2016 UT App 196



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

B OYD J. E ARL AND G AIL E ARL , Appell ants
,

v. L A V ERKIN C ITY , Appell ee

. Opinion
N o. 20150546

- CA
Filed September 15, 2016

Fifth District Court , St. George Department
The Honorable Jeffrey C. Wilcox
No. 120500450

Gary G . Kuhlmann and Nicolas D. Turner

, Attorney s for Appellant s

David L. Church

, Attorney for Appellee

J UDGE J. F REDERIC V OROS J R

. authored th is Opinion

, in which J UDGES G REGORY K. O RME and K ATE A. T OOMEY concurred

.

VOROS , Judge:

¶1 Boyd J. Earl and Gail Earl sued LaVerkin City for negligence after they slipped and fell on gravel the City had placed near the Earls’ driveway as part of a road construction project . As required by the G overnmental Immunity Act , the Earls filed notices of claim within one year after each fall that resulted in injury

. On summary judgment, the district court dismissed the Earls’ complaint on the ground that the one

- year limitations period ran from the date the City co mpleted road construction, not the date s the Earls slipped and fell. However, a claim for negligence does not accrue until the plaintiff has suffered an actual injury a s a result of negligent conduct. W e therefore conclude that the Earls’ negligence claims did not accrue until they suffered actual injuries . Their notices of claimEarl v. LaVerkin City

20150546

- CA 2 2016 UT App 196 were thus timely filed. We accordingly reverse the summary judgment and remand the case for further proceedings.

BACKGROUND 1

¶2 In 2006, t he City began a road improvement project on t he
road next to the Earls’ driveway. The project culminated in the road being significantly elevated. T he City deposited dirt and gravel at the end of the driveway, increasing its pitch . The Earls, their tenant, and some visitors to their property all filed
affidavits with t he City in 2007. The affidavits complained about the construction and alleged that several people had slipped and
fallen due to the steep incline. Even the City ’s a ttorney slipped
and fell while inspecting the driveway . After numerou s meetings between the Earls and the City , the City agreed to reconstruct the road in front of the Earls’ home , but never completed the reconstruction project

.

¶3 On September 22, 2010, Boyd Earl slipped and fell on the driveway, suffering an injury . On May 23, 2011

— less than one year later

— he filed a n otice of c laim with t he City . In October 2010, Gail Earl also slipped and fell on the d riveway , suffering an injury

. And o n June 6, 2011

, Boyd Earl again slipped and fell

on the driveway , suffering an other injury . On July 20, 2011

— less than one year later

— the Earls each filed a separate n otice of

c laim with the City based on their respective 2010 and 2011 falls

.

¶4 On July 20, 2012, the Earls sued the City , alleging negligen ce . The City moved for summary j udgm ent on the ground that the Earls’ notices of claim “ were not timely filed and

1. We “ review the district court ’ s grant of summary judgment de novo, reciting all facts and fair inferences drawn from the record in the light most favorable to the nonmoving party. ” Poteet v. White , 2006 UT 63, ¶ 7, 147 P.3d 439

.Earl v. LaVerkin City

20150546

- CA 3 2016 UT App 196 that the City owe d no duty of care to the Earls

. ” On May 28,
2015

, following oral arguments, the district court denied the motion for summary judgment with respect to the duty of care

. But it dismissed the Earls ’ claims with prejudice on the ground that the Earls “did not file their notices of claims with the City within one year from the time that the City altered the road.” The Earls appeal the dismissal

.

ISSUE AND STANDARD OF REVIEW

¶5 The Earls contend that the district court “improperly interpreted the statute of limitations provision of the Governmental Immunity Act of Utah” by requiring them to file
their notices of claim with the City within one year from the date
the City ra ised the road in front of their home rather than one year from the date they actually sustained injuries due to t he City’s alleged negligence. “An appellate court reviews a trial

court ’ s legal conclusions and ultimate grant or denial of

s ummary judgment fo r correctness and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson , 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted).

