332 P.3d 922
Utah2014Background
- At a BYU football game, BYU traffic cadet Sarah Robinson (supervised by a BYU peace officer) directed traffic onto Provo City streets; Randall Mallory was injured in a collision leaving the stadium and sued BYU and Robinson for negligence.
- BYU defendants asserted they were Provo City "Employees" under Utah's Governmental Immunity Act (Act), so Mallory's failure to file a notice of claim with Provo City within one year barred suit; the trial court dismissed for lack of subject-matter jurisdiction.
- The Utah Court of Appeals reversed, reasoning the Act's statutory list of who "includes" an Employee is not exhaustive but omits "agent," and the record lacked evidence of Provo City's control to show a servant/master relationship.
- The Utah Supreme Court granted certiorari to decide (1) the correct interpretation of "Employee" in the Act and (2) whether dismissal was premature given the record.
- The Supreme Court held the statutory use of "includes" is nonexclusive, that governmental agents can be Employees even if not listed, and that (on the record, including Provo ordinances) BYU/Robinson were servants of Provo City and therefore Employees, so Mallory's suit was jurisdictionally barred.
Issues
| Issue | Mallory's Argument | BYU/Provo's Argument | Held |
|---|---|---|---|
| Whether the Act's definition of "Employee" is limited to listed categories (i.e., excludes "agents") | "Employee" should not be broadened to encompass unlisted agents; omission of "agent" shows legislature intended narrower scope | "Includes" is nonexclusive; agents (except independent contractors) can be Employees | The court: "includes" is nonexclusive; Employees can include governmental agents not expressly listed (but independent contractors excluded) |
| Whether an agent who is not an independent contractor must be a "servant" (subject to strict control) to qualify as an Employee | Mallory: unlisted agents must show master/servant-level control before immunity applies | BYU: statutory list illustrative; not all agents must fit a listed label to be Employees | The court rejected a rule requiring fit into a listed category; Employee status may extend to agents outside the enumerated list |
| Whether the record supported dismissal (i.e., that BYU/Robinson were servants of Provo City) | Mallory: record insufficient to show Provo City had right to control BYU cadets—dismissal premature | BYU/Provo: Provo City ordinances and supervisory/regulatory scheme give Provo City right to control and to remove; BYU cadets acted pursuant to that ordinance | The court found Provo City retained statutory right to control manner/time/place and right to discharge; BYU/Robinson were servants/Employees and dismissal was proper |
| Whether Smith v. Four Corners compels denying immunity here | Mallory: Smith shows mere allegations of control are insufficient—court of appeals was correct to remand | BYU: unlike Smith, municipal code and evidence here demonstrate Provo’s right to control | The court distinguished Smith—here the ordinance and record provided enough basis to find right to control and servant status |
Key Cases Cited
- Smith v. Four Corners Mental Health Ctr., 70 P.3d 904 (Utah 2003) (agency/control facts may be insufficient absent evidence of right to control)
- Mallory v. Brigham Young Univ., 285 P.3d 1230 (Utah Ct. App. 2012) (court of appeals decision reversed)
- Averett v. Grange, 909 P.2d 246 (Utah 1995) (factors for right-to-control analysis)
- Foster v. Steed, 432 P.2d 60 (Utah 1967) (right to control/means and method determinative for master-servant relationship)