Lyon v. Burton

UT 19 guardian individually and as LYON, John minor, Lyon, and Chris Matthew J. individually Walker, Jacob Christopher Michael Walk guardian for Plaintiffs, Appellants, minor,

er, a

Cross-Appellees, District, BURTON, Fire Weber H.

Glen Defendants, Ap County, and Weber Cross-Appellants. pellees, 950515,950516.

Nos. of Utah.

Supreme Court 19, 2000.

Jan. Denial Opinion on Modifying

Order 30, 2000. Rehearing June proceed

decided to route, fire. Ein he switched his Explorer Ford to "emergency" mode, which turning entailed on the vehicle's emergency lights and siren. Although the Explorer had intentionally not been accout ered to look like an emergency vehicle,1 it equipped with emergency lights mount ed behind grill, a siren mounted behind the front bumper, portable and a light that placed could be on the dashboard. 15 While proceeding in emergency mode, Chief Burton entered an against intersection Savage, E. Scott City, Salt Lake plain- for light red and collided plaintiffs, who tiffs. green had the light. He estimated that his Ray Christensen, R. Richards, David C. speed immediately prior to the accident was City, Salt Lake for Burton and Weber Fire from ten to per fifteen miles up hour to District. thirty-five to forty per miles hour. Both plaintiffs were severely injured. Wallace, Robert R. City, Salt Lake for Matthew Lyon sustained a closed County. Weber head injury for which relatively little medical treatment was Gary Ferguson, B. Salt City, Lake for required possible but which in resulted North View Department. Fire significant permanent and brain damage. Christopher Walker sustained brain damage STEWART, Justice: and also physical injuries. severe T6 Plaintiffs against filed suit Chief Bur I. FACTS ton and the trial, District. Prior to defen 138 This case arose from the collision of dants moved to dismiss the against action by automobile driven Chief Glen H. Bur- Chief Burton in his individual capacity on the ton of the ("District") Weber Fire District ground that acting he was within the scope of and an automobile in which Matthew Lyon J. his duties for the District at the time the and Christopher M. Walker were riding. Thus, accident occurred. argued defendants Lyon Walker, and minors, both were severe- against suit Chief Burton was barred ly injured and through fathers, their sued under Utah (1993)2 Code Ann. 63-804 Chief Burton and the Weber Fire District. (the the Governmental Immunity "Act"), Act jury A found that defendants Burton and the gives which total immunity government to District percent were 100 at fault in causing employees negligence for in the course and the accident and Lyon awarded Matthew seope of employment. their The trial court $700,000 general in damages $9,537.79 and in ruling deferred on this motion until after special damages, and Christopher Walker trial, and granted then it. $900,000 general damages $132,982.39 and T7 Both defendants also moved for sum- special damages. mary judgment ground on the gen- the day On the accident, Chief eral waiver of immunity for Burton report heard a of a fire in the North damage by caused negligence under section District, View Fire which borders the Weber 63-30-10 applicable was not because subsec- Fire District. listening After (18)(b) to additional tion of section gov- 63-80-10 retained reports on progress, fire's Chief Burton immunity ernmental fighting for fire activi- 1. Chief Burton Explorer testified at trial that the Chief Burton for uses. personal Second, disguised First, had been for two reasons. Chief District wanted to be able to use the vehicle for Burton was authorized to use the vehicle for both during stakeouts investigations. arson personal pick up use and supplies needed District, and the District was concerned that 2. All citations to Utah Code Annotated refer to complain citizens would they if observed the 1993 edition unless otherwise indicated. parked vehicle at being stores or while used argue that Defendants T11 that Chief maintained Defendants

ties motion denying their fighting activi- erred trial court engaged Burton was denying the Dis- and summary judgment trial collision. the time ties at were motions j.n.o.v. Both motion motion, triet's deny but formally court did the District argument on the based to trial. proceeded the case 63- sections because immune from verdicts, trial jury Following the 63-30-10(18)(b) provide 30-3(1) together motion to pretrial granted defendants' court negli entities defendant party aas Burton dismiss Chief engaged in "activ injuries while gently cause the dam- limit motion the District's legal While fighting fire." ... ities of $250,000 District ages award same, are the motions of both bases Ann. to Utah Code pursuant plaintiff for each is to evalu trial court standards mo- plaintiffs' denied The court § 63-30-34. Summary are different. motions ate the verdicts, prejudg- judgment on tions genu no when appropriate "is judgment costs, granted their interest, but ment the mov fact exist of material ine issues Thereaf- interest. postjudgment motions for judgment as a matter ing party is entitled judgment not- moved for ter, District Ins. Co. Mut. Auto. Farm State of law." (J.n.0v.) on (Utah 1996). verdict withstanding On Clyde, 920 (18)(b) of see- subsection ground that j.n.o.v. hand, should a motion for the other liable for not 63-30-10, the District tion in "viewing the evidence granted when The fighting activities fire negligence prevailing the to light most favorable the motion. the support denied court is insufficient party, the evidence v. of law. Crookston as a matter the verdict" ap- Plaintiffs parties appealed. T9 Both (Utah Exch., 799 P.2d 817 Ins. Fire dismissing Burton (1) Chief order pealed on 1991). decision a trial court review We (2) 63-304; limita- to section pursuant and a summary judgment a motion both $250,000 pursu- each damages to of their tion See John j.n.o.v. for correctness. motion (8) 63-30-84; the denial to section ant P.2d Agency, 913 Redevelopment v. son special dam- their interest prejudgment 1995) (Utah (summary judgment); 727 78-27-44; and section ages under (j.n.o.v.). Crookston, P.2d at 799 817 54(d) of the Utah Rule denial of costs cross- The District Procedure. Rules of Civil Liability Fire District's A. Weber its mo- court's denial trial appealed the 68-80-10 under Section to Suit j.n.o.v. on and judgment summary tions for Immunity Act the Governmental complete it was entitled ground that contends The District activities. fighting immunity for ruling that it was erred trial court Generally, appropri isit suit. immune from IMMUNITY II GOVERNMENTAL issues, particularly to address ate plaintiff a owes a whether defendant issue of that sections claim 110 Defendants addressing the care, prior to duty a of due 63-80-10(18)(b) 63-30-3(1) of the Utah immu of the defendant's defense affirmative com provide Immunity Act Governmental Emery See, v. e.g., nity from suit. Ledfors this address case. We immunity in this plete Dist., County Sch. are claims other plaintiffs' claimfirst because Petersen, P.2d (Utah 1993); v. Rollins provide does not only if the Act relevant 1991). however, Here, de (Utah 1156, 1162 Moreover, some of immunity. complete Burton Chief effect admit fendants on constitutional are based plaintiffs' claims and that plaintiffs duty of care a owed avoid should challenges, "'this Court reason, we For duty was breached. re unless issues addressing constitutional governmental directly the issue proceed Movement Peace World quired to do so.'" immunity. P.2d Corp., 879 Agency Newspaper Am. v. a three- established 1994) (Utah (quoting State 253, Ledfors gov- determining whether 1985)). analysis for step Anderson,

G21 entity immunity ernmental is entitled to un- governmental broad waiver of immunity for der Act. negligent acts of an employee committed in

First, activity was the entity per- course seope employment. "Im- governmental formed a munity function and from suit governmental there- of all entities by fore immunized from general suit injury waived for proximately caused grant immunity negligent contained section 63- act or omission employee of an 63-30-3(1).] 30-37 [Utah § Code Ann. committed within scope of employ- Second, activity ment...." if the governmental was a Code Ann. 63-30-10. function, has some other section of the Act jury verdict, Given the this waiver applies in waived that immunity? Third, blanket if this case. the blanket waived, has been question next

does the Act also contain is whether exception an that waiver which Act exception results contains an retention of to that waiver. immunity against particular Section 63-30-10 claim as- has several subsections that serted in this case? exclude certain activities from the waiver and thereby retain immunity. Subsections 15 Ledfors, 849 P.2d at 1164. 18(b) are exceptions two argu that are question, therefore, The first ably applicablehere. Section 10 states: driving is whether emergency vehicle to a Immunity from "governmental governmental fire is a suit of all function." This in entities quiry is waived injury is mandated 63-80-3(1), proximately caused a negligent act or general establishes of an principle of omission employee committed within immunity subject scope to certain ex employment except if ceptions. injury "Except may arises out pro be otherwise of: vided in chapter, all enti ties are immune any injury which results exercise a from of (15) operation an emergency of 63-30-8(1) § Code Ann.