ANALYSIS

¶6 The Earls contend that the district court “improperly interpreted the statute of limitations provision of the Governmental Immunity Act of Utah.” The y argue that the limitations period for filing a notice of claim began to run when they suffered their respective injuries, not when the City completed its allegedly negligent road construction. The district

court ruled that the Earls were required to file their notices

“ within one year from the time that the City altered the road which is at the core of the Plaintiffs’ Complaint. ”Earl v. LaVerkin City

20150546

- CA 4 2016 UT App 196 ¶7 “ A claim against a governmental entity

. . . is barred
unless notice of claim is filed

. . . within one year after the claim
arises .” Utah Code Ann. § 63G

- 7

- 402 ( LexisNexis 2014 ). Under
the Govern ment al Immunity Act, “ a claim arises when the statute of limitations that would apply if the claim were against a private person begins to run. ” Id. § 63G

- 7

- 401(1)(a). T he “general rule regarding statutes of limitations is that the limitation per iod begins to run when the last even t necessary to complete the cause of action occurs

. ” Sevy v. Security Title Co. of S. Utah

, 902 P.2d 629, 634 (Utah 1995).

¶8 “The general rule is that a cause of action for negligence does not accrue or vest until the plaintiff has suffered injury as a result of negligent conduct.” Payne ex rel. Payne v. Myers , 743 P.2d 186, 190 (Utah 1987). Thus, “ until there is actual loss or damage

. . . a claim for negligence is not actionable.” Seale v.
Gowans , 923 P.2d 1361, 1364 (Utah 1996) ( citation s and internal quotation marks omitted)

. Our cases require more than the possibility

, or even the probability

, of loss to trigger a claim of

n egligence ; the plaintiff must “ suffer an actual loss. ” Tuttle v. Olds , 2007 UT App 10, ¶ 12, 155 P.3d 893.

¶9 Under these authorities, the Earls’ notices of claim were timely. The Earls allege d negligence claims arising from actual injuries suffered in 2010 and 2011. They filed their notices of claim within one year after each of these injuries occurred

. They
could not have filed their notices of claim for these injuries
before 2010 because those injuries had not yet occurred.

¶10 The City maintains that its affirmative acts all “ occurred before 2007, and the Earls knew at that time, not only what the City had done, but what the consequences to the City’s acts were. They knew that

. . . there was the potential that people, including themselves, could and would slip and fall.” This may well be true. B ut Tuttle explains that a potential loss or even a probable loss does not trigger a claim for negligence; the plaintiff
must suffer an actual loss. Id. The City also notes that the EarlsEarl v. LaVerkin City

20150546

- CA 5 2016 UT App 196 “allege [d] that they [e ach] had slipped and fallen on the driveway prior to 2007 and that their slips were caused by the City.” If the Earls were suing based on injuries suffered in 2007

, their notices of claim would indeed be untimely. But their causes of action rely only on the 2010 and 2011 falls, not the earlier falls.

¶11 Finally, the City argues that the Earls’ “claim is essentially a trespass claim.” Consequently, they reason, Breiggar Properties, LC v. H.E. Davis & Sons, Inc ., 2002 UT 53, 52 P.3d 1133, a trespass case, governs the question of when the Earls’ cause of action

arose. See id. ¶ 11. We disagree. “Negligence claims have four
distinct elements

— duty, breach, causation, and dama ges.” Scott v. Universal Sales, Inc ., 2015 UT 64, ¶ 25, 356 P.3d 1172. T he Earls’ complaint alleges that the Earls slipped and fell , suffering personal injuries ; that the City had a duty of care ; that the City breached that duty ; and that the City’s breach was the actual and proximate cause of the Earls’ injuries. We readily recognize this complaint as all eging negligence, not trespass. 2

CONCLUSION

¶12 For the foregoing reasons, the judgment of the district court is reversed and the case remanded for further pr oceedings consistent with this opinion.

2 . One commits trespass, whether or not they cause any actual harm, if they without consent or authority intentionally enter or remain on land in the possession of another or fail to remove from the land something they are under a duty to remove. See
Restat ement (Second) of Torts § 158 ( Am. L. Inst. 1965).