(dissenting):
I respectfully dissent, for I am of the opinion that there is nothing about this case which warrants a departure from long-established precedent.
The issue below was presented as one of law, viz., whether the operation of Nibley Golf Course is a governmental function within the purview of the Governmental Immunity Act,1 and, if so, whether said Act nevertheless exempts or renders defendant immune from suit.
The trial court relied upon the case of Jopes v. Salt Lake City2 in concluding that the operation of the golf course was a governmental function and, in the absence of an express waiver of immunity in the language of the Act, dismissed plaintiff’s complaint.
Plaintiff raises a single point on appeal; however, it has two facets. She contends that the operation of the golf course is a proprietary, as opposed to a governmental, function. She further contends that in any event and in light of the Governmental Immunity Act and “the general trend to restrict governmental immunity,” she should not be denied a remedy. Indeed, the Act does restrict immunity in specific instances but whether that constitutes a “trend” remains to be seen.
Despite the fact that no challenge was made to the “proprietary-governmental” rule in the court below, nor on this appeal, the main opinion considers that matter, sua sponte, and fashions in its place a wholly new rule. However appropriate such a new rule may be, I deem it for the Legislature, and not for the Court, to abolish or change a rule of law of such long-standing and recognition.
My review of the Act reveals the intention of the Legislature to be abundantly clear. The Act codifies, and thus preserves, the basic doctrine of governmental immunity,3 and then only waives immunity in certain specified areas.4 Nowhere among the various sections of the Act which deal with immunity is there to be found a provision providing for the waiver of immunity in the operation of parks and recreational facilities, or more specifically, a golf course.
Had it been the intention of the Legislature to waive immunity from suit for injuries arising out of the operation of golf *1238courses, it no doubt would have so stated. A fortiorari, had it been its intention to abruptly depart from the long-established judicially imposed “proprietary-governmental” standard and to render only “unique” or “essential” governmental activities immune from suit, it would surely have explicitly so provided.
Consistent with the views expressed herein is the following sequence of events. Upon its initial passage in 1965, the Act codified the doctrine of governmental immunity in the following language:
Except as may be otherwise provided in this act, all governmental entities shall be immune from suit for any injury which may result from the activities of said entities wherein said entity is engaged in the exercise and discharge of a governmental function.5
Subsequently, in the case of Greenhalgh v. Payson,6 the Court interpreted the foregoing statutory provision and determined that the City of Payson’s operation of a hospital was a proprietary function and hence was not immune from suit. The Legislature, in apparent direct response to the decision in Greenhalgh, modified the subject statute in 1978 and it now reads as follows:
Except as may be otherwise provided in this act, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function, governmentally-owned hospital, nursing home, or other governmental health care facility. [Emphasis added.]7
Hence, it is seen that the Legislature has now (very recently) seen fit to extend, rather than to further restrict, the doctrine of immunity and has thereby specifically rendered all governmentally-owned health facilities immune from suit. Its actions in doing so were in obvious recognition of the “proprietary-governmental” rule.
I can only conclude that the Legislature did not design the Act as an invitation to the courts to broaden governmental liability and to make even further inroads upon immunity than as specifically set forth therein.
The Court has addressed the relative merits of the “proprietary-governmental” rule on several occasions and has appropriately declined to deviate from precedent. In Ramirez v. Ogden City,8 the matter was stated as follows:
It has long been recognized in this jurisdiction that a municipal corporation may act both in a public and a private capacity and that when performing in a public or governmental function it is not subject to tort liability.1 From time to
time certain judicial expressions have been uttered questioning the soundness of that rule as a matter of policy.2
Whatever its desirability or undesirability may be, it has long been firmly established in our law by rulings of the majority of this court.3 In deference to the
principle of stare decisis we do not now feel at liberty to consider its merits or demerits. Any change would be properly within the province of the Legislature.4
*1239More recently, in the case of Epting v. State of Utah,9 the Court had this to say:
[I]t is well to have in mind that the legislature has recognized the necessity of immunity as essential to the protection of the state in rendering the many and ever increasing number of governmental services. In a prefatory section of the act, 63-30-3, U.C.A.1953, it has provided that:
“Except as may be otherwise provided in this act, all governmental entities shall be immune from suit for any injury which may result from the activities of said entities wherein said entity is engaged in the exercise and discharge of a governmental function.”
The decisions of this court,3 and other
states,4 have indicated recognition of the
principle that where there is thus a general preservation of governmental immunity, any exception must be found to be clearly stated within the provisions of the act. [Emphasis added.]
I would affirm the trial court’s dismissal of the complaint.
. U.C.A., 1953, 63-30-1, et seq.
. 9 Utah 2d 297, 343 P.2d 728 (1959).
. See U.C.A., 1953, 63-30-3.
. See U.C.A., 1953, 63-30-5 thru 10.
. U.C.A., 1953, 63-30-3.
. Utah, 530 P.2d 799 (1975).
. U.C.A., 1953, 63-30-3, as amended, 1978.
. 3 Utah 2d 102, 279 P.2d 463 (1955).
Sehy v. Salt Lake City, 41 Utah 535, 126 P. 691, 42 L.R.A., N.S., 915; Gillmor v. Salt Lake City, 32 Utah 180, 89 P. 714, 12 L.R.A.,N.S., 537; Rollow v. Ogden City, 66 Utah 475, 243 P. 791; Niblock v. Salt Lake City, 100 Utah 573, 111 P.2d 800; Davis v. Provo City Corp., 1 Utah 2d 244, 265 P.2d 415.
See Justice Wolfe’s concurrence in Niblock v. Salt Lake City, supra; Driggs v. Utah Teacher’s Retirement Board, 105 Utah 417, 426, 142 P.2d 657.
“While law writers, editors and judges have criticized and disapproved the foregoing doctrine of governmental immunity as illogical and unjust, the weight of precedent of decided cases supports the general rule and we prefer not to disregard a principle so well established without statutory authority.” Bingham v. Board of Education of Ogden City, 118 Utah 582, 223 P.2d 432, 435.
Davis v. Provo City Corp., supra; Bingham v. Board of Education of Ogden City, Utah, supra; Niblock v. Salt Lake City, supra (quoting Husband v. Salt Lake City, 92 Utah 449, 69 P.2d 491).
See Holt v. Road Commission, 30 Utah 2d 4, 511 P.2d 1286; Sheffield v. Turner, 21 Utah 2d 314, 445 P.2d 367.
In Lively v. City of Blackfoot, 91 Idaho 80, 416 P.2d 27; Schrader v. Veatch, 216 Or. 105, 337 P.2d 814 (1959); Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 177 P.2d 397 (1947); and Los Angeles County v. Riley, 20 Cal.2d 652, 128 P.2d 537; Williams v. Board of County Commissioners of Rice County, 192 Kan. 548, 389 P.2d 795.
. Utah, 546 P.2d 242 (1976).