2015 UT App 3
_________________________________________________________
THE UTAH COURT OF APPEALS
KEVIN FAUCHEAUX,
Plaintiff and Appellant,
v.
PROVO CITY,
Defendant and Appellee.
Opinion
No. 20130690-CA
Filed January 2, 2015
Fourth District Court, Provo Department
The Honorable Fred D. Howard
No. 100401999
Ronald D. Wilkinson, Janet G. Peterson and
Marianne P. Card Attorneys for Appellant
Dennis C. Ferguson and Timothy J. Bywater,
Attorneys for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE GREGORY K. ORME and SENIOR JUDGE RUSSELL W. BENCH
concurred.1
VOROS, Judge:
¶1 Afraid that his wife, Helen Faucheaux, had overdosed on
prescription pills, Kevin Faucheaux called 911. When police
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
Faucheaux v. Provo City
officers arrived they concluded that Helen had not overdosed.2
Despite Kevin’s pleas that they call emergency medical
technicians, the officers tucked Helen into bed and told Kevin to
leave her alone. Sometime in the next couple of hours, Helen
died. Kevin brought this wrongful-death action against Provo
City in his capacity as personal representative of Helen’s estate.
The district court granted summary judgment in Provo’s favor,
ruling that Provo owed Helen no duty and that even if it did the
Governmental Immunity Act protected Provo because the
officers’ actions were discretionary. We reverse and remand the
case for further proceedings.
BACKGROUND3
¶2 Helen had a history of attempted suicide and
prescription-drug abuse. Her prescription-drug abuse worsened
after her incarceration, where she learned to ‚crush and snort
Percocet and Flexeril‛ for a more intense high. In the years
immediately before her death, Helen threatened or attempted
suicide several times. In fact, on one occasion, her suicide
attempt nearly proved successful: she ‚flat-lined,‛ but
paramedics were able to revive her.
2. Because Kevin and Helen Faucheaux have the same last name,
for clarity we refer to them by their first names. Furthermore, we
refer to Kevin Faucheaux as ‚Kevin‛ when referring to him in
his personal capacity and as ‚Faucheaux‛ when referring to him
in his capacity as personal representative of Helen’s estate.
3. On an appeal from a summary judgment, we recite the facts
and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party. See Orvis v. Johnson, 2008 UT
2, ¶ 6, 177 P.3d 600. Consequently, most of the facts in this
section are drawn from Kevin’s affidavit.
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Faucheaux v. Provo City
¶3 One day in 2009, Helen appeared to be under the
influence of prescription drugs. She and Kevin fought, after
which both called the police. Because ‚Helen claimed she was
injured,‛ she went to the hospital but was released without
treatment. Kevin picked Helen up from the hospital but
‚dropped her at home‛ to ‚keep the situation from escalating
again.‛
¶4 After leaving, Kevin received a text message from Helen
saying goodbye. Because this was ‚the type of text that Helen
had sent [Kevin] in the past to make [him] think she was
committing suicide and to manipulate [him] into coming home,‛
Kevin did not immediately return. About an hour later, still
before Kevin had returned home, Helen called the police,
claiming that Kevin had locked her out of her home.
¶5 When Kevin returned home, he noticed a dusting of white
powder on the ‚bathroom sink, floor, and door.‛ He found
Helen ‚stumbling around and unable to walk straight, using the
wall to help her balance.‛ Helen then ‚stumbled into the
bathroom, and [Kevin] heard snorting noises.‛ Helen spoke in
slurred speech, and Kevin knew that ‚Helen was crushing pills.‛
Now ‚worried that Helen’s threat to commit suicide was
serious,‛ Kevin called 911, telling the operator that Helen
needed ‚to be pink-slipped because she was suicidal‛ and that
Helen had been abusing drugs.4
¶6 The officers arrived at about 10:00 p.m. Kevin met them
outside. He told the officers that he had ‚concerns that Helen
4. ‚Pink slip‛ is a term sometimes used to refer to the document
used to initiate the temporary restraint of a mentally ill person.
See Douglas Mossman, Psychiatric Holds for Nonpsychiatric
Patients, Current Psychiatry, March 2013, at 34, 34. This is
apparently the sense in which Kevin used the term.
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Faucheaux v. Provo City
was attempting suicide,‛ that he ‚was seriously concerned she
had overdosed,‛ and that she had sent him a text message
saying goodbye. He told the officers that Helen had been
‚crushing and snorting her prescription drugs,‛ that if they
looked in the bathroom they ‚would see crushed powder all
over it and Helen’s mortar and pestle that she used to crush her
pills,‛ and that Helen had already attempted suicide twice that
year.