function." vehicle, being while driven in accor- added). {emphasis The qualifies District dance requirements with the Section of grant this immunity blanket if Chief Bur 41-6-14; ton engaged in "governmental a func ..; or tion" at the time of the accident. See Utah 68-30-2(4)(a). Code Ann. Under this stat (18) the activities of: definition, utory we driving conclude that an emergency vehicle to the scene of a fire is a (b) fighting fire.... "governmental function" and is therefore presumptively immunity cloaked with by see added). (emphasis Id. exceptions These tion 63-30-8 of the Acts.3 Ogden Rollow v. Cf. general immunity waiver of are in the 475, City, (1926) 66 Utah 243 P. 791 (stating Therefore, alternative. the District im is respondeat doctrine of superior will not mune from liability if exception either is sat apply to municipality acting isfied. Although we have construed several capacity fires). fighting like exceptions in section 68-80-10 as to T15 The second issue under the waiver immunity,4 previ we have not Ledfors is provides whether the Act exception an ously (15) addressed either subsection or immunity. provides (18). Section 68-80-10 subsection 3. For purposes, constitutional scope gov- 10(1) exception natural condition found in ernmental may subject insofar itas be 63-30-10(11)); State, subsection Tiede v. 915 provisions to various Rights the Declaration of (Utah 1996) P.2d 500, (interpreting 502-03 as judicial, legislative, is a question. not a See battery exception sault and found in subsection Noble, DeBry 428, (Utah 1995). v. 889 P.2d 440 63-30-10(2)); Nixon v. Salt Lake 898 City Corp., (Utah 1995) P.2d 265, (interpreting 270-71 in See, e.g., 568, Nelson v. City, Salt Lake spection exception found in subsection 63-30- (Utah 1996) (interpreting discretionary 10(4)). exception function found in subsection 63-30- 622 bolstered sub is construing these 119 This conclusion T17 In (15) its reading subsection a detailed rules of long-standing sections, apply we Vehicle provision of the Motor to a reference pri "This court's statutory construction. 63-30-10(15) provides that Subsection Code. is to construing enactments objective

mary if the negligence attach for not shall intent." Goh legislature's give effect of an operation "the injury out of arises 1996) (Utah 561, Wood, 562 P.2d 919 ler v. vehicle, being in ac driven while emergency omitted). language of a plain (citation The of Section requirements with the cordance of that indication the best generally statute 68-80-10(15). §Ann. Code 41-6-14." Utah Mining v. Kennecott Perrine intent. accident, 41-6-14 At the time 1996). (Utah 1290, 1292 P.2d Corp., 911 provided: statutory language is Therefore, "where (1) emer- of an authorized operator The not look be do unambiguous, we plain and an vehicle, responding when geney meaning to divine plain language's yond the pursuit when emergency call or Royal Order v. Horton legislative intent." the law or suspected violator of actual or 1991) (Utah Sun, P.2d re- upon to but responding when omitted). of a language (citation plain The alarm, may exercise turning whole, and its read as to be statute section, subject to privileges under harmony other interpreted provisions (2). Subsection and "with statute in the same provisions vehi- an authorized operator of and related the same other statutes may: cle Erickson, P.2d v. Roberts chapters." (a) stand, irrespective of park or curiam) (citation 1993) (Utah (per 643, 644 chapter; provisions of this Div., Auditing omitted); v. see also Silver (b) signal stop or past a red proceed (Utah 1991); v. Osuala slowing down only after sign, but stop (Utah Cas., P.2d & Aetna Life necessary operation; may for safe Furthermore, "we ... 1980). possible where (c) speed limits maximum exceed the give statutory provisions so as construe endanger life or operator does not if the Schurtz terms." to all their full effect property; or Inc., Am., N. BMW of (d) governing regulations disregard 1991). the rule here is pertinent Most turning in movement or direction par specifically with a dealing that a statute specified directions. general a more prevails over ticular issue (3) this section Privileges granted under with arguably also deals statute that apply emergency vehicle authorized to an Brown, 701 P.2d v. Madsen See same issue. an audible vehicle sounds only when the 1985). 1086,1090 41-6-146, a or uses signal under Section 41- under Section signal as defined visual language of Giving full effect to in front of the 6-132, which is visible (15) (18) reading them subsections vehicle. statutes, apparent it is harmony with related (a) this section (15) privileges to the facts The applies only subsection an autho- operator of (15) relieve the applies to "the this case. Subsection do duty from the emergency vehicle vehicle," rized emergency operation anof regard for with vehicle operate the Bur activity Chief in which precisely the persons, protect or safety all accident. engaged the time ton was at consequences of an from the operator hand, is more (18)(b), on the other Subsection privileges. arbitrary exercise of to the waiv exception general; provides it an added). (1988) This (emphasis § fighting 41-6-14 ... Id. er of "activities alone, provision could this Standing privilege of fire." to the specifically refers section through a red case, emergency vehicle driving we conclude

arguably apply but an Be (15) a fire alarm. responding to applies light with when subsection that because the circumstances precisely are those cause govern. greater specificity, it should 63-80-10(15), which case, subsection Madsen, of this 701 P.2d at 1090. incorporates 41-6-14, is the more 4. He entered into the intersection specific provision and therefore controls over light red in a vehicle that was not 63-80-10(18)(b).5 subsection properly or adequately equipped to be an emergency vehicle. (15)

€20 But whether subsection in fact provides exception To return a verdict depends plaintiffs, waiver for the you must find preponderance of the evi- on whether Chief complied Burton's conduct requirements dence that: of that section. For the District to be immune under subsection i. The defendants negligent were 63-80-10(15), it plaintiffs' must show that one or particulars more of the alleged by injuries arose out operation of "the of an plaintiffs; vehicle, emergency being while driven in ii. The negligence defendants' was a requirements accordance with the Section proximate plaintiffs' cause of the injuries. 68-80-10(15) § Id. (emphasis add- 41-6-14." Concerning plaintiffs' theory second negli- ed). accident, At the time of the section 41- gence, the court jury instructed the provided pertinent 6-14 part: opera- "The operator of an emergency authorized "Itlhe tor of an may authorized vehicle proceed ... vehicle, responding alarm, when to a may past a stop signal red or stop sign, or but privileges exercise such ... as proceed[ing] slowing may down as necessary be after past a stop signal red or stop sign, but 41-6-14(2)(b) operation ...." Id. for safe only after slowing necessary down as for safe added). (emphasis Burton, Chief operation." jury To aid the in its resolution therefore, privilege had the of running the plaintiffs' theory fourth negligence, light only red if he slowed down as necessary trial gave court jury a detailed instruc- operation. for safe plainly presented This tion statutory on the requirements contained question factual jury. for the in sections 41-6-182 and 41-6-146 concern- ing how emergency authorized vehicles must B. Motion Judgment Defendant's equipped. Notwithstanding the Verdict jury found that Chief 121 The jm.o~v. District's motion for a Burton negligent in causing accident; question raised the of whether the evidence however, jury did separate not make supported jury verdict implicitly which findings plaintiffs' as to each of theories of found that Chief Burton qualify did not negligence. jury When "the does not identi privilege proceeding through a red fy theory or theories it relied on in light. Regarding plaintiffs' negli- theories of reaching verdict, its may we affirm the ver genee, the trial court jury instructed the jury dict if the properly could have found for follows: prevailing party one of the theo In plaintiffs this case the claim the defen- presented." ries Billings v. Union Bankers negligent dants were following re- Co., (Utah 1996) Ins. (citing spects: Dalton, Cambelt Corp. Int'l 1. Glen yield Burton failed right (Utah 1987) (additional citation omit way intersection; at the ted)). Thus, general the finding verdict 2. He entered the intersection at an Chief Burton negligent created a presump unreasonably high speed under the cireum- tion jury that the found in favor of all of stances; plaintiffs' negligence. theories of See Turn

