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Show THI EIGHT AGE DAILY FRIDAY, SEPTEMBER 17, 1971 RECORD - i In The Supreme Court Of The State Of Utah dependt upon whether his conduct has been negligent, reckless or ultrahazardous, Where, however, the invasion is intentional, liability depends upon whether the invasion is unreasonable The illustrations following the cited text make it clear that negligence at the base of any cause of action. is .... .... could believe from the evidence in the instant case that the defendant intentionally directed the water onto the plaintiff's land. The question of negligence therefore must be presented to the jury by proper instructions. No one Even if I could assume that negligence. was not to be a factor in4cid.-in-g this case, 1 would still dissent from the majority holding. If there were a defect in the construction of the road and parking lot, it was latent in that ' until a rain came ''which was heavy enough to wash the gravel into the drain, there was no defect, at all. It is difficult for me to see how one can foresee a rain of unprecedented proportions far enough in advance to require a delay in putting gravel on a road. It seems difficult enough for professional forecasters to foresee even an ordinary rain for any length of time in the future. Since the defect, if one there was, was latent, immunity from suit . as cited in the prevailing was retained by the very wording of Sec. 63-30- -9, opinion. l would reverse the case and direct the trial court to enter judgment The least that should be done would be to reverse and re- for the defendant. mand for a new trial. CROCKETT. to which the jury should have been permitted to determine the'facts. . one of such violent and unprecedented proportions that it was not something which the defendant in Reasonable care arid.prudence should have been required to foresee and guard The first is whether this particular storm was against. The other is correlated thereto: whether the defect in the drainage, if any, was a "latent defect, " i. e. , one which was not Readily observable upon inspection, and thus one for which immunity was not waived (Sec. 63-30- IT C.A. -9. 1953). These issues should be determined by the jury under proper instructions. I would therefore agree with the second alternative suggested by Justice' Ellett: to remand for a new trial, but upon the issues as stated herein. (Emphasis added. ) 1. See statement in Watkins v. Utah Poultry & Farmers Cooperative, 111 Utah 459,. 251 P. 2d 663. i 1. Armstrong v. Francis Corp. , 20N.J. 320, 120 A. 2d 4, 59 A.L.R,2d 413, 418 (1986); also see 59 A. L. R. 2d, Anno: Surface Waters -- Drainage, Sec. 7, pp. 434-43- 7; Sachs v. Chiat, 281 Minn. 540, 162 N. W. 2d 243, 246-247 (1968). 2. 17 Utah 2d 398, 400, 413 P. 2d 300 (1966). 3. At page 936 of 24 Minn. L. R. 24 Minn. L. R. 4. ' At page 939. 5.Also sedProsser, Law of Torts (3d Ed. ).pp. 603-60- 4. 6. Restatement of the Law, Torts, Chap. 40, Scope, and Introductory Nob p. 220. 7. Prosser, Law of Torts (3d Ed.), Sec. 88, p. 595. Justice: (Dissenting) Bankruptcies regret that I find myself unable to agree with the majority decision which affirms a jury verdict for a property damage which must have been distressing indeed to the plaintiff. Nevertheless, it does not necessarily follow that someone else must pay merely because a It is not without some 894 - Wage Earner Plan - Lee Rueben. Hatch, 234 E 500 N, Bntfl; Traffic Mgr, Des pharma-cuetic- al The burden misfortune has befallen the plaintiff which inspires sympathy. a can be shifted to another only if he has been guilty of wrongful invasion of he plaintiff a., rights which caused the damage. Our concern should be not jnly with the immediate controversy, but whether the allowance of redress not