¶7 The police went inside to talk to Helen. According to the
officers, Helen maintained that she had taken her pills only as
prescribed, that she was not suicidal, and that the white powder
resulted from baking pancakes. The officers then concluded that
Helen had not overdosed, so they ‚tucked her into bed.‛
¶8 After helping Helen to bed, the officers told Kevin that
Helen just needed to ‚sleep it off.‛ However, still concerned
about Helen, Kevin ‚pleaded with [the officers] to call the
EMTs‛ to ensure that Helen had not overdosed. He explained to
the officers that he could not get Helen to the hospital himself.
The officers responded, ‚You don’t need to get her to the car sir,
you just need to leave her alone.‛ The officers then told Kevin
that if they received another call where he was the disturbance,
they would arrest him.
¶9 After Kevin’s discussion with the police, he stayed in the
home but stayed away from Helen ‚as the officers had
instructed.‛ However, after about twenty minutes, Kevin
opened Helen’s bedroom door to check on her. She was lying in
her bed, ‚apparently asleep.‛ Kevin went back to the living
room and watched a movie, returning to the bedroom to check
on her a couple of hours later. This time, he found her dead.5
5. The officers’ version of events differs slightly from Kevin’s.
According to the officers, they did not tuck Helen into bed, tell
(continued...)
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Faucheaux v. Provo City
¶10 Kevin sued Provo City in his capacity as the personal
representative of Helen’s estate, alleging that the police officers
acted negligently. After discovery, the district court granted
summary judgment in Provo’s favor, ruling that Provo owed
Helen no duty of care and that, even if it did, Provo was immune
from suit. This appeal followed.
ISSUE ON APPEAL
¶11 Faucheaux contends that the district court erred in
granting summary judgment in Provo’s favor for two reasons.
First, Faucheaux argues that the district court erred in
concluding that Provo owed Helen no duty of care. Second,
Faucheaux argues that the district court erred in concluding that
Provo is immune from this lawsuit because the officers’ actions
qualify as discretionary.
ANALYSIS
I. The District Court Erred in Concluding That the Police Officers
Owed Helen No Duty of Care.
¶12 Faucheaux first contends that the district court erred in
concluding that the police officers owed Helen no duty of care.
Faucheaux argues that ‚a special relationship between police
and Helen arose when police undertook specific action to protect
Helen.‛ Provo responds that ‚Utah law does not impose a
Kevin to leave Helen alone, or tell Kevin that Helen needed to
‚sleep it off.‛ But at the summary judgment stage we recite the
facts and draw all reasonable inferences in the light most
favorable to the nonmoving party, Faucheaux. See Orvis v.
Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
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‘special relationship’ duty on a peace officer who responds to a
welfare check.‛
¶13 Summary judgment should be awarded only when ‚there
is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.‛ Utah R. Civ.
P. 56(c). We review a grant of summary judgment for
correctness. Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
¶14 To prove a claim of negligence, the ‚plaintiff must
establish four essential elements: (1) that the defendant owed the
plaintiff a duty, (2) that the defendant breached that duty, (3)
that the breach of duty was the proximate cause of the plaintiff’s
injury, and (4) that the plaintiff in fact suffered injuries or
damages.‛ Hunsaker v. State, 870 P.2d 893, 897 (Utah
1993) (citations omitted). A ‚[d]uty arises out of the relationship
between the parties and imposes a legal obligation on one party
for the benefit of the other party.‛ Torrie v. Weber County, 2013
UT 48, ¶ 9, 309 P.3d 216 (citation and internal quotation marks
omitted). Furthermore, duty determinations should be expressed
in ‚relatively clear, categorical, bright-line rules of law
applicable to a general class of cases.‛ Jeffs ex rel B.R. v.
West, 2012 UT 11, ¶ 23, 275 P.3d 228 (citation and internal
quotation marks omitted). However, ‚because negligence cases
often require the drawing of inferences from the facts, which is
properly done by juries rather than judges, summary judgment
is appropriate in negligence cases only in the clearest instances.‛
Nelson v. Salt Lake City, 919 P.2d 568, 571 (Utah 1996) (citation
and internal quotation marks omitted).
