Feldman v. Salt Lake City

This opinion is subject to revision before final
publication in the Pacific Reporter
2021 UT 4

IN THE

SUPREME COURT OF THE STATE OF UTAH

LEONID FELDMAN, personally and as personal representative
of the estate of LIUDMILA FELDMAN; MARINA DONNELLY;
and ANTON KHOKHLOV
Appellants,
v.
SALT LAKE CITY CORPORATION, SALT LAKE CITY
Appellee.

No. 20190238-SC
Heard September 9, 2020
Filed January 28, 2021

On Direct Appeal

Third District, Salt Lake County
The Honorable Robert P. Faust
No. 180901840

Attorneys:
Eric S. Olson, Lena Daggs, Salt Lake City, for appellants
Samantha J. Slark, Salt Lake City, for appellee

JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Liudmila Feldman tragically drowned in a creek at a Salt
Lake City Corporation (City) park. Her husband and adult children
(the Feldmans) brought a wrongful death suit against the City.
Asserting protection under Utah‘s Limitations on Landowner
Liability Act (Act), the City moved to dismiss. The district court
granted the motion. It found the Feldmans‘ wrongful death action
 FELDMAN V. SALT LAKE CITY
Opinion of the Court

was barred by the Act‘s prohibition on claims for personal injury
caused by the inherent risks of participating in an activity with a
recreational purpose. The Feldmans appeal, arguing: (1) the Act
does not bar wrongful death claims; (2) if it does, it violates the
Utah Constitution; and (3) their complaint sufficiently alleges that
Ms. Feldman did not drown due to an inherent risk of entering the
creek. We disagree with the Feldmans on the first two issues but
reverse the district court on the third and remand for further
proceedings consistent with our opinion.
BACKGROUND
¶2 The City owns Parley‘s Historic Nature Park (Park) and
the East Creek Access area within the Park.1 On April 23, 2017, Ms.
Feldman and her husband, Leonid Feldman, went walking with
their dogs in the Park. The dogs went into the creek at the East
Creek Access. Leonid entered the creek to retrieve the dogs but was
―pushed downstream‖ and unable to retrieve them. Ms. Feldman
then tried to get the dogs out. She entered the creek but ―was
caught in [the] dangerous current.‖ Unfortunately, all efforts to
rescue her from the current failed, and she died.
¶3 The Feldmans sued the City for negligence, premises
liability, negligent infliction of emotional distress, vicarious
liability, and wrongful death.2 Central to these claims is the
__________________________________________________________
1 ―When reviewing a rule 12(b)(6) motion to dismiss, we accept
the factual allegations in the complaint as true and interpret those
facts, and all reasonable inferences drawn therefrom, in a light most
favorable to the plaintiff as the nonmoving party.‖ Olguin v.
Anderton 2019 UT 73, ¶ 4, n.3 (citation omitted). Any quoted,
uncited text in this section is as stated in the Feldmans‘ complaint.
2 The Feldmans brought their claims both personally and as
representatives of Ms. Feldman‘s estate. They refer to their claims
collectively as ―wrongful death claims.‖ For the purpose of our
analysis, it matters not which of their claims are brought personally
by the Feldmans or on behalf of Ms. Feldman‘s estate, which claims
are brought under Utah‘s wrongful death statute, or which claims
are brought to prove Ms. Feldman‘s estate‘s underlying personal
injury claim. As such, and for readability, we adopt the Feldmans‘
preferred nomenclature of ―wrongful death claims‖ (or claims) to
refer to their asserted causes of action.
The Feldmans also named as defendants BIO-WEST, Inc. and
Forsgren Associates, Inc., whom the Feldmans initially believed
were involved in the development of the East Creek Access area.
(continued . . .)

2
 Cite as: 2021 UT 4
Opinion of the Court

Feldmans‘ allegation that ―[t]he dangerous current at the creek . . .
resulted from manmade developments at the East Creek Access.‖
¶4 In response, the City moved to dismiss the complaint
under rule 12(b)(6) of the Utah Rules of Civil Procedure, asserting
protection under section 401 of the Act, UTAH CODE § 57-14-101–
501. That section prohibits a person from making ―a claim against
or recover[ing] from an owner of any land . . . opened to the general
public without charge . . . for personal injury or property damage
caused by the inherent risks of participating in an activity with a
recreational purpose on the land.‖ UTAH CODE § 57-14-401(1) (2018)
(amended 2019).3 The City argued that section 401 applied because:
(1) the Feldmans‘ complaint alleged that the City owned the East
Creek Access; (2) the East Creek Access was open to the public
without charge; (3) Ms. Feldman had been participating in an
activity with a recreational purpose and entered the creek in
furtherance of that activity; and (4) ―[b]eing caught in a strong or
dangerous current is an inherent risk of entering any creek, stream,
river, or body of water.‖
¶5 The Feldmans countered the City‘s motion to dismiss with
three main arguments. First, they asserted that section 401 of the
Act did not apply because (1) the Feldmans ―do not fall into the
statute‘s definition of ‗a person‘‖; (2) their wrongful death claims
were not claims for ―personal injury or property damages‖ under
the statute; and (3) Ms. Feldman ―was not killed by an ‗inherent
risk‘ of entering a creek.‖ Second, they argued that if section 401
barred their wrongful death claims, the statute would violate article
XVI, section 5 of the Utah Constitution (Wrongful Death Clause).
Third, they argued that if section 401 does apply, it should be read
to contain an exception for ―any conduct that is willful or wanton‖
under Utah Code § 57-14-204.
¶6 The Feldmans also moved to amend their complaint,
seeking to add the allegation that the City‘s ―conduct was willful or
malicious, in that [it] acted and failed to act even though [it] knew
of the hazard and knew that serious injury was a probable result of

Upon a finding that these entities had no significant involvement in
such development, they were dismissed from the suit.
3 Section 401 was amended in 2019 and now bars claims ―for
personal injury or property damage caused either directly or
indirectly by participating in an activity with a recreational purpose
on the land.‖ UTAH CODE § 57-14-401(1).

