IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Alan Jenkins, Ash Jenkins, and Patricia ) AMENDED OPINION1
Jenkins, )
) Case No. 20100400‐CA
Plaintiffs and Appellants, )
) FILED
v. ) (July 19, 2012)
)
Jordan Valley Water Conservancy ) 2012 UT App 204
District, )
)
Defendant and Appellee. )
‐‐‐‐‐
Third District, Salt Lake Department, 070908316
The Honorable Judith S. Atherton
Attorneys: Carl E. Kingston, Salt Lake City, for Appellants
David C. Richards and Sarah E. Spencer, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges McHugh, Voros, and Orme.
McHUGH, Presiding Judge:
¶1 Alan, Ash, and Patricia Jenkins (the Jenkinses) appeal from the trial court’s order
granting summary judgment in favor of Jordan Valley Water Conservancy District (the
District) on the Jenkinses’ claim for damages to their home and property after a water
1. This is an amended decision issued in response to the Appellee’s Petition for
Rehearing. It replaces the Opinion in Case No. 20100400‐CA issued on January 6, 2012.
The only substantive changes from our earlier opinion are in footnote 21 and Section
V.A.
line owned and operated by the District broke and flooded the Jenkinses’ home on two
separate occasions. The trial court ruled that the Jenkinses’ claims were barred by the
public duty doctrine. We conclude that the trial court was incorrect and reverse on this
issue. In addition, we reject the District’s alternative grounds for summary judgment.
Although the District’s actions fall within the scope of the statutory immunity afforded
governmental entities, the current definition of “governmental function” results in a
complete abrogation of the Jenkinses’ preexisting remedy and violates the Utah
Constitution’s open courts clause. Therefore, we remand to the trial court for further
proceedings consistent with this decision.
BACKGROUND
¶2 Alan Jenkins is the owner of a home located in South Salt Lake, Utah (the Home).
During the relevant time period, Alan’s son and daughter‐in‐law, Ash and Patricia
Jenkins, and Ash’s and Patricia’s three children lived with Alan in the Home. The
District is a political subdivision of the State of Utah. It treats and delivers water to
other local districts, cities, residents, and businesses located within the geographic
boundaries of the District. To accomplish these purposes, the District owns and
operates approximately 275 miles of water transmission and distribution pipelines,
including a section that is buried along the south side of 3300 South Street between 200
and 500 East (the Water Line Section). The Water Line Section runs parallel to the
Jenkinses’ Home, which abuts 3300 South.
¶3 In December 2002, after considering numerous factors, including the history of
prior breaks, the Engineering Department Manager and Distribution & Transmission
Technical Advisor (collectively, the Engineers) identified the Water Line Section as
needing to be replaced. Most of the pipe comprising the water line is cast iron pipe that
was installed in the 1950s and 1960s; the Water Line Section was installed in 1957.
These older pipes have a useful life expectancy of forty to seventy years depending
upon various factors, including the depth of the pipe and soil conditions.
Consequently, many sections of the water line were coming to the end of their useful
life, and a significant number of sections had been identified for replacement (the
Identified Pipe).
20100400‐CA 2
¶4 According to the District, it is financially impossible to replace all of the
Identified Pipe in a single year. Therefore, the District has adopted procedures to
prioritize the replacement of Identified Pipe according to various factors affecting need,
cost, and convenience, and to recommend which Identified Pipe should be replaced in
any given year (the Recommended Pipe). Based on the application of those factors, the
Engineers determined that the replacement of the Water Line Section should be
deferred because it was not economically justified at that time. In their 2003‐2004
annual budget proposal to the District’s Board of Trustees (the Board), the Engineers
presented their recommendation of which Identified Pipe should be replaced that year,
the reasons for that recommendation, and a request for the necessary funds to replace
the Recommended Pipe. The Engineers acknowledge that their decision was influenced
by the Board’s expectation that they not exceed the prior year’s capital improvement
budget by more than a certain percentage. Although they identified the Water Line
Section as needing to be replaced in 2002, the Engineers did not recommend it for
replacement until 2006. The Board allocated the necessary funds for replacement of the
Water Line Section in the District’s 2006‐2007 fiscal year budget.
¶5 On November 19, 2005, after it had been listed as Identified Pipe but before the
Engineers had designated it as a Recommended Pipe, the Water Line Section ruptured,
resulting in the flooding of the Jenkinses’ property and the Home (the 2005 Breach).
The Jenkinses contend that the 2005 Breach caused “structural damage to the [Home]
and realty and destroy[ed] personal property belonging to [them].” Subsequently, the
Board accepted the Engineers’ recommendation that the Water Line Section be replaced
and allocated the necessary funds to do so. In October 2006, the District began
replacing the six‐inch cast iron pipe in the Water Line Section with six‐inch PVC pipe.
The replacement was timed to coincide with a South Salt Lake City construction project
involving the sidewalk, curb, and gutter located above the Water Line Section. On
October 2, 2006, while the District was laying the new PVC pipe alongside the cast iron
pipe, the Water Line Section broke at a different point in the same general location as
the 2005 Breach, again flooding the Home and causing additional damage (the 2006
Breach).2 The Water Line Section had broken at least nine times in the nine years
preceding the Breaches, and seven of those breaches had occurred during the five years
immediately preceding the 2005 Breach.
2
The 2005 Breach and the 2006 Breach are collectively referred to as “the
Breaches.”
20100400‐CA 3
¶6 Although the District provided some financial assistance to the Jenkinses after
the 2005 Breach, the Jenkinses claim that it did not compensate them fully for their
damages then and that the District has refused to pay any amounts in connection with
the 2006 Breach. Consequently, on November 1, 2006, the Jenkinses served a notice of
claim indicating their intent to sue the District. When the District failed to respond, the
Jenkinses filed a complaint, seeking damages for property damage, emotional distress,
and lost wages. The District answered the complaint, raising both the public duty
doctrine and governmental immunity as defenses. Thereafter, the District filed a
motion and memorandum for summary judgment asserting (1) that the Jenkinses’
claims were barred by the public duty doctrine; (2) that even if not barred by that
doctrine, the Jenkinses could not prevail because they had failed to designate an expert;
(3) that even if the Jenkinses could establish liability without an expert, the District was
immune from suit; and (4) that the trial court lacked jurisdiction over some of the
Jenkinses’ claims because they were not identified in the notice of claim. After full
briefing and hearing, the district court granted summary judgment on the basis that the
claims against the District were barred by the public duty doctrine. Because the district
court found this doctrine determinative, it did not consider the other grounds for
summary judgment advanced by the District. This appeal followed.
ISSUE AND STANDARD OF REVIEW
¶7 The Jenkinses appeal the trial court’s order granting summary judgment in favor
of the District. “We review summary judgments for correctness, giving no deference to
the trial court’s decision (even on questions that would be denominated as ‘mixed’
[questions of law and fact] if they arose on appeal after trial).” Bahr v. Imus, 2011 UT 19,
¶ 16, 250 P.3d 56.
ANALYSIS
¶8 We begin our analysis with the examination of the District’s challenge to the
sufficiency of the notice of claim because we generally consider issues affecting subject
matter jurisdiction first. See Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 9, 199
P.3d 957 (“The first issue is whether we have jurisdiction . . . .”); Hicks v. UBS Fin. Servs.,
20100400‐CA 4
Inc., 2010 UT App 26, ¶ 12, 226 P.3d 762 (“[B]efore reaching the substantive issue . . . we
must first determine whether we have jurisdiction to hear this appeal.”), cert. granted,
238 P.3d 443 (Utah 2010) (No. 20100186). We conclude that subject matter jurisdiction
exists with respect to the Jenkinses’ claims, but we remand to the trial court for the
resolution of factual issues determinative of the damages available to the Jenkinses. We
then proceed to the issue of whether the Jenkinses’ negligence claim is barred by the
public duty doctrine. See generally Rollins v. Petersen, 813 P.2d 1156, 1162 n.3 (Utah 1991)
(noting that the public duty doctrine should be considered before questions of
immunity). We conclude that it is not and reverse the trial court’s summary judgment
in favor of the District on that theory.
¶9 We next address the alternative grounds raised by the District in support of
summary judgment in its favor. Because “judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of deciding them,” State v.
Thurman, 846 P.2d 1256, 1262 (Utah 1993) (internal quotation marks omitted), we defer
the open courts challenge advanced by the Jenkinses until after the consideration of all
other issues. See Clegg v. Wasatch Cnty., 2010 UT 5, ¶¶ 26‐27, 227 P.3d 1243 (declining to
reach an open courts clause question when a factual issue remained with respect to the
application of immunity because “to do so would be to impermissibly render an
advisory opinion”). Thus, we begin our analysis of the District’s alternative grounds by
considering whether summary judgment is appropriate because the Jenkinses failed to
designate an expert. Under the unique facts present here, we hold that expert testimony
is not required. We then proceed to the issue of whether, even if the District negligently
caused damage to the Jenkinses, it is immune from liability under the Governmental
Immunity Act of Utah (the GIAU). See Utah Code Ann. §§ 63G‐7‐101 to ‐904 (2011).
Ultimately, we conclude that the District’s decision of when to replace the Water Line
Section was a discretionary function for which the District is immune as a matter of law.
¶10 Having thus eliminated all other bases for resolving the issues before us, we
proceed to the Jenkinses’ argument that even if the District would be immune,
summary judgment is not appropriate because the GIAU as applied to their claims
violates the open courts clause of the Utah Constitution. See Utah Const. art. I, § 11; see
also Day v. State ex rel Utah Dep’t Pub. Safety, 1999 UT 46, ¶ 9, 980 P.2d 1171 (following
“the principle that a case should be decided on non‐constitutional grounds if possible
and that constitutional issues should be addressed only when necessary”). We first
determine that legislative amendments to the state’s governmental immunity laws
20100400‐CA 5
resulted in the complete abrogation of the Jenkinses’ preexisting remedy without
providing them a reasonable alternative. We next focus on the social or economic evils
identified by the Utah Legislature as the motivation for the amendments, deferring to
that body’s judgment that these concerns are legitimate and require a remedy. Upon
the identification of the evils to be addressed, we proceed to the consideration of
whether the selected remedy is reasonable and rational, including the review of
whether the remedy is narrowly tailored. Although we are convinced that the means
selected by the legislature are rationally designed to address the economic and social
evils it has identified, we conclude that the complete abrogation of the Jenkinses’ claims
is not narrowly tailored. Based on controlling precedent from the Utah Supreme Court,
we hold that the open courts clause of the Utah Constitution prevents the District from
taking advantage of the immunity afforded by the GIAU with respect to the Jenkinses’
claims. Therefore, we reverse the decision of the trial court and remand for further
proceedings consistent with this decision.
I. Subject Matter Jurisdiction
¶11 We first consider the District’s challenge to our subject matter jurisdiction over
the Jenkinses’ second and third causes of action on the ground that they were not
included in the notice of claim as required by the GIAU. See Utah Code Ann. § 63G‐7‐
401(3)(a) (2011) (requiring that any person with a claim against a governmental entity
“file a written notice of claim with the entity before maintaining an action”);3 Greene v.
Utah Transit Auth., 2001 UT 109, ¶ 16, 37 P.3d 1156 (“Compliance with the Immunity Act
is necessary to confer subject matter jurisdiction upon a trial court to hear claims against
governmental entities.”).4 Whether this court has subject matter jurisdiction is a
3
Since the Jenkinses filed their notice of claim on November 1, 2006, section 63G‐
7‐401 has been amended several times. See Utah Code Ann. § 63‐30d‐401(3)(a) (2004); id.
§ 63G‐7‐401(3)(a) (2008); id. § 63G‐7‐401(3)(a) (2011). Because those amendments did
not affect the provisions regarding the content of the notice of claim, we refer to the
current version of the statute. Compare id. § 63‐30d‐401(3)(a) (2004), with id. § 63G‐7‐
401(3)(a) (2011).
4
The parties agree that the District is a governmental entity. See id. § 63G‐7‐102(3)
(2011) (“‘Governmental entity’ means the state and its political subdivisions as both are
(continued...)
20100400‐CA 6
question of law that we review under the correction of error standard, affording no
deference to the trial court’s legal conclusion. See Xiao Yang Li v. University of Utah, 2006
UT 57, ¶ 7, 144 P.3d 1142. The interpretation of the GIAU is also a question of law that
we review under the nondeferential standard of correctness. See General Constr. & Dev.,
Inc. v. Peterson Plumbing Supply, 2011 UT 1, ¶ 5, 248 P.3d 972.
¶12 The GIAU mandates that before a party may commence an action against a
governmental entity in the district court the party must file a written notice of claim that
includes, to the extent relevant here, “(i) a brief statement of the facts; (ii) the nature of
the claim asserted; [and] (iii) the damages incurred by the claimant so far as they are
known.” See Utah Code Ann. § 63G‐7‐401(3)(a). “The purpose of the notice of claim
requirement is to provide the governmental entity an opportunity to correct the
condition that caused the injury, evaluate the claim, and perhaps settle the matter
without the expense of litigation.” Mecham v. Frazier, 2008 UT 60, ¶ 17, 193 P.3d 630
(internal quotation marks omitted). Thus, the issue presented by the District is whether
the Jenkinses’ notice meets the requirements of section 63G‐7‐401.
¶13 The Jenkinses’ notice of claim states, in relevant part,
On or about November 19, 2005, and again on or about
October 2, 2006, the water line running along 3300 South
Street broke, flooding the Jenkin[se]s’ [H]ome, causing
extensive damage to the foundation and walls of the
[H]ome, damaging or destroying the personal property of
the occupants and creating an environment where mold is
now present throughout the basement of the [H]ome.
. . . [T]he damage . . . to the foundation of the house has
created an unsafe condition and . . . to remedy the condition,
the foundation may have to be replaced. The cost of
4
(...continued)
defined in this section.”); id. § 63G‐7‐102(7) (“‘Political subdivision’ means any county,
city, town, school district, community development and renewal agency, special
improvement or taxing district, local district, special service district, an entity created by
an interlocal agreement . . . , or other governmental subdivision or public corporation.”).
20100400‐CA 7
repairing or replacing the foundation is not yet known, but
. . . [t]he rough estimate is in the neighborhood of $50,000.
Mr. Jenkins has received an estimate to clean up the mold
from Watertite Solutions, in the amount of $28,716.60. The
damage to the personal property damaged or destroyed is
approximately $15,000.00.
When the Jenkinses received no response to their notice, they filed their complaint,
seeking compensation for the damage to the Home and their personal property. In
addition, they sought lost wages and damages for the “extreme emotional anguish and
suffering” all of the Jenkinses have endured as a result of the living conditions created
by the flooding, including persistent mold, a damaged and now‐porous foundation, an
inoperable water heater, and an inoperable heating and air conditioning system.
According to the District, the notice of claim did not fairly apprise the District of the
additional claims for lost wages and emotional distress.
¶14 Although the GIAU has been interpreted to require strict compliance, the court
will not impose obligations that are not included in the statute. See Peeples v. State, 2004
UT App 328, ¶ 9, 100 P.3d 254 (“Strict compliance [with section 63G‐7‐401] is not . . . a
one‐way street, and a claimant is not required to do more than the [GIAU] clearly
requires.”). Further, the statute does not mandate that the notice of claim “meet the
standards required to state a claim for relief,” as in a complaint filed to initiate a civil
action. See Houghton v. Department of Health, 2005 UT 63, ¶ 21, 125 P.3d 860 (internal
quotation marks omitted). “Rather, a plaintiff need only include enough specificity in
the notice to inform as to the nature of the claim so that the defendant can appraise its
potential liability.” Id. (internal quotation marks omitted); see also id. ¶ 22 (holding that
the draft complaint requesting “attorney[] fees as may be provided by law,” attached to
the notice of claim fairly apprised the governmental entity that the plaintiffs would seek
attorney fees later requested under a particular statute (internal quotation marks
omitted)); Mecham, 2008 UT 60, ¶ 19 (holding that a notice of claim against a
governmental employee need not use words such as “malice” or “fraud,” so long as the
notice alerts the governmental entity of an intent to sue due to the employee’s
fraudulent or malicious conduct).
¶15 In interpreting the plain language of the GIAU, this court has concluded that the
requirement that the plaintiff provide a “brief statement of the facts” unambiguously
“does not require specifics.” See Peeples, 2004 UT App 328, ¶ 8; see also Utah Code Ann.
20100400‐CA 8
§ 63G‐7‐401(3)(a)(i). Here, the Jenkinses’ statement “contains multiple facts, including
the date of [their] injury, its alleged cause, details of the alleged . . . defect, and that the
injury occurred at [the Home].” See Peeples, 2004 UT App 328, ¶ 10. Although it does
not include any facts concerning the impact of the flooding on the emotional well being
or earning capacity of the Jenkinses, the notice adequately “constitutes a brief recitation
of those facts most relevant to the [incident].” See Xiao Yang Li, 2006 UT 57, ¶ 10.
