Bott v. DeLand

Roger BOTT, Appellant, Plaintiff, Cross-Appellee,

Gary DeLAND, Freestone, W. Blen Dean

Laney, Powell, and Robert F. Defen

dants, Appellees, Cross-Appellants.

No. 930387.

Supreme Court of Utah.

July Anderson,

Ross C. Dougherty, Steven W. City, Salt plaintiff. Lake Graham, Gen., Jan Atty. King, Elizabeth Clawson, Attys. Gen., Carol Asst. Salt Lake City, for defendants.

HOWE, Justice: Roger Plaintiff appeals Bott from the dis- trict court’s that the Utah Govern- Act, Immunity mental § Utah Code Ann. 63- 30-34(l)(a) (b), $250,000 & limits to his re- covery personal injury damages against Department defendants of Corrections Exec- Gary DeLand, utive Director Utah State Prison Medical Administrator Bien Free- stone, Laney, and Dean practitioner a nurse prison. at the cross-appeal Defendants from judgments against Laney negligence against DeLand, Freestone, Laney their violation of article section 9 of the Utah Constitution.

Bott became an inmate at the Utah State Prison on October 1987. After almost two years incarceration, began he experiencing blurred vision in right eye. his reported He this condition to a technician, medical and the technician Laney informed of Bott’s complaint. days later, A few Laney exam- eyes, ined Bott’s determined that his condi- serious, tion was not placed him on a waiting list to optometrist. see an During weeks, the next four the vision in both of his eyes steadily worsened until he lost all of the right eye vision his and most of the vision employees under the increasing- government er from in his left. He also suffered headaches, nausea, dizziness, Immunity Act. Utah Code ly severe Governmental 63-30-84(l)(a) (b). although body § Bott he aches. asserts & Ann. symptoms to complained repeatedly of these appeals, making several constitution- Laney, they the medical technicians and to statutory arguments against ap- al and adequately examine him or inform did not statutory plication cap damages. on of his condition. In accordance physician addressing arguments, howev- Before griev- prison procedure, he submitted a

with er, by de- we will examine the issues raised concerning lack attention ance his of medical cross-appeal. Their first fendants their appropriate officer. Two to the correctional governmental statutory is that contention later, inmate, help of weeks with the another applies to them from Bott’s immunity shield grievance, complaining that he filed another actions. negligence and state constitutional any atten- still had not received medical he I, argument is that article sec- Their second However, nearly tion. another two weeks the constitution cannot be tion 9 of the state optom- an passed before he was examined damages. monetary of basis of an award optometrist signs of The observed etrist. separately. each of these issues We examine in him hemorrhaging Bott’s retina and sent University directly to of Medical the Utah I. STATUTORY GOVERNMENTAL Center, diagnosed malig- he where was with NEGLIGENCE IMMUNITY FOR failure. hypertension nant and severe renal trial, By dependent he the time of the was that under Defendants contend subsections week, hemodialysis each upon three times (4) 63-30-4(3) Im- and Governmental greatly expectancy allegedly life had and his Act, munity they personally cannot be liable diminished. negli- damages under either the to Bott for against defen- initiated two actions Bott gence the constitutional theo- theory or Laney against The dants. first was action ry they acted with fraud or malice. unless him, notify failing to negligently examine City Corp., 740 See Maddocks v. Salt Lake condition, him of his and treat physicians (Utah 1987); Lancaster hypertension malignant prior to the onset Prison, Utah State The was an failure. second and severe renal 1987). rejected argu- that The below court Freestone, DeLand, Laney, action 63-30^4(3) ment, ruling and that subsections Powell, part of this and Robert F. who (4) open courts clause of violated the dam- appeal. alleged That action claim for Const, I, Constitution, § 11. art. Utah Utah clause, “unnecessary rigor” ages under initially dispose of conten Bott’s We Constitution, I, Utah article section 9 preserve the did not tion that defendants § for the under 42 U.S.C. violation and immunity appeal. governmental issue cruel and to be free from of Bott’s out, re point Laney’s first defendants As Eighth punishments under unusual negligence to move sponse to the action was of the United States Constitu- Amendment governmental for dismissal on the basis The district court consolidated tion. this motion immunity. The trial court denied jury trial. The two actions and conducted 63-30-4(3) and when it ruled that subsections causing Laney negligent, jury that was found Meanwhile, (4) in the were unconstitutional. $490,000 damages. The to suffer fed damages under the state and action for DeLand, Laney, jury found that also Freestone, constitutions, DeLand, eral rights article Bott’s under Freestone violated immunity in Laney and, pleaded the defense I, 9 of the Utah Constitution section Af complaint. the amended $490,000 damages.1 their answer to result, Bott suffered claims, held consolidated the ter the court court rendering judgment, its the trial In verdict, trial, $250,000, jury’s defen and received the recovery limited Bott’s total governmental again the issue may recov- dants raised plaintiff that a maximum amount recovery, stipulated to avoid double 1. Bott that $490,000. judgment one he was entitled Therefore,

