(1) by a statute intended to protect a specific class
of persons of which the plaintiff is a member from
a particular type of harm; (2) when a government
agent undertakes specific action to protect a person

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or property; (3) by governmental actions that
reasonably induce detrimental reliance by a
member of the public; and (4) under certain
circumstances, when the agency has actual custody
of the plaintiff or of a third person who causes
harm to the plaintiff.

Francis v. State, 2013 UT 65, ¶ 27, 321 P.3d 1089 (quotation
simplified). The Simonses contend that the second and third
circumstances are relevant here.

A. No Specific Action to Protect a Distinct Group

¶22 To succeed on their claim under the second circumstance,
the Simonses must show that Sanpete County “undertook
specific action” and that its actions “were intended to protect a
person or property.” See Faucheaux v. Provo City, 2015 UT App 3,
¶¶ 20–21, 343 P.3d 288. The only action that Sanpete County
undertook—answering the warning call—is distinguishable
from the type of action taken in cases where courts have
determined that a special relationship existed. See Francis v. State,
2013 UT 65, ¶¶ 4, 11–14, 321 P.3d 1089 (determining the
government actor had undertaken specific action where the
division of wildlife services tracked a dangerous bear for several
hours, returned to remove attractants from the campsite, and
then waved at the family heading toward that campsite);
Faucheaux, 2015 UT App 3, ¶¶ 20–21 (concluding that the
government actor had undertaken specific action where police
entered the decedent’s home, asked her if she was suicidal,
inquired about powder they found on her person, and then
tucked her into bed). Here, Sanpete County did not undertake
any specific action to protect a person or property. It did not
attempt to notify the highway patrol, locate or remove the deer
carcass, or warn motorists of the obstruction.

¶23 Moreover, answering the 911 call was not an act to protect
a distinct group of individuals like Brady. To invoke the
exception to the public duty doctrine, the Simonses must

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demonstrate that Brady “[stood] so far apart from the general
public that we can describe [him] as having a special relationship
to the governmental actor.” Francis, 2013 UT 65, ¶ 31. Stated
differently, “we will find a special relationship and consequent
duty” if Brady “belong[ed] to a distinct group” that Sanpete
County had taken specific action to protect. Id. ¶¶ 32–34
(quotation simplified).

¶24 A dispatcher’s receipt of a 911 call does not constitute an
act to protect or assist a specific group of individuals. Instead,
these are “general actions taken to serve members of the public
at large in need of emergency telephone services.”
Muthukumarana v. Montgomery County, 805 A.2d 372, 403 (Md.
2002); see also Miller v. West Valley City, 2017 UT App 65, ¶ 35, 397
P.3d 761 (concluding that the city employed lifeguards to ensure
the safety of the general public, not the plaintiff specifically).
Accordingly, we hold that Sanpete County did not form a special
relationship with Brady by taking specific action to protect a
distinct group of individuals in his position.

B. No Detrimental Reliance by Brady

¶25 The Simonses also argue that the special relationship
exception applies because Sanpete County’s actions “reasonably
induce[d] detrimental reliance by a member of the public.”
Francis v. State, 2013 UT 65, ¶ 27, 321 P.3d 1089. Specifically, they
contend that a special relationship existed because the first
motorist detrimentally relied on Sanpete County’s dispatch
service, forgoing the opportunity to notify other agencies.

¶26 While Utah courts have not specifically addressed
whether third-party reliance can create a special relationship,
other jurisdictions require “some form of direct contact between
the municipality’s agents and the injured party” and “that
party’s justifiable reliance on the municipality’s affirmative
undertaking.” Cuffy v. City of New York, 505 N.E.2d 937, 940 (N.Y.
1987); see Munich v. Skagit Emergency Commc’n Center, 288 P.3d

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328, 332 (Wash. 2012) (en banc) (requiring direct contact and
justifiable reliance by injured party); White v. Beasley, 552 N.W.2d
1, 5 (Mich. 1996) (same); City of Gary v. Odie, 638 N.E.2d 1326,
1332–34 (Ind. Ct. App. 1994) (same); Powell v. District of Columbia,
602 A.2d 1123, 1130 (D.C. 1992) (same); Sawicki v. Village of
Ottawa Hills, 525 N.E.2d 468, 478 (Ohio 1988) (same); see also City
of Rome v. Jordan, 426 S.E.2d 861, 863 (Ga. 1993) (declining to
require direct contact while still requiring justifiable reliance on
the part of the injured party). Reliance by an immediate family
member, acting on the injured party’s behalf, can satisfy this
requirement. See Laratro v. City of New York, 861 N.E.2d 95, 97
(N.Y. 2006) (recognizing that “direct contact and reliance by
someone other than the plaintiff” is sufficient “only where the
person making the contact was acting on behalf of his or her
immediate family”); see also Nelson ex rel. Stuckman v. Salt Lake
City, 919 P.2d 568, 573 n.7 (Utah 1996) (imputing mother’s
reliance to injured child). However, we have found no cases
suggesting that detrimental reliance by an unrelated third
person can give rise to a special relationship between the
municipality and the injured party.

¶27 In accordance with this consensus of authority, we hold
that a special relationship cannot be based on detrimental
reliance by a member of the public who has no association with
the injured party.4 Under the circumstances of this case, the
Simonses must demonstrate that Brady—not the first motorist—
reasonably and detrimentally relied on Sanpete County’s
actions. Because Brady had no interaction with Sanpete County
and was unaware that the first motorist had reported the
obstruction, the Simonses have not established that he was
induced to detrimentally rely on the dispatcher who answered

4. The facts of this case do not require us to decide the degree of
relationship necessary between the injured party and the person
induced to rely on government action, because there is no
suggestion that the first motorist was acting on Brady’s behalf in
any capacity.

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the warning call. See Jordan, 426 S.E.2d at 864 (concluding that no
special relationship existed where sexual assault victim was
unaware that police had been called and thus could not show
detrimental reliance).

¶28 Sanpete County did not form a special relationship with
Brady, because it neither took specific action to protect a distinct
group of individuals like Brady nor reasonably induced his
detrimental reliance. Accordingly, the special relationship
exception does not apply, and the public duty doctrine bars the
Simonses’ negligence claims.

CONCLUSION

¶29 The possibility that Brady’s death might have been
prevented makes this a heartbreaking case. Nevertheless, our
decisions must be based on a fair and impartial application of
the governing law. We conclude that the public duty doctrine
applies because Sanpete County’s alleged conduct was an
omission, not an affirmative act. Because Sanpete County formed
no special relationship with Brady, it cannot be held liable for
failure to discharge a public duty. Accordingly, we affirm the
district court’s grant of summary judgment in favor Sanpete
County.

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