3. He failed keep proper lookout; to a bull v. Byram, 891, 429, 235 Kan. (15) The conclusion that governs (15). subsection Every employees subsection gov- time of a this case duty is also mandated our to avoid entity ernmental response drove to a fire in to a interpreting a statute ain manner that renders alarm, (18)(b) gov- subsection would be the of the statute, or related portions statutes, mean- erning exception, and there would be no need to Schurtz, ingless. 1112; 814 P.2d at Olympia specific exception look to the more emergen- for Long, 1979). Sales Co. v. 604 P.2d 921 cy operation (15). vehicle found in subsection (18)(b) here, If applied subsection the reference meaningless This would render the reference to responding to to fire alarms in section 41-6-14 responding to fire alarms in section 41-6-14. any would meaning not have in the context of Burton, against Chief genee actions Corp. v. Rivair (1984); Credit Grumman 63-80-34, (Okla. § that Ann. Inc., on Utah Code Serv., based Flying supports 1992). jury evidence if the awarded damages Even the the cut court to against that is sufficient the negligence, judgment theory of and entered plaintiffs one $250,000 the verdict. for statutory sustain limit of the for District Thus, denied plaintiffs were plaintiff. each question is next The injuries personal remedy for their any sup to sufficient evidence was there whether only partial a given Burton and against Chief theories plaintiffs' one port at least reason for The remedy against the District. jury. On to the negligence submitted therefore, they appeals, plaintiffs' light in the evidence issue, "view[ ] we damages full amount denied the have been party." prevailing most favorable inju possible them for severe jury awarded Crookston, 799. One P.2d at (1) negli- jury's finding They argue they for ries suffered. factual basis driving too damages Burton Chief for genee abrogation is that of their (2) and there intersection fast as he entered as an individual against Burton Chief exemption qualify for not fore did damages amount of on the the limitation conflict (15). gave Burton Chief subsection unconstitu are against the District awarded entered speed as he his testimony as to ing contend Specifically, plaintiffs tional. forty ie., miles intersection, ten to 68-30-34, sets a § which Ann. Code Utah entitled jury was Because per hour. against government cap damage awards on was sufficient figure, there higher pick the Article under unconstitutional agencies,6 is failed to finding that he support a evidence provision, and open courts section requirement in subsection comply with operation of the uniform Article may 41-6-14(2)(b) be down "as he slow also contend provision. Plaintiffs laws there and was operation" necessary for safe 63-30-4(4), Ann. Code that Utah properly de trial court The negligent. fore by gov injuries inflicted for all actions bars j.n.o.v. for a motion nied the capaci in their individual employees ernment denial of trial affirm We court's negligence, negligence, gross by way of ties j.a n.o.v. motion for defendants' recklessness,7 unconstitutional provisions. same two III. CONSTITUTIONALITY . 63-80-4 SECTIONS OF society must se- just peaceful 126 A AND 63-80-34 of all its rights the fundamental cure law rights protected Among the basic citizens. § 68-80- Ann. Code Based Rights are the Declaration negli- by the Utah plaintiffs' 4(4), dismissed the trial court damage is characterized giving tion rise 63-30-34 states: 6. Section governmental. as (2), if (1) (a) Except provided in Subsection as this sec- damage limits established injury damages personal for judgment for a damages as com- apply awarded tion do not or an governmental employee a entity, entity has tak- governmental duty pensation when a entity has governmental whom $250,000 public property use person damaged private for one en or indemnify, exceeds just compensation. without two or $500,000 occurrence, one any occurrence, the court persons one more judgment to that amount. 63-30-4(4) shall reduce the states: 7. Section (b) judgment of may award A court joined action may in an employee An $250,000 injury one or death to more than entity representa- against a func- or not the person regardless whether complained omission capacity if the act or tive injury giving is characterized rise to the tion entity one for which of is governmental. liable, may employee be held may no but be (2), (c) if a Except provided in Subsection occur- acts omissions personally liable for or gov- damage a property judgment employee's performance of the ring during the gov- employee entity, whom or an ernmental duties, scope employment, or of within the indemnify, duty ex- entity to has ernmental authority, it is estab- unless of under color occurrence, one $100,000 ceeds in any to act employee or failed acted that the lished judgment to that court reduce shall malice. to fraud or due func- or not regardless of whether amount, right to be physical free from harm right, inflicted but keystone is also a of indepen others, right acquire to prop- and own dence of judiciary co-equal as a branch of erty, right and the people of to be free from government. Craftsman, See 1999 UT 18 at ¶¶ 32-54, injury (Stewart, reputations. at to their J., 1203-10 The civil and protect concurring). criminal laws those interests in dif- ways. ferent Criminal law pri- sanctions are Indeed, right that is of increasing marily designed protect society to large. at importance in the modern Politically world. Those sanctions do not person restore to a powerful special interest groups pursuing wronged by another the losses inflicted on their self-interests have from time to time person one's property. or Imprisonment sought to commandeer the law to advance protects against violations, further and erimi- their self-interests expense at the of a citi- nal fines state, inure to the benefit of the right zen's not justice to restorative by abrogat- the victim. Criminal law remedies do noth- ing remedies essential protection to the of ing provide to restorative compensatory or persons, property, reputation. See id.

justice persons to wronged by others; The protect need to right of access to the objective is left to the civil accomplish. law to courts led the framers of the Utah and some Thus, while the criminal thirty-eight other state constitutions to adopt and civil law are separate law, open they provisions, bodies of are also courts comple- which had their ori- mentary gins in components England system justice of a and in country in the designed safeguard to peace safety constitutions of the first thirteen states. See id. society. Ordinarily, justice restorative can accomplished, if only even approximately, legislative 130 The impetus abrogate to by money compensation for losses inflicted rights those has occurred from time to time person, property, one's reputation. or majoritarian because of indifference and even hostility plight of those whose funda 127 Unless the law person allows a rights mental are harmed only and whose right to vindicate in injuries a court of law judicial recourse remedy. is a By large, person, his property, good name and persons who personal suffer serious prop status the community, resort self-help erty injuries are an isolated and unidentifia will inevitably occur and result in violence. ble minority who have little leg influence on Thus, right compensato- restorative or islative actions. These considerations were ry justice indispensable is security instrumental adoption open courts the individual and security society clauses in a number of state constitutions. itself. Constitution, Under the Utah See id. As trenchantly Zimmerman Justice right protected arbitrary and unrea- observed in his concurring opinion in Conde sonably discriminatory laws. marin v. University Hospital, opinions Prior of this Court have (Utah 1989): long recounted the Anglo-American history The constitution's drafters understood principles protected by Article see political the normal processes would tion of the Utah Declaration Rights. always protect the common rights law right The of access to the courts and to a of all citizens to obtain inju remedies for remedy civil injuries, to redress which Article ries. Berry, 676; 717 P.2d at De cf. protects, section 11 is fundamental in An velopments in the Law: Interpreta The glo-American law. See Builder's tion Craftsman State Rights, Constitutional ¶¶ Supply v. Mfg., Butler 32-54, 1999UT (1982) Harv. L.Rev. (pro (Stewart, J., P.2d 1194 concurring); see majority tection of from politically power also Berry Aircraft, Beech ful approach minorities as an to state con (Utah 1985). importance The rights of these interpretation); Note, stitutional State and their English roots in law were examined Economic Substantive Due Process: A by Lord Coke and Sir William Blackstone Proposed Approach, 88 Yale L.J. ago. centuries (perfunctoryjudicialreviewis principle person entitled to access to the courts for a civil inadequate protect against special in only is not the basis of an individual legislation). terest time, At one 626 provision Bott, that court held a unanimous citizenry will of the percentage a small limited one's as it insofar unconstitutional and therefore harmed recently been have 9 to a Article section right under remedy from the a to obtain need will free from right to be of the violation any particular defendant of members unnecessary abuse. populace majority of the The vast class. legisla opposing in interest have no will cap the on dam argue that Plaintiffs 133 defendant protect such a to efforts tive unconstitu is to the District ages applied as readily majority will not the because class held Condemarin under Condemarin. tional unlucky persons few identify those I, 11 Article sections unconstitutional And those harmed. enough to have been damages awarded cap on and a will, in all directly affected persons few govern Hospital, a University of Utah the pre power to likelihood, political lack a performed held agency that the Court ment that, legislation passage of vent governmental" "proprietary" or "nonessential the cit every member of essence, requires services. medical providing function of by members of injured izenry is who fight fire that case contend Plaintiffs this of the or all bear some class to defendant governmental are not essential ing activities injuries. of those cost in De standards stated under the activities (Utah 1995), Noble,

Id. at 367. and P.2d 428 889 Bry v. un unconstitutional cap therefore that vein, in a {31 similar In somewhat a der Condemarin. Craftsman, Justice concurring opinion wrote: Stewart argues that District response, In governmental the Utah Constitution fighting is an "essential The Framers McCorvey controls. that I, 11 to anchor function" section Article included cap on dam- originated in rights McCorvey held constitutional the Constitution per- 1215and Magna agency English governmental Carta ages against func- peaceful governmental" forming to a the "essential essential among those are rights of those society. purpose design and maintenance. highway tion of kingly, parli- sovereign power, whether bar Thus, or whether Condemarin undermining amentary, legislative, or constitutionality governs the McCorvey arbitrarily judiciary and independent depends on the nature damage cap per- protect abolishing remedies agency, government performed, services indi- reputation of each son, property, or rendering liability in those the effect vidual. DeBry DeBry, 889 P.2d 428. services. See ¶ at Craftsman, 1999 UT Legislature principles legal held that the J., (Stewart, concurring). landmark Governmental established in Stan Immunity as construed Act of Damages Cap Constitutionality A. P.2d 1230 City Corp., 605 Lake v. Salt diford Fire District Weber (Utah 1980), proper constitu reflected governmental boundary those between tional the consti addressed has 132 This Court immunity under are entitled activities that caps on com statutory limits or tutionality of (subject legis immunity law governmental See Bott damages in three cases. pensatory waiver) subject Article (Utah 1996); and are not lative DeLand, P.2d 732 v. govern and those protections, Transp., 868 P.2d section Dep't McCorvey v. State subject im that are not activities (Utah University mental 1993); Condemarin subject remedies 1989). munity that are cases Two Hosp., 11.8 De by Article protected Ann. cap in Utah Code damage have held at 440. Bry, 889 P.2d In applied. unconstitutional 68-30-34 negli- provided for prior distinction Act abolished 8. The 1965 employees, wheth- gent state case law between conduct made development immunity, excep- municipal state, county, municipal, with some er prior Court cases decided started tions. addition, the Act Act. In to enactment of the G27 136 Prior to the enactment of the Gov ties that were immune and those that were Immunity 1965, ernmental Act govern not. See DeBry, 889 P.2d at 436-42. of immunity mental law in this state was entire Following Standiford, DeBry for the ly product judge-made case law. Under first time addressed the inherent tension be- law, that governmental case activities tween Article section 11 rights govern- proprietary deemed to be were not immune immunity. mental DeBry, In this Court stat- governmental activities deemed to be "governmental" ed: opposed as proprietary were Standiford, immune. See 605 P.2d at favoring governmental [Plolicies immunity 1231-85. The Immunity Governmental Act cannot be viewed in isolation from article 1965, 1965 Utah sought Laws 290 ch. section 11 and the harsh effect denying to rationalize conflicting and chaotic case dey- individuals a may what be law developed that had govern injuries. astating In applying the Standi- mental/proprietary test and other similar test, must, among Court other ford tests that the applied. courts had See De things, evaluate whether the effect of tort Bry, 889 end, P.2d at 432-40. To that promote would public safety or Act principles enunciated basic applied be defeat governmental essential or core ac- in deciding governmental what activities programs tivities and that are critical were immune and what were origi not. As protection public safety and welfare. nally enacted, the 1965 Act did not address the common law doctrine of immunity. official (citations DeBry, 889 P.2d at 440 and foot- Thus, lability government employees omitted). waived Legislature has as the except insofar P.2d 737.10 the respect to immunity, it has with as that why compelling reasons are There T41 vehicles, fire emergency such as operation of been, historically have fighting activities fire high- vehicles, public driven on fighting while govern- be, an essential deemed and should limitation of that ways. -It also follows to fighting is essential activity. Fire