¶15 To show that the defendant owed the plaintiff a duty of
care ‚is more complicated when the government is the
defendant.‛ Francis v. State, 2013 UT 65, ¶ 25, 321 P.3d 1089.
Under the public-duty doctrine, ‚[i]f a plaintiff’s claim is based
on the defendant’s failure to adequately discharge a public duty,
a presumption arises that this duty may not be a basis for
liability in a lawsuit.‛ Cope v. Utah Valley State College, 2014 UT
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Faucheaux v. Provo City
53, ¶ 30. Our supreme court has defined a public duty as ‚an
obligation owed to the general public at large.‛ Id. ¶ 31 (citation
and internal quotation marks omitted). Thus, under the public-
duty doctrine ‚a governmental entity is not liable for injury to a
citizen where liability is alleged on the ground that the
governmental entity owes a duty to the public in general, as in
the case of police or fire protection.‛ John H. Derrick,
Annotation, Modern Status of Rule Excusing Governmental Unit
from Tort Liability on Theory That Only General, Not Particular,
Duty Was Owed Under Circumstances, 38 A.L.R. 4th 1194, § 2
(1985), cited with approval in Cope, 2014 UT 53, ¶ 31.
¶16 However, the public-duty doctrine ‚applies only to the
omissions of a governmental actor.‛ Cope, 2014 UT 53, ¶ 2. Thus,
‚[w]here the affirmative acts of a public employee actually cause
the harm . . . the public duty doctrine does not apply.‛ Id. ¶ 24.
Affirmative acts include ‚active misconduct working positive
injury to others, while omissions are defined as passive inaction,
[i.e.,] a failure to take positive steps to benefit others, or to
protect them from harm.‛ Id. ¶ 35 (alteration in original) (citation
and internal quotation marks omitted). A negligent affirmative
act leaves the plaintiff ‚positively worse off as a result of the
wrongful act,‛ whereas in cases of negligent omissions, the
plaintiff’s ‚situation is unchanged; [she] is merely deprived of a
protection which, had it been afforded [her], would have
benefitted [her].‛ Francis H. Bohlen, The Moral Duty to Aid Others
as a Basis of Tort Liability, 56 U. Pa. L. Rev. 217, 220 (1908).
¶17 Finally, if a plaintiff’s claims are based on an omission of a
governmental actor, ‚courts will recognize the duty only if the
plaintiff establishes a special relationship that imposes a specific
duty of care toward the plaintiff as an individual that is
distinguishable from a public duty owed to the general public.‛
Cope, 2014 UT 53, ¶ 12. To determine whether a special
relationship exists in a particular case, and thus whether a duty
exists, we have always ‚taken a policy-based approach.‛ Higgins
v. Salt Lake County, 855 P.2d 231, 236 (Utah 1993). We carefully
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Faucheaux v. Provo City
consider the consequences of imposing a duty and ‚are loath to
recognize a duty that is realistically incapable of performance or
fundamentally at odds with the nature of the parties’
relationship.‛ Id. at 237.
¶18 Our caselaw creates special relationships in at least four
circumstances:
(1) by a statute intended to protect a specific class
of persons 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) by governmental actions that
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.
Day v. State, 1999 UT 46, ¶ 13, 980 P.2d 1171. At issue here are
circumstances (2) and (3): whether the officers undertook specific
action to protect Helen or reasonably induced detrimental
reliance on their actions.6
¶19 Here, the district court erred in ruling as a matter of law
that the public-duty doctrine shields Provo. Faucheaux’s
negligence claim may be interpreted in one of two ways. On the
one hand, Faucheaux does allege negligent affirmative acts—not
6. On appeal, Faucheaux also argues that the district court erred
because a statute created a duty of care. But in a hearing before
the district court, Faucheaux specifically stated, ‚[W]e are not
claiming‛ that a statute created the duty here. Thus, Faucheaux
invited this alleged error, and we consequently decline to
address it. See Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366.
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Faucheaux v. Provo City
merely omissions—of the officers. See Cope, 2014 UT 53, ¶ 24.
Faucheaux alleges that the officers came to Helen’s home when
she was so intoxicated that she could hardly walk or talk; that
instead of taking her to the hospital they proceeded to tuck her
into bed, admonishing Kevin to ‚leave her alone‛ and telling
him that Helen needed to ‚sleep it off‛; and that they threatened
to arrest him if they received another call. These alleged acts
constitute ‚active misconduct working positive injury to others,‛
id. ¶ 35 (citation and internal quotation marks omitted),
especially considering our ‚societal expectation of unquestioned
[police] command‛ in such situations, Brendlin v. California, 551
U.S. 249, 258 (2007) (alteration in original) (citation and internal
quotation marks omitted). Faucheaux does not allege only that
the officers withheld a protection that would have benefitted
Helen but that the officers’ actions left Helen worse off.
