This opinion is subject to revision before

publication in the Pacific Reporter

2014 UT 30

IN THE

SUPREME COURT OF THE STATE OF UTAH

TODD GLAITTLI,

Plaintiff and Appellant,

v.

STATE OF UTAH and JOHN DOES I-V,

Defendant and Appellee.

No. 20130119

Filed July 15, 2014

Third District, West Jordan

The Honorable Bruce C. Lubeck

No. 100400120

On Certiorari to the Utah Court of Appeals

Attorneys:

Daniel F. Bertch, Kevin K. Robson, Salt Lake City, for appellant

Sean D. Reyes, Att‘y Gen., Bridget K. Romano, Solicitor General, 

Salt Lake City, for appellee

ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion

of the Court, in which CHIEF JUSTICE DURRANT 

and JUSTICE DURHAM joined.

JUSTICE LEE filed a concurring opinion, 

in which JUSTICE PARRISH joined.

ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:

INTRODUCTION

¶ 1 This case requires us to once again define the contours of 

the ―natural condition‖ exception to the waiver provision of the 

Governmental Immunity Act of Utah. 

¶ 2 Appellant Todd Glaittli sued the State of Utah for injuries 

he suffered when his boat ―heaved‖ and struck him, shattering his 
GLAITTLI v. STATE

Opinion of the Court

2

shoulder. Mr. Glaittli claimed his injuries were due to the 

negligent adjustment of a floating dock at Jordanelle Reservoir, 

where he kept his boat. The State claimed governmental 

immunity and moved to dismiss the claim under rule 12(b)(6) of 

the Utah Rules of Civil Procedure. The district court granted the 

motion, concluding that Mr. Glaittli‘s injuries fell within the 

―natural condition‖ exception to the waiver of immunity. The 

court of appeals affirmed. We reverse and hold that a reservoir is 

not a natural condition on the land under the Utah Governmental 

Immunity Act, Utah Code section 63G-7-301(5)(k). 

BACKGROUND

¶ 3 Todd Glaittli was the owner of a twenty-five foot cabin 

cruiser boat that he docked in the marina at Jordanelle Reservoir.1 

The marina, docks, boat slips, and reservoir are owned by the 

State of Utah and operated by the Utah Division of Parks & 

Recreation and Jordanelle State Park. Mr. Glaittli‘s boat was 

tethered to a boat slip on a floating dock, which was connected to 

the shore by eight cables. Using a hand-operated winch, State 

employees could lengthen or shorten the dock cables as needed. 

The length of the cables was important. Because the dock was 

floating, its position could be altered by the water level of the 

reservoir, wind, or other forces that disturbed the water surface. 

Failure to properly adjust the cables risked allowing the boats to 

―strike the dock or other boats, especially during periods of wave 

action.‖ Although the Jordanelle Reservoir master plan 

recommended the creation of a breakwater to protect the docks 

from waves, no breakwater was ever built.

¶ 4 In early June 2008, the water levels of Jordanelle 

Reservoir were rising at a rate of approximately one foot per day, 

requiring ―frequent, if not daily, adjustment of the cable tether 

length‖ of the docks. On June 10, 2008, a storm hit the area and 

1 Because we are reviewing a motion to dismiss, we state the 

facts ―as they are alleged in the complaint.‖ Hall v. Utah State 

Dep’t of Corr., 2001 UT 34, ¶ 2, 24 P.3d 958. Additionally, we 

―accept the factual allegations in the complaint as true and 

consider all reasonable inferences to be drawn from those facts in 

a light most favorable to the plaintiff.‖ Id. (internal quotation 

marks omitted). 
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Opinion of the Court

3

―created large waves on the reservoir.‖ Mr. Glaittli believed the 

―wave action‖ created by the storm was ―significant enough to 

warrant personal attention to his boat.‖ When Mr. Glaittli arrived 

at the marina, 

he saw large waves, causing his large boat to heave 

to a degree that he feared his boat would strike the 

dock or other boats. [He] walked out onto the dock, 

to lengthen the lines on his boat, to allow it to ride 

the waves more freely . . . . The lines were so taut 

that he was unable to loosen them. While [Mr. 

Glaittli] was standing on the dock, he was struck by 

the bow of his boat, shattering his upper arm and 

shoulder, causing him to fall to the dock, [resulting 

in injuries to] his shoulder, arm and other parts of 

his body. 

¶ 5 Mr. Glaittli attributes his injuries to the State‘s failure to: 

―adjust the dock level with the water levels;‖ ―warn [him] of an 

unsafe condition at the docks;‖ ―properly secure the docks;‖ and 

finally, to ―construct a breakwater‖ for the marina.

¶ 6 The State claimed governmental immunity and moved to 

dismiss Mr. Glaittli‘s complaint. The parties agreed that the 

activity was a government function, and the State conceded for 

the purposes of the motion to dismiss that Mr. Glaittli‘s injury was 

―proximately caused by a negligent act or omission of an 

employee committed within the scope of employment‖—meaning 

that governmental immunity would be generally waived.

