Shawnna Rae Cope v. Utah Valley State College

¶1 Shawnna Cope was injured while practicing with the Utah

Valley State College (UVSC) ballroom dance team, and sued the

state-owned college.1 The district court dismissed the lawsuit, ruling

that the public duty doctrine dictated that UVSC owed no duty of

care to Ms. Cope. The court of appeals subsequently held that the

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2

public duty doctrine did not apply to Ms. Cope's lawsuit and

reversed the trial court. We granted certiorari.

¶2 Having requested additional briefing from the parties, we

take this opportunity to clarify the public duty doctrine. First, we

decline to abrogate the doctrine, as several other states have done,

and retain the public duty doctrine as part of Utah's common law.

Second, we overturn in part Webb v. University of Utah, 2005 UT 80,

125 P.3d 906, and hold that the public duty doctrine applies only to

the omissions of a governmental actor. The doctrine does not

immunize the State from liability for affirmative acts that harm a

plaintiff. Third, we clarify that the public duty doctrine is limited to

situations where a plaintiff seeks to impose liability for a duty to

protect the general public from external harms.

¶3 Applying these principles to this case, we hold that the

public duty doctrine does not negate UVSC's duty of care toward

student members of a ballroom dance team created and overseen by

the college. We therefore reverse the district court, although for

reasons different from those expressed by the court of appeals, and

remand for further proceedings.

BACKGROUND

¶4 Ms. Cope was a member of a ballroom dance team at UVSC,

a state-owned college. She was also enrolled in a ballroom dance

class that awarded her credit for her participation with the team.

During a team practice, Ms. Cope was rehearsing a choreographed

dance routine that required her partner to lift her to his shoulder as

she completed a back flip. When couples on the dance team learn a

new lift, spotters are usually provided to catch the female dancer if

she falls. On this particular occasion, though, no spotters were

requested or provided. Ms. Cope and her partner attempted the lift

twice, but they did not properly complete the maneuver. On the first

two attempts, her partner lifted Ms. Cope to his right shoulder,

which was easier than lifting her across his body to his left shoulder.

¶5 Ms. Cope's partner told the class instructor that he had

never been able to successfully perform this particular lift, and the

instructor told the couple to try the lift again, this time to the left

shoulder. The instructor told Ms. Cope to push off with greater force

and told her partner to lift with more power, but did not give further

guidance on how to complete the maneuver. The instructor also said

that if the couple was unable to perform the maneuver properly, he

would have to cut it from the routine. On the third attempt

Ms. Cope's partner lost his footing, and she fell. Her partner used his

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3

body to cushion the fall, but Ms. Cope sustained an injury when her

head struck her partner's knee.

¶6 Ms. Cope sued UVSC, alleging the college negligently

caused her injury. She also alleged UVSC was liable for the class

instructor's negligence under the doctrine of respondeat superior.

UVSC moved for summary judgment, arguing UVSC owed no duty

to protect Ms. Cope from harm because it did not have a special

relationship with her. The district court denied the motion and set

a trial date. UVSC then renewed its motion for summary judgment,

attaching additional evidence that Ms. Cope and her partner had

practiced lifting her to the partner's right shoulder prior to the date

of the accident.

¶7 The district court granted the renewed motion for summary

judgment and dismissed Ms. Cope's lawsuit. Relying upon our

analysis of the public duty doctrine in Webb v. University of Utah,

2005 UT 80, 125 P.3d 906, the district court ruled that UVSC did not

form a special relationship with Ms. Cope, and therefore UVSC

owed her no duty of care. The district court reasoned that because

Ms. Cope was aware that she was performing a new lift that she and

her partner had not successfully completed before, and because the

instructor gave her the option of cutting the maneuver from the

routine, UVSC did not induce "detrimental reliance creating a

greater risk of peril than existed otherwise.”

¶8 Ms. Cope appealed, and the court of appeals reversed the

district court because it found that the special relationship exception

to the public duty doctrine applied to Ms. Cope. Cope v. Utah Valley

State Coll., 2012 UT App 319, ¶ 27, 290 P.3d 314. The court of appeals

held that "a special relationship is created when (1) a directive is

given to a student (2) by a teacher or coach (3) within the scope of

the academic enterprise” and found that a special relationship had

been formed under the facts of this case. Id. ¶ 17.

¶9 This court granted certiorari on the following issue:

"Whether the court of appeals erred in its construction and

application of the special relationship test articulated by Webb v.

University of Utah, 2005 UT 80, 125 P.3d 906.” After the parties

presented oral argument to this court, we issued an order requesting

supplemental briefing on the following issues:

1. Should the scope and application of the public duty

doctrine be limited to public employees with duties to

the public as a whole, such as public safety officers?

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2. Should the public duty doctrine be applied to

affirmative acts of government employees or should the

doctrine be limited to omissions?

3. Should the public duty doctrine be retained in our

common law?