¶16 The statute also requires the claimant to set forth “the nature of the claim.” See
Utah Code Ann. § 63G‐7‐401(3)(a)(ii) (2011). “There is no ambiguity in the nature of
claim requirement: ‘There must be enough specificity in the notice to inform as to the
nature of the claim so that the defendant can appraise its potential liability.’” Heideman
v. Washington City, 2007 UT App 11, ¶ 14, 155 P.3d 900 (quoting Yearsley v. Jensen, 798
P.2d 1127, 1129 (Utah 1990)). While the notice of claim filed by the Jenkinses alerts the
District to its potential liability for the substantial damages to the Jenkinses’ Home and
property, it does not specifically notify the District that they also hope to recover for
emotional distress and lost wages. The District asserts that this renders the notice of
claim invalid with respect to those claims.
¶17 In Yearsley v. Jensen, 798 P.2d 1127 (Utah 1990), the Utah Supreme Court
interpreted the “nature of the claim” requirement. See id. at 1129. There, the plaintiff
filed a notice of claim seeking “$100,000 for physical and emotional distress” suffered
when police officers “physically beat the claimant in the course of the arrest of a third
party.” Id. at 1128. When the plaintiff sued for malicious prosecution, the defendants
argued that the notice of claim had not adequately alerted them to that cause of action.
See id. The Utah Supreme Court agreed, concluding that the claim for malicious
prosecution “var[ied] so profoundly” from the plaintiff’s notice of claim that it would
do violence to the immunity act to permit the plaintiff to go forward with that claim in
the litigation. See id. at 1129; see also Heideman, 2007 UT App 11, ¶ 14 (holding that the
court was judicially barred from considering plaintiff’s claim for intentional interference
with economic relations where the notice of claim sought damages for breach of
contract, civil rights violations, and other unrelated causes of action). The District
contends here that, as in Yearsley, the Jenkinses’ claims for lost wages and emotional
distress vary profoundly from the nature of the claim described in their notice of claim.
See Yearsley, 798 P.2d at 1129.
20100400‐CA 9
¶18 However, the Jenkinses have not asserted any new causes of action; instead, they
seek categories of damages not previously identified.5 In Behrens v. Raleigh Hills Hospital
Inc., 675 P.2d 1179 (Utah 1983), the Utah Supreme Court considered that distinction
determinative. See id. at 1182. There, the defendant argued that the plaintiff could not
recover punitive damages because they had not been identified in the notice of claim.
Id. The supreme court disagreed, explaining that “an amendment to include [punitive]
damages does not import into a case a new and different cause of action.” See id.
Similarly, the Jenkinses’ request to be compensated for lost wages and emotional
distress caused by the flooding does not import a new cause of action into the case.
And despite the absence of a claim for those damages, the notice of claim is detailed
enough to provide the District an opportunity to “correct the condition that caused the
injury, evaluate the claim, and perhaps settle the matter without the expense of
litigation.” Mecham v. Frazier, 2008 UT 60, ¶ 17, 193 P.3d 630 (internal quotation marks
omitted).
¶19 The District’s argument seems more accurately characterized as a challenge to
the Jenkinses’ compliance with the requirement that the notice of claim include a
description of “the damages incurred by the claimant so far as they are known.” See
Utah Code Ann. § 63G‐7‐401(3)(a)(iii). Our supreme court reviewed the scope of that
requirement in Xiao Yang Li v. University of Utah, 2006 UT 57, 144 P.3d 1142, where it
considered whether a complaint filed by the heirs of persons killed in a traffic accident
should have been dismissed. See id. ¶¶ 2‐5. The heirs filed a notice of claim describing
the accident and indicating that the nature of the claim was negligence, negligent
supervision, and vicarious liability. See id. ¶¶ 10‐11. Although the notice stated only
that seven of the plaintiffs were dead and that the others were receiving medical
treatment, the supreme court concluded that it “went beyond the minimal requirements
of the [GIAU] by at least indicating that the damages would be those incurred as a
result of the injuries and deaths caused by the accident.” See id. ¶ 12. The supreme
court further explained that the GIAU “does not call for an all‐inclusive summary of the
damages or for speculation.” See id.
5
Although the Jenkinses’ complaint asserts the claims for lost wages and
emotional distress as separate causes of action, they incorporate by reference the
allegations concerning the District’s failure to replace the Water Line Section from the
first cause of action as the basis of liability for those additional damages.
20100400‐CA 10
¶20 Here, the Jenkinses put the District on notice of their intent to sue for the
damages incurred as a result of the Breaches. They went beyond the minimal
requirements of the GIAU by quantifying many of those damages. While they did not
provide an all‐inclusive summary of damages, that omission does not necessarily
render their notice of claim inadequate. The GIAU requires that the notice of claim
include a description of the damages incurred “so far as they are known.” See Utah
Code Ann. § 63G‐7‐401(3)(a)(iii). The Jenkinses filed their notice of claim one month
after the 2006 Breach of the Water Line Section and included significant detail in
quantifying the damages then known. While the notice of claim does not include lost
wages and emotional distress damages, it was written before the Jenkinses were forced
to live in the damaged Home for years pending resolution of this dispute. Indeed, the
complaint alleges that the emotional distress is continuing: “The[] conditions [to the
Home caused by the flooding] continue to cause extreme mental anguish and suffering
to the [Jenkinses], to their damage in an amount to be proved at trial.”
¶21 The extent to which the damages for the emotional impact of the flooding arose
after the Jenkinses filed their notice of claim is not apparent from the record. Likewise,
the claim for lost wages does not provide any information about when “Ash Jenkins
and [Patricia] Jenkins were required to take time off from their usual vocations.” As a
result, we are unable to determine whether the Jenkinses met their obligation to provide
a “listing of only known damages.” See Xiao Yang Li, 2006 UT 57, ¶ 12. If the damages
were known to the Jenkinses but not reported in the notice of intent, recovery of them is
barred; to the extent that the Jenkinses were not aware of these damages at the time
they filed the notice of claim, recovery is not barred. Further proceedings in the trial
court are necessary to resolve this factual issue.
¶22 In any event, this court has subject matter jurisdiction over the claims and
damages that were described in the notice of claim. Therefore, we now proceed to the
review of the substantive issues raised by this appeal, beginning with the basis for the
trial court’s decision.
20100400‐CA 11
II. The Public Duty Doctrine
¶23 The Jenkinses contend that the trial court erred in concluding that the public
duty doctrine bars their claim that the District was negligent in failing to replace the
Water Line Section prior to the Breaches.6 The trial court determined that under the
public duty doctrine, the District owed them no duty to prevent the Breaches. Whether
a duty exists is a question of law that we review for correctness. See Slisze v. Stanley‐
Bostitch, 1999 UT 20, ¶ 9, 979 P.2d 317; Tuttle v. Olds, 2007 UT App 10, ¶¶ 20‐24, 155 P.3d
893 (McHugh, J., concurring in part and dissenting in part) (reviewing the trial court’s
reliance on the public duty doctrine to grant summary judgment as a question of law).
A. The Relationship Between the Public Duty Doctrine and Negligence
¶24 The Jenkinses’ claim is based on a theory of negligence. To prove a claim of
negligence, the Jenkinses must establish four elements: “(1) that the defendant owed
the plaintiff a duty, (2) that the defendant breached that duty, (3) that the breach of the
duty was the proximate cause of the plaintiff’s injury, and (4) that the plaintiff in fact
suffered injuries or damages.” Webb v. University of Utah, 2005 UT 80, ¶ 9, 125 P.3d 906
(internal quotation marks omitted). The failure to prove any one of these elements is
fatal to the plaintiff’s case. See Dikeou v. Osborn, 881 P.2d 943, 946 (Utah Ct. App. 1994).
The issue before us is whether the trial court correctly concluded that the District owed
no duty to the Jenkinses, thereby defeating their claim for negligence as a matter of law.
¶25 “‘“[D]uty” is a question of whether the defendant is under any obligation for the
benefit of the particular plaintiff; and in negligence cases, the duty is always the
same—to conform to the legal standard of reasonable conduct in light of the apparent
risk.’” Downing v. Hyland Pharmacy, 2008 UT 65, ¶ 11, 194 P.3d 944 (quoting W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 53 (5th ed., Lawyer’s Ed. 1984)).
Typically, the court determines whether a duty exists based upon “the sum total of
those considerations of policy which lead the law to say that the particular plaintiff is
6
The Jenkinses clarified at oral argument that they do not assert any negligence in
connection with the repair of the 2005 Breach or the replacement of the Water Line
Section in 2006. Instead, they claim that the District negligently failed to replace the cast
iron pipe comprising the Water Line Section before the Breaches, thereby causing
extensive damage to the Jenkinses.
20100400‐CA 12
entitled to protection.” See DeBry v. Valley Mortg. Co., 835 P.2d 1000, 1003‐04 (Utah Ct.
App. 1992); accord Webb, 2005 UT 80, ¶ 9. The public duty doctrine supplants this
analysis by predetermining that policy considerations weigh against imposing a duty
on the governmental entity to protect any particular plaintiff. It is
a common law rule[ that] provides that a governmental
entity and its employees owe no duty of care to individual
members of the general public to provide governmental
services and this rule of nonliability is grounded in the
principle that the duty of a governmental entity to preserve
the well‐being of the community is owed to the public at
large, rather than to specific members of the community.
57 Am. Jur. 2d Municipal, County, School, and State Tort Liability § 88 (2001). Thus,
“[f]or a governmental agency and its agents to be liable for
negligently caused injury suffered by a member of the
public, the plaintiff must show a breach of a duty owed him
as an individual, not merely the breach of an obligation
owed to the general public at large by the governmental
official.”
Day v. State ex rel Utah Dep’t of Pub. Safety, 1999 UT 46, ¶ 11, 980 P.2d 1171 (quoting
Ferree v. State, 784 P.2d 149, 151 (Utah 1989)).
B. The Distinction Between the Public Duty Doctrine and Governmental Immunity
¶26 In contrast to the public duty doctrine, governmental immunity provides that a
governmental entity need not pay any damages, despite the fact that it was negligent.
Thus, immunity is analytically distinct from the public duty doctrine. Nevertheless, the
simultaneous operation of the two legal theories has caused considerable confusion.7
7
Due to the confusion caused by this overlap, some states have abolished the
common law public duty doctrine. See, e.g., Natrona Cnty. v. Blake, 2003 WY 170, ¶ 15, 81
P.3d 948, 956 (Wyo. 2003) (collecting cases abolishing the public duty doctrine); 1 Dan B.
(continued...)
20100400‐CA 13
See Webb, 2005 UT 80, ¶ 7 (“The central challenge confronting us in this case is to make
sense of the scene where common law negligence and governmental immunity law
have collided.”). Because governmental immunity “is an affirmative defense and
conceptually arises subsequent to the question of whether there is tort liability in the
first instance,” see Ferree, 784 P.2d at 153, the “proper mode of analysis is to first
consider whether there is a legal theory upon which suit can be brought . . . before
considering the separate and independent questions of whether the [entity] is immune.”
Rollins v. Petersen, 813 P.2d 1156, 1168 n.3 (Utah 1991); see also Ledfords v. Emery Cnty.
Sch. Dist., 849 P.2d 1162, 1163‐64 (Utah 1993) (noting that analytical clarity is served by
addressing traditional tort questions before issues of immunity). We follow that mode
of analysis now by first reviewing whether, under the public duty doctrine, the District
owed no duty of care to the Jenkinses individually.
C. The Public Duty Doctrine in Utah
¶27 The Utah Supreme Court first relied on the public duty doctrine in Obray v.
Malmberg, 26 Utah 2d 17, 484 P.2d 160 (1971), where it cited cases from other
jurisdictions to support its conclusion that the “failure by a public sheriff to investigate
a crime . . . [is] not pursuable by an individual since the public official’s duty is to the
public.”8 See id. at 1162. Since then, the public duty doctrine has been applied in Utah
7
(...continued)
Dobbs, The Law of Torts § 271 (2001) (noting the rejection of the doctrine in some states);
18 McQuillin Municipal Corporations § 53.04.25 (3d. ed. 2003) (collecting cases). Indeed,
Chief Justice Durham has acknowledged that the interplay between governmental
immunity and public duty in Utah creates “confusion in the law and inequitable
results.” See Rollins v. Petersen, 813 P.2d 1156, 1166 (Utah 1991) (Durham, J., concurring
and dissenting). However, our supreme court has declined to eliminate the common
law doctrine in response to the legislature’s adoption of statutory governmental
immunity. See id. at 1162 n.3 (majority opinion) (“[T]he legislature’s abrogation of
absolute sovereign immunity does not lead to the conclusion that the public duty
doctrine has also been abrogated.”).
8
The doctrine was first recognized in the United States in South v. Maryland, 59
U.S. 396 (1855). There, the Supreme Court held that a sheriff’s common law duty to
enforce the law did not create a duty to the plaintiff that was then breached when the
(continued...)
20100400‐CA 14
to eliminate a duty to any individual member of the public for the negligent
performance of a governmental regulatory or enforcement activity. See, e.g., Madsen v.
Borthick, 850 P.2d 442, 446‐47 (Utah 1993) (holding that the Utah Department of Finance
had no duty to plaintiffs in the regulation of a financial institution); C.T. v. Martinez, 845
P.2d 246, 247 (Utah 1992) (holding that the Utah Department of Social Services had no
duty to plaintiffs in licensing a day care facility); Ferree, 784 P.2d at 152 (holding that the
Utah State Department of Corrections did not owe a duty to plaintiff in granting a
prisoner a two‐day release). Indeed, the application of the doctrine to these “[v]arious
kinds of regulatory and police activities” is a classic form of the public duty doctrine.
See DeBry, 889 P.2d at 440 n.12; see also 57 Am. Jur. 2d Municipal, County, School, and State
Tort Liability § 102 (2001) (“[A] governmental entity cannot be held liable in negligence
for failure to carry out its statutory duties.”); 1 Dan B. Dobbs, The Law of Torts § 271
(2001) (“The traditional examples of the public duty rule are all cases of non‐
performance of a statutory duty, not cases of affirmative conduct.”). In addition, Utah’s
public duty doctrine provides protection to governmental entities engaged in activities
that benefit the public at large, whether or not considered regulatory or enforcement
activities. See, e.g., Cannon v. University of Utah, 866 P.2d 586, 589 n.6 (Utah Ct. App.
1993) (holding that the police officers posted by the university at a crosswalk in which
the plaintiffs were hit on their way to a university‐sponsored basketball game owed “a
general duty . . . to the public at large, not to any distinct group”).
D. Application of the Public Duty Doctrine to These Facts
¶28 The Jenkinses argue that the public duty doctrine does not apply to the District’s
actions here because the sale of water is a proprietary, rather than a governmental,
function. See 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability § 102 (“The
public duty rule applies to uniquely government functions.”).9 However, in Utah, the
8
(...continued)
sheriff failed to intervene after the plaintiff was kidnapped and held for ransom. See id.
at 402‐03.
9
The District correctly notes that the Jenkinses did not argue to the trial court that
the public duty doctrine, as opposed to governmental immunity, is limited to
governmental functions. However, the Jenkinses did argue that the public duty
doctrine is not applicable here, citing Utah decisions where liability has been imposed.
(continued...)
20100400‐CA 15
public duty doctrine is applied more broadly and arguably includes proprietary
functions of governmental entities. See, e.g., Webb, 2005 UT 80, ¶ 28 (holding that the
university had no duty to a student injured on an icy sidewalk during a required,
school‐related field trip); Rollins, 813 P.2d at 1161‐62 (holding that the state‐run mental
hospital had no duty to a victim injured by an escapee). Thus, whether the allegedly
negligent activity is proprietary or governmental is not determinative of whether the
doctrine is implicated.
¶29 Instead, the Utah Supreme Court has focused its analysis on the relationship
between the plaintiff and the public entity. In Webb v. University of Utah, 2005 UT 80,
125 P.3d 906, the supreme court explained that “an omission or failure to act can
generally give rise to liability only in the presence of some external circumstance—a
special relationship.” Id. ¶ 10. Typically, these relationships arise “‘when one assumes
responsibility for another’s safety or deprives another of his or her normal
opportunities for self‐protection.’” Id. (quoting Beach v. University of Utah, 726 P.2d 413,
415 (Utah 1986)). While the supreme court acknowledged that “as a matter of public
policy, we do not expose governmental actors to tort liability for all mishaps that may
befall the public,” it held that the governmental actor will be liable when its negligence
causes injury “to persons who stand so far apart from the general public that we can
describe them as having a special relationship to the governmental actor.” Id. ¶ 11. In
Day v. State ex rel Utah Department of Public Safety, 1999 UT 46, 980 P.2d 1171, the
supreme court provided a nonexclusive list of the circumstances under which this type
of special duty can arise: (1) where there is a “statute intended to protect a specific class
of person of which the plaintiff is a member from a particular type of harm”; (2) “when
a government agent undertakes specific action to protect a person or property”; (3)
where “government actions . . . reasonably induce detrimental reliance by a member of
the public”; and (4) “under certain circumstances, when the agency has actual custody
of the plaintiff or of a third person who causes harm to the plaintiff.” See id. ¶ 13; accord
Webb, 2005 UT 80, ¶ 25; Gabriel v. Salt Lake City Corp., 2001 UT App 277, ¶ 17, 34 P.3d
234. The District contends that the Jenkinses do not fall within any of these categories
9
(...continued)
Because the applicability of the public duty doctrine turns on the relationship between
the public actor and the plaintiff, rather than on whether the activity is governmental or
proprietary, we conclude that the Jenkinses’ challenge to the district court’s application
of the public duty doctrine was adequately preserved.
