Rosser v. Elite Craft Homes - Utah Court Reverses Summary Judgment in Fire Damage Case

Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

April 23, 2026 Get Citation Alerts Download PDF Add Note

Rosser v. Elite Craft Homes

Court of Appeals of Utah

• Citations: 2026 UT App 66

• Docket Number: Case No. 20231023-CA

• Opinion

• Authorities (20)

• Cited By (0)

• Summaries (0)

• Similar Cases (19.9K)

• PDF

Combined Opinion

2026 UT App 66

THE UTAH COURT OF APPEALS

JEREMY ROSSER AND BRANDON KILBURN,
Appellants,
v.
ELITE CRAFT HOMES, LLC AND JPC CONTRACTING, INC.,
Appellees.

Amended Opinion *
No. 20231023-CA
Filed April 23, 2026

Second District Court, Ogden Department
The Honorable Craig Hall
No. 220903070

Jonathan R. Schofield, Dick J. Baldwin,
Steven R. Glauser, and Daniel S. Sorenson,
Attorneys for Appellants
Peter H. Barlow and Axel Trumbo,
Attorneys for Appellees

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER concurred.
JUDGE RYAN M. HARRIS concurred with opinion.

*
This Amended Opinion replaces the Opinion in Case No.
20231023-CA issued on February 5, 2026. Appellees filed a
petition for rehearing after we published our original opinion,
and we called for a response. We grant the petition for the limited
purpose of removing references to the labels of “plus” and
“minus” in paragraphs 16, 18, and 21. We also updated
paragraphs 17 and 22; reworded headings I.A., I.B., and I.C.; and
added headings I.D. and I.E. In all other respects, the petition is
denied.
Rosser v. Elite Craft Homes

OLIVER, Judge:

¶1 On a summer evening in 2021, a fire at a construction site
owned and operated by Elite Craft Homes, LLC (Elite) spread to
the neighboring house owned and occupied by Jeremy Rosser and
Brandon Kilburn (collectively, Residents). Residents escaped the
fire, but their pets perished, and their house was destroyed.
Residents sued Elite for negligence, negligent infliction of
emotional distress, trespass, and nuisance. The district court
granted summary judgment on all four claims after concluding
that Elite owed Residents no duty and that Residents had not
demonstrated the requisite intent for their trespass claim. We
conclude that Elite did owe a duty to Residents as adjacent
landowners but that a claim of negligent trespass is not available
in Utah. We thus affirm the district court’s grant of summary
judgment on the trespass claim, but we reverse the grant of
summary judgment on the claims for negligence, negligent
infliction of emotional distress, and nuisance.

BACKGROUND 1

The Construction Site

¶2 In 2020, Residents purchased a home in Ogden. One year
later, Elite began construction of a four-story apartment building
(the Building) on the lot adjacent to Residents’ property (the
Construction Site). The Building was built at the ten-foot setback
from the shared property line.

¶3 By late June 2021, the framing of the Building was nearly
complete and the Building was four stories tall, roofless, and
made primarily of wood. The Construction Site had no exterior
fencing because subcontractors were delivering lumber to all four

1. “When reviewing a grant of summary judgment, we view the facts in the light most favorable to the non-moving party.” Utah Golf Ass’n v. City of N. Salt Lake, 2003 UT 38, ¶ 10, 79 P.3d 919.

20231023-CA 2 2026 UT App 66
Rosser v. Elite Craft Homes

stories of the Building with telescopic forklifts and Elite believed
fencing would inhibit their work. The Construction Site did have
a temporary fence in the northeast corner surrounding recently
delivered lumber to protect it from theft. Elite’s other anti-theft
measures included the following steps at the end of each
workday: instructing all subcontractors to remove tools and
materials, locking the on-site portable toilet, parking the
telescopic forklift so it blocked the only after-hours vehicle
entrance, and having one of the superintendents walk the
Construction Site to verify compliance. Despite these measures,
the Construction Site and the Building were still accessible to foot
traffic after hours.

¶4 Many unhoused individuals lived in a shelter and a park
near the Construction Site. Residents frequently saw individuals
who appeared to be unhoused in and around the Construction
Site. On one occasion, Residents called the police after they heard
screaming coming from inside the Building after workers had left.

¶5 Prior to the fire, Elite knew that unauthorized people had
accessed the Construction Site outside of working hours. On more
than one occasion, Elite workers noticed makeshift shelters built
at the Construction Site. Once it discovered the shelters, Elite
immediately removed them and discarded any associated food
wrappers or beverage containers. Framers also reported to a
superintendent that one morning in late May or early June they
found people inside the Building when they arrived for work.

