Cope v. Utah Valley State College

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

Shawnna Rae Cope, ) OPINION
)
Plaintiff and Appellant, ) Case No. 20110147‐CA
)
v. ) FILED
) (November 8, 2012)
Utah Valley State College, )
) 2012 UT App 319
Defendant and Appellee. )

‐‐‐‐‐

Fourth District, Provo Department, 060402485
The Honorable Samuel D. McVey

Attorneys: Terry M. Plant and Stewart B. Harman, Salt Lake City, for Appellant
Mark L. Shurtleff, J. Clifford Petersen, and Sandra L. Steinvoort, Salt
Lake City, for Appellee

‐‐‐‐‐

Before Judges Davis, Voros, and Christiansen.

VOROS, Judge:

¶1 Shawnna Rae Cope appeals the trial court’s grant of summary judgment in favor
of Utah Valley State College (UVSC).1 We affirm in part and reverse in part and remand
for further proceedings.

1. UVSC is now known as Utah Valley University. However, we refer to it by its name
at the time of the incident.
 BACKGROUND

¶2 In 2005, Cope was a member of the UVSC Ballroom Dance Tour Team. On
September 21, 2005, Cope was injured when she fell while practicing a lift with another
team member (Partner). Cope’s instructor (Instructor) was supervising the team’s
rehearsal at the time of the injury. Before the injury occurred, Instructor stopped the
rehearsal to have some couples demonstrate the lift and Instructor then worked with
each couple individually on the lift. Instructor realized that Cope and Partner were
doing the lift incorrectly. Partner was supposed to lift Cope from his right side over his
left shoulder but had been lifting her over his right shoulder. Partner told Instructor,
“I’ve never been able to get this lift well.” Executing the lift over the left shoulder was
more difficult than executing it over the right shoulder because it required greater
strength and momentum to get Cope from Partner’s right side across his body and over
his left shoulder. Instructor warned Cope and Partner, “‘[E]ither you guys do this or we
are going to cut [the lift from the routine].’” Cope testified in her deposition that she
considered the lift “the coolest lift [they] had been doing” in the routine. When Cope
and Partner attempted the lift over the left shoulder, Partner lost his footing and Cope
fell, hitting her head on Partner’s knee and suffering injury.

¶3 In her deposition, Cope testified that she had never danced with Partner before
the day of her injury. However, UVSC provided the trial court with a video taken
sometime during the week preceding Cope’s injury in which she and Partner were
recorded practicing the lift together three times, always over the incorrect shoulder.

¶4 According to Cope’s expert, executing the lift over the left shoulder when Cope
and Partner had been practicing it over the right shoulder was at least as difficult and
dangerous, if not more so, than attempting an entirely new lift.2 She explained that it
was the standard in the industry for dancers to use spotters when learning new lifts.
She also opined that Instructor should have used spotters on the lift to decrease the risk
of injury until the students indicated that they were comfortable with the lift and
Instructor determined that they were competent at performing it. Instructor believed

2. The expert explained that learning a lift that is similar to one previously learned is
often more difficult than a completely different lift because of the muscle memory
associated with the similar lift.

20110147‐CA 2
that because Cope and Partner were capable of performing the lift over the right
shoulder, no spotters were needed when they practiced the lift over the left shoulder.

¶5 Cope filed a complaint against UVSC on August 14, 2006. Following discovery,
UVSC filed a motion for summary judgment on July 29, 2010, arguing that the alleged
facts were insufficient to establish that it had a special relationship with Cope that gave
rise to a duty of care. The trial court denied the motion. UVSC renewed its motion on
December 20, 2010, based on the video evidence showing that Cope and Partner had
practiced the lift together, albeit incorrectly, on at least one occasion prior to the date of
Cope’s injury. In light of this evidence, the trial court revised its earlier decision. It
determined that Cope, aware of the couple’s prior difficulty in performing the lift,
nevertheless accepted the risk of continuing to attempt it rather than have the “‘coolest’
part of the routine” cut. The trial court concluded that because Instructor gave Cope the
option of either learning the lift correctly or having it cut from the routine, Cope could
have elected not to do the difficult lift without further consequence and thereby
avoided her injury. Accordingly, the trial court concluded that no special relationship
arose and that Instructor thus owed Cope no duty of care.

ISSUES AND STANDARDS OF REVIEW

¶6 Cope first contends that the trial court abused its discretion by reconsidering its
original denial of UVSC’s motion for summary judgment. “A trial court’s decision to
grant or deny a motion to reconsider summary judgment is within the discretion of the
trial court, and we will not disturb its ruling absent an abuse of discretion.” Timm v.
Dewsnup, 921 P.2d 1381, 1386 (Utah 1996) (emphasis omitted).

¶7 Cope also contends that the trial court erred in granting UVSC’s motion for
summary judgment because a special relationship existed between Cope and Instructor.
Summary judgment is appropriate when “there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law.” Utah R. Civ.
P. 56(c). “We review a trial court’s order granting summary judgment for correctness,”
viewing “all facts and inferences in the light most favorable to the nonmoving party.”
Mountain West Surgical Ctr., LLC v. Hospital Corp. of Utah, 2007 UT 92, ¶ 10, 173 P.3d
1276.