20100400‐CA 16
and, therefore, it owed them no duty to operate its water distribution pipeline
nonnegligently. We are not persuaded.
¶30 First, the public duty doctrine in Utah has not been traditionally applied to
protect a governmental entity from negligent maintenance of its own equipment when
undertaken to protect an identifiable group of persons, rather than the public at large.
In Nixon v. Salt Lake City Corp., 898 P.2d 265 (Utah 1995), the plaintiff, who worked for a
janitorial service hired by the city to clean the Salt Lake City Airport, was injured while
using a battery‐powered floor scrubber owned and maintained by the city. See id. at
267. The plaintiff presented evidence that the city had negligently maintained the
equipment. See id. In response, the city argued that it was immune from suit under the
governmental immunity act for any portion of its liability arising out of a negligent
inspection of the equipment. See id. at 270. The Nixon court concluded that “as a matter
of law, the acts complained of are acts of maintenance,” for which the city owed a duty
to foreseeable plaintiffs under traditional tort principles. See id. In doing so, it relied on
jurisprudence developed under the public duty doctrine. See id. at 271. The court
indicated that the public duty doctrine barred recovery where an inspection was
undertaken “to determine [whether] a particular building or piece of equipment was
unsafe for the public as a whole,” see id., but not where the inspection was undertaken
“‘to protect a particular individual or class of individuals,’” see id. at 271 (quoting 57A
Am. Jur. 2d Negligence § 376 (1989)). Because the city’s inspection and maintenance of
its floor scrubber was undertaken to protect persons like the plaintiff who might use the
equipment, the court concluded that it did not fall within the public duty doctrine or, by
extension, the governmental immunity statute. See id.
¶31 This court reached a similar conclusion in Ilott v. University of Utah, 2000 UT App
286, 12 P.3d 1011, again relying on the public duty doctrine to define the limits of
governmental immunity for inspections. See id. ¶¶ 12‐15. There, the plaintiff, who was
attending a University of Utah football game, was injured when a plank on the
bleachers broke. See id. ¶ 2. In holding that neither the public duty doctrine nor
governmental immunity prevented the plaintiff from recovering, the court concluded
that the University was engaged in maintaining its own property and that the plaintiff
was “a member of a specific group (business invitees paying to attend a football
game).” See id. ¶ 15.
¶32 In this case, we hold that the Jenkinses had a special relationship to the District
and, accordingly, that the District owed them a duty of care. Unlike the public at large,
20100400‐CA 17
the Jenkinses owned property next to the Water Line Section that the District had
identified for replacement due, in part, to prior breaches. Where the District’s own
criteria had identified the Water Line Section for replacement, the District “assume[d]
responsibility” for its replacement and, by extension, the “safety” of individuals like the
Jenkinses who lived in the path of any water that might escape from future breaches.
See Beach, 726 P.2d at 415 (noting that a special relationship arises “when one assumes
responsibility for another’s safety or deprives another of his or her normal
opportunities for self‐protection”). In addition, after the Jenkinses were flooded in 2005
and had received some compensation from the District, they certainly stood “so far
apart from the general public that we can describe them as having a special relationship
to the governmental actor.” See Webb, 2005 UT 80, ¶ 11. Furthermore, the Jenkinses
could not protect themselves by replacing the pipe owned by the District. Thus, the
District had a duty to the Jenkinses not to negligently delay the replacement of the
Water Line Section. Consequently, we hold that the trial court erred when it granted
summary judgment in favor of the District on the ground that the public duty doctrine
absolved it of any duty to the Jenkinses to maintain the Water Line Section.10
¶33 Nevertheless, the District contends that summary judgment in its favor can be
affirmed on several alternative grounds, including that the Jenkinses failed to designate
an expert and that the decision of when and whether to replace the Water Line Section
was a discretionary function for which the District is immune under the GIAU. We
now consider whether there are alternative grounds apparent from the record under
which the trial court’s summary judgment ruling can be affirmed. See Bailey v. Bayles,
2002 UT 58, ¶ 13, 52 P.3d 1158 (holding that an appellate court may affirm the decision
of the trial court on any ground apparent from the record). To affirm the summary
judgment ruling on an alternative legal theory, the necessary facts supporting that
theory must be undisputed. See Richardson v. Hart, 2009 UT App 387, ¶ 14, 223 P.3d 484.
10
In reaching this conclusion, we do not express any opinion about whether the
District has a special relationship with other persons who own property adjacent to
segments of the water line that have not previously breached or been identified for
replacement.
20100400‐CA 18
III. Failure to Designate an Expert
¶34 There is no dispute that the Jenkinses did not designate an expert witness to
testify as to the standard of care or whether the District breached that standard by
continuing to use the Water Line Section after it was identified for replacement.11
According to the District, the lack of expert testimony on these points defeats the
Jenkinses’ negligence claim because “issues of fact which are outside the knowledge
and experience of lay persons must be established by expert testimony.” Hoopiiaina v.
Intermountain Health Care, 740 P.2d 270, 271 (Utah Ct. App. 1987) (citing Kim v. Anderson,
610 P.2d 1270, 1271 (Utah 1980)).
¶35 The District relies on District of Columbia v. Arnold & Porter, 756 A.2d 427 (D.C.
2000), for the proposition that “the operation and maintenance of a municipal water
main system and the handling of leaks in that system are not subjects within the
common knowledge of jurors.” Id. at 433‐34. There, the plaintiffs owned businesses
that suffered damage when the District of Columbia (D.C.) did not immediately
investigate reports of a leak in its municipal water system and then delayed turning off
the water in the area for approximately nine hours. See id. at 429‐32. After a bench trial
on the plaintiffs’s negligence claims, the trial court found for the plaintiffs and D.C.
appealed. See id. at 429. Although the District of Columbia Court of Appeals remanded
on other issues, it rejected the plaintiffs’ argument that while the “general subject of
municipal water standards may be beyond the ken of the average layperson,” the issues
of the particular case were a matter of “common sense.” See id. at 432. The appellate
court first held that the operation and maintenance of the system, as well as the
handling of leaks, were not subjects within the common knowledge of lay jurors, and
then further explained that,
given our repeated articulation of the need to show a
national standard of care if the subject in question . . . is so
distinctly related to some science, profession or occupation
as to be beyond the ken of the average layperson, we are not
persuaded . . . that the factual and legal context of [D.C.’s]
actions, in conjunction with common sense make clear that
11
The parties have not raised any issues with respect to causation.
20100400‐CA 19
no expert was required to tell the average layperson what
[D.C.] should have done.
Id. at 433‐34 (citation and internal quotation marks omitted).
¶36 Based on this authority, the District asserts that
[t]he specialized knowledge regarding cast iron pipelines,
including their expected and reasonably anticipated
lifetimes, the nature of breaks to such pipelines, the effect of
various kinds of soil conditions, the proper means of repair,
the proper interpretation of a history of breaks to a
particular pipeline, the identification and prioritization of
[Identified Pipe], and the available and proper maintenance
measures, including replacement of water lines, are all
matters beyond the scope of a typical layperson’s
knowledge.
Thus, it asks us to affirm the summary judgment ruling in its favor due to the Jenkinses’
failure to designate an expert on these issues.
¶37 However, unlike the plaintiffs in Arnold & Porter, who claimed that D.C. acted
negligently in the manner in which it handled reports of a leak in its system, see id. at
429‐32, the Jenkinses do not claim that the District negligently investigated whether the
Water Line Section needed to be replaced or that it negligently repaired the breaks in
the Water Line Section. Rather, the Jenkinses contend that after making the
determination that the Water Line Section needed to be replaced, the District
negligently waited over three years before actually replacing it, during which time the
section twice ruptured and flooded their property. Specifically, the Jenkinses claim that
when the District’s own procedures established that the
[Water Line Section] had failed so many times, in such a
short distance, over such a short period of time, and that the
District had determined three years before the Jenkin[se]s’
[H]ome was flooded that the [Water Line Section] needed to
be replaced, its failure to act constituted negligence. This is
particularly true in [this] case, where the District not only
20100400‐CA 20
failed to act before the first flood, but failed to act until the
Jenkin[se]s’ [H]ome had been flooded a second time, almost
one year later.
Where the issue is narrowly focused on the decision to delay three years before
replacing the Water Line Section, we agree with the Jenkinses that the facts and results
of the District’s actions and inactions are not beyond the scope of laypersons’
knowledge and ability to analyze and determine whether the District was negligent in
this case. See, e.g., Bowman v. Kalm, 2008 UT 9, ¶ 13, 179 P.3d 754 (holding that no expert
was required to explain the “causal connection between a decedent made clumsy due to
a doctor’s negligence, and the decedent’s death due to a dresser being pulled down on
top of her”). But see Spafford v. Granite Credit Union, 2011 UT App 401, ¶¶ 26‐32, 266
P.3d 866 (requiring expert testimony to establish breach of duty and causation where
the plaintiff tripped and fell on a curb that was alleged to be “unusually tall, ‘tapered
aggressively,’ and . . . ‘in a state of disrepair’”). In response, the District contends that it
was financially unable to replace all of the cast iron sections of the water line in a single
year and was, therefore, required to defer replacement of the Water Line Section. We
are similarly unconvinced that expert testimony is needed on that point.
¶38 In reaching this conclusion, we find this court’s decision in Schreiter v. Wasatch
Manor, Inc., 871 P.2d 570 (Utah Ct. App. 1994), instructive. There, a resident of a high‐
rise apartment building, who had sustained personal injuries during a fire, brought a
negligence action against the owner of the building based on its failure to install a fire
sprinkler system. See id. at 572. The trial court granted summary judgment against the
resident on two alternative grounds: (1) that the plaintiff failed to show the cost of or
the defendant’s ability to pay for a fire sprinkler system; and (2) that the plaintiff had
not designated an expert witness. See id. On appeal, this court reversed. See id.
¶39 First, we held that expert testimony was not required to establish the standard of
care or that it was breached. See id. at 573, 575. While the Schreiter court acknowledged
that the cost of installing the fire sprinkler system might have some relevance, it held
that “a jury could reasonably find that the approximate cost of such a system would not
preclude its installation by a reasonable person under the circumstances.” Id. at 574.
Likewise, although the cost of replacing sections of the water line may have some
relevance to the question of whether the District’s delay in replacing the Water Line
Section was negligent, that question “is simply not a situation where the issues or facts
20100400‐CA 21
appear to be so complex or technical that they would otherwise elude the mental
processes of the average citizen.” See id. at 575.
¶40 Next, the Schreiter court determined that the defendant’s subjective ability to pay
for such a system was irrelevant to the objective standard of care to be used in
determining whether the defendant had breached its duty to the resident, stating,
[The defendant’s] own actual or subjective ability to pay has
no bearing at all on whether it breached its duty to [the
plaintiff]. Were we to accept [the defendant’s] requirement,
aside from the practical problem of requiring a plaintiff to
prove a particular defendant’s financial position and
capacity to pay, we would be imposing one standard of care
on wealthy defendants and a lower standard on poor
defendants; a higher standard on efficient and well‐managed
entities and a lower standard on inefficient, poorly managed
entities.
Id. at 574. The same considerations are appropriate here. The fact that a defendant
operates a large quantity of negligently maintained or obsolete equipment should not
affect the standard of care required to fulfill the defendant’s duty to foreseeable
plaintiffs. Indeed, we have discovered nothing in our jurisprudence that would support
a sliding scale of care, which benefits a defendant who operates so much outdated
equipment that replacing it all at once is not feasible, while imposing a greater standard
of care on the defendant who employs newer and better maintained equipment. Nor
can we imagine a public policy reason for doing so. Consequently, we hold that no
expert testimony was required to address whether the District had sufficient financial
resources to replace the Water Line Section sooner because such an opinion is irrelevant
to the standard of care owed to the Jenkinses and whether that standard was breached.
¶41 In sum, we decline the District’s invitation to affirm the trial court’s summary
judgment in its favor on the alternative ground that the Jenkinses failed to designate an
expert witness. The issue of whether three years was a reasonable time to delay
replacing the Water Line Section after the Engineers designated it as Identified Pipe is
not beyond the knowledge and analytical ability of the average juror.
20100400‐CA 22
IV. Governmental Immunity
¶42 Next, the District argues that summary judgment is appropriate, irrespective of
whether the public duty doctrine applies or whether the Jenkinses were required to
designate an expert, because the decision about when to replace the Water Line Section
was a discretionary function for which the District is immune from suit under the
GIAU. See Utah Code Ann. § 63G‐7‐301(5)(a) (2011) (providing an exception to the
waiver of governmental immunity for injuries arising out of “the exercise or
performance, or the failure to exercise or perform, a discretionary function, whether or
not the discretion is abused”). While “a party’s entitlement to discretionary function
immunity is a question of law,” it is dependent upon the particular facts and
circumstances of the challenged act or failure to act by the public entity. See Laney v.
Fairview City, 2002 UT 79, ¶ 16, 57 P.3d 1007 (plurality opinion).
A. The Development of Governmental Immunity in Utah
¶43 At common law, a governmental entity was not immune from liability for its
negligence in the provision of water. In Egelhoff v. Ogden City, 71 Utah 511, 267 P. 1011
(1928), the Utah Supreme Court affirmed the denial of the city’s motion for a directed
verdict on the plaintiff’s claim that the city negligently maintained its water lines, which
resulted in leaks that caused damage to the plaintiffs’ property. See id. at 1012‐17. The
supreme court explained that
where the water system of a municipal corporation is conducted by
the municipality in part for profit, even if principally used for
public purposes, the municipality acts in its corporate or
private capacity and is liable for damages caused by its negligent
construction or management, to its employee or the public
generally, to the same extent as a private individual or
corporation would be under the circumstances. But, there is
a distinction between furnishing water to individuals for
compensation and furnishing it for fire purposes. The former is
the exercise of a private, the latter a governmental, function;
and there is no liability if the negligent act was done in the
extinguishment of fire, or in connection with flushing
hydrants solely to better fire protection, or the like.
20100400‐CA 23
Id. at 1012 (emphases added);12 see also 18A McQuillin Municipal Corporations § 53.103‐
105 (3d ed. 2002) (noting that although a governmental entity is not liable for
negligently supplying water for public purposes such as protecting “against fire,
flushing sewers, and other uses pertaining to the public health and safety,” it is liable
for ordinary negligence arising out of its activity of supplying water for a fee). Thus,
the Egelhoff court distinguished between activities engaged in for public purposes and
those undertaken for profit, concluding that only the former were entitled to immunity.
See Egelhoff, 267 P. at 1012‐13.
¶44 For a period of time after Egelhoff, the Utah Supreme Court continued to
distinguish between governmental and proprietary activities in determining whether a
governmental entity could be held liable for negligence related to the provision of
water. See, e.g., Nestman v. South Davis City Water Improvement Dist., 16 Utah 2d 198, 398
P.2d 203, 205 (1965) (concluding that a water improvement district was not entitled to
sovereign immunity for damages caused by the breach of its reservoir, because
“operating a water system and supplying water for fees . . . is a proprietary function,
and the city is liable for damage or injury caused by its negligence in connection
therewith”); Gordon v. Provo City, 15 Utah 2d 287, 391 P.2d 430 (1964) (affirming a jury
verdict for a plaintiff injured by a loose water meter lid because the city “operated the
water system as a commercial venture in a proprietary capacity and thus [was]
responsible for any negligence in operating or maintaining it”). Thus, under Utah’s
common law, a governmental actor was liable for negligence only with respect to its
proprietary activities. See also Standiford v. Salt Lake City Corp., 605 P.2d 1230, 1233 (Utah
1980) (collecting early Utah decisions using the distinction between governmental and
proprietary functions to determine whether the governmental actor could be held liable
in tort); DeBry v. Noble, 889 P.2d 428, 440 (Utah 1995) (discussing the development of
governmental immunity in Utah).
¶45 In 1965, the Utah Legislature adopted the Utah Governmental Immunity Act (the
UGIA), which codified the instances in which the traditional immunity of governmental
12
In Brown v. Salt Lake City, 33 Utah 222, 93 P. 570 (1908), abrogated on other grounds
by Kessler v. Mortenson, 2000 UT 95, ¶¶ 13‐14, 16 P.3d 1225, the Utah Supreme Court
similarly concluded that the maintenance of a conduit that was part of a waterworks
system that the city was not required to furnish to its inhabitants was not “owned,
maintained, nor operated in a governmental capacity.” See id. at 574.
