author:
DURRANT, Associate Chief Justice:
      DURHAM, Chief Justice,

text:
    2002 UT 64
    Eric T. YOUNG, a minor, by and through Priscilla Young, his general guardian and guardian-ad-litem, and Priscilla Young, individually, Plaintiff and Appellant, v. SALT LAKE CITY SCHOOL DISTRICT and John Does 1-20, Defendants and Appellees.
    No. 20001144.
    Supreme Court of Utah.
    July 19, 2002.

      Robert B. Sykes, Salt Lake City, for plaintiffs.
    Mark L. Shurtieff, Att'y Gen., Brent A. Burnett, Barry G. Lawrence, Asst. Att'ys Gen., Salt Lake City, for defendants.
   DURRANT, Associate Chief Justice:

T1 This appeal concerns the duties owed by Salt Lake City School District ("the District") to Eric Young, an elementary school student who was injured while riding his bicycle to a mandatory parent-teacher-student ("PTS") conference. Because Young's injury occurred at a crosswalk outside the District's control, the district court held that the District owed Young no common law, regulatory, or statutory duties. We affirm, concluding that the District owed Young (1) no common law duties because it lacked a special relationship with him at the time of the accident, (2) no regulatory duties because rule 920-5-2(A)(8) of Utah's Administrative Code does not create a private cause of action, and (3) no statutory duties because the plain language of subsection 41-6-20.1(3) of the Utah Code applies only to entities that have the authority to enact traffic laws.

BACKGROUND

12 "Before we recite the facts, we note that in reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Higgins v. Salt Lake County, 855 P.2d 281, 288 (Utah 1998). We state the facts accordingly.

13 On October 15, 1996, a car driven by Linda Frost accidentally struck and injured Young, a minor, while he was riding his bicycle to a mandatory PTS conference at Dilworth Elementary, a school operated by the District. The accident occurred just opposite Dilworth Elementary at a crosswalk located at approximately, 1958 South 2100 East, Salt Lake City, Utah.

{4 On October 28, 1997, Young, acting through his mother, sued Jennifer Wimmer, claiming that she had parked illegally near the crosswalk and that her vehicle had obstructed both his view of oncoming traffic and Frost's view of pedestrians entering the crosswalk. Young did not sue Frost because of a prior settlement he had reached with her.

15 Young later amended his complaint on February 23, 1998, and added the District and Salt Lake City as defendants, alleging that (1) the District had failed to provide a crossing guard and flashing warning lights at the crosswalk and (2) Salt Lake City had failed to erect appropriate road signals (Le., a "no parking" sign and red curbs). Thereafter, Young amended his complaint a second, third, and fourth time.

16 In the last of these complaints, Young named the District and its agents as the sole defendants, asserting that the District had caused his injury in two ways. First, he claimed that the District had neglected to inform Salt Lake City of dangerous parking conditions of which it had knowledge near the crosswalk. Second, he alleged that the District had breached its duty to provide a crossing guard and flashing warning lights.

17 Subsequently, the District filed a motion for summary judgment, arguing, inter alia, that it had no duty to (1) inform Salt Lake City of dangerous parking conditions existing at the crosswalk, (2) supply a eross-ing guard, or (8) provide flashing warning lights. In response, Young claimed that the District had an obligation to protect him due to his special relationship with it, duties arising at common law, and obligations imposed by statute. The district court granted the District's summary judgment motion, concluding, among other things, that no "duty existed between the defendant and plaintiff with respect to traffic signs and conditions at or around the crosswalk."

T8 Young appeals, and we have jurisdiction pursuant to section 78-2-2@8)(j) of the Utah Code. Utah Code Ann. § 78-228)(J) (1999). On appeal, Young contends that the district court erred in granting the District's summary judgment motion for three reasons. To begin with, he argues that he had a special relationship with the District that obligated it to inform Salt Lake City of dangerous parking conditions present near the crosswalk. In particular, citing both case law and rule 920-5-2(A)(8) of Utah's Administrative Code, he contends that the District had a duty to prepare a safe routing plan for students attending Dilworth Elementary and that as a result of this duty it was obligated to inform Salt Lake City of hazardous parking conditions of which it had knowledge. Additionally, he alleges that the District had a self-imposed duty to report safety deficiencies to Salt Lake City. Finally, relying on subsection 41-6-20.1(8) of the Utah Code, he maintains that the District had a duty to provide both a crossing guard and flashing warning lights.

19 The District responds that it owed Young no common law duties because it lacked a special relationship with him at the time the accident occurred. It further argues that it did not owe Young any regulatory or statutory duties because (1) rule 920-5-2 of Utah's Administrative Code merely requires it to produce an informative routing plan and (2) the plain language of subsection 41-6-20.1(8) of the Utah Code applies only to entities that have the authority to enact traffic laws.

ANALYSIS

I. STANDARD OF REVIEW

110 Summary judgment is appropriate 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." Utah R. Civ. P. 56(c). "When reviewing a court's decision to grant summary judgment, we examine the court's legal conclusions for correctness." Tustian v. Schriever, 2001 UT 84, 118, 34 P.8d 755. Where this review requires us to examine statutory language, we look first to the plain meaning of the statute. State v. Casey, 2002 UT 29, T 20, 44 P.8d 756.

II. COMMON LAW DUTIES

111 Young initially contends that the District had an affirmative common law obligation to inform Salt Lake City of dangerous conditions of which it had knowledge existing at the crosswalk. He further argues that the District had a common law duty to provide both a crossing guard and flashing warning lights at the crosswalk the night of the PTS conference. We conclude that the District owed Young none of the aforementioned duties because it did not have a special relationship with him at the time of the accident.

§T12 In reaching this conclusion, we note that to prevail upon a negligence claim under Utah law, a plaintiff must establish, among other things, that the defendant owed him or her a duty of care. Williams v. Melby, 699 P.2d 723, 726 (Utah 1985); La-marr v. Utah State Dep't of Transp., 828 P.2d 585, 587 (Utah Ct.App.1992). Absent a showing that the defendant owed any duty, the plaintiff's claim has no merit, and he or she may not recover. Rollins v. Petersen, 813 P.2d 1156, 1159 (Utah 1991). "

113 Ordinarily, a person has no affirmative common law duty to protect another from harm. Gilger v. Hernandes, 2000 UT 28, 115, 997 P.2d 8305. There is an exception to this general rule, however, where a special relationship exists between the parties. Id. Here, Young claims that he had a special relationship with the District at the time he sustained his injury. We disagree.

114 To be certain, a special relationship may arise between a school district and a child attending one of its schools. See Pratt v. Robinson, 839 NY2d 554, 384 N.Y.S.2d 749, 349 N.E.2d 849, 852 (1976). The extent of this relationship is limited to the district's custody over that child, however. Id.; see also Norton v. Canamdaigua City Sch. Dist., 208 A.D.2d 282, 624 N.Y.S.2d 695, 697-98 (N.Y.App.Div.1995) (stating that the district's duty is limited by time and space). Indeed, when a school district has custody of a child, it acts as a substitute for the student's parents or guardian, Norton, 624 N.Y.S.2d at 697-98, and has a custodial duty of protection, Pratt, 884 N.Y.S.2d 749, 349 N.E.2d at 852. As the Restatement puts it, by taking custody of the child, the district has "deprived [the child] of the protection [from] his parents or guardian. Therefore, [it] ... is properly required to give him the protection which [he has lost]." Restatement (Second) of Torts § 820 emt. b. By comparison, when a school district lacks custody, it has no protective obligation and no special relationship exists. Id.; see also Norton, 624 N.Y.S.2d at 697-98. Accordingly, we must ascertain whether the District had custody of Young at the moment he was injured. We hold that it did not.

1 15 Our conclusion in this respect is based on several considerations. First, Young's elementary school had adjourned for the day, and he had been released into the care of his parents. Rife v. Long, 127 Idaho 841, 908 P.2d 143, 149 (1995) (noting that the child was not in the district's custody because his school had adjourned for the day and his parents had resumed control over his well-being). Second, Young's injury did not occur on premises within the District's control. Rather, Salt Lake City had the responsibility to maintain the crosswalk at which Young was injured. Cf. Norton, 624 N.Y.S.2d at 697-98 (stating that a school district's duty to a child is "limited by time and space"). As such, the District had no authority to regulate traffic at or near the crosswalk and could not have ordered any alterations or enhancements in the traffic signals governing the area. Lastly, at the time he sustained his injury, Young was not participating in a curricular, or extra-curricular, school-sponsored event; he was simply in the process of traveling to such an event. Cf. Pratt, 384 N.Y.S.2d 749, 349 N.E.2d at 853 (explaining that the district lacked custody onee it safely dropped off a student at his bus stop just like it would lack custody if "the child had been hurt while walking home from a neighborhood school").

T16 Given that the District did not have custody of Young at the time he suffered his injury, it lacked a special relationship with him at that time. The general rule that one has no affirmative common law duty to protect another from harm thus remained in effect. Consequently, we conclude that the District had no common law duty to inform Salt Lake City of dangerous conditions existing at or near the crosswalk, to request a crossing guard, or to provide flashing warning lights.

