Case Information
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T HE U TAH C OURT OF A PPEALS
K EVIN F AUCHEAUX , Plaintiff and Appellant, v.
P ROVO C ITY , Defendant and Appellee.
Opinion No. 20130690-CA Filed January 2, 2015 Fourth District Court, Provo Department The Honorable Fred D. Howard No. 100401999 Ronald D. Wilkinson, Janet G. Peterson and Marianne P. Card Attorneys for Appellant Dennis C. Ferguson and Timothy J. Bywater, Attorneys for Appellee
J UDGE J. F REDERIC V OROS J R . authored this Opinion, in which J UDGE G REGORY K. O RME and S ENIOR J UDGE R USSELL W. B ENCH
concurred. [1]
VOROS, Judge: Afraid that his wife, Helen Faucheaux, had overdosed on
prescription pills, Kevin Faucheaux called 911. When police 1. The Honorable Russell W. Bench, Senior Judge, sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
officers arrived they concluded that Helen had not overdosed. [2] Despite Kevin’s pleas that they call emergency medical technicians, the officers tucked Helen into bed and told Kevin to leave her alone. Sometime in the next couple of hours, Helen died. Kevin brought this wrongful-death action against Provo City in his capacity as personal representative of Helen’s estate. The district court granted summary judgment in Provo’s favor, ruling that Provo owed Helen no duty and that even if it did the Governmental Immunity Act protected Provo because the officers’ actions were discretionary. We reverse and remand the case for further proceedings.
BACKGROUND [3] Helen had a history of attempted suicide and
prescription-drug abuse. Her prescription-drug abuse worsened after her incarceration, where she learned to ‚crush and snort Percocet and Flexeril‛ for a more intense high. In the years immediately before her death, Helen threatened or attempted suicide several times. In fact, on one occasion, her suicide attempt nearly proved successful: she ‚flat-lined,‛ but paramedics were able to revive her.
2. Because Kevin and Helen Faucheaux have the same last name, for clarity we refer to them by their first names. Furthermore, we refer to Kevin Faucheaux as ‚Kevin‛ when referring to him in his personal capacity and as ‚Faucheaux‛ when referring to him in his capacity as personal representative of Helen’s estate. 3. On an appeal from a summary judgment, we recite the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600. Consequently, most of the facts in this section are drawn from Kevin’s affidavit.
¶3 One day in 2009, Helen appeared to be under the influence of prescription drugs. She and Kevin fought, after which both called the police. Because ‚Helen claimed she was injured,‛ she went to the hospital but was released without treatment. Kevin picked Helen up from the hospital but ‚dropped her at home‛ to ‚keep the situation from escalating again.‛ After leaving, Kevin received a text message from Helen
saying goodbye. Because this was ‚the type of text that Helen had sent [Kevin] in the past to make [him] think she was committing suicide and to manipulate [him] into coming home,‛ Kevin did not immediately return. About an hour later, still before Kevin had returned home, Helen called the police, claiming that Kevin had locked her out of her home. When Kevin returned home, he noticed a dusting of white
powder on the ‚bathroom sink, floor, and door.‛ He found Helen ‚stumbling around and unable to walk straight, using the wall to help her balance.‛ Helen then ‚stumbled into the bathroom, and [Kevin] heard snorting noises.‛ Helen spoke in slurred speech, and Kevin knew that ‚Helen was crushing pills.‛ Now ‚worried that Helen’s threat to commit suicide was serious,‛ Kevin called 911, telling the operator that Helen needed ‚to be pink-slipped because she was suicidal‛ and that Helen had been abusing drugs. [4] The officers arrived at about 10:00 p.m. Kevin met them
outside. He told the officers that he had ‚concerns that Helen 4. ‚Pink slip‛ is a term sometimes used to refer to the document used to initiate the temporary restraint of a mentally ill person. See Douglas Mossman, Psychiatric Holds for Nonpsychiatric Patients, Current Psychiatry, March 2013, at 34, 34. This is apparently the sense in which Kevin used the term.
