2016 UT App 196

THE UTAH COURT OF APPEALS

BOYD J. EARL AND GAIL EARL,

Appellants,

v.

LAVERKIN CITY,

Appellee.

Opinion

No. 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, 

Attorneys for Appellants

David L. Church, Attorney for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGES GREGORY K. ORME and KATE A. TOOMEY 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 Governmental 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 completed road 

construction, not the dates the Earls slipped and fell. However, a 

claim for negligence does not accrue until the plaintiff has 

suffered an actual injury as a result of negligent conduct. We

therefore conclude that the Earls’ negligence claims did not 

accrue until they suffered actual injuries. Their notices of claim 
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20150546-CA 2 2016 UT App 196

were thus timely filed. We accordingly reverse the summary 

judgment and remand the case for further proceedings.

BACKGROUND1

¶2 In 2006, the City began a road improvement project on the 

road next to the Earls’ driveway. The project culminated in the 

road being significantly elevated. The 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 the 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 attorney slipped 

and fell while inspecting the driveway. After numerous 

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 notice of claim with the City. In October 

2010, Gail Earl also slipped and fell on the driveway, suffering 

an injury. And on June 6, 2011, Boyd Earl again slipped and fell 

on the driveway, suffering another injury. On July 20, 2011—less 

than one year later—the Earls each filed a separate notice of 

claim with the City based on their respective 2010 and 2011 falls.

¶4 On July 20, 2012, the Earls sued the City, alleging 

negligence. The City moved for summary judgment 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 owed 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 raised the road in front of their home rather than one 

year from the date they actually sustained injuries due to the 

City’s alleged negligence. “An appellate court reviews a trial 

court’s legal conclusions and ultimate grant or denial of 

summary judgment for 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.” They 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.”
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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 Governmental 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). The 

“general rule regarding statutes of limitations is that the 

limitation period begins to run when the last event 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) (citations and internal 

quotation marks omitted). Our cases require more than the 

possibility, or even the probability, of loss to trigger a claim of 

negligence; 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 alleged 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. But 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 Earls 
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20150546-CA 5 2016 UT App 196

“allege[d] that they [each] 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 damages.” Scott 

v. Universal Sales, Inc., 2015 UT 64, ¶ 25, 356 P.3d 1172. The 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 alleging negligence, not trespass.2

CONCLUSION

¶12 For the foregoing reasons, the judgment of the district 

court is reversed and the case remanded for further proceedings 

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 

Restatement (Second) of Torts § 158 (Am. L. Inst. 1965).