3
 FELDMAN V. SALT LAKE CITY
Opinion of the Court

contact with the hazard.‖ The City opposed the motion to amend as
futile, arguing, inter alia, that section 401 contains no exception for
willful or malicious conduct and the allegations were not supported
by facts in the complaint.
¶7 The district court granted the City‘s motion to dismiss,
holding that section 401 barred the Feldmans‘ claims. The district
court first found that the Feldmans are ―person[s]‖ within the
meaning of the Act. It then held that section 401 barred the
Feldmans‘ wrongful death claims because ―‗personal injury‘ claims
include[] all personal torts‖ and so the statute ―precludes all tort
claims, including the personal tort of wrongful death.‖ Next, the
district court held that ―a strong current, whether . . . caused by
spring run-off, high rain, a manmade improvement, or all of the
above, is a danger that is common to a creek or any body of water,‖
and, thus, ―a current is an inherent risk of entering a creek.‖
¶8 The district court went on to reject the Feldmans‘
argument that the application of the statute violated the Wrongful
Death Clause because, at the time the Utah Constitution was
adopted in 1895, there was no express authority for wrongful death
suits against the State.
¶9 The district court also held that the proposed amendment
to the complaint did nothing to defeat the City‘s motion to dismiss,
reasoning that the Feldmans ―provide[d] no facts to support their
claims‖ and the proposed amendments were futile since section 401
has no ―statement that a landowner is liable for a willful or
malicious failure to guard or warn.‖ The district court thus granted
the City‘s motion to dismiss.
¶10 The Feldmans appealed. We have jurisdiction under Utah
Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶11 ―We review a decision granting a motion to dismiss for
correctness, granting no deference to the decision of the district
court.‖ Amundsen v. Univ. of Utah, 2019 UT 49, ¶ 20, 448 P.3d 1224
(citation omitted). ―In so doing, we accept the plaintiff‘s description
of the facts alleged in the complaint to be true and view all
reasonable inferences from those facts in the light most favorable to
the plaintiff.‖ Id. (citation omitted) (internal quotation marks
omitted).
¶12 Regarding the underlying claims, we review the district
court‘s interpretation of a statute for correctness—it being a
question of law. Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 7, 428
P.3d 1096. Similarly, we review the district court‘s determination of

4
 Cite as: 2021 UT 4
Opinion of the Court

the constitutionality of a statute for correctness. See State v. Drej,
2010 UT 35, ¶ 9, 233 P.3d 476.
ANALYSIS
¶13 The Feldmans argue that the district court erred in
granting the City‘s rule 12(b)(6) motion to dismiss. Specifically, they
argue that the district court erred because: (1) section 401 does not
bar wrongful death actions; (2) if it does, it violates the Wrongful
Death Clause of the Utah Constitution; and (3) even if the statute
could apply here, it does not bar the Feldmans‘ claims because Ms.
Feldman‘s death was not caused by a risk inherent in her usage of
the park.4
¶14 We address each of these arguments below and conclude
the following: First, because section 401 may provide a defense that
goes to the viability of Ms. Feldman‘s underlying personal injury
claims, it also may bar the Feldmans‘ wrongful death claims.
Second, section 401 does not violate the Utah Constitution because
it merely provides a reasonable defense to wrongful death claims.
Third, the Feldmans have sufficiently alleged that Ms. Feldman‘s
death was not caused by an inherent risk of recreating in the Park,

__________________________________________________________
4 In a footnote, the Feldmans make one additional argument in
the alternative. Section 201 of the Act generally provides that a
landowner owes no duty of care to warn a recreational user of any
dangerous conditions on the land. UTAH CODE § 57-14-201 (2018).
However, it contains an exception for a landowner‘s willful or
malicious failure to guard or warn against a dangerous condition,
as described in section 204. See id. § 57-14-204.
The Feldmans argue that ―[i]f the applicability of Section 57-14-
201 is raised as a separate basis for affirming the district court‘s
decision,‖ we should reverse the district court‘s denial of their
motion to amend their complaint. We take this to mean that the
Feldmans consider section 204‘s exception for a willful or malicious
failure to guard or warn against a dangerous condition to be a
separate basis for affirmance. But this separate basis is not raised,
and we nevertheless agree with the district court that the Feldmans‘
motion to amend was ―futile as section 401 contains no statement
that a landowner is liable for a willful or malicious failure to guard
or warn.‖ And because section 204 does not apply, we need not
address the Feldmans‘ argument that the district court misapplied
the ―open and obvious danger‖ common-law exception to willful or
malicious conduct.

