Case Information
*1
This opinion is subject to revision before final
publication in the Pacific Reporter.
M ICHAEL B ARNECK , L INDA B ARNECK , individually and as heirs of
J USTINE ARNECK , deceased, and H EIDI P AULSON , Appellants, v.
U TAH D EPARTMENT OF T RANSPORTATION , and the S TATE OF U TAH ,
Appellee. ——————— No. 20130429 Filed June 12, 2015 ——————— Eighth District, Duchesne The Honorable George M. Harmond No. 120800019 ——————— Attorneys: David M. Bennion, Scott S. Bell, Alan S. Mouritsen, Salt Lake City, for appellants
Sean D. Reyes, Att‘y Gen., Peggy Stone, Reed Stringham, Ass‘t Att‘y Gen., Salt Lake City, for appellee
———————
A SSOCIATE C HIEF J USTICE L EE authored the opinion of the Court, in which C HIEF J USTICE D URRANT , J USTICE D URHAM , J USTICE P ARRISH ,
and J UDGE T OOMEY joined.
J USTICE N EHRING did not participate herein due to his retirement; OURT OF A PPEALS J UDGE K ATE A. T OOMEY sat. J USTICE H IMONAS became a member of the Court on February 13, 2015, after oral argument in this matter, and accordingly did not
participate. ———————
A SSOCIATE C HIEF J USTICE L EE , opinion of the Court: During a brief but significant rainstorm, a culvert under SR-35 in Duchesne County became obstructed, causing some fif- teen feet of water to back up on the north side of the road. After Utah Department of Transportation workers removed debris from the road and tried unsuccessfully to unclog the culvert, they left the scene. The standing water sat next to the road for several hours and eventually caused it to collapse, leaving a gaping hole in the middle of the road. Later that night, plaintiffs‘ vehicles ca- reened into this chasm. Plaintiffs subsequently filed this suit against UDOT for negligence and wrongful death. These claims were dismissed on summary judgment in the district court, on the basis of the determination that UDOT was entitled to immunity under the Governmental Immunity Act. In reviewing this decision, we are asked to interpret and
apply competing provisions of the Governmental Immunity Act— provisions that waive immunity for ―any injury caused by . . . a defective, unsafe, or dangerous condition of any highway [or] . . . culvert,‖ U TAH ODE § 63G-7-301(3)(a)(i), while also providing an exception to such waiver where ―the injury arises out of, in connec- tion with, or results from . . . the management of flood waters‖ or the ―repair, or operation of [a] flood or storm system[],‖ id. § 63G- 7-301(5)(p), (q). We reverse and remand. In so doing, we interpret the statutory references to ―dangerous condition‖ of a ―culvert,‖ the ―management of flood waters,‖ and the ―operation of a flood or storm system.‖ We also clarify the relationship between the statutory waivers of immunity and exceptions therefrom, in a manner repudiating the but-for standard of causation articulated in some of our prior cases and adopting instead a standard of proximate causation.
I On a July afternoon in 2011, over an inch of rain fell over
the course of about an hour in the area near mile marker 46 on The briefs identify this area a bit differently. They refer to it as ―near mile marker 46.5.‖ We are unsure of what to make of that formulation, as we suppose that a ―mile marker‖ is in fact a mile marker and not a half-mile marker , and see no indication in the rec- ord or elsewhere that UDOT uses half-mile markers. But we note SR-35 in Duchesne County. Such rain would usually collect in and run down a natural gully and through a culvert passing un- der SR-35. For reasons yet unknown, however, the culvert on this particular day had become obstructed. And the water quickly backed up, pooling at a depth of around fifteen feet. The water— and debris it carried—then ran across the surface of SR-35. In re- sponse to this and other occurrences at different locations along SR-35, UDOT dispatched a team of workers to clear the debris. Upon arriving on the scene, UDOT workers cleared the de- bris on the road. They also attempted to clear the obstruction in the culvert using a backhoe. UDOT‘s attempts to unblock the cul- vert were ultimately unsuccessful, and the workers left for the day at about 4:00 p.m. The decision to leave was based on the deter- mination that there was no change in driving conditions and noth- ing obstructing the roadway for motorists. A short time later, a single UDOT worker returned to inspect the site one last time. He saw some water flowing on the south side of SR-35. But he could not see if the water was flowing from the culvert or if it was leach- ing through the embankment under the road. The worker then left for the day. The pooled water sat for several hours and apparently re-
sulted in ―hydraulic piping‖—a phenomenon in which water seeps through and displaces the road base. This process of hy- draulic piping continued through the afternoon and night, and this discrepancy anyway. We do so in case there literally is a ―mile marker 46.5‖ on SR-35. Cf. J.K. R OWLING , H ARRY P OTTER AND THE S ORCERER ‘ S S TONE 89–90 (1998) (noting Uncle Vernon and Aunt Petunia‘s disbelief in the notion of a Platform 9 ¾ at King‘s Cross Station); John Ingold, Colorado Hopes a Mile 419.99 Sign on Interstate 70 Thwarts Stoners , D ENVER P OST (Jan. 10, 2014), http://www.denverpost.com/news/ci_24889289/colorado -hopes-mile-419-99-sign-interstate-70 (noting the replacement of mile marker 420 on I-70 with marker 419.99; noting that the num- ber 420 is ―[i]n sports terms,‖ the ―‗Roll Tide‘ of weed,‖ and ex- plaining that marker 420 repeatedly had been stolen by ―marijua- na enthusiasts‖) (Only in Colorado. Or so we assume.). The facts set forth here are largely undisputed, but presented
in a light most favorable to the nonmoving party given that this case comes before us on an appeal from summary judgment. . eventually the road collapsed. The result was a chasm in SR-35 that was twenty feet deep and thirty feet across. There were no signs to alert oncoming traffic.
