Court of Appeals considers whether contractors owe neighbors a duty to prevent off-site harm

The Utah Court of Appeals heard oral argument in Rosser v. Elite Craft Homes over whether contractors and landowners owe a legal duty to neighboring property owners to conduct construction in a reasonably safe manner. Appellants seek recognition of a categorical duty to protect neighbors from harms that originate on a construction site; respondents say existing Utah precedent and procedural rules bar that expansion.

Appellants' counsel argued the court should recognize a duty grounded in foreseeability and urged the court to consider Restatement (Third) of Torts §54 as persuasive authority. "This case asks whether contractors and landowners owe a duty to the neighbors of their construction sites to conduct their construction in a reasonably safe manner," said counsel for the appellants during opening argument. The appellants relied on Utah cases the parties and the court discussed repeatedly (including Jeffs, Herland, Kessler and Cope) and said those precedents are consistent with adopting a broader duty that would cover both commercial and residential construction activities.

Respondent Elite Craft Homes, through counsel Axel Trembo, said the district court correctly rejected the plaintiffs' negligence theory and cautioned that adopting §54 would require the court to do more than cite out-of-state treatises. Trembo argued the parties raised a narrower duty below and that asking the appellate court to adopt the Restatement for the first time on appeal raises preservation and waiver concerns. "At the district court, the plaintiffs asked the court to apply the Jeffs factors," Trembo said, arguing that the district court's analysis and decision should not be reversed based on a new, broader theory posed primarily in briefing.

A central dispute at argument was procedural as well as substantive: whether the appellants had preserved for appeal a request that Utah adopt Restatement (Third) §54 (which the attorneys and the judges discussed repeatedly), or whether the appellants had only asked the trial court to apply the Utah five-factor duty test from Jeffs and related cases. The judges pressed both sides on how broadly any new duty would apply — for example, whether it would cover large commercial sites, small residential projects such as accessory dwelling units, or any possessor of land — and whether the analysis must run through the court's established Jeffs factors even if the Restatement were persuasive authority.

The judges also focused on the doctrinal distinction between an "affirmative act" that can create a duty and an omission or failure to control third-party conduct. Appellants said precedent such as Herland and Boynton treat certain affirmative acts (for example, prescribing medication or creating hazardous conditions) as sufficient to impose a duty; respondents said the cases emphasize that a defendant does not generally have a duty to control the acts of third parties and that the presence of a criminal third-party who started the fire in this case complicates the duty analysis.

Both sides debated whether Utah should recognize "negligent trespass" claims or whether trespass claims in Utah remain limited to intentional conduct; the Walker/LaSalle Oil decision and several out-of-state authorities were discussed but respondents told the court they had not seen sufficient development of that theory below or on appeal to justify adopting it here.

No decision was announced from the bench. The court took the matter under advisement and said it would issue a written opinion.

The argument record shows the court repeatedly returned to three threshold questions: (1) what exactly is the duty the appellants ask the court to recognize (narrowly to construction sites or broadly to all possessors of land); (2) whether adopting Restatement (Third) §54 would bypass the Utah Jeffs-factor framework or must be integrated with it; and (3) whether public-duty doctrine and the affirmative-act/omission distinction bar recovery when a third party (here, an unknown criminal trespasser) causes the harm. The court thanked counsel for their briefing and argument and took the appeal under advisement for a written decision.