Thomas v. San Juan BoE

----ooOoo----

Everett Thomas,
Plaintiff and Appellant,

v.

Board of Education
of the San Juan School District,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990232-CA

F I L E D
October 28, 1999
  1999 UT App 314 -----

Seventh District, Monticello Department
The Honorable Bryce K. Bryner

Attorneys:
Peter C. Collins and Eric P. Swenson, Salt Lake City, for Appellant
Jan Graham, Brent A. Burnett, Barbara E. Ochoa, and Nancy L. Kemp, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

Appellant appeals the trial court's order granting appellee's motion for summary judgment. We affirm.

Appellant asserts that the trial court erred in ruling that appellee owed appellant no duty of care. Specifically, appellant contends that appellee owed him both a general duty of care to maintain its vehicles in a safe operating condition, and a specific duty arising out of a special relationship between Ms. Benallie and him to protect him against his own misguided actions. We disagree.

Appellant fails to demonstrate that appellee's duty to maintain the Suburban in a safe operating condition was designed to protect him under these circumstances. Specifically, appellant fails to demonstrate that the harm he suffered was foreseeable. "'The existence of a duty and reasonable care depends in part on the extent to which a reasonable person can foresee that his acts may create a significant likelihood of harm to others.'" See AMS Salt Indus., Inc. v. Magnesium Corp. of Amer., 942 P.2d 315, 321 (Utah 1997) (citation omitted). There is no evidence that a reasonable person in appellee's position could foresee that allowing Ms. Benallie to drive the "defective" Suburban to appellant's school would create a significant likelihood that appellant would be injured in the manner that he was. It was foreseeable that the Suburban's tendency to vapor lock could cause harm to its occupants, other drivers or pedestrians if it stalled while on the road, but not that an unknown person would be injured while voluntarily attempting through unsafe means to restart it. See, e.g., Mitchell v. Fidelity & Cas. Co., 488 So. 2d 1089 (La. Ct. App. 1986) (stating that defendant's insured's duty to maintain control of vehicle did not run to plaintiff who was injured while voluntarily helping the insured remove car from ditch, rather, duty was designed to protect pedestrians, motorists, and property directly damaged by a breach of the duty).

Further, appellant fails to demonstrate that a special relationship existed between appellee and him giving rise to a duty on the part of appellee to warn him against or prevent him from priming the carburetor in the manner he had chosen. "Ordinarily, a party does not have an affirmative duty to care for another." Beach v. University of Utah, 726 P.2d 413, 415 (Utah 1986). "'In cases where the alleged negligence consists of a failure to act, the person injured by another's inaction must demonstrate the existence of some special relationship between the parties creating a duty on the part of the latter to exercise such due care in behalf of the former.'" Turnbaugh v. Anderson, 793 P.2d 939, 944 (Utah Ct. App. 1990) (quoting DCR, Inc. v. Peak Alarm Co., 663 P.2d 433, 435 (Utah 1983)). A special relationship "generally arise[s] when one assumes responsibility for another's safety or deprives another of his or her normal opportunities for self-protection." Beach, 726 P.2d at 415. Appellant has presented no evidence to suggest that appellee, through Ms. Benallie or otherwise, took responsibility for his safety or denied him his normal opportunities for self-protection.

The trial court did not err in ruling as a matter of law that appellee owed no duty of care to appellant and properly granted appellee's motion for summary judgment. Affirmed.
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Norman H. Jackson, Judge