¶6 Plaintiff Heidi Paulson was traveling eastbound on SR-35 later that night when suddenly, and without warning, her car slammed into the east wall of the chasm, falling nose-first to the bottom. Paulson was severely injured. Only a short time later, plaintiff Michael Barneck and his fifteen-year-old daughter Justine were traveling westbound when they violently crashed into the chasm, killing Justine and injuring Michael.
¶7 Plaintiffs sued UDOT on the basis of its alleged negligent maintenance of the road and the clogged culvert. After discovery, UDOT moved for summary judgment. UDOT claimed that it was immune under the Governmental Immunity Act because the plaintiffs‘ injuries arose out of the ―management of flood waters‖ and the ―operation‖ of a ―flood or storm system.‖ The district court granted summary judgment in favor of UDOT on both theo- ries. Plaintiffs now appeal. We review the district court‘s decision granting summary
judgment de novo, affording it no deference. Torian v. Craig , 2012 UT 63, ¶ 13, 289 P.3d 479. In so doing, we determine whether UDOT has established that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. U TAH R. C IV P. 56(c).
II Utah‘s Governmental Immunity Act, U TAH ODE §§ 63G-7-
101 to -904, at once waives sovereign immunity and carves out express exceptions to those waivers. The waiver of relevance to this case is in the provision waiving immunity for ―any injury caused by . . . a defective, unsafe, or dangerous condition of any highway [or] . . . culvert.‖ Id. § 63G-7-301(3)(a)(i). And the rele- vant exception, in turn, is in the provision retaining immunity where ―the injury arises out of, in connection with, or results from . . . the management of flood waters‖ or the ―repair, or operation of [a] flood or storm system[].‖ Id. § 63G-7-301(5)(p), (q). In advancing its motion for summary judgment, UDOT re- lies on the above-cited exception provision. It claims that the neg- ligence alleged by the plaintiffs concerned UDOT‘s ―management of flood waters‖ or its ―repair[] or operation of [a] flood or storm system[].‖ Plaintiffs see the case differently. They claim that their injuries were caused by ―a defective, unsafe, or dangerous condi- tion of [a] highway [or] . . . culvert,‖ and that the question of UDOT‘s immunity is thus controlled by the above-cited waiver provision. And in any event, to the extent there are disagreements about the cause of plaintiffs‘ injuries, plaintiffs point to those dis- agreements as an alternative ground (of genuine issues of material fact) for denying UDOT‘s motion for summary judgment.
¶11 To resolve this dispute, we must first interpret the terms of the operative waiver and exception provisions of the Governmen- tal Immunity Act. We must also clarify the relationship between these provisions by articulating the governing standard of causa- tion in a case (like this one) in which the plaintiffs‘ injuries might fairly be described as arising both out of conduct that is covered by a waiver provision (defective or dangerous culvert) and out of conduct that is described in an exception provision (management of flood waters or operation of a storm system). We proceed in that manner in the paragraphs that follow.
We (A) interpret the terms of the waiver of immunity for injuries caused by ―a defective, unsafe, or dangerous condition of any highway [or] . . . culvert‖; (B) set forth our understanding of the exception for the ―management of flood waters‖; (C) construe the exception for the ―operation of a flood or storm system‖; and (D) establish the causation standard that applies in a case in which an injury can be understood to arise both out of conduct that is de- scribed in a waiver provision and in an exception.
A. Dangerous Condition of a Culvert By statute, governmental immunity is waived for ―any in-
jury caused by . . . a defective, unsafe, or dangerous condition of any highway [or] . . . culvert.‖ U TAH ODE § 63G-7-301(3)(a)(i). The threshold question presented concerns the meaning of the statutory reference to a ―defective, unsafe, or dangerous condi- tion.‖ The operative terms of this waiver provision are imported
from tort law. Specifically, the reference to ―defective, unsafe, or
dangerous condition[s]‖ is an unmistakable transplant from the
law of premises liability.
[3]
In that field, this court has long held
that landowners are liable in tort for defective or dangerous con-
ditions on their land causing injuries to invitees.