STANDARD OF REVIEW

¶10 In this appeal, we review the court of appeals'

determination that the district court erred in ruling that neither

UVSC nor its employee owed an enforceable duty of care to

Ms. Cope. Whether a defendant owes a duty of care to a plaintiff is

question of law. B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 23, 275 P.3d

228. We therefore review de novo a lower court's determination of

whether a duty exists. Slisze v. Stanley-Bostitch, 1999 UT 20, ¶ 9, 979

P.2d 317.

ANALYSIS

¶11 In order to prevail in an action for negligence, a plaintiff

must prove that (1) the defendant owed the plaintiff a duty of care,

(2) the defendant breached that duty, and (3) the breach proximately

caused (4) the plaintiff to suffer legally compensable damages. B.R.

ex rel. Jeffs v. West, 2012 UT 11, ¶ 5 n.2, 275 P.3d 228. The first element

of a negligence claim, a duty of care, "may be defined as an

obligation, to which the law will give recognition and effect, to

conform to a particular standard of conduct toward another.”

Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 19, 215 P.3d 152

(internal quotation marks omitted). "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.” Webb v. Univ. of Utah, 2005 UT

80, ¶ 9, 125 P.3d 906 (alteration in original) (internal quotation marks

omitted).

¶12 When determining whether a government actor owes a

duty of care to a plaintiff, we have held that courts must evaluate

whether the public duty doctrine dictates that an individual may not

enforce a public duty in tort. Under this doctrine, "a plaintiff cannot

recover for the breach of a duty owed to the general public, but must

show that a duty is owed to him or her as an individual.” Madsen v.

Borthick, 850 P.2d 442, 444 (Utah 1993); accord Ferree v. State, 784 P.2d

149, 151 (Utah 1989) ("For a governmental agency and its agents to

be liable for negligently caused injury suffered by a member of the

public, the plaintiff must show a breach of a duty owed him as an

individual, not merely the breach of an obligation owed to the

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2 Adams v. State, 555 P.2d 235, 241–42 (Alaska 1976); Coffey v. City

of Milwaukee, 247 N.W.2d 132, 137–39 (Wis. 1976); Commercial Carrier

Corp. v. Indian River Cnty., 371 So. 2d 1010, 1015 (Fla. 1979); Brennen

v. City of Eugene, 591 P.2d 719, 724–25 (Or. 1979); Ryan v. State, 656

P.2d 597, 599 (Ariz. 1982); Schear v. Bd. of Cnty. Comm'rs, 687 P.2d

728, 730–31 (N.M. 1984); Maple v. City of Omaha, 384 N.W.2d 254, 260

(Neb. 1986); Leake v. Cain, 720 P.2d 152, 160 (Colo. 1986); DeWald v.

State, 719 P.2d 643, 653 (Wyo. 1986); Jean W. v. Commonwealth, 610

N.E.2d 305, 312–13 (Mass. 1993); Doucette v. Town of Bristol, 635 A.2d

1387, 1390 (N.H. 1993); Ficek v. Morken, 685 N.W.2d 98, 107–08 (N.D.

2004); see also Arthurs ex rel. Estate of Munn v. Aiken Cnty., 551 S.E.2d

579, 585 (S.C. 2001) (retaining the public duty doctrine when applied

to statutory duties but rejecting the doctrine when applied to

common-law duties).

5

general public at large by the governmental official.”). In other

words, "a duty to all is a duty to none.” Cannon v. Univ. of Utah, 866

P.2d 586, 588 (Utah Ct. App. 1993) (internal quotation marks

omitted). The public duty doctrine is based on the policy

determination that when a governmental entity assumes a duty to

protect the general public from harms such as criminal activity,

holding the entity liable for a breach of this duty would cause

municipalities to be "mired hopelessly in civil lawsuits . . . for every

infraction of the law.” Prosser v. Kennedy Enters., Inc., 179 P.3d 1178,

1183 (Mont. 2008). If a plaintiff's negligence claim is based upon a

public duty, courts will recognize the duty only if the plaintiff

establishes a special relationship that imposes a specific duty of care

toward the plaintiff as an individual that is distinguishable from a

public duty owed to the general public. Madsen, 850 P.2d at 444.

¶13 In deciding whether the public duty doctrine prevents

Ms. Cope from establishing the necessary duty element of her

negligence cause of action, we first examine the issues outlined for

supplemental briefing: (1) whether the public duty doctrine should

be retained, (2) whether the doctrine applies to both acts and

omissions, and (3) whether the doctrine is limited to employees with

duties to the public at large. Because we hold that the public duty

doctrine should be retained in our common law, we finally examine

whether the doctrine bars Ms. Cope's lawsuit.

I. VALIDITY OF THE PUBLIC DUTY DOCTRINE IN UTAH

¶14 The public duty doctrine is recognized in most jurisdictions.

See Beaudrie v. Henderson, 631 N.W.2d 308, 311 (Mich. 2001). By our

count, however, twelve state supreme courts have explicitly rejected

or abandoned the doctrine.2 These courts generally have justified the

abandonment of the public duty doctrine by reasoning that it was a

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form of governmental immunity and was therefore inconsistent with

their state legislatures' abrogation of absolute sovereign immunity.

