2013 UT App 10

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

T ODD G LAITTLI

,

Plaintiff and Appellant,

v.

S TATE OF U TAH

,

Defendant and Appellee.

Opinion

No. 20100733

‐ CA

Filed January 10, 2013

Third District, West Jordan Department

The Honorable Bruce C. Lubeck

No. 100400120

Daniel F. Bertch and Kevin K. Robson,

Attorneys for Appellant

John E. Swallow and Bridget K. Romano,

Attorneys for Appellee

J UDGE M ICHELE M. C HRISTIANSEN authored this Opinion,

in which J UDGES C AROLYN B. M C H UGH

and J. F REDERIC V OROS J R

. concurred.

CHRISTIANSEN, Judge:

¶1 Plaintiff Todd Glaittli appeals the trial court’s dismissal of

his negligence action against the State of Utah. He claims that the

trial court erred by concluding that the State was immune from suit

under the “natural condition” exception to the waiver of immunity

provided in the Governmental Immunity Act of Utah. We affirm.Glaittli v. State

20100733

‐ CA 2013 UT App 10 2 BACKGROUND

¶2 Because we are reviewing a motion to dismiss, we state the

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

Dep’t of Corr.

, 2001 UT 34, ¶ 2, 24 P.3d 95. Glaittli owned a twenty

‐

five foot cabin cruiser boat that he kept docked at a marina at the

Jordanelle Reservoir. The State, through its Division of Parks

& Recreation and Jordanelle State Park, owns and operates the

Jordanelle Reservoir, including the marina, docks, and boat slips

relevant to this case. Glaittli’s boat was tethered to a boat slip at a

floating dock, which is connected to the shore by cables. State

employees lengthen or shorten the cables with a hand

‐ operated

winch according to the water level in the reservoir to “prevent

boats tied off to the dock from being damaged by bowlines that are

too short or too long. Among other things, failure to adjust these

cables can allow the boats to strike the dock or other boats,

especially during periods of wave action on the reservoir surface.”

The master plan for the Jordanelle Reservoir anticipated that the

marina and floating docks would be protected by a breakwater.

However, no breakwater was built and the docks are exposed to

the waves on the reservoir.

¶3 In June 2008, the water levels were rising and required

frequent adjustments of the cables. On June 10, Glaittli learned

about a storm in the area of Jordanelle Reservoir, “which [would]

create[] large waves.” Realizing that “the wave action was signifi

‐

cant enough to warrant his personal attention to his boat,” Glaittli

proceeded to the marina, where 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,

without risk to it or other boats.

. . . While [he] was standing on the dock,Glaittli v. State

20100733

‐ CA 2013 UT App 10 3 he was struck by the bow of his boat,

shattering his upper arm and shoulder,

causing him to fall to the dock, injuring

his shoulder, arm and other parts of his

body.

Glaittli alleges that the State caused his injuries by its negligent

“[f]ailure to adjust the dock level with the water levels by turning

the winch handles”; “[f]ailure to warn [him] of an unsafe condition

at the docks, created by its failure to adjust the dock levels”; and

‘[f]ail[ure] to properly secure the docks on the day of the accident

allowing users in an area that [it] either knew or should have

known was dangerous.” He also alleges that the State negligently

“[a]llow[ed] a hazardous condition to continue to exist by failing

and refusing to construct a breakwater in the area of the [m]arina

where [Glaittli’s] boat was docked.”

¶4 The State responded with a motion to dismiss for failure to

state a claim based on the Governmental Immunity Act of Utah,

arguing that Glaittli’s injuries fell within the “natural condition”

exception to the waiver of immunity. See Utah Code Ann. § 63G

‐ 7

‐ 301(5)(k) (LexisNexis 2011) (retaining immunity when the “injury

arises out of, in connection with, or results from

. . . any natural

condition on publicly owned or controlled lands”). The trial court

agreed that Glaittli’s injuries “arose out of, in connection with, or

resulted from the storm

‐ created large waves on Jordanelle Reser

‐

voir, a ‘natural condition on publicly owned or controlled lands.’”