20110147‐CA 3
 ANALYSIS

I. Reconsideration of Motion for Summary Judgment

¶8 Cope contends that the trial court erred by reconsidering its original denial of
UVSC’s motion for summary judgment. Cope’s argument relies on rule 60(b) of the
Utah Rules of Civil Procedure. That rule permits a trial court to “relieve a party . . . from
a final judgment” based on “newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under Rule 59(b).” See Utah R.
Civ. P. 60(b), (b)(2). Cope reasons that the video of Cope and Partner rehearsing in the
week prior to the accident, the discovery of which formed the basis for UVSC’s motion
to reconsider, was not evidence that “by due diligence could not have been discovered,”
id., prior to the original motion for summary judgment and that the trial court therefore
abused its discretion by reconsidering its earlier ruling.

¶9 However, the relevant rule here is not rule 60(b). Rule 60(b) governs the
reconsideration of final orders, and the trial court’s denial of UVSC’s motion for
summary judgment was not a final order. The relevant rule is rule 54(b). “Rule 54(b) of
the Utah Rules of Civil Procedure . . . allows a court to change its position with respect
to any order or decision before a final judgment has been rendered in the case.” Trembly
v. Mrs. Fields Cookies, 884 P.2d 1306, 1310 n.2 (Utah Ct. App. 1994). Rule 54(b) states,
“Any order . . . that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties . . . is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of all the parties.”
Utah R. Civ. P. 54(b). While UVSC did present its motion to reconsider as a rule 60(b)
motion based on newly discovered evidence, “the substance, not caption, of a motion is
dispositive in determining the character of the motion,” see Trembly, 884 P.2d at 1310
n.2. UVSC’s motion was, in substance, simply a rule 54(b) motion to reconsider a non‐
final order, and thus the trial court had the prerogative to reconsider and revise its prior
ruling on the motion for summary judgment. Accordingly, we affirm the trial court on
this point.

20110147‐CA 4
 II. Special Relationship

¶10 We next consider whether the trial court erred in determining that UVSC owed
no duty of care to Cope on the ground that no special relationship existed between
Cope and Instructor. “The issue of whether a duty exists is entirely a question of law to
be determined by the court.” Ferree v. State, 784 P.2d 149, 151 (Utah 1989).

¶11 “Duty must be determined as a matter of law and on a categorical basis for a
given class of tort claims.” B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 23, 275 P.3d 228. Duty
determinations should be expressed in “relatively clear, categorical, bright‐line rules of
law applicable to a general class of cases.” Id. (citation and internal quotation marks
omitted). For example, Jeffs considered “the existence of a duty on the part of healthcare
providers to exercise reasonable care in prescribing medications that pose a risk of
injury to third parties.” Id. ¶ 22. The Utah Supreme Court held that “the duty question
does not turn on the specific combination of pharmaceuticals that [the nurse
practitioner] prescribed or the particular injury that it allegedly caused. Rather, the duty
analysis considers healthcare providers as a class, negligent prescription of medication
in general, and the full range of injuries that could result in this class of cases.” Id. ¶ 23.
“Thus,” the court concluded, the nurse practitioner “would owe no duty to appellants
only if there were no duty for the whole class of healthcare providers in these general
circumstances.” Id. The court expressed no opinion on whether the nurse practitioner
breached her duty of care, or whether any such breach proximately caused the
plaintiffs’ damages.

¶12 When governmental actors are involved, special considerations apply to a duty
analysis. “As a matter of public policy, we do not expose governmental actors to tort
liability for all mishaps that may befall the public in the course of conducting their
duties.” Webb v. University of Utah, 2005 UT 80, ¶ 11, 125 P.3d 906. The public duty
doctrine limits a governmental actor’s duty to situations where a special relationship
exists between the government and specific individuals:

The public duty doctrine provides that although a
government entity owes a general duty to all members of the
public, that 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

20110147‐CA 5
 some specific connection between the government agency
and the individuals that makes it reasonable to impose a
duty.

Day v. State ex rel. Utah Dep’t of Pub. Safety, 1999 UT 46, ¶ 12, 980 P.2d 1171 (citations
omitted). Thus, a government actor owes no specific duty of care to the undifferentiated
general public, but only to those persons “who stand so far apart from the general
public that we can describe them as having a special relationship to the governmental
actor.” Webb, 2005 UT 80, ¶ 11; see also Higgins v. Salt Lake County, 855 P.2d 231, 236–39
(Utah 1993). A number of circumstances may indicate that an individual or distinct
group stands sufficiently apart from the general public to create a special relationship,
including “governmental actions that reasonably induce detrimental reliance by a
member of the public” or a distinct group. See Day, 1999 UT 46, ¶ 13 (identifying “[a]t
least four circumstances [that] may give rise to a special relationship between the
government and specific individuals”); Higgins, 855 P.2d at 238–40 (recognizing that
special relationships may extend to members of a distinct group).