2 The 

district court thus evaluated only whether there was an exception 

to the general waiver rule that would allow the State to retain its 

immunity. Proceeding under Utah Code section 63G-7-301(5)(k), 

2 UTAH CODE § 63G-7-301(4) (―Immunity from suit of each 

governmental entity is waived as to any injury proximately 

caused by a negligent act or omission of an employee committed 

within the scope of employment.‖); see Blackner v. State, 2002 UT 

44, ¶ 10, 48 P.3d 949 (stating that the inquiry for governmental 

immunity is ―(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‖).
GLAITTLI v. STATE

Opinion of the Court

4

the district court found that the waves were a ―natural condition‖ 

that caused Mr. Glaittli‘s injury, and thus the State retained its 

immunity. The district court then dismissed Mr. Glaittli‘s 

complaint for failure to state a claim upon which relief could be 

granted. The Utah Court of Appeals affirmed, finding that the 

water and waves in the reservoir were a natural condition and 

that Mr. Glaittli‘s injuries ―arose out of, were connected with, or 

resulted from‖ that natural condition.3

ISSUES AND STANDARD OF REVIEW

¶ 7 The single question on certiorari presents two distinct 

issues: (1) whether a reservoir is a ―natural condition‖ under 

Utah Code section 63G-7-301(5)(k) and (2) if it is, whether Mr. 

Glaittli‘s injuries ―ar[ose] out of, in connection with, or result[ed] 

from‖ that natural condition.4 Because we hold that the reservoir 

is not a natural condition, the second issue is irrelevant and we do 

not address it. We instead remand for further proceedings 

consistent with this opinion, including a determination of 

negligence under the negligence waiver provision.

¶ 8 ―When reviewing a court of appeals decision affirming a 

grant of a rule 12(b)(6) motion to dismiss, we review the decisions 

of the court of appeals rather than that of the trial court . . . for 

correctness.‖5 Moreover, ―determining the scope of an exception 

to the waiver of governmental immunity is a question of statutory 

interpretation that we also review for correctness.‖6

ANALYSIS

¶ 9 Whether a reservoir is a ―natural condition on [the] 

land[]‖ under section 63G-7-301(5)(k) of the Governmental 

Immunity Act of Utah is an issue of first impression in this court. 

3 Glaittli v. State, 2013 UT App 10, ¶ 16, 294 P.3d 626.

4 UTAH CODE § 643G-7-301(5)(k).

5 Wagner v. State, 2005 UT 54, ¶ 9, 122 P.3d 599 (alteration in 

original) (internal quotation marks omitted).

6 Peck v. State, 2008 UT 39, ¶ 7, 191 P.3d 4; Francis v. State, 2013 

UT 65, ¶ 19, 321 P.3d 1089 (―[W]hether the district court 

accurately interpreted the Immunity Act is a legal question that 

we review for correctness.‖).
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Opinion of the Court

5

The court of appeals held that the natural condition exception 

applied because it reasoned that the waves caused Mr. Glaittli‘s 

injury, waves are made of water, and the ―basic nature‖ of water 

is that it is a natural condition.7 The court of appeals held that the 

presence of a dam did not ―change the basic nature of the water 

itself‖ because the water had ―simply expanded onto a greater 

area‖ (i.e., into the reservoir).8

¶ 10 In interpreting the term ―natural condition‖ we cannot 

focus our inquiry too ―broadly,‖ for if we were to do so, the 

statute‘s natural condition exception would largely ―swallow the 

Act‘s waiver of immunity for negligence.‖9 This is because, as we 

noted in Grappendorf, ―[c]onsidered broadly, natural conditions 

include laws of physics, such as gravity, that necessarily 

contribute to any accident or occurrence.‖10 Moreover, as we 

noted in Francis v. State, ―we must exercise caution when 

interpreting an inexact term‖ (like ―natural‖) because ―its 

meaning could be stretched to include almost anything.‖11 The 

court of appeals reached its conclusion by focusing on whether 

the wave and the water it was made of were a ―natural 

condition.‖ This was error.12 

¶ 11 In Blackner v. State, an avalanche fell onto a road, injuring 

the plaintiff.13 We held that the avalanche was a natural 

7 Glaittli v. State, 2013 UT App 10, ¶ 17, 294 P.3d 626. Thus, the 

court of appeals did not hold that the reservoir is a natural 

condition, as the question presented on certiorari suggests. It held 

that ―the water upon which the wind acted was a natural 

condition.‖ Id.

8 Id.

9 Grappendorf v. Pleasant Grove City, 2007 UT 84, ¶ 11, 173 P.3d 

166.

10 Id.

11 Francis v. State, 2013 UT 65, ¶ 45, 321 P.3d 1089.

12 Following such reasoning leads to an absurdity given that 

everything can be viewed as ―natural‖ at some level. See, e.g., 

Grappendorf, 2007 UT 84, ¶ 11.

