                 This opinion is subject to revision before
                    publication in the Pacific Reporter

                                2014 UT 30


                                 IN THE
      SUPREME COURT OF THE STATE OF UTAH

                          TODD GLAITTLI,
                       Plaintiff and Appellant,
                                    v.
               STATE OF UTAH and JOHN DOES I-V,
                     Defendant and Appellee.

                            No. 20130119
                         Filed July 15, 2014

                   Third District, West Jordan
                 The Honorable Bruce C. Lubeck
                         No. 100400120

           On Certiorari to the Utah Court of Appeals

                              Attorneys:
 Daniel F. Bertch, Kevin K. Robson, Salt Lake City, for appellant
 Sean D. Reyes, Att‘y Gen., Bridget K. Romano, Solicitor General,
                   Salt Lake City, for appellee

     ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion
         of the Court, in which CHIEF JUSTICE DURRANT
                  and JUSTICE DURHAM joined.
             JUSTICE LEE filed a concurring opinion,
                in which JUSTICE PARRISH joined.


   ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
                         INTRODUCTION
   ¶ 1 This case requires us to once again define the contours of
the ―natural condition‖ exception to the waiver provision of the
Governmental Immunity Act of Utah.
   ¶ 2 Appellant Todd Glaittli sued the State of Utah for injuries
he suffered when his boat ―heaved‖ and struck him, shattering his
                        GLAITTLI v. STATE
                      Opinion of the Court

shoulder. Mr. Glaittli claimed his injuries were due to the
negligent adjustment of a floating dock at Jordanelle Reservoir,
where he kept his boat. The State claimed governmental
immunity and moved to dismiss the claim under rule 12(b)(6) of
the Utah Rules of Civil Procedure. The district court granted the
motion, concluding that Mr. Glaittli‘s injuries fell within the
―natural condition‖ exception to the waiver of immunity. The
court of appeals affirmed. We reverse and hold that a reservoir is
not a natural condition on the land under the Utah Governmental
Immunity Act, Utah Code section 63G-7-301(5)(k).
                        BACKGROUND
    ¶ 3 Todd Glaittli was the owner of a twenty-five foot cabin
cruiser boat that he docked in the marina at Jordanelle Reservoir.1
The marina, docks, boat slips, and reservoir are owned by the
State of Utah and operated by the Utah Division of Parks &
Recreation and Jordanelle State Park. Mr. Glaittli‘s boat was
tethered to a boat slip on a floating dock, which was connected to
the shore by eight cables. Using a hand-operated winch, State
employees could lengthen or shorten the dock cables as needed.
The length of the cables was important. Because the dock was
floating, its position could be altered by the water level of the
reservoir, wind, or other forces that disturbed the water surface.
Failure to properly adjust the cables risked allowing the boats to
―strike the dock or other boats, especially during periods of wave
action.‖       Although the Jordanelle Reservoir master plan
recommended the creation of a breakwater to protect the docks
from waves, no breakwater was ever built.
   ¶ 4 In early June 2008, the water levels of Jordanelle
Reservoir were rising at a rate of approximately one foot per day,
requiring ―frequent, if not daily, adjustment of the cable tether
length‖ of the docks. On June 10, 2008, a storm hit the area and


   1 Because we are reviewing a motion to dismiss, we state the
facts ―as they are alleged in the complaint.‖ Hall v. Utah State
Dep’t of Corr., 2001 UT 34, ¶ 2, 24 P.3d 958. Additionally, we
―accept the factual allegations in the complaint as true and
consider all reasonable inferences to be drawn from those facts in
a light most favorable to the plaintiff.‖ Id. (internal quotation
marks omitted).



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                        Opinion of the Court

―created large waves on the reservoir.‖ Mr. Glaittli believed the
―wave action‖ created by the storm was ―significant enough to
warrant personal attention to his boat.‖ When Mr. Glaittli arrived
at the marina,
       he saw large waves, causing his large boat to heave
       to a degree that he feared his boat would strike the
       dock or other boats. [He] walked out onto the dock,
       to lengthen the lines on his boat, to allow it to ride
       the waves more freely . . . . The lines were so taut
       that he was unable to loosen them. While [Mr.
       Glaittli] was standing on the dock, he was struck by
       the bow of his boat, shattering his upper arm and
       shoulder, causing him to fall to the dock, [resulting
       in injuries to] his shoulder, arm and other parts of
       his body.
    ¶ 5 Mr. Glaittli attributes his injuries to the State‘s failure to:
―adjust the dock level with the water levels;‖ ―warn [him] of an
unsafe condition at the docks;‖ ―properly secure the docks;‖ and
finally, to ―construct a breakwater‖ for the marina.
    ¶ 6 The State claimed governmental immunity and moved to
dismiss Mr. Glaittli‘s complaint. The parties agreed that the
activity was a government function, and the State conceded for
the purposes of the motion to dismiss that Mr. Glaittli‘s injury was
―proximately caused by a negligent act or omission of an
employee committed within the scope of employment‖—meaning
that governmental immunity would be generally waived.2 The
district court thus evaluated only whether there was an exception
to the general waiver rule that would allow the State to retain its
immunity. Proceeding under Utah Code section 63G-7-301(5)(k),


   2 UTAH CODE § 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.‖); see Blackner v. State, 2002 UT
44, ¶ 10, 48 P.3d 949 (stating that the inquiry for governmental
immunity is ―(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‖).