The Fire

¶6 On the evening of June 28, 2021, security cameras from a
business across the street from the Construction Site captured
footage of people entering and exiting the Construction Site
between 8:26 p.m. and 10:14 p.m. At 10:27 p.m., the first signs of a
fire were observed through a window in the Building, and several
individuals left the Building between 10:29 p.m. and 10:42 p.m.
The first 911 call regarding the fire occurred at 10:42 p.m. The

20231023-CA 3 2026 UT App 66
Rosser v. Elite Craft Homes

police arrived at 10:45 p.m. and immediately began evacuating
the surrounding area. Fire trucks began arriving at 10:47 p.m.

¶7 Residents were home asleep when the fire started. The fire
awakened Kilburn, who then woke Rosser. When Rosser opened
the front door to see what was going on, smoke and heat poured
into the home. Residents realized they needed to evacuate
immediately and attempted to gather their cat and two dogs, but
they were unable to locate them. Residents ultimately fled their
house without their shoes or cellphones, leaving the front door
open so their pets would have a way to escape. As they fled their
home, they felt their necks burning from the heat of the fire. While
they were fleeing, a transformer located on a power pole between
their house and the Construction Site exploded and the debris
struck Kilburn, cutting his arm. The fire destroyed their house,
and their pets did not survive.

¶8 Fire investigators were unable to determine precisely when
the fire began or its exact cause, but it appeared the fire grew
gradually until it got so hot that everything in the Building caught
fire in a “flashover.” Flames from the Construction Site caused
Residents’ home to catch fire. The fire was so intense that it ignited
everything nearby and melted security cameras hundreds of feet
from the Construction Site.

The Lawsuit

¶9 Residents filed this case against Elite in district court,
asserting claims of negligence, negligent infliction of emotional
distress, trespass, and nuisance. Residents alleged Elite acted
negligently by failing to prevent trespassers from entering the
Construction Site when the Building was in a highly flammable
state.

¶10 Elite moved for summary judgment on all four claims,
arguing that because it had no special legal relationship with
Residents, it owed them no duty to protect them from harm that
resulted from the criminal acts of a third party. Elite also argued,

20231023-CA 4 2026 UT App 66
Rosser v. Elite Craft Homes

in the alternative, that Residents could not prove negligent
infliction of emotional distress because they could not show they
were in the zone of danger or demonstrate severe mental or
physical manifestations related to their alleged emotional distress,
nor could Residents prove trespass because they could not show
that the trespass of the fire onto their property was intentional.

¶11 In response, Residents argued they did not need to prove a
special legal relationship because Elite negligently created a
situation that caused the fire, making Elite’s conduct an
affirmative act, not an omission. Residents argued that
construction of the Building “without mitigating the risk of
trespassers causing a fire constituted an affirmative act, and a
duty of care inhered.” Alternatively, Residents argued that they
were within the zone of danger and suffered severe
manifestations of emotional distress, as well as that Utah case law
could be interpreted to allow for recovery on negligent trespass
claims.

¶12 The district court granted Elite’s motion for summary
judgment. The district court dismissed the negligence and
negligent infliction of emotional distress claims because it found
Elite did not have a duty of care toward Residents “to protect
them from damages caused by an unknown third party who
started the fire.” The district court dismissed the trespass claim
because Residents could not show any intent to trespass on the
part of Elite. In the alternative, the court determined that even if
the trespass claim could be based on negligence, it also failed
because Elite did not owe Residents a duty. The district court
dismissed the nuisance claim because the parties stipulated to its
dismissal “absent any other valid cause of action.”

ISSUE AND STANDARD OF REVIEW

¶13 Residents argue the district court erred in granting Elite’s
motion for summary judgment. “The grant or denial of summary
judgment presents a question of law and is reviewed for

20231023-CA 5 2026 UT App 66
Rosser v. Elite Craft Homes

correctness.” Liley v. Cedar Springs Ranch Inc., 2017 UT App 166,
¶ 11, 405 P.3d 817. “Most cases involving claims of negligence are
not susceptible to summary disposition, but the initial question of
the existence of a legal duty in tort cases is a question of law” that
“we review for correctness.” Id. (cleaned up).