¶13 Under Jeffs, the scope of a special relationship is determined on a categorical
level, applicable to a general class of cases. See 2012 UT 11, ¶ 23. But “whether a special
relationship exists depends upon a careful evaluation of the facts.” Wilson v. Valley
Mental Health, 969 P.2d 416, 419 (Utah 1998). The facts determine whether a particular
case falls into a general class of cases where a special relationship exists. See id. at 418–20
(identifying a general class of cases where a special relationship exists and discussing
the facts to determine whether the case falls into that category); Higgins, 855 P.2d at
237–39 (same); Rollins v. Petersen, 813 P.2d 1156, 1162 (Utah 1991) (same); Ferree, 784
P.2d at 151–52 (same); Beach v. University of Utah, 726 P.2d 413, 415–16 (Utah 1986)
(same); Jenkins v. Jordan Valley Water Conservancy Dist., 2012 UT App 204, ¶¶ 29–32, 283
P.3d 1009 (same). But see Cruz v. Middlekauff Lincoln–Mercury, Inc., 909 P.2d 1252,
1255–56 (Utah 1996) (suggesting that the duty analysis may turn on consideration of
“special circumstances” unique to the facts of each case). Although disputed facts
relevant to the special relationship inquiry should be resolved by the factfinder, see
Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 21, 215 P.3d 152, whether the facts of a
particular case place that case within a special relationship category is a matter of law
for the court to decide, see Ferree, 784 P.2d at 151.

20110147‐CA 6
¶14 University personnel do not generally have a special relationship with students.
Webb, 2005 UT 80, ¶ 19 (citing Freeman v. Busch, 349 F.3d 582, 587 (8th Cir. 2003)).
However, in Webb, our supreme court implicitly recognized a category of cases where a
special relationship arises in the university setting. The possibility that a special
relationship can be created follows from the fact that “a college student will inevitably
relinquish a measure of behavioral autonomy to an instructor out of deference to her
superior knowledge, skill, and experience.” Id. ¶ 24. The court observed that
students—even college students—“want to please their instructors. They want to
succeed in their studies. They believe that the instructors have command of the subject
matter and the environment in which it is taught.” Id. ¶ 26. These factors may cause a
student to abandon her own “internal signals of peril” and to rely detrimentally on her
instructor. Id. ¶¶ 26–27; see also Beach, 726 P.2d at 415–16 (“The essence of a special
relationship is dependence by one party upon the other or mutual dependence between
the parties.”).

¶15 The difficult question “is to determine how much loss of autonomy a student
must sustain and how much peril must be present to establish a special relationship.”
Webb, 2005 UT 80, ¶ 25. Webb itself answers this question. There, an earth sciences
student participated in a field trip to a condominium project to examine fault lines. The
course instructor directed the students to walk on icy and snowy sidewalks through the
condominium project. One student slipped and pulled Webb down. The fall injured
Webb. See id. ¶ 2.

¶16 Our supreme court held that the instructor’s directive to walk on the icy
sidewalk did not create a special relationship. See id. ¶ 27. “A directive received in
connection with a college course assignment is an act that would engage the attention of
the prudent student.” Id. ¶ 26. Nevertheless, the directive in Webb “did not relate
directly to the academic enterprise of the class,” but bore only a “tangential relationship
to the field trip’s academic mission.” Id. ¶ 27. Thus, the court concluded, the instructor
did not “exert the control which might be present in an academic setting to create a
special relationship.” Id. In other words, while the injured student might have relied on
the course instructor’s expertise in inspecting geologic features, he had no reason to rely
on the course instructor’s judgment with respect to navigating icy sidewalks. Thus,
while Webb involved a directive given by a teacher to a student, no special relationship
was created, because the directive was not given within the scope of the academic
enterprise.

20110147‐CA 7
¶17 From this analysis we may extrapolate a general rule: 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. See Webb v. University of Utah, 2005 UT 80, ¶¶ 23–27,
125 P.3d 906.3 In contrast to Webb, the present case involves a directive given by an
instructor to a student within the scope of the academic enterprise. Instructor told Cope
and Partner, “‘[E]ither you guys do this or we are going to cut [the lift from the
routine.]’” Thus, like the students on the icy sidewalk in Webb, Cope and Partner “were
directed” to do the lift. See id. ¶ 2. Of course, Cope was not compelled to proceed
without spotters; she could have refused, attempted to negotiate for spotters, quit the
dance team, or withdrawn from the university. But Webb does not require compulsion,
merely a directive likely to evoke a reasonable student’s “deference to [her teacher’s]
superior knowledge, skill, and experience.” Id. ¶ 24. Instructor’s statement was such a
directive.

