Mary DAY, individually, and as sole surviving heir to Boyd K. Day, deceased, Plaintiff and Appellant, v. STATE of Utah, By and Through the UTAH DEPARTMENT OF PUBLIC SAFETY; Utah Highway Patrol; Ken Colyar; Salem City Corporation, a municipal corporation of the State of Utah; Brad James; Spanish Fork City Corporation, a municipal corporation of the State of Utah; Ed Asay; and Public Entities 1-3; and John Does 1-8, Defendants and Appellees.
No. 930135-CA
Court of Appeals of Utah
Sept. 2, 1994
Rehearing Denied Nov. 7, and Dec. 12, 1994
882 P.2d 1150
Jan Graham, Carol Clawson, and Debra J. Moore, Salt Lake City, for appellees Utah Dept. of Public Safety and Colyar.
Allan L. Larson and Anne Swensen, Salt Lake City, for appellees Salem City Corp., Spanish Fork City Corp., Brad James, and Ed Asay.
Before BENCH, BILLINGS and GREENWOOD, JJ.
GREENWOOD, Judge:
Mary Day appeals the trial court‘s grant of summary judgment against her, arguing that
BACKGROUND
On March 18, 1991, at approximately 5:45 p.m., Trooper Ken Colyar of the Utah Highway Patrol had positioned himself on I-15 near Santaquin, Utah to monitor traffic. Trooper Colyar clocked, with a radar gun, a northbound black 1982 Buick at seventy-five miles per hour, ten miles per hour over the posted speed limit. Intending only to stop the vehicle and issue a citation for speeding, Trooper Colyar pulled onto I-15 and fell in behind the vehicle. The driver of the vehicle, sixteen-year old Steven Edward Floyd, increased his speed and exited I-15 at Santaquin.
For the next fifteen minutes Floyd led Colyar and at least two other law enforcement officers on a high speed chase—at one point reaching speeds approaching 120 miles per hour—through the rural communities of Spring Lake, Payson, Salem, and Spanish Fork. Floyd then entered I-15 again, heading north toward Provo, with Trooper Colyar close behind. Floyd took the University Avenue exit in Provo and ran the red light at the intersection of University Avenue and
Mary Day subsequently filed suit against the State‘s Department of Public Safety, the Utah Highway Patrol, and Trooper Colyar. In addition, Mrs. Day‘s Complaint named two other law enforcement personnel involved in the high speed chase—Brad James and Ed Asay—as well as the cities that employed them—Salem and Spanish Fork. Mrs. Day alleged that the negligence of all defendants proximately caused the death of her husband as well as her injuries.
Plaintiff and all defendants filed motions for either partial or full summary judgment. Following a hearing, the trial court granted the State‘s and Cities’ motions for summary judgment. The trial court subsequently entered two Orders, one dismissing Mrs. Day‘s Complaint with prejudice and the other granting summary judgment in favor of the defendants.
ISSUES
On appeal, Mrs. Day urges this court to reverse the trial court‘s grant of summary judgment based on one or more of the following arguments: (1) the trial court erred by ruling that Mrs. Day‘s cause of action arose during the time that
STANDARD OF REVIEW
Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.
ANALYSIS
Liability of Municipalities and Their Employees
Mrs. Day asserts as error on appeal the trial court‘s grant of summary judgment to the cities of Salem and Spanish Fork and their respective peace officers who were involved in the high speed chase. Our review of the record reveals an insufficiency of alleged facts to establish causation on the part of the cities or their employees, as a matter of law. For example, Floyd‘s unrebutted deposition testimony was that he simply went around the municipal officers’ vehicles, did not see them again after passing them prior to the collision, and was attempting at all times during the pursuit to elude only Trooper Colyar. Accordingly, we affirm the trial court‘s grant of summary judgment as to the municipalities and their employees. See Apache Tank Lines, Inc. v. Cheney, 706 P.2d 614, 615 (Utah 1985) (stating that when facts are undisputed and there is only one reasonable conclusion, issue of negligence is legal question).
