The following has been significantly abridged by the
instructor
IN THE SUPREME COURT OF THE STATE OF
Rhonda Lee Laney, individually and as guardian ad litem of S.B. and R.A., minors, Plaintiff and Appellant,
v.
August 9, 2002, 2002 UT 79
This
case addresses whether Utah Code Ann. ' 63‑30‑2(4)(a) (Supp. 2000)
violates article I, section 11, the "open courts" clause, of
the Utah Constitution. The district
court held that Fairview City (the City) is immune from suit for its alleged negligence under
the Utah Governmental Immunity Act, Utah
Code Ann. '' 63‑30‑1 to ‑38 (1997 & Supp.
2000).(1) We hold that the 1987
amendment, declaring all acts of municipalities to be governmental
functions, is unconstitutional as applied to municipalities operating
electrical power systems. We reverse the
summary judgment of the trial court and remand for a trial on the merits without any
defense of governmental immunity.
BACKGROUND
The
following facts were undisputed in the trial court. On September 16, 1991, John
Laney was electrocuted and killed while moving irrigation pipe. The thirty‑foot
aluminum water irrigation pipe that Laney was carrying came into contact with,
or within arcing distance of, high voltage power lines. The power lines were
owned by the City. Accordingly, Laney's wife and children brought a wrongful
death action against the City claiming, inter alia,
that the City was negligent for failing to maintain the power lines in a safe
condition. The Laneys complain that the power lines
did not meet minimum safety standards because they were too low to the ground.
They also allege that the lines were unsafe because they were not insulated and
did not contain warnings.
The
City moved for summary judgment asserting that the decision whether or not to improve the power lines was a
discretionary function entitled to immunity
under Utah Code Ann. ' 63‑30‑10(1)
(1997). Discretionary function immunity is an exception to a waiver of
sovereign immunity within the Utah Governmental Immunity Act. The Utah
Governmental Immunity Act declares that all governmental entities are immune
from suit for any injury which results from the exercise of a
"governmental function." The term
governmental function is broadly defined in section 63‑30‑2(4)(a),
and by virtue of that broad definition, the statute cloaks governmental
entities with immunity for a wide range
of activities.(3) However, Utah Code Ann. ' 63‑30‑10
waives sovereign immunity "for
injury proximately caused by a negligent act or
omission." Then, subsection (1) creates an exception to this waiver
for negligence and immunizes governmental entities for "the exercise or
performance or the failure to exercise or perform a discretionary function . .
. ."
B. Discretionary Function
Immunity
Plaintiffs
argue that maintenance of power lines is not a discretionary function entitled
to immunity under Utah Code Ann. ' 63‑30‑10.
Instead, they assert, the City owes a duty to exercise the highest degree of
care to protect the public because it undertook to operate and maintain power
lines. The City, on the other hand, contends that decisions to use city funds
to improve existing power lines, decisions to raise the height of the lines, to
insulate them, or to provide additional warnings, constitute the exercise of a
discretionary function. For the reasons that follow, we conclude that the
City's decisions or omissions‑‑regarding
the height and insulation of the power lines, and adjacent warning signs‑‑are discretionary
functions for which sovereign immunity has not
been waived under the Utah Governmental Immunity Act.
As
noted above, we must address three questions in determining whether a governmental
entity is immune from suit under the Utah Governmental Immunity Act. First, we
must address whether the City's operation of power lines is a governmental function and therefore immunized
from suit by the general grant of
immunity contained in section 63‑30‑3(1). Second, if the
operation of power lines is a governmental function, we must determine whether
some other section of the Act has waived the blanket immunity in section 63‑30‑3(1). See id. Finally, if the blanket immunity has been
waived, we must determine whether the Act contains an exception to that waiver
which results in a retention of immunity against the particular
claim asserted by the plaintiffs in this case.
We
answer the first question, does the City's operation of power lines constitute
a governmental function, in the affirmative. Section 63‑30‑3(1) states, "Except as may be otherwise
provided in this chapter, all governmental
entities are immune from suit for any injury which results from the
exercise of a governmental function . .
