Case Summaries

• Publication year: 1990
• Pages: 30
• Citation: Vol. 3 No. 3 Pg. 30

CASE SUMMARIES Vol. 3 No. 3 Pg. 30 Utah Bar Journal March, 1990

Clark Nielsen, J.

GOVERNMENT IMMUNITY-WATER AND FLOOD CONTROL

In Rocky Mountain Thrift Stores v. S.L.C. Corp. (J. Howe) and Irvine v. S.L. Co., (J. Stewart), plaintiffs sought damages for alleged negligence in 1983 spring runoff control activities. The court held that the 1984 amendment of U.C.A. §63-30-3(2), retaining governmental immunity for management of flood waters, would not be applied retroactively to 1983 flood control events. Because the pre-1984 statute applied, the government defendants were immune only if the activity was governmental in nature and immunity had not elsewhere been waived.

In Irvine, Justice Stewart's elementary analysis held that any negligence of county employees was not immunized because their work was not a discretionary function under §63-30-10(l)(a). The alleged negligent dredging of Utah Cottonwood Creek to increase creek bed capacity was not an essential governmental activity, did not require a basic policy evaluation, and did not arise out of any exercise of a discretionary evaluation of basic policy. Consequently, a creekside homeowner's action to recover the negligent cleaning of the creek was not barred by the governmental immunity act. The summary judgment for the defendant was reversed and remanded for trial.

Similarly, the court in Rocky Mountain (J. Howe) refused to apply the 1984 amendment to Salt Lake City' s handling of the City Creek drainage in 1983. Plaintiffs alleged that the city negligently failed to take adequate precautions to avoid City Creek runoff damage and to properly clean the North Temple drainage culvert, and actually clogged the culvert in its efforts. Agreeing with the trial judge, the court held that the design, capacity, and construction of the drainage system involved basic governmental policy-making to protect life and property of the public. "Defendants' acts and decisions in these regards required the exercise of basic policy evaluation, judgment and expertise." Governmental immunity is not waived under §63-30-10(l)(a) for the exercise of discretion in a purely governmental function. The decision distinguishes the necessary governmental activities in flood and water control from the maintenance of a municipal sewage system which has been held to be non-governmental in nature. The four-part test in Little v. Utah State, 667 P.2d 49, 51 (Utah, 1983), was applied to determine whether the city's governmental...