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                            GLAITTLI v. STATE
                          Opinion of the Court

the district court found that the waves were a ―natural condition‖
that caused Mr. Glaittli‘s injury, and thus the State retained its
immunity. The district court then dismissed Mr. Glaittli‘s
complaint for failure to state a claim upon which relief could be
granted. The Utah Court of Appeals affirmed, finding that the
water and waves in the reservoir were a natural condition and
that Mr. Glaittli‘s injuries ―arose out of, were connected with, or
resulted from‖ that natural condition.3
              ISSUES AND STANDARD OF REVIEW
    ¶ 7 The single question on certiorari presents two distinct
issues: (1) whether a reservoir is a ―natural condition‖ under
Utah Code section 63G-7-301(5)(k) and (2) if it is, whether Mr.
Glaittli‘s injuries ―ar[ose] out of, in connection with, or result[ed]
from‖ that natural condition.4 Because we hold that the reservoir
is not a natural condition, the second issue is irrelevant and we do
not address it. We instead remand for further proceedings
consistent with this opinion, including a determination of
negligence under the negligence waiver provision.
    ¶ 8 ―When reviewing a court of appeals decision affirming a
grant of a rule 12(b)(6) motion to dismiss, we review the decisions
of the court of appeals rather than that of the trial court . . . for
correctness.‖5 Moreover, ―determining the scope of an exception
to the waiver of governmental immunity is a question of statutory
interpretation that we also review for correctness.‖6
                              ANALYSIS
   ¶ 9 Whether a reservoir is a ―natural condition on [the]
land[]‖ under section 63G-7-301(5)(k) of the Governmental
Immunity Act of Utah is an issue of first impression in this court.


   3   Glaittli v. State, 2013 UT App 10, ¶ 16, 294 P.3d 626.
   4   UTAH CODE § 643G-7-301(5)(k).
   5 Wagner v. State, 2005 UT 54, ¶ 9, 122 P.3d 599 (alteration in
original) (internal quotation marks omitted).
   6Peck v. State, 2008 UT 39, ¶ 7, 191 P.3d 4; Francis v. State, 2013
UT 65, ¶ 19, 321 P.3d 1089 (―[W]hether the district court
accurately interpreted the Immunity Act is a legal question that
we review for correctness.‖).



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                          Opinion of the Court

The court of appeals held that the natural condition exception
applied because it reasoned that the waves caused Mr. Glaittli‘s
injury, waves are made of water, and the ―basic nature‖ of water
is that it is a natural condition.7 The court of appeals held that the
presence of a dam did not ―change the basic nature of the water
itself‖ because the water had ―simply expanded onto a greater
area‖ (i.e., into the reservoir).8
    ¶ 10 In interpreting the term ―natural condition‖ we cannot
focus our inquiry too ―broadly,‖ for if we were to do so, the
statute‘s natural condition exception would largely ―swallow the
Act‘s waiver of immunity for negligence.‖9 This is because, as we
noted in Grappendorf, ―[c]onsidered broadly, natural conditions
include laws of physics, such as gravity, that necessarily
contribute to any accident or occurrence.‖10 Moreover, as we
noted in Francis v. State, ―we must exercise caution when
interpreting an inexact term‖ (like ―natural‖) because ―its
meaning could be stretched to include almost anything.‖11 The
court of appeals reached its conclusion by focusing on whether
the wave and the water it was made of were a ―natural
condition.‖ This was error.12
   ¶ 11 In Blackner v. State, an avalanche fell onto a road, injuring
the plaintiff.13 We held that the avalanche was a natural


   7 Glaittli v. State, 2013 UT App 10, ¶ 17, 294 P.3d 626. Thus, the
court of appeals did not hold that the reservoir is a natural
condition, as the question presented on certiorari suggests. It held
that ―the water upon which the wind acted was a natural
condition.‖ Id.
   8   Id.
   9   Grappendorf v. Pleasant Grove City, 2007 UT 84, ¶ 11, 173 P.3d
166.
   10   Id.
   11   Francis v. State, 2013 UT 65, ¶ 45, 321 P.3d 1089.
   12Following such reasoning leads to an absurdity given that
everything can be viewed as ―natural‖ at some level. See, e.g.,
Grappendorf, 2007 UT 84, ¶ 11.
   13   2002 UT 44, ¶¶ 2–6, 48 P.3d 949.