E.g., Doucette v. Town of Bristol, 635 A.2d 1387, 1390 (N.H. 1993)

("[T]he public duty rule impermissibly conflicts with the abrogation

of common law municipal immunity . . . .”); Adams v. State, 555 P.2d

235, 241 (Alaska 1976) ("[W]e consider that the [public duty] doctrine

is in reality a form of sovereign immunity, which is a matter dealt

with by statute in Alaska, and not to be amplified by court-created

doctrine.”).

¶15 We disagree with the reasoning of the courts that have

abandoned the public duty doctrine. The public duty doctrine is not

a subsidiary branch of sovereign immunity, as asserted by some

courts. See Adams, 555 P.2d at 241. Rather, the doctrine informs a

court's determination of whether a government actor owes a

common law duty of care to a plaintiff. Day v. State, 1999 UT 46, ¶ 10,

980 P.2d 1171 (treating the public duty doctrine and sovereign

immunity as separate and distinct legal principles); Higgins v. Salt

Lake Cnty., 855 P.2d 231, 235 (Utah 1993) (same). "Conceptually, the

question of the applicability of a statutory immunity does not even

arise until it is determined that a defendant otherwise owes a duty

of care to the plaintiff and thus would be liable in the absence of

such immunity.” Ferree v. State, 784 P.2d 149, 153 (Utah 1989)

(internal quotation marks omitted); see also Turner v. United States,

248 U.S. 354, 358 (1919) ("The fundamental obstacle to recover

[under the public duty doctrine] is not the immunity of a sovereign

to suit, but the lack of a substantive right to recover the damages

resulting from failure of a government or its officers to keep the

peace.”).

¶16 We therefore see no reason to deviate from our prior

holding that

the legislature's abrogation of absolute sovereign

immunity does not lead to the conclusion that the

public duty doctrine has also been abrogated.

Legislative recognition of a right to recover from one

who has previously been immune from liability for

tortious acts cannot logically be read as an elimination

of the requirement that before one can recover damages

from another, a tort must be proven. There must still be

proof of a duty owed to the one claiming injury and a

breach of that duty.

Rollins v. Petersen, 813 P.2d 1156, 1162 n.3 (Utah 1991); see also Arthurs

ex rel. Estate of Munn v. Aiken Cnty., 551 S.E.2d 579, 583 (S.C. 2001)

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After briefing and oral 3 argument in this case, the legislature

enacted a law that appears to be a statutory endorsement of the

special relationship exception to the public duty doctrine: "A general

duty that a governmental entity owes to the public does not create

a specific duty to an individual member of the public, unless there

is a special relationship between the governmental entity and the

individual member of the public.” S.B. 250, 60th Leg., Gen. Sess.

[Utah 2014] (modifying Utah Code section 63G-7-202). Because this

apparent statutory expression of the public duty doctrine is not

retroactive, it does not affect the disposition of this case. See State v.

Clark, 2011 UT 23, ¶ 11, 251 P.3d 829. We therefore leave the

interpretation of this statute for another day.

4 Webb v. Univ. of Utah, 2005 UT 80, ¶ 16, 125 P.3d 906; Day, 1999

UT 46, ¶ 11; Rocky Mountain Thrift Stores Inc. v. Salt Lake City Corp.,

887 P.2d 848, 852 (Utah 1994); Madsen v. Borthick, 850 P.2d 442, 444

(Utah 1993); Ferree, 784 P.2d at 151–52; Christenson v. Hayward, 694

P.2d 612, 612–13 (Utah 1984); Obray, 484 P.2d at 161–62.

7

("Since the public duty rule is not grounded in immunity but rather

in duty, we hold it has not been affected by [the legislative

abrogation of absolute sovereign immunity].” (Citations omitted)).

In fact, this court did not adopt the public duty doctrine until several

years after the legislature first limited Utah's sovereign immunity in

1965 by passing the Governmental Immunity Act. 1965 Utah Laws

390–97; Obray v. Malmberg, 484 P.2d 160, 162 (Utah 1971). Thus,

Utah's abrogation of absolute sovereign immunity could not

impliedly extinguish a doctrine not yet recognized by this court.3

¶17 Stare decisis bolsters our decision to retain the public duty

doctrine. This court has consistently applied the doctrine for over

forty years.4 Presumably, government officials and employees have

relied upon this long-standing legal principle in performing their

public duties, and we should not disrupt the status quo without

good cause to do so. See Carter v. Lehi City, 2012 UT 2, ¶ 6, 269 P.3d

141. As noted above, we find no compelling legal rationale for

abandoning the public duty doctrine, and therefore follow our

precedent recognizing it.

¶18 Having affirmed the continued validity of the public duty

doctrine in Utah, we next examine its proper scope.