(Quoting Utah Code Ann. § 63G

‐ 7

‐ 301(5)(k).) Accordingly, the trial

court dismissed the complaint and this appeal followed.

ISSUE AND STANDARD OF REVIEW

¶5 Glaittli argues that the trial court erred in dismissing his

complaint because the Governmental Immunity Act of Utah waives

the State’s immunity for the injuries he suffered and the conduct

here does not fall within the natural condition exception to thatGlaittli v. State

20100733

‐ CA 2013 UT App 10 4 waiver. “A trial court’s decision to dismiss a case based on

governmental immunity is a determination of law that we afford

no deference.” Hall

, 2001 UT 34, ¶ 11; see also Blackner v. State Dep’t

of Transp.

, 2002 UT 44, ¶ 8, 48 P.3d 949. “Additionally, determining

the scope of an exception to the waiver of governmental immunity

is a question of statutory interpretation that we also review for

correctness.” Peck v. State

, 2008 UT 39, ¶ 7, 191 P.3d 4; see also

Blackner

, 2002 UT 44, ¶ 8.

ANALYSIS

¶6 The issue on appeal is whether the State is immune from suit

under the Governmental Immunity Act of Utah (the Act). See

generally Utah Code Ann. §§ 63G

‐ 7

‐ 101 to

‐ 904 (LexisNexis 2011

& Supp. 2012). The Act is the latest in a series of statutes through

which the Utah Legislature has identified circumstances where the

immunity the State enjoyed at common law is waived. See Tindley

v. Salt Lake Sch. Dist.

, 2005 UT 30, ¶ 9, 116 P.3d 295. The Act

contains broad waivers of immunity for certain governmental

functions, which are then limited by specific exceptions. See Utah

Code Ann. § 63G

‐ 7

‐ 301 (LexisNexis 2011). Therefore, “to determine

whether a governmental entity is immune from suit under the Act,

we apply a three

‐ part test, which assesses (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.” Blackner

, 2002 UT 44, ¶ 10.

¶7 The State concedes that its activities relative to maintaining

and operating the Jordanelle Reservoir, including the marina and

floating dock, served a governmental function. In addition, for

purposes of the Motion to Dismiss only, the State concedes an

initial immunity waiver because Glaittli alleged that his injuries

were “proximately caused by a negligent act or omission of an

employee committed within the scope of employment.” See Utah

Code Ann. § 63G

‐ 7

‐ 301(4) (the negligence waiver). Glaittli also

contends that immunity has been initially waived because hisGlaittli v. State

1 Although we agree with the State that Glaittli did not

preserve his argument under the public improvement waiver,

that provision does not affect our analysis because both the

negligence waiver and the public improvement waiver are

equally affected by the natural condition exception.

2 The State also does not contest that the injuries occurred

on publicly owned and controlled lands.

20100733

‐ CA 2013 UT App 10 5 injuries were caused by a “defective or dangerous condition of a

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

‐

ment.” 1 See id. § 63G

‐ 7

‐ 301(3)(a)(ii) (the public improvement

waiver). The parties disagree as to whether the State retained its

immunity pursuant to an exception to either waiver. 2

I. Waivers of Immunity

¶8 “When interpreting a statute, our goal is to give effect to the

legislature’s intent and purpose .” Grappendorf v. Pleasant Grove City

,

2007 UT 84, ¶ 9, 173 P.3d 166. To accomplish this,

we begin with the statute’s plain lan

‐

guage. In conducting a textual analysis,

we consider the literal meaning of each

term and “avoid interpretations that

will render portions of a statute super

‐

fluous or inoperative.” The plain lan

‐

guage of any specific provision should

be read in harmony with other provi

‐

sions in the same statute.

Id. (quoting Hall v. Utah State Dep’t of Corr.

, 2001 UT 34, ¶ 15, 24

P.3d 95) (additional citations omitted)).