5
 FELDMAN V. SALT LAKE CITY
Opinion of the Court

and so the district court erred in granting the City‘s motion to
dismiss.
I. SECTION 401 MAY APPLY TO WRONGFUL DEATH CLAIMS
¶15 The Feldmans assert a wrongful death action against the
City. The City, in turn, asserts a defense under section 401 of the
Act. UTAH CODE § 57-14-401 (2018). Section 401 bars ―claim[s] . . .
for personal injury‖ against landowners in certain circumstances. If
Ms. Feldman had lived to maintain her own action against the City,
her claim undoubtedly would have been a claim ―for personal
injury‖ under the statute. Assuming the other elements of section
401 were satisfied, it would bar such a claim. The question is
whether the statute also, by extension, bars her family‘s wrongful
death claims arising from the same injury. We hold that, if the Act
is otherwise applicable, it does.
¶16 To show why, we first discuss the unique nature of a
wrongful death action in Utah. Next, we show that Utah courts
allow defendants in a wrongful death suit to assert some, but not
all, of the defenses that could have been asserted against the
decedent‘s underlying personal injury claim. Finally, we hold that
section 401 provides a defense that may be asserted against the
Feldmans‘ wrongful death claims.
A. In Utah, Wrongful Death “Occupies a Position of Privilege
Among Torts”
¶17 When considering defenses asserted in wrongful death
actions, this court often has begun by explaining the historical and
unique nature of the action. See, e.g., Riggs v. Ga.-Pac. LLC, 2015 UT
17, ¶ 12, 345 P.3d 1219; Bybee v. Abdulla, 2008 UT 35, ¶ 18, 189 P.3d
40. For context, we briefly do so again here. In early English
common law, courts for centuries considered the accidental killing
of another person a compensable harm. See Riggs, 2015 UT 17, ¶ 12.
However, in 1808, an English court surprisingly ruled that death
was not an ―injury.‖ Id. (citation omitted). In response, in 1846,
England adopted Lord Campbell‘s Act, which provided relatives of
a decedent the right to recover for their associated losses. Id.; see also
Jones v. Carvell, 641 P.2d 105, 107 (Utah 1982). In the ensuing
decades, many American states followed suit, enacting some form
of wrongful death statute; however, the states‘ treatments of the
action varied regarding the scope of recovery and its degree of
independence from the underlying personal injury. See Riggs, 2015
UT 17, ¶ 12; Bybee, 2008 UT 35, ¶ 18; Carvell, 641 P.2d at 107; Webb v.
Denver & R.G.W. Ry. Co., 24 P. 616, 617 (Utah Terr. 1890). Utah first
enacted its wrongful death statute in 1874 and, to presumably
eliminate any uncertainty about the long-term viability of the cause
6
 Cite as: 2021 UT 4
Opinion of the Court

of action, enshrined it in the Utah Constitution in 1895. Bybee, 2008
UT 35, ¶ 18 (citing UTAH CONST. art. XVI, § 5). Because of its
constitutional protection, ―wrongful death occupies a position of
privilege among torts.‖ Id.
¶18 Today‘s wrongful death statute provides that ―when the
death of a person is caused by the wrongful act or neglect of
another, his heirs . . . may maintain an action for damages against
the person causing the death.‖ UTAH CODE § 78B-3-106(1).
¶19 The Feldmans argue that because a wrongful death claim
has its own statutory basis, it is ―different and separate from a
personal injury claim.‖ It is true that the wrongful death statute
―grants a person‘s heirs the right to maintain an action for
damages,‖ and there is ―nothing in the statute to suggest that the
cause of action is tied to the decedent‘s underlying personal injury
claim.‖ Riggs, 2015 UT 17, ¶ 11 (citation omitted) (internal quotation
marks omitted). It is also true that the two types of claims seek to
compensate different types of losses. ―A wrongful death action
compensates heirs for their personal losses‖—typically
non-economic losses such as ―loss of society, love, companionship,
protection and affection.‖ Id. ¶ 16 (citation omitted). In contrast, a
―personal injury action is aimed more directly at compensating an
individual for losses‖ such as ―lost wages, medical expenses and
other personal economic consequences of an injury.‖ Id.
¶20 Still, we cannot ignore the inescapable fact that but for Ms.
Feldman‘s personal injury (drowning), there would be no wrongful
death claim. Therefore, this court has consistently held that while
wrongful death ―is a separate claim that comes into existence upon
the death of the injured person,‖ it is ―derivative in the sense that it
will not lie without a viable underlying personal injury claim.‖
Bybee, 2008 UT 35, ¶ 23 (citing Meads v. Dibblee, 10 Utah 2d 229, 350
P.2d 853, 855 (1960); Halling v. Indus. Comm'n, 71 Utah 112, 263 P.78,
81 (1927)). Put another way, in states that treat wrongful death
actions as completely derivative of the underlying personal injury
claim, the decedent‘s heirs ―‗stand in the shoes‘ that shod the
decedent while he was alive.‖ Bybee, 2008 UT 35, ¶ 22. But in Utah,
―[t]he independent nature of the wrongful death cause of action . . .
means that in our state the heirs in a wrongful death action stand
in, at most, one shoe of the decedent.‖ Id. ¶ 23. Whether a defense
to the decedent‘s underlying personal injury claim can be applied
to an heir‘s wrongful death claim depends on which shoe the
defense fits.