II. APPLICABILITY OF THE PUBLIC DUTY DOCTRINE

TO ACTS AND OMISSIONS

¶19 In Webb v. University of Utah, we held that the public duty

doctrine applies to both acts and omissions. 2005 UT 80, ¶ 15, 125

P.3d 906. Having invited the parties to brief the continued viability

of this principle, we consider whether to modify this holding. We

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"may not do so lightly.” State v. Menzies, 889 P.2d 393, 399 n.3 (Utah

1994). This court should overturn its own precedent only "where the

decision is clearly erroneous or conditions have changed so as to

render the prior decision inapplicable.” Id. (internal quotation marks

omitted). In addition, we consider whether overturning a precedent

would undermine the public's substantial reliance upon an

established legal principle. As we have noted, "people should know

what their legal rights are as defined by judicial precedent, and

having conducted their affairs in reliance on such rights, ought not

to have them swept away by judicial fiat.” Carter v. Lehi City, 2012

UT 2, ¶ 6, 269 P.3d 141 (internal quotation marks omitted).

¶ 20 In deciding whether Webb was clearly erroneous, we first

examine the legal support for our conclusions in that opinion to

determine its precedential weight. Menzies, 889 P.2d at 399

(overturning the holding of an opinion because it was "not the most

weighty of precedents ”). We then look to the origins and purpose

of the public duty doctrine to determine whether our conclusion in

Webb—that the doctrine extends to affirmative acts—is clearly

erroneous. Finally, we consider whether substantial reliance interests

in the Webb holding counsel against overturning our precedent.

¶21 Webb states that "governmental actors are not accountable

for their affirmative acts unless a special relationship is present.”

2005 UT 80, ¶ 16. In support of this declaration, we cited Day v. State,

where we held that a general public duty "does not impose a specific

duty of due care on the government with respect to individuals who

may be harmed by governmental action or inaction, unless there is”

a special relationship. 1999 UT 46, ¶ 12, 980 P.2d 1171 (emphasis

added). But at this point in tracing the origins of our holding in

Webb, the trail goes cold. The authorities cited in Day do not discuss

the extension of the public duty doctrine to affirmative acts that

cause harm. See id. Moreover, the Day court explicitly recognized in

a footnote that several courts have held that the public duty rule

does not apply to affirmative acts. Id. ¶ 13 n.2 ("Some courts have

also recognized an exception to the public duty rule where there is

an affirmative act by the officer causing injury.” (internal quotation

marks omitted)). So, not only is Day's statement that "governmental

action or inaction” is covered by the public duty doctrine of

uncertain origin and devoid of analysis, but the opinion also points

to authority that contradicts this conclusion. Thus, Webb's conclusion

that the public duty doctrine applies to affirmative acts apparently

builds on the shaky foundation of our unsubstantiated stray dicta in

Day.

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¶22 Additionally, the clear preponderance of caselaw

contradicts our assertion in Webb. The origins of the public duty

doctrine can be traced back to South v. Maryland, 59 U.S. (18 How.)

396 (1855). In that case, the plaintiff asserted that "certain

evil[-]disposed persons came about him, hindered and prevented

him, threatened his life, with force of arms demanded of him a large

sum of money, and imprisoned and detained him for the space of

four days, and until he paid them the sum of $2,500 for his

enlargement.” Id. at 401 (internal quotation marks omitted). The

plaintiff requested protection from the local sheriff, who was

apparently present for at least a portion of the ordeal, but the sheriff

refused to assist him. Id. The plaintiff then sued the sheriff, alleging

the sheriff had neglected to execute the duty imposed by his position

to keep the peace. Id. The Supreme Court held, however, that the

sheriff could not be held liable for breach of his public duties as

conservator of the peace "by those who have suffered injury to their

property or persons through the violence of mobs, riots, or

insurrections.” Id. at 403. The Court noted that because the plaintiff

had not alleged that his individual rights and privileges had "been

restrained or hindered by the malicious act of the sheriff,” the

plaintiff had not pled a viable cause of action against the sheriff. Id.

(emphasis added). Thus, the Supreme Court established that a public

official could not be held liable for a failure to perform a public duty,

but suggested that the official could be liable for harmful acts. See

also Turner v. United States, 248 U.S. 354, 357–58 (1919) (tribal officials

not liable for failing to prevent individuals from destroying a fence).

¶23 The great weight of state law supports the distinction

between omissions and affirmative acts established by the Supreme

Court. Most other jurisdictions that have considered the issue have

held that the public duty doctrine shields a governmental actor only

from liability for omissions. See, e.g., Commonwealth v. Burns, 639

S.E.2d 276, 279 (Va. 2007) (declining to extend the public duty

doctrine to include the affirmative acts of a road construction crew

in creating a dangerous condition on a public highway); Gleason v.

Peters, 568 N.W.2d 482, 487 (S.D. 1997) (holding that a police

department had no duty to stop a party because it was "undisputed

that no affirmative action by the officers contributed to, increased,

or changed the risk which would have otherwise existed” (internal

quotation marks omitted)); Willis v. Warren Twp. Fire Dep't, 672

N.E.2d 484, 487 (Ind. Ct. App. 1996) ("The [public duty] test . . . is

limited in application to cases in which a government's promise and

subsequent failure to act causes the plaintiff's losses.”); Coty v.