13 2002 UT 44, ¶¶ 2–6, 48 P.3d 949.
GLAITTLI v. STATE

Opinion of the Court

6

condition.14 The instant case is distinguishable because a road is 

separate and distinct from an avalanche in a way that waves are 

not separate and distinct from the body of water on which they 

occur. The waves and the body of water are ―so closely related‖ 

that they ―cannot be encountered independently.‖15 Thus, the 

court of appeals focused too broadly16 when it considered the 

―basic nature‖ of water itself.17 The proper question is whether 

the reservoir was a natural condition upon the land. We hold that 

it was not. 

¶ 12 Our statute reads, in pertinent part,

[i]mmunity from suit of each governmental entity is 

waived as to any injury proximately caused by a 

negligent act or omission of an employee . . . . [But is] 

not waived . . . if the injury arises out of, in 

connection with, or results from . . . (k) any natural 

condition on publicly owned or controlled lands.18

In other words, the government loses its immunity if a 

government employee negligently causes injury, but negligence or 

not, the government retains its immunity if the injury arose out of 

a natural condition on public lands.19

14 Id. ¶ 16.

15 Davis v. State, 30 P.3d 460, 463 (Wash. 2001) (distinguishing 

Ravenscroft v. Wash. Water Power Co., 969 P.2d 75 (Wash. 1998) and 

holding that tire tracks in sand leading to a drop off was not an 

artificial condition and was thus fundamentally different from the 

condition in Ravenscroft, where a reservoir was an ―artificial 

external circumstance‖ that ―could not reasonably be analyzed as 

independent‖ from a submerged stump).

16 Grappendorf, 2007 UT 84, ¶ 11.

17 Glaittli, 2013 UT App 10, ¶ 17.

18 UTAH CODE § 63G-7-301(4), (5).

19 The State concedes that its activities served a governmental 

function. The State also concedes, for the purpose of the motion 

to dismiss only, that there is ―an initial immunity waiver because 

[Mr.] Glaittli alleged that his injuries were  ̳proximately caused by 

a negligent act or omission of an employee committed within the 

con‘t.
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Opinion of the Court

7

¶ 13 A reservoir is topographical in nature and, following our 

recent decision in Francis, is thus indisputably a ―condition on the 

land.‖20 The question then, is whether a reservoir is ―natural.‖ 

We hold that it is not. In Grappendorf, we defined ―natural‖ as 

―[p]resent in or produced by nature.‖21 According to Black’s Law 

Dictionary, something natural is ―[b]rought about by nature as 

opposed to artificial means.‖22 As the Illinois Supreme Court 

reasoned in 2008, ―unlike a natural body of water, which exists 

because of natural processes, an artificial body of water is the 

result of someone‘s labor.‖23 And a reservoir is certainly brought 

about by human labor.24

¶ 14 Jordanelle Dam and Reservoir was constructed from 1987 

through 1992 by the United States Bureau of Reclamation in order 

scope of employment.‘‖ Glaittli, 2013 UT App 10, ¶ 7 (quoting 

UTAH CODE section 63G-7-301(4)).

20 2013 UT 65, ¶ 42 (― ̳condition on the land‘ seems to connote 

features that have a . . . tie to the land itself, such as rivers, lakes, 

or trees. . . . We accordingly limit application of the natural 

condition exception to those conditions that are closely tied to the 

land or that persist  ̳on the land‘—conditions that are 

topographical in nature.‖).

21 Grappendorf, 2007 UT 84, ¶ 10 (alteration in original). 

22 BLACK‘S LAW DICTIONARY 1126 (9th ed. 2009).

23 Alderson v. Fatlan, 898 N.E.2d 595, 601 (Ill. 2008) (discussing 

whether a water-filled quarry was an ―artificial body of water‖ for 

purposes of riparian water rights); see also Davis, 30 P.3d at 462 

(― ̳[A]rtificial‘ means  ̳contrived through human art or effort and 

not by natural causes detached from human agency: relating to 

human direction or effect in contrast to nature . . . formed or 

established by man‘s efforts, not by nature.‘‖ (quoting WEBSTER‘S 

THIRD NEW INTERNATIONAL DICTIONARY 124 (1986))).

24 See WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1931 

(1961) (defining reservoir as ―a place where water is collected and 

kept in quantity for use when wanted; esp: an artificial lake in which 

water is impounded for domestic and industrial use, irrigation, 

hydroelectric power, flood control, or other purposes‖ (emphasis 

added)).
GLAITTLI v. STATE

Opinion of the Court

8

to store water for municipal and industrial use.25 After it was 

built, a highway had to be relocated and two small towns were 

completely submerged.26 The reservoir was thus imagined, built, 

and brought about by ―human efforts,‖ not nature.27 Were it not 

for human efforts in building the Jordanelle Dam, the Jordanelle 

Reservoir would not exist and in its place would remain the 

naturally flowing Provo River.28

25 Jordanelle Dam, UNITED STATES BUREAU OF RECLAMATION,

https://www.usbr.gov/projects/Facility.jsp?fac_Name=Jordanell

e+Dam&groupName=Overview (last updated Mar. 5, 2009).