was attempting suicide,‛ that he ‚was seriously concerned she had overdosed,‛ and that she had sent him a text message saying goodbye. He told the officers that Helen had been ‚crushing and snorting her prescription drugs,‛ that if they looked in the bathroom they ‚would see crushed powder all over it and Helen’s mortar and pestle that she used to crush her pills,‛ and that Helen had already attempted suicide twice that year. The police went inside to talk to Helen. According to the
officers, Helen maintained that she had taken her pills only as prescribed, that she was not suicidal, and that the white powder resulted from baking pancakes. The officers then concluded that Helen had not overdosed, so they ‚tucked her into bed.‛ After helping Helen to bed, the officers told Kevin that Helen just needed to ‚sleep it off.‛ However, still concerned about Helen, Kevin ‚pleaded with [the officers] to call the EMTs‛ to ensure that Helen had not overdosed. He explained to the officers that he could not get Helen to the hospital himself. The officers responded, ‚You don’t need to get her to the car sir, you just need to leave her alone.‛ The officers then told Kevin that if they received another call where he was the disturbance, they would arrest him. After Kevin’s discussion with the police, he stayed in the
home but stayed away from Helen ‚as the officers had instructed.‛ However, after about twenty minutes, Kevin opened Helen’s bedroom door to check on her. She was lying in her bed, ‚apparently asleep.‛ Kevin went back to the living room and watched a movie, returning to the bedroom to check on her a couple of hours later. This time, he found her dead. [5] 5. The officers’ version of events differs slightly from Kevin’s. According to the officers, they did not tuck Helen into bed, tell
(continued...) Kevin sued Provo City in his capacity as the personal representative of Helen’s estate, alleging that the police officers acted negligently. After discovery, the district court granted summary judgment in Provo’s favor, ruling that Provo owed Helen no duty of care and that, even if it did, Provo was immune from suit. This appeal followed.
ISSUE ON APPEAL Faucheaux contends that the district court erred in
granting summary judgment in Provo’s favor for two reasons. First, Faucheaux argues that the district court erred in concluding that Provo owed Helen no duty of care. Second, Faucheaux argues that the district court erred in concluding that Provo is immune from this lawsuit because the officers’ actions qualify as discretionary.
ANALYSIS
I. The District Court Erred in Concluding That the Police Officers
Owed Helen No Duty of Care. Faucheaux first contends that the district court erred in
concluding that the police officers owed Helen no duty of care.
Faucheaux argues that ‚a special relationship between police
and Helen arose when police undertook specific action to protect
Helen.‛ Provo responds that ‚Utah law does not impose a
Kevin to leave Helen alone, or tell Kevin that Helen needed to
‚sleep it off.‛ But at the summary judgment stage we recite the
facts and draw all reasonable inferences in the light most
favorable to the nonmoving party, Faucheaux.
See Orvis v.
Johnson,
‘special relationship’ duty on a peace officer who responds to a welfare check.‛ Summary judgment should be awarded only when ‚there
is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.‛ Utah R. Civ.
P. 56(c). We review a grant of summary judgment for
correctness.
Orvis v. Johnson
,
care ‚is more complicated when the government is the
defendant.‛
Francis v. State
, 2013 UT 65, ¶ 25, 321 P.3d 1089.
Under the public-duty doctrine, ‚[i]f a plaintiff’s claim is based
on the defendant’s failure to adequately discharge a public duty,
a presumption arises that this duty may not be a basis for
liability in a lawsuit.‛
Cope v. Utah Valley State College
, 2014 UT
53, ¶ 30. Our supreme court has defined a public duty as ‚an
obligation owed to the general public at large.‛
Id
. ¶ 31 (citation
and internal quotation marks omitted). Thus, under the public-
duty doctrine ‚a governmental entity is not liable for injury to a
citizen where liability is alleged on the ground that the
governmental entity owes a duty to the public in general, as in
the case of police or fire protection.‛ John H. Derrick,
Annotation,
Modern Status of Rule Excusing Governmental Unit
from Tort Liability on Theory That Only General, Not Particular,
Duty Was Owed Under Circumstances
, 38 A.L.R. 4th 1194, § 2
(1985),
cited with approval in Cope
,
omissions of a governmental actor.‛
Cope
,
circumstances:
(1) by a statute intended to protect a specific class of persons of which the plaintiff is a member from a particular type of harm; (2) when a government agent undertakes specific action to protect a person or property; (3) by governmental actions that reasonably induce detrimental reliance by a member of the public; and (4) under certain circumstances, when the agency has actual custody of the plaintiff or of a third person who causes harm to the plaintiff.