immunity support their memorandum in in that case. the trial reverse judgment notwithstanding favor verdict. court’s of Bott on issue Laney’s again apply governmental negligence. court refused to Thus, defendants, immunity. appeal who B. The State Constitutional Claim orders, properly

from preserved all of these governmental ap- immunity the issue of Next, govern we examine whether peal. DeLand, Freestone, immunity mental shields Laney action the “un Bott’s under Negligence A. The Claim necessary rigor” clause the Utah Constitu arguing governmental In that im tion, I, negli article section As with the munity Laney negli does not claim, shield from the gence Bott asserts that subsections action, gence 63-30-4(3) (4) Bott asserts that this court should not be be ruling should affirm the trial court’s doing open cause so would violate the courts 63-30-4(8) (4) subsections are unconsti agree We clause. these subsections they open tutional because courts violate applied, should be but we not base our do clause, process article section due open conclusion courts clause. clause, article and the uniform Quite simply, apply we decline to these sub operation clause, of laws sections because constitute an unreason already of the Utah Constitution. We have regulation I, able Bott’s section article 9 arguments addressed in Ross v. to right “unnecessary be free of rigor.” (Utah Schackel, 1996), 920 P.2d 1159 also “[A]ny regulation regard rule or in today, issued and have determined that these not, remedy pretense the which does under subsections are constitutional as modifying it, regulating away or take or prisoners’ negligence against prison actions itself, impair right regarded the cannot be physicians. against Laney Bott’s claim dif beyond proper province 2 legislation.” plaintiffs fers from the in in claim Ross Cooley, M. Thomas Limita Constitutional Laney practitioner, that is a nurse not a (1927). However, legislature’s 756 tions physician. Although prison physicians argu or “fraud malice” standard contained sub ably enjoy higher prison status within the (4) 63-30-4(3) impairs sections employment system practitioners, than nurse rights 9 section because does bar claims we conclude that this difference does be would otherwise allowed under the prevent applying us from the constitutional subsequently standards that we will discuss. analysis advanced in Ross. Moreover, governmental immunity cannot Ross, In we held that subsections 63-30- apply alleges where a claimant that the state 4(3) (4) open do not violate the courts employee or a state violated his constitution abrogate clause because did not a reme- Bd., al Colman v. Utah Land State dy prisoners at available common law. 622, 1990); 795 P.2d 630-35 Wickham Laney’s distinguishing We find no basis for Fisher, 896, (Utah 1981); 629 P.2d position position physi- from the State, 406, Mich.App. Burdette 166 421 Ross, cian in and thus we conclude that Bott 185, (1988); State, N.W.2d 186 Terranova negligence could not have maintained a ac- 1089, 965, 111 Misc.2d 445 N.Y.S.2d 969 against Laney tion at common law and that (“However (1982) police power] state’s [the 63-30-4(3) (4) subsections are constitu- reasonably must be exercised ... and with open tional under the courts clause. scrupulous regard constitutionally guar analysis rights.”). State, Figueroa Our of these subsections in Ross see anteed But process 1198, (1979); operation under the due and uniform 61 Haw. 604 P.2d 1205 (Okla. State, applies case. laws clauses also this Medina v. 1386 1993). Laney’s practitioner position Michigan appeals as a nurse does As the court of or explained: rights alter either the standards of review “Constitutional serve re statutory objectives government rights which we based strict conduct. These Ross, analysis our pres- purpose does not never would serve this if any arguments governmental ent immunity that we did not consider could use to avoid Burdette, implementing legis- may be enforced without restrictions.” constitutional provision A is self-exe- apply lation. constitutional decline to at 187. N.W.2d give a rule cuting if it articulates sufficient of subsections malice” standard the “fraud or (4) underlying rights and duties 63-30-4(3) to the section effect Bott’s article Burke, Davis v. by the framers. intended claim. 210, 211-12, 399, 403, S.Ct. U.S. (1900). words, In other courts L.Ed. 249 THE DAMAGES FOR II. MONETARY provision imple- without give effect to a OF THE UNNECES- VIOLATION if framers intended menting legislation THE OF RIGOR CLAUSE SARY if provision to immediate effect and have CONSTITUTION UTAH necessary legislation is to the ancillary “no that article Defendants next contend enjoyment right given, or the enforce- recovery for a 9 cannot be the basis duty re imposed.” In Montello ment of damages against them. Article Co., 288-89, 53 P.2d Salt 88 Utah provides: (1936). addition, fact that In required; ex- not be Excessive bail shall legisla- supplementary legislature enact imposed; nor fines not be cessive shall protect regulate a tion to farther punishments be cruel and unusual shall prevent the provision does not constitutional imprisoned inflicted. Persons arrested being self-executing. People provision from unnecessary rig- shall not be treated with Lines, 42 Cal.2d Air v. Western or. (1954), appeal by Western dismissed Lines, People Inc. v. State Air recognized guarantee It has been of Califor- nia, 99 L.Ed. 677 75 S.Ct. 348 U.S. punishment unusual focus- against cruel and Moore, (1954); Corp. v. Agriculture General or conditions on the methods specifically es Mont. guarantee punishment, while the Conversely, provisions are not constitutional unnecessarily extends rigorous treatment merely gen- if indicate a self-executing pro- prisoners and arrestees and both to policy supply- of principle or line without eral unnecessary abuse. Ster- tects them putting them into effect. ing the means for 123, 611, P.2d 129- ling Cupp, 290 Or. 625 v. Salt, 729. re 53 P.2d at In Montello (1981). Wickham, generally See 30 51, State, 901; Ind. 178 Bonahoon v. 203 at self-executing is9 a Article section (1931). However, 570, court this N.E. 571 provision This does more than provision. the full occasion examine has seldom found specific prohibits it general principles; state of the issue import guarantees, of and may and remedied with evils that be defined claimant dam- a a whether court can award Indeed, legislation. this implementing out guarantees is violation of these ages for the this already defined and enforced court has impression. first one of See, legislation. of the aid provision without Also, Wickham, at e.g., P.2d may provide 629 9 Article indicates history provision damages if is a of self- for an award basis have im likely it to traditionally most intended al framers executing provision—which legisla implementing without injunctions mediate effect and invali to award lows courts similar the basis of It was drafted on if tion. conflicting it furnishes statutes —and date punish cruel and unusual money and federal authority for remedies sufficient English Bill from the that arose developed ment clauses the con have damages. Courts 1689,2 actively imme which and Rights of a as means of deter cept of self-execution proscribed tortures and other barbar- diately provision a mining whether constitutional Standards, Rights 1992 Utah L.Rev. philosophical under- Prisoners' scholars trace the 2. Some James)). 565, (King punishment (quoting claus- Exodus 21:24 pinnings unusual 567 of cruel and Testament, punish- which described fixed concept proportionality the Old es to This concept of embodying the writings law as appeared Judeo-Christian of Aristotle also ment ” " B. eye, Arthur ‘[e]ye Germanic, tooth for tooth.’ and Norse law. Anglo-Saxon, Unsatisfying Attempt An Berger, v. Seiter: Wilson Id. at 567. Imbroglio Eighth Resolving Amendment at 738 practices ruling