. ." Utah Code Ann. ' 63‑30‑3(1).(5)
Section 63‑30‑2(4)(a) states
that
'Governmental function' means any act,
failure to act, operation, function, or
undertaking of a governmental entity whether or not the act, failure to
act, operation, function, or
undertaking is characterized as governmental,
proprietary, a core governmental function, unique to government,
undertaken in a dual capacity,
essential to or not essential to a government or governmental function, or could be performed by private
enterprise or private persons.
Under this definition, the
City's operation of power lines is a governmental function, and the City is
therefore immunized from
suit by the general grant of immunity contained in section 63‑30‑3(1).
We
also answer the second question, does some other section of the Act waive the
blanket immunity in section 63‑30‑3(1), in
the affirmative. Utah Code Ann. ' 63‑30‑10
states, in pertinent part:
Immunity
from suit of all governmental entities is waived for injury proximately caused
by a negligent act or omission of an employee committed within the scope of
employment except if . . . .
In this section, the
legislature has waived the blanket coverage of sovereign immunity outlined in
sections 63‑30‑3(1) and 63‑30‑2(4)(a)
for negligence committed by governmental
entities through their employees. In this case, appellants allege the City was
negligent, and the Act waives immunity for that negligence.
The
third question, does the Act contain an exception to the blanket waiver of
immunity that results in a retention of immunity
against the particular claim asserted by the plaintiffs in this case, is more
complicated. Utah Code Ann. ' 63‑30‑10
states:
Immunity from suit of all governmental
entities is waived for injury proximately caused by a negligent act or omission
of an employee committed within the scope of employment except if the injury
arises out of, in connection with, or results from: (1) the exercise or performance or the
failure to exercise or perform a
discretionary function, whether or not the discretion is abused;
(emphasis added).
Clearly, this section
contains an exception to the waiver of blanket immunity, and the exception
results in a retention of immunity for discretionary
functions. Therefore, to determine whether the City has immunity against
appellants' claims, we must determine whether the allegedly negligent decisions
or omissions of the City constitute discretionary functions under the Act.
The
test used to determine whether a governmental act, omission, or decision qualifies
as a discretionary function under section 63‑30‑10(1)
requires a four‑part inquiry. See
Keegan v. State (
(1) Does the challenged act, omission, or
decision necessarily involve a basic governmental policy, program, or
objective?
(2) Is the questioned act, omission, or
decision essential to the realization or accomplishment of that policy,
program, or objective as opposed to one which would not change the course or
direction of the policy, program, or objective?
(3) Does the act, omission, or decision
require the exercise of basic policy evaluation, judgment, and expertise on the
part of the governmental agency involved?
(4) Does the governmental agency involved
possess the requisite constitutional, statutory, or lawful authority and duty
to do or make the challenged act,
omission, or decision?
The
decisions or omissions challenged by the plaintiffs in this case are those that
resulted in not raising the height of the power lines, not insulating the power
lines, and not providing further warnings, all pertinent to the safety of
members of the public who might encounter the lines. These challenged decisions
are closely connected to the basic governmental objective of public safety.
Because the plaintiffs' complaint specifically identifies the City's failure to
adequately make the lines safe as the basis of their action, our analysis is
limited to reviewing the challenged decisions in that light. As such, the
challenged act, omission, or decision does necessarily involve a basic policy,
program, or objective, namely public safety, and the first part of the Little inquiry is answered affirmatively.
Second,
we conclude that the questioned omissions or decisions regarding the safety of
the power lines are essential to the realization or accomplishment of the
policy, program, or objective identified here‑‑public safety.
Again, because the plaintiffs allege the
City failed to adequately warn or make the power lines safe by raising or insulating them,
"that policy, program, or objective" subject to analysis is the promotion of public
safety. Decisions touching the safety of the power lines clearly affect the
accomplishment of the objective of public safety. Consequently, part two of the
Little inquiry is also answered in the affirmative.
