Webb v. University of Utah

2005 UT 80
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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James Webb, 	No. 20040282
Plaintiff and Respondent,
v.
The University of Utah, a
division of the State of
Utah, Park Plaza Condominium
Owners’ Association, a Utah
nonprofit corporation, and 	F I L E D
Jonette Webster,
Defendants and Petitioner. 	November 15, 2005
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Third District, Salt Lake
The Honorable Pat B. Brian
No. 990909689
Attorneys: 	Brent Gordon, Salt Lake City, for respondent
Mark L. Shurtleff, Att’y Gen., Debra J. Moore,
Sandra L. Steinvoort, Asst. Atts’y Gen., Salt Lake
City, for petitioner
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	We granted certiorari to review the court of appeals’
holding that the University of Utah owed Mr. Webb a “duty to
exercise ordinary and reasonable care when it directs students to
engage in specific activities as part of its educational
instruction.” 	We reverse.

1 All facts are taken from Webb v. University of Utah, 2004
UT App 56, 88 P.3d 364.
No. 20040282 	2
BACKGROUND1
¶2 	Mr. Webb was a University of Utah student enrolled in
an earth sciences class. 	As part of the required course
curriculum, Mr. Webb attended a field trip to a condominium
complex to examine fault lines in the Salt Lake County area.
Mr. Webb and other students were directed to walk on icy and
snowy sidewalks through the condominium complex. 	While Mr. Webb
was standing on a complex sidewalk, a fellow student slipped and
grabbed Mr. Webb for support, causing him to fall and sustain
injuries.
¶3 	Mr. Webb sued the University of Utah and others. 	He
alleged the University was negligent in directing students to
occupy and traverse the condominium sidewalks on a school-
organized, curriculum-related field trip. 	The University filed a
rule 12(b) motion to dismiss on the grounds that no special
relationship existed between Mr. Webb and the University and,
therefore, the University owed Mr. Webb no duty. 	The trial court
granted the University’s motion and dismissed Mr. Webb’s claims
against it. 	Mr. Webb appealed.
¶4 	The court of appeals reversed. 	The court held that the
allegations in Mr. Webb’s complaint adequately described a legal
duty owed by the University to Mr. Webb. 	This duty was not one
based on a special relationship, but rather a general negligence
duty to “exercise ordinary and reasonable care when directing its
students to take a certain route on a required field trip.” 	The
court of appeals was drawn to this characterization of the
University’s duty because it interpreted the allegation that
Mr. Webb’s instructor required the class to enter a dangerous
area on a required school field trip to mean that the University
had committed an affirmative act, thereby eliminating the need
for the existence of a special relationship as a predicate for
the creation of a duty. 	The court summarized its reasoning in
its comment that “the University does owe a duty to exercise
ordinary and reasonable care when it affirmatively acts in
directing its students to perform certain tasks as part of its
curriculum.” 	Webb v. Univ. of Utah, 2004 UT App 56, 88 P.3d 364.
Despite its determination that the University owed Mr. Webb an
ordinary negligence duty, it was unwilling to concede the absence
of a special relationship, noting that “were a special
relationship required in this case, the facts alleged by Webb are
sufficient to establish a special relationship.” 	Id.