26 Jordanelle Reservoir, WIKIPEDIA.COM, 

http://en.wikipedia.org/wiki/Jordanelle_Reservoir (last updated 

Mar. 21, 2014); Frank Brusca, Jordanelle Reservoir/Ross Creek Valley, 

ROUTE40.NET, http://www.route40.net/page.asp?n=10846 (last 

updated Dec. 23, 2010, 5:32 PM).

27 Davis, 30 P.3d at 462 n.2; see also Ravenscroft, 969 P.2d at 82 

(acknowledging that a reservoir is artificial because ―[t]he natural 

water channel was enlarged artificially . . . [and] was not 

configured by nature but by man‖).

28 Weber ex rel. Weber v. Springville City, cited by the State, is 

inapposite. 725 P.2d 1360 (Utah 1986). In that case we noted that 

―a natural watercourse does not cease to be such because of 

artificial changes‖ such as being ―artificially obstructed, and all 

the water diverted therefrom, as where the water has all been 

dammed at a place far up the stream.‖ Id. at 1366 (internal 

quotation marks omitted). This quotation cites principles of water 

law that are inapplicable here. In Weber, the court was concerned

with the question of whether a creek was a ―natural watercourse‖ 

for purposes of the attractive nuisance doctrine. Id. at 1364. 

However, here we are asked to interpret ―natural condition‖ as 

used in the Governmental Immunity Act of Utah. Mr. Glaittli‘s 

claim does not concern the flow of the Provo River into or out of 

the reservoir, and the question posed by this case is not one of 

common tort or water law. Accordingly, we conclude that Weber

is distinguishable.
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LEE, J., concurring in the judgment

9

¶ 15 Because the reservoir was designed and created by 

human activity, and because it would not exist but for that 

activity, we hold that the Jordanelle Reservoir is not a natural 

condition on the land.

CONCLUSION

¶ 16 We therefore reverse and remand to the district court for 

a determination of whether a government employee proximately 

caused Mr. Glaittli‘s injury through a negligent act or omission 

and for all other proceedings as necessary and consistent with this 

opinion

JUSTICE LEE, concurring in the judgment: 

¶ 17 I concur in the majority‘s decision reversing the grant of 

summary judgment in favor of the State, but write separately to 

offer an alternative understanding of the statutory construct of a 

―natural condition on [the] land ‖ under Utah Code section 63G-7-

301(5)(k). Thus, I agree that the Jordanelle Reservoir is not a 

―natural condition on [the] land[]‖ for which the government is 

immune. But I find the court‘s conception of that statutory 

construct—initiated in prior cases and extended in the majority 

opinion today—to be unworkable and insufficiently connected to 

the text of the statute. In this opinion I propose an alternative 

approach rooted in a term-of-art conception of ―natural 

condition‖ from premises liability in tort law. The goal is to 

preserve the results of our prior cases while providing workable 

guidance going forward.

¶ 18 The statutory construct of a ―natural condition on [the] 

land[]‖ has bedeviled our court for years. We have appropriately 

noted that a broad, literal interpretation of ―natural condition‖ 

would encompass ―laws of physics, such as gravity, that 

necessarily contribute to any accident or occurrence.‖ Grappendorf 

v. Pleasant Grove City, 2007 UT 84, ¶ 11, 173 P.3d 166. And we have 

rightly worried that an undue extension of the natural condition 

exception could ―swallow‖ the statute‘s ―waiver of immunity for 

negligence.‖ Id.; see also Francis v. State, 2013 UT 65, ¶ 45, 321 P.3d 

1089 (expressing the need for ―caution‖ in interpreting this 

―inexact term‖ in a manner that ―could be stretched to include 

almost anything‖).

¶ 19 As I have noted previously, this problem is magnified by 

our court‘s commitment to a but-for test of causation—a test that 
GLAITTLI v. STATE

LEE, J., concurring in the judgment

10

allows any incidental connection to the natural condition 

exception (or to any of a number of other immunity-invoking 

exceptions) to override the statute‘s waiver of immunity for acts 

of negligence and the like. See Thayer v. Wash. Cnty. Sch. Dist., 2012 

UT 31, ¶¶ 52–66, 285 P.3d 1142 (Lee, J., dissenting) (criticizing the 

―some causal relationship‖ formulation in the caselaw). That 

standard is problematic. It is incompatible with the structure of 

the Governmental Immunity Act, which first broadly waives 

immunity for injuries caused by nonimmune acts (such as 

negligence), see UTAH CODE § 63G-7-301(1)–(4), and then reinstates 

immunity in instances where the injury actually arises from other 

enumerated acts or occurrences (such as conditions on the land), 

id. § 63G-7-301(5). By broadly treating a natural condition with 

any ―causal nexus‖ to an injury as a basis for an exception 

triggering governmental immunity, our cases enhance the 

problem of a broad ―natural condition‖ immunity swallowing the 

government‘s waiver for its acts of negligence. 