Washoe Cnty., 839 P.2d 97, 99 (Nev. 1992) (public duty doctrine does

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not apply "where a public officer's conduct 'affirmatively causes' harm

to an individual”); Dauffenbach v. City of Wichita, 667 P.2d 380, 385

(Kan. 1983) (public duty doctrine does not apply "where there is an

affirmative act by the officer causing injury”); Jahnke v. Inc. City of

Des Moines, 191 N.W.2d 780, 785 (Iowa 1971) ("[T]he general rule is

that a municipality or its employees is not liable for failure to supply

general police or fire protection.”); Massengill v. Yuma Cnty., 456 P.2d

376, 379 (Ariz. 1969) ("The failure of a public officer to perform a

public duty can constitute an individual wrong only when some

person can show that in the public duty was involved also a duty to

himself as an individual, and that he has suffered a special and

peculiar injury by reason of its nonperformance.” (emphasis added)

(internal quotation marks omitted)), overruled on other grounds by

Ryan v. State, 656 P.2d 597 (Ariz. 1982) (abrogating the public duty

doctrine); Bacon v. Town of Rocky Hill, 11 A.2d 399, 402 (Conn. 1940)

(governmental entity may be held liable for affirmatively creating a

dangerous condition on a public highway, but not for omissions in

failing to remedy a dangerous condition it did not create).

¶24 Utah caselaw prior to Webb was in line with this prevailing

view, applying the public duty doctrine to shield governmental

actors from liability only for negligent omissions. Rocky Mountain

Thrift Stores Inc. v. Salt Lake City Corp., 887 P.2d 848, 852 (Utah 1994)

(city not liable for alleged failure to adequately ameliorate the

negative effects of a flood); Madsen v. Borthick, 850 P.2d 442, 444–45

(Utah 1993) (state agency not liable for alleged failure to properly

regulate a financial institution that failed); Ferree v. State, 784 P.2d

149, 151–52 (Utah 1989) (state corrections officials had no duty to

prevent an inmate on weekend release from harming unidentified

third parties); Christenson v. Hayward, 694 P.2d 612, 612–13 (Utah

1984) (police officer did not have a duty to prevent a drunk

motorcyclist from driving and harming himself); Obray v. Malmberg,

484 P.2d 160, 161–62 (Utah 1971) (sheriff not liable for an alleged

failure to properly investigate a crime). In contrast, we have declined

to apply the public duty doctrine where an officer's act of engaging

in a high-speed vehicle pursuit affirmatively "created an immediate,

obvious, and significant threat of serious harm to other users of the

highway.” Day, 1999 UT 46, ¶ 24. The distinction between these two

lines of Utah caselaw lies in the source of the harm to the plaintiff.

Where the harm is directly caused by a third party, the plaintiff's

own negligence, or an outside force such as a natural disaster, the

government is not liable for its failure to rescue the plaintiff from the

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Opinion of the Court

5 The public duty doctrine is not confined, however, to situations

where a public employee takes no action whatsoever. "[A] failure to

perform [a public duty], or an inadequate or erroneous performance,

must be a public, not an individual injury . . . .” White v. Beasley, 552

N.W.2d 1, 3 (Mich. 1996) (emphasis added) (internal quotation

marks omitted). In Rocky Mountain Thrift Stores, for example, Salt

Lake City took various measures to combat extreme flooding. 887

P.2d at 851. The public duty doctrine, however, shielded the city

from liability for the plaintiff's claims that these efforts were

inadequate. Id. at 852. In other words, governmental actors are also

not liable for a defective effort to perform a public duty to ameliorate

an externally caused harm.

11

external harm.5 Where the affirmative acts of a public employee

actually cause the harm, however, the public duty doctrine does not

apply. See Fried v. Archer, 775 A.2d 430, 444 (Md. Ct. Spec. App. 2001)

(The public duty doctrine protects police dispatchers "because such

dispatchers do not create the plaintiff's peril. The government driver

who injures a plaintiff through his negligence is liable because he

created the peril, not because he failed to rescue the plaintiff from

it.”), aff'd sub nom. Muthukumarana v. Montgomery Cnty., 805 A.2d 372

(Md. 2002); Huey v. Town of Cicero, 243 N.E.2d 214, 216 (Ill. 1968)

("[T]he general rule is that a municipality or its employees is not

liable for failure to supply general police or fire protection. This rule

has been maintained in the face of decisions holding municipalities

liable for affirmative negligent or wilful acts by their employees.”

(Citations omitted)).

¶25 Moreover, limiting the public duty doctrine to omissions

comports with the special relationship exception to the doctrine.

Under this exception, a government defendant may be held liable for

the violation of what would otherwise be a public duty if the

defendant formed a special relationship with the plaintiff that gave

rise to a specific duty of care toward the plaintiff as an individual.