ANALYSIS

¶14 A claim of negligence requires a plaintiff to prove that
“(1) defendant owed plaintiff a duty of care, (2) defendant
breached that duty, and . . . (3) the breach was the proximate cause
of (4) plaintiff’s injuries or damages.” D.W. v. FPA Sandy Mall
Assocs., 2024 UT 32, ¶ 16 n.2, 554 P.3d 1052 (quoting B.R. ex rel.
Jeffs v. West, 2012 UT 11, ¶ 5 n.2, 275 P.3d 228). “The main
conceptual difference between duty and breach is that duty is a
question of law determined on a categorical basis regarding an
entire class of cases, while breach and proximate cause are
questions for the fact finder determined on a case-specific basis.”
Estate of Schofield v. Starbucks Corp., 2025 UT App 29, ¶ 15, 566 P.3d
777 (cleaned up).

¶15 We first address whether Elite owed a duty of care to
Residents under Utah law. Because we conclude that Elite did
owe Residents a duty, we then address the alternative arguments
asserted by Elite regarding Residents’ claims for negligent
infliction of emotional distress and trespass. Finally, we address
the impact of our determinations on Residents’ nuisance claim.

I. Duty

¶16 “The complexity of a court’s categorical-level duty analysis
depends, in large part, on whether the plaintiff is invoking a duty
that has already been recognized and established under Utah
law.” Estate of Schofield v. Starbucks Corp., 2025 UT App 29, ¶ 16,
566 P.3d 777. Here, all parties acknowledge that no Utah court has
recognized a duty “to neighboring landowners to exercise
reasonable care to ensure foreseeable harms would not result

20231023-CA 6 2026 UT App 66
Rosser v. Elite Craft Homes

from [the creation of a] dangerous condition.” 2 In cases where
there is no pre-established categorical duty, courts are instructed
to undertake an analysis of “several factors relevant to
determining whether” to recognize a new categorical duty,
including the following:

(1) whether the defendant’s allegedly tortious
conduct consists of an affirmative act or merely an
omission; (2) the legal relationship of the parties; (3)
the foreseeability or likelihood of injury; (4) public
policy as to which party can best bear the loss
occasioned by the injury; and (5) other general
policy considerations.

B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 5, 275 P.3d 228 (cleaned up).

¶17 These factors “will play different roles depending on the
case.” D.W. v. FPA Sandy Mall Assocs., 2024 UT 32, ¶ 22 n.5, 554
P.3d 1052. While “[s]ome factors are featured heavily in certain
types of cases, . . . other factors play a less important, or different,
role.” Herland v. Izatt, 2015 UT 30, ¶ 13, 345 P.3d 661. And,
ultimately, the determination of whether a duty is owed can be
based on a single Jeffs factor if that factor weighs strongly enough.

1. We note that section 54 of the Restatement (Third) of Torts sets forth a duty quite similar to the one claimed by Residents. See Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 54 (A.L.I. 2012). Section 54 provides that the “possessor of land has a duty of reasonable care for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land.” Id. However, Residents did not raise section 54 before the district court, rendering any argument for its adoption unpreserved, and we therefore do not consider it. See Hill v. Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶¶ 43–46, 321 P.3d 1054 (declining to consider a theory for imposing a duty where the appellant did not specifically present it to the district court).

20231023-CA 7 2026 UT App 66
Rosser v. Elite Craft Homes

See Kirk v. Anderson, 2021 UT 41, ¶¶ 18, 20, 496 P.3d 66 (assuming
that the first three factors weighed in favor of recognizing a duty
but nevertheless concluding that no duty existed because “the
fifth Jeffs factor” “carrie[d] the day in determining that a duty
d[id] not exist”). We address the Jeffs factors below, concluding
that three of the factors support imposing a duty.

A. Foreseeability

¶18 We first consider the “foreseeability or likelihood of
injury.” Jeffs, 2012 UT 11, ¶ 5. Foreseeability plays “an elevated
role in this court’s duty analyses” and is a factor that “we may rely
upon . . . in imposing a duty where one would otherwise not
exist.” Kirk, 2021 UT 41, ¶ 17 (cleaned up). In the context of duty,
foreseeability “is evaluated at a broad, categorical level.” Jeffs,
2012 UT 11, ¶ 25. “The appropriate foreseeability question for
duty analysis is whether a category of cases includes individual
cases in which the likelihood of some type of harm is sufficiently
high that a reasonable person could anticipate a general risk of
injury to others.” Id. ¶ 27. In our analysis of foreseeability at the
duty level, then, we are concerned with “the general relationship
between the alleged tortfeasor and the victim and the general
foreseeability of harm” rather than “the specific mechanism of the
harm.” Id. ¶ 25 (cleaned up).