¶ 20 Our ―natural condition‖ cases have gone to some lengths 

to navigate around these rocky problems. First, in Blackner v. State, 

we conceptualized an avalanche as a ―natural condition‖ 

sustaining immunity and held that immunity attached despite the 

plaintiffs‘ argument that the proximate cause of the injury was the 

government defendants‘ negligence in stopping traffic in a 

manner that put the plaintiffs at risk of harm from the avalanche. 

2002 UT 44, ¶¶ 13–16, 48 P.3d 949. Then, in Grappendorf, we 

acknowledged that a gust of wind was in some sense ―natural,‖ 

but nonetheless declined to extend immunity to an accident 

caused when wind interacted with an artificial pitcher‘s mound at 

a baseball park, suggesting that a ―transient‖ force of nature does 

not ―exist on the land as required by the plain language of the 

statute.‖ 2007 UT 84, ¶ 10. And in so doing, we emphasized the 

need to ―avoid an interpretation that nullifies the Act‘s waiver of 

immunity.‖ Id. ¶ 11. Most recently, in Francis v. State, we applied 

the Grappendorf analysis in a manner foreclosing immunity for 

injury caused by an attack by a wild bear, concluding that the bear 

was too ―transitory‖ to be considered a natural condition on the 

land. 2013 UT 65, ¶ 42. In Francis, we sought to distinguish 

―topographical‖ features like rivers, lakes, and trees, which were 

―directly a part of and persist  ̳on the land‘‖ from wild animals not 

as ―closely tied to the land.‖ Id.
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LEE, J., concurring in the judgment

11

¶ 21 These decisions seem commendable as an exercise in 

furtherance of the goal of preserving a role for the ―natural 

condition‖ exception that does not swallow the waiver of 

immunity for government negligence. But to me they appear to be 

more of an ad hoc effort to secure fair outcomes than an attempt 

to announce a consistent understanding of the statutory text. 

Indeed, the analysis of the exception as applied in this case seems 

to me to emphasize that point.

¶ 22 The majority reverses the court of appeals for its 

simplistic treatment of the question whether the waters of the 

Jordanelle are ―natural,‖ finding error in the assertion that water 

emanating from the Provo River is always and forever a ―natural 

condition.‖ Supra ¶¶ 9, 11. Yet, the court‘s analysis is equally 

simplistic. The majority is right to conclude that ―[w]ere it not for 

human efforts in building the Jordanelle Dam, the Jordanelle 

Reservoir would not exist and in its place would remain the 

naturally flowing Provo River.‖ Supra ¶ 14. But that is only to say 

that a nonnatural condition was essential to the current existence 

of the Jordanelle Reservoir. And the same can be said of a natural 

condition: Were it not for the naturally flowing Provo River, the 

Jordanelle Reservoir would not exist and in its place would be a 

barren valley.

¶ 23 The point is that the question whether the waters of the 

Jordanelle are natural or nonnatural is not a matter for abstract 

logic. It is a matter for statutory interpretation—for a 

determination whether the terms of our statute give controlling 

significance to a natural condition (naturally flowing waters) or a 

nonnatural condition (a dam) when both come together to create a 

condition essential to a danger contributing to an injury. 

¶ 24 To address this question, we must do more than espouse 

the need to avoid an overbroad, rule-swallowing exception for 

natural conditions. (After all, the converse concern is also there—

of avoiding an understated, meaningless formulation of natural 

conditions that would deprive it of any meaningful application.) 

We must give substantive content to the text of the statute, in a 

manner that will allow both litigants and lower courts to apply it 

in a predictable manner.

¶ 25 The question, then, is whether the statutory notion of a 

―natural condition on [the] land[]‖ encompasses conditions that 

are formed by the confluence of both natural and man-made 
GLAITTLI v. STATE

LEE, J., concurring in the judgment

12

elements. I would answer that question on the basis of a 

reconsideration of the meaning of those terms. And in so doing, I 

would look to the common-law background of the operative 

terms of the Governmental Immunity Act—to terms rooted in 

established common-law terminology since before the adoption of 

that statute.

¶ 26 The key statutory provisions seem to me to incorporate 

classic terms of art from premises liability in the law of tort. Thus, 

the statute waives immunity for any injury caused by ―a defective, 

unsafe, or dangerous condition of any highway, road, street, alley, 

crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other 

structure located on them‖ (unless such condition is ―latent‖), and 

for any injury caused by ―any defective or dangerous condition of 

a public building, structure, dam, reservoir, or other public 

improvement‖ (but with another caveat for ―latent‖ conditions). 

UTAH CODE § 63G-7-301(3). The exception at issue here is a 

counterpart to these provisions, reinstating immunity for an 

injury that arises out of ―any natural condition on publicly owned 

or controlled lands.‖ Id. § 63G-7-301(5)(k). 