Liability of State Entities and Trooper Colyar
1. Origination of Cause of Action and Notice of Claim
As a prefatory argument to her constitutional argument, Mrs. Day asserts that
Mrs. Day‘s argument involves two fundamental questions: (1) When does a cause of action arise? and (2) Does the statutory requirement to file a Notice of Claim affect when a cause of action arises?
In Aragon v. Clover Club Foods Co., 857 P.2d 250, 252 (Utah App.1993), this court noted that “[l]imitation periods begin to run when a cause of action has accrued, which occurs ‘upon the happening of the last event necessary to complete the cause of action.‘” Id. at 252 (quoting Becton Dickinson & Co. v. Reese, 668 P.2d 1254, 1257 (Utah 1983)); accord Warren v. Provo City Corp., 838 P.2d 1125, 1128-29 (Utah 1992) (“Generally, a cause of action accrues and the relevant statute of limitations begins to run ‘upon the happening of the last event necessary to complete the cause of action.‘“) (quoting Myers v. McDonald, 635 P.2d 84, 86 (Utah 1981)).
Utah courts have held that a cause of action for personal injury arises when the accident occurs. Jepson v. State Dep‘t of Corrections, 846 P.2d 485, 488 (Utah App. 1993); see also Jackson v. Layton City, 743 P.2d 1196, 1199 (Utah 1987) (Howe, J., concurring) (stating that cause of action for personal injury generally accrues when the accident occurs); Fields v. Mountain States Tel. & Tel. Co., 754 P.2d 677, 678 (Utah App.1988) (noting that statute of limitations for personal injury began running on date of accident). The statutory requirement to file a Notice of Claim does not, in our view, change the time when a cause of action originates. As the Utah Supreme Court has noted, “[t]he notice of claim provisions of sections 63-30-11 and 63-30-13 operate as a one-year statute of limitations in cases brought against a governmental entity.” Warren, 838 P.2d at 1128. Furthermore, the notice of claim statute itself arguably refers to a “claim” in a manner synonymous with “cause of action.” The statute states that “[a] claim arises when the statute of limitations that would apply if the claim were against a private person begins to run.”
2. Resolution of Issues on Nonconstitutional Grounds
Utah courts recognize the “fundamental rule that [they] should avoid addressing constitutional issues unless required to do so.” State v. Anderson, 701 P.2d 1099, 1103 (Utah 1985); accord State v. Starnes, 841 P.2d 712, 714 n. 2 (Utah App.1992). Accordingly, before reaching Mrs. Day‘s constitutional arguments, we must determine whether we can resolve the issues before us on nonconstitutional grounds. There are two such possible grounds in this case. First, Mrs. Day‘s cause of action cannot survive if Trooper Colyar owed no duty of care to her and her husband at the time of the collision. Second, in order to claim a violation of article 1, section 11 of the Utah Constitution, Mrs. Day must first establish that there existed at common law a right which the Legislature totally abrogated by enacting section 63-30-7(2).
a. Duty of Care
The State correctly points out that Mrs. Day‘s cause of action cannot lie, regardless of the outcome of the governmental immunity question, if Trooper Colyar owed no duty of care to Mrs. Day and her husband at the time of the collision. In essence, the State argues that Trooper Colyar‘s duty of care, whatever it may have been, did not extend so far as to include the Days. The State‘s third-party-due-care argument is premised on the fact that it was Mr. Floyd‘s vehicle, not Trooper Colyar‘s, that collided with the Day vehicle.
The Motor Vehicle Code in effect at the time of the accident states that operators of authorized emergency vehicles, when in the pursuit of an actual or suspected violator of the law, may disregard posted speed limits and other traffic laws if the operator of the vehicle both sounds an audible signal and uses a visual signal.