mental damages under Utah Code District's in a com- property and safety persons of Arti- under is constitutional Ann. 63-30-34 fighting ac- in fire engaged munity. Those McCorvey, in 11 as construed cle duties, necessary tivities, discharging their P.2d 41. 868 activities highly hazardous undertake and persons protection necessary for the Liability Government B. The Historic requires instantane- fighting Fire property. Wrongs They Commut Employees for highly hazardous by persons in decisions ous Employment Their the Course of safety fire- cireumstances involve T{44 and separate now to the We turn security of the and the themselves fighters liability in his Burton's issue of Chief distinct Imposing large parts of it. community, or §Ann. 63-80- capacity. Code personal injuries lability legal for for potential against government abrogates all actions property is incom- occurring persons and to they others injuries cause to employees for fight- fire risks of the inherent patible with the em- property, unless person and their judicial assess- decisions ing. After-the-fact immu- fraud or malice. ployee acts with firefighter's decision propriety of a ing the employees government nity given fighting fire seriously impede effective could Act creat- to the and 1982 amendments caution over the value of by promoting as it existed sharp with the Act break ed Indeed, actions for tort prompt action. and, importantly, with more prior thereto on property based injuries persons or to for holding employees liable such prior law fighting result in fire could results untoward Utah, as in wrongs. The law their civil than safety, rather loss in in an "overall states, government had been most other even more so safety protection," and greater employees and like all business employees, respect to the enforce- with than is the case personally liable for were persons, all other DeBry, regulations. See building ment of injured prop- persons wrongs that civil P.2d at 441. erty of others. {42 reasons, law holds For these traditionally did law common [The community as a security of the that the pri- public officials distinguish between security is of individuals well as the whole as of determin- purposes individuals vate immunity for tort with more safe and secure liability. In tort scope personal ing the short, we it. In fighting than without fire fact, such distinction courts that drew it existed hold, the law as with consistent of care imposed a stricter standard often Act and consis prior the enactment individuals, private than on officials ac fighting policy, that tent with sound the con- personally liable for holding them governmental and core are an essential tivities non-negligent mis- simple, sequences of ‘ ivity.11 act takes. {48 Bermann, Integrating Govern fighting activities George that fire A. -Itfollows Liability, 77 Colum. Tort De- mental activities under governmental are core Officer immunity unless all, all, core activities entitled governmental functions 10. if not Almost immunity. nongovernmental Legislature But entities. waives performed can producing activity what- immunity subject is revenue Constitution and The more an to the likely this especially making, immunity. more profit imposes on such it ever limitations being nongovern- weighs of its factor in favor P.2d Condemarin, 428; See DeBry, mental. scope of the constitution- that the It follows 348. question judicial al limitations Legislature in a 1983 recognize that the 11. We DeBry, powers. separation doctrine Immunity Act Governmental amendment P.2d at essential, activities all labeled (1977). Thus, L.Rev. government Capwell, son v. 63 Utah 176 P. 205 employees could be sued in their individual (jailer subject held duty of due care capacity wrongful acts committed failing provide prisoner food, employment, course of their gov even when warmth, proper sanitary conditions); barred a suit ernmental Nelson, (1877) (mar Clinton v. 2 Utah 284 government agency Nevertheless, itself. subject shal held damages for tortuous recognized law important exception to prisoner); mistreatment of Payne see also general rule. If employ (Utah 1987). Myers, 743 P.2d 186 agents unduly ees or could adversely ¶46 government A agent employee or governmental affect operations by making performing a ministerial function could be discretionary subject suit, decisions to no liable even if agency itself engaged was liability would attach. long It has been the governmental in a function and was immune government law agents are not liable for example, For in Connell v. Tooele suit. injuries persons to property or that arise (Utah City, 1977), 572 P.2d 697 a court clerk implementation from the governmental was failing held liable for to pay docket the discretion.12 stated, As Professor Bermann fine, ment of a duty, ministerial even purpose qualified of this immun official though the court itself engaged in a ty is to making "public avoid unduly officials governmental function. See also Cornwall v. fearful in their [discretionary] exercise of Larsen, 571 1977); P.2d 925 Benally, authority and them from tak 6, 14 388; Jensen, Utah 2d 376 P.2d 2 Utah ing prompt Bermann, and decisive action." 196, 838; Bowman, 2d 271 P.2d 1 Utah 2d supra, at 1178. exercising judicial, Officials 131, 957; Harries, 262 P.2d Geros v. 65 Utah quasi-judicial, legislative or functions have 227, (1925).13 P. 236 220 immunity broad under somewhat different ¶ keeping 47 In with principles, these pri- 547, rules. See Pierson Ray, v. 386 U.S. 87 or to enactment of section 1213, (1967) 63-80-4 S.Ct. its (judicial 18 L.Ed.2d 288 form, present government employee who immunity); Brandhove, Tenney v. 341 U.S. governmental exercised 367, 783, discretion in good (1951) 71 S.Ct. 95 (legis L.Ed. 1019 personally faith was not liable for resulting immunity). lative Accordingly, against suits wrongs. Schackel, civil See Ross v. 920 P.2d government employees were limited to non- (Utah 1996) 1159 (prison employee exercising policy-making, nondiscretionary acts. what governmental Court held to be discre ¶45 jurisdictions, inAs most government liable); tion Turner, held not v. 21 Sheffield employees in this state personally were liable 314, Utah 2d (same); 445 P.2d 367 wrongs for civil committed a ministerial or Hjorth 324, v. Whittenburg, 121 Utah 241 operational capacity. State, See Frank v. 613 (1952) (state P.2d 907 road commissioner ex (Utah 1980) P.2d 517 (state-employed health ercising discretionary powers held not liable provider care subject held duty to tort of due damages property adjacent for to high care in rendering treatment); medical Benal Smith, way); 102, v. 31 Utah 86 P. 772 Garff Robinson, ly 6, v. 14 Utah 2d (1906) (official exercising what the common (1962) (police officer held liable failing for law deemed "quasi-judicial" to be authority safety exercise due care for prisoner); liable). held not Taylor, 196, Jensen v. 2 Utah 2d (1954) (driver ¶48 838 of fire truck held liable for long-established Under princi these ples, negligent operation truck); Chief of fire personally Burton would be Bowman liable Hayward, 131, 1 Utah 2d 262 plaintiffs P.2d 957 negligent for his driving. Jen (Utah 1953) (police sen, officer 196, held liable 888, for Utah 2d squarely P.2d battery assault and prisoner); on a point. Richard suggests Jensen operation that the 12. This "qualified," is characterized as necessarily dard is somewhat different from the absolute, because actions taken in bad faith required standard of reasonable care that is of all or with malice are not immune. persons generally. This modification of the stan- emergency dard of care for vehicles raises no case, In the Legislature instant in effect substantial constitutional issues. specified legal required the standard care operators emergency vehicles. This stan- liability any way; employee engine government a fire such as emergency vehicle anof indeed, accepted it. See recognized it governmental the exercise not involve does specifical- Act ch. 139. The Laws 1965Utah much like the instant facts On discretion. pur- agencies to city ly fire of a authorized case, the driver held Jensen for, employees indemnify negligently caus chase insurance liable engine personally injuries they in- hit judgments in a car them passenger ing injuries to a person property of others. city was immune though the flicted on engine, even 189, Laws of chapter 33 of Section Cornwall, held from suit. deputy Utah, respect provided: to a the same effect responding driving while negligent sheriffs any entity may insure A For similar emergency situation.

