Francis v. State

2010 UT 62
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Kevan Francis and Rebecca Ives, 	No. 20090256
individually, the natural parents
of Samuel Ives, deceased; and
Tim Mulvey and Rebecca Ives,
individually and on behalf of
their minor child Jack Mulvey,
Plaintiffs and Appellants,
v.
State of Utah, Utah Division of 	F I L E D
Wildlife Resources; and John Does I-X,
Defendants and Appellees. 	November 23, 2010
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Fourth District, Provo Dep’t
The Honorable Gary D. Stott
No. 080401029
Attorneys: 	Allen K. Young, Provo, Jonah Orlofsky, Chicago, IL,
for plaintiffs
Mark L. Shurtleff, Att’y Gen., Reed M. Stringham,
III, Peggy E. Stone, Asst. Att’ys Gen., Salt Lake
City, for defendants
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NEHRING, Justice:
INTRODUCTION
¶1 	A black bear attacked and killed eleven-year-old Samuel
Ives while he was sleeping in a tent with his family during a
camping trip in American Fork Canyon. 	Earlier that morning, the
Utah Division of Wildlife Resources (the “DWR”) had been alerted
to a bear attack at the same location, and state officials had
conducted an unsuccessful search for the animal for several hours
before Samuel and his family arrived at the campsite. 	The DWR
did not notify potential users of the campsite about the attack
or request the United States Forest Service (the “USFS”) to close
the area where the attack had occurred.

1 Utah Code Ann. § 63G-7-301(5)(c) (Supp. 2010). 	The
Legislature renumbered Title 63 in 2008; because there were no
substantive changes made to the sections at issue in this case,
we cite to the renumbered sections.
2 Id. § 63G-7-301(5)(k).
3 “Because we are reviewing a grant of a motion for judgment
on the pleadings, this court accepts the factual allegations in
the complaint as true; we then consider such allegations and all
reasonable inferences drawn therefrom in a light most favorable
to the plaintiff. 	We affirm the grant of such motion only if, as
a matter of law, the plaintiff could not recover under the facts
alleged.” 	Healthcare Servs. Grp., Inc. v. Utah Dep’t of Health,
2002 UT 5, ¶ 3, 40 P.3d 591 (internal quotation marks and
citation omitted). 	We recite the facts here accordingly.
No. 20090256 	2
¶2 	Samuel’s heirs sued the State of Utah and the DWR
(collectively, “the State”) for negligence. 	In response, the
State argued that it was shielded from suit under the
Governmental Immunity Act’s “permit” exception 1 because Samuel’s
death arose out of, or in connection with, the plaintiffs’ claim
that the State negligently failed to request the USFS to issue an
order closing the area where the bear attack had occurred.
Because the State conceded negligence for the purposes of the
motion, the district court did not address whether the State owed
Samuel a common law duty of reasonable care; the claim also went
unaddressed in the State’s arguments to the court. 	Yet, whether
Samuel was owed a common law duty of reasonable care became the
centerpiece of the State’s quest for affirmance on appeal. 	The
State also argued for the first time on appeal that it was immune
under the Act’s “natural condition” exception. 2
¶3 	We hold that the district court erred when it ruled
that the State was immune from suit under the Act’s permit
exception. 	We also decline to affirm the district court on
alternate grounds proffered by the State.
BACKGROUND3
¶4 	June 17, 2007, was Father’s Day. 	That evening, the
Ives family decided to camp at an unimproved campsite
approximately one mile above the Timpanooke Recreation Area in
American Fork Canyon. 	The campsite is located on land that is
owned and controlled by the federal government, and the federal
government is the only entity that can order the land’s closure,
even temporarily.