¶18 Moreover, unlike the directive in Webb, here the directive was given within the
scope of the academic enterprise. Cope fell during a rehearsal of the UVSC Ballroom
Dance Tour Team. In that context a student does have reason to rely on the dance‐
related directives of her instructor. Unlike the plaintiff in Webb, a student in this
circumstance could be expected to “relinquish a measure of behavioral autonomy to
[her] instructor out of deference to [his] superior knowledge, skill, and experience.” See
id. ¶ 24. She would reasonably believe that her instructor has “command of the subject
matter and the environment in which it is taught.” See id. ¶ 26. She would “understand
that [her] academic success, measured . . . by the degree of knowledge [or skill]
acquired . . . , turned on whether [she] abandoned all internal signals of peril to take a
particular potentially hazardous [action].” See id. ¶ 27. Thus, unlike in Webb, Instructor’s
directives to Cope did “relate directly to the academic enterprise of the class,” and bore
a direct, not tangential, relationship to the dance program’s “academic mission.” See id.
It was “a directive received in connection with a college course assignment that would
engage the attention of the prudent student” and thus was a “logical candidate” to

3. As the dissent notes, Webb engaged in an extensive analysis of the balance between
the risk involved in a situation and the control exerted by a teacher. See Webb v.
University of Utah, 2005 UT 80, ¶¶ 23–27, 125 P.3d 906. But we do not believe Webb
requires courts to apply this same balancing test for every case in which a student
asserts a breach of duty by university personnel. The rule arising out of Webb is a
product of its balancing of the risk and control factors.

20110147‐CA 8
induce detrimental reliance. See id. ¶ 26. In sum, every indicator of a special relationship
absent from Webb is present here.4

¶19 Indeed, one factor not discussed in Webb is also present here. In Webb, the
directive was a general one; the instructor directed “Mr. Webb and other students” to
walk on icy and snowy sidewalks. Id. ¶ 2. Here the directive was specific. Instructor
“stopped the rehearsal [and] went to each couple to see where the timing issues were.”
When he reached Cope and Partner, he instructed them, by name, how to achieve the
lift, and did so in terms clearly implying that the lift was safely achievable with a bit
more effort: “[Cope], you just need to kick. [Partner], you need to push more or lift
more.” In this circumstance, it would be a rare student who refused to rely on the
superior experience and expertise of her instructor.

¶20 It is true, as the dissent notes, that “Instructor told Cope and Partner only that
they must practice the lift correctly, not that they must practice it without spotters.”
Infra ¶ 39. And based on this case‐specific fact, the trier of fact may well determine that
Instructor did not breach the duty of care that he owed Cope in this circumstance.
Insofar as whether a duty existed, however, Webb makes clear that the distinction
between acts and omissions is not dispositive: “a special relationship relating to a
governmental actor can result in the imposition of liability for either her acts or her
failure to act.” Webb, 2005 UT 80, ¶ 13. It follows that, here, Cope “stand[s] so far apart
from the general public”—and indeed, so far apart from the other students in the
class—“that we can describe [her] as having a special relationship to the governmental
actor.” See id. ¶ 11.

4. We do not believe Webb requires that a student have “abandoned all internal signals
of peril.” Webb, 2005 UT 80, ¶ 27 (emphasis added). Although this phrase appears in
Webb, other passages in Webb suggest the question is one of degree. See, e.g., id. ¶ 24
(“The hypothetical possibility that a special relationship can be created between an
instructor and a student in a higher education setting flows from the fundamental
reality that . . . a college student will inevitably relinquish a measure of behavioral
autonomy to an instructor . . . .” (emphasis added)); id. ¶ 25 (“The harder question is to
determine how much loss of autonomy a student must sustain and how much peril must be
present to establish a special relationship.” (emphasis added)); id. ¶ 27 (rejecting the
claim of a special relationship where “[t]he instructor did not . . . exert the control which
might be present in an academic setting”).

20110147‐CA 9
¶21 This conclusion is consonant with Utah case law. For example, in Beach v.
University of Utah, 726 P.2d 413 (Utah 1986), our supreme court rejected the claim that a
university owed a duty of care to supervise a student who fell from a cliff at night
during a field trip sponsored by the university. See id. at 414. The Beach court concluded
that the student’s “situation was not distinguishable from that of the other students on
the trip” and thus the instructor had no duty to “walk [her] to her tent and see that she
was down for the night.” Id. at 416. Here, Cope’s situation was distinguishable from that
of the other students on the UVSC Ballroom Dance Tour Team.