ie and was enforced without further that the Carlson does “constitu- parliament. Georgia, Gregg Rather, definition v. prisoners’ tionalize” tort actions. 153, 169-70, 2909, 2923-24, 428 96 U.S. S.Ct. prisoner damages recover for inade (1976) (citing Anthony 49 L.Ed.2d 859 F. quate upon showing medical care Granucci, “Nor Cruel and Unusual Punish- indifference,” “deliberate as defined Original Meaning, ments 57 The Estelle, Supreme United States Court in 429 Inflicted:” (1969)). L.Rev. Cal. Like the 103-06, Carlson, at U.S. 97 S.Ct. at 290-92. courts, English American state and federal 1470-71; at Shapley 446 U.S. 100 S.Ct. at interpreted courts have cruel Comm’rs, v. Nevada Bd. State 766 Prison punishment unusual clauses without aid (9th Cir.1985); Mosby F.2d 406 v. Ma See, Gamble, legislation. e.g., Estelle (8th Cir.1982); bry, F.2d v.West 97, 103-06, 285, 290-92, 429 U.S. 97 S.Ct. 50 Keve, (3d Cir.1978). 158, 161 571 F.2d (1976) (giving L.Ed.2d 251 effect to federal State courts have taken several different punishment cruel and unusual clause without interpreting approaches in state constitution- implementing legislation); City, Naked Inc. provisions. al entirely reject Some courts State, (Ind.Ct.App. 460 N.E.2d attempts to recover violation 1984) (giving effect to Indiana cruel Medina, of state constitutional punishment imple unusual clause without 1385; Figueroa, P.2d at 604 P.2d at 1205. Further, menting legislation). provision this Others have followed the United States Su- prohibitory provision, is a provi and such preme recovery Court and have un- allowed usually self-executing are at sions least to the punishment der state cruel and unusual incongruous leg extent that courts void clauses showing deliberate indiffer- Lines, 732; islation. Western Air 268 P.2d at City, ence. Naked at N.E.2d 160-61. Alper v. County, Clark 93 Nev. money Some courts have held that while (1977); State ex rel. Fox- Stafford damages are available for constitutional vio- 52, 132 Corp., Great Falls Theatre 114 Mont. lations, government employees are entitled (1942); Moser, P.2d Pederson good immunity faith challenged if their ac- Wash.2d any clearly tions were not in violation of Having determined that article established constitutional as articulated self-executing, we must now determine Department in case law. Moresi v. Wild self-executing provide whether ad- clauses Fisheries, (La. & 567 So.2d life equate recovery damages. basis 1990). Other courts allow claimants to col vary decisions of other courts on this issue damages government employees lect from widely. divided, While the states are showing intentional, reckless, Supreme United States has Court held that disregard misdoing. careless or fraud or self-executing provi- federal constitutional 390, Armstrong, Bull v. 254 Ala. 48 So.2d sions be the basis for an award 467, (1950); 470 Jackson v. Acci Hartford money damages. ruling In the landmark Co., 315, dent & Indem. 484 S.W.2d 319 Bivens Six Unknown Federal Narcotics (Mo.1972). 388, 407, 1999, Agents, 403 U.S. 91 S.Ct. 2010, (1971), 29 L.Ed.2d 619 al the Court The common feature of all of these damages lowed a claimant to recover from they is that simple negligence cases hold that directly agents narcotics federal under the justification damage is not sufficient Fourth Amendment for the violation of his Widgeon claim. But see v. Eastern Shore right against unreasonable searches and sei Ctr., 520, Hosp. 921, 300 Md. 479 A.2d 923 Later, Green, in zures. Carlson v. 446 U.S. (1984). 14, 17, 24, 1468, 1470-71, 1474, 100 64 S.Ct. (1980), examining After reasoning L.Ed.2d 15 the Court extended this ruling prisoner’s courts that have ruled on the allow deceased mother issue wheth damages self-executing provisions to recover er officials for allow awards violating Eighth money her damages, allowing son’s Amendment we find those eases punishments. persuasive. cruel and unusual In recogniz awards be more However, acknowledged ing money federal courts have a claim for damages under the