Madsen, 850 P.2d at 444. This special relationship exception makes

sense only in the context of omissions. For instance, if a police officer

affirmatively acts by negligently discharging his weapon and

wounds a child ten blocks away, it would be absurd to inquire

whether the officer had a special relationship with the innocent

victim. Imposing liability if the officer happened to have a special

relationship with the child, but disallowing recovery if no such

relationship existed simply would not make sense. The inherent

absurdity of applying a special relationship exception to the

affirmative acts of public safety employees stems from the fact that

the foreseeability of the harm, rather than the nature of the

tortfeasor's relationship to the plaintiff, limits liability for affirmative

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Opinion of the Court

6 By excepting from liability the public duties certain government

employees perform by virtue of their employment, the public duty

doctrine places public safety employees on the same footing as

private actors. Neither may be subjected to tort liability for a failure

to rescue another from harm absent a special relationship.

Conceptually, it appears that there is little difference between the

special relationship exception applied to a private individual's

failure to rescue another from harm and the special relationship

exception applied to a public employee's failure to perform a public

duty to safeguard the general public. But because the degree to

which the special relationship exception applied to the omissions of

private individuals and the special relationship exception applied to

the omissions of public safety officials is not a question we need

resolve in this appeal, we reserve it for another day.

12

acts causing harm. See B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶¶ 19,

27–28, 275 P.3d 228; Furkovich v. Bingham Coal & Lumber Co., 143 P.

121, 124 (Utah 1914). In contrast, the special relationship exception

to the public duty doctrine serves a similar function to the tort

principle that a private individual generally has no duty to act to

rescue another from harm unless there is a special relationship that

creates such a duty. See B.R., 2012 UT 11, ¶¶ 7–19; RESTATEMENT

(THIRD) OF TORTS: PHYS. & EMOT. HARM §§ 37, 40 (2012). For both

government actors and private individuals, the special relationship

exception permits liability for omissions where a special relationship

has been formed as an exception to the primary rule that no duty to

act exists.6

¶26 Finally, any reliance interests in Webb are not substantial

enough to prevent this court from overruling it. See Carter, 2012

UT 2, ¶ 6. Unlike the public duty doctrine itself, which we have

consistently applied over the last forty years, supra ¶ 17, our holding

in Webb is an isolated application of that doctrine, supra ¶¶ 21, 23.

Because Webb has not become a well-entrenched or frequently

applied precedent, the public's reliance upon Webb is not as strong.

Moreover, our holding in Webb involved the common law, which is

subject to continuing evolution and refinement and may not

engender the same sort of reliance interest as an interpretation of a

statute, for example.

¶27 In summary, the genesis of the public duty doctrine, the

great weight of foreign authority, and our prior caselaw all limit the

doctrine's application to omissions. This, coupled with the dubious

support for our holding in Webb, leads us to the conclusion that we

clearly erred by expanding the doctrine to encompass affirmative

acts. We therefore overrule Webb on this point and hold that the

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Opinion of the Court

13

public duty doctrine does not apply to claims of affirmative

misconduct.

III. SCOPE OF DUTIES PROTECTED BY

THE PUBLIC DUTY DOCTRINE

¶28 We now turn to the question of which types of duties are

"public duties” that may not be enforced in a lawsuit against a

government agency or public employee. Before we do so, though,

we first discuss the proper relationship between the public duty

doctrine and the special relationship exception.

¶29 In Webb v. University of Utah, we stated that "[w]ithout a

special relationship, the University owed no duty to [the plaintiff].”

2005 UT 80, ¶ 16, 125 P.3d 906. Understandably relying upon this

perhaps inartful declaration, both the district court and the court of

appeals exclusively focused on the question of whether UVSC had

formed a special relationship with Ms. Cope. Under this

construction of the public duty doctrine, the primary question is

whether a special relationship has been established. Examining the

special relationship exception first, however, distorts the public duty

doctrine. In essence, the doctrine becomes a "special relationship

doctrine,” with governmental actors owing a duty of care only

where they have reached out to form a special relationship with

members of the public.

¶30 Instead, courts must first determine whether a plaintiff's

theory of liability rests upon a public duty. If a plaintiff's claim is

based on the defendant's failure to adequately discharge a public

duty, a presumption arises that this duty may not be a basis for

liability in a lawsuit. Only then should the court examine whether a

special relationship exists that would create an exception to the

general rule that public duties may not provide a basis for liability.