to an against all or employees or all of its State, P.2d 1171 cases, Day v. see also injury damage part of his (Utah 1999); 2d 376 P.2d Benally, 14 Utah negligent act or omission resulting from a Bowman, 262 P.2d 957. 388; 2d Utah regardless employment seope of his in the Jensen, 2d Compare entity immune or not said of whether Rollow, 475, 243 P. 791. 838, Utah 66 omission, for said act or from suit in a number of general rule This is also herewith such insurance is expenditure for driving respect jurisdictions with other public purpose. declared to be for See, Trac Indianapolis engines. e.g., Thus, Immunity Act of the Governmental 97, Howard, 190 Ind. v. & Terminal Co. tion any way government in affect 1965 did not Nadeau, (1920); v. 139 Russell N.E. 35 128 wrongs, liability for civil but employees' (1943); Garrity v. De 286, A.2d 916 Me. 29 government agencies provide that Act did 369, Co., Ry. 112 Mich. troit Street Citizens' against person employees their insure could (1897); v. Louis Frandeka St. 70 1018 N.W. 925, Cornwall, de liability. al 245, Co., 234 540 Mo. S.W.2d 361 Public Serv. law after the Govern the state of the scribed Brown, 437, (1950); 75 Nev. 345 v. Johnson in Immunity was enacted 1965: mental Act Co., (1959); v. Public Serv. 754 Woods P.2d Immunity Act Governmental (1913); 171, Siburg v. A. 1016 85 84 N.J.L. (1968); 556, does not in- Johnson, applies only to entities and Or. (employees) and such was clude individuals Earle, 243, A. v. 105 Vt. Ferraro Turner, Cross, by v. (1933); the court 152 W.Va. noted Davis v. Sheffield language no ex- . and the Act contains Rhodes, (1968); also Ruth see S.E.2d 899 [Llegis- (high employees from suit.... empting 66 Ariz. clearly expressed in that lative intent is way patrolman). entity portion of the Act which allows elsewhere, sum, Utah, 149 In employees against insure its "remedy by due course provided law negligent acts. their neg- injuries personal caused law" for (footnotes Cornwall, omit- vehicle, 571 P.2d at 927 emergency al- an ligent operation of above, ted). plain- law stated light In of the negligence has been though the standard inju- compli- remedy had a for their free such vehicles tiffs would have modified to 63-80-4 prior enactment of section ries regulations. Under traffic ance with certain present its specifically under generally, law form. Cornwall, which held drivers Jensen and Abrogation Constitutionality C. for the manner emergency vehicles liable Against Remedies Government drove, be they Burton would Chief Employees injuries he caused personally for the liable have had a plaintiffs plaintiffs would {51 constitutionality now to the We turn prior to remedy law as it existed under the Article Ann. 68-80-4 of Utah Code Ann. to Utah Code the 1982 amendment 63- In 1978 and section § 63-30-4. against actions to bar all was amended Immunity Act as fault-based con- employees for 150 The Governmental government and malice. except for fraud initially the law duct enacted in 1965 did not affect §52 case, abrogation Whether of those remedy the substitute defini- violates equal remedies Article section 11 de tion remedy abrogated. Thus, pends application on the specific of the two standards issue we now address is in Berry Aircraft, enunciated v. Beech damage 717 whether limitation is constitu- (Utah 1985): P.2d 670 tional recovery when it limits in an action is a substitute an against action First, section 11 if is satisfied the law government employee. provides injured person an effective and remedy "by reasonable alternative due case, plaintiffs 154 In this have an alter- course of law" vindication of his consti- remedy native to the against Chief Burton in tutional interest. The provided benefit against the form of an action the District. substantially equal substitute must be however, remedy, That unlike the traditional in value or other benefit remedy to the. remedy against employee subject abrogated providing essentially compa- and, damage therefore, limitation is not protection rable per- substantive to one's "substantially equal" to the preexisting reme- son, property, reputation, although dy against employee. form remedy may of the substitute be different.... abrogation 2. Is justified by a clear social Second, if there nois substitute or alter- or economic evil abrogation and is arbi- remedy provided, abrogation native . trary? remedy may justified or cause of action However, if there is a clear social or economic conclusion reached evil to be eliminated and the elimination above that limited the existing legal remedy an government ageney is not an equal arbi- is substitute trary or achieving remedy against unreasonable means for government em objective. ployees necessarily does not mean that abrogation is unconstitutional.14 The second (citations omitted); Id. at 680 see also Crafts part Berry test holds that if there is no man, 18, 1194; Hirpa UT v. substitute remedy or alternative of substan (Utah 1997). Hospitals, 948 P.2d 785 IHC value, tially equal abrogation may never 1. equal Is there an alternative remedy to theless be constitutional "if there is a clear abrogated remedy against Bur- Chief ‘ social or economic evil to be eliminated and ton? existing legal remedy elimination of an is 158 It stands to arbitrary reason that under the not an and unreasonable means first an abrogation standard objective." remedies is achieving the Berry, 717 P.2d at Craftsman, 680. In 1999 UT constitutional if there "an effective remedy" reasonable alternative recently that is "sub- we held constitutional a build stantially equal in value or other repose benefit to er's abrogation statute of because the remedy abrogated." Berry, 717 P.2d at remedy by of a repose a statute of had a de person's To the extent that a damages plaintiffs' minimus effect on the actions damage are less than the against limitation of the builders repose and the statute of $250,000 imposed by 68-80-34, justified by the was undue economic and other vein, remedy against In a like Hirpa, 948 P.2d governmental agency, burdens. remedy a against govern- substitute for a Act, held constitutional the Good Samaritan employees, ment is constitutional because it which personal injury immunized from ac respects is in all remedy equivalent a provided value tions who professional doctors care remedy against employee. emergencies How- persons who were not their ever, to damages by effect, the extent the patients. awarded In the Court held that statutory limitation, court exceed the abrogation justified as in of a Beds, Valley 14. Sun Hughes Water Inc. v. liability Herm & does not control here because the of an Son, Inc., held that a 1989), agency liability is predicated on the of the em claim for the damages against same or similar ployee. relationship If the is not one of respon- different defendant was not an "alternative reme superior, certainly deat it is similar. dy" purposes. for Article section 11 That rule Legisla that the injured But that is a burden persons ment. greater protection assumes; legal voluntarily it has no ture from doctors. receive would Sweet, obligation to do so. See Forseth not assert that the do Defendants (1968); Phillip 158 N.W.2d 370 Wis.2d is necessitated this case abrogation in Annotation, Hassman, E. Indemnification social, economic, Defen or other evil. some 71 A.L.R.3d 90 Employee, or Public Officer justification policy or no factual assert dants (1976). gov abrogation of remedies for the saving than the employees other ernment justified abrogation be 160 Nor can the already Indeed, has money. Condemarin employee im ground that on the reducing government the cost held that performance of with the pedes or interferes lability types of liability for certain assuming Defendants responsibilities. requiring justification for was not sufficient Indeed, law the common not so contend. do injured seriously persons to assume the most against governmental officials actions barred Condemarin, 775 of that cost. See the whole im operations would be when P.2d 348. indeed, underly That, policy peded. is the judicial immunity already ing legislative provid- Legislature has 157 The liability for administrative and government agencies exception means for ed the exercising gov employees from the cost of when protect employees their executive Bott, generally are autho- liability. government entities See All ernmental discretion. contend Nor do defendants 922 P.2d 732. "employees against lia- their rized to insure necessary abrogation of remedies is injury that the part, or bility, in whole or damage resulting treasury from an act or omission protect public from insolven performance burdens, of an em- occurring during the or cy unduly tax or burdensome ... regardless ... of whether ployee's implementation duties enforcement entity immune from suit for that act programs policies or would be government Ann. 68-30- or omission." Utah Code Indeed, of civil jeopardized. the existence 33(1)(a). right has no And the insurer against government employees for remedies from either or contribution indemnification they wrongful con damage cause their entity employee. government jurisdictions all American duct in almost 63-80-88(1)(c). §id. compel of a strongly evidences the absence ab ling justification for an across-the-board Furthermore, employ- government 158 government rogation against of remedies statutory right protected are the ees employees. representation provided and legal have if agency an right the to indemnification from Furthermore, operates in a cap the 161 occurring employee for an act the is liable discriminatory insidiously capricious employee's "during performance of the First, insidiously cap discrimi- fashion. 68-830-86(1). Ann. duties." Utah Code seriously by allowing those who are not nates Thus, employee protected from financial an is injured damages denies to recover full but govern- the law now stands. And loss as seriously recovery who are most full to those protected agency ment itself can also be damages cap. injured exceed and whose short, agencies government In insurance. seriously injured must who are most Those spread in the can the risk of loss same in reduc- greatest bear the burden therefore private agencies can. manner as result is a vicious ing government costs. The remedy full most need a argue policy: there those who do not 159 Defendants on their with the devastation wreaked financial burden on the deal would be an undue severity and families because government government employees if are lives recovery injuries are denied that on inflicted personally for torts committed held liable protecting the entire burden public and shoulder highways. To the extent treasury, those while government's government experiences financial burden altering injuries less life receive whose are employee liability, it is because the injuries compensation full their Legislature employees for dam- indemnifies Thus, cap at all. they employ- shoulder no burden ages incur in of their the course (1977) 2173, imposes persons few who are most 53 L.Ed.2d 223 (remanding for seriously injured impaired the cost of factual determination on whether medical reducing governmental expenses. malpractice actually existed); Chief Jus- crisis Lucas v. States, Supreme (Tex.1988). tice Bird of the California Court in United 757 S.W.2d 687 addressing constitutionality damage Inc., aof But see Johnson v. Hosp., St. Vincent cap 374, 585, observed: 273 Ind. 404 N.E.2d (upholding partial limitations where there is $250,000 [The limit ... grossly underin- remedy). alternative by any

clusive standard. Millions of [ie., taxpayers] healthcare consumers rely 163 Defendants on Masich v. Unit gain savings stand to from whatever ed Smelting, Refining Co., States Mining & Yet, produces. limit the entire burden of 101, (1948), 113 Utah for the paying for this benefit is concentrated on a proposition abrogation that the remedy of a injured badly handful viectims-fewer against government employee in this case year than 15 in the MICRA was enacted. justifiable Legislature provid because Although Legislature normally enjoys remedy against ed a limited alternative gov distributing wide latitude the burdens of agencies. ernment We have held above that personal injuries, singling out of such a substantially alternative is not a group minuscule and vulnerable violates equal remedy. support Masick does not undemanding even the most standard of oppositeposition.1 underinelusiveness. Legislature's 164 The pro concern for Fein v. Group, Permanente Med. 38 Cal.3d tecting state, the financial resources of the 137, 368, 665, Cal.Rptr. subdivisions, municipalities its and its is cer Condemarin, (Bird, C.J., dissenting), quoted in justified. tainly Those resources could be 75 P.2d at 355. 7 by unexpected threatened and unforeseeable events, in part

