SALT LAKE CITY (Legal Newsline) - Salt Lake City can be sued by the family of a woman who drowned after trying to recover her dogs from a fast-flowing creek in a city park, the Utah Supreme Court ruled, reversing a lower court that dismissed the case under a state law protecting recreational areas from liability.
Luidmila Feldman was walking with her husband Leonid in the city’s East Creek Access Park in 2017 when their dogs went into the creek. Leonid tried to recover the dogs but was swept downstream and Luidmila drowned after going in after them.
The Feldmans sued the city, claiming the stream was made unreasonably dangerous by “manmade developments at the East Creek Access.” A trial court dismissed the case, citing a Utah law that prohibits lawsuits by people injured while participating in recreational activities on land that is open to the public without charge.
The law, similar to statutes protecting ski areas, protects landowners from claims based on “the inherent risks of participating in an activity with a recreational purpose on the land.” The court agreed the Feldmans were engaged in a recreational activity and noted that “if a hiker encounters a cold stream and decides to wade across it, she does not cease `hiking’ while crossing the stream.”
The law further defines “inherent risks” as “dangers, conditions for personal injury” that are an “integral and natural part” of the activity. The Feldmans said the current wasn’t “natural” because it was made more powerful by “manmade developments,” but the high court disagreed with that expansive definition of “natural,” saying the meaning hinges on “whether a given risk is expected in a given setting.”
The Utah Supreme Court previously decided getting hit by a foul ball was a “natural” part of attending a baseball game. But the court balked at extended that protection to Salt Lake City.
“For example, tripping over a rock in a trail cleared by a chainsaw and scraped clean with a rake would certainly be an inherent risk of walking on a trail, even though the trail is manmade.” the court concluded. “But electrocution by an exposed electric wire dangling from a tree on that same trail would not be an inherent risk of walking on a trail.”
Accepting the Feldmans’ accusations as true, the court said, it must send the case back for trial on the question of whether the city negligently altered the natural flow of East Creek. The court did agree with the lower court that claims the state law doesn’t cover wrongful-death claims and violates the Utah Constitution should be dismissed.