¶19 Here, Residents argue that the proper question is the
foreseeability of fires starting on construction sites and spreading
to neighboring properties. Elite similarly argues that the proper
question is the foreseeability of fire damage caused by a trespasser
during the framing process. But both parties take too narrow a
view of foreseeability; such fact-specific arguments are more
suited to an analysis of breach or proximate cause. Indeed, both
of these arguments focus on the “specific mechanism of the harm”
and not the “general foreseeability of harm.” Id. (explaining that
“in [a] duty analysis, foreseeability . . . relates to . . . the general
foreseeability of harm” (cleaned up)).

20231023-CA 8 2026 UT App 66
Rosser v. Elite Craft Homes

¶20 Thus, the proper question is whether harm is generally
foreseeable to neighboring landowners or inhabitants when
landowners fail to exercise reasonable care when undertaking
construction on their property. There are many foreseeable harms
to neighbors that could arise from activities undertaken in
conjunction with construction: land clearing could lead to trees
falling, excavation could cause landslides, digging could result in
a burst water main and subsequent flooding, gas lines could
break, sinkholes could form, and framing could collapse. The
likelihood of harm from failing to exercise reasonable care in
undertaking construction is sufficiently high that it is generally
foreseeable to a reasonable person that such activities may injure
a neighbor. See id. ¶ 27. Therefore, this factor weighs in favor of
imposing a duty.

B. Affirmative Act v. Omission

¶21 Next, we consider “whether the defendant’s allegedly
tortious conduct consists of an affirmative act or merely an
omission.” Id. ¶ 5. Residents argue that Elite undertook the
affirmative act of constructing the Building. Elite, in contrast,
argues that Residents’ claim is based on an omission because they
allege that Elite “failed to prevent a third party . . . from starting
the fire.” But we need not resolve this issue because even if we
assume that Elite’s conduct constitutes an omission that would
weigh against imposing a duty, this factor would not outweigh
foreseeability or its combination with the two remaining factors
that we conclude also weigh in favor of imposing a duty. See infra
¶¶ 22–29. Accordingly, we assume, without deciding, that this
factor weighs against imposition of a duty. 3

1. Residents do not argue on appeal that the second Jeffs factor regarding special legal relationships weighs in favor of a duty of care, instead arguing that it is not applicable because Elite’s “conduct consists of affirmative acts.” But because we assume (continued…)

20231023-CA 9 2026 UT App 66
Rosser v. Elite Craft Homes

C. Best Bear the Loss

¶22 We now assess “which party can best bear the loss
occasioned by the injury.” Jeffs, 2012 UT 11, ¶ 5 (cleaned up). This
“factor considers whether the defendant is best situated to take
reasonable precautions to avoid injury.” Id. ¶ 30. It “cut[s] against
the imposition of a duty where a victim or some other third party
is in a superior position of knowledge or control to avoid the loss
in question.” Id. Essentially, this factor considers “who can best
prevent the loss.” Boynton v. Kennecott Utah Copper, LLC, 2021 UT
67, ¶ 39, 500 P.3d 847.

¶23 Although Elite argues that this factor weighs against a duty
and “a contractor is unlikely to be in the best position to know
what happens at the construction site after hours,” we disagree.
We believe the landowner to be the only one who can truly “take
reasonable precautions to avoid injury,” id. (cleaned up), as the
landowner is the only one with legal authority to take action on
the land. Even Elite’s argument seems to acknowledge this reality.
When arguing that neighboring landowners can “learn of
activities at the jobsite,” Elite acknowledged that the only action
then available to them is to “warn the contractor and authorities.”
Simply put, Elite has sole control of the Construction Site and is
therefore in the best position to bear this burden. This factor thus
supports the imposition of a duty.

D. Public Policy

¶24 Finally, we consider the last factor: “other general policy
considerations.” B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 5, 275 P.3d
228 (cleaned up). Specifically, we consider “whether general
policy considerations require a categorical decision removing

that Elite’s conduct was not an affirmative act and thus weighs
against imposition of a duty, we likewise assume this factor
weighs against imposition of a duty.

20231023-CA 10 2026 UT App 66
Rosser v. Elite Craft Homes

duty from a class of cases.” Boynton, 2021 UT 67, ¶ 44. As our
supreme court has recognized,

Concluding that no duty exists means that, for
certain categories of cases, defendants may not be
held accountable for damages they carelessly cause,
no matter how unreasonable their conduct. But
recognizing a duty does not itself mean that a
defendant will incur liability; a plaintiff must still
prove the other elements of negligence (breach of
the duty, causation, and damages).

Mower v. Baird, 2018 UT 29, ¶ 30, 422 P.3d 837 (cleaned up).