7
 FELDMAN V. SALT LAKE CITY
Opinion of the Court

B. A Defendant in a Wrongful Death Action Can Assert Defenses
that Implicate the Viability of the Underlying
Personal Injury Action
¶21 Given the semi-derivative nature of a wrongful death
claim, Utah courts have analyzed on a case-by-case basis whether
certain defenses applicable to the underlying personal injury claim
can apply to a wrongful death claim. ―A wrongful death plaintiff is
not exposed to all of the defendant‘s defenses, but rather is ‗subject
to at least some of the defenses that would have been available
against the decedent had she lived to maintain her own action.‘‖
Bybee, 2008 UT 35, ¶ 21 (quoting Jensen v. IHC Hosps., Inc., 944 P.2d
327, 332 (Utah 1997)). A defendant may assert defenses that ―go to
the viability of the underlying personal injury action.‖ Id. ¶ 24. A
brief review of our jurisprudence in this area informs our analysis.
¶22 In Van Wagoner v. Union Pacific Railroad Co., a train struck
a vehicle crossing the tracks, killing the vehicle‘s driver. 186 P.2d
293, 294 (Utah 1947). The question before this court was whether a
defense of contributory negligence could apply to a wrongful death
claim brought by the decedent‘s family. Id. at 303–04. The court
reasoned that while the wrongful death statute vests in a decedent‘s
heirs a cause of action, their losses ―arise out of the death of the
deceased,‖ and the word ―wrongful is used in the sense of
wrongful as against the deceased.‖ Id. at 303. Therefore, the
wrongful death action is not truly independent of the underlying
personal injury. See id. Further, the legislature did not intend the
statute to modify in any way the rights of third parties, such as the
defendant. Id. Therefore, the statute ―grant[ed] to the heirs . . . a
right to proceed against the wrongdoer subject to the defenses
available against the deceased, had he lived and prosecuted the
suit.‖ Id. at 303–04.
¶23 Since Van Wagoner, this court has followed its reasoning
while slightly narrowing its holding. In Kelson v. Salt Lake County,
we quoted Van Wagoner to hold that a defendant may assert a
statutory defense of contributory negligence to a wrongful death
claim. 784 P.2d 1152, 1155 (Utah 1989). Eight years later, we
reinforced Van Wagoner and Kelson, saying, ―Utah law is clear that a
plaintiff in a wrongful death action is subject to defenses which
could have been asserted against the decedent had he lived and
prosecuted the suit.‖ Hirpa v. IHC Hosps., Inc., 948 P.2d 785, 794
(Utah 1997) (citing Kelson, 784 P.2d at 1155) (holding the Good
Samaritan Act, which shields medical providers from liability when
voluntarily lending aid in an emergency, provided a defense to a
wrongful death claim). However, we addressed the same issue

8
 Cite as: 2021 UT 4
Opinion of the Court

earlier that same year and employed narrower language. In Jensen
v. IHC Hospitals, Inc., we recognized the semi-derivative nature of a
wrongful death action and stated that it ―may only proceed subject
to at least some of the defenses that would have been available
against the decedent had she lived to maintain her own action.‖ 944
P.2d 327, 332 (emphasis added). Nevertheless, we held there that a
statute of limitations applicable to the decedent‘s underlying
medical malpractice claim also barred the family‘s wrongful death
claim. Id.
¶24 In Bybee v. Abdulla, we addressed whether an arbitration
agreement between a decedent patient and his doctor also bound
his heirs seeking to later bring a wrongful death action. 2008 UT 35,
¶¶ 2–6. After discussing the historical nature of the wrongful death
claim, id. ¶ 18, we indicated that Jensen intentionally narrowed the
language of Van Wagoner and its progeny. Id. ¶ 21. ―[I]n Jensen we
granted injured persons a more modest array of powers to bind
their heirs should their death give rise to a wrongful death action.‖
Id. And we repeated Jensen‘s statement that a wrongful death
plaintiff may only proceed ―subject to at least some of the defenses‖
applicable to the underlying personal injury claim. Id (citation
omitted). The court then explained that the comparative negligence
statute in Kelson, the statute of limitations defense in Jensen, and the
Good Samaritan Act in Hirpa were all defenses that ―go to the
viability of the underlying personal injury action.‖ Id. ¶ 24. In
contrast, ―an agreement to bind heirs to arbitrate disputes does not
implicate the viability of the underlying claim.‖ Id. (citation
omitted). We concluded our analysis by declining to adopt a
categorical rule of which defenses would be available to a wrongful
death defendant, but we noted that ―those least likely to be found
enforceable are contract provisions that purport to affect the rights
of heirs but do not affect the existence of the decedent's personal
injury claim during his lifetime.‖ Id. ¶ 25. Thus, we held the
arbitration agreement did not bind the family‘s wrongful death
claim. Id. In so doing, we rejected for the first time the application
to a wrongful death claim of a defense that would have otherwise
been applicable to a decedent‘s underlying personal injury claim.
¶25 Most recently, we addressed a new wrinkle on this issue
in Riggs. There, we analyzed whether a judgment for a personal
injury claim obtained by an injured plaintiff precluded her family
from bringing a wrongful death claim for the same injury after she
died. 2015 UT 17, ¶ 8. We differentiated the case from Jensen and
Bybee because ―[o]ur analysis in those cases was . . . driven by the
need to choose between conflicting laws‖—the statutory defense at
issue in each case and the wrongful death statute. Id. ¶ 15. Because

9
 FELDMAN V. SALT LAKE CITY
Opinion of the Court

no statutory conflict existed in Riggs, we held that ―under the plain
language of [the wrongful death statute], the wrongful death cause
of action is not barred by a decedent‘s prior personal injury‖
judgment. Id.
¶26 Having surveyed our body of law in this area, we now
turn to where along the Van Wagoner–Riggs continuum the present
case fits.
C. Section 401 May Bar the Feldmans’ Wrongful Death Claims
Because It Implicates the Viability of Ms. Feldman’s
Underlying Personal Injury Claim5
¶27 Recognizing that a wrongful death plaintiff is not subject
to all the defenses that would have been available against the
decedent‘s underlying personal injury action, we nonetheless hold
that section 401 applies to the Feldmans‘ wrongful death action.
¶28 The present case fits the Kelson/Hirpa/Jensen analysis for
two main reasons. First, section 401 provides a defense that
implicates the viability of an underlying claim for personal injury.
No party disputes that, had Ms. Feldman survived and only been
injured, she would have a claim ―for personal injury‖ within the
meaning of section 401. And because of this, the statute would bar
her claim (assuming all other elements of the statute were satisfied).
In other words, section 401—unlike the arbitration agreement in
Bybee—would ―affect the existence of [Ms. Feldmans‘] personal
injury claim during [her] lifetime.‖
¶29 Second, this case also presents us with a potential
statutory conflict. On one hand, the wrongful death statute
provides that when a person‘s death is ―caused by the wrongful act
or neglect of another,‖ her heirs may maintain an action for
damages. On the other hand, section 401 provides a defense against
the underlying personal injury claim. If we again assume that Ms.
Feldman had lived and section 401 barred her claims, the City‘s
conduct would not be legally ―wrongful‖ or negligent. It would
therefore be bizarre to hold that whether the City‘s actions were
―wrongful‖ under the wrongful death statute turned on whether
__________________________________________________________
5 The City also argues that section 401 applies because, under
Gressman v. State, ―a statutory reference to ‗personal injury‘ claims
includes all personal torts,‖ 2013 UT 63, ¶ 31, 323 P.3d 998, of which
wrongful death is one. Because we affirm today on alternate
grounds, see infra ¶¶ 27–29, we need not decide whether ―personal
injury‖ in section 401 encompasses all personal torts.