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                            GLAITTLI v. STATE
                          Opinion of the Court

condition.14 The instant case is distinguishable because a road is
separate and distinct from an avalanche in a way that waves are
not separate and distinct from the body of water on which they
occur. The waves and the body of water are ―so closely related‖
that they ―cannot be encountered independently.‖15 Thus, the
court of appeals focused too broadly16 when it considered the
―basic nature‖ of water itself.17 The proper question is whether
the reservoir was a natural condition upon the land. We hold that
it was not.
   ¶ 12 Our statute reads, in pertinent part,
         [i]mmunity from suit of each governmental entity is
         waived as to any injury proximately caused by a
         negligent act or omission of an employee . . . . [But is]
         not waived . . . if the injury arises out of, in
         connection with, or results from . . . (k) any natural
         condition on publicly owned or controlled lands.18
In other words, the government loses its immunity if a
government employee negligently causes injury, but negligence or
not, the government retains its immunity if the injury arose out of
a natural condition on public lands.19


   14   Id. ¶ 16.
   15  Davis v. State, 30 P.3d 460, 463 (Wash. 2001) (distinguishing
Ravenscroft v. Wash. Water Power Co., 969 P.2d 75 (Wash. 1998) and
holding that tire tracks in sand leading to a drop off was not an
artificial condition and was thus fundamentally different from the
condition in Ravenscroft, where a reservoir was an ―artificial
external circumstance‖ that ―could not reasonably be analyzed as
independent‖ from a submerged stump).
   16   Grappendorf, 2007 UT 84, ¶ 11.
   17   Glaittli, 2013 UT App 10, ¶ 17.
   18   UTAH CODE § 63G-7-301(4), (5).
   19 The State concedes that its activities served a governmental
function. The State also concedes, for the purpose of the motion
to dismiss only, that there is ―an initial immunity waiver because
[Mr.] Glaittli alleged that his injuries were ‗proximately caused by
a negligent act or omission of an employee committed within the
                                                                     con‘t.

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                          Cite as: 2014 UT 30
                          Opinion of the Court

   ¶ 13 A reservoir is topographical in nature and, following our
recent decision in Francis, is thus indisputably a ―condition on the
land.‖20 The question then, is whether a reservoir is ―natural.‖
We hold that it is not. In Grappendorf, we defined ―natural‖ as
―[p]resent in or produced by nature.‖21 According to Black’s Law
Dictionary, something natural is ―[b]rought about by nature as
opposed to artificial means.‖22 As the Illinois Supreme Court
reasoned in 2008, ―unlike a natural body of water, which exists
because of natural processes, an artificial body of water is the
result of someone‘s labor.‖23 And a reservoir is certainly brought
about by human labor.24
   ¶ 14 Jordanelle Dam and Reservoir was constructed from 1987
through 1992 by the United States Bureau of Reclamation in order


scope of employment.‘‖ Glaittli, 2013 UT App 10, ¶ 7 (quoting
UTAH CODE section 63G-7-301(4)).
   20 2013 UT 65, ¶ 42 (―‗condition on the land‘ seems to connote
features that have a . . . tie to the land itself, such as rivers, lakes,
or trees. . . . We accordingly limit application of the natural
condition exception to those conditions that are closely tied to the
land or that persist ‗on the land‘—conditions that are
topographical in nature.‖).
   21   Grappendorf, 2007 UT 84, ¶ 10 (alteration in original).
   22   BLACK‘S LAW DICTIONARY 1126 (9th ed. 2009).
   23 Alderson v. Fatlan, 898 N.E.2d 595, 601 (Ill. 2008) (discussing
whether a water-filled quarry was an ―artificial body of water‖ for
purposes of riparian water rights); see also Davis, 30 P.3d at 462
(―‗[A]rtificial‘ means ‗contrived through human art or effort and
not by natural causes detached from human agency: relating to
human direction or effect in contrast to nature . . . formed or
established by man‘s efforts, not by nature.‘‖ (quoting WEBSTER‘S
THIRD NEW INTERNATIONAL DICTIONARY 124 (1986))).
   24 See WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1931
(1961) (defining reservoir as ―a place where water is collected and
kept in quantity for use when wanted; esp: an artificial lake in which
water is impounded for domestic and industrial use, irrigation,
hydroelectric power, flood control, or other purposes‖ (emphasis
added)).