117 Chief Justice Durham disagrees with this conclusion, arguing that three other factors should be considered in determining whether a special relationship existed and that the District actually had custody over Young because he was within its orbit of control. In our view, however, the three additional factors she identifies as pertinent to whether Young had a special relationship with the District (Le., the foreseeability of the harm, Young's dependence on the District for safety, and the ease with which the District could have satisfied its obligation) are irrelevant to the question at issue. Foreseeability of harm does not address whether the District possessed a special relationship with Young because even if a dangerous condition was certain to cause harm, that fact, standing alone, reveals nothing about the relationship between the two parties. Likewise, the ease with which a party may fulfill a duty is irrelevant to whether a special relationship exists because that question assumes a party already has a duty. The inquiry thus begs the question we are seeking to resolve (ie., whether a duty exists). Finally, the dependence Young and his mother allegedly placed on the District has no relevance to whether a special relationship existed because any dependence they might have had hinges on whether the District had custody of Young or control over the street. Indeed, just because a district has a special relationship with a student at school, does not mean that a special relationship exists at all times. Pratt, 384 N.Y.S.2d 749, 349 N.E.2d at 852. Because the District had no ability to implement safety measures governing the city street and lacked custody of Young, we conclude that no special relationship existed. Cf. Cannon v. Univ. of Utah, 866 P.2d 586, 589 (Utah Ct.App.1993) (holding that the plaintiffs, who were en route to a basketball game, were not business invitees of the University of Utah at the time of their accident, and therefore had no special relationship with it, because they were injured on a city street, not university property).

118 We also disagree with Chief Justice Durham's opinion because it would dramatically expand tort liability. Indeed, despite the fact that the District had no authority to erect street signage, activate the flashing warning signals, or put crossing guards in place, she proposes that the District be made liable for failing to request that the city implement safety measures. It would be a dramatic expansion of tort liability, however, to suggest that Party A, which has no authority to implement safety measures, is nevertheless liable for Party B's failure to implement such measures simply because Party A failed to request that Party B do so. Moreover, although Chief Justice Durham attempts to place a geographic limitation on the duty she would establish, we see no reason why the application of her test would restrict the duty to areas "adjacent" to a school. For instance, if a group of elementary students lived in an apartment complex a mile away from their school and their principal learned about a hazardous condition near that complex that was likely to cause harm, all the elements of her test would be satisfied. Specifically, the students would be dependent on the principal for their safety, the harm would be foreseeable, and the District could easily satisfy its obligation by calling the city. Hence, the duty that Chief Justice Durham would create is incapable of being construed narrowly and would make it difficult, if not impossible, for courts of this state to apply any disciplined analysis from one case to the next.

19 We are similarly unpersuaded by her public policy argument that if no duty is imposed here "there is little hope that accidents such as this will be prevented," even though we too are extremely concerned with the protection of young children. In our opinion, the best opportunity to prevent accidents of this type rests with the entity that controls the street and therefore is authorized to implement safety measures, the automobile drivers, and the person who had custody of Young. Regardless, we think that any decision to expand liability to schools for failing to request that cities correct unsafe conditions on city-owned streets is a matter better left to the legislature.

III, STATUTORY AND REGULATORY DUTIES

120 We next examine whether the District owed Young any regulatory or statutory duties of care. With respect to this question, Young contends that the District had a mandatory regulatory duty to (1) "prepare ... a [safe] routing plan" for students attending Dilworth Elementary, (2) "outline . areas of concern" in that plan, and (8) send that plan to "local and state jurisdictions that have responsibility for highways within the [school's] boundaries." Utah Admin. Code R920-5-2(A)(8) (1996). He then argues that, based on these explicit regulatory duties, the District had a duty to inform Salt Lake City of known dangerous parking conditions existing near the crosswalk at which he was injured. We disagree.

{21 Although imposing some obligations on school districts, rule 920-5-2(A)8) of Utah's Administrative Code does not expressly impose liability on the District for not informing Salt Lake City of dangerous parking conditions of which it had knowledge. Moreover, we decline to infer liability from the wording of the regulation because the stated purpose behind rule 920-5-2(A)(8) is to ensure uniformity in traffic control devices and crossing guards, Utah Admin. Code R920-5-1(B) (1996) (declaring that the sole purpose behind rule 920-5-2(A)(8) is "to standardize, as much as possible, applications of traffic control devices and erossing guards on all public highways in the State of Utah"), not to make school districts Hable for any resulting inconsistencies. Further, in the absence of a clear indication from the regulation itself, we are "not generally in the habit of implying a private right of action...." Broadbent v. Bd. of Educ. of the Cache County Sch. Disk, 910 P.2d 1274, 1278 (Utah Ct.App.1996); see also Milliner v. Elmer Fox & Co., 529 P.2d 806, 808 (Utah 1974) (holding that where a eriminal statute did not provide for a private right of action, the matter was best left to the Legislature). The regulation at issue includes no such clear indication. Accordingly, we hold that no private right of action existed.

Relying on subsection 41-6-20.1(8) of the Utah Code, Young next asserts that the District had a duty to provide a crossing guard at the erosswalk the night he was injured. Pointing to that same subsection, he also alleges that the District had a duty to provide flashing warning lights. We conclude that the statutory provision on which Young relies does not support either contention. Specifically, subsection 41-6-20.1(8) of the Utah Code declares that "[flor all reduced speed school zones on highways . the local authority shall ... provide, train, and supervise school crossing guards [and] provide for the[] operation of ... warning lights ...." Utah Code Ann. § 41-6-20.1(8)(a)-(b) (1996) (emphasis added). The District does not qualify as a "local authority" as defined by the Code, however, because it cannot enact traffic laws. Indeed, for the purpose of chapter 6 of title 41 of the Utah Code, a "local authority" is restricted to "every county, municipal, and other local board or body having authority to enact laws relating to traffic under the constitution and laws of the state." Id. § 41-6-1(17). Accordingly, the plain language of subsection 41-6-20.1(8) of the Utah Code imposes no statutory duties on the District. See Rife, 908 P.2d at 149 (examining an almost identical statute and concluding that the school district clearly "does not fall within the definition of a 'local authority' ").

CONCLUSION

1 23 We hold that the District did not owe Young any common law duties at the time of the accident because it did not have a special relationship with him at that time. Further, the District did not owe Young any regulatory or statutory duties because rule 920-5-2(A)(3) of Utah's Administrative Code does not create a private right of action and the plain language of subsection 41-6-20.1(8) of the Utah Code applies only to entities that possess the authority to enact traffic laws. We therefore affirm the district court's summary judgment ruling.

1 24 Justice HOWE, Justice RUSSON, and Justice WILKINS coneur in Associate Chief Justice DURRANT'S opinion.

DURHAM, Chief Justice,

dissenting:

125 The majority concludes that the District had no common-law duty to inform Salt Lake City of conditions the District knew were dangerous to students because the District did not have a special relationship with the injured child. I respectfully dissent. Whether under the standards set forth in our prior case law or under the rules the majority imports from other jurisdictions, I am convinced that a special relationship existed between the injured student and the District. I would hold that under the cireumstances of this case-where the District knew of the dangerous conditions, the danger was immediately adjacent to the school, the District took no action to warn or protect students, and the child was injured while attending a mandatory school function-the District had at least the minimal duty of informing the city of the need for a safe crosswalk and crossing guard.

I. Utah Caselaw

11 26 In considering whether a special relationship existed between the District and the student, the majority focuses only on the question of whether the school had eustody over the child at the time of the injury. The majority takes this approach primarily from the comments to the Restatement (Second) of Torts and New York case law. This rigid inquiry, however, is contrary to the approach we have taken in the past when considering whether a special relationship exists. In Higgins, we reiterated the rule:

[UJulike the Restatement writers, we do not attempt in our duty analysis to rigorously maintain the artificial categorization that differentiates between cases based on whether the actor owes the duty to the victim or to the victimizer, ... nor do we apply the Restatement's precise formulation uncritically. Instead, we have taken a policy-based approach in determining whether a special relation should be said to exist and consequently whether a duty is owed.

Higgins v. Salt Lake County, 855 P.2d 281, 236-37 (Utah 1998); see also Wilson v. Valley Mental Health, 969 P.2d 416, 419 (Utah 1998); Rollins v. Petersen, 813 P.2d 1156, 1161-62 (Utah 1991); Ferree v. State, 784 P.2d 149, 151-52 (Utah 1989); Beach v. Univ. of Utah, 726 P.2d 418, 418 (Utah 1986). The policy approach, we noted, "is more realistic than that which would result from a broad reading of the Restatement, especially when one considers the fact that at bottom, the issue is one of negligence-a lack of reasonable care." Higgins, 855 P.2d at 287. A consideration of policy factors is necessary to a fair evaluation of tort duties:

It is meaningless to speak of "special relationships" and "duties" in the abstract. These terms are only labels which the legal system applies to defined situations to indicate that certain rights and obligations flow from them; they are "an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection."

Beach, 726 P.2d at 418 (quoting William Prosser, Law of Torts 338 (Bd ed.1964). Thus, in Higgins and its predecessors we abandoned the "mechanistic relational models" of the Restatement and based our analysis on "careful consideration of the consequences of imposing that duty for the parties and for society." Higgins, 855 P.2d at 287; 'see also Beach, 726 P.2d at 418.

1 27 In considering whether a special relationship exists, we have weighed a number of factors, including: (1) the foreseeability of the harm, see Wilson, 969 P.2d at 419-20; Higgins, 855 P.2d at 240; Rollins, 813 P.2d at 1162; Beach, 726 P.2d at 416-17; (2) the relationship between the parties, see Gilger v. Hernandes, 2000 UT 23, 1115 & 18, 997 P.2d 305; Wilson, 969 P.2d at 419; Higgins, 855 P.2d at 287; Beach, 726 P.2d at 415-16 & 418; and (8) the ease with which the defendant could have fulfilled the duty, see Gilger, 2000 UT 23 at T17, 997 P.2d 305; Wilson, 969 P.2d at 419; Higgins, 855 P.2d at 237; Beach, 726 P.2d at 418. Our sister states have considered a similar range of factors when determining whether a special relationship exists. California and Idaho, for example, weigh the following factors:

The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

Rife v. Long, 127 Idaho 841, 908 P.2d 143, 148 (1995) (quoting Isaacs v. Huntington Mem'l Hosp., 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653, 658 (1985) (citations omitted)).