10
 Cite as: 2021 UT 4
Opinion of the Court

Ms. Feldman survived her injuries. We avoid this logical tangle by
holding that section 401 provides a specific statutory defense to the
wrongful death statute‘s general right to bring such claims.
II. APPLICATION OF SECTION 401 DOES NOT VIOLATE
THE WRONGFUL DEATH CLAUSE OF
THE UTAH CONSTITUTION
¶30 In an alternative yet related argument, the Feldmans
argue that if section 401 does preclude their wrongful death action,
it violates the Wrongful Death Clause of the Utah Constitution.
That provision provides, in relevant part, that ―[t]he right of action
to recover damages for injuries resulting in death, shall never be
abrogated . . . .‖ UTAH CONST. art. XVI, § 5.
¶31 Under the Wrongful Death Clause, the legislature may not
repeal its wrongful death statute or ―nullify the wrongful death
action by indirect means.‖ Hirpa v. IHC Hosps., Inc., 948 P.2d 785,
794 (Utah 1997). Nonetheless, as we saw in part I, see supra ¶¶ 22–
26, ―the Legislature . . . may provide for reasonable defenses that
are not inconsistent with the fundamental nature of the wrongful
death action itself.‖6 Id. (quoting Berry v. Beech Aircraft Corp., 717
P.2d 670, 685 (Utah 1985)). And a defendant may raise defenses that
―go to the viability of the underlying personal injury action.‖ Bybee
v. Abdulla, 2008 UT 35, ¶ 24, 189 P.3d 40.7

__________________________________________________________
6 We note here that the Feldmans argue section 401 is
unconstitutional because, at the time the Constitution was adopted
in 1895, sovereign immunity did not apply to municipalities or
recreational landowners, who had a common law duty of care to
invitees and licensees. However, the allowance for reasonable
defenses articulated in Hirpa and Berry does not distinguish
between types of defendants to whom the defenses can apply. The
Feldmans do not ask us to overrule these cases. And even if they
did, their arguments would fall short of the ―deep immersion‖ in
the ratification era required to interpret our constitutional
provisions. See So. Salt Lake City v. Maese, 2019 UT 58, ¶ 23, 450 P.3d
1092 (quoting Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 98,
416 P.3d 663).
7 The Feldmans also argue that the legislature intended
―personal injury‖ in section 401 to not include wrongful death
claims in order to avoid infringing upon the Wrongful Death
Clause. However, ―[w]e presume the Legislature is aware of our
case law,‖ Olseth v. Larson, 2007 UT 29, ¶ 39, 158 P.3d 532, and can
(continued . . .)

11
 FELDMAN V. SALT LAKE CITY
Opinion of the Court

¶32 Again, we analogize the case at bar to the plaintiff‘s claim
in Hirpa. There, the plaintiff brought a wrongful death action
against a hospital medical director who voluntarily assisted with
the decedent‘s care around the time of death. 948 P.2d at 787. The
medical director asserted a defense under Utah‘s Good Samaritan
Act, which protects from ―any civil damages‖ any licensed medical
provider ―who in good faith renders emergency care at the scene of
an emergency.‖ Id. at 788 (citing UTAH CODE § 58-12-23 (1996)). The
court found the Act to be a ―narrowly tailored‖ defense that serves
an important public policy: incentivizing medical professionals to
provide aid in an emergency. See id. at 793–94. Because the medical
director had no preexisting duty to provide care to the decedent
and the medical director could have asserted the Good Samaritan
Act as a defense had the decedent lived, the Act was a ―reasonable
defense, not inconsistent with the fundamental nature of the
wrongful death action.‖ Id. at 788, 794.
¶33 This case falls squarely within the Hirpa analysis. Section
401 parallels the Good Samaritan Act in three material ways. First,
it provides a narrowly tailored defense—it applies only when a
landowner opens her land to the general public, free of charge, and
a land user‘s injury is caused by an inherent risk of participating in
an activity with a recreational purpose on that land. See UTAH CODE
§ 57-14-401 (2018). Second, it advances an important public
interest—encouraging landowners to open their land to the public
for recreational use.8 Third, it only protects defendants who had no
preexisting duty of care to a potential plaintiff.

therefore infer the legislature intended section 401 to be a
―reasonable defense‖ to wrongful death claims. Hirpa, 948 P.2d at
794; see also In re Estate of Hannifin, 2013 UT 46, ¶36, 311 P.3d 1016
(Durham, J., dissenting) (―[W]e assume, absent a contrary
indication, that the legislature intends its statutes to work in
tandem with our case law, and we reconcile the common law with
statutory law whenever possible.‖).
8 The stated purpose of the Act is ―to limit the liability of public
and private land owners toward a person entering the owner's land
as a trespasser or for recreational purposes, whether by permission
or by operation of Title 73, Chapter 29, Public Waters Access Act.‖
UTAH CODE § 57-14-101(2). As this court has explained, ―[t]he Act
encourages landowners to allow the public to use their land for
recreational purposes by limiting landowners‘ liability to persons
(continued . . .)