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                         GLAITTLI v. STATE
                       Opinion of the Court

to store water for municipal and industrial use.25 After it was
built, a highway had to be relocated and two small towns were
completely submerged.26 The reservoir was thus imagined, built,
and brought about by ―human efforts,‖ not nature.27 Were it not
for human efforts in building the Jordanelle Dam, the Jordanelle
Reservoir would not exist and in its place would remain the
naturally flowing Provo River.28




   25 Jordanelle Dam, UNITED STATES BUREAU OF RECLAMATION,
https://www.usbr.gov/projects/Facility.jsp?fac_Name=Jordanell
e+Dam&groupName=Overview (last updated Mar. 5, 2009).
   26         Jordanelle        Reservoir,          WIKIPEDIA.COM,
http://en.wikipedia.org/wiki/Jordanelle_Reservoir (last updated
Mar. 21, 2014); Frank Brusca, Jordanelle Reservoir/Ross Creek Valley,
ROUTE40.NET, http://www.route40.net/page.asp?n=10846 (last
updated Dec. 23, 2010, 5:32 PM).
   27 Davis, 30 P.3d at 462 n.2; see also Ravenscroft, 969 P.2d at 82
(acknowledging that a reservoir is artificial because ―[t]he natural
water channel was enlarged artificially . . . [and] was not
configured by nature but by man‖).
   28  Weber ex rel. Weber v. Springville City, cited by the State, is
inapposite. 725 P.2d 1360 (Utah 1986). In that case we noted that
―a natural watercourse does not cease to be such because of
artificial changes‖ such as being ―artificially obstructed, and all
the water diverted therefrom, as where the water has all been
dammed at a place far up the stream.‖ Id. at 1366 (internal
quotation marks omitted). This quotation cites principles of water
law that are inapplicable here. In Weber, the court was concerned
with the question of whether a creek was a ―natural watercourse‖
for purposes of the attractive nuisance doctrine. Id. at 1364.
However, here we are asked to interpret ―natural condition‖ as
used in the Governmental Immunity Act of Utah. Mr. Glaittli‘s
claim does not concern the flow of the Provo River into or out of
the reservoir, and the question posed by this case is not one of
common tort or water law. Accordingly, we conclude that Weber
is distinguishable.



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                 LEE, J., concurring in the judgment

    ¶ 15 Because the reservoir was designed and created by
human activity, and because it would not exist but for that
activity, we hold that the Jordanelle Reservoir is not a natural
condition on the land.
                          CONCLUSION
   ¶ 16 We therefore reverse and remand to the district court for
a determination of whether a government employee proximately
caused Mr. Glaittli‘s injury through a negligent act or omission
and for all other proceedings as necessary and consistent with this
opinion

   JUSTICE LEE, concurring in the judgment:
    ¶ 17 I concur in the majority‘s decision reversing the grant of
summary judgment in favor of the State, but write separately to
offer an alternative understanding of the statutory construct of a
―natural condition on [the] land[]‖ under Utah Code section 63G-
7-301(5)(k). Thus, I agree that the Jordanelle Reservoir is not a
―natural condition on [the] land[]‖ for which the government is
immune. But I find the court‘s conception of that statutory
construct—initiated in prior cases and extended in the majority
opinion today—to be unworkable and insufficiently connected to
the text of the statute. In this opinion I propose an alternative
approach rooted in a term-of-art conception of ―natural
condition‖ from premises liability in tort law. The goal is to
preserve the results of our prior cases while providing workable
guidance going forward.
    ¶ 18 The statutory construct of a ―natural condition on [the]
land[]‖ has bedeviled our court for years. We have appropriately
noted that a broad, literal interpretation of ―natural condition‖
would encompass ―laws of physics, such as gravity, that
necessarily contribute to any accident or occurrence.‖ Grappendorf
v. Pleasant Grove City, 2007 UT 84, ¶ 11, 173 P.3d 166. And we have
rightly worried that an undue extension of the natural condition
exception could ―swallow‖ the statute‘s ―waiver of immunity for
negligence.‖ Id.; see also Francis v. State, 2013 UT 65, ¶ 45, 321 P.3d
1089 (expressing the need for ―caution‖ in interpreting this
―inexact term‖ in a manner that ―could be stretched to include
almost anything‖).
   ¶ 19 As I have noted previously, this problem is magnified by
our court‘s commitment to a but-for test of causation—a test that

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                         GLAITTLI v. STATE
                LEE, J., concurring in the judgment