Third,
the challenged act, omission, or decision regarding the power lines requires
the exercise of basic policy evaluation, judgment, and expertise on the part of
the governmental agency involved. Although we are not presented with evidence
regarding whether the City actually conducted on‑site inspections, analyzed
various safety factors, or conducted collaborative review of its decision not
to raise the power lines, we think that the decision required, at a minimum, a
basic cost‑benefit analysis and exercise of financial expertise and judgment
by the City. This is sufficient under part three of the Little
test.
Finally,
we also answer the fourth question in the affirmative. Under Utah Code Ann. ' 10‑8‑14, the City is authorized to own
and operate an electric utility. Thus, the City has the requisite authority to
decide whether or not to raise the lines or otherwise make them more safe.
Having
answered all four parts of the Little test in the
affirmative, we conclude that the challenged decisions or omissions were
discretionary functions. Our review of other
In
sum, we conclude that the trial court was correct in concluding that the City
was immune from suit under the Act. The alleged negligence of the City in failing to raise the height of, insulate, or
provide further warnings on its power
lines, resulted from the performance of discretionary functions under the Little test. Consequently, the Act immunizes
the City from suit for the
negligence alleged by the plaintiffs.
II. CONSTITUTIONALITY OF
Because
we find that the City's maintenance of the power lines constitutes a discretionary function within the meaning of the Governmental Immunity Act, we must address the plaintiffs' challenge to the
constitutionality of Utah Code Ann. ' 63‑30‑2(4)(a) (Supp. 2000).
As
explained above, the Utah Governmental Immunity Act grants the City immunity
from suit for its decision not to increase the safety of its power lines. This
is, in part, because the City's operation of its municipal power system is a
governmental function under Utah Code Ann. ' 63‑30‑2(4)(a). Accordingly,
absent a statutory or constitutional provision to the contrary, the City is
entitled to immunity from suit regarding the maintenance of its power lines, a
governmental function. Plaintiffs contend that the district court erred in
determining that the City is entitled to claim immunity because section 63‑30‑2(4)(a)'s definition of "governmental function"
renders it unconstitutional. Article I,
section 11 of the Utah Constitution provides:
All
courts shall be open, and every person, for an injury done to him in his
person, property, or reputation, shall have remedy by due course of law, which
shall be administered without denial or unnecessary delay; and no person shall
be barred from prosecuting or defending before any tribunal in this state, by
himself or counsel any civil cause to which he is a party.
Plaintiffs argue that the
Act, specifically section 63‑30‑2(4)(a),
deprives them of their rights guaranteed
by article I, section 11, the open courts clause.
A. Berry v. Beech Aircraft Analysis
The
State urges this court to abandon nearly a century of precedent, arguing for an
interpretation that would virtually write article I,
section 11 out of the Utah Constitution. Specifically, the State asks the court
to overrule
1. Plain Meaning and Historical Purpose
In
arguing for article I, section 11 to be treated solely as a procedural right,
the State disregards the plain meaning and historical purpose of
In
general, open courts provisions in
First,
they were intended to help establish an independent foundation for the
judiciary as an institution. Second, open courts or remedies clauses were
intended to grant individuals rights to a judicial remedy for the protection of
their person, property, or reputation from abrogation and unreasonable
limitation by economic interests that could control state legislatures.
1. Abrogation of Remedy
The
State argues in this case that no remedy was abrogated because the 1987 amendment to the Governmental Immunity Act
contained in subsection 63‑30‑2(4)(a) had been enacted four years before Mr. Laney
was electrocuted in 1991. The issue under the open courts provision,
however, is not whether a statute has already
been enacted before a claim arises, but rather whether the statute
abrogates a cause of action existing at
the time of its enactment.
Plaintiffs
assert that the 1987 amendment abrogated a remedy because the law in effect
prior to the amendment provided individuals negligently injured by municipality‑operated
power lines with a cause of action against the municipality. Prior to the
amendment, the scope of sovereign immunity depended on whether the governmental
activity complained of was found to be a "governmental function" or a
"proprietary function." Only those activities determined to be
governmental functions were afforded immunity. See Standiford
v. Salt Lake City Corp., (
Plaintiffs
argue that the City's operation and maintenance of a municipal electrical power
system would not have been a governmental function under the Standiford standard because maintaining power lines is not
"of such a unique nature that it can only be performed by a governmental
agency or that . . . is essential to the core of governmental immunity." We
agree.