12
 Cite as: 2021 UT 4
Opinion of the Court

¶34 The Feldmans attempt to distinguish the Act here from
the Good Samaritan Act in Hirpa because the former ―provides
immunity to landowners who have always owed a common law
duty of reasonable care to invitees on their property.‖ This
argument misses the mark. The whole point of the Act is to
incentivize landowners who had no preexisting duty to open their
land to the public to do so. And the Act accomplishes this purpose
by expressly abrogating the common law duties of care that such a
landowner would otherwise have to invitees or licensees on his
property. See, e.g., UTAH CODE § 57-14-401 (2019); id. § 57-14-201
(2018) (―[A]n owner of land owes no duty of care to keep the land
safe for entry or use by any [user under the Act] or to give warning
of a dangerous condition, use, structure, or activity on the land.‖);
id. § 57-14-202 (An owner of land under the Act does not: (1) make
any representation as to the safety of the land; (2) confer upon any
user the legal status of invitee or licensee; or (3) assume
responsibility or liability for any act or omission by any user).
¶35 As we explained above, supra ¶¶ 25, 29, section 401
provides a defense that ―go[es] to the viability of the underlying
personal injury action,‖ because, had Ms. Feldman survived and
pursued a personal injury claim, the statute would block her claim
(assuming the other elements of section 401 were met). In the same
way, the defense provided by section 401 is ―not inconsistent with
the fundamental nature of the wrongful death action.‖ The statute
only limits what is legally ―wrongful as against the deceased.‖ See
supra ¶ 22 (quoting Van Wagoner v. Union Pac. R.R. Co., 186 P.2d 293,
303 (Utah 1947). It does nothing to expressly limit the ―fundamental
nature‖ of the action—the right of heirs to bring an action and seek
their own damages for the death of a family member caused by the
―wrongful act‖ of another.
¶36 For these reasons, section 401 is a reasonable defense to
the Feldmans‘ wrongful death claim. Thus, the City may assert the

who use the land.‖ Golding v. Ashley Cent. Irrigation Co., 902 P.2d
142, 145 (Utah 1995).
We also note here that the Feldmans‘ interpretation of section
401—that it does not protect landowners from wrongful death
actions—is incongruous with the Act‘s purpose and statutory
scheme. Nothing in the Act suggests that the Utah legislature
enacted it to simultaneously protect landowners from personal
injury suits by their guests while also requiring those landowners
to effectively extend life insurance to those same guests.

13
 FELDMAN V. SALT LAKE CITY
Opinion of the Court

defense without violating the Wrongful Death Clause of the Utah
Constitution.
III. THE FELDMANS SUFFICIENTLY ALLEGE MS. FELDMAN‘S
DEATH WAS NOT CAUSED BY AN INHERENT RISK
OF ENTERING THE CREEK
¶37 We have thus far determined that section 401 applies to
wrongful death actions and does so without violating the Utah
Constitution. That said, it is not apparent from the Feldmans‘
complaint that the statute actually bars their action here. Contrary
to what the district court found, the Feldmans sufficiently alleged
that Ms. Feldman‘s death was not caused by an inherent risk of
entering the creek at the East Creek Access. To reach this
determination, we identify the necessary statutory elements and
apply the facts alleged to those elements.
¶38 Again, under section 401 of the Act, a ―person may not
make a claim against or recover from an owner of any land . . .
opened to the general public without charge . . . for personal injury
or property damage caused by the inherent risks of participating in an
activity with a recreational purpose on the land.‖ UTAH CODE
§ 57-14-401(1) (2018) (emphasis added). Neither party disputes that
the City owns the Park and opened it to the general public without
charge. So, we focus on the elements ―inherent risks‖ and ―activity
with a recreational purpose on the land.‖ We begin with the latter
element.
¶39 For starters, we must identify whether Ms. Feldman was
participating in an ―activity with a recreational purpose on the
land.‖ The Act provides: ―‘[r]ecreational purpose‘ includes, but is
not limited to, any of the following or any combination thereof:‖
and proceeds to list nineteen activities, including ―walking,‖
―hiking,‖ ―swimming,‖ and ―viewing or enjoying . . . scenic . . .
sites.‖ UTAH CODE § 57-14-102(7) (2018). These enumerated
activities are broad categories that describe a recreator‘s general
purpose for entering the land. And each broad category necessarily
includes the subset of all activities a recreator takes in furtherance
of that general purpose. If a hiker encounters a cold stream and
decides to wade across it, she does not cease ―hiking‖ while
crossing the stream. And if a person is ―viewing or enjoying . . .
scenic . . . sites,‖ she does not cease doing so if she climbs a tree to
get a better picture. In these examples, the recreator continues to
participate in the ―activity with a recreational purpose‖ even if
crossing the stream or climbing the tree is not fun for that person.
Therefore, we interpret ―activity with a recreational purpose‖ to