allows any incidental connection to the natural condition
exception (or to any of a number of other immunity-invoking
exceptions) to override the statute‘s waiver of immunity for acts
of negligence and the like. See Thayer v. Wash. Cnty. Sch. Dist., 2012
UT 31, ¶¶ 52–66, 285 P.3d 1142 (Lee, J., dissenting) (criticizing the
―some causal relationship‖ formulation in the caselaw). That
standard is problematic. It is incompatible with the structure of
the Governmental Immunity Act, which first broadly waives
immunity for injuries caused by nonimmune acts (such as
negligence), see UTAH CODE § 63G-7-301(1)–(4), and then reinstates
immunity in instances where the injury actually arises from other
enumerated acts or occurrences (such as conditions on the land),
id. § 63G-7-301(5). By broadly treating a natural condition with
any ―causal nexus‖ to an injury as a basis for an exception
triggering governmental immunity, our cases enhance the
problem of a broad ―natural condition‖ immunity swallowing the
government‘s waiver for its acts of negligence.
    ¶ 20 Our ―natural condition‖ cases have gone to some lengths
to navigate around these rocky problems. First, in Blackner v. State,
we conceptualized an avalanche as a ―natural condition‖
sustaining immunity and held that immunity attached despite the
plaintiffs‘ argument that the proximate cause of the injury was the
government defendants‘ negligence in stopping traffic in a
manner that put the plaintiffs at risk of harm from the avalanche.
2002 UT 44, ¶¶ 13–16, 48 P.3d 949. Then, in Grappendorf, we
acknowledged that a gust of wind was in some sense ―natural,‖
but nonetheless declined to extend immunity to an accident
caused when wind interacted with an artificial pitcher‘s mound at
a baseball park, suggesting that a ―transient‖ force of nature does
not ―exist on the land as required by the plain language of the
statute.‖ 2007 UT 84, ¶ 10. And in so doing, we emphasized the
need to ―avoid an interpretation that nullifies the Act‘s waiver of
immunity.‖ Id. ¶ 11. Most recently, in Francis v. State, we applied
the Grappendorf analysis in a manner foreclosing immunity for
injury caused by an attack by a wild bear, concluding that the bear
was too ―transitory‖ to be considered a natural condition on the
land. 2013 UT 65, ¶ 42. In Francis, we sought to distinguish
―topographical‖ features like rivers, lakes, and trees, which were
―directly a part of and persist ‗on the land‘‖ from wild animals not
as ―closely tied to the land.‖ Id.



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                LEE, J., concurring in the judgment

   ¶ 21 These decisions seem commendable as an exercise in
furtherance of the goal of preserving a role for the ―natural
condition‖ exception that does not swallow the waiver of
immunity for government negligence. But to me they appear to be
more of an ad hoc effort to secure fair outcomes than an attempt
to announce a consistent understanding of the statutory text.
Indeed, the analysis of the exception as applied in this case seems
to me to emphasize that point.
    ¶ 22 The majority reverses the court of appeals for its
simplistic treatment of the question whether the waters of the
Jordanelle are ―natural,‖ finding error in the assertion that water
emanating from the Provo River is always and forever a ―natural
condition.‖ Supra ¶¶ 9, 11. Yet, the court‘s analysis is equally
simplistic. The majority is right to conclude that ―[w]ere it not for
human efforts in building the Jordanelle Dam, the Jordanelle
Reservoir would not exist and in its place would remain the
naturally flowing Provo River.‖ Supra ¶ 14. But that is only to say
that a nonnatural condition was essential to the current existence
of the Jordanelle Reservoir. And the same can be said of a natural
condition: Were it not for the naturally flowing Provo River, the
Jordanelle Reservoir would not exist and in its place would be a
barren valley.
   ¶ 23 The point is that the question whether the waters of the
Jordanelle are natural or nonnatural is not a matter for abstract
logic. It is a matter for statutory interpretation—for a
determination whether the terms of our statute give controlling
significance to a natural condition (naturally flowing waters) or a
nonnatural condition (a dam) when both come together to create a
condition essential to a danger contributing to an injury.
    ¶ 24 To address this question, we must do more than espouse
the need to avoid an overbroad, rule-swallowing exception for
natural conditions. (After all, the converse concern is also there—
of avoiding an understated, meaningless formulation of natural
conditions that would deprive it of any meaningful application.)
We must give substantive content to the text of the statute, in a
manner that will allow both litigants and lower courts to apply it
in a predictable manner.
   ¶ 25 The question, then, is whether the statutory notion of a
―natural condition on [the] land[]‖ encompasses conditions that
are formed by the confluence of both natural and man-made


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                         GLAITTLI v. STATE
                LEE, J., concurring in the judgment

elements. I would answer that question on the basis of a
reconsideration of the meaning of those terms. And in so doing, I
would look to the common-law background of the operative
terms of the Governmental Immunity Act—to terms rooted in
established common-law terminology since before the adoption of
that statute.
    ¶ 26 The key statutory provisions seem to me to incorporate
classic terms of art from premises liability in the law of tort. Thus,
the statute waives immunity for any injury caused by ―a defective,
unsafe, or dangerous condition of any highway, road, street, alley,
crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other
structure located on them‖ (unless such condition is ―latent‖), and
for any injury caused by ―any defective or dangerous condition of
a public building, structure, dam, reservoir, or other public
improvement‖ (but with another caveat for ―latent‖ conditions).
UTAH CODE § 63G-7-301(3). The exception at issue here is a
counterpart to these provisions, reinstating immunity for an
injury that arises out of ―any natural condition on publicly owned
or controlled lands.‖ Id. § 63G-7-301(5)(k).
    ¶ 27 The references to ―dangerous conditions,‖ ―latent
conditions,‖ and ―natural conditions‖ are apparent invocations of
terms of art from premises liability in the law of tort. Under firmly
rooted principles of premises liability, a possessor of property
may be liable to an invitee or licensee if he fails to exercise
reasonable care necessary to protect them from a known
―dangerous condition‖ on the land. RESTATEMENT (SECOND) OF
TORTS § 343 (1965); Tallman v. City of Hurricane, 1999 UT 55, ¶ 9,
985 P.2d 892 (―The creator of an artificial condition on land may
be liable to others—both upon or outside of the land—for physical
harm caused by its dangerous nature.‖); Rogalski v. Phillips
Petroleum Co., 282 P.2d 304, 307 (Utah 1955) (―The duty owed by
an owner of land to a business visitor is to inspect and maintain
his premises in a reasonably safe condition or to warn the visitor
of any dangerous conditions existing thereon.‖); Erickson v.
Walgreen Drug Co., 232 P.2d 210, 212 (Utah 1951) (citing and
adopting the Restatement standard). This principle is also
reflected in the law of nuisance, which subjects a possessor of land
to liability for ―abatable artificial condition[s] on the land‖ if the
possessor knows of the condition, knows or should know that it
exists without the consent of those affected by it, and fails to take
reasonable steps to abate it. RESTATEMENT (SECOND) OF TORTS § 839