4 Utah Code Ann. § 63G-7-301(5)(c).
3 	No. 20090256
¶5 	Earlier that morning, the same campsite was occupied by
other campers, including Jake Francom. 	At about 5:30 a.m., a
black bear entered the campsite and raided coolers owned by the
campers, bumped Mr. Francom while he was asleep in his tent, and
ripped open the tent. 	Mr. Francom and his camping companions
drove the bear from the campsite without being injured.
¶6 	Mr. Francom immediately reported the attack to the DWR,
both directly and through other agencies. 	The DWR determined
that the bear was a “Level III nuisance” and concluded that it
needed to be destroyed. 	Agents of the DWR and the federal
government then took up a four-and-a-half-hour effort to locate
the bear. 	By approximately 4:00 p.m., the agents had not found
the bear and decided to resume the search the next day. 	Although
the bear was still at large, the DWR agents did not place any
notices at the campsite or otherwise attempt to notify potential
users of the campsite about the bear attack. 	Nor did the DWR
agents request that the USFS close the campsite.
¶7 	Shortly after the agents left the campsite, the Ives
family entered and settled in for the evening. 	The family was
unaware of the earlier bear attack. 	Sometime between 9:00 p.m.
and midnight, a family member discovered that Samuel was not in
the tent. 	A search led to the discovery of Samuel’s lifeless
body.
¶8 	The Ives family and Samuel’s biological father, Kevan
Francis, sued the State for negligence. 	In response, the State
asserted that it was shielded by governmental immunity. 	The
State followed its answer to the plaintiffs’ complaint with a
motion for judgment on the pleadings under Utah Rule of Civil
Procedure 12(c). 	Like the answer, the motion focused exclusively
on the application of the Governmental Immunity Act of Utah to
the plaintiffs’ claims. 	Specifically, the State asserted that it
was immune under the Act’s permit exception, section
63G-7-301(5)(c), which provides that governmental entities retain
immunity, even in the face of negligence, “if the injury arises
out of, in connection with, or results from . . . the issuance,
denial, suspension, or revocation of, or by the failure or
refusal to issue, deny, suspend, or revoke, any permit, license,
certificate, approval, order, or similar authorization.” 4 	The
State argued that it was immune under the permit exception
because the plaintiffs’ complaint alleged that Samuel’s death
arose out of the State’s negligent failure to ask the USFS to
close the site where the attack occurred.

5 Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 11, 24
P.3d 958.
6 State v. Montoya, 937 P.2d 145, 149 (Utah Ct. App. 1997)
(quoting Limb v. Federated Milk Producers Ass’n, 461 P.2d 290,
293 n.2 (Utah 1969)).
7 Id. at 149-50.
8 Utah Code Ann. § 63G-7-301(5)(c) (Supp. 2010).
No. 20090256 	4
¶9 	The district court agreed and granted the State’s
motion for judgment on the pleadings. 	The district court held
that the plaintiffs’ claims fell within the permit exception
because Samuel’s death “had at least some causal relation to the
State’s failure to revoke its camping authorization to
[p]laintiffs.” 	The plaintiffs appeal that order. 	For the
reasons that follow, we hold that the Act’s permit exception has
no bearing on the claims made by the plaintiffs in this action.
We also decline to address the two alternate arguments presented
by the State on appeal because they are not apparent on the
record. 	We have jurisdiction under Utah Code section 78A-3-
102(3)(j) (Supp. 2010).
STANDARD OF REVIEW
¶10 	A district court’s decision to dismiss claims based on
governmental immunity is a determination of law that we give no
deference and review for correctness. 5 	We will affirm the ruling
of a lower court on alternate grounds only when the ground or
theory is “apparent on the record.” 6 	To be “apparent on the
record,” “[t]he record must contain sufficient and uncontroverted
evidence supporting the ground or theory to place a person of
ordinary intelligence on notice that the prevailing party may
rely thereon on appeal.” 7
ANALYSIS
I. 	THE STATE IS NOT IMMUNE UNDER THE UTAH GOVERNMENTAL IMMUNITY
ACT’S PERMIT EXCEPTION
¶11 	We first address whether the district court erred when
it granted the State’s motion for judgment on the pleadings on
the basis that the State was immunized from suit under section
63G-7-301(5)(c) of the Governmental Immunity Act of Utah. 8

9 Blackner v. State, 2002 UT 44, ¶ 10, 48 P.3d 949.
10 Governmental immunity is generally waived for negligent
conduct committed within the scope of a government worker’s
employment. 	See Utah Code Ann. § 63G-7-301(4) (“Immunity from
suit of each governmental entity is waived as to any injury
proximately caused by a negligent act or omission of an employee
committed within the scope of employment.”).
11 Id. § 63G-7-301(5)(c).
12 LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135
(internal quotation marks and citation omitted).
5 	No. 20090256
¶12 	“Generally, to determine whether a governmental entity
is immune from suit under the Act, we apply a three-part test,
which assesses (1) whether the activity undertaken is a
governmental function; (2) whether governmental immunity was
waived for the particular activity; and (3) whether there is an
exception to that waiver.” 9 	The parties do not dispute that the
State performed a governmental function, and the State conceded
negligence for the purpose of its motion for judgment on the
pleadings. 10 	Thus, the only issue is whether the permit
exception immunizes the State from suit. 	The permit exception
provides that a governmental entity retains immunity, even in the
face of negligence, “if the injury arises out of, in connection
with, or results from . . . the issuance, denial, suspension, or
revocation of, or by the failure or refusal to issue, deny,
suspend, or revoke, any permit, license, certificate, approval,
order, or similar authorization.” 11
¶13 	The State contends that when the plaintiffs paid the
federally-required entrance fee, “the federal government [gave]
its authorization, albeit implicit, to stay in the area and hike,
picnic, or camp.” 	The State argues that the permit exception
applies here because the plaintiffs’ injury “arises out of, in
connection with, or results from” their claim that the State
negligently failed to request the federal government to revoke
that authorization. 	We disagree.
¶14 	Our primary objective when interpreting a statute “is
to give effect to the legislature’s intent. 	To discern
legislative intent, we look first to the statute’s plain
language.” 12 	“We presume that the legislature used each word
advisedly and read each term according to its ordinary and