¶25 Residents argue that “the public would not benefit from
allowing owners and contractors to operate unreasonably and put
neighbors at risk,” while Elite counters that a duty should not be
imposed because a third party trespassing on a construction site
and causing a fire is unlikely. But again, Elite takes too narrow a
view of duty. When considering whether to impose a duty, “each
factor must be analyzed at a broad, categorical level for a class of
defendants rather than a factually intense inquiry decided on a
case-by-case basis.” Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 29,
356 P.3d 1172 (cleaned up). Looking at that broad, categorical
level, we conclude that general policy considerations favor
imposition of a duty.

¶26 We find guidance in Kessler v. Mortenson, 2000 UT 95, 16
P.3d 1225. In Kessler, a mother brought suit against a residential
homebuilder for attractive nuisance after her child was injured
from falling through a hole in the construction site. Id. ¶¶ 3–4. In
examining whether possessors of land are “accountable for
physical injuries to children caused by an artificial condition,” our
supreme court stated that “[r]esidential construction sites are
temporary hazards created by the homebuilder.” Id. ¶¶ 7, 9. And
the court concluded that “the burden imposed on the
homebuilder of minimizing or eliminating the hazard to children

20231023-CA 11 2026 UT App 66
Rosser v. Elite Craft Homes

is a temporary burden almost exclusively within the control of the
homebuilder.” Id. ¶ 9. Although Kessler involved a claim for
attractive nuisance and not a claim for negligence, we see no
meaningful difference in the temporary hazard created by
residential construction sites and the Construction Site here, or in
the rationale for imposing a burden on the entity undertaking the
construction.

¶27 Next, we find the reasoning of the Court of Appeals of
Maryland4 on a nearly identical issue persuasive. In Steamfitters
Local Union No. 602 v. Erie Insurance Exchange, 233 A.3d 59, 64 (Md.
2020), the court considered “whether the owner of a commercial
property owe[d] its neighbor a common law duty to use
reasonable care to prevent the risk of a spread of fire.” Id. While
the court took a fact-specific approach, it discussed, in depth, the
long-recognized categorical duty between neighboring
landowners. See id. at 73 (“For at least the past 80 years, this [c]ourt
has recognized that ownership, operation, and maintenance of
property come with the common law duty to use reasonable care
so as not to cause harm to the neighboring property owners.”).
Specifically, it “recognized the general principle of law that,
within certain limitations, one must use [one’s] own rights and
property so as to do no injury to those of others.” Id. at 74 (cleaned
up). In accordance with this general principle, the Maryland court
stated that “the possessor of land is first of all required to exercise
reasonable care, with regard to any activities which he carries on,
for the protection of those outside of his premises.” Id. at 75
(cleaned up).

¶28 Lastly, we consider a world where no duty exists between
neighboring landowners when engaging in construction on their
land. Were there no duty, a landowner would face no
consequences for failing to exercise reasonable care, even if it
caused harm to a neighbor. As explained, see supra ¶ 20, any

1. At the time, the Court of Appeals was the name of Maryland’s highest court.

20231023-CA 12 2026 UT App 66
Rosser v. Elite Craft Homes

number of foreseeable harms to a neighbor could arise from
unreasonably undertaken construction activities. And we also
concluded that the burden of preventing harm is best borne by the
landowner who undertakes the activity and not the neighbor who
suffers the injury. See supra ¶ 23.

¶29 Accordingly, because the burden on landowners to
exercise reasonable care when engaged in construction is
“relatively slight, and given the high risk of injury that may
potentially result,” this factor supports imposition of a duty.
Herland v. Izatt, 2015 UT 30, ¶ 39, 345 P.3d 661.

E. The Duty Owed

¶30 In sum, three of the Jeffs factors favor imposing a duty of
care on Elite, and we determine that these three factors outweigh
the remaining two. We therefore conclude that the categorical
duty applicable in this case is as follows: landowners owe a
duty to adjoining landowners and inhabitants to exercise
reasonable care when they engage in construction activities on
their property.

¶31 Whether the facts in this case show a breach of that duty
and whether any breach caused Residents’ damages are questions
of fact, which Residents bear the burden of demonstrating. Of
course, Elite will be free to make motions for summary judgment
on breach or proximate causation after further development of the
record. “While any such motion will involve factual issues that
are usually reserved for the factfinder, the grant of such motions
is nevertheless sometimes appropriate . . . .” Estate of Schofield v.
Starbucks Corp., 2025 UT App 29, ¶ 32, 566 P.3d 777 (cleaned up).
We, of course, offer no opinion as to the merits of any potential
dispositive motion Elite may file.

¶32 Therefore, the district court erred in concluding that Elite
owed no duty of care to Residents, and on that basis we reverse
the grant of summary judgment.