¶ 27 The references to ―dangerous conditions,‖ ―latent 

conditions,‖ and ―natural conditions‖ are apparent invocations of 

terms of art from premises liability in the law of tort. Under firmly 

rooted principles of premises liability, a possessor of property 

may be liable to an invitee or licensee if he fails to exercise 

reasonable care necessary to protect them from a known 

―dangerous condition‖ on the land. RESTATEMENT (SECOND) OF 

TORTS § 343 (1965); Tallman v. City of Hurricane, 1999 UT 55, ¶ 9, 

985 P.2d 892 (―The creator of an artificial condition on land may 

be liable to others—both upon or outside of the land—for physical 

harm caused by its dangerous nature.‖); Rogalski v. Phillips 

Petroleum Co., 282 P.2d 304, 307 (Utah 1955) (―The duty owed by 

an owner of land to a business visitor is to inspect and maintain 

his premises in a reasonably safe condition or to warn the visitor 

of any dangerous conditions existing thereon.‖); Erickson v. 

Walgreen Drug Co., 232 P.2d 210, 212 (Utah 1951) (citing and 

adopting the Restatement standard). This principle is also 

reflected in the law of nuisance, which subjects a possessor of land 

to liability for ―abatable artificial condition[s] on the land‖ if the 

possessor knows of the condition, knows or should know that it 

exists without the consent of those affected by it, and fails to take 

reasonable steps to abate it. RESTATEMENT (SECOND) OF TORTS § 839 
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LEE, J., concurring in the judgment

13

(1979); Finkelstein v. Huner, 77 A.D. 424, 426–27 (N.Y. App. Div. 

1902) (upholding damages based on failure to abate the danger 

from the artificial condition of a privy and cesspool); Rose v. 

Standard Oil Co. of New York, 185 A. 251 (R.I. 1936) (leaking oil and 

gas from a refinery is actionable as nuisance).

¶ 28 The reference to ―natural conditions on [the] land[]‖ is 

also borrowed from the tort law of premises liability. Under 

longstanding principles of tort law, a possessor of land is not 

―liable for physical harm caused to others outside of the land by a 

natural condition of the land.‖ RESTATEMENT (SECOND) OF TORTS

§ 363(1) (1965); McCarthy v. Ference, 58 A.2d 49, 53 (Pa. 1948) 

(―[G]enerally speaking, . . . a landowner is not subject to liability 

for bodily harm caused to others outside the land by a natural 

condition of the land. . . .‖). And this principle again is also 

reflected in the law of nuisance. Nuisance law provides that ―a 

possessor of land is not liable to persons outside the land for a 

nuisance resulting solely from a natural condition of the land,‖ 

RESTATEMENT (SECOND) OF TORTS § 840(1) (1979),1 while defining 

―natural condition‖ as ―a condition that is not in any way the 

result of human activity.‖ Id. cmt. a; Livezey v. Schmidt, 29 S.W. 25, 

25 (Ky. 1895) (―[A]s expressed in text-books, in order to create a 

legal nuisance, the act of man must have contributed to its 

existence.‖ (internal quotation marks omitted)); Salmon v. 

Delaware, L. & W.R. Co., 38 N.J.L. 5, 11 (N.J. 1875) (natural 

conditions are those that are ―purely sequences of natural 

causes‖); Roberts v. Harrison, 28 S.E. 995, 996 (Ga. 1897) (natural 

conditions are ―due solely to natural causes‖). 

¶ 29 These constructs are well-rooted in settled caselaw 

established long before the date of the enactment of our 

Governmental Immunity Act. And because the terms of the 

1 Salmon v. Delaware, L. & W.R. Co., 38 N.J.L. 5 (N.J. 1875) (dead 

leaves and dry grass that caught on fire not a nuisance); Roberts v. 

Harrison, 28 S.E. 995, 996 (Ga. 1897) (stagnant pond emitting 

noxious gases not a nuisance as ―[i]ll results, however extensive or 

serious, that flow from natural causes, cannot become a 

nuisance‖); Harndon v. Stultz, 100 N.W. 851 (Iowa 1904) (noxious 

weeds spread to neighboring property by action of wind not a 

nuisance); Langer v. Goode, 131 N.W. 258 (N.D. 1911) (same).
GLAITTLI v. STATE

LEE, J., concurring in the judgment

14

statute are an apparent adoption of settled legal terms, I would 

construe the statutory terminology to embrace the term-of-art 

understanding embedded in these words. 

¶ 30 A ―word or phrase‖ that ―is  ̳transplanted from another 

legal source, whether the common law or other legislation,‘‖ is 

understood to ― ̳bring[] the old soil with it.‘‖ Maxfield v. Herbert, 

2012 UT 44, ¶ 31, 284 P.3d 647 (quoting Felix Frankfurter, Some 

Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537 

(1947)). That seems clearly to be the case here. It can be no 

accident that the relevant, operative terms of the Governmental 

Immunity Act—those addressed to the government‘s immunity as 

regards its role as possessor of land or other property—coincide 

with the key terms that have long been used to define the scope of 

premises liability in tort. 

¶ 31 Thus, I would read the statute‘s reinstatement of 

immunity for injury arising out of a ―natural condition on [the] 

land[]‖ as a transplant from premises liability in tort law. And I 

would interpret that term in a manner incorporating the ―old soil‖ 

that it has long carried at common law.

¶ 32 That understanding is not only faithful to the text of the 

statute; it also addresses the above-noted concern for avoiding an 

overly expansive interpretation of the natural condition exception. 