162 It was certainly Legislature kind of invidious should discrimination that was the precautions basis the hold take protect against events State, ing 206, v. 219 Mont. might threaten those resources. Cata Pfost (1985), strophic which held unconstitutional events could have severe financial damage cap on actions A consequences government the state. if there were number of other courts have also held dam unlimited civil in such circumstances. unconstitutional, age caps Congress albeit statutes recog of the United States dealing See, malpractice. e.g., medical enacting nized as much in the Price Gibson, Waggoner F.Supp. 1107 Anderson Act of example, (N.D.Tex.1986); Wright v. Page Central Du placed cap an overall on the total amount of Ass'n, Hosp. damages Ill.2d 347 N.E.2d that could be recovered as result (1976); 748 Malpractice Kansas Victims Co of a nuclear accident. See Duke Power v. Inc., Bell, Study 333, P.2d 251 Carolina Envtl. Group, 438 U.S. alition v. 243 Kan. 757 59, 2620, (1988); Maurer, 925, 98 S.Ct. 57 L.Ed.2d 595 Carson v. 120 N.H. 424 825, (1980) (state A.2d 838 capped (sustaining law constitutionality of Price Act, 2210). amount companies pay 8, insurance §§ could to Anderson 42 U.S.C. How victims); Olson, 125, ever, Arneson v. ordinary 270 N.W.2d personal injury this is ac (N.D.1978); Simon v. against government St. Elizabeth Med. tion filed employee a Ctr., (Ohio 903, Misc.1976) 355 N.E.2d entity injuries by negligent caused (dictum); Texas, Baptist Hosp. operation public highways, Southeast of vehicles on and of Baber, 296, Inc. v. (Tex.App. common, everyday S.W.2d experi actions are 1984); Ins., see also Department Smith v. All per ences. of drivers vehicles are held of (Fla.1987); 507 So.2d 1080 sonally negligence Jones v. State Bd. highways. liable for on the Medicine, decades, 97 Idaho many high 416 For cost of medical of (1976), denied, expenses, cert. wages, property damages U.S. 97 S.Ct. lost and argues Legislature 15. The District negligence. argument historically ex- This panded governmental liability pro quid quo a attempt as incorrect. Defendants' to fit this case eliminating employee liability for recklessness into the mold of Masichkis errant. Response Justice Howe's miti- D. accidents has been resulting from such Chief Opimions to the motor- Zimmerman's by spreading those costs Justice gated by the doctrine by insurance and ing public opines Howe that see 167 Chief Justice govern- Certainly, superior. respondeat of not violate section 11 of tion 63-30-84 does to business estab- agencies are similar ment Rights. He errone Declaration of the Utah legal cost of liabili- spread the lishments that P.2d 186 ously Payne Myers, v. relies on employees over a wide ty by their incurred (Utah 1987), proposition un- assumption of such costs is The base. damage cap Payne held is constitutional. pay, agency that must but for an comfortable right abrogation person's of a generally that more so than the world ordinarily it is no employee to sue a state was constitutional where business entities private business right injured person had a to sue because the liability accept as a cost required to are negligence. employee's See the state for the injuries that are caused for the business Payne did not entity Payne, 743 P.2d at 190. of the act for and on behalf those who the issue was not even goals. address at all-indeed pursuit of its cap the rem before Court-whether governmental recognize T65 We and fair edy constitutional as a full sub was liability, may such budgets be affected remedy against a for an action state stitute liability may fall more of such and the burden employee. id. at 186-90. See agencies heavily on smaller larger entities be municipalities than on wholly ignores 168 Chief Justice Howe However, of smaller tax bases.16 cause requires a conclusion con the case law that highly farsighted ac Legislature taken has trary He does not to the one he reaches. agencies to deal with those tion to allow such University Hospi cite v. even Condemarin problems. tal, 1989), held that which for sustain- The traditional rationale T66 damage cap in was un section 68-30-34 concept ing damage caps, and indeed injured applied as and that an constitutional such, poten- immunity is the as damages, except person right has a to full government agency. tiality bankrupting a sovereign immunity applies. Nor does when however, provided, Legislature has DeLand, he cite Bott v. cope with the financial reasonable means (Utah 1996), injured person held an judgments. large potentially burden damages cap entitled to full and the unconsti First, outright. damages are barred punitive McCorvey Department tutional. State 68-80-22(1)(a). § Ann. Sec- Code (Utah 1993), Transportation, P.2d 41 ond, provides Ann. 63-80-26 Utah Code argu support not Justice Howe's does Chief may any create and political subdivision It held that because the state ment either. purpose maintain a reserve fund for immunity partially, cap had waived protect purchasing insurance the state could have constitutional because Third, money judgments. subdivision from immunity altogether. to waive refused payment provides that section 63-80-24 MeCorvey with the constitution did not deal political judgment claim or ality cap respect to a substitute pay- installment may made subdivision subject sovereign claim not for a year fiscal during ments if funds the current all, in the instant case. at adequate pay are the amount due. ignores 169 Justice Zimmerman also provisions clearly possible make it These Condemarin, a case in which both Bott and responsible for government agencies to be concurring opinion strongly sup wrote a private he injuries employees inflict on their Berry v. Beech and our Arti governmental op- porting imperiling without citizens Aircraft I, jurisprudence. He wrote: cle section erations. instances, many irrespective sovereign of the fact Although purpose tained in 16. public treasury considerably protect municipalities' from has been said to treasuries were that depletion, law the DeBry, it is fronic that at common See than that of the state. smaller immunity, enjoyed whereas states an absolute 428. P.2d against municipalities could be main- actions ple special protection But is no reason to consider that deserve there in the mael- group politics strom great today of interest that is issue detail because this legislative process. Among analyzed the interests properly case is the due to which the Utah Constitution's drafters process balancing approach Berry in assigned degree sanctity are those applicable considering dicated is when arti I, mentioned in article I, section 11. questions.1 cle section 11 present given The case has me a better [ie., agree 1 I cannot with the Chief Justice appreciation including of the wisdom of process-type balancing Hall] Gordon that due analysis inappropriate here. Plaintiffs have I, guarantee article section 11's in Utah's raised I, the article section 11 issue in certainly basic charter. The constitution's drafters by arguing legislation infringes this case that the political pro understood that the normal rights protected by provision. plain While may phrased portions tiffs have some of this always protect cesses would not the com argument protection equal concepts, in terms of rights mon law of all citizens to obtain certainly we analyzing are not limited to so injuries. Berry, remedies for 717 P.2d Berry precisely issue. teaches it is due process concepts, equal rather than those of 676; Developments at in the Law: The protection, rights pro that are involved when Interpretation State Constitutional I, tected article section 11 are claimed to 1324, Rights, 95 Harv. L.Rev. abridged. have been 717 P.2d at 675-81. Therefore, (1982) (protection majority appropriate it is for us to use due politi process analytical treating methods when such cally powerful approach as an minorities claims, parties approach may whatever have Note, interpretation); state constitutional taken to the issues. State Economic Substantive Due Process: Condemarin, 775 P.2d at 367-68. Proposed A Approach, 88 Yale L.J. posi 170 Justice Zimmerman's current judicial (perfunctory review is quite extraordinary. tion in this matter inadequate protect against special inter The fundamental issue he addresses was not time, legislation). est At one raised, briefed, argued or in this His Court. percentage citizenry small of the will have opinion personal expression private is a of a recently been harmed and therefore will opinion properly related to no issue before need to obtain a from the mem Indeed, Craftsman, Court. 1999 UT any particular bers of defendant class. ¶ 108, argued 18 at he majority populace vast of the will have point, although raised, same it was not opposing legislative no interest efforts briefed, argued. or Zim Because Justice protect such a defendant class because concurring opinion erroneously merman's majority readily identify will not stated the law that has existed in persons unlucky those enough few to have fifty years over and has been concurred in persons been harmed. And those few di justices, respond at least thirteen I different rectly will, likelihood, affected in all lack lengthy concurring opinion rebutting ed in a political power prevent passage ¶¶ position point by point. his See id. at 32- that, essence, legislation requires ev J., (Stewart, concurring). ery citizenry injured member of the who is concurring The reader should refer to the by members of the defendant class to bear opinions in for the full text of the Craftsman injuries. ¶¶ some or all of the cost of those 32-155, arguments. See id. at Admittedly, majority the interests of a populace commonly of the are overridden so, year T71 Until the last Justice and, indeed, legislative process, in the such proponent Zimmerman was a foremost overriding may respon- be essential process-type in Berry, due test laid down operation representative sible aof deliber- construing Article section However, body. very ative act of Indeed, jurisprudence. he far even went so drafting ours, a constitution such as abrogate as to assert that statutes reme power does not bestow unlimited on the protected by dies that are Article