Prior
to the 1987 amendment, the operation of an electrical power system was
considered a proprietary function, which was not entitled to immunity under the
Act. Under the 1987 amendment, however, a claim against a municipality for
negligent maintenance of power lines can be barred by the scope of immunity
protection afforded the City. Although
the Act waives immunity for governmental functions if there is negligence
involved, a plaintiff suing a municipality is now subject to the exceptions to
the waiver of immunity. By defining a governmental function as any act of a
governmental entity, whether or not the activity is characterized as
governmental or proprietary, the 1987 amendment effectively grants immunity protection
for some activities that were formerly considered proprietary and were not
entitled to immunity. Therefore, we find
that the 1987 amendment partially abrogated a remedy for a municipality's
negligence. Because a remedy has been abrogated, we proceed with the
2. No Reasonable Alternative Remedy
Under
the first prong of the
3. Elimination of Clear Social or Economic Evil
The
State contends that even if a remedy was abrogated, the amendment is constitutional
under the second prong of the Berry test, which provides that where no alternative
remedy has been provided, "abrogation of the remedy or cause of action may
be justified only if there is a clear social or economic evil to be eliminated
and the elimination of an existing legal remedy is not an arbitrary or
unreasonable means for achieving the objective."
To
determine whether the legislature was justified in abrogating the remedy for
negligence of a municipality, we review the legislative history of the 1987
amendment "to determine the reason for its enactment and whether the
abrogation was 'an arbitrary or unreasonable means for achieving' the
elimination of a 'clear social or economic evil.'" The 1987 amendment was
proposed by the Governmental Immunity Task Force of the legislature. The Task
Force specifically found:
In the
past several years, lawsuits naming governmental entities as defendants have increased dramatically. The large
damage awards against governmental entities that plaintiffs
have obtained in these lawsuits has made it increasingly difficult for
government entities to obtain or afford liability insurance. . . . If a
government entity does not have liability insurance, and a court orders the
entity to pay damages, the entity would need to pay the award by taking money
from its general fund.
According
to the legislative history, the task force proposed the 1987 amendment in the
"hope that passage of these bills will make it easier or cheaper for a
government entity to obtain liability insurance." Thus the legislative
objective appears to have been to make liability insurance more affordable for
government entities by reducing liability risks. While that objective is
worthy, the legislature swept too broadly when it severely curtailed negligence
actions against municipalities operating power systems. The amendment partially
abrogated the remedy of persons injured by a breach of the high duty of care
imposed on such operators. The legislative concern about increased damage
awards against governmental entities is stated in very general terms; no
specifics are given. We do not know whether any municipality in this state
operating an electrical system has sustained a large damage award. We do know
that only a small fraction operate municipal power systems. The general nature of the legislative findings do not
show that large damage awards have been
made against municipalities in connection with their operation of an electrical power system, or that such operation
has been affected in any way by
potential liability.
The
City generates an annual profit operating its electrical power system. It is
not an operation subsidized by tax dollars. The cost of liability insurance,
therefore, might not even be paid for by the taxpayers of the City, but rather
by consumers of the electrical power, some of whom may live outside the City.
Obtaining liability insurance is one of the costs of a power plant doing
business, whether it is a private or municipal power system. If the City cannot
afford to purchase reasonable amounts of liability insurance to meet its high
standard of care, rate increases may be justified and necessary.
In
the instant case, the legislature has defined all activities of municipalities
as governmental action, regardless of their nature. In its sweep, the operation
of both a sewer system and a golf course is governmental, along with the
operation of a municipal electrical power system, even though the potential for
negligently causing death by the municipality is vastly greater in the latter
activity and the standard of care is thus much higher.
If
large verdicts are vexatious to cities, a reasonable approach might be to create
very limited immunities to address specific problems, or to place
"caps" on the amount of damages, as the legislature has done
elsewhere in the Governmental Immunity Act. This court has, for example, upheld
statutory caps on judgments for damages for personal injury against a
governmental entity. McCorvey v.