We believe that the clear language of the statute imposes on a highway patrol trooper who is pursuing a suspected violator of the law a duty of due care toward those members of the public who are using the highway during the high-speed chase and whose vehicles come within a reasonable proximity to the speeding vehicles.6 Accordingly, we hold
b. Ministerial v. Discretionary Function
To prevail on her open courts argument, Mrs. Day must establish that she had a common law right that has been abrogated.8 In that vein, she claims a common law
In determining this issue we look primarily at remedies existing at or near the time the Utah Constitution was adopted. As observed in Berry ex rel. Berry v. Beech Aircraft, 717 P.2d 670, 676 n. 3 (Utah 1985), “the common law at the time of statehood provides at least a measure of the kinds of legal rights that the framers must have had in mind for the protection of life, property, and reputation.” Accord Lee v. Gaufin, 867 P.2d 572, 592 (Utah 1993) (Zimmerman, J., concurring). Because Trooper Colyar was an employee of the Utah Highway Patrol, a state agency, we examine specifically whether there was a common law tort cause of action against state employees. The State asserts that state employees were immune from suit under a governmental/proprietary standard, while Mrs. Day insists that state employees were personally liable for negligent performance of ministerial duties.
The British doctrine of sovereign or governmental immunity was incorporated into the American common law with regard to both the federal and state governments. Restatement (Second) of Torts § 895 (1965). Therefore, “neither the state nor the federal government is liable for torts committed in its service by its officers and employees unless it consents to such liability.” Fleming James, Jr., Tort Liability of Governmental Units and Their Officers, 22 U.Chi.L.Rev. 610, 610 (1955).10 Sovereign immunity was first grounded on the notion that the King could do no wrong. As a result, early British common law immunized the King‘s officers from liability when carrying out his commands. Restatement (Second) of Torts § 895D (1965). Parliamentary ministers, however, were not immune when they acted illegally. Id. Commentators, however, agree that individual immunity for American governmental officials did not exist under the early common law.
The Anglo-American tradition did not include a general theory of immunity from suit or from liability on the part of public officers. It was the boast of Dicey often quoted, that “[w]ith us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.” Fleming, 22 U.Chi.L.Rev. at 635 (quoting Dicey, Law of the Constitution 193 (9th ed. 1939); accord W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 132, at 1059 (5th ed. 1984).
A compromise doctrine subsequently developed at common law, whereby government officers could be held liable for the negligent performance of ministerial functions, but not for discretionary functions. Restatement (Second) of Torts § 895D (1965); Keeton et al. § 132, at 1059.11 Immunity from liability for discretionary acts developed as an extension of the immunity afforded judicial officers to similarly shield legislative and administrative officials. Under this concept,
[w]herever suit is brought against an individual officer because of his official conduct, the court must consider the practical effects of liability and make a value judgment between the social and individual benefit from compensation to the victim, together with the wholesome deterrence of official excess on one hand; and on the other, the evils that would flow from inhibiting courageous and independent official action, and deterring responsible citizens from entering public life.
Fleming, 22 U.Chi.L.Rev. at 643.
Utah‘s common law was similar to that throughout the United States; namely, state employees could be held liable for their negligent performance of ministerial duties. In Madsen v. Borthick, 658 P.2d 627 (Utah 1983), depositors in a finance company sued Utah‘s Commissioner of the Department of Financial Institutions. In analyzing whether the Commissioner could be held personally liable, the Supreme Court noted that at common law “‘a governmental agent performing a discretionary function [was] immune from suit for injury arising therefrom, whereas an employee acting in a ministerial capacity, even though his acts may [have] involve[d] some decision making, [were] not so protected.‘” Id. at 632 (quoting Frank v. State, 613 P.2d 517, 520 (Utah 1980) (emphasis added); see also Payne ex rel. Payne v. Myers, 743 P.2d 186, 188 (Utah 1987) (noting that state-employed “doctors[,] as governmental employees[,] had no immunity from suit for their simple negligence” absent statutory grant of immunity); Hjorth v. Whittenburg, 121 Utah 324, 328-29, 241 P.2d 907, 909 (1952) (general rule is state or municipal employees may be liable for ministerial but not for discretionary acts).12
Generally speaking, discretionary functions are those involving policy setting and decision making, while ministerial acts are more operational, involving the carrying out of policies. However, it is not possible to precisely define the differences between discretionary and ministerial acts of government officers at common law, largely because the distinction stems from a court‘s view of what constitutes sound public policy. Keeton et al. § 132, at 1062, 1065. The difference, therefore, is largely one of degree. See Restatement (Second) of Torts § 895D (1965). “Attempts to solve the problem by setting forth a precise definition of the term, discretionary function, have been less than helpful. The expression is not only a standard; it is also a legal conclusion whose purport is only somewhat incidentally related to the definitions of the two words.” Id. A flexible approach is appropriate given that immunity doctrines are “grounded in values and perceptions of the times, and with the change in values and perceptions, the immunity itself is likely to undergo change as well.” Keeton et al. § 131, at 1032.