20231023-CA 13 2026 UT App 66
Rosser v. Elite Craft Homes

II. Negligent Infliction of Emotional Distress

¶33 The district court granted summary judgment on the
negligent infliction of emotional distress claim based solely on an
absence of negligence because it found Elite owed Residents no
duty. As stated, see supra ¶¶ 30–32, Elite did owe Residents a duty
in this instance. We therefore must examine Elite’s alternative
argument for summary judgment on this claim.

¶34 Elite asserts that Residents’ evidence does not satisfy the
requirements for a negligent infliction of emotional distress claim.
A claim for negligent infliction of emotional distress allows
plaintiffs “within the zone of danger to recover for emotional
distress caused by fear for personal safety.” 5 Mower v. Baird, 2018
UT 29, ¶ 52, 422 P.3d 837 (cleaned up). Plaintiffs may also “recover
for emotional distress caused by witnessing injury to others . . .
when the plaintiff[s are] within the zone of danger created by the
defendant’s breach of duty.” Id. ¶ 53 (cleaned up). Here, the facts
related to the zone of danger and the requisite emotional distress
were disputed on summary judgment.

¶35 “Summary judgment is proper only where there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.” McCleve Props., LLC v.
D. Ray Hult Family Ltd. P’ship, 2013 UT App 185, ¶ 9, 307 P.3d 650

5. Our supreme court has “adopted the ‘zone of danger’ theory of
recovery for negligent infliction of emotional distress. This theory,
found in section 313 of the Restatement [(Second) of Torts (1965)],
allows recovery only for those who are victims of another’s breach
of duty. In other words, only those placed in actual peril as a result
of a defendant’s breach of duty are allowed recovery for negligent
infliction of emotional distress. Those outside the zone of danger
created by the defendant are not allowed recovery for the
emotional distress caused by witnessing the injury of others.”
Hansen v. Sea Ray Boats, Inc., 830 P.2d 236, 239 (Utah 1992) (cleaned
up).

20231023-CA 14 2026 UT App 66
Rosser v. Elite Craft Homes

(cleaned up). But the district court did not make a determination
as to whether these factual disputes were genuine and material to
these issues because it granted summary judgment to Elite on
Residents’ emotional distress claim based on a lack of duty owed.
“Because we are mindful that we are a court of review, not of first
view, and because we would value the district court’s analysis,
we remand for the district court to consider the merits” of Elite’s
arguments. R.O.A. Gen. Inc. v. Salt Lake City Corp., 2022 UT App
141, ¶ 39, 525 P.3d 100 (cleaned up).

¶36 Accordingly, we reverse the grant of summary judgment
on the negligent infliction of emotional distress claim, but we
make no determination on its merits.

III. Trespass

¶37 The district court granted summary judgment on
Residents’ trespass claim because they “failed to show that there
was any intent on the part of [Elite] to trespass on their property.”6
Residents now invite us to adopt a cause of action for negligent
trespass. For the reasons discussed below, we decline to adopt a
claim for negligent trespass because it is legally redundant.

¶38 “Utah cases have applied the definition of trespass onto
land found in section 158 of the Restatement (Second) of Torts.”
Carter v. Done, 2012 UT App 72, ¶ 17, 276 P.3d 1127. This form of
trespass is otherwise known as intentional trespass, and as the
name suggests, it requires the perpetrator to intentionally enter

1. The district court secondarily noted that “[t]o the extent that trespass can be based on negligence of [Elite], this claim would fail as a matter of law based on lack of duty.” Although we find there was a duty, this does not change the ultimate outcome because Utah does not recognize a negligent trespass claim. See infra ¶¶ 40–41.

20231023-CA 15 2026 UT App 66
Rosser v. Elite Craft Homes

the land of another. 7 Restatement (Second) of Torts § 158 (A.L.I.
1965). We also find further support that trespass must be
intentional in the forthcoming Restatement (Fourth) of Property,
wherein negligent trespass is disclaimed and it is clarified that

[t]o be subject to liability for trespass to land, the
actor must intend to make physical contact with, or
intend to remain on, or intend to cause a thing or
person to make physical contact with or remain on,
land that is in another’[s] possession. The actor need
not intend to violate another’[s] possessory rights.
Nor is it necessary for the actor to know, or to have
reason to know, that the land is in the possession of
the other.