Therefore, because Faucheaux can, at least in theory, trace
Helen’s death to an affirmative act by the officers, the district
court erred in ruling as a matter of law that the public-duty
doctrine shields Provo. See Cope, 2014 UT 53, ¶ 37. The officers,
Faucheaux alleges, did not merely fail to help, they hindered.
¶20 On the other hand, the officers did not actually cause the
harm. Id. ¶ 2. They did not administer the prescription
medications that Faucheaux alleges killed Helen. But even if we
were to interpret Faucheaux’s claim as based on omissions,
under Faucheaux’s version of events—and perhaps the officers’
version as well—the officers created a special relationship with
Helen. Faucheaux argues that the officers created a special
relationship by undertaking specific action to protect Helen. To
succeed on this argument, Faucheaux must show first that the
police officers ‚undertook specific action,‛ and second that
‚those actions were intended to protect a person or property.‛
See Francis v. State, 2013 UT 65, ¶ 27, 321 P.3d 1089.
¶21 Here, Faucheaux’s version of the facts supports his
allegation that the officers created a special relationship with
Helen. First, under Faucheaux’s version of events, the police
20130690-CA 9 2015 UT App 3
Faucheaux v. Provo City
officers ‚undertook specific action‛ by entering Helen’s home,
asking her if she was suicidal, asking her about the powder they
found on her, and then tucking her into bed. See id. Second, these
actions ‚were intended to protect‛ Helen. See id. Thus, assuming
the truth of Faucheaux’s version of events, the officers created a
special relationship with Helen and consequently owed her a
duty to act reasonably.
¶22 We draw support for this conclusion from our supreme
court’s decision in Francis, 2013 UT 65. There, the supreme court
held that the State created a special relationship with a camper
who was mauled by a black bear because the State undertook
specific action to protect an identifiable group. Id. ¶¶ 31, 33. In
Francis, the Division of Wildlife Resources received a report
about a black bear attacking a camper. Id. ¶ 9. After the Division
learned of the attack, it decided to ‚track and destroy the bear‛
because the bear posed ‚a threat to public safety.‛ Id. ¶ 10. The
Division tracked the bear with dogs for ‚four to five hours, with
no success.‛ Id. ¶ 11. Knowing that the bear ‚would likely
return‛ to the campsite ‚if attracted,‛ the Division’s agents
‚checked the [c]ampsite to make sure it was unoccupied and
clean of any [bear] attractants.‛ Id. But the Division’s agents
‚made no effort to warn anyone who might arrive‛ at the
campsite after they left. Id. ¶ 12. As the Division’s agents left the
campsite they drove past a family heading toward the campsite.
Id. ¶ 13. The agents did not stop the family or warn them of the
earlier attack ‚but merely waved as they passed.‛ Id. After
passing the Division’s agents, the family set up the campsite and
cooked dinner. Id. ¶ 14. A little later, the bear returned, attacking
and killing one of the campers. Id. Our supreme court held that
because the Division undertook action to protect ‚the next group
to use the campsite,‛ the Division created a special relationship
with the next occupants of the campsite and that consequently
the Division owed them a duty of care. Id. ¶ 4.
¶23 Like the Division’s employees in Francis, the police
officers here did not originally have a special relationship with
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Faucheaux v. Provo City
Helen. In Francis, agents created the special relationship when
they tracked the bear, returned to the campsite, made sure the
campsite was free of bear attractants, and waved at the family
heading toward the campsite. Here, the officers created the
special relationship when they entered Helen’s home, took
control of the situation, asked Helen if she was abusing drugs
and suicidal, asked her about the powder they found on her, and
subsequently tucked her into bed, directing Kevin to leave her
alone.
¶24 Provo counters that police officers do not have a duty to
protect people from harming themselves. We agree that police
officers have no general duty to protect people from harming
themselves. But our supreme court has declared that a special
relationship arises ‚when a government agent undertakes
specific action to protect a person or property.‛ Day v. State, 1999
UT 46, ¶ 13, 980 P.2d 1171. We conclude that, under this rule, if a
police officer enters a person’s home concerned that the person
may have overdosed and undertakes specific action to protect
that person, the officer creates a special relationship with that
person and consequently must act reasonably.