¶9 Here, subsection (3) of the waiver provisions of the Act

contains the public improvement waiver, see Utah Code Ann.Glaittli v. State

20100733

‐ CA 2013 UT App 10 6 § 63G

‐ 7

‐ 301(3)(a)(ii), and subsection (4) of that same section sets

forth the negligence waiver, see id. § 63G

‐ 7

‐ 301(4). Thus, if Glaittli’s

injuries were proximately caused by a defective or dangerous

condition on a public improvement, including a floating dock or a

reservoir, or were proximately caused by the negligence of a State

employee acting within the scope of the employee’s duties, the Act

provides that governmental immunity is waived.

II. Exceptions to the Waiver of Immunity

¶10 However, this is not the end of our inquiry under the Act.

Although immunity has been initially waived for these categories

of conduct, the Act expressly exempts a subset of conduct from the

waiver of immunity. See id. § 63G

‐ 7

‐ 301(5). Of importance for our

purposes is the Act’s provision that “[i]mmunity from suit of each

governmental entity is not waived under Subsections (3) and (4) if

the injury arises out of, in connection with, or results from:

. . . (k)

any natural condition on publically owned or controlled lands.” See

id. § 63G

‐ 7

‐ 301(5)(k).

¶11 As an initial matter, Glaittli contends that the natural

condition exception is inapplicable for an injury caused as a result

of a defective public improvement because once manmade

structures are built on natural land or water, they become “public

improvements,” and are no longer “natural conditions.” However,

such a reading would misconstrue the plain language of the

exception, which clearly indicates that it applies to both subsections

(3) and (4). See Utah Code Ann. § 63G

‐ 7

‐ 301(5)(k) (LexisNexis

2011). Indeed, because subsection (3) waives immunity for injuries

caused only by manmade structures, yet is expressly included as

limited by the natural condition exception contained in subsection

(5), Glaittli’s reading would be directly contrary to the plain

language of the Act. See id. § 63G

‐ 7

‐ 301(3)(a)(i) (waiving immunity

for injuries caused by defective or dangerous conditions of a

“highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel,

bridge, viaduct, or other structure located on them”); § 63G

‐ 7

‐ 301(3)(a)(ii) (waiving immunity for any defective or dangerousGlaittli v. State

20100733

‐ CA 2013 UT App 10 7 condition of a “public building, structure, dam, reservoir, or other

public improvement”). Thus, irrespective of whether immunity

may have been initially waived under the negligence provision of

the Act, see id. § 63G

‐ 7

‐ 301(4), or the public improvement provision

of the Act, see id. § 63G

‐ 7

‐ 301(3)(a)(ii), the State continues to enjoy

immunity if Glaittli’s injuries arose out of, occurred in connection

with, or resulted from a natural condition. We undertake that

analysis now.

¶12 Glaittli argues that “the wind that caused the waves that

caused the floating dock to ‘heave’ was an ‘atmospheric’ condition,

not a ‘natural’ condition of land, within the meaning of the ‘natural

condition’ [exception].” We consider two decisions from the Utah

Supreme Court instructive to our analysis of this argument:

Blackner v. Utah Department of Transportation

, 2002 UT 44, 48 P.3d

949, and Grappendorf v. Pleasant Grove City

, 2007 UT 84, 173 P.3d

166.

¶13 In Blackner

, the earlier of these decisions, two avalanches

swept onto a state

‐ controlled road. 2002 UT 44, ¶¶ 3–6. After the

first avalanche, the plaintiff and other drivers were instructed to

wait for workers to clear the road. Id. ¶ 4. While they were

detained, the second avalanche caused additional snow and debris

to fall onto the road, injuring the plaintiff. Id. ¶ 6. The plaintiff sued

the State and the Town of Alta, alleging that immunity was not

retained. Id. ¶ 7. Although the plaintiff did not deny that the first

avalanche was a natural condition, he argued that the negligent

response to that natural condition proximately caused his injuries.

See id. ¶ 13. The supreme court explained the natural condition

exception as it applied to those facts as follows:

The Act unequivocally provides that

when a plaintiff’s injury either “arises

out of[ ][or] in connection with, or

results from” a “natural condition on

publicly owned or controlled lands,”

governmental immunity is retainedGlaittli v. State

20100733

‐ CA 2013 UT App 10 8 with respect to any action to recover

for injuries proximately caused by a gov

‐

ernment employee’s negligence. The ap

‐ plication of the “natural condition”

exception to the waiver of governmen

‐

tal immunity does not hinge on

whether the “natural condition” in any

way “proximately caused” the

plaintiff’s injuries.