14
 Cite as: 2021 UT 4
Opinion of the Court

mean a plaintiff‘s general purpose for entering the land and include
all actions taken in furtherance of that purpose.
¶40 Here, Ms. Feldman entered the Park with the general
purpose of walking with her dogs. This purpose falls squarely
within the statutory definition of an ―activity with a recreational
purpose on the land.‖ And that general purpose encompasses all
actions taken in furtherance of it—including entering the creek.
¶41 Next, we must determine whether, based on the facts
alleged, Ms. Feldman‘s drowning in the creek at the East Creek
Access was an ―inherent risk‖ of walking in the Park with her dogs.
Here we disagree with the district court.
¶42 At the threshold, we must decide the relevant action for
purposes of this analysis. As explained above, the ―activity with a
recreational purpose‖ includes all actions taken in furtherance of
that general activity once on the land. But those actions may
include risks not contemplated by the general activity. The hiker
who crosses the stream risks drowning, a risk generally not
associated with ―hiking.‖ And the viewer of scenic sites who climbs
the tree risks falling and breaking a bone, a risk generally not
associated with enjoying a scenic view. Because the set of risks
inherent in a specific action taken in furtherance of a general
recreational purpose may be very different from the risks inherent
in that general purpose, we analyze the inherent risks of that
specific action.
¶43 Here, Ms. Feldman‘s action of entering the creek, in
furtherance of her general purpose of walking with her dogs,
carried with it a set of inherent risks much different from the risks
inherent in walking. As such, we analyze the ―inherent risks‖ of
entering the creek.
¶44 The Act defined ―inherent risks‖ as ―those dangers,
conditions, and potentials for personal injury or property damage
that are an integral and natural part of participating in an activity
for a recreational purpose.‖ UTAH CODE § 57-14-102(3) (2018). Much
like section 401 itself, several necessary elements lurk within this
definition. We must analyze (1) whether the creek constituted a
―danger[], condition[], [or] potential[] for personal injury,‖ id., and
(2) if so, whether that danger was an ―integral and natural part‖ of
walking dogs in the Park. Id.
¶45 Regarding the first element, the Feldmans allege that Ms.
Feldman drowned due to a ―dangerous current at the creek.‖ The
fact that she drowned supports this allegation. The ―danger[],
condition[], [or] potential[] for personal injury‖ element is satisfied.

15
 FELDMAN V. SALT LAKE CITY
Opinion of the Court

¶46 The second element is trickier. The Feldmans argue that
―Liudmila‘s death was not caused by a natural or integral part of
the creek,‖ but rather ―by a manmade condition that resulted in the
dangerous current.‖ The City responds with three points: (1) the
Act clearly ―applies to manmade improvements because it applies
to land that is ‗developed or improved‘‖; (2) the Act ―defines
‗inherent risks‘ in terms of the risks associated with participating in
a recreational activity, not in terms of whether the injury was
caused by a natural or manmade condition on the land‖; and
(3) under Golding v. Ashley Central Irrigation Co., 902 P.2d 142 (Utah
1995), the Act‘s protections are not ―limited to injuries caused by
purely natural conditions on the land . . . .‖
¶47 What it means for a danger to be an ―an integral and
natural part‖ of participating in an activity with a recreational
purpose under the Act is an issue of first impression for this court.
Because the Act applies to a broad range of recreational activities,
the answer to this inquiry will necessarily depend on the activity
itself.
¶48 The Feldmans analogize this issue to Clover v. Snowbird Ski
Resort, 808 P.2d 1037 (Utah 1991).9 There, we interpreted the
meaning of ―inherent risks of skiing‖—defined as ―those dangers or
conditions which are an integral part of the sport of skiing‖—under
the Inherent Risks of Skiing Act (IRSA). Id. at 1044 (quoting UTAH
CODE ANN. § 78-27-52(1) (renumbered as § 78B-4-402(1)). While the
language of inherent risks in the IRSA is similar to that of the Act
here, Clover is nonetheless unhelpful here for two reasons. First,
―the legislature is undoubtedly empowered to define [a statutory
term] in different ways in different statutory schemes.‖ Tesla Motors
UT, Inc. v. Utah Tax Comm’n, 2017 UT 18, ¶ 23, 398 P.3d 55. And
these two statutory schemes serve different purposes: the purpose
of the IRSA was ―to clarify the law‖ regarding ski area liability, see
Clover, 808 P.2d at 1044 (emphasis added) (citation omitted),
whereas the purpose of the Act here is ―to limit the liability of public
and private land owners‖ who allow public users to recreate on
their land. UTAH CODE § 57-14-101(2) (emphasis added).10 Second,

__________________________________________________________
9 We recently clarified our Clover analysis in Rutherford v. Talisker
Canyons Finance, Co., 2019 UT 27, 445 P.3d 474, but the difference is
irrelevant here.
10 While the interpretation of a defined term in one statute may
be persuasive in the interpretation of a similar term in a similar
statute, ―the presumption of consistent usage can hardly be said to
(continued . . .)

16
 Cite as: 2021 UT 4
Opinion of the Court

the IRSA applied to a single activity: skiing. For this reason, we
could further refine a test of what is an ―integral part‖ of the
activity of skiing. The Act here, however, applies to many different
recreational activities, and the scope of the inherent risks depends
on the activity.
¶49 To understand what is meant by ―integral‖ and ―natural,‖
we look to the use of these words as legal terms of art in the
doctrine of primary implied assumption of risk. This doctrine
―involves a relationship in which [the] defendant simply owes no
duty of care to the plaintiff.‖ Rutherford v. Talisker Canyons Finance,
Co., 2019 UT 27, ¶ 46, 445 P.3d 474 (alteration in original) (citation
omitted). It ―applies when a person is ‗injured as a consequence of
being exposed to a risk which the [defendant] in the exercise of due
care could not avoid.‘‖ Id. (alteration in original) (quoting Tiller v.
Atl. Coast Line R.R. Co., 318 U.S. 54, 71 (1943) (Frankfurter, J.,
concurring). And Utah courts and other jurisdictions frequently
describe such a risk as one that is ―integral‖ or ―natural‖ to the
relevant activity.11 Because these words are established terms of art
in the doctrine of primary implied assumption of risk—a doctrine
essentially codified in the Act—we presume the legislature
intended to preserve those established meanings. See Maxfield v.