¶22 Similarly, in Orr v. Brigham Young University, 960 F. Supp. 1522 (D. Utah 1994),
aff’d without published opinion, 108 F.3d 1388 (10th Cir. 1997), a Utah federal district court
applied Utah law in determining whether a private university owed an injured football
player an affirmative duty of care. The court rejected the player’s claim of “a special
relationship with the university by virtue of his football player status.” Id. at 1529.
Specifically, the court rejected the football player’s claim that, “by playing football for
BYU, he became in essence a ward of the university without any vestige of free will or
independence.” Id. at 1528.5 The court relied on the distinction between “‘a large
undifferentiated group, such as a university student body,’” and “‘narrow classes of
individuals who for some reason were distinguishable from the mass.’” Id. (quoting
Higgins v. Salt Lake County, 855 P.2d 231, 236–37 (Utah 1993)). Although the court found
no special relationship that would create a duty to act, the court acknowledged that
“when training . . . services are provided and then negligently performed, liability could
result under existing theories of negligence.” Id.6 Here, Cope does not claim that by
dancing on the UVSC Ballroom Dance Tour Team she became in essence a ward of the
university; rather, she alleges that she was injured when training services were being
provided in such a way as to create a special relationship. See Webb v. University of Utah,
2005 UT 80, ¶¶ 14, 16, 125 P.3d 906 (noting that the commission of an affirmative act by
a governmental actor does not create a duty by itself, “but instead provides relevant

5. We read the court’s opinion as attributing this hyperbole to the plaintiff in the case; it
does not state the legal test in Utah.

6. The court did not explain this reference to “existing theories of negligence.” See Orr
v. Brigham Young Univ., 960 F. Supp. 1522, 1528 (D. Utah 1994).

20110147‐CA 10
information about whether a special relationship existed between the governmental
actor and the injured party”).

¶23 UVSC cites several cases holding that a duty of reasonable care arises only when
a coach or instructor increases the risk of harm beyond that inherent in an activity. See,
e.g., Bushnell v. Japanese Am. Religious & Cultural Ctr., 50 Cal. Rptr. 2d 671, 673–74 (Cal.
Ct. App. 1996) (holding that a judo student could recover only for an instructor’s
reckless or intentional conduct, noting that duty sounding in negligence extended only
to an instructor’s actions that increase the risk inherent in the activity); Crace v. Kent
State Univ., 2009‐Ohio‐6898, ¶¶ 13–15, 924 N.E.2d 906 (Ohio Ct. App.) (applying same
standard to a university cheerleading instructor). However, the existence of a duty and
the appropriate standard of care are two distinct questions. See Madsen v. Borthick, 850
P.2d 442, 444 (Utah 1993) (“In establishing the existence of a duty, the same analysis is
used for both a negligence and a gross negligence claim. The difference between the two
lies in the degree of care to which the defendant is held.”). We believe the concerns
raised in the cases cited by UVSC are best addressed by adopting an ordinary standard
of reasonable care. See Kahn v. East Side Union High Sch. Dist., 75 P.3d 30, 51–52 (Cal.
2003) (Kennard, J., concurring and dissenting) (stating that the risk of harm inherent in
active sports could be accounted for by holding high school coaches to a standard of
ordinary care).

¶24 A duty of reasonable care generally encompasses a duty not to create an
unreasonable risk of harm. See Reighard v. Yates, 2012 UT 45, ¶¶ 29–31, 285 P.3d 1168;
B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 21 & n.11, 275 P.3d 228. What may be reasonable
in one setting may not be reasonable in another. Ordinarily participants cannot
reasonably expect instructors or coaches to insulate them from risks inherent in an
activity in which they voluntarily engage. See, e.g., Kahn, 75 P.3d at 38–43 (majority
opinion). But whether, under the circumstances of this case, Instructor created an
unreasonable risk of harm, increased the risk inherent in competitive ballroom dancing,
or was otherwise unreasonable in his acts and omissions is a question for the trier of
fact.

¶25 UVSC also argues that policy considerations weigh against imposing a duty of
care on coaches of physically strenuous activities. If a duty of reasonable care is
imposed, UVSC argues, instructors will hesitate to challenge participants to excel. See
generally id. (holding that imposing a general duty of reasonable care would chill

20110147‐CA 11
vigorous participation in sporting events). Such policy considerations are appropriate
when considering whether a special relationship exists. See Higgins, 855 P.2d at 236–37.
Courts must consider “the practical impact that finding a special relationship would
have,” including whether the duty is “realistically incapable of performance or
fundamentally at odds with the nature of the parties’ relationship.” Id. at 237; Beach, 726
P.2d at 418.

¶26 We do not believe our application of the duty outlined in Webb to the facts of this
case is either incapable of performance or fundamentally at odds with the
instructor–student relationship. Participants in sports or extra‐curricular programs look
to the instructor for direction as they acquire the skills needed to compete. They trust in
the instructor’s training, expertise, and appreciation of the risks involved. Participants
expect instructors to challenge them to excel, but they also expect those instructors to
act reasonably in doing so. Furthermore, the standard of reasonable care mitigates the
policy concerns raised by UVSC: it leaves “coaches free to challenge or push their
students to advance their skills level as long as they do so without exposing the student
athletes to an unreasonable risk of harm.” See Kahn, 75 P.3d at 52 (Kennard, J.,
concurring and dissenting).