{28 A consideration of these factors, with particular emphasis on the factors that we have found determinative in the past, leads to the conclusion that a special relationship existed here. First, the court should look to the foreseeability of the harm under the circumstances of the case. We have stated that "we will find a special relationship and consequent duty when a defendant knew of the likely danger to an individual or distinct group of individuals or when a defendant should have known of such danger.'' Higgins, 855 P.2d at 240; see also Wilson, 969 P.2d at 419-20; Rollins, 813 P.2d at 1162; Beach, 726 P.2d at 416-17. Foreseeability i§ necessarily a flexible concept:

Where the degree of result or harm is great, but preventing it is not difficult, a relatively low degree of foresecability is required. Conversely, where the threatened injury is minor but the burden of preventing such injury is high, a higher degree of foreseeability may be required.

Rife, 908 P.2d at 148-49 (quoting Sharp v. W.H. Moore, 118 Idaho 297, 796 P.2d 506, 509-10 (1990)). In this case, the risk of harm was great, as it is any time young children are compelled to cross busy streets. The burden of prevention, by contrast, was very low. The danger could have been avoided by a phone call. The District was required only to report the dangerous crosswalk and the need for a crossing guard to the city, The cirenmstances of this case extend well beyond the low degree of foreseeability required to find a special relationship. The District had every reason to know of the danger: the dangerous condition was adjacent to the school; parents had reported concerns about the crosswalk to the school; and the District itself scheduled the conference for a time when a crossing guard was not scheduled to be at the intersection. That a child could be seriously injured on the way to the conference was, therefore, quite fore-secable.

129 A second factor worthy of consideration is the underlying relationship between the parties. We have stated that "(tlhe essence of a special relationship is dependence by one party upon the other or mutual dependence between the parties." Beach, 726 P.2d at 415-16; see also Gilger,2000 UT 28 at ¶¶ 5 & 18, 997 P.2d 305. On the other hand, "[wle are loath to recognize a duty that is ... fundamentally at odds with the nature of the parties' relationship." Higgins, 855 P.2d at 237; see also Wilson, 969 P.2d at 419; Beach, 726 P.2d at 418. The majority embraces the concept that the school has a custodial relationship with its students while the students are within the charge of the school. The majority, however, applies this concept rigidly, presuming that onee a child steps beyond the schoolhouse gates the school relinquishes all responsibility for the child and fully transfers custody to the parents. Such a rule misapprehends the relationship between schools, parents, and students. The custodial relationship of the school and the parents over the child must properly be viewed as overlapping. The school's responsibility should be commensurate with its awareness of the danger, its ability to control the condition, and the degree to which parents reasonably rely upon the school to provide safety precautions. Here, it was the District that scheduled the conference for a time when no crossing guard would be at the intersection, the District that made attendance at the conference mandatory for children, the District that had been warned of the dangerous conditions, and the District that chose inaction by failing either to warn parents or remedy the situation. It is only natural that parents would rely upon the District-the entity that scheduled, ran, and required attendance at the conference-to ensure that the same safety precautions would be taken at night as were taken during the day. This dependence of the parents and children upon the District, in addition to the school's control over the cireumstances, makes the special relationship between the parties quite clear.

(30 A third factor to consider is the burden that such a duty would place upon the defendant. We have refused to find a special relationship if by doing so "the defendant in question would be unable to perform the duty without either radically changing its character or drastically cireumseribing the function it was charged with performing." Higgins, 855 P2d at 287; see also Gil-ger,2000 UT 28 at 117, 997 P.2d 305; Wilson, 969 P.2d at 419; Beach, 726 P.2d at 418. In this case, the burden such a duty would place upon the District is quite minimal and fits squarely within the character and function of the school's other duties. I would hold that the school only has a duty to report the dangerous conditions to the proper authority where the danger is contiguous to the school property and threatens an important pathway to the school. Placing the duty to report upon the school fits within the school's typical responsibilities, including ensuring safety of arriving children during class hours. Indeed, as the entity that schedules school activities, the school is in a better position than any other person or entity to report such a problem to the city. Surely, the duty to make a phone call is not burdensome.

131 Finally, it is worth considering the overarching policy of preventing future harm. The majority states that while the District had no duty to report the danger, "it would be salutary" for the District to assist the city in maintaining safe streets. Where the lives of children are at stake, I find it inadequate to describe the District's duty as merely salutary. It would be unrealistic to expect that the city could independently remain aware of all potentially dangerous conditions adjacent to school property and the intricate schedules of various schools. If the District has no duty to inform the city of dangers and the need for a crossing guard after hours, there is little hope that accidents such as this will be prevented.

IL Other Law

132 Even if I were to agree with the majority's abandonment of our precedent in analyzing common-law duties, I would still find a special relationship here under the approach the majority adopts from other jurisdictions. The majority finds the critical inquiry to be whether the school had "custody" of the child at the time of the accident. However, the cases cited by the majority in support of the proposition that the school district did not have custody are easily distinguishable.

83 In Rife v. Long, the court found that the school district owed no common law duty to a student who was "no longer in a relationship of control or supervision by the District." 127 Idaho 841, 908 P.2d 148, 148 (1995). In reaching this conclusion, however, the court first considered a number of factors, including the foreseeability of the harm and the policy consequences of finding a special relationship. Id. The court did not, as the majority suggests, lay down a general rule that a school has no duty to a child after classes have adjourned for the day. Rather, the court determined, based on the specific facts of that ease, that the student had no special relationship with the school at the time of the child's injury.

1 34 Even if the case were only concerned with custody, the facts of Rife are clearly distinguishable from the current case. The student in that case had crossed the school soccer field and was apparently a block or two beyond the soccer field when the accident occurred. Id. at 145. Here, the student was, quite literally, going in the other direction; he was coming back to school for a mandatory meeting, and was right in front of the school when the accident occurred.

135 The majority equates custody of the child with what it terms "control" over the dangerous cireamstances. In the middle of the discussion on custody, the majority states that Salt Lake City, not the District, had the responsibility to "maintain the crosswalk" where the accident occurred, and that this lack of "control" over the premises negated any duty the District might owe to the child. It then cites to Norton v. Canandaigua City School District, stating that the duty a school district owes to a child is "limited by time and space.'' 208 A.D.2d 282, 624 N.Y.S.2d 695, 697 (N.Y.App.Div.1995). While I do not disagree with this general proposition, it avails us little on these facts. There is no question the school was not required to supply a crossing guard or to establish a no-parking sign; these are statutorily defined as duties of the city. But maintenance of the crosswalk has nothing to do with who had custody of Young at the time he was injured. The issue is whether the District, because of the nature of its relationship with the child and its authority to request a crossing guard and no-parking sign, had a duty to report the need for such safety measures to the city.

136 In Norton, the student was hit by a car while crossing the street to wait for her bus to take her to school. Id. at 696. As in Rife, these facts are wholly different than the facts before us now. Unlike the current case, the child in Norton was not injured at a crosswalk adjacent to the school or where a crossing guard had been provided in the past.

Finally, in Pratt v. Robinson, a student was injured by a car at a busy intersection three blocks from where the school bus dropped her off for the day. 89 N.Y.2d 554, 384 N.Y.S.2d 749, 349 N.E.2d 849, 850 (1976). The court found that the school no longer had custody of the student at the time of her injury. It reasoned that the duty owed by the school to its student is

coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases.

Id. at 852 (emphasis added).

I 38 In Pratt, the court's use of the phrase "orbit of [the school district's] authority" is particularly apt to defining the physical parameters of the school district's responsibility to its students. While the Pratt court held that the school district does not owe a duty to a student crossing a busy street three blocks from where the school bus dropped her off, it conceded that by offering students the option of busing, the school district "extended its control over its pupils from the school door to the bus stop ...." Id. at 858. In the case before the court a similar "orbit" exists, defined by the extent to which the school had extended its authority over the passageway to the school. It is difficult to imagine how such an "orbit of authority" could be strictly limited by the school's formal boundaries and not reach the crosswalk immediately in front of the school building where the child was headed.

$39 For the foregoing reasons, I would hold that the District had a special relationship with the injured student and, consequently, the District had a duty to report the dangerous conditions to the city.

      . We note that Young's mother also sued in her individual capacity for loss of consortium. For the purposes of this appeal, however, we use Young's lawsuit to refer to all claims brought by him and his mother.

      . Young also sued the State of Utah regarding the validity of a Medicaid lien.

      . Young included no claim against Wimmer because he had settled with her. As for his claim against the State of Utah, the district court granted summary judgment in favor of the State. An explanation for his decision not to sue Salt Lake City is not included in the record.

      . Rule 920-5-2(A)(3) of Utah's Administrative Code declares as follows:
      Each elementary school shall prepare and update annually a routing plan. The plan shall show, as a minimum, the walking routes on the street system within the school boundaries, the school location, existing traffic controls, and established school crossings.... An explanation of the plan, instruction to parents to walk the route with their children, and an outline of areas of concern should also be included. The plan shall be reviewed annually by the School Traffic Safety Committee. After review by the Committee, the plan shall be sent to each parent whose children attend the elementary school, and to the local and state jurisdictions that have responsibility for highways within the elementary school boundaries.
      Utah Admin. Code R920-5-2(A)(3) (1996).

      . In so doing, Young points to the following provision from Salt Lake City School District's School Board Policies and Practices: "[the Council on School Safety Practices is a district committee to promote safety practices in the schools, including public awareness for safety practices related to schools and informing cooperating agencies who have responsibility for safety conditions. Such information shall include ... items related to school safety practices."

      . Although we conclude that the District had no common law duty to report a dangerous condition of which it had knowledge, we note that it would be salutary for school districts to assist cities in maintaining safe streets, especially where young children are involved. We urge school districts to report dangerous safety conditions of which they become aware.