¶25 We reiterate that we ‚are loath to recognize a duty that is
realistically incapable of performance or fundamentally at odds
with the nature of the parties’ relationship.‛ Higgins v. Salt Lake
County, 855 P.2d 231, 237 (Utah 1993). But to recognize a special
relationship on facts as alleged by Faucheaux does not create a
duty realistically incapable of performance. Rather, this holding
imposes on police officers the duty to act reasonably when they
enter a person’s home, undertake specific action to protect that
person, and prevent others in the home from taking protective
action.
¶26 Provo further argues that a Utah statute precludes
imposing a duty on the officers here. The statute in question
states that police officers ‚may‛ take a person into protective
custody if the officer has ‚probable cause.‛ See Utah Code Ann.
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Faucheaux v. Provo City
§ 62A-15-629(2) (LexisNexis 2012). Provo asserts that the officers
did not have probable cause here and therefore could not
remove Helen from her home. Because the officers ‚lacked the
statutory authority to forcibly remove Helen from her home,‛
Provo argues, they owed her no duty.
¶27 This argument misses the mark. Faucheaux does not
contend that the officers acted negligently only by not taking
Helen into custody. Rather, Faucheaux alleges that the officers
formed a special relationship with Helen and thus owed her a
duty to act reasonably. The officers could have discharged this
duty in a number of ways without taking Helen into custody.
And even if Provo is right ‚that the officers lacked the statutory
authority to forcibly remove Helen from her home,‛ this
argument addresses whether the officers acted reasonably, not
whether they had a duty to act reasonably. In sum, a statute
authorizing police to remove a person from her home with
probable cause does not protect them from a claim that their
actions placed her in danger and prevented others from
addressing that danger.
¶28 In conclusion, we hold that the district court erred in
ruling as a matter of law that the public-duty doctrine shields
Provo from Faucheaux’s negligence claim. First, to the extent
Faucheaux bases his claim on the affirmative negligent acts of
the officers, the public-duty doctrine is not available. Second, to
the extent Faucheaux bases his claim on alleged omissions, the
officers created a special relationship with Helen. Thus, the
district court incorrectly granted summary judgment in Provo’s
favor.
II. Utah’s Governmental Immunity Act Does Not Protect Provo
from the Officers’ Nondiscretionary Acts.
¶29 Faucheaux next contends that the district court erred in
concluding that Utah’s Governmental Immunity Act immunizes
Provo from this lawsuit. Faucheaux argues that Provo ‚is not
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Faucheaux v. Provo City
immune from suit under the Governmental Immunity Act
because [the] police officers were not performing a discretionary
function when they responded to Kevin’s 911 call.‛ Provo
responds that a statute giving police discretion to detain
mentally ill persons who may harm themselves or others
illustrates the discretionary nature of the officers’ actions.
¶30 A district court’s interpretation of a statute is a question of
law. Harvey v. Cedar Hills City, 2010 UT 12, ¶ 10, 227 P.3d 256.
Consequently, we review the interpretation for correctness. Id.
¶31 Sovereign immunity, ‚rooted in the medieval British
notion that the King could do no wrong, precludes lawsuits
against governmental entities without the government’s
consent.‛ Trujillo v. Utah Dep’t of Transp., 1999 UT App 227, ¶ 13,
986 P.2d 752. Utah’s Governmental Immunity Act first grants
general immunity from suit to governmental entities. Utah Code
Ann. § 63G-7-201(1) (LexisNexis 2012). The Act then narrows
that general grant by waiving immunity for certain claims,
including claims for injuries proximately caused by ‚a negligent
act or omission.‛ Id. § 63G-7-301(4). However, the Act then
creates exceptions to those waivers of immunity. Id. § 63G-7-
301(5). For example, the Act retains immunity for injuries that
arise out of 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).
¶32 ‚To determine whether governmental action qualifies for
the discretionary function exception,‛ we must first ask whether
the ‚challenged act, omission, or decision necessarily involve[s]
a basic governmental policy, program, or objective.‛ Johnson v.