Day v. State , 1999 UT 46, ¶ 13, 980 P.2d 1171. At issue here are circumstances (2) and (3): whether the officers undertook specific action to protect Helen or reasonably induced detrimental reliance on their actions. [6] Here, the district court erred in ruling as a matter of law
that the public-duty doctrine shields Provo. Faucheaux’s
negligence claim may be interpreted in one of two ways. On the
one hand, Faucheaux does allege negligent affirmative acts—not
6. On appeal, Faucheaux also argues that the district court erred
because a statute created a duty of care. But in a hearing before
the district court, Faucheaux specifically stated, ‚[W]e are not
claiming‛ that a statute created the duty here. Thus, Faucheaux
invited this alleged error, and we consequently decline to
address it.
See Pratt v. Nelson,
allegation that the officers created a special relationship with Helen. First, under Faucheaux’s version of events, the police officers ‚undertook specific action‛ by entering Helen’s home, asking her if she was suicidal, asking her about the powder they found on her, and then tucking her into bed. See id . Second, these actions ‚were intended to protect‛ Helen. See id. Thus, assuming the truth of Faucheaux’s version of events, the officers created a special relationship with Helen and consequently owed her a duty to act reasonably. We draw support for this conclusion from our supreme
court’s decision in
Francis
,
officers here did not originally have a special relationship with Helen. In Francis , agents created the special relationship when they tracked the bear, returned to the campsite, made sure the campsite was free of bear attractants, and waved at the family heading toward the campsite. Here, the officers created the special relationship when they entered Helen’s home, took control of the situation, asked Helen if she was abusing drugs and suicidal, asked her about the powder they found on her, and subsequently tucked her into bed, directing Kevin to leave her alone. Provo counters that police officers do not have a duty to
protect people from harming themselves. We agree that police
officers have no general duty to protect people from harming
themselves. But our supreme court has declared that a special
relationship arises ‚when a government agent undertakes
specific action to protect a person or property.‛
Day v. State
, 1999
UT 46, ¶ 13,
realistically incapable of performance or fundamentally at odds
with the nature of the parties’ relationship.‛
Higgins v. Salt Lake
County,
imposing a duty on the officers here. The statute in question states that police officers ‚may‛ take a person into protective custody if the officer has ‚probable cause.‛ See Utah Code Ann. § 62A-15-629(2) (LexisNexis 2012). Provo asserts that the officers did not have probable cause here and therefore could not remove Helen from her home. Because the officers ‚lacked the statutory authority to forcibly remove Helen from her home,‛ Provo argues, they owed her no duty. This argument misses the mark. Faucheaux does not
contend that the officers acted negligently only by not taking Helen into custody. Rather, Faucheaux alleges that the officers formed a special relationship with Helen and thus owed her a duty to act reasonably. The officers could have discharged this duty in a number of ways without taking Helen into custody. And even if Provo is right ‚that the officers lacked the statutory authority to forcibly remove Helen from her home,‛ this argument addresses whether the officers acted reasonably, not whether they had a duty to act reasonably. In sum, a statute authorizing police to remove a person from her home with probable cause does not protect them from a claim that their actions placed her in danger and prevented others from addressing that danger. In conclusion, we hold that the district court erred in
ruling as a matter of law that the public-duty doctrine shields Provo from Faucheaux’s negligence claim. First, to the extent Faucheaux bases his claim on the affirmative negligent acts of the officers, the public-duty doctrine is not available. Second, to the extent Faucheaux bases his claim on alleged omissions, the officers created a special relationship with Helen. Thus, the district court incorrectly granted summary judgment in Provo’s favor.