      . The cases cited by Chief Justice Durham do not require that we examine foreseeability of harm for three reasons. First, Wilson, Higgins, and Rollins are distinguishable because they dealt with whether a medical provider owed a duty of care to an individual injured by a patient within the custody, or control, of the medical provider. Wilson v. Valley Mental Health, 969 P.2d 416, 419-20 (Utah 1998); Higgins v. Salt Lake County, 855 P.2d 231, 238 (Utah 1993); Rollins v. Petersen, 813 P.2d 1156, 1161-62 (Utah 1991).
      Second, those three cases, along with Beach v. University of Utah, 726 P.2d 413 (Utah 1986), clearly demonstrate that control over, or custody of, the primary person who caused the injury is a necessary prerequisite before engaging in a foreseeability of harm analysis. Indeed, in describing the meaning of Rollins and Beach, we stated in Higgins that
      [a] general principle can be drawn from these cases. -In the context of a claim that an actor having custody or control of another owed a duty to prevent harm to or by that other, our overriding practical concern is whether the one causing the harm has shown him- or herself to be uniquely dangerous so that the actor upon whom the alleged duty would fall can be reasonably expected, consistent with the practical realities of that actor's relationship to the one in custody or control, to distinguish that person from others similarly situated, to appreciate the unique threat this person presents, and to act to minimize or protect against that threat.
      Higgins, 855 P.2d at 237 (emphasis added). In Wilson, we used similar language to describe the meaning of Higgins, and noted that it and Rollins were "clearly on point.'' Wilson, 969 P.2d at 419. Accordingly, all four cases stand for the proposition that no foreseeability analysis is required if a party lacks custody over, or control of, the primary tortfeasor.
      Finally, Beach addressed foreseeability of harm only after noting that the plaintiff's argument concerning the existence of a special relationship rested primarily on the fact that the University's agent knew, or should have known, of the plaintiffs propensity to become disoriented after drinking. Id. at 416. As such, that case does not establish any requirement regarding the factors we must consider in determining whether a special relationship exists. Rather, at most, it supports the proposition that foreseeability of harm may be relevant in some situations. In our view, however, those situations are limited to circumstances comparable to Wilson, Higgins, and Rollins (i.e., where a party on whom a duty is sought to be imposed has control over, or custody of, an individual and that individual has injured another person).

      . Young also contends that by enacting some policies on its own initiative the District created a duty to report dangerous safety conditions to "cooperating agencies" such as Salt Lake City. We find this argument without merit for two reasons, however. First, the school board policy cited by Young does not create a private right of action against the District. Instead, employing ambiguous language, it simply says that the "Council on School Safety Practices is a district committee to promote safety practices in the schools, including ... informing cooperating agencies who have responsibility for safety conditions ... [of] items related to safety practices." Second, if we did impose liability on the District triggered by the enactment of some measures designed to improve traffic safety, we would create an incentive for districts to enact no such measures. This we decline to do.

      . It should be noted that this accident did not take place at an intersection blocks from the school or at a place where there was no history of providing safety precautions. The majority suggests that finding a special relationship in this case would "dramatically expand tort liability." To the contrary, following the policy-based analysis we have used in the past would help to ensure that liability is found only where the danger is known, nearby, and could have been easily remedied by the liable party. Indeed, rather than basing liability solely on a single factor that may have only marginal relevance, Le., "custo, dy," this analysis bases liability on the knowledge, ability, and responsibility of the tortfeasor. There is, therefore, no true risk of a slippery slope.


source: Caselaw Access Project

author: WILKINS, Justice:

license: Public Domain

text:
    2002 UT 70
    Brent D. YOUNG, Plaintiff and Appellee, v. SALT LAKE COUNTY and Aaron D. Kennard, Salt Lake County Sheriff, Defendants and Appellants.
    Nos. 20010101, 20010294.
    Supreme Court of Utah.
    July 23, 2002.

      Valerie Wilde, David E. Yocom, Salt Lake City, for defendants.
    Blake Nakamura, Salt Lake City, for plaintiff.
   WILKINS, Justice:

T1 Salt Lake County ("County") appeals the district court's grant of summary judgment in favor of Brent D. Young ("Young") requiring the County to disclose disciplinary records and investigative files. We affirm in part and reverse in part.

BACKGROUND

12 Young was employed by the Salt Lake County Sheriffs Department ("Sheriffs Department") as a deputy sheriff, Young's employment was terminated on January 14, 2000, allegedly for an incident involving use of his firearm and sexual innuendo. Young appealed his termination to the Sheriffs Department Merit Commission. In preparation for the appeal, Young requested that the County provide him with, among other records, copies of disciplinary records of other deputies who had been investigated and/or disciplined for similar conduct.

€ 3 The County denied Young's request for records. Pursuant to statute and the County's instructions, Young appealed this denial to the Salt Lake County Sheriff on March 28, 2000. On April 20, 2000, the Sheriff denied Young's appeal. On May 16, 2000, Young filed a complaint with the third district court seeking judicial review. of the Sheriff's denial of his appeal. The parties filed eross-mo-tions for summary judgment. On November 1, 2000, the district court entered an order granting Young's motion for summary judgment, concluding that (1) Young's request for judicial review was timely, (2) Young had a due process right in the requested information, and (8) Young's right to the information was not outweighed by the privacy interests of third parties. In so doing, it ordered the County to disclose "the disciplinary records and investigative files of any sworn member of the Salt Lake County Sheriffs Department where the conduct investigated concerned the inappropriate use or handling of a firearm or inappropriate sexual conduct, both verbal or physical," and allowed the County to make appropriate redactions in the ree-ords to prevent the disclosure of the parties' identities. The County filed a notice of appeal on November 18, 2000.

T4 Shortly thereafter, the County voluntarily withdrew its appeal to pursue the resolution of an attorney fees issue with the district court. The district court ultimately decided the attorney fee issue in favor of the County and entered an amended final order on March 9, 2001, which the County appealed to this court on March 13, 2001. Young filed a motion for summary disposition with this court, arguing that the County's appeal was untimely, rendering the court without jurisdiction to hear the appeal.

ISSUES PRESENTED & STANDARD OF REVIEW

15 The County's challenge to the district court's grant of summary judgment is founded on two primary issues: (1) whether Young's petition for judicial review of the Sheriff's decision was timely filed with the district court and (2) whether the district court was within its authority to order that the requested records be released. Young additionally argues that he should be awarded attorney fees for defending this appeal. We review the district court's grant of summary judgment for correctness, eg., Sur. Underwriters v. E & C Trucking, Inc., 2000 UT 71, 114, 10 P.8d 388, and address each issue in turn.

ANALYSIS

I. TIMELINESS OF YOUNCGS PETITION FOR JUDICIAL REVIEW

T6 Sections 638-2401 through -405 of the Utah Code govern the appeals process for records requests under the Government Records Access and Management Act ("GRA-MA"). Under the GRAMA statutory scheme, prior to seeking judicial review of a governmental entity's decision regarding records access, a requester must first file a notice of appeal with the chief administrative officer of the governmental entity. Utah Code Ann. § 68-2-401(1)(a) (1997). In cases such as Young's, the chief administrative officer has five days to make a determination on the appeal. § 63-2-401(5)(a). Failure to make a determination within five days "shall be considered the equivalent of an order denying the appeal." § 68-2-401(5)(b). Once the chief administrative officer has denied an appeal, the requester may appeal the denial to the records committee or petition a district court for judicial review. § 68-2-402(1). If the requester chooses to pursue judicial review, he or she must comply with section 63-2-404, which establishes the parameters under which a district court may review a governmental entity's decision to release or not release records. Of particular relevance here, section 63-2-404(2)(b) states that

[tihe requester shall file a petition no later than:
(i) 30 days after the governmental entity has responded to the records request by either providing the requested records or denying the request in whole or in part;
(i) 35 days after the original request if the governmental entity failed to respond to the request; or
(ii) 45 days after the original request for records if:
(A) the circumstances described in Subsection 638-2401(1)(b) occur; and
(B) the chief administrative officer failed to make a determination under Section 68-2-401.

§ 63-2-404(2)(b).

17 Pursuant to GRAMA, Young appealed the denial of his records request to the chief administrative officer of the Salt Lake County Sheriff's Department, the Salt Lake County Sheriff, on March 28, 2000. The Sheriff denied Young's appeal in a letter dated April 20, 2000, and on May 16, 2000, Young filed a complaint seeking review by the district court of the Sheriff's denial.

18 The County argues that Young's petition for judicial review was not timely filed with the district court, rendering that court without jurisdiction to adjudicate the GRA-MA issue. Specifically, the County points out that the Sheriff did not respond to Young's March 28, 2000, request within the five-day time period it argues is required under section 63-2401(b)(@)(). Thus, the County asserts, Young's request was deemed denied under section 63-2-401(5)(b), and, pursuant to section 63-2-404(2)(b)(i), Young had thirty-five days from the date of his March 28, 2000, request to petition the district court for review. The County would therefore have us hold that Young's petition, filed on May 16, 2000-more than thirty-five days after the March 28 request-was untimely. We do not agree with the County's reading of GRAMA.

19 Whether or not Young's appeal for review by the Sheriff was deemed denied by virtue of the Sheriffs failure to respond within five days is irrelevant in this particular case. The fact that the Sheriff did respond to Young's request enabled Young to file a petition for judicial review within thirty days from that response. See § 68-2-404(2)(b)(i). We so hold based on our reading of the plain language of section 68-2-404(2)(b) which, by including the word "or" between the three alternative time periods for filing, clearly allows any of the three alternatives to govern if applicable in a particular case.