Restatement (Fourth) of Prop. § 1.5 (A.L.I., Tentative Draft No. 2,
2021). 8

¶39 The “intent requirement of trespass is relatively
undemanding.” Id. cmt. b. A defendant need not intend to be on
the land of another; “it is necessary only that the actor
intentionally be upon any part of the land in question.” Gallegos v.
Lloyd, 2008 UT App 40, ¶ 11, 178 P.3d 922 (quoting Restatement

1. “At common law, trespass covered a much broader spectrum
   of tortious conduct than it does currently. In the past, the term
   ‘trespass’ not only applied to the intentional tort of trespass as we
   know it today, but also to other types of invasions of a property
   owner’s interests, i.e., intrusions resulting from negligent conduct
   or ultrahazardous conduct.” Brigham Young Univ. v. Paulsen
   Constr. Co., 744 P.2d 1370, 1372 n.2 (Utah 1987) (cleaned up).

2. Specifically, the tentative draft indicates that “[t]his Section
   replaces [the] Restatement of the Law Second, Torts §§ 164–66.”
   Restatement (Fourth) of Prop. § 1.5 cmt. a (A.L.I., Tentative Draft
   No. 2, 2021). The Restatement (Second) of Torts section 165
   included a cause of action for negligent trespass.

20231023-CA 16 2026 UT App 66
Rosser v. Elite Craft Homes

(Second) of Torts § 164 cmt. a (A.L.I. 1965)). This level of intent
encompasses a great deal of accidental invasions.

¶40 But plaintiffs are not left without recourse for negligent
trespass. Such conduct is covered by a general negligence claim
because a negligent trespass claim, like negligence, requires proof
of duty, breach, causation, and damages. See Restatement
(Second) of Torts § 165 cmt. d (A.L.I. 1965) (“The rules which
determine whether the actor’s conduct . . . is negligent as
involving an unreasonable risk of an invasion of the other’s
interest in the exclusive possession of land are the same as those
which determine . . . negligence of conduct as threatening bodily
harm.”). And even in states that recognize a claim for negligent
trespass, such claims are merged into a general negligence claim.
In Washington, for example, courts “treat claims for trespass and
negligence arising from a single set of facts as a single negligence
claim.” Pruitt v. Douglas County, 66 P.3d 1111, 1115 (Wash. Ct.
App. 2003).

¶41 Therefore, we decline to recognize this cause of action and
affirm the district court’s dismissal of Residents’ trespass claim.

IV. Nuisance

¶42 The district court dismissed Residents’ remaining claim for
nuisance because “the parties agreed and stipulated that absent
any other valid cause of action, the cause of action for nuisance
fails as a matter of law.” Because we reverse the district court’s
grant of summary judgment on several claims, we accordingly
reverse the grant of summary judgment on the nuisance claim.

CONCLUSION

¶43 We affirm the district court’s grant of summary judgment
on intentional trespass and conclude that Utah law does not
recognize a claim for negligent trespass. But we reverse the grant
of summary judgment on Residents’ other claims. In particular,

20231023-CA 17 2026 UT App 66
Rosser v. Elite Craft Homes

we conclude that Utah law recognizes that landowners owe a
duty to adjoining landowners and inhabitants to exercise
reasonable care when engaging in construction activities on their
property. We therefore reverse the grant of summary judgment
on Residents’ claims for negligence, negligent infliction of
emotional distress, and nuisance.

HARRIS, Judge (concurring):

¶44 I concur fully in the lead opinion. I write separately only to
express my view that I would have been interested in considering
adoption of section 54 of the Restatement (Third) of Torts:
Liability for Physical and Emotional Harm (Section 54), had
Residents made that request to the district court and to us. I urge
parties in relevant future cases, where appropriate, to ask for
adoption of the duty set forth in Section 54, so that courts may,
after full briefing, consider the question.

¶45 As an initial matter, I agree with the lead opinion’s
recitation that “Residents did not raise [S]ection 54 before the
district court, rendering any argument for its adoption
unpreserved.” See supra ¶ 16 n.2. And although Residents
mentioned Section 54 in passing in their opening brief, and then
included a more fulsome discussion of it in their reply brief, they
expressly stopped short, during oral argument before this court,
of asking us to adopt Section 54, in part because they
acknowledged that they had failed to make the request at the
district court level.

¶46 Instead, Residents asked us to recognize a more limited
duty, one the lead opinion describes as a duty owed “to adjoining
landowners and inhabitants to exercise reasonable care when they
engage in construction activities on their property.” See supra ¶ 30.
As articulated, this duty concerns only landowners’ “construction
activities,” and it does not apply to any other sort of activity

20231023-CA 18 2026 UT App 66
Rosser v. Elite Craft Homes

landowners might engage in on their land. Supra ¶ 30. Moreover,
this duty is owed only “to adjoining landowners and inhabitants”
rather than more generally to anyone not on the land. Supra ¶ 30.
From my perspective, these limitations inherent in the duty we
recognize in the lead opinion are driven largely by the scope of
the request made to us by Residents, who asked us to recognize
this more limited duty rather than the broader one described in
Section 54.