¶31 We have defined a public duty as "an obligation owed to

the general public at large.” Ferree v. State, 784 P.2d 149, 151 (Utah

1989). The most common examples of public duties include (1) the

duty a police officer assumes to protect the public from harm caused

by the criminal acts of third parties and (2) the duty of a firefighter

to protect the public from fires or natural disasters. See, e.g., Powell

v. District of Columbia, 602 A.2d 1123, 1128 (D.C. 1992) ("[T]he [public

duty] doctrine applies to law enforcement services and services akin

to police and fire protection . . . .”); Cuffy v. City of New York, 505

N.E.2d 937, 939 (N.Y. 1987) ("As a general rule, a municipality may

not be held liable for injuries resulting from a simple failure to

provide police protection.”); John H. Derrick, Annotation, Modern

Status of Rule Excusing Governmental Unit from Tort Liability on Theory

COPE v. UTAH VALLEY STATE COLLEGE

Opinion of the Court

14

that Only General, Not Particular, Duty Was Owed Under Circumstances,

38 A.L.R.4TH 1194, § 2 (1985) ("Under the [public duty] doctrine a

governmental entity is not liable for injury to a citizen where liability

is alleged on the ground that the governmental entity owes a duty

to the public in general, as in the case of police or fire protection.”).

Other examples of public duties include: the duty to regulate

financial institutions to protect depositors, Madsen v. Borthick, 850

P.2d 442, 444 (Utah 1993); the duty to protect the public from natural

disasters, Rocky Mountain Thrift Stores Inc. v. Salt Lake City Corp., 887

P.2d 848, 852 (Utah 1994); the duty of prison officials or parole

boards to consider public safety when granting furloughs or parole

to prisoners, Ferree, 784 P.2d at 151–52; the duty of government

safety inspectors to guard the public from unsafe conditions, Hage

v. Stade, 304 N.W.2d 283, 287 (Minn. 1981) (fire safety inspectors);

and the duty to avoid issuing a license to an unsafe motorist or an

incompetent physician, Johnson v. Indian River Sch. Dist., 723 A.2d

1200, 1203 (Del. Super. Ct. 1998) (driving license) aff'd, 723 A.2d 397

(Del. 1998); Nelson v. State, 195 P.3d 293, 303 (Mont. 2008) (medical

license).

¶32 These examples of public duties raise the question of how

broad a duty must be in order to qualify as "an obligation owed to

the general public at large.” Ferree, 784 P.2d at 151. More specifically,

this case raises the question of how expansive the obligations of an

employee of a public college must be to qualify as a public duty. A

public duty need not extend to the entire world. The duties of

firefighters and police officers, which are clearly public obligations,

end at the border of the city or county that they serve. And, of

course, the student bodies of Utah's public institutions of higher

learning rival or exceed the population of many small cities and

towns throughout the state. Thus, by analogy to the example of

police officers and firefighters, a duty owed to a college or university

population as a whole may be sufficiently broad to qualify as a

public duty. For example, a university police department may

assume an obligation to secure the safety of students, faculty, and

visitors to the campus that would be just as extensive as the duties

assumed by a small-town sheriff.

IV. APPLICATION OF THE PUBLIC DUTY DOCTRINE TO

BALLROOM DANCE INSTRUCTION AT A PUBLIC COLLEGE

¶33 We now apply the principles laid out in this opinion to the

question presented in this appeal: whether the public duty doctrine

bars Ms. Cope's lawsuit against UVSC for injuries she sustained

while practicing for the college's ballroom dance team. In other

Cite as: 2014 UT 53

Opinion of the Court

15

words, did Ms. Cope base her negligence claim upon an allegation

that UVSC neglected to perform a public duty that it owed to the

general public?

¶34 First, we examine whether Ms. Cope's lawsuit is founded

upon an allegation that UVSC's affirmative actions caused her

injuries, or whether she rests her lawsuit on UVSC's omissions in

failing to perform a public duty. The public duty doctrine would not

hinder the former theory of liability, but could bar a lawsuit based

on the latter premise. The parties have emphasized different aspects

of Ms. Cope's claims in an effort to characterize her lawsuit as being

based upon either an act or an omission. UVSC asserts that

Ms. Cope's lawsuit is properly viewed as a claim that the college

failed to provide spotters that could have prevented her injury.

Ms. Cope, on the other hand, contends that UVSC's dance instructor

affirmatively directed her and her partner to perform the new

maneuver without spotters, which caused her injury.

¶35 Resolution of the question whether Ms. Cope's lawsuit is

based upon an act or an omission, however, does not depend upon

the semantic framing of her negligence claim as either an allegation

that UVSC failed to provide spotters or an allegation that UVSC

affirmatively directed Ms. Cope to perform the dance move without

spotters. Affirmative acts include "active misconduct working

positive injury to others,” while omissions are defined as "passive

inaction, [i.e.,] a failure to take positive steps to benefit others, or to

protect them from harm not created by any wrongful act of the

defendant.” B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 7, 275 P.3d 228

(internal quotation marks omitted). Active misfeasance, however, is

not confined to situations where an affirmative act directly causes

harm to the plaintiff. As Judge Cardozo noted:

The hand once set to a task may not always be

withdrawn with impunity though liability would fail if

it had never been applied at all. . . . If conduct has gone

forward to such a stage that [inaction] would commonly

result, not negatively merely in withholding a benefit,

but positively or actively in working an injury, there

exists a relation out of which arises a duty to go

forward. . . . The query always is whether the putative

wrongdoer has advanced to such a point as to have

launched a force or instrument of harm, or has stopped

where inaction is at most a refusal to become an

instrument for good.