20100400‐CA 24
entities was waived. See DeBry, 889 P.2d at 432. The UGIA provided immunity for
governmental entities engaged in governmental functions unless expressly waived. See
id. Although “the term ‘governmental function’ was the operative phrase establishing
the scope of governmental immunity,” the 1965 version of the UGIA did not define that
term. See id. Thus, to determine whether a governmental entity was engaged in a
governmental function for purposes of the UGIA, the courts borrowed the distinction
between proprietary and governmental functions that had originated under the
common law. See Greenhalgh v. Payson City, 530 P.2d 799, 801 (Utah 1975) (holding that
the UGIA did not displace the common law distinction between proprietary and
governmental functions), superseded by statute as stated in Standiford, 605 P.2d at 1238.
¶46 In 1980, the Utah Supreme Court refined the methodology for determining the
scope of governmental immunity by considering whether “the activity under
consideration is of such a unique nature that it can only be performed by a
governmental agency or that it is essential to the core of governmental activity.” See
Standiford, 605 P.2d at 1236‐37. During this period, the operation of a municipal water
system was considered a proprietary function, falling outside the protection of the
UGIA. See Bennett v. Bow Valley Dev. Corp., 797 P.2d 419, 422 (Utah 1990).13 Shortly
thereafter, the legislature amended the UGIA to include a statutory definition of
governmental function, thereby superceding the Standiford decision. See Utah Code
Ann. § 63‐30‐2(4) (Supp. 1987). The 1987 amendment significantly expanded the
definition of governmental function by including all governmental acts irrespective of
whether they were “essential,” “core,” or “unique to government.” See id. § 63‐30‐
2(4)(a). Subsequent amendments and the reenactment of the UGIA as the GIAU have
reiterated the legislature’s all‐inclusive definition of a governmental function for
purposes of governmental immunity. See id. § 63G‐7‐102(4) (2011). With this historical
framework in mind, we proceed to our analysis of whether the district is immune from
suit.
13
Although Bennett v. Bow Valley Development Corp., 797 P.2d 419 (Utah 1990), was
decided after the 1987 amendments to the UGIA, it arose prior to those amendments
and was decided based on the pre‐1987 precedent. See id. at 421.
20100400‐CA 25
B. The Little Test
¶47 To determine if a governmental entity or its employees are entitled to statutory
immunity, the courts undertake a three‐part analysis. See Ledfors v. Emery Cnty. Sch.
Dist., 849 P.2d 1162, 1164 (Utah 1993); Clegg v. Wasatch Cnty., 2010 UT 5, ¶ 11, 227 P.3d
1243. First, we must determine whether the “activity . . . performed by [the entity is] a
governmental function and therefore immunized from suit by the general grant of
immunity contained in [section 63G‐7‐201 of the GIAU].” Clegg, 2010 UT 5, ¶ 11; see also
Utah Code Ann. § 63G‐7‐201. Next, if the activity is a governmental function, we must
determine whether “some other section of the [GIAU] has waived that blanket
immunity.” Ledfors, 849 P.2d at 1164. Finally, “if the blanket immunity has been
waived,” we then must determine whether the GIAU contains “an exception to that
waiver which results in a retention of immunity against the particular claim asserted in
this case.” Id.
¶48 Under the GIAU’s initial grant of immunity, governmental entities and their
employees “are immune from suit for any injury that results from the exercise of a
governmental function.” See Utah Code Ann. § 63G‐7‐201. The legislature has defined
“[g]overnmental function” to mean “each activity, undertaking, or operation of a
governmental entity,” including those “performed by a department, agency, employee,
agent, or officer of a governmental entity,” and also “includes a governmental entity’s
failure to act.” Id. § 63G‐7‐102(4)(a)‐(c). The parties here do not dispute that the District
is a governmental entity or that the maintenance of the water line is a governmental
function under the broad definition contained in the GIAU. For purposes of its
summary judgment argument, the District also concedes that immunity would be
waived under one of two waiver provisions of the GIAU. See id. § 63G‐7‐301(3)(a)(i)
(providing that immunity is waived for any injury caused by “a defective, unsafe, or
dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert,
tunnel, bridge, viaduct, or other structure located on them”); id. § 63G‐7‐301(a)(ii)
(providing that immunity is waived for injury caused by “any defective or dangerous
condition of a . . . public improvement”). The point of contention between the parties is
the District’s assertion that its conduct falls “under the [GIAU’s] discretionary function
and latent defective condition exceptions to the GIAU’s waiver of immunity.”
¶49 The GIAU provides that immunity is not waived, and instead retained, despite
any waiver provision in the statute, “if the injury arises out of, in connection with, or
20100400‐CA 26
results from . . . the exercise or performance, or the failure to exercise or perform, a
discretionary function, whether or not the discretion is abused.” Id. § 63G‐7‐301(5)(a).
“Discretionary function immunity is a distinct and limited form of immunity that
should be applied only when a plaintiff is challenging a governmental decision that
involves a basic policy‐making function.” Sandberg v. Lehman, Jensen & Donahue, LC,
2003 UT App 272, ¶ 10, 76 P.3d 699 (internal quotation marks omitted). “[D]iscretionary
function immunity is intended to shield [only] those governmental acts and decisions
impacting on large numbers of people in a myriad of unforeseeable ways from
individual and class legal actions, the continual threat of which would make public
administration all but impossible.” Id. (internal quotation marks omitted); see also
Hansen v. Salt Lake Cnty., 794 P.2d 838, 846 (Utah 1990). However, because “[n]early all
acts performed by government employees involve some amount of discretion,” Nelson
ex rel. Stuckman v. Salt Lake City, 919 P.2d 568, 575 (Utah 1996), courts “read the
discretionary function exception to the immunity waiver narrowly,” Johnson v. Utah
Dep’t of Transp., 2006 UT 15, ¶¶ 19, 21, 133 P.3d 402. Furthermore, “[i]mmunity is an
affirmative defense which the defendant bears the burden of proving.” Trujillo v. Utah
Dep’t of Transp., 1999 UT App 227, ¶ 27, 986 P.2d 752.
¶50 The Utah Supreme Court has identified a four‐part test (the Little test or the Little
factors) to decide whether the discretionary function exception to the immunity waiver
applies:
(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?
20100400‐CA 27
(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?
Johnson, 2006 UT 15, ¶ 22 (quoting Little v. Utah State Div. of Family Servs., 667 P.2d 49, 51
(Utah 1983)). The determination of whether an action of a governmental entity involves
a discretionary function is a factually intensive inquiry and typically is not amenable to
resolution by summary judgment. See Trujillo, 1999 UT App 227, ¶ 28 (citing Hansen,
794 P.2d at 846); see also Laney v. Fairfield City, 2002 UT 79, ¶ 16, 57 P.3d 1007 (“Although
a party’s entitlement to discretionary function immunity is a question of law, a court
must have sufficient facts before it to determine whether the challenged act, omission,
or decision satisfies the four‐part Little test.”).
C. There Are No Disputed Questions of Fact Regarding Whether the District’s
Decision About When to Replace the Water Line Section Was a Discretionary
Function
¶51 Nevertheless, the District contends that summary judgment is appropriate here
because the undisputed facts demonstrate that the decision of when to replace the
Water Line Section was a discretionary function as a matter of law. Because the District
bears the burden of proof at trial on the issue of immunity, see Trujillo, 1999 UT App
227, ¶ 27, it had the initial burden “to provide the court with facts that demonstrate
both that [it] is entitled to judgment as a matter of law and that there are no material
issues of fact that would require resolution at trial,” see Orvis v. Johnson, 2008 UT 2, ¶ 19,
177 P.3d 600. In support of its motion for summary judgment, the District provided a
detailed affidavit from Alan Packard, the District’s Assistant General Manager and
Chief Engineer,14 setting forth the analysis employed by the Engineers to identify
pipeline sections in need of replacement. Packard also outlined the factors the Board
weighed to determine the order in which the various Identified Pipes were actually
replaced, including the Board’s allocation of a finite pool of annual resources for that
purpose and its attempts to coordinate with municipal road projects so as to minimize
14
Packard was previously employed as the Engineering Department Manager for
the District. It was in his capacity as Engineering Department Manager that he
evaluated the Water Line Section.
20100400‐CA 28
the cost and inconvenience of replacement. Packard further described the way in which
these procedures affected both the date when the Water Line Section was first
recommended for replacement and the date it was actually replaced.
¶52 Once the District set forth the facts supporting its discretionary function defense,
the Jenkinses were required to “set forth specific facts showing that there is a genuine
issue for trial.” See id. ¶ 18 (internal quotation marks omitted). Notwithstanding that
obligation, the Jenkinses have made no attempt to offer any evidence that calls into
dispute the affidavit testimony provided by the District concerning the methodology
employed to prioritize the replacement of the Water Line Section.15 Instead, the
Jenkinses challenged two of the facts set forth by the District in its motion for summary
judgment on the grounds that they were “speculative, without foundation and not
relevant.”16
¶53 First, the Jenkinses objected to the District’s statement in its motion for summary
judgment that “[b]ecause it is financially impossible for [the District] to replace all of its
pipelines in its water system that are experiencing breaks or approaching their useful
lifetime, the determination of which aging pipeline within its water system will be
replaced is the subject of intensive annual scrutiny by [the District].” With respect to
this fact, the Jenkinses argued that
[f]rom the remaining [f]acts listed by [the District], it is
obvious that the focus of the meetings held to discuss which
pipelines to replace, is on the financial aspects of the job, not
the safety or the reliability of the system. The “scrutiny”
15
Consequently, the Jenkinses also failed to comply with rule 7(c)(3)(B) of the
Utah Rules of Civil Procedure, which requires that for each fact the nonmoving party
claims is disputed, that party “shall provide an explanation of the grounds for any
dispute, supported by citation to the relevant materials, such as affidavits or discovery
materials.” See id.
16
None of these objections is well taken. Packard adequately describes his
personal involvement in the budget process, his familiarity with the volume of cast iron
pipe in the water line, and the factors considered in determining the order in which
sections of the pipeline are replaced.
20100400‐CA 29
described in . . . Packard’s [a]ffidavit does not appear to be
“intense” at all, but just a review of the proposed budget and
“when can the repairs be done the most cheaply.”
Rather than disputing the fact that the District engaged in the analysis described by
Packard, the Jenkinses argue that the District’s analysis was inadequate. This argument
does not create a dispute as to the facts asserted in the affidavit. See Chapman v. Primary
Children’s Hosp., 784 P.2d 1181, 1186 (Utah 1989) (“[M]ere conclusory allegations in a
pleading, unsupported by a recitation of relevant surrounding facts, are insufficient to
preclude dismissal or summary judgment.”). Rather, it may have some relevance to the
legal questions raised by this dispute, including whether the District was engaged in a
discretionary function for purposes of the GIAU.
¶54 Second, the Jenkinses challenged the District’s statement that “it is financially
impossible for [the District] to replace every pipeline in its water system that has
experienced a break or is approaching its useful lifetime.” As support, the Jenkinses
assert that the “[D]istrict is in the business of providing a service to both wholesale and
retail customers and presumably has the ability to charge its customers enough for
those services to meet its reasonable and necessary expenditures.” However, the
Jenkinses again fail to provide contrary evidence to dispute the affidavit testimony.
Instead, they speculate that the Board could have raised water fees to a level that would
have allowed the District to replace all of the cast iron pipe in the water line
immediately. Such unsupported opinion is not sufficient to create an issue of fact. See
Treloggan v. Treloggan, 699 P.2d 747, 748 (Utah 1985) (per curiam) (rejecting an affidavit
in opposition to a motion for summary judgment because it “reveal[ed] no evidentiary
facts, but merely reflect[ed] the affiant’s unsubstantiated opinions and conclusions”).
¶55 In both of its challenges to the District’s statement of facts, the Jenkinses simply
attack the wisdom of the Board’s budgetary decisions. See generally Utah Code Ann.
§ 63G‐7‐301(5)(a) (2011) (providing an exemption to the waiver of immunity for
discretionary functions “whether or not the discretion is abused”). Thus, they have not
met their burden of coming forward with nonspeculative facts to challenge the District’s
evidence. “Where the movant supports a motion for summary judgment with affidavits
or other sworn evidence, the nonmoving party may not rely on bare allegations from
the pleadings to raise a dispute of fact.” Poteet v. White, 2006 UT 63, ¶ 7, 147 P.3d 439.
Because the Jenkinses failed to provide any evidence contrary to Packard’s affidavit, we
20100400‐CA 30
conclude that there are no material issues of fact in dispute. We, therefore, now
consider whether the District has met its burden of showing that it is entitled to
judgment as a matter of law given these undisputed facts. See Orvis, 2008 UT 2, ¶ 19.
To do so, we examine each of the four Little factors to determine whether the decision of
when to replace the Water Line Section involved a discretionary function. See Johnson v.
Utah Dep’t of Transp., 2006 UT 15, ¶ 22, 133 P.3d 402; Little v. Utah State Div. of Family
Servs., 667 P.2d 49, 51 (Utah 1983).
D. Application of the Little Test
¶56 Under the first part of the Little test, we must determine if “the challenged action,
omission, or decision necessarily involve[s] a basic governmental policy, program, or
objective.” See Johnson, 2006 UT 15, ¶ 22. The District is a water conservancy district
formed pursuant to the Water Conservancy District Act. See Utah Code Ann. § 17B‐2a‐
1001 to ‐1009 (2009 & Supp. 2011).17 Water conservancy districts are created, among
other reasons, to conserve and develop water in the state; to provide for its beneficial
use; to control and make use of it for domestic, manufacturing, irrigation, and power; to
promote the prosperity and general welfare of the people of the state; and to “construct,
finance, operate, and maintain works in the state.” See id. § 17B‐2a‐1002(1)(a)‐(f) (2009).
The Water Conservancy District Act grants water districts significant authority,
including the power to “acquire or construct works, facilities, or improvements.” Id.
§ 17B‐2a‐1004(1)(c) (Supp. 2011); see also id. § 17B‐1‐102(35) (defining “works” as “a
dam, reservoir, well, canal, conduit, pipeline, drain, tunnel, power plant, and any facility,
improvement, or property necessary or convenient for supplying or treating water for
any beneficial use, and for otherwise accomplishing the purpose of the local district”
17
The Water Conservancy District Act, was rearranged and reenacted in 2007. See
Special & Local Districts Amendments, ch. 329, §§ 359‐66, 2007 Utah Laws 1723, 1894‐
1900. However, because the material provisions relevant to this case are substantially
the same, we cite to the current version for the convenience of the reader. Compare Utah
Code Ann. § 17B‐2a‐1002(1) (2009) (current statute describing the purpose of water
conservancy districts), and id. § 17B‐2a‐1004(1)(c) (Supp. 2011) (current statute
describing the powers of water conservancy districts), with id. § 17A‐2‐1401 (2004) (prior
statute listing the benefits and policies of water conservancy districts), and id. § 17A‐2‐
1413 (2004) (prior statute defining the powers of water conservancy districts).
20100400‐CA 31
(emphasis added)). Thus, the District’s decisions concerning the maintenance of the
Water Line Section involve a basic governmental policy, program, and objective under
the GIAU. Cf. Rocky Mountain Thrift Stores, Inc. v. Salt Lake City Corp., 784 P.2d 459, 463
(Utah 1989) (concluding that decisions regarding “the design, capacity, and
construction” of a flood control system involved a basic governmental objective of
“flood control to protect life and property”).
¶57 Second, we consider whether the decision to delay replacement of the pipe for
three years after the Water Line Section had been recommended for replacement is
“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.” See Johnson, 2006 UT 15, ¶ 22. Here, the policy, program, or objective is
the provision of water for beneficial use through 275 miles of pipe comprising the water
line. The District contends that the decisions concerning when to replace the numerous
sections of Identified Pipe are essential to the accomplishment of its objectives. The
Jenkinses disagree, asserting that “[t]he timing of the replacement is not essential to the
objective of providing water to [the District’s] customers.” While the District argues
that it must prioritize because it cannot replace all segments of its water line that are
approaching the end of their useful life at once, the Jenkinses assert that the District
could simply charge high enough fees to replace all of the aging pipe.18 However,
decisions concerning what amount of an entity’s resources should be allocated to
repairs or improvements involve a classic exercise of discretion. See id. ¶ 26 n.10
(acknowledging that a governmental entity “may qualify for the discretionary function
exception by demonstrating that a particular allocation of funds was based on an
analytical project prioritization”).
¶58 In Duncan v. Union Pacific Railroad, 842 P.2d 832 (Utah 1992), the supreme court
held that the Utah Department of Transportation (UDOT) was immune from a
wrongful death suit brought by the heirs of persons killed in an automobile‐train
18
Although the parties engage on the issue of whether the District could replace
all of the sections of the 275‐mile water line that are comprised of cast iron pipe, the
Water Line Section had actually been identified for replacement. Thus, the issue is
whether the District could have replaced all of the Identified Pipe, not whether it could
have replaced all of the cast iron pipe in the system.