II. Utah’s Governmental Immunity Act Does Not Protect Provo
from the Officers’ Nondiscretionary Acts. Faucheaux next contends that the district court erred in
concluding that Utah’s Governmental Immunity Act immunizes
Provo from this lawsuit. Faucheaux argues that Provo ‚is not
immune from suit under the Governmental Immunity Act
because [the] police officers were not performing a discretionary
function when they responded to Kevin’s 911 call.‛ Provo
responds that a statute giving police discretion to detain
mentally ill persons who may harm themselves or others
illustrates the discretionary nature of the officers’ actions.
A district court’s interpretation of a statute is a question of
law.
Harvey v. Cedar Hills City
, 2010 UT 12, ¶ 10, 227 P.3d 256.
Consequently, we review the interpretation for correctness.
Id.
Sovereign immunity, ‚rooted in the medieval British
notion that the King could do no wrong, precludes lawsuits
against governmental entities without the government’s
consent.‛
Trujillo v. Utah Dep’t of Transp.
,
the discretionary function exception,‛ we must first ask whether
the ‚challenged act, omission, or decision necessarily involve[s]
a basic governmental policy, program, or objective.‛
Johnson v.
Utah Dep’t of Transp.
,
discretionary-function immunity serves. First, discretionary-
function immunity ‚shield[s] those governmental acts and
decisions impacting on large numbers of people in a myriad of
unforeseeable ways from individual and class legal actions, the
continual threat of which would make public administration all
but impossible.‛
Hansen v. Salt Lake County
, 794 P.2d 838, 846
(Utah 1990) (citation and internal quotation marks omitted).
Second, where ‚the responsibility for basic policy decisions has
been committed to one of the branches of our tri-partite system
of government,‛ discretionary-function immunity preserves the
autonomy of coordinate branches of government by keeping
courts from ‚sitting in judgment‛ of other branches’ policy-
making decisions.
Little v. Utah Div. of Family Servs.,
level decisions, which qualify for discretionary-function
immunity, and operational-level decisions, which do not. For
example, this court previously held that the Utah Department of
Transportation’s formulation of a traffic-control plan, including
its decision to use barrels instead of concrete barriers to separate
traffic, did not qualify for discretionary-function immunity,
because the control plan was not ‚the product of the exercise of
policy-level discretion.‛
Trujillo
, 1999 UT App 227, ¶ 33. In
contrast, our supreme court held that a decision not to raise
concrete barriers during construction qualified for discretionary-
function immunity as ‚studies of the plan, its cost, and the
degree of safety it would provide were carried out by senior
engineers and circulated throughout and debated within the
department.‛
Keegan v. State
,
because the Utah Code provides that officers ‚may‛ take a person into protective custody against the person’s will. See Utah Code Ann. § 62A-15-629(2) (LexisNexis 2012). But the fact that an officer’s action required the exercise of some amount of discretion does not qualify it as discretionary for purposes of Utah’s Governmental Immunity Act. As stated above, ‚[n]ot every governmental action involving discretion is a discretionary function within the meaning of the Act. Were it otherwise, the exception would swallow the rule, as almost all governmental decisions involve some discretion.‛ Trujillo v. Utah Dep’t of Transp. , 1999 UT App 227, ¶ 21, 986 P.2d 752. The relevant question asks whether the discretionary act occurred at the ‚operational level‛ or required ‚evaluation of broad policy factors.‛ See Johnson , 2006 UT 15, ¶ 31 (citation and internal quotation marks omitted). The officers’ acts as alleged by Faucheaux fall squarely into the former category.
CONCLUSION The district court erred in concluding as a matter of law
that the public-duty doctrine shields Provo from liability. To the extent Faucheaux bases his negligence claim on the alleged affirmative acts of the officers, the public-duty doctrine is not available. Furthermore, to the extent Faucheaux bases his negligence claim on omissions, the district court erred in ruling that officers did not create a special relationship with Helen. Additionally, we conclude that the Governmental Immunity Act does not immunize Provo from the officers’ actions and omissions. Consequently, the district court’s decision is reversed and the case remanded for further proceedings.