COPE v. UTAH VALLEY STATE COLLEGE

Opinion of the Court

16

H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896, 898 (N.Y. 1928).

Judge Cardozo noted that examples of situations where actions had

advanced to a stage where inaction would commonly result in injury

include: (1) a surgeon who fails to sterilize instruments, causing an

infection; (2) an engineer who fails to shut off steam; or (3) an

automobile manufacturer that neglects to adequately inspect an

automobile for defects before selling it to a consumer. Id. In each of

these examples, the defendants could be held liable for misfeasance

because they had affirmatively created conditions that gave rise to

a duty to act in order to prevent harm.

¶36 Ms. Cope alleged facts that would, at minimum, lead to a

similar duty to act. UVSC created, funded, and supervised the

ballroom dance team. The college also gave students course credit

for team participation. UVSC's actions in creating and overseeing

the ballroom dance team had advanced to a stage where it had a

duty to act in a reasonable manner to prevent injuries caused by

participation with the dance team. Just as a surgeon who undertakes

an operation also assumes a duty to act to sterilize the surgical

instruments, once UVSC created the ballroom dance team and used

tuition revenue to hire an instructor, the college "launched a force or

instrument of [potential] harm.” See id. Having done so, UVSC

assumed a duty to act reasonably when providing dance instruction.

¶37 Thus, even if we were to characterize Ms. Cope's claim as an

allegation that UVSC failed to provide spotters, this is not an

"omission” within the tort-law definition of this term. Examples of

omissions for which a government entity may not be held liable

include the failure to provide police or fire protection and neglecting

to protect the public from harm caused by a natural disaster. See, e.g.,

Rocky Mountain Thrift Stores Inc. v. Salt Lake City Corp., 887 P.2d 848,

852 (Utah 1994); Jahnke v. Inc. City of Des Moines, 191 N.W.2d 780, 785

(Iowa 1971). In effect, a policeman normally may not be held liable

for failing to prevent the harmful criminal acts of a third party, while

a firefighter may not be sued for neglecting to dowse a fire he did

not set. In each of these examples, an omission in the form of a

failure to perform a public duty to protect or rescue the general

population "from harm not created by any wrongful act of the

defendant” may not be enforced through a lawsuit for damages. See

B.R., 2012 UT 11, ¶ 7 (internal quotation marks omitted). Ms. Cope's

claim is dissimilar, however, in that she does not allege that UVSC

and her dance instructor failed to rescue her from an external threat.

At minimum, Ms. Cope asserts that UVSC actively created the

conditions that led to her injury by creating the ballroom dance team

and then failing to provide safe instruction. Because Ms. Cope can,

Cite as: 2014 UT 53

Opinion of the Court

UVSC a 7 rgued in its opening brief that Utah should follow

caselaw from other jurisdictions holding that a coach's duty of care

is limited to a duty "not to increase the risk inherent in learning,

practicing, or performing in the sport.” Kahn v. E. Side Union High

Sch. Dist., 75 P.3d 30, 39 (Cal. 2003). This principle adopted by other

courts, however, was not discussed in the district court's order or

the court of appeals' opinion, and we did not grant certiorari or

request additional briefing on this issue. We therefore do not

address this issue because it lies outside the scope of the issue

defined in our order granting certiorari or the issues described in our

request for additional briefing. See DeBry v. Noble, 889 P.2d 428, 443

(Utah 1995) ("Issues . . . not included in the order granting certiorari

or fairly encompassed within such issues, are not properly before

this Court on the merits.”).

17

at least in theory, trace her harm back to an affirmative act by UVSC,

the public duty doctrine does not bar her claim.

¶38 We also hold that the public duty doctrine does not apply

because ballroom dance instruction is not a public duty "owed to the

general public at large”—or, in this case, UVSC's student body and

faculty. See Ferree v. State, 784 P.2d 149, 151 (Utah 1989). Neither

UVSC nor its ballroom dance instructor assumed a duty to provide

dance instruction to the entire college. The scope of UVSC's dance

instruction duties is not the only impediment to its claim to public

duty doctrine protections, though. The nature of a duty to provide

safe dance instruction is fundamentally different from recognized

public duties such as providing police and fire protection,

safeguarding the public from natural disasters, considering public

safety when granting parole to prisoners, regulating financial

institutions to protect depositors, and licensing motorists and

doctors to promote safety. See supra ¶ 31. Each of these wellestablished

public duties involve obligations assumed by

governmental entities to protect the general public from external

harms. Ballroom dance instruction, however, is not a service that

protects the public from harm. Thus, Ms. Cope's theory of liability

does not rely upon a public duty owed to the general public.

¶39 We therefore hold that Ms. Cope’s lawsuit is not based on

a public duty. Consequently, the public duty doctrine does not bar

her negligence claim, and we need not consider the special

relationship exception to this doctrine. We reverse the district court’s

order dismissing Ms. Cope’s lawsuit and remand for further

proceedings consistent with this opinion.7