20100400‐CA 32
collision at a rural railroad crossing. See id. at 835‐36. The plaintiffs claimed that UDOT
was negligent in deferring the installation of automatic warning lights, signs, and gates
at the crossing, and that the decision to do so was an operational, rather than a
discretionary, decision. See id. at 833‐34. In rejecting that argument, the Utah Supreme
Court described UDOT’s process of installing upgrades. See id. at 834. UDOT first
assigned priority according to the hazardousness of the particular crossing. See id. It
then installed the upgrades in that order until its federal funding was exhausted, which
generally covered “only . . . eight to ten projects in Utah each year.” See id. Applying
the Little test, the Duncan court concluded that “the evaluation of crossings and the
assigning of priorities for upgrading the adequacy of warning devices . . . [was]
essential to the improvement of public safety.”19 Id. at 835.
¶59 This court reached a similar conclusion in Smith v. Weber County School District,
877 P.2d 1276 (Utah Ct. App. 1994), where we determined that a school district was
entitled to discretionary function immunity for its decision to locate a school bus stop
on a particular side of a busy road. See id. at 1281‐82. In conducting the Little test, the
Smith court emphasized that “the bus stop and route in question were part of a vast
system serving an entire school district” and that the design of the system involved
competing concerns such as “safety, feasibility, and cost effectiveness.” See id. at 1281.
Consequently, the court concluded that the system itself was essential to accomplishing
the goals of transporting children to school and educating them. See id. at 1281‐82.
¶60 Viewing the Water Line Section as part of the District’s entire water distribution
system, see id. at 1281, we conclude that the assignment of priorities for replacement of
Identified Pipe is essential to the District’s objectives. See Duncan, 842 P.2d at 835. The
Jenkinses’ argument that the District could raise its fees and replace all of the pipe
immediately ignores the other factors the District weighs in deciding when a particular
section of Identified Pipe will be replaced. Cf. Laney v. Fairview City, 2002 UT 79, ¶¶ 10,
18, 67, 57 P.3d 1007 (plurality opinion) (noting that a municipal power system had the
19
The supreme court also concluded that UDOT’s activities met the other Little
test factors, concluding that UDOT had exercised “basic policy evaluation, judgment
and expertise,” and that it had the authority “to determine which crossings [were] most
hazardous and most deserving of the limited funds available for active warning
devices.” See Duncan v. Union Pac. R.R., 842 P.2d 832, 835 (Utah 1992).
20100400‐CA 33
ability to raise fees, but not considering that fact in determining that its decisions about
the features of power lines, including the minimum height of high voltage power lines,
were essential to the governmental objective of promoting public safety). For example,
the District’s Assistant General Manager/Chief Engineer explained in his affidavit that
the District may be unable to obtain the necessary permits from the relevant
municipality if there has already been recent construction in the area. He further stated
that the District seeks to avoid “unnecessary demolishment of recent improvements to
property, roads, sidewalks, and landscaping,” and the disturbance to the public caused
by “ongoing and repeated construction in the same area.” Indeed, when the Water Line
Section was replaced, it was done in conjunction with a road project scheduled for the
same section of 3300 South. “‘The decision of how and when to replace a major element
of a substantial public facility is . . . at bottom a question of how best to allocate
resources.’” Keegan v. State, 896 P.2d 618, 625 (Utah 1995) (quoting Baum v. United
States, 986 F.2d 716, 724 (4th Cir. 1993)). Thus, we conclude that the second part of the
Little test is met because the prioritization of replacement projects was essential to the
operation of the water system.
¶61 Under the third prong of the Little test, the District must show that decisions
concerning when to replace the Water Line Section “require[ed] the exercise of basic
policy evaluation, judgment, and expertise on the part of the governmental agency
involved.” Little v. Utah State Div. of Family Servs., 667 P.2d 49, 51 (Utah 1983) (internal
quotation marks omitted). The parties point us to two decisions from our supreme
court that they contend are controlling on the issue, Keegan v. State, 896 P.2d 618 (Utah
1995), and Johnson v. Utah Department of Transportation, 2006 UT 15, 133 P.2d 402. We
conclude that under either of these opinions, the District’s decision regarding the
priority of replacing the Identified Pipe is a discretionary function.
¶62 In Keegan, the plaintiff brought a wrongful death action, claiming that UDOT was
negligent in not raising the concrete barrier separating the eastbound and westbound
lanes of Interstate Highway 80. See Keegan, 896 P.2d at 619. Although the barrier met
national safety standards when first constructed, subsequent projects had added road
surface material, reducing the distance between the top of the barrier and the road. See
id. At the time of the accident, in which plaintiff’s husband was killed, the barrier did
not meet national safety standards. See id. As a result, the plaintiff claimed that UDOT
negligently failed to raise the height of the barrier during the overlay projects. See id.
The trial court denied UDOT’s claim that its decision was a discretionary function, and
20100400‐CA 34
the jury entered a verdict in favor of the plaintiff. See id. UDOT appealed, claiming,
among other issues, that it was entitled to discretionary function immunity. See id.
¶63 Applying the Little factors, the Utah Supreme Court first concluded that UDOT’s
decision involved the basic governmental objective of public safety on the roads. See id.
at 624. It then determined that the decision was essential to that policy because “it
involved a determination of not only the degree of safety that would be provided by
various options considered, but also what degree of safety would be an appropriate
goal given the time and cost constraints.” Id. Where the project design engineer had
prepared a cost‐benefits report based on an extensive safety study examining cost, other
scheduled projects, and inconvenience, and where the timing and plans for the project
were debated by senior engineers, the supreme court concluded that the decision
involved UDOT’s basic policy judgment and expertise. See id. Thus, the Keegan court
held that the decision not to raise the barrier was a discretionary function for which
UDOT was immune. See id. at 624‐25. The supreme court explained that “‘[e]very
highway could probably be made safer by further expenditures, but we will not hold
UDOT (and implicitly, the legislature) negligent for having to strike a difficult balance
between the need for greater safety and the burden of funding improvements.’” See id.
at 624 (quoting Duncan v. Union Pac. R.R., 790 P.2d 595, 601 (Utah Ct. App. 1990), aff’d,
842 P.2d 832 (Utah 1992)). Indeed, the court cited favorably to federal authority on this
point, stating,
“The decision of how and when to replace a major element of a
substantial public facility is, like the decisions involving design
and construction, at bottom a question of how best to allocate
resources. Such a decision is inherently bound up in
considerations of economic and political policy, and
accordingly is precisely the type of governmental decision
that Congress intended to insulate from judicial second
guessing through tort actions for damages.”
Id. at 625 (emphasis added) (quoting Baum, 986 F.2d at 724); see also Baum, 986 F.2d at
723 (holding that a decision not to replace a guardrail on a National Service Parkway
was a discretionary function).
20100400‐CA 35
¶64 The Jenkinses claim that Keegan can be distinguished because the decision to wait
three years before replacing the Water Line Section did not involve the same type of
careful analysis. Instead, they point to the supreme court’s decision in Johnson as
authority for the proposition that the District’s decision was merely operational. See
Johnson, 2006 UT 15, ¶¶ 35‐37. There, the plaintiff was injured when he drove into
cutouts running parallel to his lane of travel on Interstate Highway 15 (I‐15) that were
marked only by orange barrels. See id. ¶ 4. UDOT’s Regional Director decided to use
the plastic barrels without requesting any safety analysis and without discussing it with
his supervisor. See id. ¶ 5. Furthermore, he did so despite the contractor’s request to
erect concrete barriers instead, and the concern of UDOT’s Project Engineer that the
plastic barrels were not adequate for safety purposes. See id. ¶¶ 6‐7. Indeed, the
contractor had requested additional funds to cover the cost of switching to concrete
barriers, but no agreement on price was ever reached.20 See id. ¶¶ 7‐8. When the
plaintiff sued for the substantial injuries he suffered when his car fell into the cutout,
the trial court granted summary judgment in favor of UDOT on the basis of the
discretionary function exception to the waiver of governmental immunity. See id. ¶ 12.
¶65 On appeal, the supreme court reversed, explaining that a governmental entity
cannot escape liability by merely asserting that some minimal level of discretion was
used in making a decision. See id. ¶ 21. Rather, “[t]he key . . . is that the government
actually exercises a level of discretion in a manner that implicates policy‐making and
thrusts the decision into the political process.” Id. (citing Keegan, 896 P.2d at 623‐24); see
also Little, 667 P.2d at 51 (“If the State posits immunity on . . . an exercise of discretion, it
must make a showing that a conscious balancing of risks and advantages took place.”).
The court explained that “[a] real and substantial consideration of the relevant concerns,
such as the benefits to public welfare and safety weighed against increases in spending
taxpayers’ money, is necessary to prove that the government engaged in policy‐level
20
During the project, another car drove into the cutouts and knocked over a
number of orange barrels. See Johnson v. Utah Dep’t of Transp., 2006 UT 15, ¶ 10, 133 P.2d
402. But for the fact that the contractor’s employees had temporarily left the site, they
likely would have been struck by the automobile. See id. After that event, the
contractor again questioned the adequacy of the existing safety measures. See id.
However, the Regional Director made no changes prior to the plaintiff’s accident. See
id. ¶¶ 10‐11.
20100400‐CA 36
considerations.” Johnson, 2006 UT 15, ¶ 36. To illustrate the application of that test, the
Johnson court distinguished between the initial decision to undertake the construction
project and the later decision to use plastic barrels to mark hazards during that project.
See id. ¶¶ 34‐35. With respect to the decision “whether or not to perform the
construction on I‐15,” the supreme court concluded that “the decision to spend nearly
five million dollars on the construction project . . . combined with the adverse effects on
public convenience, placed that decision squarely in the public policy arena.” Id. ¶ 34.
In contrast, the placement of orange barrels “was . . . so inconsequential in the overall
construction project” that UDOT supervisors were not even consulted before the barrels
were used. See id. The supreme court noted “[t]he manner in which the construction
occurred . . . is where the line is drawn between operational and policy decisions.” Id.
¶ 35; see also Trujillo v. Utah Dep’t of Transp., 1999 UT App 227, ¶¶ 23‐27, 30‐34, 986 P.2d
752 (collecting cases and holding that because UDOT had not established that its
decisions regarding a construction project were made at the policy level, it was not
entitled to rely on the discretionary function exception to the waiver of immunity under
the UGIA). Because the decision to use the plastic barrels was an operational decision,
the supreme court held that UDOT could not rely on the discretionary function
exception to the waiver of immunity. See Johnson, 2006 UT 15, ¶¶ 37, 39 (concluding
that the “unsubstantiated decision” of the regional director “not to spend money [was]
not the same as a thorough and deliberate cost‐benefit analysis”). Like UDOT in
Johnson, the District’s decision “to spend nearly [$180,000] on the construction
project, . . . combined with the adverse effects on public convenience, placed that
decision squarely in the public policy arena.” See id. ¶ 34.
¶66 The District has provided the only evidence of the criteria used and the process
followed to determine the order in which the sections of Identified Pipe are replaced.
After gathering data on the pipelines in the District’s system, the Engineers meet and
determine which sections need to be replaced, which sections they will recommend to
the Board for immediate replacement, and which sections they will recommend to be
deferred for replacement at a later date. In doing so, they consider cost, budgetary
considerations, permitting issues, soil conditions likely to cause greater degradation of
the pipe, the history of breaks, and the possibility of coordinating with other
construction projects so as to conserve resources and minimize disruption.21 The
21
While the application of these factors convinces us that the District’s decision
(continued...)
20100400‐CA 37
Engineering Department Manager then presents these recommendations to the Board,
including the supporting rationale. The Board decides which replacement projects it
will fund.
¶67 Based on this evidence, the District has established that the replacement of
Identified Pipe “was based on an analytical project prioritization.” Johnson v. Utah Dep’t
of Transp., 2006 UT 15, ¶ 26 n.10, 133 P.2d 402. The Jenkinses identify no contrary
evidence; instead they assert that the failure to consider the risks to third parties
precludes a conclusion that the District exercised discretion at a policy‐making level.
However, the allocation of limited resources among capital improvement projects “‘is
precisely the type of governmental decision that [the legislature] intended to insulate
from judicial second guessing through tort actions for damages.’” See Keegan v. State,
896 P.2d 618, 625 (Utah 1995) (quoting Baum v. United States, 986 F.2d 716, 724 (4th Cir.
1993)). Consequently, we conclude that the decision of when to replace the various
sections of Identified Pipe, including the Water Line Section, involved the basic policy
judgment and expertise of the District.
¶68 Under the fourth Little factor, we ask, “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?” See Little v. Utah Div. of Family Servs.,
667 P.2d 49, 51 (Utah 1983). Utah Code section 17B‐1‐103(2)(d) provides that a local
water district “may acquire or construct works, facilities, and improvements necessary
or convenient to the full exercise of the district’s powers, and operate, control, maintain,
and use those works, facilities, and improvements.” Utah Code Ann. § 17B‐1‐103(2)(d)
21
(...continued)
concerning the order in which Identified Pipe was replaced was a discretionary
function, it does not undermine our conclusion that the Jenkinses do not need an expert
to prove negligence. The District’s assessment of the comparative risks associated with
the segments of Identified Pipe was necessary due to its limit on the annual funds
available for replacement. As previously discussed, the fact that the District operated
more Identified Pipe then it could or was willing to replace in a single year, does not
lower the standard of care owed to third parties. See supra Section 3. Thus, there is no
need for the jury to compare the Identified Pipe segments to one another to determine
whether the District unreasonably delayed in replacing this particular segment of
Identified Pipe.
20100400‐CA 38
(Supp. 2011). Therefore, the District has the express authority to replace sections of the
water line.
¶69 The undisputed facts indicate that the District’s decisions concerning the order in
which Identified Pipe is replaced meets all four of the Little factors. Therefore, we hold
that the District is immune from liability to the Jenkinses under the GIAU.22
V. Open Courts
¶70 The Jenkinses contend that if the District is immune from liability under the
discretionary function exception of the GIAU, the statute violates article 1, section 11, of
the Utah Constitution (the open courts clause), which states,
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.
Utah Const. art. 1, § 11. Under the open courts clause, the “citizens of Utah have a right
to a remedy for an injury,” Judd v. Drezga, 2004 UT 91, ¶ 10, 103 P.3d 135, and “the
legislature [is] not . . . free to arbitrarily eliminate common law rights without
establishing significant social and policy need or providing reasonable alternatives for
22
The District also asserts that it has retained immunity under the GIAU because
the condition of the water line was a latent defect. A latent defect is “a defect which
reasonably careful inspection will not reveal.” Pigs Gun Club, Inc. v. Sanpete Cnty., 2002
UT 17, ¶ 26, 42 P.3d 379 (internal quotation marks omitted). Here, the Jenkinses’ claim
is not that the District failed to identify the Water Line Section as needing to be
replaced. According to the Jenkinses, the District correctly identified the pipe as
defective, but then negligently waited three years before replacing it. Thus, the latent
defect exception from the waiver of immunity is not implicated and we do not address
it further.
20100400‐CA 39
the protection and vindication of those rights,” Laney v. Fairview City, 2002 UT 79, ¶ 48,
57 P.3d 1007 (plurality opinion).
A. Abrogation of a Remedy
¶71 In Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), the Utah Supreme Court
outlined a test to determine whether a statute violates the open courts provision. See id.
at 680‐81. Before implementing the Berry test, however, “we must first determine
whether a cause of action has been abrogated by the legislative enactment.” Laney, 2002
UT 79, ¶ 49. “If no remedy was eliminated, there is no need to proceed with the Berry
test.” Id.
¶72 The Jenkinses contend that the Utah Legislature abrogated their right to sue the
District for negligence by defining essentially all activities of a governmental entity as
governmental functions. According to the Jenkinses, operating a water system would
not have been a governmental function prior to the adoption of that definition and,
therefore, they would have been able to recover their damages. See Bennett v. Bow Valley
Dev. Corp., 797 P.2d 419, 422 (Utah 1990) (holding that the maintenance of a storage tank
in connection with the provision of municipal water is not a governmental function
entitled to immunity). The District disagrees, arguing that decisions from the supreme
court issued after Bennett v. Bow Valley Development Corp., 797 P.2d 419, 422 (Utah 1990),
indicate that it would view the provision of water by a water conservancy district as a
governmental function even in the absence of the statutory, all‐inclusive definition of
governmental function.
¶73 We begin our analysis by identifying the proper point of comparison for
purposes of determining whether the Jenkinses’ remedy has been abrogated. In Day v.
State ex rel Utah Department of Public Safety, 1999 UT 46, 980 P.2d 1171, the supreme court
instructed that “[t]he determination of whether a person who is injured in ‘person,
property, or reputation’ has been denied a remedy by due course of law should be
decided by reference to the general law of rights and remedies at the time that the
Legislature abrogates a remedy.” Id. ¶ 38; accord Laney, 2002 UT 79, ¶ 50 (“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.” (citing Day, 1999 UT 46, ¶¶ 35‐38)). In Tindley v.