3 	No. 20040282
¶5 	The University of Utah sought certiorari review to
decide whether (1) the court of appeals erred in holding that, in
the absence of a special relationship, the University can be held
liable in negligence for injury sustained by a student on a field
trip and (2) whether the court of appeals erred in concluding
that the allegations of the complaint suffice to establish a
special relationship between Webb and the University.
STANDARD OF REVIEW
¶6 	“When reviewing cases under certiorari jurisdiction, we
apply a standard of correctness to the decision made by the court
of appeals rather than the trial court.” 	Brigham City v. Stuart,
2005 UT 13, ¶ 7, 122 P.3d 506.
ANALYSIS
¶7 	The central challenge confronting us in this case is to
make sense of the scene where common law negligence and
governmental immunity law have collided. 	The court of appeals
took on the same task. 	Webb v. Univ. of Utah, 2004 UT App 56, 88
P.3d 364. 	Although we disagree with the outcome of its effort,
we attribute our decision to reach a different result to our
conflicting readings of confusing cross-currents of tort law.
The court of appeals’ holding turns on the premise that,
irrespective of the existence of legal forces that shape the tort
liability of governmental entities, such as the public duty
doctrine, the special relationship doctrine, and the governmental
immunity statutes, an affirmative act by a governmental actor
triggers the application of the general duty to act reasonably in
the circumstances. 	Id. ¶¶ 6, 8. 	In the view of the court of
appeals, where an affirmative act by a governmental actor is
found, all other considerations must yield. 	Id.
¶8 	The court of appeals buttressed its holding by stating
that even if a special relationship was necessary to establish
liability, that relationship could be present in the relationship
between the University actor and Mr. Webb. 	We now explain why
neither of these grounds for the court of appeals’ holding is
viable.
I. 	THE SPECIAL RELATIONSHIP AS A SOURCE OF DUTY
¶9 	To establish a claim of negligence, the “plaintiff must
establish four essential elements: 	(1) that the defendant owed
the plaintiff a duty, (2) that the defendant breached that duty,
(3) that the breach of duty was the proximate cause of the
plaintiff’s injury, and (4) that the plaintiff in fact suffered

No. 20040282 	4
injuries or damages.” 	Hunsaker v. State, 870 P.2d 893, 897 (Utah
1993) (citations omitted). 	“Duty arises out of the relationship
between the parties and imposes a legal obligation on one party
for the benefit of the other party.” 	Delbridge v. Maricopa
County Cmty. Coll. Dist., 893 P.2d 55, 58 (Ariz. 1994). 	“A
court’s conclusion that duty does or does not exist is ‘an
expression of the sum total of those considerations of policy
which lead the law to say that the plaintiff is [or is not]
entitled to protection.’” 	Univ. of Denver v. Whitlock, 744 P.2d
54, 57 (Colo. 1987) (quoting Prosser and Keeton on the Law of
Torts § 53, at 358 (5th ed. 1984)).
¶10 	The court of appeals correctly observed that as a
general proposition of tort law, the distinction between acts and
omissions is central to assessing whether a duty is owed a
plaintiff. 	Webb, 2004 UT App 56, ¶ 6 n.3; see also Restatement
(Second) of Torts § 302 (1965). 	In almost every instance, an act
carries with it a potential duty and resulting legal
accountability for that act. 	By contrast, an omission or failure
to act can generally give rise to liability only in the presence
of some external circumstance–-a special relationship.
Restatement (Second) of Torts § 314A (1965). 	The Restatement
describes the following as examples of special relationships:
common carrier to its passenger, innkeeper and guest, landowner
and invitees to his land, and one who takes custody of another.
Id. 	As we have explained, “[t]hese relationships generally arise
when one assumes responsibility for another’s safety or deprives
another of his or her normal opportunities for self-protection.”
Beach v. Univ. of Utah, 726 P.2d 413, 415 (Utah 1986). 	The
“essence of a special relationship is dependence by one party
upon the other or mutual dependence between the parties.” 	Id.
(citations omitted).
¶11 	In situations not involving governmental actors, the
duality between omission and action serves as a workable
analytical tool. 	In the realm of governmental actors, however,
matters change. 	In a fundamental way, governmental actors owe a
duty to the public at large or at least to that segment of the
public which visits the particular realm of responsibility served
by the governmental actor. 	In a very real sense, the
professional lives of governmental actors are comprised of an
unending sequence of actions and failures to act that in many
instances can directly affect the health, safety, and general
well-being of citizens. 	As a matter of public policy, we do not
expose governmental actors to tort liability for all mishaps that
may befall the public in the course of conducting their duties.
Day v. State, 1999 UT 46, ¶ 10, 980 P.2d 1171. 	Doing otherwise
would have the likely effect of reducing the pool of potential

