Opinion
Case No. 20030990-CA.
Filed February 25, 2005. Not For Official Publication.
Appeal from the Third District, Salt Lake Department, The Honorable Ronald E. Nehring, Judge.
Clifford C. Ross, Salt Lake City, for Appellant.
Glenn C. Hanni, Peter H. Barlow, Heather S. White, Harold L. Petersen, and Larry G. Reed, Salt Lake City, for Appellees.
Before Judges Davis, Orme, and Thorne.
MEMORANDUM DECISION
Generally, "a person has no affirmative duty to control the conduct of another, to protect another from harm, or to render aid to someone already injured through no act or fault of the person," unless the person "upon whom a duty is sought to be imposed" has a special relationship with either the person causing the harm or the injured person. Gilger v. Hernandez, 2000 UT 23, ¶ 15, 997 P.2d 305. "The `essence' of a special relationship creating the duty to protect or aid another is `dependency by one party upon the other or mutual dependence between the parties.'" Id. (citations omitted).
Appellant Henshaw has not established that a "special relationship" existed between him and the Coons or between the ATV driver and the Coons. Nothing in the record establishes that Henshaw was dependant upon the Coons for his protection. The incident took place off the Coons' premises and without their knowledge. Moreover, Eric Coon, as host of the party, did not have a duty to protect Henshaw from the driver. See id. at ¶ 17 (holding that imposing duty upon social host to control his or her guests is a duty "`realistically incapable of performance'") (citation omitted). In any event, it was not reasonably foreseeable that Walters would negligently operate the ATV in the middle of the night, whether or not he was told by Eric Coon not to use the obviously defective ATV after dark. See Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252, 1257 (Utah 1996) (holding that a person may be liable for the reckless or negligent acts of another if such acts are reasonably foreseeable).
Likewise, Pine Mountain Mutual Water Association (PMMWA) did not have a special relationship with Henshaw or with the driver, and thus had no duty to protect Henshaw. See Gilger, 2000 UT 23 at ¶ 15. PMMWA had no prior notice that the driver would be in the area or that he would behave in a reckless manner, nor did it have any realistic opportunity to protect Henshaw from the driver. Additionally, Henshaw's argument that PMMWA had a contractual duty to provide protection to Henshaw from negligently operated and equipped ATVs in the middle of the night fails because PMMWA was not obligated, by its organizational documents, or otherwise, to provide around-the-clock security services to Henshaw.
Affirmed.
We Concur: James Z. Davis, Judge, and William A. Thorne Jr., Judge.