. . .

[E]ven assuming that the actions

of [the government employees] were

negligent and proximately caused

Blackner’s injuries, UDOT and Alta are

immune from suit to recover for those

injuries because Blackner’s injuries

arose out of a natural condition on

publicly owned or controlled land. The

first avalanche and the snow pack from

which both avalanches originated were

natural conditions.

Id. ¶¶ 13–14 (first and second alterations in original) (quoting Utah

Code Ann. § 63

‐ 30

‐ 10(11) (Michie 1997) (current version at Utah

Code Ann. § 63G

‐ 7

‐ 301(5)(k) (LexisNexis 2011))).

¶14 Five years after Blackner

, the Utah Supreme Court decided

Grappendorf

. In that case, a “violent gust of wind” ripped Pleasant

Grove City’s moveable pitching mound weighing several hundred

pounds from the strap tethering it to a chain link fence, and

propelled it through the air. See Grappendorf

, 2007 UT 84, ¶¶ 1–2.

Tragically, the mound struck and killed a thirteen

‐ year

‐ old child

walking through the city park with his parents. See id. The parents

brought a wrongful death action against the city, but the trial court

granted summary judgment based on the natural condition

exception to the waiver of immunity for negligence. Id. ¶ 3. In

reversing summary judgment in favor of the city, the supremeGlaittli v. State

20100733

‐ CA 2013 UT App 10 9 court noted that the plain language of the natural condition

exception applied only “‘if the injury arises out of, in connection

with, or results from

. . . any natural condition on publicly owned

or controlled lands.’” Id. ¶¶ 8–10 (quoting Utah Code Ann. § 63

‐ 30

‐ 10(11) (Michie 1997) (current version at Utah Code Ann. § 63G

‐ 7

‐ 301(5)(k) (LexisNexis 2011))). Because a wind gust cannot exist

“on” the land, the court concluded that it was an atmospheric, not

a natural, condition. See id. ¶ 10. The court explained,

Natural condition is

. . . limited by the

prepositional phrase “on publicly

owned or controlled lands.” In this

context, “on” is “[u]sed to indicate

. . . [a] [p]osition above and in contact

with” or “[c]ontact with a surface,

regardless of position.” From these

definitions, it follows that a natural

condition “on” the land must be

topographical in nature, not merely

atmospheric. The limiting

prepositional phrase requires that the

natural condition be in physical contact

with the land, supported by the surface

of the land, or part of the land.

Id. (alterations and second omission in original) (quoting Webster’s

II New College Dictionary 764 (1995)).

¶15 In Grappendorf

, the supreme court distinguished the

atmospheric quality of the wind from the snow in Blackner

, stating

that “[t]he snow that caused the injury was a natural condition in

physical contact with the land.” Grappendorf

, 2007 UT 84, ¶ 14

(citing Blackner

, 2002 UT 44, ¶ 14). The Grappendorf court also

distinguished a river in Stuckman ex rel. Nelson v. Salt Lake City

, 919

P.2d 568 (Utah 1996), explaining that a river “falls within the

natural condition exception because it flows directly above and in

contact with the land.” Grappendorf

, 2007 UT 84, ¶ 14 (quotingGlaittli v. State

3 Although there is no Utah authority on this point, the

(continued...)

20100733

‐ CA 2013 UT App 10 10 Stuckman

, 919 P.2d at 575). In holding that the gust of wind was not

a natural condition, the supreme court reasoned, “[w]ere we to

ignore the statute’s limitation that the natural condition be on the

land, the natural condition exception would necessarily swallow

the Act’s waiver of immunity for negligence.” Id. ¶ 11.