[4]
Similar stand-
ards are embedded in settled tort law in other jurisdictions.
[5]
These principles of premises liability have also long formed
the basis of an exception to the common law doctrine of sovereign
[3]
See Glaittli v. State
,
1903) (affirming jury verdict in a case in which the defendant
maintained a ―tunnel conduit, 6 feet in diameter‖ near a county
highway, ―a break or rift in the conduit permitted about one-
fourth of the water flowing . . . to escape and flow to the county
road‖ below, causing the death of plaintiff‘s fifteen-year-old-son;
noting that ―the road in question was in the same dangerous con-
dition for several days,‖ and affirming the admissibility of evi-
dence offered to show the ―time and opportunity to the defendant
to discover and remedy the dangerous condition‖);
Scoville v. Salt
Lake City
,
the terms of the law under which ―[a] possessor of land is subject
to liability for physical harm caused to his invitees by a condition
on the land‖); 2 D AN B. D OBBS ET AL ., T HE L AW OF T ORTS § 276, at
84 (2d ed. 2011) (―The landowner owes to the invitee a nondele-
gable duty of care to make conditions on the land reasonably safe
. . . .‖); W. P AGE K EETON ET AL ., P ROSSER AND K EATON ON T ORTS § 61, at 419–32 (5th ed. 1984) (discussing the premises liability no-
tion of a dangerous condition as applied to injuries to invitees).
immunity.
[6]
It is accordingly unsurprising to see such principles
incorporated in the statute that displaced the common law in this
field—the Governmental Immunity Act. At various points in that
Act, the legislature speaks the language of premises liability in
codifying waivers of the government‘s immunity and exceptions
thereto. U TAH ODE § 63G-7-301(3)(a)(i) (waiving immunity for
injuries caused by ―a defective, unsafe, or dangerous condition‖ of
various public properties);
id.
§ 63G-7-301(3)(b)(i) (retaining im-
munity for ―latent dangerous or latent defective condition[s]‖ of
those same public properties);
id.
§ 63G-7-301(1)(c) (retaining im-
munity for injuries caused by the Division of Water Resources‘
failure to deliver water when it is due to a ―natural condition‖);
id.
§ 63G-7-301(5)(k) (retaining immunity for injuries caused by ―any
natural condition on publicly owned or controlled lands‖).
[7]
We accordingly construe the language of the statutory
waiver of immunity for a ―defective, unsafe, or dangerous condi-
tion of any highway [or] . . . culvert‖ to incorporate the term-of-art
sense of these terms from premises liability in tort.
[8]
―It can be no
accident that the relevant, operative terms of the Governmental
Immunity Act—those addressed to the government‘s immunity as
[6]
See
B LACK ‘ S L AW D ICTIONARY 335 (9th ed. 2009) (noting that the
existence of a dangerous condition may ―result[] in [a] waiver of
sovereign immunity‖);
see also Davis v. Provo City Corp.
, 265 P.2d
415, 419 (Utah 1953) (Crockett, J., concurring) (―Respected authori-
ties have recognized that where a static condition of extreme dan-
ger is knowingly permitted to persist, that the city may be held
liable [even if the city is engaged in a governmental function].‖).
See also Glaittli
,
a word or phrase is ‗transplanted from another legal source,
whether the common law or other legislation, it brings the old soil
with it.‘‖ (quoting Felix Frankfurter,
Some Reflections on the Reading
of Statutes
, 47 C OLUM L. R EV . 527, 537 (1947));
Hansen v. Hansen
,
B regards its role as possessor of land or other property—coincide with the key terms that have long been used to define the scope of premises liability in tort.‖ Glaittli v. State , 2014 UT 30, ¶ 30, 332 P.3d 953 (Lee, J., concurring in the judgment). Thus, we read the statute‘s waiver of immunity for ―defective, unsafe, or dangerous condition[s]‖ of highways and culverts ―as a transplant from premises liability in tort law.‖ Id . ¶ 31. And we therefore ―inter- pret that term in a manner incorporating the ‗old soil‘ that it has long carried at common law.‖ Id . Under this term-of-art understanding, a dangerous condi-
tion is ―[a] property defect creating a substantial risk of injury
when the property is used in a reasonably foreseeable manner.‖
LACK ‘ S L AW D ICTIONARY 335 (9th ed. 2009). In other words, the
statutory waiver for ―defective, unsafe, or dangerous condi-
tion[s]‖ applies to injuries caused by a ―defect[] or dangerous
condition[] which [the government defendant] created, or of
which [it] was aware, and which [it] should reasonably foresee
would expose others to an unreasonable risk of harm.‖
Stephenson
v. Warner
,
B. Management of Flood Waters The statutory waiver of immunity for defective or danger-
ous conditions of highways and culverts is subject to exceptions.
One exception relevant here is as to injuries resulting from the
―management of flood waters.‖ U TAH ODE § 63G-7-301(5)(p).