¶27 We conclude that the undisputed facts in this case establish the existence of a
special relationship and thus a duty of reasonable care on the part of Instructor. We
caution that the existence of this duty does not resolve questions of breach and
proximate cause. Whether the risks involved for these particular dancers in performing
this particular lift without spotters would cause a reasonable dance instructor to take
particular precautions to protect Cope from a fall is a question of breach. And, if
Instructor failed to act reasonably in this regard, whether that failure proximately
caused Cope’s fall and injuries is a question of causation. See Jeffs, 2012 UT 11, ¶ 26.
“Both of those questions are case‐specific and fact‐intensive, and they are not before us
on this appeal.” Id. ¶ 28.

CONCLUSION

¶28 Because the trial court’s denial of UVSC’s first motion for summary judgment
was not a final order, the trial court did not abuse its discretion by reconsidering and
revising it. Because the facts, considered in the light most favorable to Cope, establish a

20110147‐CA 12
special relationship, the trial court erred in granting UVSC’s renewed motion for
summary judgment. We therefore affirm in part and reverse in part and remand for
further proceedings.

____________________________________
J. Frederic Voros Jr., Judge

‐‐‐‐‐

¶29 I CONCUR:

____________________________________
Michele M. Christiansen, Judge

‐‐‐‐‐

DAVIS, Judge (concurring in part and dissenting in part):

¶30 I concur with the majority as to part I but reject both the majority’s analysis and
its conclusion with respect to part II. I believe that the rule articulated by the majority
concerning the existence of a special relationship between university students and their
instructors significantly broadens the duty of governmental actors in this setting and is
inconsistent with the supreme court’s holding in Webb v. University of Utah, 2005 UT 80,
125 P.3d 906.

¶31 In Webb, the supreme court gave specific guidance as to when a special
relationship arises between university students and their instructors: “[A] special
relationship may be created ‘by governmental actions that reasonably induce
detrimental reliance by a member of the public.’” Id. ¶ 26 (quoting Day v. State, 1999 UT
46, ¶ 13, 980 P.2d 1171); see also Beach v. University of Utah, 726 P.2d 413, 415 (Utah 1986)
(explaining that special relationships “generally arise when one assumes responsibility
for another’s safety or deprives another of his or her normal opportunities for self‐

20110147‐CA 13
protection” (citing Restatement (Second) of Torts § 314A (1964))). Detrimental reliance
giving rise to a special relationship between an instructor and a student is induced
when (1) the instructor “alter[s] the academic environment” from a “benign academic
setting” in such a way that the student is subjected to peril beyond the “identifiable and
obvious danger” the student assumed by participating in the particular academic
setting and (2) a reasonable “student would understand that [her] academic success,
measured either by the degree of knowledge acquired or by the positive impression
made on the instructor, turned on whether” she ignored an obvious danger in order to
fulfill a directive of the instructor. See Webb, 2005 UT 80, ¶¶ 23–27.

¶32 The majority rejects the narrow, fact‐dependent rule articulated in Webb in favor
of a much broader rule recognizing a special relationship whenever a university teacher
or coach gives a directive to a student “within the scope of the academic enterprise.” See
supra ¶ 17.1 It then imposes a duty of reasonable care on instructors giving any such
course‐related directives, redefining the risk and control analysis articulated in Webb by
asserting that it pertains to the breach of the instructor’s duty rather than to the
existence of the duty itself.

1. The majority relies on language from Webb emphasizing the relationship between the
directive and the academic enterprise of the class, see Webb v. University of Utah, 2005 UT
80, ¶ 27, 125 P.3d 906, in support of its assertion that any directive that is “within the
scope of the academic enterprise” gives rise to a special relationship. However, the Webb
court explicitly clarified what it meant by a directive “relat[ing] directly to the academic
enterprise of the class,” stating,
By this we mean [whether] it is . . . reasonable to believe that
any student would understand that his academic success,
measured either by the degree of knowledge acquired or by
the positive impression made on the instructor, turned on
whether they abandoned all internal signs of peril to [engage
in] a potentially hazardous [action] . . . .
Id. This clarification indicates that the Webb court intended a much narrower rule than
that articulated by the majority in this case. Furthermore, it confirms that the existence
of a special relationship does turn, at least to some degree, on the risk implicated by the
instructor’s directive and the control the instructor exercised over the student.

20110147‐CA 14
¶33 The majority justifies this broad rule by relying on the supreme court’s holding
in B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228, in which it explained that the
existence of a duty must be decided “on a categorical basis for a given class of tort
claims,” see id. ¶ 23. The majority implies that if the existence of a special relationship
turns on the specific risks implicated by the instructor’s directive, then the rule is not
appropriately categorical. As an initial matter, I would observe that it is not our
prerogative to reject a rule set down by the supreme court in one of its decisions based
on our own contradictory interpretation of language in another of its decisions. See
generally State v. Newland, 2010 UT App 380, ¶ 10 n.5, 253 P.3d 71 (“[U]nder principles of
vertical stare decisis, we are prohibited from departing from the precedent established
by our supreme court.”). In any case, I believe the majority’s approach takes the Jeffs
rule beyond its intended scope.