¶16 The factual scenario here differs from Grappendorf in that the

wind created large waves on the water contained in the Jordanelle

Reservoir. Even accepting that the wind is an atmospheric

condition, Glaittli’s injuries arose out of, were connected with, or

resulted from the water. In turn, the water is on the land because it

has surface contact with it. As a result, the present facts are more

similar to those addressed in Blackner

. While an atmospheric

condition such as the heat of the sun may have acted on the snow

pack to cause the avalanche, the snow pack itself was a natural

condition. Here, the wind, an atmospheric condition, acted on the

water to create the waves.

¶17 Nevertheless, Glaittli contends that the water is not a natural

condition because it is contained in a reservoir, as opposed to a

natural lake. This is an issue of first impression in Utah, which we

resolve in favor of the State. There is no question that when the

water was contained only in the Provo River, it was a natural

condition existing on the land. See Stuckman

, 919 P.2d at 574. It is

also apparent that the dam which caused the water to overflow the

banks of the river and pool into a body of standing water is not a

natural condition. See Utah Code Ann. § 63G

‐ 7

‐ 301(3)(a)(ii) (Lexis

Nexis 2011) (including dam within list of public improvements).

The creation of the dam, however, does not change the basic nature

of the water itself, which is a natural condition that has simply

expanded onto a greater area of publicly

‐ owned land. Therefore,

we hold that the water upon which the wind acted was a natural

condition. 3Glaittli v. State

3 (...continued)

California Court of Appeal has considered similar issues. See

Osgood v. County of Shasta

, 123 Cal. Rptr. 442, 444–45 (Cal. Dist.

Ct. App. 1975) (holding that the county was immune from suit

for injuries incurred in a collision on a manmade lake under the

California Tort Claims Act, which provides governmental

immunity “‘for an injury caused by a natural condition of any

unimproved public property, including but not limited to any

natural condition of any lake, stream, bay, river or beach’”

(quoting Cal. Gov. Code § 831.2)); Knight v. City of Capitola

, 6 Cal.

Rptr. 2d 874 (Cal. Dist. Ct. App. 1992) (holding that a

shorebreaking wave was a natural condition, even if caused by

manmade improvements to the beach).

4 Were we to overlook the effect of the waves and focus

instead only on the atmospheric character of the wind, as Glaittli

suggests, then the natural condition exception to the waiver of

immunity would be meaningless. Under Glaittli’s reasoning, if

he had taken his boat out into the middle of a natural lake on

public land and a storm and high winds arose, causing large

waves to heave the boat in such a way that caused him injury,

the wind

‐ caused waves would not be a natural condition. Yet

that scenario is exactly why the legislature created the natural

condition exception. “The necessity for this exception arises

because ‘Utah’s vast public lands

. . . are open to the public for

(continued...)

20100733

‐ CA 2013 UT App 10 11 ¶18 Thus, even assuming that the negligent actions of

government employees or the defective condition of the reservoir

or floating dock proximately caused Glaittli’s injuries, his injuries

arose out of, were in connection with, or resulted from a natural

condition on publicly owned or controlled land. See id. § 63G

‐ 7

‐ 301(5)(k). Accordingly, we agree with the trial court that the

natural condition exception to the waiver of immunity is applicable

and bars Glaittli’s suit. 4Glaittli v. State

4 (...continued)

recreational uses [and] present all kinds of hazards arising from

their natural conditions.

. . . The State

. . . cannot be expected to

[protect citizens against] every

. . . potentially hazardous

condition located on public property.’

Grappendorf v. Pleasant Grove City

, 2007 UT 84, ¶ 8, 173 P.3d 166

(alterations and omissions in original) (quoting Stuckman ex rel.

Nelson v. Salt Lake City, 919 P.2d 568, 575 (Utah 1996)).

20100733

‐ CA 2013 UT App 10 12 CONCLUSION

¶19 Based on Glaittli’s pleaded facts, the wind

‐ caused waves on

the Jordanelle Reservoir that caused his injuries were a natural

condition. Glaittli’s injuries arose out of, were suffered in

connection with, or resulted from that natural condition. Thus, the

trial court correctly dismissed the complaint as barred by

governmental immunity.

____________________