UDOT seeks refuge in this provision. It advocates a broad under-
Accord Akins v. Cnty. of Sonoma
,
standing of ―management of flood waters‖ that would encompass the broad range of conduct by UDOT that forms the basis of plain- tiffs‘ allegations of negligence.
¶19 Plaintiffs offer a more limited view of this provision. They would have us limit the concept of ―flood waters‖ to ―major events that rarely occur‖—a standard that in their view was not satisfied here because the rain storm in question was not so rare. Alternatively, plaintiffs insist that in any event UDOT did not en- gage in any effective ―management‖ given that its efforts were minimal and unsuccessful. We adopt a middle position. We read the statutory refer-
ence to ―flood waters‖ to embrace a term-of-art understanding from tort law—an understanding that forecloses plaintiffs‘ princi- ple limiting this provision to ―major‖ or ―rare‖ events. And we interpret ―management‖ in a manner that is inconsistent with plaintiffs‘ theory requiring successful management.
1. Flood waters ―Flood waters‖ is not a statutorily defined term. As with
the phrase ―dangerous condition,‖ however, the term ―flood wa- ters‖ is a legal term of art incorporated from tort law and other fields. In trespass liability in tort, ―flood waters‖ is an established
term of art. It is best understood in relation to other, related terms—―watercourse‖ and ―standing water.‖ As the Restatement (Second) of Torts commentary indicates:
[I]n times of flood a stream may be swollen far be- yond its normal size. The additional volume of wa- ter is called flood water. As long as this flood water remains a part of the stream and continues to flow with it either in the main channel or in a separate flood channel . . . , it is part of the watercourse. But when flood water departs from the flowing stream and ceases to flow as part of the stream or becomes stagnant, it is no longer part of the watercourse. *10 B R ESTATEMENT (S ECOND ) OF T ORTS § 841 cmt.k (1965). [10] Thus, ―flood water‖ is water that flows beyond a regular watercourse. And a ―watercourse,‖ in turn, is ―a stream of water . . . flowing constantly or recurrently on the surface of the earth in a reasona- bly definite natural channel.‖ Id. § 841(1); see also LACK ‘ S L AW D ICTIONARY , supra at (defining ―watercourse‖ as ―[a] body of water, usu. of natural origin, flowing in a reasonably definite channel with bed and banks‖). A ―watercourse‖ includes the channel or bed itself and
does not require that the bed carry running water year-round. So a watercourse may be dry ―in time[s] of drought‖ and running with water at other times of the year. R ESTATEMENT (S ECOND ) OF T ORTS § 841 cmts. a, c. ―Surface water‖ on the other hand, is ―wa- ter from rain, melting snow, springs or seepage, or detached from subsiding floods, that lies or flows on the surface of the earth but does not form a part of a watercourse . . . . ‖ Id. § 846. In accordance with these principles, rain water falling and
accumulating outside of a ―watercourse‖—even in significant quantities—is not ―flood water‖ but ―surface water.‖ See, e.g. , S. Pac. Co. v. Proebstel , 150 P.2d 81, 83 (Ariz. 1944); Horton v. Goode- nough , 194 P. 34, 37 (Cal. 1920). Thus, it is only after that water joins a watercourse (whether the watercourse is natural or artifi- cial) and then spills out over its banks (whether the cause is natu- This is not to say that all abnormal volumes of water within a watercourse are ―flood water.‖ The Restatement goes on to note that ―[s]ome streams have overflow or flood channels that carry the excess water of the stream during high water or flood peri- ods.‖ R ESTATEMENT (S ECOND ) OF T ORTS § 841 cmt.f. So long as the- se channels are ―reasonably defined,‖ ―they are part of the water- course.‖ Id. And additional volumes of water in those channels are not ―flood waters.‖ Id. ; see also Fitzpatrick v. Okanogan Cnty. , 238 P.3d 1129, 1134 (Wash. 2010) (en banc) (noting that water within the ―flood channel‖ of a stream is still a part of ―[a] natural watercourse,‖ and is not ―flood water‖ or ―surface water‖ for purposes of the common enemy doctrine (internal quotation marks omitted)); Mogle v. Moore , 104 P.2d 785, 789 (Cal. 1940) (―The term ‗flood waters‘ is used to indicate waters which escape from a water course . . . and flow over adjoining lands in no regular channel . . . .‖ (emphasis added)).
ral or artificial) that it becomes ―flood water.‖
See, e.g.
,
Maricopa
Cnty. Mun. Water Conservation Dist. No. 1 v. Warford
,
depend, as plaintiffs suggest, on the rarity of the rainstorm that
produced it. We don‘t doubt, as plaintiffs note, that the highly
unusual flooding that occurred in downtown Salt Lake City in
1983 animated the legislature‘s attention to this matter. But, as we
have stated before, it is ―an erroneous premise‖ to assume that
―statutory provisions are addressed only to the specific problems
giving rise to their adoption.‖
Graves v. Ne. Servs., Inc.