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                LEE, J., concurring in the judgment

(1979); Finkelstein v. Huner, 77 A.D. 424, 426–27 (N.Y. App. Div.
1902) (upholding damages based on failure to abate the danger
from the artificial condition of a privy and cesspool); Rose v.
Standard Oil Co. of New York, 185 A. 251 (R.I. 1936) (leaking oil and
gas from a refinery is actionable as nuisance).
    ¶ 28 The reference to ―natural conditions on [the] land[]‖ is
also borrowed from the tort law of premises liability. Under
longstanding principles of tort law, a possessor of land is not
―liable for physical harm caused to others outside of the land by a
natural condition of the land.‖ RESTATEMENT (SECOND) OF TORTS
§ 363(1) (1965); McCarthy v. Ference, 58 A.2d 49, 53 (Pa. 1948)
(―[G]enerally speaking, . . . a landowner is not subject to liability
for bodily harm caused to others outside the land by a natural
condition of the land. . . .‖). And this principle again is also
reflected in the law of nuisance. Nuisance law provides that ―a
possessor of land is not liable to persons outside the land for a
nuisance resulting solely from a natural condition of the land,‖
RESTATEMENT (SECOND) OF TORTS § 840(1) (1979),1 while defining
―natural condition‖ as ―a condition that is not in any way the
result of human activity.‖ Id. cmt. a; Livezey v. Schmidt, 29 S.W. 25,
25 (Ky. 1895) (―[A]s expressed in text-books, in order to create a
legal nuisance, the act of man must have contributed to its
existence.‖ (internal quotation marks omitted)); Salmon v.
Delaware, L. & W.R. Co., 38 N.J.L. 5, 11 (N.J. 1875) (natural
conditions are those that are ―purely sequences of natural
causes‖); Roberts v. Harrison, 28 S.E. 995, 996 (Ga. 1897) (natural
conditions are ―due solely to natural causes‖).
    ¶ 29 These constructs are well-rooted in settled caselaw
established long before the date of the enactment of our
Governmental Immunity Act. And because the terms of the


   1 Salmon v. Delaware, L. & W.R. Co., 38 N.J.L. 5 (N.J. 1875) (dead
leaves and dry grass that caught on fire not a nuisance); Roberts v.
Harrison, 28 S.E. 995, 996 (Ga. 1897) (stagnant pond emitting
noxious gases not a nuisance as ―[i]ll results, however extensive or
serious, that flow from natural causes, cannot become a
nuisance‖); Harndon v. Stultz, 100 N.W. 851 (Iowa 1904) (noxious
weeds spread to neighboring property by action of wind not a
nuisance); Langer v. Goode, 131 N.W. 258 (N.D. 1911) (same).