¶34 The Jeffs court explained that in determining whether one individual has a duty
to another, we begin with the general rule that “we all have a duty to exercise care
when engaging in affirmative conduct that creates a risk of physical harm to others.”
2012 UT 11, ¶ 21. We then examine other factors “in determining whether to carve out
an exception to the general rule,” including “the foreseeability or likelihood of injury,
public policy as to which party can best bear the loss occasioned by the injury, and
other general policy considerations.” Id. (citations and internal quotation marks
omitted). These factors must be considered “at a categorical level” so that we can
determine duty “as a matter of law and on a categorical basis for a given class of tort
claims.” Id. ¶ 23. Thus, the Jeffs court determined that it would be inappropriate to carve
out an exception for healthcare providers prescribing drugs that would make “the duty
question . . . turn on the specific combination of pharmaceuticals . . . prescribed or the
particular injury that it allegedly caused.” Id. The court explained that so long as there
were any circumstances within “[t]he relevant category of cases consist[ing] of
healthcare providers negligently prescribing medications to patients who then injure
third parties,” a duty should be imposed on all healthcare providers within that
category. Id. ¶¶ 27–28. The fact that the negligent prescription of certain, more
innocuous medications “may very well involve little foreseeable risk of injury” was
irrelevant to the question of duty and only appropriately considered in the context of
the more “case‐specific and fact‐intensive” issues of breach and proximate cause. See id.
¶ 28.

20110147‐CA 15
¶35 If we were considering whether to carve out an exception to the general rule
imposing “a duty to exercise care when engaging in affirmative conduct that creates a
risk of physical harm to others,” as the Jeffs court was, see id. ¶ 21, I might be inclined to
agree with the majority that a rule relying on the nature of the risk or degree of control
is not sufficiently categorical. However, the question we must resolve in this case is not
whether Instructor is subject to an exception—we know that he is because the public
duty doctrine categorically immunizes governmental actors, such as Instructor, from
liability except in specified narrow circumstances. See Webb v. University of Utah, 2005
UT 80, ¶¶ 11, 16, 125 P.3d 906 (“As a matter of public policy, we do not expose
governmental actors to tort liability for all mishaps that may befall the public in the
course of conducting their duties.”). Rather, we must determine whether Instructor
removed himself from that exception by “creat[ing] a special relationship, where one
did not previously exist, by [his] acts,” id. ¶ 14.

¶36 Although “duty is a purely legal issue for the court to decide,” Normandeau v.
Hanson Equip., Inc., 2009 UT 44, ¶ 17, 215 P.3d 152, “factual issues may bear on . . .
issue[s] . . . relat[ing] to duty,” id. ¶ 21. For example, in Cruz v. Middlekauff
Lincoln–Mercury, Inc., 909 P.2d 1252 (Utah 1996), the supreme court considered whether
a car dealership had a duty to a third party who was injured when someone stole a car
from the dealership after the keys were left in the ignition. See id. at 1253. The
categorical rule regarding duty in that circumstance is that “[o]ne having a lawful right
to the possession of property, such as an automobile, although negligent in leaving the
keys therein, has no duty to respond in damages caused by a thief who takes it and runs
into a third party’s vehicle.” Id. at 1255 (citation and internal quotation marks omitted).
But the court explained that where “special circumstances” exist that would have
“increase[d] the foreseeability of risk to others” by putting the defendant “on notice that
its cars were targeted by thieves,” a duty may nevertheless be imposed. Id. at 1255–57.
Thus, the court determined that the disputed existence of such circumstances was a
question of fact bearing on the applicability of an exception to the categorical rule
imposing no duty, and that the dispute precluded the court from granting a motion to
dismiss. See id. at 1257. Similarly, the issue of whether a university instructor’s actions
give rise to a special relationship is a question of fact bearing upon the legal issue of
whether an exception to the public duty doctrine applies.

¶37 In a case such as Jeffs, where the categorical rule imposes a duty, it is a simple
matter to weigh factual considerations that might ultimately relieve the defendant of

20110147‐CA 16
liability as part of the breach or proximate cause analysis. However, in a case such as
Cruz, and indeed, in the case at hand, where the categorical rule states that a duty does
not exist, factual considerations, such as the risk and control factors relevant to the
existence of a special relationship, that might nevertheless make imposition of liability
appropriate must be considered as part of the duty analysis or not at all, since
resolution of the duty issue disposes of the claim. By adopting an ordinary standard of
reasonable care in any circumstance where a university instructor issues a directive
within the scope of the academic enterprise, the majority’s approach would have us
derive a duty from Instructor’s mere failure to observe a standard of care.2 In my view,
Instructor’s duty to adhere to such a standard must first be established by determining
whether a special relationship arose, an analysis which, under Webb, implicates the risk
and control factors discussed above, see supra ¶ 31.