Salt Lake City School District, 2005 UT 30, 116 P.3d 295, the supreme court, in a
20100400‐CA 40
unanimous decision, considered whether the 1987 adoption of the all‐inclusive
definition of governmental function had abrogated the plaintiffs’ remedy to sue a school
district for negligence resulting in the deaths and personal injuries of students returning
from a debate tournament. See id. ¶¶ 20‐21. The supreme court’s explanation of the
proper point of comparison for resolving that question is instructive:
[T]o determine whether the Act, or its 1987 amendment,
“abrogates a cause of action existing at the time of its
enactment,” we must determine whether plaintiffs would
have had a right to bring their cause of action against the
District at any time prior to 1987. If not, the Act does not
abrogate an existing remedy, thereby terminating our
analysis. If, however, plaintiffs would have been able to
bring suit against the District prior to 1987, we must then
determine whether the Act’s abrogation of that cause of
action is permissible under Berry.
Tindley, 2005 UT 30, ¶ 21 (emphasis added) (citation omitted) (quoting Laney, 2002 UT
79, ¶ 50).23 As discussed, the Jenkinses would have been able to bring suit prior to 1987,
based on the Utah Supreme Court’s treatment of the provision of municipal water as a
proprietary function not entitled to immunity. See Bennett, 797 P.2d at 422.
¶74 However, the District contends that the common law in Utah continued to
develop after Bennett, evolving to the point that the District’s activities qualify as a
governmental function, without regard to the legislature’s all‐inclusive definition. As a
result, the District argues that neither the 1987 amendments to the UGIA nor the 2004
adoption of the GIAU, abrogated the Jenkinses’ remedy. In particular, the District
23
Although the Tindley court ultimately held that the plaintiffs’ remedies had not
been abrogated, it reached that decision only after concluding that “school districts have
always enjoyed governmental immunity for the operation of such programs as the one
at issue.” See Tindley v. Salt Lake City School Dist., 2005 UT 30, ¶ 26, 116 P.3d 295.
20100400‐CA 41
contends that its activities meet the governmental function test announced in DeBry v.
Noble, 889 P.2d 428 (Utah 1995).24
¶75 In DeBry, the plaintiffs sued for damages allegedly incurred as the result of a
county official’s negligent inspection of a building they had purchased. See id. at 430.
The trial court granted summary judgment in favor of the defendants, concluding that
they were entitled to governmental immunity and that the UGIA did not violate the
open courts clause. See id. at 431. This court affirmed the trial court’s decision and the
plaintiffs appealed. See id. at 432. Reviewing the evolution of governmental immunity
in Utah, the supreme court explained that the test set forth in Standiford v. Salt Lake City
Corp., 605 P.2d 1230 (Utah 1980), “does not present a precise analytical framework . . .
because a degree of flexibility is appropriate” in determining whether a governmental
entity is engaged in a governmental function and because of the “significant
differences” among various governmental activities. See Debry, 889 P.2d at 440.
Therefore, it instructed that the trial court “must, among other things, evaluate whether
the effect of tort liability would promote public safety or defeat essential or core
governmental activities and programs that are critical to the protection of public safety
and welfare.” See id. at 441 (footnote omitted). Applying that test, the DeBry court
concluded that “[a]lthough tort liability produces greater precaution in the conduct of
activities that may cause injury to others” in many situations, “public safety would not
be furthered by tort liability” because “[l]iability for negligent enforcement of building
code provisions could cause a breakdown in the enforcement of the statutory scheme
and an overall loss in safety, rather than greater safety and protection.” Id.
¶76 Despite the District’s urging, we can find nothing in DeBry evidencing an intent
by the supreme court to overrule the Bennett decision issued five years earlier, in which
it expressly held that the provision of water is not a governmental function. See Bennett,
797 P.2d at 424. To the contrary, the DeBry court cites Bennett favorably, albeit for the
proposition that “[t]he establishment and enforcement of building standards designed
to protect the public is not an activity that nongovernmental entities perform, at least in
24
As in Bennett, the supreme court issued its decision in DeBry after the
legislature amended the UGIA in 1987 but decided it under the common law because
the plaintiffs’ claim arose before the amendments. See DeBry v. Noble, 889 P.2d 428, 434
(Utah 1995); Bennett v. Bow Valley Dev. Corp., 797 P.2d 419, 422 (Utah 1990).
20100400‐CA 42
the same sense that governmental entities do.” See DeBry, 889 P.2d at 441‐42 (citing
Bennett, 797 P.2d at 423 (“[T]he inspection and acceptance of subdivision improvements
are governmental functions for which immunity has not been waived.”)).
¶77 The District also relies on the supreme court’s decision in Lyon v. Burton, 2000 UT
19, 5 P.3d 616, for the proposition that Utah common law would include the District’s
activities as a governmental function. See id. ¶¶ 40‐43. There, the supreme court
applied the DeBry analysis to determine whether the UGIA’s grant of immunity from
the plaintiff’s claims arising out of a collision with a fire chief en route to a fire, violated
the open courts clause.25 See id. ¶¶ 3, 25‐43. In doing so, the supreme court focused on
the “compelling reasons why fire fighting activities historically have been, and should
be, deemed an essential governmental activity.” See id. ¶ 41. In particular, the Lyon
court identified the importance of fire fighting to the “safety of persons and property,”
the fact that fire fighting is a “highly hazardous” activity, and the fact that “[f]ire
fighting requires instantaneous decisions by persons in highly hazardous circumstances
that involve the safety of the firefighters themselves and the security of the
community.” See id. The court concluded that “[a]fter‐the‐fact judicial decisions
assessing the propriety of a firefighter’s decision could seriously impede effective fire
fighting by promoting the value of caution over that of prompt action,” thereby
resulting in an “‘overall loss of safety, rather than greater safety and protection.’” See id.
(quoting Debry, 889 P.2d at 441).
¶78 Contrary to the District’s suggestion, we are not convinced that these post‐
Standiford decisions support the conclusion that the provision of water by the District
would also have been treated as a governmental function. Unlike the fire fighting
activities in Lyon or the government licensing and inspections of buildings at issue in
DeBry, the provision of water has not been historically treated as a governmental
25
As previously discussed, the provision of water has historically been
distinguished from fire fighting activities. See supra ¶ 43; see also Rollow v. Ogden City, 66
Utah 475, 243 P. 791, 793‐94 (1926) (holding that fire fighting activities are a
governmental function entitled to immunity).
20100400‐CA 43
function.26 See supra ¶¶ 43‐46. In addition, the supreme court has noted that the
government is the only entity that can enact and enforce building codes and issue
related permits and licenses effectively, see DeBry, 889 P.2d at 442, but has recognized
that water is often provided from a well or a private water company, see Bennett v. Bow
Valley Dev. Corp., 797 P.2d 419, 422 (Utah 1990). Although we acknowledge that
“[w]hether a particular function may be performed by nongovernmental entities is only
one factor to be considered in determining whether that function is a governmental
function and therefore immune,” see Lyon, 2000 UT 19, ¶ 40, the other factors identified
by the supreme court do not convince us that it has implicitly overruled Bennett. For
example, providing culinary water through distribution pipelines does not raise the
same emergency safety concerns as fighting fire. Consequently, it does not require
instantaneous decisions while the decision makers’ own safety is at risk. Furthermore,
while the supreme court has recognized a “qualitative difference between government’s
actions and those of private groups” in the area of government regulation and
enforcement, see Debry, 889 P.2d at 442, it has not done so in connection with a
municipality’s optional services. To the contrary, in the Laney v. Fairview City, 2002 UT
79, 57 P.3d 1007, decision issued two years after Lyon, the supreme court concluded that
26
The supreme court’s willingness to expand the Standiford definition of
governmental function has been primarily in the regulatory context to account for the
qualitative differences between regulations imposed by entities operating for private
gain and those undertaken for the public good. See Standiford v. Salt Lake City Corp., 605
P.2d 1230, 1236 (Utah 1980); Madsen v. Borthick, 658 P.2d 627, 631 (Utah 1983)
(addressing banking regulation and holding that Standiford “does not preclude
governmental immunity for supervisory functions in some respects similar to those that
could be performed by a private association authorized by agreement, such as self
regulation by an industry”); see also Moss v. Pete Suazo Utah Athletic Comm’n, 2007 UT 99,
¶¶ 23, 26, 175 P.3d 1042 (concluding that governmental regulation of professional
boxing “is qualitatively different from the type of regulation that could be provided by
a private organization” and that “[o]nly the government can regulate the sport for the
common good, rather than for the benefit of a select, financially interested sector of the
boxing industry”); DeBry, 889 P.2d at 441 (rejecting an argument that private entities
could perform building inspections and stating that the argument “ignores the
qualitative differences between public and private regulation of building
construction”).
20100400‐CA 44
the provision of electricity would not have been a governmental function after
Standiford, and equated that service with a municipality’s choice to supply “water, light,
and gas.” See Laney, 2002 UT 79, ¶ 53 (internal quotation marks omitted).
¶79 Moreover, we are not convinced that granting the District immunity for its
negligence in failing to replace Identified Pipe within a reasonable time will result in an
overall loss of safety or welfare to the community. See Lyon, 2000 UT 19, ¶ 41.
Rather, allowing a negligence claim to proceed under the circumstances of this case will
“promote public safety” and welfare, see DeBry v. Noble, 889 P.2d 428, 440‐41 (Utah
1995), by encouraging water conservancy districts to respond reasonably to identified
risks of failure in their equipment. In turn, the replacement of Identified Pipe within a
reasonable time will advance public safety and welfare by preventing damage to
property and avoiding accidents caused by released water that could lead to personal
injury or death. While the District asks us to presume that, unlike a private entity,
water conservancy districts “operate to effectively conserve a precious public resource
of the state,” tort liability under these circumstances is not inconsistent with that goal.27
By encouraging water districts to replace Identified Pipe within a reasonable time, the
risk of tort liability will prevent some breaches and thereby avoid wasting water, the
resource the District was organized to conserve.
¶80 Thus, even applying the governmental function analysis as it evolved after
Bennett, we are convinced that the Jenkinses had a remedy against the District
immediately before the Utah Legislature defined all activities of a governmental entity
as a governmental function. Accordingly, we conclude that the Utah Legislature
abrogated that remedy, first by its 1987 amendments to the UGIA and then by the
adoption of the GIAU, which also included an all‐inclusive definition of governmental
function.
¶81 Nevertheless, the District asserts that these decisions are not controlling because
“the current immunity statute is a new act based upon distinct legislative intent.”
However, it points us to no authority for the proposition that a legislative intent to
27
Where both the private water company and the District are selling water, the
presumption that the private company would be more inclined to waste its product is
suspect.
20100400‐CA 45
abrogate an existing remedy by repealing an existing statute and enacting a new one is
more constitutionally acceptable than the legislature’s intent to achieve the same result
by amendment. In Lyon, the supreme court explained that the amendments to the
UGIA that “labeled all governmental activities as essential, core activities entitled to
immunity unless the Legislature waives immunity[,] . . . [are] subject to the Constitution
and whatever limitations it imposes on such immunity.” 2000 UT 55, ¶ 42 n.11 (citing
generally DeBry, 889 P.2d 428, and Condemarin v. University Hosp., 775 P.2d 348 (Utah
1989)). It further instructed that “the scope of the constitutional limitations is a judicial
question under the doctrine of separation of powers.” See id. (citing DeBry, 889 P.2d at
440). We are not convinced that the repeal of the UGIA and the immediate adoption of
the GIAU protects the legislation from constitutional scrutiny. Indeed, Berry suggests
the opposite, stating that
once a cause of action under a particular rule of law accrues
to a person by virtue of an injury to his rights, that person’s
interest in the cause of action and the law which is the basis for
a legal action becomes vested, and a legislative repeal of the law
cannot constitutionally divest the injured person of the right
to litigate the cause of action to a judgment.
See Berry v. Beech Aircraft Corp., 717 P.2d 670, 676 (Utah 1985) (emphasis added); see also
Puttuck v. Gendron, 2008 UT App 362, ¶ 19, 199 P.3d 971 (“[T]he open courts provision
was intended to place a limitation upon the [l]egislature to prevent that branch of the
state government from closing the doors of the courts against any person who has a
legal right which is enforceable in accordance with some known remedy.” (alteration in
original) (internal quotation marks omitted)).
¶82 Consequently, we conclude that the Jenkinses had a remedy for the damages
caused by the alleged negligence of the District until the 1987 amendments to the UGIA.
That remedy was abrogated by the adoption of a statutory definition of governmental
function that provided immunity for many activities of governmental entities not
protected at common law. The 2004 repeal of the UGIA and adoption of the GIAU did
not rectify the abrogation of the Jenkinses’ remedy and is subject to the same open
courts scrutiny as the 1987 amendments to the UGIA.
20100400‐CA 46
B. Reasonable Alternative Remedy
¶83 When a remedy has been abrogated, we must first determine “whether the
legislature has provided a ‘reasonable alternative remedy by due course of law for
vindication of [a plaintiff’s] constitutional interests.’” Laney, 2002 UT 79, ¶ 54
(additional internal quotation marks omitted) (quoting Berry, 717 P.2d at 680). In order
to suffice, the substitute benefit “must be substantially equal in value or other benefit to
the remedy abrogated in providing essentially comparable substantive protection to
one’s person, property, or reputation, although the form of the substitute remedy may
be different.” Berry, 717 P.2d at 680. Here, the Jenkinses have no alternative remedy if
the District is immune.
¶84 Nevertheless, the District argues that because the adoption of the UGIA in 1965
broadened governmental liability in some instances (allowing the state, counties, and
school districts to be sued) in comparison to the common law, see DeBry v. Noble, 889
P.2d 428, 432 (Utah 1995), we should interpret the 2004 GIAU as providing “the general
public collectively with reasonable alternative remedies for any remedies the 2004
[GIAU] may have abrogated.” In addition, during the debates related to the repeal of
the UGIA and the enactment of the GIAU in 2004, members of the legislature opined
that although the GIAU eliminated remedies for some tort victims, it was a reasonable
trade‐off because the bill also “eliminate[d] the procedur[al] traps for the unwary.” See
Recording of Utah Senate Floor Debates, 55th Leg., Gen. Sess. (Feb. 24, 2004).
Specifically, these legislators noted that the GIAU included more clear and concise
notice of claim provisions, codified a statute of limitations discovery rule, and included
a safe harbor provision for notices of claims. See id. Accordingly, they concluded that
while the bill would leave some tort victims without a remedy, it also “makes it much
more likely that numerous claimants who previously lost their claims due to technical
failures to meet notice requirements will be able to pursue their claims.” See Recording
of House Floor Debates, 55th Leg., Gen. Sess. (Mar. 3, 2004).28 The District claims that
28
An attorney statement submitted to the Senate committee states,
While some tort victims may lose a claim under this bill, the
trade off is reasonable because even more victims will be
able to pursue claims under the revamped Notice of Claim
(continued...)
20100400‐CA 47
this trade‐off is justified by language in Masich v. United States Smelting, Refining &
Mining Co., 113 Utah 101, 191 P.2d 612 (1948), indicating that under the open courts
clause “certain individual rights and remedies can be made to yield to the public good.”
See id. at 624.
¶85 However, this part of the Berry test has not been interpreted so broadly by our
supreme court. Instead, under the first part of the Berry test, the legislature “must . . .
provide a quid pro quo in the form of . . . a substitute remedy for the individual,” and if
this is not provided, the legislature must meet the second part of the Berry test. See Sun
Valley Water Beds of Utah, Inc. v. Herm Hughes & Son, Inc., 782 P.2d 188, 192 (Utah 1989)
(emphasis added). Where “the [l]egislature has provided non‐common law alternative
remedies in lieu of common law remedies that it abrogated, such as in the No‐Fault
Insurance Act, the Worker’s Compensation Act, or the Occupation Disease Act,” the
supreme court has upheld the statute without proceeding to the next step of the Berry
test. Day v. State ex rel Dep’t of Pub. Safety, 1999 UT 46, ¶ 44, 980 P.2d 1171; see also
Masich, 191 P.2d at 624‐25 (upholding the Occupation Disease Act). But it has
consistently held that there is not an adequate alternative remedy where “all actions of
the type asserted” by a plaintiff are barred, see Day, 1999 UT 46, ¶ 43, where plaintiffs
are limited to alternative claims against different defendants, see Sun Valley Water Beds,
782 P.2d at 192, or where plaintiffs’ proven claims are subject to damages caps, see Judd
v. Drezga, 2004 UT 91, ¶ 12, 103 P.3d 135.
¶86 Despite that authority, the District contends that because, by the adoption of the
UGIA in 1965, the legislature “simultaneously expanded the immunity of cities and
special districts, and restricted the immunity of the State of Utah and its
instrumentalities, for the first time, allowing suit against the State,” it provided an
adequate alternative remedy. (Emphasis omitted.) However, the Utah Supreme Court
rejected a similar argument in Condemarin v. University Hospital, 775 P.2d 348 (Utah
1989). There, a plaintiff challenged the 1978 amendments to the UGIA under the open
courts clause, because the amendments added government‐owned hospitals as a
28
(...continued)
provisions and other provisions of [the GIAU]. The entire
group of tort victims is, therefore, better off, which serves
the greater good.