1110 Our reasoning here is similar to that in Harper Investments, Inc. v. Auditing Division, Utah State Tax Commission, 868 P.2d 813 (1994). In Harper Investments, the Harper Companies sought judicial review of a Tax Commission decision under a statute allowing judicial review, provided the review was sought within thirty days of a final decision. Id. at 815; see § 63-46b-14(8)(a). Before seeking judicial review, however, the Harper Companies filed a petition for reconsideration pursuant to statute with the Tax Commission on May 4, 1992. Harper Investments, 868 P.2d at 815; see § 63-46b-13(1)(a); see also § 63-46b-1(9). In spite of the fact that the relevant statute provided that petitions for reconsideration were "considered to be denied" if the Tax Commission did not respond within twenty days, see § 63-46b-18(8)(b), the Tax Commission denied the petition on June 3, 1992, more than twenty days later. Harper Investments, 868 P.2d at 815. The Harper Companies sought judicial review on July 1, 1992. Id. The Tax Commission argued that "the thirty-day period for seeking judicial review began to run on May 25, 1992, twenty days from the day on which the Harper Companies petitioned for reconsideration." Id. In holding that the Harper Companies' petition was timely, we explained:

When the Harper Companies chose not to file their petition for review within the twenty-day period, they assumed the risk that there would be no order from the Commission. They would have missed the deadline if the Commission had never issued its final decision of June 8, 1992. However, because the Commission chose to consider the petition for reconsideration and to act on it by issuing an order, the period for seeking review did not begin to run until the date of that final opinion. As a result, once the order was issued, the Harper Companies had an additional thirty days to file, and they did so.

Id. at 816.

{11 Likewise, by not filing a petition for judicial review within the thirty-five-day period required by section 63-2-404(2)(b)@M), Young assumed the risk that the Sheriff would not respond to his request. Had the Sheriff not responded, Young's request would have been deemed denied, $ 683-2-401(5)(b), and Young would have had thirty-five days from the date of his original request to the Sheriff to file a petition. § 63-2-404(2)(b)(ii). Because, however, the Sheriff chose to respond to Young's request, Young had thirty days from the date of the response to file a petition. § 638-2-404(@)(b)0M). Young's petition-filed within thirty days after the Sheriff's response-is therefore timely, and we conclude the district court had jurisdiction over the petition.

II. AUTHORITY OF DISTRICT COURT TO ORDER RELEASE OF RECORDS

12 The district court concluded that section 63-2-202(7)(e) of the Utah Code gave it authority to order the disclosure of the disputed records. The County attacks this conclusion, arguing that section 63-2-202(7) gives a court such authority only when "the record [to which access has been denied] deals with a matter in controversy over which the court has jurisdiction," Utah Code Ann. § 63-2-202(7)(a) (1997), and that because the district court had no jurisdiction over the matter in controversy-Young's termination proceedings-the district court had no authority to order release of the records. 'While the district court correctly concluded that it had authority to order the disclosure of records, this authority derives from seetion 63-2-404, not section 68-2-202.

1 13 Section 68-2-202 specifies the parameters under which a governmental entity shall provide access to private, controlled, and protected documents. See generally § 63-2-202. Section 63-2-202(7) specifically authorizes a governmental entity to disclose records pursuant to a court order, provided the court order complies with specified parameters. See § 63-2-202(7)(a-e). Section 63-2-202(7) does not, however, specifically confer authority upon a court to order the disclosure of such records. This authority is conferred upon courts in section 638-2-404, which deals with judicial review of disclosure requests.

1 14 Under section 68-2-404, "[a] requester may petition for judicial review by the district court of a governmental entity's determination .." § 68-2-404(2)(a). The only prerequisites to this review are that the petition must be timely filed, § 63-2-404(2)(b); see infra Part I, that the petition be in the form of a complaint, § 63-2-404(8), and that the proceedings be governed by the Utah Rules of Civil Procedure. § 63-2-404(5). Section 68-2404 authorizes the district court to review the governmental entity's decision de novo, § 638-2-404(7)(a), and decide the issue by considering and weighing the various interests and public policies for or against disclosure. § 63-2-404(8)(a). The district court may impose restrictions on the disclosure. § 68-2-404(8)(b).

T 15 In this case, Young followed the proper appeals procedure established in sections 63-2401 to 405 of GRAMA. Pursuant to section 63-2401, Young appealed the County's determination to the Sheriff, After the Sheriff denied Young's request, Young exercised his option under section 63-2402 to appeal this determination to a district court. Young then properly filed a petition with the district court pursuant to section 63-2404, and the district court properly exercised the authority conferred upon it by section 63-2-404 to consider Young's petition.

1116 Regardless of the district court's authority under GRAMA to review Young's petition, the County asserts that the district court failed to consider the effect of section 17-30-19 in ordering disclosure of records, and argues that this section prohibits the release of the unappealed disciplinary records of other deputies. Section 17-80-19 provides, in relevant part:

(1) Each person who orders the demotion, reduction in pay, suspension, or discharge of a merit system officer for any cause set forth in Section 17-80-18 shall:

(a) file written charges with the commission; and

(b) serve the officer with a copy of the written charges.

(2)(a)(i) An officer who is the subject of charges under Subsection (1) may, within ten days after service of the charges, appeal in writing to the commission.

(ii) In the absence of an appeal, a copy of the charges under Subsection (1) may not be made public without the consent of the officer charged.

§ 17-830-19(1), (2) (emphasis added).

117 Section 17-80-19 clearly states that charges, as narrowly defined in the statute, are not public records if the charges have not been appealed. § 17-80-19(2)(a)(@i). Young requested that the County disclose, among other things, "[alny records concerning any investigation of any member of the Salt Lake County Sheriffs Department that concerned an improper use or handling of a firearm or that concerned any sexually inappropriate behavior, both verbal or physical." The district court explicitly considered section 17-30-19 and held that, notwithstanding section 17-80-19, it had authority to order the disclosure of "disciplinary records and investigative files of any sworn member of the Salt Lake County Sheriff's Department where the conduct investigated concerned the inappropriate use or handling of a firearm or inappropriate sexual conduct, both verbal or physical." In arriving at this conclusion, the district court appears to have followed the proper procedure under GRAMA, which gives the district court authority to, "upon consideration and weighing of the various interests and public policies pertinent to the classification and disclosure or nondisclosure, order the disclosure of information ... if the interest favoring access outweighs the interest favoring restriction of access." § 63-2-404(8)(a). While the district court appears to have attempted to weigh the various interests and public policies relevant to Young's request in arriving at its conclusion, we disagree with its conclusion that disclosure of the requested records is appropriate to the extent the order requires disclosure of un-appealed charges under section 17-80-19.

18 In enacting section 17-80-19, the legislature made a policy determination that un-appealed charges are not to be made public "without the consent of the officer charged." § 17-80-19(@)(a)@i). In light of this explicit legislative pronouncement, we do not see how any interests can outweigh this determination. In arriving at this conclusion, we note that GRAMA gives significant weight to state statutes in determining whether or not disclosure of a document is appropriate. See § 63-2-201(8)(b) (stating that records to which access is restricted pursuant to another state statute are not public records); see also § 63-2-801(2)(0) (stating that while information relating to formal charges or disciplinary action against governmental employees is normally of public record, access to such records may be restricted under section 63-2-201(8)(b)). Thus, to the extent the district court's order requires the release of un-appealed charges as narrowly defined in seetion 17-30-19, we reverse the district court and remand for an order consistent with this opinion. We affirm the district court's order otherwise.

III, ATTORNEY FEES

1119 Young asks us to award attorney fees under Utah Rule of Appellate Procedure 33(a) for his defense of this appeal as the County's appeal is, according to Young, "frivolous." Specifically, Young asserts that the County's arguments are "contrary to the plain language of the statutes upon which they rely" and its interpretation of the relevant statutes is "contrary to the intent of the statutes [and is] therefore not warranted by existing law or based on a good faith argument to extend, modify{,] or reverse existing law." Young's argument is without merit. While we have not accepted all of the County's arguments, the County's appeal is not frivolous as it is based on a reasonable legal and factual basis. See, e.g., O'Brien v. Rush, 744 P.2d 306, 310 (Utah Ct.App.1987) (defining frivolous appeal as an appeal having no reasonable legal or factual basis).

CONCLUSION

[ 20 Young's petition for judicial review of the Sheriff's denial of his records appeal was timely filed with the district court pursuant to section 68-2-404(2)(b)(i) of the Utah Code. The district court had authority to order the disclosure of the requested records under section 68-2-404, except to the extent that un-appealed charges as defined in section 17-80-19 would be disclosed. The County's appeal is not frivolous and we accordingly deny Young any attorney fees. We affirm in part, reverse in part, and remand to the district court to modify its order to preclude the disclosure of any un-appealed charges as narrowly defined in section 17-80-19.

4[ 21 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice RUSSON concur in Justice WILKINS opinion.

      . We deferred ruling on Young's motion for summary disposition and now deny the motion. Young's motion is based on confusion caused by his sending a document titled "Notice of Claim for Attorney Fees" to the County. This claim was stylized as a pleading, see Utah R. Civ. P. 10, was served on the County, and resulted in the County's voluntary dismissal of its appeal. More importantly, both parties sought action by the district court on the issues related to the claim for atiorney fees and the district court acted on those requests. As such, we see no abuse of discretion in the district court's decision to adjudicate the issue of attorney fees. The County has timely appealed the district court's amended ruling within the thirty-day time period mandated by Uiah Rule of Appellate Procedure 4(a).

      . The County implicitly argues that section 63-2-401(5)(a)(i) bars the Sheriff from responding to GRAMA requests after five days and cites Rether-ford v. Industrial Commission, 739 P.2d 76 (Utah Ct.App.1987) in support of the proposition that the Sheriff may not change statutory jurisdictional requirements. Although this is a correct reading of Retherford, the Sheriff's response to Young's request after five days did not violate any statutory requirements. While it is true that section 63-2-401(5)(a)(i) requires the chief administrative officer to make a determination on a GRAMA appeal within five days where no claim of business confidentiality has been made, see § 63-2-401(5)(a), section 63-2-401(5)(c) authorizes the parties to extend the specified time periods by agreement. Although the parties have not argued this point, the Sheriff's choice to respond to Young's request outside of the five-day period and Young's choice to rely upon that response as the basis of his petition for judicial review shows an implicit agreement to extend the period. Consequently, we see no statutory bar to the Sheriff's response.


author: HOWE, Justice:

text:
    2002 UT 71
    In re Kathleen G. ARNOVICK, Valerie L. Cox, and Henry B. Wansker, Petitioners.
    No. 20010136.
    Supreme Court of Utah.
    July 26, 2002.