Utah Dep’t of Transp., 2006 UT 15, ¶ 22, 133 P.3d 402 (citation and
internal quotation marks omitted). But ‚[n]ot every
governmental action involving discretion is a discretionary
function within the meaning of the Act. Were it otherwise, the
exception would swallow the rule, as almost all governmental
decisions involve some discretion.‛ Trujillo, 1999 UT App 227,
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Faucheaux v. Provo City
¶ 21 (citing Nelson v. Salt Lake City, 919 P.2d 568, 575 (Utah
1996)). ‚[D]iscretionary functions are those requiring evaluation
of basic governmental policy matters and do not include acts
and decisions at the operational level, namely those everyday,
routine matters not requiring evaluation of broad policy factors.‛
Johnson, 2006 UT 15, ¶ 31 (citation and internal quotation marks
omitted).
¶33 Utah caselaw has identified two policies that this
discretionary-function immunity serves. First, discretionary-
function immunity ‚shield[s] 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.‛ Hansen v. Salt Lake County, 794 P.2d 838, 846
(Utah 1990) (citation and internal quotation marks omitted).
Second, where ‚the responsibility for basic policy decisions has
been committed to one of the branches of our tri-partite system
of government,‛ discretionary-function immunity preserves the
autonomy of coordinate branches of government by keeping
courts from ‚sitting in judgment‛ of other branches’ policy-
making decisions. Little v. Utah Div. of Family Servs., 667 P.2d 49,
51 (Utah 1983).
¶34 Our caselaw illustrates the distinction between policy-
level decisions, which qualify for discretionary-function
immunity, and operational-level decisions, which do not. For
example, this court previously held that the Utah Department of
Transportation’s formulation of a traffic-control plan, including
its decision to use barrels instead of concrete barriers to separate
traffic, did not qualify for discretionary-function immunity,
because the control plan was not ‚the product of the exercise of
policy-level discretion.‛ Trujillo, 1999 UT App 227, ¶ 33. In
contrast, our supreme court held that a decision not to raise
concrete barriers during construction qualified for discretionary-
function immunity as ‚studies of the plan, its cost, and the
degree of safety it would provide were carried out by senior
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Faucheaux v. Provo City
engineers and circulated throughout and debated within the
department.‛ Keegan v. State, 896 P.2d 618, 624 (Utah 1995).
¶35 The officers’ actions as alleged by Faucheaux do not
qualify for the discretionary-function exception. Their alleged
acts and omissions include, among other things, answering
Kevin’s 911 call, evaluating Helen’s condition, asking Helen
about her prescription-drug use, failing to take Helen to the
hospital, refusing to assist Kevin in getting Helen to the car,
refusing to call emergency medical technicians, and tucking
Helen into bed. These acts and omissions do not require
‚evaluation of basic governmental policy matters.‛ Johnson, 2006
UT 15, ¶ 31 (citation and internal quotation marks omitted).
Rather, they occurred at ‚the operational level‛ and qualify as
actions ‚not requiring evaluation of broad policy factors.‛
Keegan, 896 P.2d at 623 (citation and internal quotation marks
omitted).
¶36 Nevertheless, Provo argues that it is immune from suit
because the Utah Code provides that officers ‚may‛ take a
person into protective custody against the person’s will. See Utah
Code Ann. § 62A-15-629(2) (LexisNexis 2012). But the fact that an
officer’s action required the exercise of some amount of
discretion does not qualify it as discretionary for purposes of
Utah’s Governmental Immunity Act. As stated above, ‚[n]ot
every governmental action involving discretion is a
discretionary function within the meaning of the Act. Were it
otherwise, the exception would swallow the rule, as almost all
governmental decisions involve some discretion.‛ Trujillo v. Utah
Dep’t of Transp., 1999 UT App 227, ¶ 21, 986 P.2d 752. The
relevant question asks whether the discretionary act occurred at
the ‚operational level‛ or required ‚evaluation of broad policy
factors.‛ See Johnson, 2006 UT 15, ¶ 31 (citation and internal
quotation marks omitted). The officers’ acts as alleged by
Faucheaux fall squarely into the former category.
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CONCLUSION
¶37 The district court erred in concluding as a matter of law
that the public-duty doctrine shields Provo from liability. To the
extent Faucheaux bases his negligence claim on the alleged
affirmative acts of the officers, the public-duty doctrine is not
available. Furthermore, to the extent Faucheaux bases his
negligence claim on omissions, the district court erred in ruling
that officers did not create a special relationship with Helen.
Additionally, we conclude that the Governmental Immunity Act
does not immunize Provo from the officers’ actions and
omissions. Consequently, the district court’s decision is reversed
and the case remanded for further proceedings.
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