13 Martinez v. Media-Paymaster Plus/Church of Jesus Christ
of Latter-day Saints, 2007 UT 42, ¶ 46, 164 P.3d 384 (internal
quotation marks omitted).
14 R&R Indus. Park, L.L.C. v. Utah Prop. & Cas. Ins. Guar.
Ass’n, 2008 UT 80, ¶ 23, 199 P.3d 917 (citation omitted).
15 Utah Code Ann. § 63G-7-101(2)(b).
16 Id. § 63G-7-301(5)(c).
17 Id.
No. 20090256 	6
accepted meaning.” 13 	“If the plain language is unambiguous then
we need not look beyond it and no other interpretative tools are
needed in analyzing the statute.” 14
¶15 	The Governmental Immunity Act of Utah “governs all
claims against governmental entities or against their employees
or agents arising out of the performance of the employee’s
duties, within the scope of employment, or under color of
authority.” 15 	And the permit exception clearly states that
[i]mmunity from suit of each governmental
entity is not waived . . . if the injury
arises out of, in connection with, or results
from . . . the issuance, denial, suspension,
or revocation of, or by the failure or
refusal to issue, deny, suspend, or revoke
any permit, license, certificate, approval,
order, or similar authorization. 16
Thus, under the plain language of the Act, to fall within the
permit exception, the governmental entity claiming immunity must
have either (a) issued, denied, suspended, or revoked or
(b) failed or refused to issue, deny, suspend, or revoke “any
permit, license, certificate, approval, order, or similar
authorization.” 17
¶16 	Here, it is undisputed that the United States, not the
state of Utah, owns and controls the land where the bear attack
occurred. 	It is further undisputed that the federal government
was the only entity that had the authority to issue, deny,
suspend, or revoke any permit, license, certificate, approval,
order, or similar authorization related to the campground at
issue and was the only entity that could order the closure of the
campground, even temporarily. 	Thus, the State did not perform
any act that falls within the scope of the permit exception.

18 2008 UT 39, 191 P.3d 4.
19 927 P.2d 159 (Utah 1996).
20 849 P.2d 1162 (Utah 1993).
21 Taylor, 927 P.2d at 162-63; Ledfors, 849 P.2d at 1165-66.
22 Peck, 2008 UT 39, ¶ 9.
23 Taylor, 927 P.2d at 160; Ledfors, 849 P.2d at 1163-64.
24 Peck, 2008 UT 39, ¶¶ 3-4.
7 	No. 20090256
Government entities, like the State here, may not look to the
authority of the United States to grant or revoke approval to
camp on federally-controlled lands and import provisions of the
Governmental Immunity Act at their pleasure to shield themselves
from claims of negligence.
¶17 	The State also claims that under our decisions in Peck
v. State, 18 Taylor ex rel. Taylor v. Ogden City School District,19
and Ledfors v. Emery County School District,20 governmental
immunity attaches when the injury has any causal connection to
the exception claimed regardless of the status of the actor
directly responsible for the injury. 	In other words, the State
argues that it retains immunity under the permit exception even
when a plaintiff’s injury results from the federal government’s
failure (a) to close federally-owned and -controlled lands or
(b) to revoke its prior authorization to use those lands. 	These
cases are inapposite, however, for two reasons: 	First, none of
these cases address the permit exception. 	Both Taylor and
Ledfors deal with the “assault” exception found in Utah Code
section 63G-7-301(5)(b), 21 and Peck addresses the “incarceration”
exception found in Utah Code section 63G-7-301(5)(j). 22 	Second,
the plaintiffs’ injuries in both Taylor and Ledfors originated
from assaults that occurred on public school grounds controlled
by Utah governmental entities, 23 and the injury in Peck was
directly related to actions performed by the Utah Highway
Patrol. 24 	But here, it is undisputed that the plaintiffs’ injury
occurred on federal land and that the federal government had
exclusive control over any authorization to use the campsite in
question. 	Thus, Taylor, Ledfors, and Peck are inapplicable. 	The
statutory language of the permit exception is unambiguous and,
therefore, the district court was incorrect when it held that the
State was immune from suit under section 63G-7-301(5)(c) of the
Act.