      Carolyn Montgomery, Salt Lake City, for petitioners.
    Katherine A. Fox, Joni Dickson Seko, Salt Lake City, for respondent Utah State Bar.
   INTRODUCTION

HOWE, Justice:

1 Petitioners Kathleen G. Arnovick, Valerie L. Cox, and Henry B. Wansker appeal from the findings of fact and final determination of the executive committee of the Utah State Bar denying them admittance to the Bar.

BACKGROUND

12 Arnovick and Cox as "student applicants" and Wansker as an "attorney applicant" took the July 2000 Utah Bar Examination. Al three failed to pass. The examination, as constructed, did not differ from other recent examinations; it contained 200 Multi-state Bar Examination multiple choice questions and 12 essay questions given over a two-day period. Wansker was required to answer only the essay questions. During the grading process, an essay question dealing with tort law was determined to be defective and was not graded. Consequently, each student applicant's final score combined the points they garnered on the Multi-state with the points they earned answering the remaining 11 essay questions.

T3 Upon learning of their failure, Arno-vick, Cox, and Wansker separately petitioned the Executive Committee of the Utah State Bar, contending that substantial irregularities in the construction, administration, and grading of the examination process resulted in manifest unfairness and denied them due process and equal protection under the Fourteenth Amendment of the United States Constitution. The Admissions Committee Panel of the Bar considered the petitions and ree-ommended to the Executive Committee that they be denied. Thereafter, petitioners filed responses to the Admission Committee Panel's findings with the Executive Committee. Following an oral hearing, the Executive Committee prepared findings of fact and final determination for each petitioner, denying him or her relief. Sometime during the review process, petitioners learned that the examinations of five other applicants who had originally failed the examination were regraded, and those applicants were given passing grades.

4 4 Petitioners appeal.

ANALYSIS

I.

¶ 5 Under article VIII, section 4 of the Utah Constitution, this court is empowered to govern the practice of law in Utah, including the admission to practice. In re Petition of John Randolph-Seng, 669 P.2d 400, 401 (Utah 1983). The Board of Bar Commissioners assists us in fulfilling this responsibility, acting as an arm of the court in determining the qualifications and requirements for admission to practice law and in conducting examinations of applicants. Id.; see also In re Admission of D. Eugene Thorne to the Utah State Bar, 635 P.2d 22, 23 (Utah 1981). Because the Board of Bar Commissioners acts as our agent, our review of its decisions is not on the same footing as the review of a judgment of a trial court or an administrative agency. We may exercise judgment independent of the Bar Commission whenever we deem it appropriate. In re Thorne, 635 P.2d at 23. We have generally chosen, however, to "indulgle] some deference to its findings and judgments," and have stated that "the Court should not disturb what the Commission has done unless the petitioner clearly demonstrates that he has been treated in an unfair, unreasonable or arbitrary manner." Id. Consequently, we review the actions of the Bar and the Bar examination process to determine if they clearly demonstrate that the petitioners have been treated in an unfair, unreasonable, or arbitrary manner.

T6 Petitioners contend that the Bar has treated them in an unfair and arbitrary manner and urge us to either admit them to the Bar or require all July 2000 Bar applicants to retake the examination. In support of their position, petitioners point to a number of alleged irregularities in the construction, administration, and grading of the examination that they contend contributed to their unfair or arbitrary treatment: (1) the Bar's failure to draft a proper torts question; (2) the Bar's decision not to grade the answers to the improperly drafted torts question; (8) the Bar's assignment to the applicants of identifiable examination numbers; (4) the Bar's utilization of graders who lacked professional expertise; (5) the Bar's use of an insufficient calibration process; (6) the Bar's failure to allocate to the graders a sufficient amount of time to grade the essays; (7) the Bar's use of curving techniques in determining scores; (8) the Bar's over-weighting of the remaining 11 essay questions; (9) the Bar's refusal to grant petitioners' discovery request; (10) the Bar's decision to regrade the examinations of, and subsequently admit, five failing applicants whose scores fell within one point of a passing score.

T7 We have carefully reviewed each of these allegations and find that petitioners have failed to establish that they have been treated in an unfair or arbitrary manner. Petitioners have provided us with an unre-viewed and unsubstantiated statistical analysis of the examination, noting that in some instances the Bar did not comply with its operating procedures. They have also speculated that various parts of the examination process might have resulted in arbitrary or unfair treatment.

T8 The irregularities pointed out by petitioners, however, do not convince us that the Bar treated them in an unfair manner. See Application of Bettine, 840 P.2d 994, 997 (Alaska 1992) (stating that even though criticisms of grading procedure were convincing from pure mathematical standpoint, they still did not show abuse of discretion). Petitioners do not and cannot demonstrate that the Bar singled them out for unfair treatment. Indeed, it appears that petitioners experienced very little, if anything, not experienced by the other examinees. Every applicant's torts essay was eliminated from the final score; each applicant's examination was subject to the same grading, calibrating, and scoring process; each applicant was able to earn the same amount of total points on the essays, and each applicant's total points earned were scaled to the MBE seores using the same formula; the same review provisions were available to all examinees takers; the Bar regraded the examination of all failing applicants whose seores fell within one point of a passing grade.

T9 Moreover, petitioners fail to demonstrate that they have been treated in an arbitrary manner. To the contrary, the Bar's conduct in relation to the examination appears measured, disciplined, and reasonable given the cireumstances. For example, petitioners assert that they may have been injured by the Bar's decision not to grade the torts essay question and by the Bar's grading procedures in general. Before deciding not to grade the torts essay, however, the Bar consulted the grading committee and the Director of Testing for the National Conference of Bar Examiners, evidencing that the Bar's decision was a deliberate and reasoned attempt to preserve the validity of the examination. Before grading the remaining essays, graders engaged in a calibration process designed to ensure uniformity in the grading process. The record contains no evidence that the graders ignored the calibration techniques, randomly assigned seores, or inaccurately reported those scores. The record also fails to support the assertion that the Bar graders "curved" the examination; the document upon which petitioners base this assertion was completed after the grading was finished and was not used to determine examination scores. Nor does the record show that the scaling of the scores from the 11 essays to the scores from the MBE examination was arbitrary-even if we assume that the scaling resulted in each of the essay questions being worth more than five points, a contention which petitioners have not established.

'I 10 Petitioners have also enjoyed the benefit of an extensive grievance procedure, including (1) the filing of their complaint, (2) the review of their complaint by the Admissions Committee, together with its findings of fact and recommendations, (8) the petitioners' written response to those findings and recommendations, (4) an oral hearing, and (5) a review and formal findings by the Executive Committee of the Bar. The record indicates that during this process the Bar applied the proper standard for evaluating petitioners' claims, namely, that "relief shall be granted only upon a showing that the petitioner failed the examination because of a substantial irregularity in the administration of the examination, which resulted in the manifest unfairness or because of mathematical inaccuracy in the scoring process." Utah State Bar, Bar Examination Review and Appeal Procedure (1991).

111 Furthermore, during the review process, pursuant to Bar Admission Rule 11, approved by this court, the Bar made available to petitioners (1) the essay questions, (2) the applicants' answers, and (8) sample answers for each question. Additionally, the Bar made available an outline of Bar examination passing rate data, a copy of the Bar Examination Grievance Appeal Procedure, an article on equating the MBE and essay scores, copies of the ethics question grading sheets, answers and seore summaries, a copy of the Bar Examiner Grading Handbook, and a copy of a letter explaining how examinations are scored. Consequently, "we are not persuaded that [petitioners] have been dealt with in such [an arbitrary] or unfair manner that we should interfere with" the ruling of the Executive Committee of the Bar. In re Thorne, 635 P.2d at 24.

{12 Obviously, as the arm of this court, the Bar must do its utmost to adhere to the rules, policies, and procedures that we have approved for their governanee. When deviations from these rules, policies, and procedures occur, it is expected that the Bar will take whatever steps are necessary to insure that such deviations do not occur again in future examinations. However, lapse from strict compliance with the rules and procedures, while certainly a cause for concern on our part, does not automatically mean that the Bar has acted in an arbitrary or unfair manner.

IL.

113 Closely intertwined-indeed, often overlapping-with petitioners' allegations that the Bar treated them in an unfair and arbitrary manner are their allegations that the Bar has denied them equal protection and due process under the Fourteenth Amendment of the United States Constitution. Obviously, "[a] State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.'' Schware v. Bd. of Bar Exam'rs, 353 U.S. 232, 238, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). Nevertheless, individuals rarely succeed in arguing that their constitutional rights have been violated by Bar examination procedures. See Thomas J. Goger, Validity Under Federal Constitution of State Bar Examination Procedures, 30 A.L.R. Fed. 984 (1976). The petitioners in this case are no exception.