Consistent with the foregoing, the categorization of a police officer‘s duties as discretionary or ministerial has evolved over time. While “much police work is highly discretionary, the courts over a long period have classified police action as ministerial; that means a policy [sic] officer generally has only qualified immunity, not absolute immunity, even when what he does is clearly discretionary.” Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 19.3, at 21 (3d ed. 1994). Thus, police officers were not immune for torts committed while effecting arrests. George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum.L.Rev. 1175, 1183-84 (1977) (citing Carter v. Carlson, 447 F.2d 358 (D.C.Cir.1971), rev‘d on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973)).
In the instant case, the parties have not cited any Utah caselaw from near the time of statehood which addresses immunity for police officers, and we have not found any.13 More obviously, there is no case law at that
Some early Utah cases do, however, address the discretionary/ministerial dichotomy either explicitly or by implication. In Hjorth, 241 P.2d at 909, the court held that members of the Utah State Road Commission had no personal liability for their decisions in designing highways where they had acted in good faith, because their duties were an exercise of discretion.
Closer to the date of Utah‘s statehood, the supreme court extended governmental immunity to a state deputy sheep director in Garff v. Smith, 31 Utah 102, 86 P. 772 (1906). This official‘s duties included inspecting sheep, placing infected ones in quarantine, and imposing certain conditions as part of the quarantine. In Garff, the plaintiff alleged the official had acted negligently in imposing conditions of quarantine that were unsafe and resulted in the deaths of plaintiff‘s sheep. The court noted that a ministerial duty “is absolute, certain, and imperative, involving merely the execution of a set task and when the law which imposes it prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion.” Id. 86 P. at 774 (quoting People v. Bartels, 138 Ill. 322, 27 N.E. 1091 (1891)). A ministerial act leaves no room for the employee to use his or her judgment as to the propriety of the act. Id. The court then held that the sheep inspector‘s duties were not so precisely defined as to exclude the exercise of his judgment or discretion. He was free to define the conditions of quarantine depending on the particular facts and circumstances presented. Because “[t]he law does not prescribe the mode of doing the act with such certainty that one person can do it as well as another by merely following that which is pointed out by the statute,” the inspector‘s acts were discretionary and he could not be held liable for them. Id.
We believe Garff is controlling and necessitates our conclusion that a cause of action would not lie at common law against Trooper Colyar. Although there were specific printed policies and procedures in place addressing police pursuits, which dictated, to a certain extent, Trooper Colyar‘s actions, he still had to exercise his own judgment and discretion in deciding whether to pursue the suspect, in what manner, and for how long. These decisions are of equal weight to those of the assistant sheep inspector in deciding conditions of quarantine. Moreover, this result is consistent with the later Utah case of Sheffield v. Turner, 21 Utah 2d 314, 445 P.2d 367 (1968), in which a prison warden was afforded immunity from liability so long as he was acting in good faith and carrying out the duties of his office. The court also noted the public policy promoted by such immunity—it provides prison officials with the necessary freedom to discharge their duties. This policy is similar to that noted in more modern cases postdating statutes waiving governmental immunity, which have nonetheless shielded police officers from liability arising from pursuits to encourage vigorous law enforcement efforts. See Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090, 1108 (1993); accord Thornton v. Shore, 233 Kan. 737, 666 P.2d 655, 664 (1983).
Our determination of common law remedies existing at or near the time of statehood is simply our best assessment of what a court during that era would have ruled if the issue had arisen. As a corollary, our holding is limited to the common law in Utah at the beginning of the twentieth century and does not address whether Trooper Colyar‘s actions were discretionary or ministerial under any version of Utah‘s Governmental Immunity Act or cases decided thereunder. See, e.g., Little v. State Div. of Family Servs., 667 P.2d 49 (Utah 1983); Frank v. State, 613 P.2d 517 (Utah 1980).