,
2. Management As with ―flood waters,‖ the term ―management‖ is not de-
fined in the Governmental Immunity Act. And the parties again offer competing definitions of the term. UDOT advances a broad definition—encompassing any management-level decision, in- cluding a decision to leave flood water as is (i.e., omissions). Plaintiffs, on the other hand, contend for a narrower construction. They insist that management encompasses only active —and suc- cessful —attempts to direct flood water. We reject plaintiff‘s argu- ment as untenable and adopt UDOT‘s position in part. The term management ―is not expressly defined in the Act,
and does not appear to be a technical term of art.‖
Hi-Country
Prop. Rights Grp. v. Emmer
,
―manage‖ leave room for elements of the meanings advanced by both parties. As UDOT indicates, sometimes ―management‖ is simply ―the act or art of managing,‖ as in ―the conducting or su- pervising of something,‖ especially ―the executive function of planning, organizing, coordinating, directing, controlling, and su- pervising.‖ W EBSTER ‘ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1372 (2002). [11] Yet the plaintiffs‘ notion of ―management‖ also finds tenable support in the dictionary. An alternative notion of ―man- age‖ is ―to control and direct.‖ Id . And sometimes ―manage‖ even conveys success —as in the notion of ―manage‖ as ―[t]o succeed in accomplishing, achieving, or producing.‖ A MERICAN H ERITAGE See also A MERICAN H ERITAGE D ICTIONARY OF THE E NGLISH L ANGUAGE 1064–65 (5th ed. 2011) (―management‖: ―[t]he act, manner, or practice of managing; handling, supervision, or con- trol‖; ―manage‖: ―[t]o have charge of; direct or administer‖); R ANDOM H OUSE D ICTIONARY OF THE E NGLISH L ANGUAGE 1166 (2d ed. 1987) (―management‖: ―the act or manner of managing; han- dling, direction, or control‖; ―manage‖: ―to take charge or care of‖); A MERICAN H ERITAGE D ICTIONARY OF THE E NGLISH L ANGUAGE (2d ed. 1981) (―management‖: ―[t]he act, manner, or practice of managing, handling, or controlling something‖; ―manage‖: ―to direct or administer‖).
D ICTIONARY OF THE E NGLISH L ANGUAGE 1065 (5th ed. 2011). [12] But see W EBSTER ‘ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1372 (defin- ing ―manage‖ as to ―handle either well or ill‖). Thus, the dictionary itself cannot resolve the contest of
meanings of management put forward by the parties. But the struc- ture and context of the Governmental Immunity Act serve to do so. In context, it makes no sense to read ―manage‖ to be limited to the notion of successfully accomplishing or achieving something. A provision preserving the government‘s immunity from liability for injuries caused by the ―management‖ of ―flood waters‖ necessari- ly presumes that such management may not be successful. Oth- erwise there would be no need for immunity from suit. For that reason we cannot agree with plaintiffs that ―making a futile effort that is doomed to failure . . . does not qualify as management.‖ We likewise conclude that ―management‖ cannot be lim- ited to the physical function of actively ―control[ling] and di- rect[ing]‖ the flood waters themselves. W EBSTER ‘ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1372. That notion of management makes no sense in the context of a provision preserving immunity for injuries arising out of ―the management of flood waters, earth- quakes, or natural disasters .‖ U TAH ODE § 63G-7-301(5)(p) (empha- sis added). One cannot control or direct an earthquake or a torna- do. The only way that government can manage those phenomena is in the broad sense advanced by UDOT—by ―conducting or su- pervising‖ the government‘s efforts to deal with them, by ―plan- ning, organizing, coordinating, and supervising.‖ W EBSTER ‘ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1372. So that sense of management must suffice to trigger the flood waters immunity, since under the canon of consistent usage [13] ―management‖ cannot [12] See also A MERICAN H ERITAGE D ICTIONARY OF THE E NGLISH L ANGUAGE 1065 (5th ed.) (providing one definition of ―manage- ment‖ as ―[s]kill in managing; executive ability‖); R ANDOM H OUSE D ICTIONARY OF THE E NGLISH L ANGUAGE 1166 (same). : AW L EADING R , ARNER T G RYAN & CALIA S NTONIN A A. HE
I NTERPRETATION OF L EGAL T EXTS (2012) (describing this canon and explaining that ―the more connection [one use of a word in a statute] has with the [use of the word] under consideration, the properly mean one thing as applied to two of the objects in a se- ries (earthquakes and natural disasters) but something else as ap- plied to the other object in the same series (flood waters). [14] Thus, we interpret the statute‘s immunity for injuries aris- ing out of the ―management‖ of flood waters to refer to executive efforts at planning, organizing, coordinating, or supervising the government‘s response to such waters. Such efforts could certain- ly encompass a studied decision to do nothing. On that basis we reject the plaintiffs‘ assertion that ―omissions‖ could not count as ―management.‖ Yet we also stop short of a whole-hearted endorsement of
