Views from the Bench
| Publication year | 1990 |
| Pages | 26 |
| Citation | Vol. 3 No. 8 Pg. 26 |
Recent Case Law Developments in the Field of Sovereign Immunity in Utah
Lynn W. Davis, Judge Fourth Circuit Court.
I. INTRODUCTION
The Utah Governmental Immunity Act was passed in 1965.[1] The Act substituted a statutory framework for the common law doctrine of sovereign immunity existing prior thereto "to be interpreted by the Courts and reshaped by the legislature as necessary from time to time.[2] Utah's Governmental Immunity Act "shields sovereign policymaking and discretion from state-law damage claims by generally precluding (money) damage liability for performance of a governmental function, subject to certain statutorily enumerated waivers."[3]
This substantive area of the law has been the focus of a number of significant recent changes, both judicially and legislatively. From January 1, 1989, through July 31, 1990, the Utah Supreme Court was very active in deciding cases interpreting the Utah Governmental Immunity Act. The Utah Court of Appeals also added two decisions. This paper examines 16 reported cases and their influence on the established law in the field of governmental immunity. These cases treated a wide range of claims resulting from flood-related governmental activities, [4] torts committed by a prisoner or detainee, [5] and torts committed by government employees.[6] In addition two cases addressed the government's duty to inspect or regulate financial institutions[7] and one very important case involved the constitutionality of recovery limits as applied to a university hospital.[8] The most recent case concerned the adequacy of safety improvements at a railroad crossing and the applicability of immunity under the discretionary function exception.[9]
It is always difficult to predict what test or standard a court may rely upon in a governmental immunity case. It is equally difficult to designate trends from the 16 recent decisions. Nonetheless, certainly one can readily identify important judicial announcements, key concepts and "brightline" standards from these decisions. Several cases have been both significant and pathbreaking in the development of the law of sovereign governmental immunity. With complete acknowledgment of subjectivity and caprice, consider the following.
II.
TRENDS, OBSERVATIONS AND DEVELOPMENTS
A. ALTERNATIVE THEORIES AND ARGUMENTS AND ORDER OF ANALYSIS
Counsel must now be prepared to argue and brief duty of care and absence of duty of care theories in governmental negligence cases. The Utah Supreme Court recently decided a case involving alleged governmental negligence without ever reaching questions raised by the doctrine of sovereign immunity.
In 1982, Dean Ferre was brutally bludgeoned to death by a detainee on weekend release from a community corrections facility. His widow and surviving child initiated a wrongful death action against the state of Utah relying upon various negligence theories. In Ferree v. State, [10] the Court reasoned that governmental immunity "conceptually arises subsequent to the question of whether there is tort liability in the first place." The Court addressed liability by applying and analyzing negligence concepts before deciding issues of governmental immunity.
The Court held that the state officials had no duty of due care to the victim apart from their general duty to the public at large. Because the Court found no individualized duty, it affirmed the dismissal of the wrongful death action, never reaching the questions raised by the doctrine of sovereign immunity.[11] The Court concluded that "sovereign immunity... is an affirmative defense and conceptually arises subsequent to the question of whether there is tort liability in the first instance." The Court further stated that "deciding an immunity question first may lead to unwarranted assumptions and confusion about undecided duty problems."[12]
The Utah Court of Appeals, in sorting out these same issues in Kirk v. State, [13] acknowledged this "duty of care" approach, but ultimately decided the case on the governmental immunity theory relied upon by the trial court. Kirk, an unarmed bailiff, was shot and seriously wounded by an inmate in transport to attend court proceedings. The Court held that either the inmate had totally escaped the control of the prison and was thus acting on his own so the prison was not responsible for him or "he was still under the control of the prison authorities... in which latter instance the prison (was) immune from suit under the statute.[14]
The Court may feel more comfortable in looking to a duty of care standard rather than engaging in the difficult governmental function analysis. In fact, the Court emphasized in Ferree v. State[15] that this order of analysis "will avoid in some instances having to make more difficult decisions with respect to the difficult discretionary exception doctrine in sovereign immunity cases."
From the above language and the holding in Ferree, a practitioner might be persuaded that a governmental immunity argument is subordinate in the order of analysis to a duty of due care argument where applicable. That presumption is worthy of further inquiry.
In Gillman v. Department of Financial Institutions[16] both duty of care and governmental immunity issues were well-briefed and argued. The Court announced a decision based solely upon governmental immunity considerations. Gillman does not seem to entirely square with the Ferre analysis.
Even more recently, the Utah Court of Appeals, in Duncan v. Union Pacific R. Co.[17]acknowledged the Ferree and Kirk analysis. Duncan was a wrongful death action arising out of a train-automobile collision where plaintiff claimed that the safety improvements at the railroad crossing were inadequate. The court, consistent with Ferree, ruled that it would not "reach the affirmative defense of governmental immunity without first determining or presuming that a plaintiff has established a prima facie case."[18] The court affirmed summary judgment solely upon governmental immunity grounds presuming, but not holding, that the plaintiff had stated a prima facie case of negligence against the defendant. For reasons set forth in First Nat'l Bank v. National Am. Title Ins. Co., [19] the Court was reluctant to delve into the "prima facie claim issue" where the trial court had not expressly ruled.
What can be concluded from these cases respecting order of analysis? While Utah's courts are not prone to reach the affirmative defense of governmental immunity without first determining or presuming a prima facie case in tort, there exists no definitive analytical priority. In the absence of more illuminating guidelines respecting order of analysis, counsel are urged to argue and brief all applicable theories at every stage of the case.[20]
B. FLOOD WATER MANAGEMENT ISSUES
The Utah Supreme Court has decided a significant number of flooding cases in the last year, resulting from the unprecedented flooding along the Wasatch Front during the spring of 1983. There are six concepts to be observed:
1. Flood cases are fact-specific, and the decisions depend upon the nature of the activity. It is important to note that all recent flood cases have been remanded to the trial court, many to resolve genuine issues of material fact. In light of the number of reversals and remands, counsel must seriously consider under what circumstances a summary judgment mo- t ion is appropriate in a complex flood case and, where appropriate, counsel must establish a sufficient record.
2. At issue in several recent cases is whether the grant of immunity for flood control activities mentioned in the second paragraph is subject to the exceptions mentioned in the first paragraph of §63-30-3. Section 63-30-3 provides:
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, governmentally owned hospital, nursing home, or other governmental health care facility, and from an approved medical, nursing, or other professional health care clinical training program conducted in either public or private facilities.
The management of flood waters and other natural disasters and the construction, repair, and operation of flood and...
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