properly grounded in law may open the "floodgates" to other litigatioii of the same character; and it is thus important that such a controversy bd resolved by a court, or by a jury under correct instructions as to the law ipplicable thereto. A distinction should be pointed out between the two bases upon which plaintiff's claim against the University for damage to her property might be predicated: (1) that it resulted from an intentional invasion of her property rights or (2) that it resulted from the defendant's negligence. As to (1) above: I recognize the accuracy of the rule quoted in die maiaopinioh from Dean Prosser relating to liability for the type of injury herein dealt with or an invasion of another's land which is: intentional merely in the sense that the defendant uas created or continued the condition causing the nuisance with full knowledge that the harm to the plaintiff's Interest is substantially certain to follow. . . . This statement is essentially the same as Restatement of Torts, Sec. 825: ' invasion of another's interest in the use and enjoyment of land is intentional when the actor (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially certain to result from his conduct. The comments to Sec. 825 point out that "It is not enough to make an invasion I intentional that the actor realizes or should realize that bis conduct involves, a serious risk or likelihood of causing such an invasion. " Comment b. which deals with continuing or recurrent invasions, states, "In such cases the first invasion resulting from the actor's conduct may be either intentional.or unintentional, but when the conduct is continued after the actor knows that the invasion is resulting from it, further invasions are intentional." An essential of the factual foundation for the plaintiff's claim was that pipe which was used to drain the area was inadequate. Because there had been a previous flooding condition, of which the University was aware as indicated, inter alia, by Pres. Fletcher's letter, there was a.basis ( '21-in- Wage Earner Plan - Barbara Lee Hatch, 234 E 500 N, Bntfl; Lunchroom aide, Davis Co Brd of Ed; Liab$30652.21; Assets $3445.; Exempt $270. 896 2655 ch in die evidence for giving instructions covering an intentional invasion. However, the difficulty is that the instructions given did not clearly and accurately cover this theory for recovery. They did not direct .the jury's attention to the question whether the defendant had "knowledge that the harm to plaintiff's interests was substantially certain to follow" as required by the rule quoted above. However, it did tell them that before they could find the University liable they must first find that: The defendant knew, or in the exercise of reasonable care should have known of the existence of either defective condition, if any (in either the culvert or other. public improvement). The fault in that instruction is not only that it fails to conform to the rule hereinabove referred to aqd approved in the main opinion the requirement that the defendant must be found to have created or continued the condition with knowledge that harm is "substantially certain to follow. " Moreover, by the use of the emphasized phrase, "or in the exercise of reasonable cre should have known, " it imports an element included ia the concept of negligence. Having done so, I think it is regrettable that the trial court refused to suhmit the issue of the defendant's negligence, and give the properly Ve- quested instructions, including defenses, relating to it. On that matter I am in agreement with what is said in Justice Ellett's dissent in dearanstratiag that-thof the defendant's negligence should have been submitted to the question jury. In view of the fact that the judgment is affirmed by the majority deci- sion, it is perhaps unnecessary in this separate dissent, but for whatever vlu li may have, I further observe that in connection with a trial, on the question of negligence, it is my opinion that therewere qggr Aaos with respect - Lorraine Edwards Seager, 2940 S, SLC; Unempl; E Liab $9368.87; Assets $1150.; Exempt $1000. - Norman Clyde Dinsdale, 938 E 1050 N, Ogd; Mgr, Knox McDaniel Co; Liab $4899.76; Assets $1360.; Exempt $1360. 