3. Open Courts Provision and Section 63-30-7(2)
Mrs. Day asserts on appeal that
Section 63-30-7(2)(a) states:
All governmental entities employing peace officers retain and do not waive immunity from liability for civil damages for personal injury or death or for damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he is being or has been pursued by a peace officer employed by the governmental entity in a motor vehicle.
Id. Thus, this statute provides governmental immunity to governmental employers of peace officers involved in high speed chases when the vehicle being chased collides with and injures another vehicle and its occupants. Mrs. Day concedes that section 63-30-7(2)(a), if it passes constitutional muster, bars her suit against the state entities named in this case. Furthermore, section 63-30-4 precludes Mrs. Day from bringing suit against Trooper Colyar and the other officers personally.14
As recognized by the Utah Supreme Court, the common law doctrine of sovereign immunity does not offend Utah‘s open courts provision. Madsen v. Borthick, 658 P.2d 627, 629 (Utah 1983); see also McCorvey v. UDOT, 868 P.2d 41, 49 (Utah 1993) (Stewart, J., concurring and dissenting) (“[T]he right to sue the state when it performs a governmental function, as constitutionally defined, does not implicate a right protected by the open courts provision of Article I, section 11.“). “Sovereign immunity ... was a well-settled principle of American common law at the time Utah became a state.” Madsen, 658 P.2d at 629. The open courts provision of Utah‘s constitution “was not meant to create a new remedy or a new right of action.” Id.
4. Equal Protection and Due Process.
Mrs. Day also argues that former section 63-30-7(2) is unconstitutional as a violation of both the equal protection provisions of article I, section 24 of the Utah Constitution and the due process provisions of article I, section 7 of the Utah Constitution.
We apply a rational basis test in assessing Mrs. Day‘s remaining constitutional arguments, having already determined that the open courts provision has not been violated. See Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989); Wright v. University of Utah, 876 P.2d 380, 389 (Utah App.1994). Further, because no fundamental right or suspect class is asserted, only a rational basis test is necessary for an equal protection analysis. Greenwood v. City of N. Salt Lake, 817 P.2d 816, 820-21 (Utah 1991). “‘A presumption of constitutionality is extended to statutes ... and that presumption is sufficient to sustain the constitutionality of a classification created by the statute unless the classification creates an invidious discrimination, or bears no rational relationship to a legitimate state purpose.‘” Lee v. Gaufin, 867 P.2d 572, 580 (Utah 1993) (quoting J.J.N.P. Co. v. State, 655 P.2d 1133, 1138 (Utah 1982)).
We believe the statute easily meets the rational basis test. Barring suits against the government and its officers for damages resulting from high speed police chases of suspects is intended to encourage the pursuit and apprehension of lawbreakers. Many cases upholding similar statutes have cited this rationale as a legitimate basis for vali-
CONCLUSION
We affirm the trial court‘s summary judgment in favor of the municipal defendants. We hold that Mrs. Day‘s cause of action arose at the time of the accident and not after the state rejected her Notice of Claim. Furthermore, we hold that section 63-30-7(2)(a) does not violate the open courts, due process, or equal protection provisions of Utah‘s Constitution. Accordingly, as to the state defendants, we also affirm the summary judgment in their favor.
BILLINGS, J., concurs.
BENCH, Judge (concurring in the result):
I would affirm the summary judgment but, rather than reaching the governmental immunity issues, I would simply hold that plaintiff has not established that the defendants owed her a duty of care. See Ferree v. State, 784 P.2d 149, 152-53 (Utah 1989) (“Having decided that the defendants owed no duty of care toward the victim, we need not reach the questions raised by the doctrine of sovereign immunity.... Sovereign immunity ... is an affirmative defense and conceptionally arises subsequent to the question of whether there is tort liability in the first instance.“); cf. Smith v. Weber County Sch. Dist., 877 P.2d 1276, 1278 (Utah App.1994) (stating that court may generally reach governmental immunity issue first only when it is clear and dispositive). In the present case, it is the duty issue that is “clearcut,” and not the governmental immunity issues.