UDOT‘s (and the district court‘s) position—that any and all ―inac- tion‖ counts as ―management.‖ Certainly there are some decisions not to act (like a decision to allocate flood mitigation resources to one affected area and not another) that easily qualify as managerial omissions. But if government literally does nothing—making no studied assessment of flood waters and rendering no decision as to how to deal with the problem—then there would appear to be no management at all, and thus no sense in which an injury could arise out of such management. [15]
C. Operation of a Flood or Storm System A second basis for immunity under the Act is for injuries
arising out of ―the construction, repair, or operation of flood or storm systems.‖ U TAH OD e § 63G-7-301(5)(q). UDOT contends that the culvert in question is a ―storm system.‖ Its principal ar- more plausible the argument becomes‖ that they share the same meaning). This is not to say that active efforts at directing or controlling
flood waters would not qualify as ―management.‖ Such efforts would undoubtedly count as one of the more common ways for the government to deal with flood waters, and would thus qualify for immunity. But the statute renders plaintiffs‘ limited view of ―management‖ untenable. That term cannot be limited to active attempts to direct or control for reasons noted above. See, e.g. , A MERICAN H ERITAGE D ICTIONARY OF THE E NGLISH
L ANGUAGE 1064–65 (5th ed.) (―management‖: ―[t]he act , manner , or practice of managing; handling , supervision , or control ‖ (emphasis added)).
gument for that conclusion is the notion that it groups the culvert in question together with other culverts in the same general area for certain reporting purposes. The district court agreed. It con- cluded that the culvert in question was part of a ―storm system‖ in the sense of ―an organized or established procedure or method or the set of materials or appliances used to carry it out.‖ W EBSTER ‘ S T HIRD N EW I NTERNATIONAL D ICTIONARY 2322; see also id . (―an aggregation . . . of objects joined in regular interaction or in- terdependence‖).
¶35 We disagree. UDOT has not asserted that the culvert is a storm system; at most it has suggested that it is part of one. That cannot be enough to sustain the applicability of the statutory ex- ception. If that were sufficient, the ―storm system[]‖ exception would swallow the ―culvert‖ rule. In a statute that waives im- munity for injuries caused by a defective ―culvert‖ but reinstates immunity for injuries arising out of the operation of ―storm sys- tems,‖ a culvert cannot logically be equated with a storm system .
D. Proximate Cause The Immunity Act‘s waivers extend to injuries ―proximate-
ly caused‖ by a governmental entity‘s negligence, U TAH ODE § 63G-7-301(4), or ―caused by‖ a ―defective, unsafe, or dangerous condition‖ of a ―culvert,‖ id . § 63G-7-301(3)(a)(i). In the exception provisions, however, immunity is reinstated for injuries that ―arise[] out of, in connection with, or result[] from‖ a latent defec- tive condition of a culvert, id. § 63G-7-301(b)(i); from the ―man- agement of flood waters,‖ id . § 63G-7-301(5)(p); or from the ―con- struction, repair, or operation of flood or storm systems,‖ id. § 63G-7-301(5)(q). The parties offer competing constructions of these causa-
tion standards. In UDOT‘s view, immunity attaches if there is any causal connection between the management of flood waters or the operation of a storm system and the plaintiffs‘ injuries. The plain- tiffs disagree. They insist that ―UDOT should not be immune from any damages . . . for time immemorial,‖ and that there must be some ―sufficient causal nexus‖—based on the ―actions taken,‖ the time between the government action and the injury, and ―the de- gree of risk at issue.‖ We concede that UDOT‘s approach finds support in our
precedents. But we reject it on the ground that it yields an expan- sive notion of the Immunity Act‘s exceptions that effectively swal- lows the antecedent waivers. With that in mind, and in an attempt to reconcile the results of our prior decisions (if not the analysis of our prior opinions) with the operative terms of the statute, we re- pudiate the language of some of our prior opinions and adopt a new standard. Under the new standard (explained further below), we hold that an immunity-invoking condition (such as the man- agement of flood waters or operation of a storm system) must be a proximate cause of the plaintiff‘s injuries in order to sustain the re- instatement of immunity. In a number of prior opinions, we have concluded that a
but-for causal connection is sufficient to trigger a statutory rein-
statement of immunity under an exception provision of the Act.
See Hoyer v. State
,
sions is not obviously ―materially different‖ from the proximate
cause standard in the waiver provision. Sometimes ―results from‖
is understood to convey the principle of proximate cause. For
years this court and others interpreted the Federal Employers‘ Li-
ability Act—which recognizes a tort cause of action for federal
railroad employees for ―injury or death resulting‖ from a rail-
road‘s negligence—to require proof of proximate cause.
Raab v.
Utah Ry. Co.