739 Klux Klan Amendment, Brennan, in the form of the ‘Klu Congress writ- Justice Fourth remedy provide tort-like Act’ of 1871 Supreme Court for the United States ing under the rights of a citizen’s the violation asserted: (citing Monroe United States Constitution” recognized Bill of must ... be that the [I]t 170-71, 473, Paye, 81 S.Ct. 365 U.S. to vindicate Rights particularly intended (1961), 475-76, on 5 492 overruled L.Ed.2d face of interests of the individual by Department grounds Monell other expressed legislative popular will as Servs., 56 436 U.S. 98 S.Ct. Social least, very me majorities; at it strikes (1978)). acknowledge that We L.Ed.2d 611 express appropriate to await as no more involving sexual or racial discrimina in cases congressional of traditional authorization institutions, private by businesses and tion regard legal judicial with to these relief courts, re court, along has this with other respect to interests interests than with liability impose the absence fused by protected ... statutes. implementing legislation. See Beehive Medical Bivens, 2010. 403 U.S. at 91 S.Ct. at Comm’n, El ecs. v. Industrial 583 rights history agree. The of individual We Francis, 1978); Armwood v. Utah Magna and other in the Charta as embodied (1959); 147, 150, lade 2d supports this view. documents fundamental Corp., Theatres 82 Utah Ysla v. Publix law, English had Under individuals access However, money for violations of remedies reject argument two reasons. defendants’ Moresi, at rights, 567 So.2d their individual First, by defendants did not the cases cited 1092; Widgeon, (citing En 479 A.2d at self-executing provi involve constitutional Carrington, How. Tr. 1029 St. tick Carlson, as article sions such Wood, (1765); Eng. Wilkes v. Lofft’s 1470-71, 1474; 17, 24, 100 at S.Ct. at U.S. (1763); Money, 2 Wils. Rep. Huckle v. 1094; Moresi, City, 460 So.2d at Naked (1763)), Rep. and these Eng. Second, employees can N.E.2d at 161. docu in fundamental rights, enumerated categorized purely private individu be ments, many the forerunners were capacity to unique have a als because provisions adopted in federal and state bills private do not have. harm individuals which Utah rights. framers of the by “injuries inflicted offi recognize that We Constitution, adopted who are substan acting under color of law cials likely background, most contem against this those inflicted tially in kind than different money damages for the plated an award of Moresi, parties.” at 1093. private 567 So.2d recognize also of these We violation apparently autho of officials are actions rights under article sec prisoners’ if law, acting “agent ... rized violated, injunctive relief tion 9 are greater possesses a far of the state the name injuries. remedy adequate prisoners’ be individual tres capacity for harm than an monetary prisoners deny such cannot We exercising authority other than his passer no many jurisdictions have simply because relief particularly true in the This is own.” Id. is clearly that such relief established not prisoners, have no choice but of who ease violation constitutional available for the directly accept the actions officials that self-execut we conclude Gregg Georgia, daily v. 428 lives. affect their for awards provisions allow ing constitutional 2923-25; 169-73, Samyley at 96 S.Ct. at U.S. damages. money (10th 491, Ruettgers, Cir. F.2d 494-95 v. 704 1983). Thus, prisoners may we find that Next, determine whether we must for damages prison employees from collect provide a for self-executing provisions basis I, rights under article of their the violation against employ damages state award of an 9. arguing In or from the state. ees damages prisoners enti recovery Although hold that are a from against employ damages prison from courts tled to recover employees, defendants assert ees, employees be recovery private not follow that it does never allowed have prison employ any injury. A hable for implementing legislation. held individuals without unhappy” that he cannot “lot is not so act of ee’s that “it took an point out Defendants 740