And it is also compatible with the results of our cases. 

¶ 33 The longstanding common law concept of ―natural 

conditions‖ is straightforward. It defines a ―natural condition‖ as 

a ―condition of land [that] has not been changed by any act of a 

human being.‖ RESTATEMENT (SECOND) OF TORTS § 363, cmt. b. It 

also contrasts natural conditions with artificial ones, which are 

defined as ―structure[s] erected upon land‖ and ―trees or plants 

planted or preserved, and changes in the surface by excavation or 

filling, irrespective of whether they are harmful in themselves or 

become so only because of the subsequent operation of natural 

forces.‖ Id. § 363 cmt. b; Mills v. Hall & Richards, 9 Wend. 315, 316 

(N.Y. Sup. Ct. 1832) (pond created by man-made dam was an 

artificial condition); Towaliga Falls Power Co. v. Sims, 65 S.E. 844, 

846–49 (Ga. Ct. App. 1909) (pond created by artificial dam and 

attendant mosquitoes); McCarthy, 58 A.2d at 50–53 (rockslide on 

natural hill that was weakened by the construction of a highway); 

Andrews v. Andrews, 88 S.E.2d 88 (N.C. 1955) (wild geese attracted 
Cite as: 2014 UT 30

LEE, J., concurring in the judgment

15

by bait and a man-made pond). Thus, as conceptualized in the 

Restatement (Second) of Torts, a natural condition:

comprehends soil that has not been cultivated, graded 

or otherwise disturbed; water that is on the land 

wholly through natural causes; trees, weeds and other 

vegetation on land that has not been made artificially 

receptive to it by act of man; and birds, animals or 

insects that have not been brought upon it or attracted 

by act of man. The term does not comprehend 

conditions that would not have arisen but for the 

effect of human activity even though the conditions 

immediately resulting from the activity were 

harmless in themselves and the harmful condition has 

arisen through the subsequent operation of natural 

forces.

RESTATEMENT (SECOND) OF TORTS § 840 cmt. a. 

¶ 34 This standard incorporates a natural brake against the 

concern about the ―natural condition‖ exception swallowing the 

statutory waiver of immunity for negligence and other acts and 

conditions. See Grappendorf, 2007 UT 84, ¶ 11; Francis, 2013 UT 65, 

¶ 45. It clarifies that immunity for natural conditions does not 

extend to ―conditions that would not have arisen but for the effect 

of human activity even though the conditions immediately 

resulting from the activity were harmless in themselves and the 

harmful condition has arisen through the subsequent operation of 

natural forces.‖ RESTATEMENT (SECOND) OF TORTS § 840 cmt. a.

¶ 35 That proviso avoids the rule-swallowing effect of the 

notion that a literal interpretation of ―natural condition‖ would 

encompass ―laws of physics, such as gravity, that necessarily 

contribute to any accident or occurrence.‖ Grappendorf, 2007 UT 

84, ¶ 11. It does so by indicating that immunity is not invoked for 

―conditions that would not have arisen but for the effect of human 

activity,‖ a caveat that forecloses immunity for injuries traceable 

to ―laws of physics‖ through their interaction with artificial 

elements.

¶ 36 The common law formulation of ―natural condition‖ 

also preserves the results of our prior cases. Under the tort law 

formulation, an avalanche is a condition that ―has not been 

changed by any act of a human being.‖ RESTATEMENT (SECOND) OF 

TORTS § 363 cmt. b. It is essentially ―water that is on the land 
GLAITTLI v. STATE

LEE, J., concurring in the judgment

16

wholly through natural causes,‖ and by no means a ―condition[] 

that would not have arisen but for the effect of human activity.‖ 

Id. § 840 cmt. a. The common-law, term-of-art understanding of 

the natural condition exception is accordingly consistent with the 

result in Blackner, which extended the exception to confer 

immunity as to claims arising out of an avalanche. Grappendorf is 

also sustainable under this approach, as a pitcher‘s mound 

propelled by a gust of wind is a condition ―that would not have 

arisen but for the effect of human activity even though the 

conditions immediately resulting from the activity were harmless 

in themselves and the harmful condition has arisen through the 

operation of natural forces.‖ Id.; Grappendorf, 2007 UT 84. 

¶ 37 The Francis case might seem a bit more difficult to 

sustain under the common law understanding of natural 

conditions, since the above formulation expressly encompasses 

―birds, animals or insects that have not been brought upon [the 

land] or attracted by act of man.‖ RESTATEMENT (SECOND) OF TORTS

§ 840 cmt. a. But although ―black bears are native to Utah,‖ there 

was evidence in Francis that the State defendants had been aware 

that the bear at issue ―had found food‖ at the campground in 

question and ―would likely return if attracted‖ by humans or 

food. 2013 UT 65, ¶¶ 8, 11. So there arguably was a material 

dispute in Francis as to whether the bear had been ―attracted by 

act of man.‖ And if so the result in Francis—reversal by our court 

of a summary judgment decision in favor of government 

defendants on ―natural condition‖ immunity grounds—could also 

be sustained. See also Maynard v. Carey Constr. Co., 19 N.E.2d 304 

(Mass. 1939) (infestation of cockroaches attracted to a dump).