                                 13
                         GLAITTLI v. STATE
                LEE, J., concurring in the judgment

statute are an apparent adoption of settled legal terms, I would
construe the statutory terminology to embrace the term-of-art
understanding embedded in these words.
    ¶ 30 A ―word or phrase‖ that ―is ‗transplanted from another
legal source, whether the common law or other legislation,‘‖ is
understood to ―‗bring[] the old soil with it.‘‖ Maxfield v. Herbert,
2012 UT 44, ¶ 31, 284 P.3d 647 (quoting Felix Frankfurter, Some
Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537
(1947)). That seems clearly to be the case here. It can be no
accident that the relevant, operative terms of the Governmental
Immunity Act—those addressed to the government‘s immunity as
regards its role as possessor of land or other property—coincide
with the key terms that have long been used to define the scope of
premises liability in tort.
   ¶ 31 Thus, I would read the statute‘s reinstatement of
immunity for injury arising out of a ―natural condition on [the]
land[]‖ as a transplant from premises liability in tort law. And I
would interpret that term in a manner incorporating the ―old soil‖
that it has long carried at common law.
    ¶ 32 That understanding is not only faithful to the text of the
statute; it also addresses the above-noted concern for avoiding an
overly expansive interpretation of the natural condition exception.
And it is also compatible with the results of our cases.
     ¶ 33 The longstanding common law concept of ―natural
conditions‖ is straightforward. It defines a ―natural condition‖ as
a ―condition of land [that] has not been changed by any act of a
human being.‖ RESTATEMENT (SECOND) OF TORTS § 363, cmt. b. It
also contrasts natural conditions with artificial ones, which are
defined as ―structure[s] erected upon land‖ and ―trees or plants
planted or preserved, and changes in the surface by excavation or
filling, irrespective of whether they are harmful in themselves or
become so only because of the subsequent operation of natural
forces.‖ Id. § 363 cmt. b; Mills v. Hall & Richards, 9 Wend. 315, 316
(N.Y. Sup. Ct. 1832) (pond created by man-made dam was an
artificial condition); Towaliga Falls Power Co. v. Sims, 65 S.E. 844,
846–49 (Ga. Ct. App. 1909) (pond created by artificial dam and
attendant mosquitoes); McCarthy, 58 A.2d at 50–53 (rockslide on
natural hill that was weakened by the construction of a highway);
Andrews v. Andrews, 88 S.E.2d 88 (N.C. 1955) (wild geese attracted



                                 14
                       Cite as: 2014 UT 30
                LEE, J., concurring in the judgment

by bait and a man-made pond). Thus, as conceptualized in the
Restatement (Second) of Torts, a natural condition:
      comprehends soil that has not been cultivated, graded
      or otherwise disturbed; water that is on the land
      wholly through natural causes; trees, weeds and other
      vegetation on land that has not been made artificially
      receptive to it by act of man; and birds, animals or
      insects that have not been brought upon it or attracted
      by act of man. The term does not comprehend
      conditions that would not have arisen but for the
      effect of human activity even though the conditions
      immediately resulting from the activity were
      harmless in themselves and the harmful condition has
      arisen through the subsequent operation of natural
      forces.
RESTATEMENT (SECOND) OF TORTS § 840 cmt. a.
    ¶ 34 This standard incorporates a natural brake against the
concern about the ―natural condition‖ exception swallowing the
statutory waiver of immunity for negligence and other acts and
conditions. See Grappendorf, 2007 UT 84, ¶ 11; Francis, 2013 UT 65,
¶ 45. It clarifies that immunity for natural conditions does not
extend to ―conditions that would not have arisen but for the effect
of human activity even though the conditions immediately
resulting from the activity were harmless in themselves and the
harmful condition has arisen through the subsequent operation of
natural forces.‖ RESTATEMENT (SECOND) OF TORTS § 840 cmt. a.
    ¶ 35 That proviso avoids the rule-swallowing effect of the
notion that a literal interpretation of ―natural condition‖ would
encompass ―laws of physics, such as gravity, that necessarily
contribute to any accident or occurrence.‖ Grappendorf, 2007 UT
84, ¶ 11. It does so by indicating that immunity is not invoked for
―conditions that would not have arisen but for the effect of human
activity,‖ a caveat that forecloses immunity for injuries traceable
to ―laws of physics‖ through their interaction with artificial
elements.
    ¶ 36 The common law formulation of ―natural condition‖
also preserves the results of our prior cases. Under the tort law
formulation, an avalanche is a condition that ―has not been
changed by any act of a human being.‖ RESTATEMENT (SECOND) OF
TORTS § 363 cmt. b. It is essentially ―water that is on the land

                                15
                         GLAITTLI v. STATE
                LEE, J., concurring in the judgment

wholly through natural causes,‖ and by no means a ―condition[]
that would not have arisen but for the effect of human activity.‖
Id. § 840 cmt. a. The common-law, term-of-art understanding of
the natural condition exception is accordingly consistent with the
result in Blackner, which extended the exception to confer
immunity as to claims arising out of an avalanche. Grappendorf is
also sustainable under this approach, as a pitcher‘s mound
propelled by a gust of wind is a condition ―that would not have
arisen but for the effect of human activity even though the
conditions immediately resulting from the activity were harmless
in themselves and the harmful condition has arisen through the
operation of natural forces.‖ Id.; Grappendorf, 2007 UT 84.
    ¶ 37 The Francis case might seem a bit more difficult to
sustain under the common law understanding of natural
conditions, since the above formulation expressly encompasses
―birds, animals or insects that have not been brought upon [the
land] or attracted by act of man.‖ RESTATEMENT (SECOND) OF TORTS
§ 840 cmt. a. But although ―black bears are native to Utah,‖ there
was evidence in Francis that the State defendants had been aware
that the bear at issue ―had found food‖ at the campground in
question and ―would likely return if attracted‖ by humans or
food. 2013 UT 65, ¶¶ 8, 11. So there arguably was a material
dispute in Francis as to whether the bear had been ―attracted by
act of man.‖ And if so the result in Francis—reversal by our court
of a summary judgment decision in favor of government
defendants on ―natural condition‖ immunity grounds—could also
be sustained. See also Maynard v. Carey Constr. Co., 19 N.E.2d 304
(Mass. 1939) (infestation of cockroaches attracted to a dump).
    ¶ 38 I would apply this standard to this case. Thus, I would
interpret the statutory exception for ―natural condition[s] on [the]
land[]‖ to extend only to conditions that have ―not been changed
by any act of a human being,‖ RESTATEMENT (SECOND) OF TORTS
§ 363 cmt. b, or in other words not to ―comprehend conditions
that would not have arisen but for the effect of human activity.‖
Id. § 840 cmt. a. And because the Jordanelle Reservoir is a
condition affected substantially by human activity (the
construction of the Jordanelle Dam), I would hold that the
reservoir is not a natural condition and thus that immunity is not
reinstated under the statutory exception in Utah Code section
63G-7-301(5)(k).