¶38 Although an analysis of duty in the context of university instructors may, at
times, require the factfinder to make determinations relating to the fact‐dependent
special relationship issue, see Normandeau, 2009 UT 44, ¶ 21; Cruz, 909 P.2d at 1257, I
believe that here, as a matter of law, Cope has failed to allege sufficient facts to give rise
to a special relationship.3 “[A] college instructor who has no special relationship with

2. And by doing so, the majority’s approach significantly undercuts the protection
afforded to state university instructors under the public duty doctrine.

3. My reasoning differs from that of the trial court. See generally Bailey v. Bayles, 2002 UT
58, ¶ 10, 52 P.3d 1158 (“It is well settled that an appellate court may affirm the judgment
appealed from if it is sustainable on any legal ground or theory apparent on the record,
even though such ground or theory differs from that stated by the trial court to be the
basis of its ruling or action . . . .” (citation and internal quotation marks omitted)).
Unlike the trial court, I do not consider the fact that Cope and Partner had practiced the
lift during the week preceding the accident to be relevant to the special relationship
analysis because they had never practiced the lift correctly. Viewing the facts in the light
most favorable to Cope, it is apparent that the attempt to perform the lift over the left
shoulder was both different and more difficult than performing it over the right
shoulder. Thus, I agree with Cope that it was risky for her and Partner to have
attempted it for the first time without spotters regardless of whether they had practiced
it incorrectly during the previous week. Furthermore, I do not agree with the trial court
(continued...)

20110147‐CA 17
her class members in a benign academic setting can create a special relationship by
altering the academic environment.” Webb, 2005 UT 80, ¶ 23. In order to determine
whether the academic environment has been altered, however, we must consider the
nature of the academic environment in its “benign” state. The academic environment of
the ballroom dance team in its benign state involved the students performing lifts. As
Cope’s expert witness pointed out in her deposition, falls are an inherent risk of doing
all lifts. Thus, Instructor’s directive that Cope and Partner practice the lift over the left
shoulder did not itself require Cope to confront any danger beyond the inherent risk
she assumed by participating with the dance team. See generally Orr v. Brigham Young
Univ., 960 F. Supp. 1522, 1528 (D. Utah 1994) (determining that a student’s “[v]oluntary
association with a collegiate athletic team” does not itself give rise to a special
relationship between the student and the college), aff’d without published opinion, 108
F.3d 1388 (10th Cir. 1997). It was the increased danger of not using spotters while re‐
learning the lift that allegedly gave rise to a special relationship in this case, not the risk
involved in the lift itself.

¶39 But there is nothing in the facts to suggest that Instructor’s directive included,
either explicitly or implicitly, a requirement that Cope and Partner practice without
spotters. Instructor told Cope and Partner only that they must practice the lift correctly,
not that they must practice it without spotters. And there is nothing to suggest that
Instructor would not have permitted the dancers to use spotters had they requested
them or even to suggest that Cope did not request spotters because she felt that she
lacked the autonomy to make such a request.4 Thus, it was not necessary for Cope and
Partner to ignore internal signs of peril and confront an obvious danger in order to

3. (...continued)
that Cope autonomously rejected an “option” to decline to perform the lift and have it
cut from the routine because she could have reasonably expected that being the cause of
having the “cool” lift cut from the routine would leave a negative impression on
Instructor and affect her position on the team.

4. In fact, despite the significant variation in the lift, Partner stated in his deposition, “I
didn’t think I would need to ask for spotters because I know that any time previous to
that I was able to control the lift and to sit her down.”

20110147‐CA 18
fulfill Instructor’s directive; they could have simply asked for spotters.5 Without
evidence that Instructor explicitly directed Cope and Partner that they were required to
attempt the corrected lift without spotters, or that Cope’s academic success turned on
whether she re‐learned the lift without spotters, the undisputed facts are insufficient to
demonstrate that a special relationship arose between Instructor and Cope.6 Cf. Webb,
2005 UT 80, ¶ 27 (determining that an earth science instructor’s directive that students
walk on icy sidewalks while examining fault lines “did not relate directly to the
academic enterprise of the class” and that it was unreasonable “to believe that any
student would understand that his academic success . . . turned on whether they
abandoned all internal signals of peril to take a particular potentially hazardous route to
view fault lines”).

¶40 Because the facts considered in the light most favorable to Cope fail to establish a
special relationship between Instructor and Cope, I believe that the trial court correctly
granted UVSC’s renewed motion for summary judgment. Thus, I would affirm.

____________________________________
James Z. Davis, Judge

5. While Instructor may have been in a better position to determine whether spotters
were appropriate under the circumstances, and his failure to provide Cope and Partner
with spotters may have been contrary to industry standards for safety, unless and until
a special relationship arose, Instructor had no duty to provide spotters, no matter how
negligent it may have been for him to fail to do so.

6. I also find the majority’s reliance on the fact that Instructor’s directive was specific to
Cope and Partner, rather than to the entire class, to be misguided. It is the nature of the
directive that makes it relevant, not the number of students to whom it is directed. The
fact that Cope and Partner’s error made it necessary for them to receive individual
instruction does not, in and of itself, give rise to a special relationship between them
and Instructor.

20110147‐CA 19