5 	No. 20040282
public servants. 	Our search for sound public policy has led us,
however, to decide that governmental actors should be answerable
in tort when their negligent conduct causes injury to persons who
stand so far apart from the general public that we can describe
them as having a special relationship to the governmental actor.
Id. ¶¶ 12-13.
¶12 	The use of the special relationship label to describe
persons who may be entitled to recover in tort from governmental
actors is a potential source of confusion because it is the same
nomenclature that the law uses to describe the class of persons
who may be owed a duty arising from another’s failure to act
under general tort law principles. 	See Black’s Law Dictionary
1405 (7th ed. 1999) (defining special relationship as “[a]
nonfiduciary relationship having an element of trust, arising
[especially] when one person trusts another to exercise a
reasonable degree of care” and defining special-relationship
doctrine as “[t]he theory that if a state has assumed control
over an individual sufficient to trigger an affirmative duty to
protect that individual, then the state may be liable for harm
inflicted on the individual”). 	Thus, identical terminology is
used to describe two tort concepts that, while very different,
occupy domains just close enough to one another to promote
confusion.
¶13 	“Special relationship” therefore has two meanings: 	one
applicable to the general tort duty analysis, the other defining
the necessary predicate to the creation of a duty in a
governmental actor. 	Id. 	As noted above, when used in the
context of ordinary negligence, a special relationship is what is
required to give rise to a duty to act, whereas the existence of
a special relationship relating to a governmental actor can
result in the imposition of liability for either her acts or her
failure to act.
¶14 	A presence or an absence of a special relationship is
not determined by titles or job descriptions. 	Nor is the
presence or absence of a special relationship immutable. 	A
governmental actor can create a special relationship, where one
did not previously exist, by her acts. 	Thus the commission of an
affirmative act by a governmental actor does not lead directly to
the duty question as it would in the case of a non-governmental
actor, but instead provides relevant information about whether a
special relationship existed between the governmental actor and
the injured party requiring the imposition of a legal duty on the
governmental actor. 	Day, 1999 UT 46, ¶ 13.

No. 20040282 	6
¶15 	Much of the confusion surrounding the concept of the
special relationship can be traced to the easily misapprehended
“duty to protect” concept. 	Generally, the duty to protect is
allied with the failure-to-act element of general negligence law.
The duty of a private citizen to act in aid of another, the duty
to protect, arises only where a special relationship is found to
exist. 	Restatement (Second) of Torts § 314A. 	Similarly, under
ordinary negligence principles, the duty-to-protect concept has
no application where a duty arises from an affirmative act. 	Once
a special relationship is found, the governmental actor’s duty
not to act negligently follows. 	Id. 	This duty encompasses both
acts and failures to act. 	Id.
¶16 	How does this explanation of the special duty problem
play itself out in Mr. Webb’s case? 	The court of appeals
determined that the governmental actor’s affirmative act of
directing students to traverse the icy sidewalk permitted the
court to sidestep the entire special relationship question. 	This
attempt to sidestep was a misstep. 	As we explained earlier,
governmental actors are not accountable for their affirmative
acts unless a special relationship is present. 	Day, 1999 UT 46,
¶ 13. 	This concept is the essence of the “public duty doctrine.”
Id. ¶ 12. 	Without a special relationship, the University owed no
duty to Mr. Webb. 	The discovery of an affirmative act could not
create one by itself.
¶17 	We turn now to the court of appeals’ fallback position:
that the governmental actor had a special relationship with
Mr. Webb. 	Where did this relationship come from, and what made
it “special”? 	According to the court of appeals, the special
relationship was created by the degree of control exercised by
the university actor over the class. 	He told them to walk on the
snow- and ice-covered sidewalk. 	The sidewalk’s surface was
dangerous--at least in hindsight. 	The court of appeals
determined that by using his authority to put the class in peril,
the university actor created a special relationship with the
class members.
¶18 	How do we know when a situation is perilous enough to
create a special relationship? 	The court of appeals says the
situation that Mr. Webb’s class faced was “fraught with
unreasonable risk.” 	Thus, the questions that may be asked
include, as pleaded and indulging it all the inferences to which
it is entitled, did Mr. Webb’s complaint allege facts from which
it could be concluded that, as a matter of law, the university
actor exercised such control over the class as to expose them to
an unreasonable risk of injury on the sidewalk? 	We hold that it
did not.