A. EQUAL PROTECTION

¶ 14 Under the Equal Protection Clause of the Fourteenth Amendment and in the absence of a fundamental right or a protected class, states may treat similarly situated people differently if a reasonable basis exists for doing so. State v. Herrera, 1999 UT 64, ¶ 25, 993 P.2d 854. Petitioners argue that the Bar denied them equal protection when it subsequently regraded the examinations of and awarded passing scores to five other applicants who had originally failed but did not regrade petitioners' examinations. In so doing, the Bar followed the procedure outlined in the Utah Bar Examiner's Committee Grading Handbook, which provides that the Bar shall regrade the essay questions of only those failing applicants whose scores fall within one point of the required minimum passing seore. Due to the heavy administrative burdens involved in regrading, this policy is completely reasonable, and consequently the Bar did not violate petitioners' right to equal protection. This practice of the Bar to regrade when an applicant comes within one point of passing is a salutary one and recognizes that grading the answer to an essay question cannot be done with exact mathematical precision. This practice should be encouraged since it works in favor of the applicants. Accord Tyler v. Vickery, 517 F.2d 1089, 1103 (5th Cir.1975), cert. denied, 426 U.S. 940, 96 S.Ct. 2660, 49 L.Ed.2d 393 (1976) (stating "(Ht is curious logic to condemn the examiners for utilizing practices designed to recognize the inherent limitations of testing and for attempting to give the benefit of the doubt to applicants who may have been adversely affected by those limitations").

B. SUBSTANTIVE DUE PROCESS

¶ 15 The Due Process Clause of the Fourteenth Amendment allows states to substantively regulate economic rights if such regulation bears a rational relation to a constitutionally permissible objective. See Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963) (Harlan, J., concurring); Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Accordingly, a state may "require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar" without violating the Due Process Clause, as long as "any qualification [has] a rational connection with the applicant's fitness or capacity to practice law.'' See Schware v. Bd. of Bar Exam'rs, 353 U.S. at 238, 77 S.Ct. 752; In re Randolph-Seng, 669 P.2d at 402. Petitioners argue that the Bar denied them substantive due process through its lack of appropriate appeal procedures and denial of discovery requests. We find nothing, however, to indicate that the Bar procedures, as currently constituted, do not bear a rational relationship with the legitimate objective of regulating the admission to the Bar in this state and hold therefore that petitioners' right to substantive due process has not been denied.

C. PROCEDURAL DUE PROCESS

The Due Process Clause also "imposes constraints on governmental decisions which deprive individuals of liberty or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 882, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Determining the due process required in a given situation demands that we weigh:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. 893; see also V-1 Oil Co. v. Dep't of Envtl. Quality, 939 P.2d 1192, 1196 (Utah 1997). Relying on these factors, petitioners argue that they have been denied due process because their interest in passing the examination is great, the Bar could easily provide greater procedural protection to petitioners, and the Bar has no legitimate interest other than providing due process to those who take the examination. Our weighing of these factors, however, leads to a different conclusion. In considering the first factor, we observe that the Bar's decision does not permanently deny petitioners the ability to practice law in Utah; they may retake the examination until they pass it. See Lucero v. Ogden, 718 F.2d 355, 359 (10th Cir.1988), cert. denied, 465 U.S. 1035, 104 S.Ct. 1308, 79 L.Ed.2d 706 (1984) (due process satisfied where applicant had unqualified right to retake examination). Turning to the second factor, we observe, as noted above, that petitioners have received the benefit of an extensive review process culminating in their appearance before this court. Given the extensive nature of this review process, the risk of error in the Bar's decision seems to us to be small and the probable value of additional procedural safeguards would be minimal. See Giannini v. Real, 911 F.2d 354 (9th Cir.1990), cert. denied, 498 U.S. 1012, 111 S.Ct. 580, 112 L.Ed.2d 585 (1990) (allowing applicant to see examination and petition state supreme court for review of denial of admission satisfied due process). Finally, in considering the third factor, we note that the fiscal and administrative costs of imposing any additional procedures on the Bar outweigh the benefit that such procedures could provide, especially given the ever-increasing number of Bar applicants With these factors clearly in mind, we therefore hold that petitioners in this case enjoyed adequate procedural due process.

CONCLUSION

1 17 We are not unaware that a typical Bar applicant sacrifices a great deal of time and energy in preparation for the examination, nor are we unsympathetic to the significant-even painful-personal and professional repercussions that may accompany a failure to pass the examination. Nevertheless, amorphous assertions regarding the unfair nature of the examination, unaccompanied by supporting evidence, do not establish a violation of constitutional rights or unfair or arbitrary treatment. We therefore affirm the findings of fact and final determinations of the Executive Committee of the Utah State Bar denying petitioners admission to the Bar.

18 Chief Justice DURHAM, Associate Chief Justice, DURRANT, Justice RUSSON, and Justice WILKINS concur in Justice HOWE'S opinion.

      . Arnovick subsequently took the February 2001 examination, passed it, and was admitted to the Bar.


author: RUSSON, Justice:

text:
    2002 UT 74
    Namvar TAGHIPOUR, Danesh Rahemi, M.D., and Jerez, Taghipour and Associates LLC, a Utah limited liability company, Plaintiffs and Petitioners, v. Edgar C. JEREZ, Mt. Olympus Financial, L.C., a Utah limited liability company, and Dean Becker, Defendants and Respondents.
    No. 20010450.
    Supreme Court of Utah.
    July 30, 2002.

      Bruce R. Baird, Salt Lake City, for plaintiffs.
    Blake S. Atkin, Gregory P. Hawkins, Salt Lake City, for Jerez and Mount Olympus Financial.
    Dean Becker, pro se.
   On Certiorari to the Utah Court of Appeals

RUSSON, Justice:

1 On a writ of certiorari, Namvar Taghip-our, Danesh Rahemi, and Jerez, Taghipour and Associates, LLC, seek review of the decision of the court of appeals affirming the trial court's dismissal of their causes of action against Mount Olympus Financial, L.C. ("Mt.Olympus"). We affirm.

BACKGROUND

12 Namvar Taghipour, Danesh Rahemi, and Edgar Jerez ("Jerez") formed a limited liability company known as Jerez, Taghipour and Associates, LLC (the "LLC"), on August 30, 1994, to purchase and develop a particular parcel of real estate pursuant to a joint venture agreement. The LLC's articles of organization designated Jerez as the LLC's manager. In addition, the operating agreement between the members of the LLC provided: "No loans may be contracted on behalf of the [LLC] ... unless authorized by a resolution of the [mlembers."

~ 118 On August 31, 1994, the LLC acquired the intended real estate. Then, on January 10, 1997, Jerez, unbeknownst to the LLC's other members or managers, entered into a loan agreement on behalf of the LLC with Mt. Olympus. According to the agreement, Mt. Olympus lent the LLC $25,000 and, as security for the loan, Jerez executed and delivered a trust deed that conveyed the LLC's real estate property to a trustee with the power to sell the property in the event of default. Mt. Olympus then dispensed $20,000 to Jerez and retained the $5,000 balance to cover various fees. In making the loan, Mt. Olympus did not investigate Jerez's authority to effectuate the loan agreement beyond determining that Jerez was the manager of the LLC.

{ 4 After Mt. Olympus dispersed the funds pursuant to the agreement, Jerez apparently misappropriated and absconded with the $20,000. Jerez never remitted a payment on the loan, and because the other members of the LLC were unaware of the loan, no loan payments were ever made by anyone, and consequently, the LLC defaulted. Therefore, Mt. Olympus foreclosed on the LLC's property. The members of the LLC, other than Jerez, were never notified of the default or pending foreclosure sale.

15 On June 18, 1999, Namvar Ta-ghipour, Danesh Rahemi, and the LLC (collectively, "Taghipour") filed suit against Mt. Olympus and Jerez. Taghipour asserted three claims against Mt. Olympus: (1) declaratory judgment that the loan agreement and subsequent foreclosure on the LLC's property were invalid because Jerez lacked the authority to bind the LLC under the operating agreement, (2) negligence in failing to conduct proper due diligence in determining whether Jerez had the authority to enter into the loan agreement, and (8) partition of the various interests in the property at issue. In response, Mt. Olympus moved to dismiss all three claims, asserting that pursuant to Utah Code section 48-2b-127(2), the loan agreement documents are valid and binding on the LLC since they were signed by the LLC's manager. This section provides:

Instruments and documents providing for the acquisition, mortgage, or disposition of property of the limited liability company shall be valid and binding upon the limited liability company if they are executed by one or more managers of a limited liability company having a manager or managers or if they are executed by one or more members of a limited lability company in which management bas been retained by the members.

Utah Code Ann. § 48-2b-127(2) (1998). The trial court granted Mt. Olympus' motion and dismissed Taghipour's claims against Mt. Olympus, ruling that under the above seetion, "instruments and documents providing for the mortgage of property of a limited liability company are valid and binding on the limited lability company if they are executed by the manager," that the complaint alleges that Jerez is the manager of the LLC, and that therefore the loan documents Jerez executed are valid and binding on the LLC.

T6 Taghipour appealed to the Utah Court of Appeals. Taghipour argued that the trial court's interpretation of section 48-2b-127(2) was in error, inasmuch as it failed to read it in conjunction with Utah Code section 48-2b-125(2)(b), which provides that a manager's authority to bind a limited liability company can be limited by the operating agreement. That section provides in relevant part:

If the management of the limited liability company is vested in a manager or managers, any manager has authority to bind the limited liability company, unless otherwise provided in the articles of organization or operating agreement.

Id. § 48-2b-125(2)(b). The Utah Court of Appeals affirmed the trial court, concluding that the plain language of section 48-2b-127(2) provided no limitation on a manager's authority to execute certain documents and bind a limited liability company, and specifically stated such documents shall be valid and binding upon the limited liability company if executed by one or more managers. Taghipour v. Jerez, 2001 UT App 139, ¶ 12, 26 P.3d 885. Further, the court of appeals concluded that this specific statute prevailed over the general statute, section 48-2b-125(2)(b), and that the loan documents executed by Jerez were therefore binding upon the LLC in this case. Id. at ¶ 13. It also held that Mt. Olympus did all that it was required to do under section 48-2b-127(2) and that Taghipour waived the right to appeal the dismissal of the partition claim by failing to object to the dismissal of that claim. Id. at 112, 17-18. Taghipour petitioned this court for certiorari, which we granted.

