Can a plaintiff survive summary judgment with only a 'damage to property' claim? McCollin v. J.D.F. Properties Explained

In McCollin v. J.D.F. Properties, the Utah Court of Appeals addressed whether a plaintiff can survive summary judgment by pleading only “damage to real property” without articulating the elements of a specific tort theory. The court’s analysis provides important guidance on pleading requirements and the obligations imposed when responding to summary judgment motions.

Background and Facts

McCollin and J.D.F. Properties owned land on opposite sides of the Duchesne River. After J.D.F. obtained a stream alteration permit and began work, the river’s flow allegedly changed, washing away several feet of McCollin’s land and a mature tree. McCollin filed suit with four claims, including one for “damage to real property,” but never explicitly stated a theory of liability supporting this claim throughout pretrial litigation.

Key Legal Issues

The central issue was whether McCollin’s “damage to real property” claim constituted a cognizable cause of action. J.D.F. moved for summary judgment arguing that damages are merely an element of a tort, not a standalone cause of action. The court also considered whether the parties had tried a negligence claim by implied consent under Utah Rule of Civil Procedure 15(b).

Court’s Analysis and Holding

The Court of Appeals affirmed the district court’s grant of summary judgment. When McCollin belatedly claimed at the hearing that his property damage claim sounded in negligence, the court found this insufficient. McCollin’s opposition to summary judgment failed to reference the elements of negligence—duty, breach, causation, and damages—or provide record citations supporting genuine issues of material fact on each element as required by Utah Rule of Civil Procedure 7(c)(3)(B). The court also rejected McCollin’s argument that the parties had tried negligence by implied consent, distinguishing this case from situations where fraud claims were specifically discussed and litigated in prior motions.

Practice Implications

This decision emphasizes that Utah’s liberal notice pleading requirements still demand that complaints “give fair notice of the nature and basis of the claim asserted.” Practitioners facing summary judgment motions challenging pleading adequacy must either demonstrate that existing pleadings satisfy specific tort elements or seek to remedy deficiencies through amendment, supported by proper record citations to survive summary judgment.