20100400‐CA 48
governmental entity covered by the UGIA, provided immunity for the hospitals’
proprietary activities, and granted complete immunity to hospital employees. See id. at
351. The University Hospital argued that the governmental immunity statute did not
violate the open courts clause because its effect was to expand liability beyond that
available at common law in some instances. See id. The Condemarin court disagreed,
stating, “Although it is generally true that the [UGIA] expanded government liability,
that is not the case with respect to proprietary or nongovernmental functions.” Id.
Thus, the court concluded that the amendments had abrogated the plaintiff’s existing
remedy without providing a reasonable alternative. See id. at 352. Consequently, we
are not persuaded that the expansion of government liability resulting from the 1965
adoption of the UGIA negates the fact that the Jenkinses’ remedy was abrogated by the
adoption of an all‐inclusive definition of governmental function. Likewise, the fact that
the legislature has made changes that may reduce the number of notices of claim
deemed ineffective due to technical deficiencies does not change the impact of the
amendments on the Jenkinses’ individual rights.
¶87 Under the GIAU, the Jenkinses are left entirely without a remedy that would
have been available to them before the adoption of the 1987 amendment to the UGIA
defining “governmental function.”29 Further, the 2004 enactment of the GIAU retained
a similarly all‐inclusive definition30 and did nothing to provide a quid pro quo for
29
The 1987 amendments of the UGIA define “[g]overnmental function” as
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.
Utah Code Ann. § 63‐30‐2(4)(a) (1989).
30
The 2004 version of the GIAU defines “[g]overnmental function” as “each
activity, undertaking, or operation of a governmental entity”; “each activity,
(continued...)
20100400‐CA 49
persons situated like the Jenkinses. See Sun Valley Water Beds, 782 P.2d at 192. Thus, we
conclude that the legislature has not provided the Jenkinses a reasonable alternative
remedy.
C. The Laney and Judd Decisions
¶88 Pursuant to the Berry test,
if there is no substitute or alternative remedy 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.
Berry v. Beech Aircraft Corp., 717 P.2d 670, 680 (Utah 1985). To determine whether the
elimination of the Jenkinses’ remedy meets this standard, we must examine the
legislative history of the statute to ascertain the rationale for the subject legislation and
then consider whether the means for eradicating the social or economic evils selected is
arbitrary or unreasonable. See Laney v. Fairview City, 2002 UT 79, ¶¶ 56‐58, 57 P.3d 1007
(plurality opinion) (collecting Utah cases applying this standard). Before we begin that
analysis, we pause to examine the appropriate level of deference to the Utah
Legislature.
¶89 Of particular interest in undertaking this review is the Utah Supreme Court’s
decision in Laney v. Fairview City, 2002 UT 79, 57 P.3d 1007 (plurality opinion). There, a
majority of the court held that the 1987 definition of governmental function, see supra
note 29, as applied to a municipal power system, violated the open courts clause of the
30
(...continued)
undertaking, or operation performed by a department, agency, employee, agent, or
officer of a governmental entity”; and “includes a governmental entity’s failure to act.”
Utah Code Ann. § 63‐30d‐102(4)(a)‐(c) (2004).
20100400‐CA 50
Utah Constitution.31 See generally id. ¶¶ 1, 83. In reaching the conclusion that the statute
was unconstitutional, the lead opinion in Laney cited favorably a two‐justice
concurrence in Lee v. Gaufin, 867 P.2d 572, 590‐92 (Utah 1993) (Zimmerman, J., and Hall,
C.J., concurring in the result),32 in which the concurring justices determined that a
presumption of unconstitutionality attached to legislation challenged under the open
courts clause. See Laney, 2002 UT 79, ¶ 63; see also Lee, 867 P.2d at 591 (Zimmerman, J.,
and Hall, C.J., concurring in the result) (“[W]hen we have found a statute to limit a right
protected by the open courts [clause], we have, de facto, shifted from a presumption
that the limiting statute is constitutional to a presumption that the statute is
unconstitutional . . . .” (emphasis omitted)); Wood v. University of Utah Med. Ctr., 2002
UT 134, ¶¶ 46‐47, 67 P.3d 436 (Durham, C.J., dissenting) (explaining that “[c]ontrary to
the position taken by the lead opinion, this court has consistently rejected the
presumption of constitutionality of statutes challenged under the [open courts clause]”
in favor of heightened scrutiny). Thus, the Laney court began its analysis with a
presumption that the all‐inclusive definition of “governmental function” ran afoul of
the open courts clause, and then considered whether that presumption had been
rebutted by the municipality. See Laney, 2002 UT 79, ¶ 53.
¶90 In analyzing whether the UGIA violated the open courts clause, the Laney court
first noted that the operation of a power system is a dangerous activity and involves
31
This was a plurality opinion where Chief Justice Durham wrote the main
opinion, joined by Justice Howe. Justice Russon concurred in the result, stating that
although the main opinion seemed to accept that the legislature could change the
definition of governmental function, governmental functions were inherently different
than proprietary functions and the legislature could not similarly “declare automobiles
to be sailboats or houses.” See Laney v. Fairview City, 2002 UT 79, ¶ 74, 57 P.3d 1007
(Russon, J., concurring). However, Justice Russon did accept that the legislature could
grant governmental immunity for a governmental entity engaged in a proprietary
activity by meeting the Berry test. See id. ¶ 79.
32
Although the majority reached its conclusion that the statutes of limitations and
repose in the Utah Health Care Malpractice Act were unconstitutional under the
uniform operation of laws provision found in article I, section 24, of the Utah
Constitution, Justices Zimmerman and Hall determined that the statute of repose’s
effect on the claims of minors violated article I, section 11, the open courts clause. See
Lee v. Gaufin, 867 P.2d 572, 590 (Utah 1993) (Zimmerman, J., and Hall, C.J., concurring in
the result).
20100400‐CA 51
“the highest degree of care” to prevent harm to others. See id. ¶ 64 (internal quotation
marks omitted). With that backdrop in mind, the court questioned the stated legislative
purpose of the amendment, which was “to make liability insurance more affordable for
government entities by reducing liability risks.” See id. ¶ 66. The court emphasized that
although this may be a worthy objective, no specifics were given about whether a
municipal power system in Utah had ever sustained a large damage award or whether
their operations had been affected by potential liability. See id. The lead opinion further
emphasized that the power system was not subsidized by taxpayers and actually
generated an annual profit, concluding that “[i]f 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.” See id. ¶ 67. Ultimately, a majority of the
court determined that the legislation swept too broadly when it defined “all activities of
municipalities as governmental action, regardless of their nature.”33 See id. ¶ 69. The
court suggested that the legislature could “create very limited immunities to address
specific problems, or to place ‘caps’ on the amount of damages,” as was upheld in
McCorvey v. Utah Department of Transportation, 868 P.2d 41 (Utah 1993). See Laney, 2002
UT 79, ¶ 70; see also McCorvey, 868 P.2d at 47‐48 (holding that the damage cap on claims
against governmental entities did not violate the open courts clause because in the
absence of the UGIA, the state would have been completely immune).
¶91 Two years later, a majority of the supreme court retreated from the analytical
framework applied by the Laney majority, instead adopting a more deferential
approach. In Judd v. Drezga, 2004 UT 91, 103 P.3d 135, the court examined a statutory
damages cap on quality of life damages in medical malpractice actions adopted with the
stated purpose of reducing health care costs. See id. ¶¶ 3, 6. The majority rejected
33
Two justices dissented from the open courts analysis in Laney, arguing that the
provision should not be interpreted to impose “a strong substantive limitation on the
legislature’s ability to limit or eliminate a cause of action for, or the remedies available
for personal injury.” Id. ¶ 88 (Wilkins, J., and Durrant, J., dissenting) (internal quotation
marks omitted). Instead, the dissenting justices called for the abandonment of the test
announced in Berry, due to its intrusion on the legislative function and violation of the
separation of powers clause of the Utah Constitution. See id. ¶¶ 88‐106. Finally,
because the 1987 amendments to the UGIA did not “unreasonably burden[] important
constitutional rights,” the dissenting justices would have upheld it as constitutional. See
id. ¶ 138.
20100400‐CA 52
Laney’s presumption of unconstitutionality and instead “recognize[d] an obligation of
deference to legislative judgments in a Berry review, and [noted that] to the extent [it]
differ[ed] from [the court’s] prior application of Berry, those prior applications [were]
disavowed.” See id. ¶ 11. In addition, the Judd court departed from the Laney court’s
reassessment of the legislators’ collective judgment that the legislation was necessary to
address a legitimate public concern. See id. The higher level of deference afforded the
legislature is apparent in the Judd majority’s refusal to second guess the empirical truth
of the stated policy considerations by “undertak[ing] the same investigation as the
legislature, [and] reviewing its data‐gathering methods and conclusions to determine
whether the stated legislative findings are perfectly correct.” See id. ¶ 13. Instead, the
Judd majority indicated that “[w]hen an issue is fairly debatable, we cannot say that the
legislature overstepped its constitutional bounds when it determined that there was a
crisis needing a remedy.” See id. ¶ 15.
¶92 Despite the Judd court’s greater deference to legislative judgments concerning the
existence of a crisis needing to be addressed, the majority reaffirmed the part of the
Berry test requiring the reviewing court to evaluate whether the means selected for
abating that crisis are nonarbitrary and reasonable. See id. ¶ 16; see also Berry v. Beech
Aircraft Corp., 717 P.2d 670, 680 (Utah 1985). To do so, the court focused on whether the
legislation was “narrowly tailored” to respond to the stated social or economic evils to
be abated. See Judd, 2004 UT 91, ¶ 17; Laney, 2002 UT 79, ¶ 57 (quoting Hirpa v. IHC
Hosps., Inc., 948 P.2d 785, 793‐94 (Utah 1997) (upholding the Good Samaritan Act and
noting that “[t]he statute does not cut an unnecessarily wide swath through causes of
action against medical providers”)). Because the damage cap at issue in Judd was
narrowly tailored to apply only to quality of life damages, which are “less susceptible to
quantification than purely economic damages,” and it could facilitate the “predict[ion]
and control[ of] future costs [and thereby] result in lower insurance rates,” see Judd, 2004
UT 91, ¶ 17, the supreme court concluded that the damage cap did not violate the open
courts clause.34 See id. ¶¶ 39‐40.
34
Two justices dissented in Judd v. Drezga, 2004 UT 91, 103 P.3d 135. In particular,
they disagreed with the majority’s “deference to legislative judgments in a Berry
review” and its rejection of “heightened scrutiny in favor of a rational basis standard”
of review. See id. ¶ 42 (Durham, C.J., and Nehring, J., dissenting) (internal quotation
marks omitted).
20100400‐CA 53
¶93 Thus, while the supreme court’s decision in Judd disavows the Laney court’s
reassessment of the social or economic evils identified by the legislature, see id. ¶ 15, it
embraces the requirement that the legislative remedy adopted be narrowly tailored. See
id. ¶ 17; see also Laney, 2002 UT 79, ¶¶ 68‐69. Furthermore, Judd left intact the Laney
court’s application of the Berry test to the all‐inclusive definition of “governmental
function” adopted in the 1987 amendments to the UGIA, which the court determined
“swept too broadly,” see Laney, 2002 UT 79, ¶ 69, despite the fact that governmental
entities are subject to liability in many instances only by the grace of the Utah
Legislature. See generally Judd, 2004 UT 91, ¶¶ 39‐40; see also Condemarin v. University
Hosp., 775 P.2d 348, 351 (Utah 1989) (holding amendments to the UGIA unconstitutional
under the open courts clause despite the expansion of government liability from the
common law).
¶94 With this precedent in mind, we turn now to the facts at issue here and continue
our application of the Berry test. We begin with the identification of the social or
economic evils to be eliminated, deferring to the legislature’s judgment and its
conclusions concerning the existence of a crisis needing a remedy. See Judd, 2004 UT 91,
¶ 11. We then consider whether the means selected to address that crisis are a
reasonable and nonarbitrary method of addressing the elimination of the evils
identified. Although we conclude that the means selected are reasonably related to
achieving an abatement of the social and economic evils identified by our legislature,
we determine that those means, the complete elimination of any remedy, are not
narrowly tailored. Therefore, we hold that the abrogation of the Jenkinses’ remedy
against the District violates the provisions of the open courts clause of the Utah
Constitution.
D. The Social and Economic Evils Identified by the Utah Legislature
¶95 In Laney, the supreme court identified the goals of the 1987 amendments to the
UGIA as the dramatic increase in lawsuits naming governmental entities as defendants,
large damage awards against governmental entities, and the increasing difficulty for
governmental entities to obtain affordable liability insurance. See Laney v. Fairview City,
2002 UT 79, ¶ 65, 57 P.3d 1007. After the Laney court held the 1987 amendments
unconstitutional as applied to a municipal power company, the legislature repealed the
UGIA and enacted the 2004 GIAU. This was done in direct response to the Laney
decision. See Recording of Utah Senate Floor Debates, 55th Leg., Gen. Sess. (Feb. 24,
20100400‐CA 54
2004). In enacting the GIAU, the legislature pointed to several social and economic evils
it wished to remedy.
¶96 First, the legislature indicated that the “court‐created distinction” between which
governmental activities are constitutionally entitled to immunity is “unpredictable and
often illogical.” See Recording of House Floor Debates, 55th Leg., Gen. Sess. (Mar. 3,
2004). An Assistant Attorney General, who testified before the Senate Government
Operations and Political Subdivisions Committee, stated that tests to distinguish which
governmental functions are entitled to immunity “can become traps for the unwary.
Both citizens and government can find themselves guessing wrong as to how the courts
will draw the line,” and that “[t]he confusion not only has damaged the citizens but it
has also injured government.” See id.
¶97 In particular, the legislature was convinced that the historical treatment of the
provision of water as proprietary was outdated. During the 2004 debate, the bill’s
Senate sponsor stated, “If you went back prior [to Laney] or probably asked any member
on this floor, ‘Is a water system a proper role for local government?’—the answer would
have been, ‘Well of course, what are you even asking?’” See Recording of Utah Senate
Floor Debates, 55th Leg., Gen. Sess. (Feb. 24, 2004).35 Another unidentified senator
stated, “I think everyone agrees that nowadays water service, electricity, [and] a lot of
utility services are things that government should provide.” Id. And Senator Greg Bell
stated, “every water system could be duplicated by a private group or at least a quasi‐
private group . . . but we have left municipal government and assigned municipal
government those responsibilities.” Id. Furthermore, a document submitted to the
Senate committee entitled “Comments on Utah Governmental Claims Act” argues that
public utilities, and specifically municipally‐run power systems, have never been
proprietary functions.36 It states that
35
The senator was apparently under the impression that prior to Laney, water
systems were considered a governmental function and that the decision in that case
“threw that all open.”
36
As previously discussed, our review convinces us that, like most other states,
Utah has not historically considered the provision of water for purposes other than fire
protection a governmental function. See supra ¶¶ 43‐46.
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power generation, transmission, and distribution are not and
never have been private functions. They are functions of
cities and towns, and if cities and towns choose not to
perform the functions, they may grant a franchise to a
private entity to do so. The Constitution therefore
contemplates and makes the provision of public utility
service a function and a purpose of government.
¶98 Because the provision of domestic water, unlike water used for fire protection,
was traditionally not considered a governmental function for which the entity was
immune, we disagree that the Laney analysis created a novel category of liability. See
generally Egelhoff v. Ogden City, 71 Utah 511, 267 P. 1011, 1012‐13 (Utah 1928) (holding
that the provision of water is a proprietary function, subjecting the city to liability for
negligence). However, we acknowledge that much has changed during the eighty‐three
years since the Utah Supreme Court decided Egelhoff v. Ogden City, 71 Utah 511, 267 P.
1011 (Utah 1928). While at one time it may have been unusual for a governmental
entity to provide water to its inhabitants, by 1990, our supreme court recognized that
“[c]ities can and do operate water systems on a commercial basis. In many areas of our
state, residents maintain wells and provide their own water. Also, there are privately
owned companies supplying water to residents.” Bennett v. Bow Valley Dev. Corp., 797
P.2d 419, 422 (Utah 1990) (citation omitted) (holding “that the maintenance of a water
storage tank” was not a governmental function). Thus, we accept the legislature’s
judgment that expectations concerning the provision of water may have changed.
“[O]ne of the functions of the legislative power is to remedy defects in the common law
as they develop, and to adapt to the change of time and circumstance.” Berry v. Beech
Aircraft Corp., 717 P.2d 670, 678 (Utah 1985) (internal quotation marks omitted).