7 	No. 20040282
¶19 	University personnel do not generally have a special
relationship with students. 	Freeman v. Busch, 349 F.3d 582, 587
(8th Cir. 2003). 	“The general question of whether university
school officials and students have a ‘special relationship’ such
that there is an affirmative duty to protect and keep free from
foreseeable harm . . . has not been addressed by the United
States Supreme Court.” 	Apffel v. Huddleston, 50 F. Supp. 2d
1129, 1132 (D. Utah 1999). 	However, a number of jurisdictions
and academic publications have endorsed the view that “since the
late 1970s, the general rule is that no special relationship
exists between a college and its own students because a college
is not an insurer of the safety of its students.” 	Freeman, 349
F.3d at 587. 	This follows the modern presumption that a
university does not stand in loco parentis to its student body
and it does not have a “special custodial duty” to its student
body. 	Id.
¶20 	We relied on that theme in our analysis and holding in
Beach v. University of Utah, 726 P.2d 413 (Utah 1986), which also
involved a University student who sustained injuries on a school-
related field trip, which she claimed were due to negligence on
the part of the University and the breach of her special
relationship with the University. 	Ms. Beach participated in an
off-campus, University-sponsored field trip; at a dinner event
she became intoxicated and, after she was transported back to the
campground, wandered off, fell down a cliff, and sustained
permanent physical injuries. 	She sued the University, alleging
that a special relationship existed between the institution, her
professor, and herself. 	She alleged the special relationship
gave rise to an affirmative duty on the part of the instructor to
supervise and protect her.
¶21 	The Beach court began its analysis as we have today.
An essential element of a negligent action is that the defendant
owes a duty of reasonable care to the plaintiff. 	Id. at 415.
Absent a showing of duty, a plaintiff cannot recover. 	Id. 	The
Beach court held that “[o]rdinarily, a party does not have an
affirmative duty to care for another.” 	Id. 	Ms. Beach claimed,
however, that the University and her instructor owed her an
affirmative duty. 	Ms. Beach bolstered her argument with the
claim that her instructor, through a prior experience with
Ms. Beach on another field trip, “knew or should have known of
her propensity to become disoriented after drinking,” and
therefore, “the University had a special duty to supervise her on
the evening in question.” 	Id. at 416.

No. 20040282 	8
¶22 	We turned away Ms. Beach’s arguments and held that the
University owed her no duty. 	We reasoned that the prior field
trip to Lake Powell in which Ms. Beach “became dizzy when she
reached the bushes after leaving the rest of the company”
provided nothing “within [the instructor’s] sight that would have
alerted [him] . . . to the fact that she had a tendency to become
dizzy or disoriented when she consumed alcohol.” 	Id. 	Thus the
earlier field trip was “not determinative of whether a special
relationship arose.” 	Id. 	The Beach court found no
characteristics of a special relationship between Ms. Beach and
the University or her instructor. 	As a result, the court
concluded that “[b]ecause no special relationship existed, the
University had no affirmative obligation to protect or supervise
her and no duty was breached.” 	Id.
¶23 	Despite the result in Beach, we are persuaded that a
college instructor who has no special relationship with her class
members in a benign academic setting can create a special
relationship by altering the academic environment. 	We think that
it is therefore possible for an instructor to sit in her office
and plan a field trip to a domesticated destination like a
condominium project without creating a special relationship, but
can create a special relationship later upon arriving on the
scene to find that the actual setting is not, in fact,
domesticated, but perilous.
¶24 	The hypothetical possibility that a special
relationship can be created between an instructor and a student
in a higher education setting flows from the fundamental reality
that despite the relative developmental maturity of a college
student compared to, say, a pre-schooler, a college student will
inevitably relinquish a measure of behavioral autonomy to an
instructor out of deference to her superior knowledge, skill, and
experience. 	This is a phenomenon that should, and certainly
does, at least unconsciously guide all decisions made by
instructors relating to the selection of an environment for
learning.
¶25 	The harder question is to determine how much loss of
autonomy a student must sustain and how much peril must be
present to establish a special relationship. 	We are not prepared
to endorse the State’s position that every college student is
responsible for his own protection in any school-related
activity, regardless of the risk. 	The experience of courts in
other jurisdictions gives us ample reason to leave open the
possibility that a special relationship may emerge from the
university-student relationship. 	For example, universities have
been held liable for school-related accidents involving assaults