                                16
                        Cite as: 2014 UT 30
                LEE, J., concurring in the judgment

    ¶ 39 This common law, term-of-art understanding of ―natural
condition[s] on [the] land[]‖ incorporates its own inherent
standard of causation.2 It tells us, by reference to common-law
principles of premises liability, that any human or artificial
element that interacts with a natural condition in a material way
transforms the previously natural condition into an artificial one.
And it therefore also preserves independent meaning for both the
statutory proviso that immunity is generally waived for injuries
caused by defective or dangerous (and nonlatent) conditions of
―reservoirs,‖ UTAH CODE § 63G-7-301(3)(a)(ii) & (b)(ii), and for the
statutory exception reinstating waiver (even as to injuries caused
by defective or dangerous conditions of reservoirs) if the injury
arises out of ―any natural condition on [the] land[],‖ id. § 63G-7-
301(5)(k).
    ¶ 40 The term-of-art understanding of ―natural conditions‖
allows us to make sense of both the general waiver for dangerous,
nonlatent conditions of reservoirs and the specific exception for
natural conditions. It does so by crediting the general waiver in
circumstances in which a natural condition (such as water flowing
in a river) interacts with an artificial condition (such as a dam)—
rendering the otherwise natural water an artificial ―dangerous
condition‖ (a reservoir). And the implication for the exception
reinstating immunity for ―natural conditions‖ is parallel: Where
the injury results only from a natural condition, and not at all
from any interaction with an artificial element, then immunity is
reinstated even for injuries generally (in a but-for sense)
connected to a dangerous artificial condition like a reservoir.
    ¶ 41 That construct triggers the statutory waiver of immunity
for the injuries at issue in this case, which were allegedly caused


   2 For that reason, I would not reach the broader question of the
general viability of our ―some causal nexus‖ standard of causation
for exceptions to waivers of immunity. See supra ¶ 19. But I would
flag the question as meriting careful reconsideration in a future
case. See Thayer, 2012 UT 31, ¶ 29–69, 285 P.3d 1142 (Lee, J.,
dissenting). In my view, the court should inquire as to whether
the natural condition was not only the actual cause of the injury,
but the legal or proximate cause as well, as viewed through
traditional tort principles. I see this approach as mandated by the
text and structure of the Act.


                                17
                         GLAITTLI v. STATE
                LEE, J., concurring in the judgment

by the dangerous, artificial condition of the Jordanelle Reservoir
in a manner not implicating the statutory exception for natural
conditions. That is because all of the allegations of negligence in
this case are closely connected in a material way to interactions
between natural and artificial elements. See supra ¶ 5. Thus,
although Glaittli‘s injuries were a result of natural conditions of
wind and weather, the harm he suffered arose out of interactions
of those elements with the artificial condition of the Jordanelle
Reservoir (as waves are not caused by wind alone but by the
interaction with a large body of artificial water—a ―condition[]
that would not have arisen but for the effect of human activity,‖
RESTATEMENT (SECOND) OF TORTS § 840 cmt. a.3
    ¶ 42 I would reverse the court of appeals on that basis. And
in so doing I would repudiate our ad hoc conception of the
natural condition exception and replace it with a framework
rooted in the common-law, term-of-art understanding of the
statutory terminology. I concur in the judgment of the court on
that basis.
                         ———————




   3   A contrary conclusion might well obtain if, for example,
Glaittli had been struck by lightning while perched on the dock at
Jordanelle. In that event, perhaps it could be said that his injury
was not at all a result of an interaction between natural conditions
(weather) and artificial ones (the reservoir), since it could not be
said that a lightning strike is a ―condition[] that would not have
arisen but for the effect of human activity.‖ RESTATEMENT
(SECOND) OF TORTS § 840 cmt. a. At a minimum, such a question
might be one for a jury, and the possibility of this conclusion
preserves application for both the subsection (3) proviso that
immunity is waived for dangerous, nonlatent conditions of
reservoirs and for the subsection (5) exception that immunity may
still be reinstated if an injury results from a natural condition.


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