legislature and which does reserve certain presumed 11 should be unconstitutional. See rights people, recogni- Condemarin, constitutes a (Zimmerman, 775 P.2d at 368 J., tion that there must be some concurring). limits on the other of this No member legislature, peo- now, that gone some interests of the ever that Yet he Court has far. "A trial decision to 78-27-44.17 court's Craftsman, that "the asserts, in he did as I, ... section 11 should be language of article deny prejudgment presents grant or interest guarantee and that we procedural read as for question of law which we review correctness." second-guessing largely retreat should Wilcox, Cor nia the substantive matters legislature on omitted). (Utah 1995)(citations ... within reach been] [the] [had that plaintiffs' re- T74 The trial court denied op. at €90. The ex Berry." Zimmerman language traordinary attempt quest prejudgment to rewrite the interest on the basis for by fully section 11 is discredited properly in Article prejudgment interest is classi- that itself, provision language of the as plain "damages" as under section 63-80-34 fied my opinion in See pointed out in subject cap, Craftsman. therefore to that section's and is ¶¶ 56-63, 974 P.2d 18 at Craftsman, 1999 UT already plaintiffs had reached. Since (Stewart, J., concurring). position His unconstitutional, the trial section 63-30-84 is progeny have somehow Berry and its that deny plaintiffs' claims court was incorrect law was like the common constitutionalized grounds giv- prejudgment interest on the for exchange. id. fully in that wise rebutted denying trial en. The decision of the court ¶¶ 32-34, 974P.2d 1194. at in- prejudgment interest is reversed with acknowledges Zimmerman Justice prejudg- issue of structions to reconsider the heavy that carries a burden he interest on remand. ment very reversing in his decisis doctrine of stare met that position. His assertion he own opinion Craftsman, in separate in V. COSTS

burden his ¶¶ 108-155, 974 P.2d 1194 at 1999 UT 18 175 Plaintiffs claim that the trial court result); (Zimmerman, J., concurring refusing them costs under erred award joined No one far wide of the mark. joined Procedure. opinion Rule 54 of the Utah Rules Civil position. My concurring 54(d) Durham, by provides: and Jus Rule Associate Chief Justice agreement with that his tice Russon stated (1) Except To whom awarded. when majority opinion. opinion in a footnote in his express provision made either therefor ¶ Moreover, at 974 P.2d 1994. See id. rules, in a statute of this state or in these justices have all taken thirteen Court costs shall be allowed as course to the pro position that Article party prevailing unless the court otherwise rights to the citizens of vides substantive however, directs; provided, ap- where an to that effect extends Utah. case law Our peal proceeding or other for review is tak- century, pointed I out over half action, en, costs of the other than costs Zimmerman stands Justice Craftsman. appeal pro- connection with such or other espouses. alone in views he review, ceeding the final for shall abide IV. PREJUDGMENT INTEREST determination of cause. Costs Utah, agencies the state its argue 173 Plaintiffs the trial officers imposed only permit- to the extent awarding prejudg shall by court erred them by Ann. pursuant ment to Utah Code ted law. interest special damages actually in- states: the amount of Section 78-27-44 the verdict of the (1) curred that are assessed brought In all actions to recover dam- by any court, ages personal injuries sustained jury, by the interest on that or found person, resulting from or occasioned rate, legal amount calculated at the as defined tort of associa- other corporation, person, 15-1-1, in Section from the date of occur- tion, partnership, negligence or whether or giving rence of the act rise to the cause of corporation, person, willful intent of that other entering judgment, action to the date of association, or and whether partnership, judgment. and to include it in that otherwise, injury fatally shall have resulted section, (3) "special damages As used in this plaintiff complaint may in the claim inter- actually damages not include incurred" does special damages actually est on the incurred future future medical loss expenses, from the date act of the occurrence earning capacity. wages, or loss of future giving action. rise to cause of (1996). § 78-27-44 Utah Code Ann. court, duty entering It is action, judgment plaintiff in that to add to datory party language The who leaves no discretion to How assessed. the therefore, days court; must within

claims his costs we review this decision for five entry judgment upon the the serve correctness without deference to the trial after of party against whom costs are adverse request court's conclusion.18 The Walkers' claimed, copy of the of memorandum was denied on the basis of the trial court's necessary items of his costs and disburse- agency conclusion that the District was an of action, ments in the with the court ruling file the state and that no statute or court duly a like memorandum permitted imposed against verified costs the thereof stating knowledge to affiant's the District. We review this conclusion for cor correct, items are and that the disburse- rectness without deference. necessarily ments have been incurred in requirement 177 The in Rule proceeding, the action or 54(d)(2) party that "the who claims his costs 54(d) added). (emphasis R. P. Utah Civ. days entry must within five after the plaintiffs' requests trial court denied judgment" file with the court a verified mem First, grounds. costs on two different re- disposition orandum of costs controls our garding Lyons' request, the the court denied Lyons' request the for costs. The trial court Lyons satisfy costs because the did not the 11, 1995, judgment July issued its and the 54(d)(2) above, portion emphasized of Rule Lyons did not file a verified memorandum of requiring filing of a verified memoran- July costs with the trial court until 26. This days entry dum of costs within five after the beyond five-day is well deadline of Rule Second, judgment. regarding the Walk- BA4(d)(2). As we stated in Walker Bank & request, ers' the court denied costs because Trust v.Co. New York Terminal Warehouse statutory authority permit- of the absence of Co., satisfy requirement failure to ting required by the award of costs as filing a verified fatal memorandum costs is 54(d)(1) above, emphasized sentence Rule to a claim to recover costs under Rule 54. conditioning awarding "[closts Bank, 210, 216, See Walker 2d Utah, agencies." the state of its officers and (1960). Here, as Walker reasoning regarding Id. The trial court's Bank, Lyons' failure to file the verified correct, Lyons' request but the trial court days memorandum of costs within five request by erred when it denied the Walkers' judgment prevents 54(d)(1) the award of costs. applying the last of Rule sentence the District. however, Lyons argue, 178 The begin by stating 176 We they preserved the issue costs appropriate Generally, standard of review. July appeal objecting on 6 to the lack of determination to award taxable costs is "Itlhe any provision proposed judg in the for costs within the sound of the trial discretion court ment and the order of motions drafted and will not be disturbed absent an abuse of defendants for the trial court's use. This (U.S.A.), Ong the discretion." Int'l Inc. v. argument Though is without merit. (Utah 11th Corp., Ave. Lyons' objection preserve does the issue of 1993) (citations omitted). case, In this how above, appeal, costs for as we stated to be ever, the reasons for the trial court's deci Lyons eligible to receive costs the had to deny plaintiffs' requests sions to are for costs 54(d)(2). satisfy requirements of Rule legal determinations. As to the court's ratio so; therefore, They trial failed to do denying Lyons' request, nale for Rule Lyons' denying court not err did 54(d)(2) party commands who "[the request for costs. days his costs must within five after claims entry judgment" file with the court a are 179 Whether Walkers duly R. entitled to recover their costs turns on the verified memorandum of costs. Utah 54(d)(2) added). 54(d)(1) (emphasis requirement P. Rule that "[closts Civ. This man Watson, By concluding that the trial court's decision clusion in Watson v. five-day regarding filing requirement is a Ct.App.1992), is reviewed un- decision legal determination, which we review for cor- der an abuse of discretion standard. rectness, this author disavows the con- expressly Utah, separate protection its officers and the reference to fire dis- against the state meaningless. tricts would be Because imposed to the extent the agencies shall state, agency District is not an of the the by against permitted law." To recover costs by denying trial court erred the Walkers Utah, agencies," its officers and "the state of request require- for costs on the of the basis point prevailing party must to a statute 54(d)(1) ment in Rule that "[elosts expressly or clear or rule of court Utah, agencies the state of its officers and implication waives the common law rule that imposed only permitted shall be to the extent For this restric- costs are not recoverable. trial law." The court's denial of the here, awarding applicable tion on costs to be request Walkers' for costs is therefore re- agency an of the state. the District must be versed and remanded for a determination of review of enactments 180 Our what costs the recover. Walkers should Legislature indicates that the District is not 81 Associate Chief DURHAM Justice in agency. a state Several statutes the Utah opinion. in concurs Justice STEWART's juxtapose Code the state of Utah and its agencies protection districts like the with fire HOWE, concurring in Chief Justice: defining "public example, District. For in result. 11-81-28) body," section states: I concur the remand for the any body" and "Public means the state purposes summary. join I stated public department, public ageney, or other holding that section 63-80-34 is constitution public entity existing under the laws (Utah Payne Myers, al. In v. state, limitation, including, any without 1987), we held that the 1978 amendment agency, authority, instrumentality, or in- 63-80-4, abrogated right section state, any county, city, and stitution injured person an employee to sue a state town, municipal corporation, quasi-munici- negligence, did not violate article section pal university college, corporation, state or injured person given 11 because the district, special school service district or right employee's sue the state for the district, district, special improvement other Now, negligence. plaintiffs in the instant district, conservancy metropolitan water case contend that that substitution is not an district, district, drainage irrigation water effective and reasonable alternative because district, district, protection separate Hability capped provided the state's as fire legal entity or administrative created un- $250,000 any section 63-30-84 at one Cooperation der the Interlocal Act or other plaintiff. argue despite Plaintiffs joint entity, agreement redevelopment McCorvey Department Transpor State subdivision, agency, any political tation, other 1993), where we