¶47 Section 54, which was adopted by the American Law
Institute in 2012, was intended to amalgamate three different
sections that had appeared in the Restatement (Second) of Torts.
See Restatement (Third) of Torts: Liab. for Physical and Emotional
Harm § 54 cmt. a (A.L.I. 2012) (stating that Section 54 was
intended to “replace[]” sections 364, 366, and 371 of the
Restatement (Second) of Torts). At its top line, Section 54
recognizes that any “possessor of land has a duty of reasonable
care for artificial conditions or conduct on the land that poses a
risk of physical harm to persons or property not on the land.” Id.
§ 54. Like the more limited duty we recognize in the lead opinion,
the Section 54 duty also applies “with regard to artificial
conditions on the land that were constructed or placed there by
other entrants, even if they were trespassers.” Id. § 54 cmt. b; cf.
Estate of Schofield v. Starbucks Corp., 2025 UT App 29, ¶ 18, 566 P.3d
777 (“[F]rom a duty perspective—as opposed to a breach
perspective—it does not matter whether a particular unsafe
condition is created by the business owner or by some other third
party . . . : a business owner has a duty to exercise reasonable
care—whatever that might entail in a particular case—to keep its
premises safe for invitees.”).

¶48 Yet the drafters of Section 54 were clear that the duty it
describes contains neither of the two limitations I referenced two
paragraphs earlier. In particular, the Section 54 duty is concerned
with any activity upon the land, not just construction, because
“[l]and possessors may engage in many different forms of activity
on their land that will pose risks to others off the land,” including

20231023-CA 19 2026 UT App 66
Rosser v. Elite Craft Homes

“build[ing] automobiles, dispens[ing] drugs, construct[ing]
structures, min[ing] coal, or engag[ing] in myriad other
activities.” See Restatement (Third) of Torts: Liab. for Physical and
Emotional Harm § 54 cmt. b (A.L.I. 2012). And the duty is owed
not just to people who come onto the land or even to adjoining
landowners, but it instead extends generally to anyone “not on
the land.” Id. § 54.

¶49 To my knowledge, no Utah appellate court has been asked
to adopt Section 54. And to my knowledge, no Utah court has
actually adopted any of Section 54’s predecessor sections.
However, on two occasions, Utah appellate courts have cited
approvingly two of Section 54’s predecessor sections. In AMS Salt
Industries, Inc. v. Magnesium Corp. of America, our supreme court
cited and applied section 364 of the Restatement (Second) of Torts,
which stated, in relevant part, that

“[a] possessor of land is subject to liability to others
outside of the land for physical harm caused by a
structure or other artificial condition on the land,
which the possessor realizes or should realize will
involve an unreasonable risk of such harm, if . . . the
condition is created by a third person without the
possessor’s consent or acquiescence, but reasonable
care is not taken to make the condition safe after the
possessor knows or should know of it.”

942 P.2d 315, 322–23 (Utah 1997) (quoting Restatement (Second)
of Torts § 364 (A.L.I. (1965)). The court proceeded to analyze
whether the facts of the case fit the section’s requirements,
ultimately concluding that they did not and that the defendant
“was clearly not liable under the Restatement.” Id. at 323.

¶50 And in Smith v. Bank of Utah, Inc., we cited, with apparent
approval, section 371 of the Restatement (Second) of Torts, which
stated that

20231023-CA 20 2026 UT App 66
Rosser v. Elite Craft Homes

“[a] possessor of land is subject to liability for
physical harm to others outside of the land caused
by an activity carried on by him thereon which he
realizes or should realize will involve an
unreasonable risk of physical harm to them under
the same conditions as though the activity were
carried on at a neutral place.”

2007 UT App 89, ¶ 8 n.2, 157 P.3d 817 (quoting Restatement
(Second) of Torts § 371 (A.L.I. (1965)).

¶51 Thus, while neither Section 54 nor any of its predecessor
sections have ever been adopted by Utah appellate courts, I
discern in our caselaw no judicial hostility to their concepts. And
I, for one, would be ready to consider adoption of Section 54 in an
appropriate case. I thus encourage parties who find themselves
embroiled in cases similar to this one to consider asking (first the
district court and then) an appellate court to do so, in order to
enable us to properly consider that request after full briefing.

20231023-CA 21 2026 UT App 66