¶ 38 I would apply this standard to this case. Thus, I would 

interpret the statutory exception for ―natural condition[s] on [the] 

land[]‖ to extend only to conditions that have ―not been changed 

by any act of a human being,‖ RESTATEMENT (SECOND) OF TORTS 

§ 363 cmt. b, or in other words not to ―comprehend conditions 

that would not have arisen but for the effect of human activity.‖ 

Id. § 840 cmt. a. And because the Jordanelle Reservoir is a 

condition affected substantially by human activity (the 

construction of the Jordanelle Dam), I would hold that the 

reservoir is not a natural condition and thus that immunity is not 

reinstated under the statutory exception in Utah Code section 

63G-7-301(5)(k).
Cite as: 2014 UT 30

LEE, J., concurring in the judgment

17

¶ 39 This common law, term-of-art understanding of ―natural 

condition[s] on [the] land[]‖ incorporates its own inherent 

standard of causation.2 It tells us, by reference to common-law 

principles of premises liability, that any human or artificial 

element that interacts with a natural condition in a material way 

transforms the previously natural condition into an artificial one. 

And it therefore also preserves independent meaning for both the 

statutory proviso that immunity is generally waived for injuries 

caused by defective or dangerous (and nonlatent) conditions of 

―reservoirs,‖ UTAH CODE § 63G-7-301(3)(a)(ii) & (b)(ii), and for the 

statutory exception reinstating waiver (even as to injuries caused 

by defective or dangerous conditions of reservoirs) if the injury 

arises out of ―any natural condition on [the] land[],‖ id. § 63G-7-

301(5)(k). 

¶ 40 The term-of-art understanding of ―natural conditions‖ 

allows us to make sense of both the general waiver for dangerous, 

nonlatent conditions of reservoirs and the specific exception for 

natural conditions. It does so by crediting the general waiver in 

circumstances in which a natural condition (such as water flowing 

in a river) interacts with an artificial condition (such as a dam)—

rendering the otherwise natural water an artificial ―dangerous 

condition‖ (a reservoir). And the implication for the exception 

reinstating immunity for ―natural conditions‖ is parallel: Where 

the injury results only from a natural condition, and not at all 

from any interaction with an artificial element, then immunity is 

reinstated even for injuries generally (in a but-for sense) 

connected to a dangerous artificial condition like a reservoir.

¶ 41 That construct triggers the statutory waiver of immunity 

for the injuries at issue in this case, which were allegedly caused 

2 For that reason, I would not reach the broader question of the 

general viability of our ―some causal nexus‖ standard of causation 

for exceptions to waivers of immunity. See supra ¶ 19. But I would 

flag the question as meriting careful reconsideration in a future 

case. See Thayer, 2012 UT 31, ¶ 29–69, 285 P.3d 1142 (Lee, J., 

dissenting). In my view, the court should inquire as to whether 

the natural condition was not only the actual cause of the injury, 

but the legal or proximate cause as well, as viewed through 

traditional tort principles. I see this approach as mandated by the 

text and structure of the Act. 
GLAITTLI v. STATE

LEE, J., concurring in the judgment

18

by the dangerous, artificial condition of the Jordanelle Reservoir 

in a manner not implicating the statutory exception for natural 

conditions. That is because all of the allegations of negligence in 

this case are closely connected in a material way to interactions 

between natural and artificial elements. See supra ¶ 5. Thus, 

although Glaittli‘s injuries were a result of natural conditions of 

wind and weather, the harm he suffered arose out of interactions 

of those elements with the artificial condition of the Jordanelle 

Reservoir (as waves are not caused by wind alone but by the 

interaction with a large body of artificial water—a ―condition[] 

that would not have arisen but for the effect of human activity,‖ 

RESTATEMENT (SECOND) OF TORTS § 840 cmt. a.

3

¶ 42 I would reverse the court of appeals on that basis. And 

in so doing I would repudiate our ad hoc conception of the 

natural condition exception and replace it with a framework 

rooted in the common-law, term-of-art understanding of the 

statutory terminology. I concur in the judgment of the court on 

that basis.

———————

3 A contrary conclusion might well obtain if, for example, 

Glaittli had been struck by lightning while perched on the dock at 

Jordanelle. In that event, perhaps it could be said that his injury 

was not at all a result of an interaction between natural conditions 

(weather) and artificial ones (the reservoir), since it could not be 

said that a lightning strike is a ―condition[] that would not have 

arisen but for the effect of human activity.‖ RESTATEMENT 

(SECOND) OF TORTS § 840 cmt. a. At a minimum, such a question 

might be one for a jury, and the possibility of this conclusion 

preserves application for both the subsection (3) proviso that 

immunity is waived for dangerous, nonlatent conditions of 

reservoirs and for the subsection (5) exception that immunity may 

still be reinstated if an injury results from a natural condition.