, 2009 UT 61, ¶¶ 12, 41–42, 221 P.3d 219. And alt-
hough the U.S. Supreme Court reached a different conclusion in
CSX Transp., Inc. v. McBride
,
―contextual‖ indications that the ―results from‖ terminology of
the exception provisions is in line with the ―proximately caused‖
standard in the waiver provision. Most important is the fact that a
―but-for‖ reading of ―arises out of‖ would allow the statutory ex-
ceptions to nullify the immunity waivers in a number of common
circumstances. It is easy to imagine circumstances in which the
See CSX Transp., Inc. v. McBride
,
government‘s waiver of immunity for negligence would be com- pletely erased by a but-for connection to wide-ranging activity covered by an exception—like the performance of a ―discretionary function,‖ U TAH ODE § 63G-7-301(5)(a), ―the collection of and as- sessment of taxes‖, id . § 63G-7-301(5)(h), or the ―issuance, denial, suspension, or revocation of, or by the failure or refusal to issue, deny, suspend, or revoke, any permit, license, certificate, approv- al, order, or similar authorization,‖ id . § 63G-7-301(5)(c). If a but-for connection to these activities were enough to override the government‘s waiver of immunity for negligence, the statutory waiver would be overridden in a wide range of cases. That makes little sense in the context of a statute aimed at waiving governmental immunity for negligence and other governmental activity specified in the waiver provisions. The problem with the but-for standard is evident in the context of this case. Any case of a defective culvert would also (quite inevitably) encompass a but- for connection to discretionary functions, to taxes, and to permits or licenses. Yet if such a but-for connection were sufficient to rein- state immunity, the waiver for defective culverts would be nulli- fied. We reject the but-for standard on that basis. If we are to give effect to both sets of provisions (as we
must), we cannot properly reinstate immunity on a mere showing
of ―some causal relationship,‖
e.g.
,
Taylor
,
and exceptions). We therefore hold that the exception provisions (reinstating immunity) are properly invoked only where a plain- tiff‘s injury is proximately caused by immune conduct. In so holding, we need not and do not overrule the results
of our prior decisions, as most of them can be recast in terms con- sistent with the standard we adopt today. As noted above, three of our prior cases adopt the but-for standard— Taylor , Blackner , and Hoyer . All three cases arguably would have come out the same way under the proximate cause standard. Taylor arose out of a fight between students in a middle
school restroom. Id. One of the students pushed the plaintiff, whose hand then went through a glass window. Id. The student, through his parents, sued the school district, claiming negligence in not having installed safety-glass in the bathroom. Id. And the district then invoked immunity under an exception for injuries arising ―out of assault.‖ Id. at 160. Adopting and applying a but- for test, we held that ―the nerve and tendon damage to [the plain- tiff‘s] hand was the result of [the plaintiff‘s] being shoved into the window by a fellow student.‖ Id. at 163. In Taylor , however, it was beyond question that the student pushing the plaintiff into the window was also a proximate cause of the injury. So the invocation of the but-for test was immaterial. The case would have come out the same way under the standard we adopt today. In Blackner the plaintiff was stopped on a canyon road wait-
ing for a UDOT front-end loader to clear snow from an avalanche
that had occurred earlier that morning.
standard, but even that case may arguably have come out the same way. In Hoyer the plaintiff sued the Department of Wildlife Resources for negligently failing to care for snakes it had seized from the plaintiff during the execution of a search warrant. 2009 UT 38, ¶¶ 2–3. The plaintiff offered to have an expert come in and care for the snakes while DWR held them, but DWR refused. Id. ¶ 3. All but eight of the snakes died as a result. Id. DWR claimed immunity under the ―judicial or administrative proceeding‖ ex- ception under the Act. Id. ¶ 24. We held that DWR was immune because ―the snakes would not have died‖ ―[b]ut for these judicial proceedings.‖ Id. ¶ 32. Yet again this same result arguably could still have obtained under a proximate cause inquiry—if, for ex- ample, it could be shown that the seizure of a fickle breed of boa constrictors to instigate a criminal proceeding heightened the scope of the risk of the snakes dying, making such a result fore- seeable under the circumstances. [20]
[18]
See Fluehr v. City of Cape May
,
(explaining that ―proximate cause‖ requires an inquiry into
―whether the precise causal mechanism of a plaintiff‘s injuries
was a foreseeable result of‖ the defendant‘s allegedly tortious ac-
tions);
Chylinski v. Wal-Mart Stores, Inc.
,
¶49 The point is not to say that all of our prior cases are con- sistent with the new standard we adopt today. We adopt this standard because we deem it required by the structure and text of the Immunity Act. And we repudiate our prior decisions to the extent they are irreconcilable with our new standard.