apply across the whole corpus juris.‖ ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 172–73
(2012).
11 See, e.g., Lawson ex rel. Lawson v. Salt Lake Trappers, Inc., 901
P.2d 1013, 1016 (Utah 1995) (explaining that ―being struck by a foul
ball is ‗one of the natural risks assumed by spectators attending
professional games,‘‖ and thus the owners of a baseball team owed
no duty of care to the plaintiff (citation omitted)); Mayall ex rel. H.C.
v. USA Water Polo, Inc., 909 F.3d 1055, 1061 (9th Cir. 2018) (―[A]
person or entity does not owe a duty of care . . . where ‗conditions
or conduct that otherwise might be viewed as dangerous . . . are an
integral part of the sport itself.‘‖); Mamati v. City of New York Parks
& Recreation, 123 A.D.3d 671, 671–72 (N.Y. App. Div. 2014) (―Under
the doctrine of primary assumption of risk, a person who
voluntarily participates in a . . . recreational activity generally
consents, by his or her participation, to those injury-causing events,
conditions, and risks which are inherent in and arise out of the
nature of the activity. Risks inherent in a sporting activity are those
which are known, apparent, natural, or reasonably foreseeable
consequences of the participation.‖ (citations omitted)).

17
 FELDMAN V. SALT LAKE CITY
Opinion of the Court

Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (―[W]hen a word or phrase is
transplanted from another legal source, whether the common law
or other legislation, it brings the old soil with it.‖ (citation omitted)
(internal quotation marks omitted)).
¶50 The parties seemingly do not dispute the meaning of the
word ―integral‖ here, only its application to the facts. They do,
however, dispute the meaning of ―natural.‖ The Feldmans
essentially argue that ―natural‖ refers only to things that exist in the
ordinary course of nature; thus, the dangerous current in the creek
―cannot be ‗natural‘ because it is manmade.‖ The City responds
that section 401 applies equally to manmade and non-manmade
risks because it applies to land that is ―developed or improved.‖
¶51 We think the proper reading of the statute is somewhere
in between. ―Natural,‖ as used in the context of assumption of risk,
focuses on whether a given risk is expected in a given setting. See,
e.g., RESTATEMENT (SECOND) OF TORTS § 496D, cmt. b (1965)
(explaining that for a plaintiff to assume a risk, ―he must not only
be aware of the facts which create the danger, but must also
appreciate the danger itself and the nature, character, and extent
which make it unreasonable‖); Lawson ex rel. Lawson v. Salt Lake
Trappers, Inc., 901 P.2d 1013, 1016 (Utah 1995) (explaining that
―being struck by a foul ball is ‗one of the natural risks assumed by
spectators attending professional games‘‖ (citation omitted)); Abee
v. Stone Mountain Mem’l Ass’n, 312 S.E.2d 142, 145 (Ga. Ct. App.
1983) (holding plaintiff assumed the risk where the danger was not
―‘a result of obscure or unobservable risks, unexpected dangers or
unseen defects‘ but was [the] result of a natural and obvious hazard
necessary to the purpose‖ of the activity), aff'd, 252 Ga. 465, 314
S.E.2d 444 (1984). And, as explained above, we presume the
legislature‘s intended meaning of ―natural‖ in the statute aligns
with its established meaning as a legal term of art.
¶52 We also reject the Feldmans‘ interpretation because it
would undermine the entire Act, which is designed to extend broad
protections to landowners who open up their land to public use.
Almost every park or trail contains extensive human-altered
features, and the Feldmans‘ reading of ―natural‖ would render the
Act virtually inapplicable to these lands. We doubt the legislature
intended an interpretation of ―natural‖ that neutralizes most of the
Act‘s application. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
468 (2001) (―Congress . . . does not, one might say, hide elephants in
mouseholes.‖)
¶53 Applying the legal term of art meaning of ―natural‖ to the
Act as a whole, a risk is an ―integral and natural part‖ of a given

18
 Cite as: 2021 UT 4
Opinion of the Court

activity if that risk would be expected in the given setting. And the
manmade aspect of a risk may be probative—but likely not
dispositive—of the expectedness of that risk. For example, tripping
over a rock in a trail cleared by a chainsaw and scraped clean with a
rake would certainly be an inherent risk of walking on a trail, even
though the trail is manmade. But electrocution by an exposed
electric wire dangling from a tree on that same trail would not be
an inherent risk of walking on a trail.
¶54 Which brings us, finally, to the Feldmans. Was the
possibility of drowning in the creek at the East Creek Access an
―integral and natural part‖ of entering the creek? That question
cannot be answered on the face of the Feldmans‘ complaint—or on
a motion to dismiss it. The complaint essentially alleges that: the
Feldmans were with their dogs at the park; the dogs went into the
water; and when Ms. Feldman entered the water to rescue the dogs,
she drowned due to a dangerous current caused by manmade
developments in the area. These allegations must be accepted as
true on a motion to dismiss. And the allegations themselves cannot
establish conclusively that the risk Ms. Feldman encountered was
expected in this setting. We reverse and remand on this basis.
CONCLUSION
¶55 The district court correctly held that section 401 of the
Limitations on Landowner Liability Act can bar the Feldmans‘
wrongful death claims and does not violate the Utah Constitution.
But it erred in granting the City‘s motion to dismiss because the
Feldmans sufficiently alleged that Ms. Feldman‘s tragic drowning
was not caused by a risk inherent in her recreational activity, i.e.,
walking in the Park with her dogs. Therefore, we reverse the
dismissal of all claims and remand for further proceedings
consistent with this opinion.

19