However, in summarizing Berry’s holding, the Utah Supreme Court explained that “the
rights of individuals protected by the open courts provision must be balanced against
the legislature’s need to enact laws to meet changing societal needs.” Day v. State ex rel
Utah Dep’t of Pub. Safety, 1999 UT 46, ¶ 37, 980 P.2d 1171.
¶99 As a second justification for the 2004 GIAU, the legislature indicated its desire to
“guard[] government’s ability to act for the public good without fear of unexpected and
potentially crippling taxpayer burdens.” Recording of Utah House Floor Debates, 55th
Leg., Gen. Sess. (Mar. 3, 2004). An Assistant Attorney General testified, “Government,
when it is unsure of whether it has immunity[,] will all too often err on the side of not
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providing the services that its taxpayers want, but might create a liability that the
government cannot afford.”
¶100 Third, the legislature pointed to data that liability insurance premiums have
risen for governmental entities dramatically since both the September 11, 2001 attacks
and the Utah Supreme Court’s decision in Laney, while the amount of coverage has
decreased. See Recording of Utah House Floor Debates, 55th Leg., Gen. Sess. (Mar. 3,
2004) (stating that “since Laney v. Fairview City, the insurance market has responded to
court‐injected uncertainty in the governmental immunity realm by increasing
premiums 230% for 70% of the prior coverage”).
¶101 In considering the constitutionality of the GIAU as applied to the Jenkinses’
claim, we depart from Laney’s focus on the correctness of the legislature’s identified
social and economic evils, instead accepting the supreme court’s more recent
recognition in Judd that “our power does not extend so far as to permit imposition of
our views on such policy disputes.” See Judd v. Drezga, 2004 UT 91, ¶ 14, 103 P.3d 135;
see also id. ¶ 15 (explaining that the courts’ task is not to determine whether the
legislature “made wise policy”). Because the social and economic concerns identified
by the legislature are “fairly debatable,” we conclude that it has not “overstepped its
constitutional bounds” by identifying them as a basis for its abrogation of the Jenkinses’
remedy. See id. ¶ 15. Thus, we accept these social and economic evils as the starting
point for our assessment of whether the complete abrogation of the Jenkinses’ remedy is
reasonably and rationally related to the elimination of these concerns. Nevertheless, the
means adopted to address those identified evils must be narrowly tailored to comply
with the open courts clause.
E. The Reasonableness and Rationality of the Means Selected
¶102 The means adopted by the Utah Legislature to address these identified evils was
to designate all action and inaction of any governmental entity as a governmental
function for immunity purposes. In doing so, the legislature made it “crystal clear[] that
all functions are covered under this governmental immunity” and that the new
definition “establishes the legislature’s intent to apply governmental immunity broadly
and concisely to all government functions and especially to all discretionary budget
decisions that effect the taxing policies and priorities of state and local government.”
See Recording of Utah Senate Floor Debates, 55th Leg., Gen. Sess. (Feb. 24, 2004). To
determine if the inclusion of all governmental activity within the scope of the GIAU is
20100400‐CA 57
rationally and reasonably related to the identified concerns, Judd instructs that we must
first consider whether “[t]he legislature’s determination that it needed to respond to the
perceived . . . crisis was logically followed by action designed” to remedy that crisis. See
Judd, 2004 UT 91, ¶ 16. The remedy need not abate the identified evil entirely, but it
must be logically designed to remedy the concern in some measurable amount. See id.
Furthermore, the means must be narrowly tailored. See id. ¶ 17 (upholding a cap on
quality of life damages because “[r]ather than cap all damages, like the cap struck down
in Condemarin v. University Hospital, 775 P.2d 348 (Utah 1989), the limitation on
recoverable damages” was “narrowly tailored, by limiting quality of life damages
alone”).
¶103 Thus, it is not our role to assess the wisdom of placing the full burden of the
District’s decisions to delay the replacement of Identified Pipe on the unfortunate
individuals living down‐gradient from the water line, rather than on all customers of
the District equally. Cf. Judd, 2004 UT 91, ¶ 17 (“Despite this court’s concerns about the
wisdom of depriving a few badly injured plaintiffs of full recovery, the cap is also
constitutionally reasonable.”). Moreover, the all‐inclusive definition of governmental
function “is not unconstitutionally arbitrary merely because it does so.” See id. ¶ 16.
Instead, our review is limited to whether the definition of governmental function, as
applied to the District’s activities here, is rationally related, nonarbitrary, and “narrowly
tailored” to the stated social evils it was designed to remedy. See id. ¶¶ 16‐17. We
explain our reasoning now as to each evil identified by the Utah Legislature.
1. The Uncertainty About Which Activities Are Immune
¶104 The first concern identified by the legislature is the confusion caused by the
unpredictable judicial decisions defining the limits of a governmental function.
Although the inclusion of all governmental activity as falling within the GIAU
effectively eliminates any confusion on that point, it does not eliminate other factual
and legal issues affecting whether governmental activity is immune. As our discussion
of discretionary function illustrates, there are other aspects of the GIAU where the law
as applied to specific facts will determine whether a particular exception or exemption
is triggered. See supra ¶¶ 50‐69. As a result, the all‐inclusive definition of governmental
function will not completely prevent uncertainty about whether the entity can be held
liable. By including all governmental activity, however, the legislature logically
eliminated confusion about whether a particular activity is a governmental function.
Therefore, the definition “controls [uncertainty] in one area where [uncertainty] might
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be controllable.” See id. ¶ 16. In addition, the broad definition includes the provision of
water, a function the Utah Legislature mentioned in its debates as being an expected
service of municipalities.
¶105 However, the remedy adopted by the legislature must also be narrowly tailored
to comply with the open courts clause. See id. ¶ 17. The Utah courts have upheld
legislation in the face of an open courts clause challenge when the legislation is carefully
constructed so as to leave remedies intact for situations in which the tortfeasor is
especially culpable or the plaintiff warrants extra protection. For example, in Craftsman
Builder’s Supply, Inc. v. Butler Manufacturing Co., 1999 UT 18, 974 P.2d 1194, the court
accepted the legislature’s stated purpose of reducing liability insurance and record
storage costs in the construction industry in enacting a builder’s statute of repose,
which “provide[d] that actions for injury to persons or property arising out of an
improvement to real property must be brought within a certain number of years of the
triggering event.” See id. ¶¶ 13, 20. The court then determined that the statute was
reasonable and nonarbitrary because the “possibility of injury and damage” after the
repose period was “highly remote and unexpected.” See id. ¶¶ 21‐22 (recognizing, with
approval, that although data suggested injury was remote after six to ten years, the
legislature chose a period of twelve years for the majority of claims). The supreme
court further noted that the legislature carved out certain exceptions to the repose
period, leaving remedies intact where the provider “fraudulently conceale[d] the act or
omission giving rise to the cause of action,” where the “act or omission [was] willful or
intentional,” where the parties had an express warranty for a longer period of time, or
where the plaintiff was a minor or was mentally incompetent. See id. ¶ 22.
¶106 In contrast, the definition of “governmental function” in the GIAU broadly
abrogates a large class of previously‐existing actions. See id. ¶ 19 (recognizing that the
prior version of the builder’s statute of repose was “‘too likely to cut off injuries that
should be compensated’” (quoting Horton v. Goldminer’s Daughter, 785 P.2d 1087, 1095
(Utah 1989)). The legislation at issue in Judd was held to be narrowly tailored because it
applied a cap only to a certain type of damages. See Judd v. Drezga, 2004 UT 91, ¶ 17,
103 P.3d 135. By analogy, to achieve the same effect as the definition of governmental
function at issue here, the legislation in Judd would have had to bar all damages of any
nature and in any amount. It seems unlikely that the supreme court would have upheld
the legislation challenged in Judd under those circumstances. See id. ¶ 17; see also
Condemarin, 775 P.2d at 349‐52 (holding that the 1978 amendments to the UGIA that
added government‐owned health care facilities to the list of governmental entities
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protected by the statute and made their employees completely immune were
unconstitutional under the open courts clause). Thus, the adoption of the all‐inclusive
definition of governmental function is not narrowly tailored to address the concern that
the court created definition of a governmental function was difficult to predict.
2. The Ability of Governmental Entities to Act for the Public Good Without
Incurring Crippling Liability
¶107 The next social evil identified by the Utah Legislature as a motivation for its
adoption of the all‐inclusive definition is the chilling effect that the unexpected and
potentially crippling liability on the taxpayers will have on a governmental entity’s
willingness to act for the public good. Again, because the GIAU waives immunity
under other circumstances, the all‐inclusive definition of governmental function is not
completely effective in eliminating the fear that actions undertaken for the public good
might result in significant liability. Nevertheless, the application of that definition in
the context of a water conservancy district does involve the protection of an entity
acting for the public good. As previously noted, water conservancy districts are
charged with conserving and using water for the benefit of the State. See Utah Code
Ann. § 17B‐2a‐1002 (2009). Acknowledging the need for the conservation and beneficial
use of this limited resource, the Utah Legislature has adopted a “statutory framework
[that] evinces a state policy of displacing competition with regulation in the area of
municipal control over water and water rights.” See Salt Lake City Corp. v. Big Ditch
Irrigation Co., 2011 UT 33, ¶ 64, 258 P.3d 539 (holding that the trial court properly
applied the municipal status defense to dismiss antitrust claims against Salt Lake City).
Under these circumstances, the inclusion of the District’s activities within the statutory
framework of the GIAU rationally promotes the allocation of the State’s water resources
for the common good.
¶108 Notwithstanding that rational connection, the all‐inclusive definition of
governmental function is not narrowly tailored to address the specific evil. While the
legislature identified the risk of “crippling liability” as the concern to be addressed, the
amendment results in the abrogation of even modest damage claims against the
District. For example, the District’s annual operating budget for 2006‐2007 was almost
$79,000,000, while the Jenkinses’ claim is approximately $116,000. Rather than limiting
the amount of recoverable damages, or the categories of damages that can be recovered,
see Judd, 2004 UT 91, ¶ 17, the legislative means adopted eliminates all recovery for any
damage caused by the District’s negligent delay in replacing Identified Pipe.
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3. The Increasing Number of Lawsuits and Judgments Against
Governmental Entities and the Corresponding Increase in Insurance Costs
¶109 The last evil identified as warranting the inclusion of all governmental activities
under the umbrella of the GIAU is the increase in lawsuits and judgments against
governmental entities and the increases in insurance rates caused by this increase. We
are unable to assess the extent to which the increase in lawsuits is due to claims arising
out of activities previously not considered a governmental function, as opposed to
claims for which immunity has been waived. Irrespective of the prevalence of claims
previously not covered in that increase, the elimination of such claims will remedy the
identified concern to some measure by reducing the total number of lawsuits against
governmental entities. By extension, that reduction is likely to lower the amount of
paid claims and lead to more favorable insurance rates. See id. ¶ 16 (noting that
insurance rates “are undoubtedly subject to some measure of fluctuation based on paid
claims”). Thus, the means selected is reasonably related to the identified evil.
¶110 As with the other social and economic evils identified, however, the elimination
of all claims that would have been previously allowed as a proprietary function is not
narrowly tailored. See id. ¶ 17. The amount of paid claims could also be reduced by
more narrow measures, including damage caps or the elimination of some, but not all,
categories of damages. See id.; see also Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co.,
1999 UT 18, ¶ 21, 974 P.2d 1194.37
¶111 In sum, the means adopted by the legislature to address the identified social and
economic evils are rationally related to those concerns but are not narrowly tailored.
Instead of paring back the remedies available to the Jenkinses, the legislature chose to
37
Further, in Laney, the court considered the power company’s ability to increase
rates to purchase reasonable amounts of insurance in connection with its open courts
clause analysis. See Laney v. Fairview City, 2002 UT 79, ¶ 67, 57 P.3d 1007 (plurality
opinion). The District is a “quasi‐municipal” corporation, see Patterick v. Carbon Water
Conservancy Dist., 106 Utah 55, 145 P.2d 503, 511 (1944), overruled on other grounds by
Timpanogos Planning & Water Mgmt. Agency v. Central Utah Water Conservancy Dist., 690
P.2d 562, 572 (Utah 1984), and while it does not operate at a profit, it receives a
substantial portion of its annual budget from the collection of fees.
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eliminate them entirely. Prior to the adoption of an all‐inclusive definition of
governmental function, the Jenkinses could have sued the District for negligence and, if
they prevailed, recover the damages caused by the Breaches. The statutory definition of
“governmental function” eliminates completely any right of the Jenkinses to recover.
Where the remedy selected is not narrowly tailored and no alternative is provided, our
supreme court has held that the legislation in question violates the open courts clause,
article I, section 11, of the Utah Constitution. See Judd, 2004 UT 91, ¶ 17; Laney v.
Fairview City, 2002 UT 79, ¶¶ 69‐71, 57 P.3d 1007 (plurality opinion). Therefore, the
GIAU is unconstitutional as applied to the Jenkinses’ claims, and the District cannot
take advantage of the immunity that statute purportedly provides.
¶112 In reaching this conclusion, we have attempted to afford great deference to the
Utah Legislature’s judgments, while also following the controlling precedent of the
Utah Supreme Court concerning our role in interpreting and applying the open courts
clause of the Utah Constitution. Meeting both of those obligations is not without its
difficulties. Indeed, this analysis highlights the tension between the open courts clause
and the separation of powers clause of the Utah Constitution that has caused
disagreement among the members of our supreme court. See Utah Const., art. I, § 11; id.
art. V, § 1 (“The powers of the government of the State of Utah shall be divided into
three distinct departments, the Legislative, the Executive, and the Judicial; and no
person charged with the exercise of powers properly belonging to one of these
departments, shall exercise any functions appertaining to either of the others, except in
the cases herein expressly directed or permitted.”); see also Judd, 2004 UT 91, ¶ 64
(Durham, C.J., and Nehring, J., dissenting) (stating that the damages cap was a
“legislative attempt to mandate legal conclusions and clearly violates the separation of
powers provision” (internal quotation marks omitted)); Laney, 2002 UT 79, ¶ 85
(Wilkins, J., and Durrant, J., dissenting) (noting that the court’s interpretation of the
open courts clause “creates separation of powers problems”). Indeed, one former
member of our supreme court reevaluated his position on the substantive nature of the
open courts clause due to concern about intrusion on the legislative function. Compare
Condemarin v. University Hosp., 775 P.2d 348, 366‐69 (Utah 1989) (Zimmerman, J.,
concurring in part) (endorsing the Berry test), with Craftsman, 1999 UT 18, ¶¶ 108‐55
(Zimmerman, J., concurring in the result) (calling for the reversal of Berry).
CONCLUSION
20100400‐CA 62
¶113 We remand to the trial court to resolve the factual issue of whether, and the
extent to which, the Jenkinses had knowledge of their lost wages and emotional distress
damages when they filed their notice of claim. Only those damages that were known
but not included in that notice of claim are barred by the GIAU.
¶114 We also hold that the Jenkinses have a special relationship to the District due to
their proximity to the Water Line Section that was identified for replacement by the
District’s Engineers three years before the first of the Breaches. Thus, the District owed
a duty of care to the Jenkinses in determining how long to delay replacing the Water
Line Section, and the trial court erred in granting summary judgment in favor of the
District under the public duty doctrine.
¶115 The issue of whether the District acted negligently in waiting three years after the
Engineers’ recommendation to replace the Water Line Section is within the knowledge
and analytical ability of the average layperson. Therefore, the Jenkinses were not
required to designate an expert on the standard of care or whether that standard was
breached to prove their negligence claim against the District.
¶116 The District’s decisions concerning the order in which Identified Pipe would be
replaced, the amount of money allocated to capital improvements, and the coordination
of replacements with road projects of the relevant municipalities involved the expertise
and policy decisions of the District. Thus, the decision of when to replace the Water
Line Section was a discretionary function entitled to immunity under the GIAU.
¶117 The all‐inclusive definition of governmental function contained in the 1987
amendments to the UGIA, as well as the 2004 enactment of a substantially similar
definition of governmental function, resulted in the abrogation of the Jenkinses’
preexisting remedy. We conclude that the legislature did not provide the Jenkinses any
reasonable alternative remedy. While the adoption of the “governmental function”
definition is logically designed to address the social and economic evils identified by
the legislature, it eliminates all claims for damages caused by the District’s negligence in
the provision of water, irrespective of the amount or character of those damages. As a
result, the means employed by the legislature to eliminate the social and economic evils
it has identified are not narrowly tailored. Therefore, the definition is unconstitutional
as applied here because it violates the Jenkinses’ rights under the open courts clause of
article I, section 11 of the Utah Constitution. The District may not rely on the GIAU as a
20100400‐CA 63
basis for immunity from liability to the Jenkinses for its negligence, if any, in deferring
the replacement of the Water Line Section.
¶118 We reverse the summary judgment in favor of the District and remand for trial
on the Jenkinses’ negligence claims in accordance with this decision.
____________________________________
Carolyn B. McHugh,
Presiding Judge
‐‐‐‐‐
¶119 WE CONCUR:
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
____________________________________
Gregory K. Orme, Judge
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