897 - Mary Jane Dinsdale, 938 E 1050 N, Ogd; Hswf; Liab $4632.37; Assets $1350.; pt $1350. Exem- 899 2nd An thie - 895 898 . . . Liab 30652.21; Co; Assets $3445.; Exempt $3270. - Ralph Joe Mestas, 55 E I - Jandi Xlene Diane Fik-sta- d Swenson, 1046 Crandall Av SLC ; Clerk, Bradshaw Auto Farts; Liab $5962.09; Assets 900 $371.59; Exempt $115. Jay Fredrick Meadows, Statice Cr, Sandy; Cook, Inc; Liab $22835.63; Assets $350,59; Exempt $223.59 i 902 - Lou Ann Meadows, 10428 Statice Cr, Cashier, Sandy; Dee's Inc; Liab $22835.63; Assets $350.59; Exempt $85. 903 - Owen Fred Hoffman, 1016 Yale Ave, SLC; Night Wtchmn, Wstmnstr, College; Liab $8182. 89; Assets $425.; Exempt none 904 - Lionel Timothy, Rt 1 106, Hlpr; Aux Op, Ut & Light; Liab $14741.51; Assets' $2842.37; Exempt $2800. Box Power 905 - Robert Mikesell,4260 Fainting Cont; Liab $65703.70; Assets S Wm 1400 E, SLC; Gen $16268.12; Exempt $6778.12 - Noel Anthony Sivertson, Beacon, Lytn; Elec Ord Spec, Hardy Scale Co; ),iab $8586.35; Assets $1925.; 906 109 Exempt $1280. 907 - Charles David Larsen, 1025 33rd St, Ogd; Utlity Svc-m- n, Ogd City Corp; Liab $5232.81; Assets $910; Exempt $150. - 908 Wm Wage Earner Flan - Joel Wilcox, 127 N 500 E, Asst, Hercules; Liab $6009.90; Assets $1525.; Lehl; Eng Exempt $850. 909 - David Edward Haggard, 5055 S, SLC; Truck Prod Co; Liab Concrete Drvr; Assets $3215.36; $606.; Exempt $606. 4906 Assets $7795.36; $250. Exempt 911 - Donald Oscar Laymon, 4360 W 5215 S,Krns; Swtchmn, Un Fac RR; Liab $27515.62; Assets $10094.; $5082. Exempt 912 - Darlene Saunders. Laymon, 4360 W 5215 S, Kms; Hswf; Liab $27515.62; Assets $9859.; Exempt $5082. 913 - Lloyd Roel Fena, 150 S Temple, SLC; Laborer, St Marks Hos; Liab $3640.40; Assets $100.; Exempt $50. E 914 - Donald Calvin Kirkpatrick 5090 Emigration Cyn; SLC; Copy Boy, SL Trlb; Liab $2518.31; Assets $251.; Exempt $228. 915 - Brenda Foy Adcox, 350 W . 5000 S, Ogd; Tax Exam; US Gov; Ave, Apt A, Mdvl; Elec app, J D Assoc; Liab $7476.53; Assets $49; Exenpt $49. 901 10428 Dee'B 910 - Louise McDaniel Johnson, 889 Woodshire Ave, Mur; Surg Tech, LDS Hos; Liab $32097.51; Liab $3249.65; Assets $384.50; Exempt $374.50 916 - David Edward Albo, 835 Rsvlt Ave, SLC; Bar Tender, Shamrock Lounge; Liab $7611.93 Assets $98.; Exempt $98. 917 - Joseph Edward Favich Jr, 3004 Imperial St, SLC; Const Wrkr, William Morrison; Liab $200,263.47; Assets $75.; Exempt $75. 888 Ronald Kaye Bromley, 3620 S Jane Cr, SLC; Mech, Wstrn' Rd Mach Co; Liab $23522.08; Assets $1018.; Exempt $236.25 889 - Deanne Marie Brito, 629 Fairview Cr, Tooele; Sis Clerk Jack L Cox; Liab $13038.82; Assets $2676.64; Exempt $2231. 64. 890 - Norman Glen Mecham,4844 S 4015 W,Krns; Hvy Duty Mech, Ut St Rd Comm; Liab $24306.81; Assets $1349.68; Exempt $1434.68 - Allen Read Burgess, 86 Str 26, SLC; Mgt Trainee, Grand Central Inc; Liab $9870. 891 B 80; Assets $1395.35; Exempt $80. 892 - Wage Earner Plan - Kayle Jms Shaw, 530 E Mllcrk Wy, Bntfl; Truck Drvr, C H Dredge Co; Liab $21694.84; Assets $6202.; Exempt $295. 893 - earner Plan: Searle Wage Ralph Daley, 25 E 200 N, NSLC Killing Floor Butcher, Mdvl Packing Co; Liab $38873.93; Assets $5215.; Exempt $5025. Water Service Agreements Elmo Birch i 604 a 3065 Harold 2210 A E W Mercyl Charles Ml lbs rt Trippj OM S 3124--26 B A1 S 3605 S ?00 S Klrwi 558 Velleri C 1 S 840 H S OM 700 S 1000 342? S E |