9 	No. 20040282
in student dormitories and fraternity hazing incidents. 	Furek v.
Univ. of Delaware, 594 A.2d 506 (Del. 1991); Mullins v. Pine
Manor Coll., 449 N.E.2d 331 (Mass. 1983). 	Some have also
rejected university liability if the student assumed what was a
clearly identifiable and obvious danger. 	See Breheny v. Catholic
Univ. of Am., No. 88-3328-OG, 1989 U.S. Dist. LEXIS 14029, at *3-
8 (D.D.C. Nov. 22, 1989) (the plaintiff sued the University after
fracturing her ankle in an intramural touch football game. 	Id.
at *3-4. 	The plaintiff admitted the field was drenched and muddy
from a prior rain storm. 	Id. at *7. 	The court held that
“[t]here are situations in which the danger is so patent or well
known that, as a matter of law, a participant assumes the risk.”
Id. at *8. 	The court found the plaintiff had knowledge and
appreciation of the risk and voluntarily assumed that risk, and
therefore, the university was not negligent, id. at *14). 	But
see Brigham Young Univ. v. Lillywhite, 118 F.2d 836, 841-43 (10th
Cir. 1941) (where the court concluded the university instructor
was negligent to a student for her injuries sustained by the
instructor’s failure to properly supervise students conducting
experiments in the chemistry lab). 	One method to aid us in
approaching the autonomy question is using the special
relationship factors set out in Day v. State, 1999 UT 46. 	In Day
we squarely faced the question of special relationship formation:
A special relationship can be established
(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 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.
Id. ¶ 13.
¶26 	The third Day factor, that a special relationship may
be created “by governmental actions that reasonably induce
detrimental reliance by a member of the public,” is relevant
here. 	Id. 	A directive received in connection with a college
course assignment is an act that would engage the attention of
the prudent student. 	There are practical reasons for this.
Students want to please their instructors. 	They want to succeed
in their studies. 	They believe that the instructors have command

No. 20040282 	10
of the subject matter and the environment in which it is taught.
Many of these directives would be logical candidates to induce
the kind of detrimental reliance we contemplated in Day.
¶27 	It is certainly possible that a directive inducing
detrimental reliance may be one that creates an unreasonable risk
of harm to the people expected to follow it. 	Viewed objectively,
we conclude that the directive to occupy and traverse the
condominium sidewalk does not meet this standard. 	We reach this
conclusion for several reasons. 	First, the directive given
Mr. Webb’s class did not relate directly to the academic
enterprise of the class. 	By this we mean that it is not
reasonable to believe that any student would understand that his
academic success, measured either by the degree of knowledge
acquired or by the positive impression made on the instructor,
turned on whether they abandoned all internal signals of peril to
take a particular potentially hazardous route to view fault
lines. 	Put in the language of Day, the directive’s tangential
relationship to the field trip’s academic mission leaves us with
the firm conviction that it would not be reasonable for a student
to rely on it. 	The instructor did not, therefore, exert the
control which might be present in an academic setting to create a
special relationship.
CONCLUSION
¶28 	Because the University’s directive to Mr. Webb to
traverse the sidewalk was insufficient to create a special
relationship with him and a legal duty to him, we reverse the
judgment of the court of appeals.
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¶29 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.