possess any forgetfulness, agoraphobia. human Wayne, frailties Frohmader v. 958 (10th Cir.1992). distractibility, 1024, misjudgment or Finally, without ren 1028 a F.2d dering prison himself liable for a constitutional vio official would not be liable for a deci- 547, 555, v. Ray, haste, lation. Pierson 386 “necessarily pres- U.S. 87 sion made under 1213, 1218, 18 S.Ct. sure, L.Ed.2d 288 Nei luxury a and ... without the second charged ther must he being “choose between Berry City Muskogee, 900 chance.” duty” Cir.1990) with if carry (10th dereliction he does not (citing F.2d 1495 Whit- superiors out the his Albers, instructions of and “be 312, 327, ley v. 106 U.S. S.Ct. ing damages mulcted in (1986)). [for a constitutional 1078, 1088, 89 L.Ed.2d if engender violation] he does.” Id. To lia hand, prison physician On the other a bility, employee’s an must conduct be volun be would liable under deliberate indiffer- tary sufficiently culpable to contravene a choosing ence standard “‘easier prisoner’s right to be free from cruel and ” professional less efficacious than treatment’ punishments unnecessary rigor. unusual dictates, “throwing away such prisoner’s stitching ear prisoner may [viable] We a hold that not Estelle, I, stump.” 104 n. recover 429 U.S. at under article section 9 injury (quoting he S.Ct. at 291 n. 10 unless shows that his Williams Vin- was caused cent, (2d Cir.1974)). a employee 508 F.2d A who acted with deliber unnecessary physician refusing ate indifference or be inflicted would also liable upon prisoner’s allergic abuse him. The drug deliberate indifference treat reaction to a protects prisoners standard from cruel administering drug knowledge after with punishments, Likewise, unnecessary unusual prisoner’s allergy. and the Id. protects prisoners prison guards abuse standard un would for intentional- be liable Const, necessary rigor. § ly denying delaying See art. Utah 9. access medication explore We separate each of standards medical treatment. Id. at 97 S.Ct. at ly. 291-92.