III The above legal background sets the stage for our analysis
of the motion for summary judgment before us on appeal. In as- sessing UDOT‘s motion, we consider whether UDOT has estab- lished that ―there is no genuine issue as to any material fact‖ and that it is ―entitled to a judgment as a matter of law.‖ U TAH R. IV P. 56(c). We conclude that UDOT has failed to carry that burden under the legal standards set forth above, and accordingly re- verse. As an initial matter, it seems apparent that plaintiffs have
properly invoked the waiver of immunity for injuries caused by a defective culvert. The culvert contained a ―defect‖ (the blockage) that created a ―substantial risk of injury‖ (hydraulic piping and the eventual chasm). And the plaintiffs‘ injuries are (at least argu- ably) proximately connected to the defect in the culvert—in that the blockage heightened the scope of the risk in a manner leading to injuries that were easily foreseeable. It seems equally as clear that at least some of the water in-
volved in this incident was ―flood water.‖ During the downpour, water began running in a watercourse—the gully and culvert. As a result of a defect in the culvert, the water backed up on the north side of SR-35, swelling beyond its bounds and flowing out ―in no regular channel‖ over the surface of SR-35. Whether the water that remained pooled on the north side of the road was ―flood water‖ remains to be seen, as neither of the parties presented any evi- dence on whether that water had gone beyond the bounds of the gully other than having spilled over the road at some point before receding. Ultimately, however, at least some of the water involved in this incident—the amount that went over the road—was ―flood water‖ within the meaning of the Act.
whether the harm caused is within the foreseeable scope of the risk created by the defendant's conduct.‖). That said, UDOT has not established that the government
activity forming the basis of the plaintiffs‘ claims amounted to ―management‖ of any such flood waters. The claim on review on summary judgment is rooted in the allegation that the ―legal and proximate cause‖ of plaintiffs‘ injuries was UDOT‘s negligence in its ―fail[ure] to eliminate the blockage‖ in the culvert, its failure to ―disburse the water‖ that had collected in the gully, and its failure ―to warn of or protect travelers from the dangerous conditions on SR-35.‖ Those allegations are focused on UDOT‘s actions in deal- ing with the culvert and with the water pooled next to the em- bankment (water that has not been shown to be ―flood water‖). Plaintiffs‘ evidence on summary judgment was along the same lines. In the briefing on summary judgment in the district court, plaintiffs presented evidence focused on UDOT‘s alleged negligence in its attempts to unclog the culvert. In their statement of undisputed facts (which were eventually agreed to by UDOT for purposes of summary judgment), plaintiffs pointed to UDOT‘s knowledge of the dangers of pooled water next to an embank- ment, its failure to inspect the south side of the gully to see if the water was leaching through the embankment or flowing from the culvert, its failure to leave warning signs, and its minimal efforts in trying to unblock the culvert. And although plaintiffs refer- enced the water that spilled over SR-35, at no time did they allege or was any evidence put forward to show that their injuries were causally related to UDOT‘s management of that water. The only water UDOT was alleged to have managed in a manner causing injuries to plaintiffs was water that apparently was still inside a watercourse (the water pooled on the north side of the road in the gully). UDOT‘s argument on appeal accepts this premise, at least
in part. In its briefing to this court, UDOT asserts that ―the culvert became blocked; the water in the adjacent wash escaped from the The parties did not develop a factual record as to the character of the pooled water or the natural bounds of the gully on the north side of the road. We assume at this point that it was simply water still inside the watercourse (the gully). We do not foreclose the possibility that this water was ―flood water,‖ though we do not endorse that view either. We reserve the matter for further in- quiry on remand.
wash and flowed over normally dry round; and UDOT made an effort to eliminate the blockage.‖ ―Those facts,‖ UDOT concludes, ―establish that UDOT managed the flood water.‖ (Emphasis add- ed). But that argument only serves to emphasize the nature of the plaintiffs‘ claims as set forth above. UDOT‘s ―effort to eliminate the blockage‖ was an attempt to remedy a defect in a culvert, not to manage flood waters. See supra ¶ 25. UDOT has accordingly failed to establish that there are no genuine issues of fact and that it is entitled to judgment as a matter of law. UDOT also failed to establish a right to judgment as a mat-
ter of law under the ―storm system‖ exception. This argument fails as a matter of law. For reasons noted above, a single culvert might qualify as a component part of a ―storm system,‖ but it is not a storm system in itself. So the plaintiffs‘ injuries cannot be shown to be proximately connected to the operation of such a sys- tem, as the only allegation here is in connection with UDOT‘s ef- forts in connection with this culvert.
IV For the above reasons we hold that UDOT failed to carry its
burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. In re- versing the entry of summary judgment, however, we do not deem UDOT categorically ineligible for immunity. We simply hold that it has failed to carry its burden on the record before us. In remanding, we leave open the possibility that UDOT may yet advance evidence that plaintiffs‘ injuries were proximately caused by its ―management‖ of ―flood waters‖ as those terms are defined above. To the extent it can do so, moreover, we note that it may ultimately qualify for immunity to the extent the plaintiffs‘ injuries are proximately connected to that activity.
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