We
therefore hold that the 1987 amendment is unconstitutional as it applies to
municipalities operating electrical power systems. The amendment fails to meet
the second prong of the
CONCLUSION
We hold that the acts,
omissions, or decisions of the City not to raise the height of, insulate, or
provide further warnings on its power lines fall within the discretionary
function exception of the Utah Governmental Immunity Act,
‑‑‑
Justice Howe concurs in Chief
Justice Durham's opinion. C
RUSSON, Justice, concurring:
I
concur, but for different reasons than stated by Chief Justice Durham. The Chief
Justice seems to accept that the legislature can, by statute, declare
activities previously held to be proprietary to be governmental if that statute
meets the
Government
entities perform governmental functions, and sometimes proprietary functions.
Governmental functions are those functions that can be performed only by
government. In performing such functions, government entities enjoy absolute
immunity from liability. They cannot be sued, even where such activities are
negligently performed, unless they so consent. Indeed, the legislature enacted
the Utah Governmental Immunity Act, which waives immunity in certain enumerated
situations, subject to conditions. And the legislature can, at any time,
withdraw such waiver of immunity or modify the same, and do so without meeting
the requirements set forth by the
On
the other hand, government occasionally becomes involved in activities that are
not governmental in nature but, rather, are proprietary. Such functions are
those normally performed by private persons or businesses. When performing proprietary
functions, the government does not enjoy governmental immunity. It is subject
to the same risks and standards that govern private persons or businesses.
Whenever government moves beyond its core functions into the proprietary realm,
it enters into direct competition with, and in certain instances, even
supplants, private enterprise. In certain instances, government is at a decided
advantage when it competes with private entities in the private sector, because
the government's cost of doing business does not include the cost of insurance
or adverse litigation awards and because government is subsidized by the captive
taxpayer base. On the other hand, private businesses often incur not
inconsequential costs through the necessity of carrying insurance and defending
against litigation, because they are not afforded the same protections or
immunity as the government.
If
government chooses to engage in proprietary activities, it must do so on the
same basis as private persons. It has been long established that government, when
performing proprietary functions, is liable for its actions . . . The operation
of a power plant by a government entity is proprietary. This status cannot be
changed by the legislature. What the legislature can do, however, is pass
legislation modifying, restricting, or eliminating the right of people to seek
a remedy against private persons, or a government entity, operating a power
plant, but such legislation must meet the
‑‑‑
WILKINS, Justice, concurring
and dissenting:
I
concur with nearly all of section I of the lead opinion, the well‑reasoned
discretionary function analysis . . .
I
dissent, however, with section II of the lead opinion, the majority's interpretation
of the Open Courts Clause. In my view the current interpretation of the Open Courts Clause originating with
Berry ex. rel Berry v. Beech Aircraft Corp., and the accompanying Berry test,
places this court outside of its constitutional role and creates separation of
powers problems. I would overturn
In
my opinion, section 63‑30‑2(4)(a) of the
Utah Governmental Immunity Act, Utah
Code Ann. '' 63‑30‑1 to ‑38 (1997 & Supp.
2000), does not violate article I,
section 11 of the Utah Constitution, the Open Courts Clause. I would therefore
affirm the district court's ruling that
The
first and foundational [principle of law relating to the constitutionality of
statutes] is that the prerogative of the legislature as the creators of the law is to be respected. Consequently, its
enactments are accorded a presumption of validity; and this court should not
strike down a legislative act unless the interests of justice in the particular
case before it require doing so because the act is clearly in conflict with the
higher law as set forth in the Constitution.
In
my view it is the right and obligation of the legislature to waive sovereign
immunity as it sees fit. While judicial exceptions to sovereign immunity do
exist, it is the prerogative of the legislature to define the scope of
sovereign immunity and the exceptions by which it is waived; the Open Courts Clause
is not a limitation on the legislature's ability to define the scope of or
waive sovereign immunity. Indeed, it is appropriate for the legislature to
address the extent to which it is desirable to use public funds to compensate those
injured by acts, omissions, or decisions of the government acting in the public
interest.
‑‑‑
Associate Chief Justice Durrant concurs in Justice Wilkins' dissenting opinion.