The deliberate indifference standard the deliberate indifference Unlike standard, unnecessary differentiates inadvertent miscon between abuse standard duct, give liability not widely explored. which does rise to has been This standard pioneered by under article and the Oregon Supreme “unneces was Court sary pain,” unnecessary and wanton infliction of which rigor under clause Estelle, Constitution, at Oregon does. U.S. S.Ct. at section 13. court, example, physician noting 291-92. For who is The that the heart of the unnec guilty malpractice guilty essary rigor provision of medical ability was its to em “merely body evolving a constitutional violation because the humanity, touchstones of prisoner.” Id. at at internationally victim is S.Ct. based this standard ac Pearce, 292; cepted El’Amin 750 F.2d standards of humane treatment as (10th Cir.1984); Schiff, Brown v. articulated in the F.2d Universal Declaration of (10th Cir.1980). Similarly, prison Rights, Human the International Covenant of provide Rights, worker’s inadvertent failure to ade Civil and Political and the Standard support quate medical would not a con Minimum care Rules the Treatment of Prison Estelle, damages. adopted by ers stitutional claim for the First United Nations 291-92; Congress at U.S. at 97 S.Ct. Olson on the Prevention of Crime and the (10th Stotts, Cir.1993); F.3d Treatment of Sterling, Offenders (10th Gilbreath, standard, F.2d 625 P.2d at 131. Daniels Under this the Cir.1982). Moreover, prison worker would main particular a consideration is “whether a police practice or failing recognized not be to administer unnec liable for would be essary by in as an medical treatment desired an abuse the extent that it cannot be mate, justified therapy by necessity.” re as female hormone Id. at such 130. The inmate, Supre v. quested a transsexual definition of “abuse” on “needlessly focuses (10th Cir.1986), harsh, Ricketts, degrading, or or dehumanizing” F.2d treat claustrophobia prisoners. for and ment of Id. at example, treatment nonexistent 131. For Ann. damages, Utah statutory cap on Code and nec- police use “reasonable although 63-30-34(l)(a) (b), jury arrest, limit Bott’s prohi- § & making an the essary in force” rigor $490,000 not claim unnecessary does on his constitutional against bition award and $250,000. outset, commit assault that police officers to observe allow At the we Bonahoon, battery suspect. on a criminal in the contained Gov- subsections are Oregon Supreme at 571. The arguably 178 N.E. were Immunity Act and ernmental unnecessary the further noted that Court has legislature cap dam- not intended the quality apply to the rigor does not standard for violations of constitution- ages awardable bring defendant into charges that a of the cap only to dam- meant rights al but were of his incar- custody, only to the conditions provisions of the Act. ages under recovered Moen, Or. 786 P.2d State v. ceration. However, parties the have none of because (1990). emphasize that unneces- We theory, argued will assume or that we briefed clearly that sary rigor must treatment is be legislative deciding that was the it without unjustified, not or deficient and excessive all recov- damage cap apply to intent that the inconveniences, frustrations, merely and the entity per- for against governmental a eries prison life. that are common irritations injuries. sonal applicable Having the established misinter- the trial court contends that I, section liability under article standards (b) 63-30-34(l)(a) and and preted subsections jury argument that defendants’ we address interpreted applied, these and that as so jury to find liabili 43 allowed instruction article unconstitutional under are subsections from the ty merely on the basis of deviation 7, 11, 12, article sections in the medical accepted standard care Utah Constitution. community, finding on a of “de rather than not be should constitutional issues Because “unnecessary indifference” or liberate squarely they are before unless decided record, find examining we In abuse.” court, Cooley, 1 Thomas M. Constitutional solely jury 43 was intended that instruction (1927), determine we will Limitations 388 proximate on the issue as an instruction misinterpreted and trial court whether the court articulated and that the trial causation misapplied these subsections before thus the unneces the deliberate indifference issues. the constitutional address jury in instructions 68 sary standards abuse Johnson, 69. See State 1989) Statutory (Utah jury in A Construction (explaining that aas must read and evaluated structions be (b) 63-30-34(l)(a) provide: Subsections whole). held, if repeatedly we have As (a) fairly ... [I]f instruct as a whole jury instructions governmental en- law, injury personal reversible jury applicable on governmental jury employee merely tity, one or an whom not arise because error does instruction, alone, indemnify, standing duty as accurate exceeds entity is not has a Brooks, $250,000 any might person State v. in one occur- have been. for one as 1981). Although $500,000 persons defen rence, more for two or in objected 68 and 69 occurrence, to instructions re- dants the court shall any one court, they assigned not have the trial judgment to amount. that duce the being error nor have as instructions (b) judgment of award A court appeal. on point their brief argued this $250,000 injury or death to more than an on brief issue appellant fails to Where regardless of person whether one Reid v. point is waived. appeal, injury to the giving ... function rise 455, 455, Anderson, 116 Utah governmental. characterized not exam Consequently, we will court, examining instructions for error. whether these ine those trial recovery, “pre-' limit Bott’s subsections CAP III. STATUTORY legislature intended sume[d] two distinct occurrence means more than one is the trial court issue whether The final injuries defendant such as the separate applied the interpreted then properly causing plaintiff leg to suffer a broken ant or the number of causes that contributed then in leg, injuries; the treatment of the interpret broken referring to the we it as to failing prop- defendant’s leg doctor set the complete- the number of causes that inflicted erly.” although The court held that Bott’s ly injuries. separate example, plaintiff a For may renal failure have been result of by plow, by hit a who was state snow rescued Laney’s negligence both and the ad- ambulance, injured an and then further when quality ministration’s failure have a control by dump was hit a state ambulance truck program place, statutory in cap may damages collect for two occurrences. injury. because Bott one suffered However, plaintiff may a not receive dam- ages sustaining argues Bott two occurrences after that the trial court erred in multiple injuries solely interpreting being by from hit a the term “occurrence” as refer- ring injuries plow sustaining inju- state snow or after one to the number of rather than to ry injury. being by from hit a leading plow number of causes to the state snow and a He a dump asserts that substantial truck at the same number time. courts, statutes, examining in similar have supported This interpretation by is interpreted referring “occurrence” as to the meaning whole, of the statute as a aids which injury number causes of an (citing Wilt by referring us to awards of Islands, Virgin shire v. Government example, several contexts. For subsection (3d Cir.1990); F.2d In Home 63-30-34(l)(b) not states that more than Anders, (Ala. dem. Co. 459 So.2d $250,000 may injury be awarded “for or 1984); Property Casualty Arizona & Ins. person.” phrase death to one Because this Helme, Guar. Fund v. 153Ariz. 735 P.2d $250,000 contemplates cap injury (1987)). Defendants that a counter regard death without to the number of interprets substantial number courts have causes, interpret we cannot the term “occur- referring ed “occurrence” as to the number $250,000 allowing separate cap rence” as injuries (citing Guaranty Nat’l Co. Ins. contributing for each cause or for alternative Co., (5th North River Ins. 909 F.2d injury causes of or death. Armovit, Cir.1990); Mich.App. Gibbs 425, 452 (1990)). N.W.2d Likewise, interpret we cannot allowing $250,000 term separate cap Although case law from other 63-30-34(l)(a) injury. each Subsection persuasive, controlling courts is judgment may states that a not exceed interpretation our of subsections 63-30- “$250,000 person any for one one occur 34(l)(a) (b), and we must conduct an $500,000 rence, or persons for two or more independent examination these subsections any phrase one occurrence.” This contem according statutory to the rules of construc plates although people more than two rules, presume tion. Under these we must may injury each receive an from the same legislature that the used each word advised cause, the maximum collective ly, give according and we effect each word $500,000. ly Clearly, legisla receive is commonly accepted meaning. its Versluis ture did not intend to award maximum of Cos., Guaranty Nat’l $250,000 injury. for each we find in (Utah 1992). interpreting ambigu When examining the statute as a whole that the term, legislative history ous we look to the legislature intended to bar a claimant from purpose and the of the statute as a whole to collecting $250,000 more than unless the give effect to legislative intent. Sullivan v. separate injuries claimant received Utah, Scoular Grain Co. causes, clearly separate and this amount (Utah 1993). not be increased the number of causes commonly accepted meaning contributing single injury, a the duration happening “occurrence” is a or an event. injury, the cause of the number of (5th ed.); Dictionary Blank’s Law Amer injuries resulting particular from one cause. (2d ed.). Heritage Dictionary ican Thus interpret referring do argues the term as reject that even if we injuries argument number sustained a claim- his that the term “occurrence” re-