An “essential element of a negligence claim” is establishing that the defendant owed the plaintiff a duty of care. Lamarr v. Utah State Dep‘t of Transp., 828 P.2d 535, 537 (Utah App.1992) (quoting Owens v. Garfield, 784 P.2d 1187, 1189 (Utah 1989)). The duty identified in the main opinion under
I would therefore affirm the summary judgment on the ground that defendants had no duty of care to this particular plaintiff.
Notes
Under this statute, Mrs. Day may have her day in court to try to establish that Trooper Colyar did not operate his vehicle in accordance with the requirements ofImmunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of:
...
(15) the operation of an emergency vehicle, while being driven in accordance with the requirements of
Section 41-6-14 ....
The State, in its supplemental brief, makes the argument that Mrs. Day never had a substitute remedy because § 63-30-7 (repealed), like
The main opinion also attempts to minimize the special-duty requirement by distinguishing controlling case law and by pointing to the officer‘s affirmative action toward someone who is not even a party to the lawsuit. I do not believe that the officer‘s action in response to a fleeing suspect, ipso facto, creates a “special duty” to plaintiff, as that term is defined by our case law. I believe it is unreasonable in the present case to hold the officer responsible for the accident between the fleeing suspect and the plaintiff, a third party. It is even more unreasonable to suggest that, unless sovereign immunity applies, the governmental entity is liable as an insurer for the willful, wanton, or reckless conduct of fleeing suspects or violators of the law.
| February 27, 1991 | Utah Legislature repeals |
| March 14, 1991 | Governor signs bill repealing |
| March 18, 1991 | High speed chase in which Boyd Day is killed and Mary Day is injured |
| March 22, 1991 | Mrs. Day files Notice of Claim with State of Utah |
| April 29, 1991 | Repeal of |
| June 21, 1991 | Notice of Claim deemed denied |
Sears v. Southworth, 563 P.2d 192, 193 (Utah 1977).Among other reasons, notice of claim provides the governmental unit with an opportunity to promptly investigate and to remedy any defect immediately, before additional injury is caused; it helps avoid unnecessary litigation; it minimizes difficulties that might arise from changes in administrations.
The concurrence cites several cases in support of its position that we believe are distinguishable and inapplicable to the instant case. All of the cited cases involve situations where a public agency or its employees allegedly failed to take some affirmative action that resulted in injury to an individual and/or the injury occurred at both a time and place remote from the alleged negligent act of the public employee. See Ferree, 784 P.2d at 150-51 (prisoner on weekend release killed man by bludgeoning him to death with pipe); Rollins, 813 P.2d at 1158-59 (state mental hospital patient escaped, stole car, and ultimately killed individual in collision); Lamarr v. UDOT, 828 P.2d 535, 536-37 (Utah App.1992) (pedestrian seriously injured by automobile on overpass which UDOT had allegedly failed to properly construct, maintain, and place signs on); Cannon v. University of Utah, 866 P.2d 586, 587-88 (Utah App.1993) (pedestrians who were en route to basketball game and were struck in crosswalk by automobile sued university police officers who had been stationed at crosswalk but failed to exit their vehicle because of inclement weather), cert. denied, 879 P.2d 266 (Utah 1994).
We believe these cases would apply to the instant case had Trooper Colyar decided not to pursue the speeding Floyd vehicle. In such a case, Mrs. Day could not argue that Trooper Colyar‘s decision to ignore the speeding Floyd vehicle was a breach of a specific duty which Trooper Colyar owed specifically to Mrs. Day, thereby subjecting the officer to a claim of negligence. The public duty doctrine clearly insulates Trooper Colyar under this scenario.
However, once Trooper Colyar decided to exercise his discretionary function by pursuing the Floyd vehicle, the law imposed on Trooper Colyar a specific duty to operate his vehicle with due care for the safety of others on the road. See
Furthermore, although we have addressed the question of duty, we could have assumed the “less clearcut question of duty” and proceeded directly to the dispositive issue of governmental immunity. Smith v. Weber County Sch. Dist., 877 P.2d 1276, 1278 (Utah App.1994); accord Petersen v. Board of Educ., 855 P.2d 241, 243 (Utah 1993) (per curiam); see also Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1164 (Utah 1993) (noting that supreme court has at times performed immunity analysis first, “typically when it ended the inquiry“).