T7 Taghipour asks this court to reverse the court of appeals, arguing that (1) sections 48-2b-125(2)(b) and 48-2b-127(2) should be read in harmony to require that managers "be properly authorized to bind the limited liability company in all situations," and therefore Jerez lacked authority to bind the LLC under the operating agreement, and (2) a commercial lender has a due diligence obligation to determine the authority of a manager of a limited liability company before that manager can encumber the assets of the company, which Mt. Olympus failed to do by neglecting to determine whether Jerez had the authority to bind the LLC. In reply, Mt. Olympus contends that under Utah Code seetion 48-2b-127(2), Mt. Olympus could properly rely on Jerez's execution of the loan agreement as the manager of the LLC without further inquiry.

STANDARD OF REVIEW

T8 On certiorari, we review the decision of the court of appeals rather than that of the trial court, Grand County v. Rogers, 2002 UT 25, ¶ 6, 44 P.3d 734, and we review the decision of the court of appeals for correctness, Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 11, 48 P.3d 968. Additionally, because the paramount issue in this case is a question of statutory construction, it is a question of law that we review for correctness. State v. Lusk, 2001 UT 102, ¶¶ 11, 19, 37 P.3d 1103.

ANALYSIS

19 The issue in this case is whether the loan agreement documents executed by Jer-ez, as manager of the LLC, are valid and binding on the LLC under section 48-2b-127(2) of the Utah Limited Liability Company Act (the "Act"), as the statute existed at the time Jerez executed the loan agreement, see supra note 1, or whether the documents were not binding on the LLC because, consistent with section 48-2b-125(2)(b) of the Act, the operating agreement effectively denied Jerez the necessary authority to bind the LLC where the agreement provides: "No loans may be contracted on behalf of the [LLC] ... unless authorized by a resolution of the [mJembers." Taghipour reasons that this operating agreement provision precludes Jerez from executing a loan without a resolution of the members since under section 48-2b-125(2)(b) of the Act a manager cannot bind a limited liability company if the articles of organization or operating agreement does not afford the manager the authority to do so.

I. COMPETING STATUTORY PROVISIONS

To determine whether the loan agreement in this case is valid and binding on the LLC, it must first be determined whether this case is governed by section 48-2b-127(2), which makes certain kinds of doe-uments binding on a limited liability company when executed by a manager, or section 48-2b-125(2)(b), which provides that a manager's authority to bind a limited liability company can' be limited or eliminated by an operating agreement.

111 When two statutory provisions purport to cover the same subject, the legislature's intent must be considered in determining which provision applies. Jensen v. IHC Hosps., Inc., 944 P.2d 327, 331 (Utah 1997). To determine that intent, our rules of statutory construction provide that "when two statutory provisions conflict in their operation, the provision more specific in application governs over the more general provision.'' Hall v. State Dep't of Corr., 2001 UT 34, ¶ 15, 24 P.3d 958; see also Biddle v. Washington Terrace City, 1999 UT 110, ¶ 14, 993 P.2d 875.

12 In this case, the Utah Court of Appeals, affirming the trial court, concluded that section 48-2b-127(2) was more specific than section 48-2b-125(2)(b), and therefore took precedence over it. Taghipour, 2001 UT App 139 at ¶ 13, 26 P.3d 885. However, Taghipour contends that in determining which of the two provisions is more specific, the more restrictive clause is more specific because it is more limiting and "would require authority in all situations." Accordingly, Taghipour contends that section 48-2b-125(2)(b) is the more restrictive, and consequently, the more specific, provision.

{18 The question of which statute the legislature intended to apply in this case is determined by looking to the plain language of the statutes that purport to cover the same subject. Biddle, 1999 UT 110 at ¶ 14, 993 P.2d 875; Jensen, 944 P.2d at 331. Seetion 48-2b-125(2)(b) provides in relevant part:

If the management of the limited liability company is vested in a manager or managers, any manager has authority to bind the limited liability company, unless otherwise provided in the articles of organization or operating agreement.

Utah Code Ann. § 48-2b-125(2)(b) (1998). In contrast, section 48-2b-127(2) provides:

Instruments and documents providing for the acquisition, mortgage, or disposition of property of the limited liability company shall be valid and binding upon the limited liability company if they are executed by one or more managers of a limited liability company having a manager or managers or if they are executed by one or more members of a limited liability company in which management has been retained by the members.

Id. § 48-2b-127(@).

{14 Section 48-2b-127(2) is the more specific statute because it applies only to documents explicitly enumerated in the statute, i.e., the section expressly addresses "Instruments and documents" that provide "for the acquisition, mortgage, or disposition of property of the limited lability company." Id.; see also Jensen, 944 P.2d at 332 (stating that statute was more specific because statute applied "only to wrongful death actions arising out of medical malpractice"); De Baritault v. Salt Lake City Corp., 913 P.2d 743, 747 (Utah 1996) ("[Slince the Governmental Immunity Act specifically addresses public improvements, it is the law most specific...."). Thus, this section is tailored precisely to address the documents and instruments Jerez executed, e.g., the trust deed and trust deed note. For example, a trust deed is similar to a mortgage in that it secures an obligation relating to real property, Capital Assets Fin. Servs. v. Maxwell, 2000 UT 9, ¶ 11, 994 P.2d 201; First Sec. Bank, N.A. v. Banberry Crossing, 780 P.2d 1253, 1256 (Utah 1989), and a trust deed "is a conveyance" of title to real property, First Sec. Bank, N.A., 780 P.2d at 1256; see also Utah Code Ann. § 57-1-20 (2000), which is a disposition of property as contemplated by the statutory provision. Conversely, section 48-2b-125(2)(b) is more general because it addresses every situation in which a manager can bind a limited liability company.

Further, a statute is more specific according to the content of the statute, not according to how restrictive the statute is in application. Indeed, a specific statute may be either more or less restrictive than the statute more general in application, depending upon the intent of the legislature in enacting a more specific statute.

116 Moreover, if we were to hold that section 48-2b-125(2)(b) is the more specific provision, we would essentially render seetion 48-2b-127(2) "superfluous and inoperative," Hall, 2001 UT 34 at ¶ 15, 24 P.3d 958, because section 48-2b-127(2) would simply restate section 48-2b-125(2)(b) and would therefore be subsumed by section 48-2b-125(2)(b). Accordingly, the court of appeals correctly concluded that section 48-2b-127(2) is more specific, and therefore, the applicable statute in this case.

II. VALID AND BINDING LOAN AGREEMENT DOCUMENTS

1 17 Section 48-2b-127(2) must be applied to the facts of this case to determine whether the documents are valid and bind the LLC. At the time relevant to this case, section 48-2b-127(2), the statute applicable to the issue in this case, see supra ¶¶ 14-16, provided:

Instruments and documents providing for the acquisition, mortgage, or disposition of property of the limited liability company shall be valid and binding upon the limited hability company if they are executed by one or more mamagers of a limited liability company having a manager or managers or if they are executed by one or more members of a limited liability company in which management has been retained by the members.

Utah Code Ann. § 48-2b-127(2) (1998) (emphasis added). According to this section, the documents are binding if they are covered by the statute and if executed by a manager. There are no other requirements for such documents to be binding on a limited lability company.

118 In this case, as Taghipour acknowledges in the complaint and Taghipour's brief on appeal, Jerez was designated as the LLC's manager in the articles of organization. Jerez, acting in his capacity as manager, executed loan agreement documents, e.g., the trust deed and trust deed note, on behalf of the LLC that are specifically covered by the above statute. See supra 114. As such, these documents are valid and binding on the LLC under section 48-2b-127(2). Therefore, the court of appeals correctly concluded that the LLC was bound by the loan agreement and, consequently, that Mt. Olympus was not liable to Taghipour for Jerez's actions.

CONCLUSION

T 19 The court of appeals correctly determined that section' 48-2b-127(2) (1998) governs this case, that under this statutory seetion the loan agreement is valid and binding on the LLC, and that Mt. Olympus did all that was required by statute. Therefore, the court of appeals correctly affirmed the trial court's dismissal of Taghipour's claims against Mt. Olympus. Accordingly, we affirm.

[ 20 Chief Justice DURHAM, Justice HOWE, Justice WILKINS, and Judge HADFIELD concur in Justice RUSSON'S opinion. *

€ 21 Having disqualified himself, Associate Chief Justice DURRANT does not participate herein; District Judge BEN H. HADFIELD sat.

      . Since the occurrence of the facts giving rise to this suit, the legislature has revised the Utah Limited Liability Company Act, now entitled the Uiah Revised Limited Liability Company Act, which is codified at Utah Code Ann. §§ 48-2c-101 to -1902 (Supp.2001). The Utah Revised Limited Liability Company Act became effective on July 1, 2001. Because we apply the law as it existed at the time of the events giving rise to this suit, State ex rel. Div. of Forestry, Fire & State Lands v. Tooele County, 2002 UT 8, n. 2, 44 P.3d 680; Airport Hilton Ventures v. State Tax Comm'n, 1999 UT 26, nn. 1-3, 976 P.2d 1197, we apply the Act as it existed before the revised act became effective. Further, because section 48-2b-127 was never amended from the time of its enactment until 2001, we simply cite the 1998 version of the statute for convenience although some of the pertinent facts occurred before that year.

      . This case was transferred to the court of appeals for disposition pursuant to Utah Code section 78-2-2(4) (1996).

      . Taghipour does not contend that the court of appeals erred in concluding that Taghipour waived the right to appeal the dismissal of the partition claim, and we therefore will not review that holding.

      . Mt. Olympus also contends that it does not owe any due diligence duties to the LLC. Because our discussion of the Utah Limited Liability Company Act is dispositive in this case, we do not address this issue.