743 1993). 41, 48 Transp., Con injury, an 868 P.2d to of causes of his the number fers versely, held that these subsections $250,000 we have recovery limited to should not be damage to a applied as are unconstitutional judg- statutory cap applies to the the because University Hospital cap judgment on a for a found to be against each defendant ment University Hosp., v. Condemarin patient. recovery. to the total He liable rather than (Utah 1989). case, 348, In this 775 P.2d 366 30—34(l)(a)pro- points out that subsection 63— argues these violate subsections judgment against vides that if 7, 11, 5, I, 12, 24, article article sections and employee or an ... governmental entity, “a 6, article section 26 of the Utah Constitu and $250,000 any person for one one exceeds However, we need not reach these tion. occurrence,” judgment shall be reduced. arguments subsections 63-30- because added.) interpre- (Emphasis find Bott’s We (b) 34(l)(a) appropriately ana are more and contrary to the intent of the tation to be legislative regulation of Bott’s lyzed as a 63- legislature. language The subsections rights. 9 article 30-34(l)(a) (b) statutory on and focuses claimant, not it cap applies to the as is as Although incarceration “[l]awful employees. among apportioned individual necessary brings withdrawal or about referring judgments against language rights,” many privileges and limitation Johnston, entity, employee” 266, 285, sim- governmental Price v. “a 68 S.Ct. 334 U.S. (1948), 1049, provision 1060, prisoner of section 63- ply emphasizes the 92 L.Ed. 1356 “a pro collecting wholly stripped of constitutional prohibiting claimants is not entity imprisoned for a crime.” governmental and a when he is tections damages from McDonnell, 539, 555, v. 94 418 U.S. employee claim. governmental same Wolff 2963, 2974, 41 L.Ed.2d 935 S.Ct. statutory to rule that we decline their Certainly, prisoners maintain article against each cap applies to the legislature may rights, 9 and defendant. individual abrogate arbitrarily infringe these argues statutory cap Finally, Bott that the auspices power of its lawful rights under the long- no apply DeLand is should not because health, safety, public and promote the by Department of Correc- employed er However, citizens. this welfare of its general not show that did tions defendants rights are not not mean that does entity governmental employees “whom are subject All constitutional regulation. indemnify” required duty to as has a right highly protected rights, including the 30—34(1)(a). ar- We find these subsection regula 63— subject to reasonable speech, free are All the meritless. defendants guments to be Jacobsen, Redding v. 638 P.2d tion. Department of Cor- employed were City, v. Lake (Utah 1981); Salt Slater events oc- the time relevant rections at (1949); P.2d Utah statutorily curred, of Utah and the State Eng’rs v. Operating International Union of judgments entered Bd., obligated pay the Relations 115 Utah Labor Utah Therefore, conclude that them. see also State (1949); interpreted subsec- properly (Utah 1986) trial court Stevens, P.2d 63-30-34(l)(a) (b). tions and drivers (allowing regulation of vehicles Vlacil, clause); State right to travel under (Utah 1982) regu (allowing Validity B. Constitutional Road State weapons); Utah lation (1974) Next, Miya, the constitutional P.2d we examine Comm’n (b) 63-30-34(l)(a) property rights); regulation as (allowing ity of subsections Packard, 369, 373-74, already held 122 Utah State ease. We have applied in this (1952) (allowing regulation un are constitutional these subsections clause). The 7, 10, 11, 24 of the under work strikes sections der therefore, sub whether is to determine key, judgments Constitution Utah (b) 63-30-34(l)(a) constitute governmental sections resulting from a injuries I, sec Bott’s article regulation of condi reasonable safe road entity’s to maintain failure Dep’t tion 9 McCorvey v. Utah State tions. I, regulations regulation rights. We have found which are of nec- Bott’s article section 9 essary preserve peace society to the of to be we hold that these subsections are See, Vlacil, e.g., reasonable. 645 P.2d at 680 applied prisoners’ invalid as to claims under sale, use, (explaining regulate I, that state article section 9. firearms); Slater, possession