25 Utah Code Ann. § 63G-7-301(5)(k) (Supp. 2010).
26 Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158
(emphasis added) (internal quotation marks omitted).
27 See, e.g., State v. Montoya, 937 P.2d 145, 149 (Utah Ct.
App. 1997) (“Critical to affirmance is the requirement that the
ground or theory be ‘apparent on the record.’ 	If, in any way,
the ground or theory urged for the first time on appeal is not
apparent on the record, the principle of affirming on any proper
ground has no application.” (citation omitted)).
28 Id.
No. 20090256 	8
II. 	WE DECLINE TO AFFIRM THE DISTRICT COURT ON ALTERNATE GROUNDS
¶18 	In addition to its contention that we should affirm the
district court’s application of the permit exception, the State
asks this court to affirm the district court’s decision based on
two alternative arguments: 	First, that the plaintiffs’
negligence claims fail because the State owed no duty to protect
Samuel Ives under the public duty doctrine. 	Second, that the
“natural condition” exception of the Governmental Immunity Act 25
applies in this case. 	The State is undaunted by its failure to
argue these issues below and simply asserts that we should
exercise our discretion to affirm the district court on either of
these alternate grounds.
¶19 	It is well established that this 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, and this is true even
though such ground or theory is not urged or
argued on appeal by appellee, was not raised
in the lower court, and was not considered or
passed on by the lower court. 26
Of course, the converse is also true: 	we will not affirm a
judgment if the alternate ground or theory is not apparent on the
record. 27 	“To hold otherwise would invite [each] party to
selectively focus on issues below, the effect of which is holding
back issues that the opposition had neither notice of nor an
opportunity to address.” 28 	Thus, to be “apparent on the record”
requires “more than mere assumption or absence of evidence

29 Id. at 149-50.
30 2002 UT 58, ¶¶ 9-17.
31 Id. ¶ 14.
32 Id.
33 Id. ¶ 16.
9 	No. 20090256
contrary to the [alternate] ground or theory. 	The record must
contain sufficient and uncontroverted evidence supporting the
ground or theory to place a person of ordinary intelligence on
notice that the prevailing party may rely thereon on appeal.” 29
¶20 	We addressed the “apparent on the record” requirement
in Bailey v. Bayles.30 	In that case, we affirmed a court of
appeals’ decision that held that the court of appeals did not err
when it affirmed the trial court on alternate grounds because
“[t]he record [was] rife with references” to the Cohabitation
Abuse Act that formed the basis for the affirmance. 31 	We also
noted that the verified petition itself referenced a provision of
the Act and the record clearly indicated that the parties had
proceeded for a time under the assumption that the Act was
applicable: 	both parties submitted motions that relied on the
Act, and the appellee explicitly referenced and based her
position on the Act during the bench trial. 32 	We also found that
the appellant’s claim that he was surprised when the court of
appeals affirmed the trial court based on the Act was
“disingenuous at best given the fact that he relied earlier in
the course of the action upon the very statute used by the court
of appeals.” 33
¶21 	In contrast, the two alternative arguments the State
now presents to this court are entirely absent from the record.
The State never mentioned the issue of duty choosing instead to
concede negligence for the purposes of its motion for judgment on
the pleadings. 	The State also failed to mention the “natural
condition” exception at any time. 	Furthermore, the State has not
disclosed to this court any reason whatsoever why it believes the
two issues are apparent on the record. 	Perhaps the State
believes that the reasons are so self-evident that they require
no explanation. 	If so, this belief reflects a perilous way to
present an appeal. 	Although this court may affirm a decision of
the district court on alternate grounds, it falls to the party
seeking the benefit of the rule to explain why it is eligible to
have the alternative arguments considered. 	The State here has
chosen not to do so and the record contains no mention of either

No. 20090256 	10
alternate argument. 	We decline, therefore, to affirm the
decision of the district court on alternate grounds.
CONCLUSION
¶22 	The State is not immune from suit under section 63G-7-
301(5)(c) of Utah’s Governmental Immunity Act because the State
cannot claim governmental immunity for actions wholly conducted
by the federal government. 	Here, the federal government owned
the land, issued any authorization to camp on the land, and was
the only entity that could revoke that authorization. 	We also
reject the State’s two alternate arguments because they were not
argued below and are not “apparent on the record.” 	We therefore
reverse the district court’s order granting the State’s motion
for judgment on the pleadings and remand for proceedings
consistent with this opinion.
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¶23 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Judge Orme concur in Justice Nehring’s
opinion.
¶24 	Justice Wilkins does not participate herein; Court of
Appeals Judge Gregory K. Orme sat.
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