and of 206 P.2d legislative regulation at (explaining that IV. CONCLUSION of right traffic does not violate of interstate commerce); Union, International sum, In we hold that subsections 63-30- legislature may at (explaining regu- that 4(3) (4) Code, provide of Utah which by speech late free prohibiting obscene and government employees that cannot be hable language slanderous and loud and boisterous injuries malice, in the absence fraud speech in night). residential area at prisoner’s are a constitutional as to

Although hardly negligence prison defendants addressed ei- against employees. claims promoted by ther the interests the subsec- alsoWe conclude that the state constitutional constitutionality unnecessarily tions or the provision against of these subsec- rigorous tions, recognize I, designed prisoners, were treatment of article section preserve to government’s ability to provides monetary ren- a for an basis award of der government critical protect- damages services if prisoner proves that a ing public treasury employee deliberately unreasonable was indifferent to his depletion. subjected See Blue Cross & Blue Shield v. medical clearly needs him to State, (Utah 1989) (explain- unjustified excessive or deficient and treat- ing that court evaluate statutes Finally, statutory on basis ment. we hold that objective). perceived statute’s This cap damages regula- inter- on is an unreasonable est, although justify I, legislation sufficient to rights. tion Bott’s article section 9 impacting interests, para- economic is not judgment reversed, The below is and the I, rights protected by mount to the case is remanded to the trial court enter necessary pre- section 9 because it is not against judgments amended defendants on peace. serve social Our research reveals no plaintiffs regard constitutional claim without making solid evidence that full retribution to statutory damages. cap on prisoners the few who will succeed show- ing prison employees acted with “delib- C.J., J., abuse,” ZIMMERMAN, RUSSON, “unnecessary

erate indifference” or prove, both deplete difficult standards to will concur. Moreover,

the state coffers. courts that have STEWART, Justice, Associate Chief statutory caps damages evaluated on award- concurring dissenting: constitutionally pro- ed for the violation of rights objectives tected have found that the major- I concur and in the adequately justify of such statutes do not ity opinion exception. with one plain- One of Wright them. Page Hosp. Central Du Laney, tiffs actions Dean the nurse Ass’n, 63 Ill.2d 347 N.E.2d 743 practitioner prison, at the was on based Condemarin, (1976); 775 P.2d at 356. view, negligence. my claim of In that claim Next, we examine whether subsec was not barred doctrine official 63-30-34(l)(a) (b) unreasonably tions immunity im my for the reasons set out in dis- Schackel, pair prisoners opinion senting recover for the Ross 1996), violation their article section 9 companion case also is- Imposing statutory cap today. on jury Laney is a sued found that was crippling regulation prisoners’ right acting negligent. clearly re Because he was 9, Wright, capacity, cover under article see a ministerial he was entitled to light Indeed, N.E.2d protection at and in the weak immunity. official objective statutory ness of the I extraordinarily subsections him find difficult to 63-30-34(l)(a) (b), we distinguish conclude that negligence between on the one these subsections constitute an unreasonable hand and the deliberate indifference test the 9 of under article applies Court

Utah Constitution.

DURHAM, J., concurs. Greenwood,

Wesley BADGER, Ray Clay C. Inc., Nielsen,

Paxton, Kip Utah Land Lefevre, Lefevre, M. M. Thomas

John Leak, Barney, B. Albert Lorene

Susie Hintze, Lefevre,

Lefevre, Max A. Grant Henrie, Mary Breinholt, Cornell

Carol Jerry Lewis, Curtis, B. Plain-

Ann Appellants,

tiffs

BROOKLYN CANAL COMPANY Engineer, Morgan, L. State

Robert Appellees.

Defendants and

No. 940623.

Supreme of Utah. Court

July

Case Details

Case Name: Bott v. DeLand

Court Name: Utah Supreme Court

Date Published: Jul 12, 1996

Citation: 922 P.2d 732

Docket Number: 930387

Court Abbreviation: Utah