public authority, public agency, public damage cap held that did not violate existing trust under the laws of the state. process article nor the due operation clause or the uniform of laws 11-82-2(7) (1999) (empha- §Ann. Utah Code clause in the Utah Constitution. 11-7-1(2)(d) ("Ev- added); sis see also id. ¶83 Supreme Oregon, Court of ery incorporated municipality every county may pro- ... construing open contract receive fire provision, that state's courts district, any agen- Utah's, tection ... fire state which is almost identical held in ...."); cy, Astoria, governmental agency or federal Mattson v. 39 Or. 65 P. 1066 11-84-1(2) (same 11-82-2(7)). (1901), §id. legislature may modify as section "public body" "any This procedure section defines as and former and attach precedent state, conditions to the exercise of the agency ... of ... fire district," protection any agency right violating open pro of the without courts including any protection state legislature fire district. vision. Thus should be ac Thus, plain language under the in providing the stat- corded broad discretion an al ute, protection categorized remedy. $250,000 districts are ternative I believe that a agency judgment against with other nonstate entities like coun- the state effective ties, towns, metropolitan water possibly districts. and reasonable substitution for a state, If the agency greater judgment against employee. District were an a state appears amount available at common law un say experience has shown I this because acceptable Berry's prong. first Pro employ large judgments against state negligence are often uncollect ees for their ceeding prong, they to the second would hold employees have no in Typically, that there is no "clear social or economic evil ible. abrogation risk, have few to be eliminated"and that the coverage for such a surance assets, unexempt are forced to personal damage and the common law is an "arbi judgment against discharge trary achieving" a of the unreasonable means for seek Berry, objective. bankruptey. legislature's in While the state cur the declared them employees, leg ¶¶ rently indemnifies state the op. 17 P.2d at at Stewart 55-67. 680; 7 repeal providing statute islature could the ¶87 side, On the other Justice Russon large judgments if indemnification joined by opinion in an authored has Chief employees to against become burdensome damage uphold Justice Howe that would the judg plaintiff A recovers a the state. who satisfying prong the cap Berry. first as our the state under ment They although reason that the problems of collecti- act faces none of those $250,000, capped plaintiffs at the bility. my opinion, In the substitution of they something receive would not have is effective and reasonable. remedies preexisting had under the common law-a ability up collect certain award the ¶ in 84 Justice concurs Chief RUSSON Thus, by substituting cap. a concurring in HOWE's the result Justice entity governmental employee for a as the opinion. financially responsible party, legislature the Justice, ZIMMERMAN, concurring in the provided plaintiffs the with a "reasonable has and result with Chief Justice HOWE Justice remedy," potentially alternative albeit a far > RUSSON: damages. smaller award of ¶85 The members of the court are other ¶88 join opinion I do.not in either the equally divided on the merits of the central I, uphold point. article section 11 I would casting deciding issue in this case. I am caps Berry because I would overrule and join vote. I Chief Justice Howe and Justice reject two-step analytical. I model. ac its upholding damage caps Russon in con knowledge calling that as one for the overrul in How tained section 68-30-34 of Code. court, carry ing precedent I a of a of this I, ever, join I in article section do not their heavy the doctrine of stare burden under purports 11 rationale to follow the two- Menzies, decisis. See State step analysis Berry Aircraft, v. Beech However, 1994). I believe I (Utah 1985). explain my I P.2d 670 Before burden, explained my have met views on the merits of the constitutional chal separate opinion in Builder's Craftsman lenge 11 of mounted under article section Co., Supply, Manufacturing, Inc. v. Butler Berry, recap 1 will Utah Constitution ¶¶ (Zim 108-155,974 P.2d 1194 1999UT positions of the of the court as members result). J., merman, concurring in the preface. ¶89 ¶86 side, main the one Associate Jus I will summarize On points lengthy opinion here: I from that joined opinion tice Durham has in an au proven employ Berry thored Stewart that would concluded that has unworkable Justice step and should be abandoned. The two test two-step analysis Berry to strike down $250,000 In damage cap established see it is without solid definition. advances it, tion 63-30-34 of the Code. Under the first repeatedly effort to make sense of we have test, they years the fifteen since prong Berry would find that shifted course over Berry decided. This had led us to effec cap provide does not a "reasonable alter remedy" negli law, and, native for the common law tively the common constitutionalize enactments, recently, legislative gence special general damage even award most beyond attempts plaintiffs put them the reach would have been entitled exposure to tort employee legislature to reduce receive from a state absent Kability. ¶ 123, 1194; 974P.2d See id. at them, any For reduction the dollar Dep't Safety, Public Day joined any ex rel. v. State 91 No member of this court (Zimmer ¶46, 54, P.2d 1171 1999 UT my opinion Yet portion Craftsman. result, man, J., Berry dissenting). As a has departs again today, the result reached relationship to our constitutional requires. distorted Berry what Chief Justice Howe's position placed us legislature opinion, although seeming apply Berry legislative policy judg having to review test, any meaningful ap- is inconsistent with skepti novo basis ments on a de as, plication Berry, example, simple employ nowhere else. See cism we Crafts comparison reasoning of his with that set ¶ 138, man, 974 P.2d 1194. 1999 UT Beds, Berry Valley forth or Sun Water call for an aban lead me to These failures Son, Inc., Hughes Inc. v. Herm & interpretation of article Berry's donment of (Utah 1989), or in Horton v. Goldminer's (Utah 1989), Daughter, or in 785 P.2d 1087 opinion, I my offered 190 In Craftsman today, opinion Justice Stewart's will demon- interpretation language my of the alternative decision, Today's together strate. taken with I, 11, duty I felt to article section as bound Craftsman, plainly the result in demon- do, today. I conelud- and to which I adhere majority that a court is no strates 11 should be as ed that article section read longer willing Berry to as a use standard guarantee procedural a and that we should judge legislative which to limitations on civil second-guessing leg largely retreat from damage appar remedies. Yet because of the that on the substantive matters we islature unwillingness majority openly ent of a to through brought have within our reach depart Berry, begun has no consensus suggested Berry. I that there were use of what, emerge anything, if to as to should provisionswithin the Utah Constitution other place. my In I opinion, take its Craftsman legislature might to that act constrain suggested purely procedural reading a severely rights to limit to recov when it acts appropriate article section and a damages, attempt I did not to er for but oversight legis retreat from intrusive might operate. elaborate on how those See lature, backstopped by possible reliance on ¶ 152, note, a final I Id. 974P.2d 1194. As at provisions other of the constitution to check majority a of the court seemed observed that egregious legislative power. abuses of See away drifting Berry from the to have been ¶¶ 152-153, Craftsman, at it 1999 UT 18 the results that mandates. See id. test and approach P.2d 1194. But that seems lack to fact, I at 1224 n. 2. In found the result support among my colleagues, they itself to be have reached in inconsistent Craftsman Berry. with See id.1 proposed being no other alternative. That two-judge opinion, vigorously 1. Justice Stewart In his which Justice Stewart criticized id., spends attacking my opinion. his considerable time failure to in own Condemarin See J., (Stewart writing separately). Berry. appears P.2d at 369 I to be a adhere to This continua passingly strange today find it that Justice Stew- response tion of the diatribe he launched in to Berry analytical art finds comfort for his model my separate opinion in Craftsman. Crafts man, my opinion. suppose ¶ (Zim in I Condemarin But UT 18 at piloting sinking Berry ship, any port merman, J., (Stewart, J., a for one concurring), 1203 con will do in a storm. curring). opinions Given the fulsomeness of our Craftsman, today agree in what Second, I with Justice Stewart I am not sure his effort in instructive, Condemarin are but I opinions is intended other than to vent his accomplish, draw a different lesson from them than does he. Berry. the obvious frustration with erosion of whole, Considered as a I think those ¶ opinions I See id. at 1194. make two long years ago, show that as as ten some mem- points response. in fully bers of were this court comfortable with First, atiempts portray Stewart me Justice rigid Berry analytical the rather model Justice strong supporter Berry as a of his ana- one-time championed Stewart has continued to write selectively lytical quoting por- model certain persistence past into the law with such over the my opinion in Condemarin. But tions of years searching fifteen and were for other more my opinion rely truth is that did not Condemarin useable models. Berry analytical two-step on his model. See This debate between Justice Stewart and me is University Hosp., Condemarin v. at trust in future, an end. I new solu- (Utah 1989) (Zimmerman, J., knotty prob- concur- tions will be found to the real and ring). proposed process ap- struggled long I a substantive due lem with which we have for so proach, position vigor. a that Justice Durham also took and with such case, opinion in on go far tions of its issued case, us to at least so it is time for acknowledge that one fifteen- publicly January majority A of the court is way prevent year odyssey to find a unwilling to rehear of the issues raised riding roughshod over the legislature from However, by plaintiffs' petition. defendants civilly wronged, odyssey rights those an inconsistency between the have identified Berry began response our "Summary" portion opinion earlier our sweeping attempt limiting at legislature's holding majority regarding the actual in the against manufacturers tort actions 638-80-10(15) constitutionality of section Act, awry. Liability gone has Product implications and its for the Utah Code carry freight attempted Berry cannot we prejudgment decision on inter- trial court's it, place and we have not even looked est. seriously may It be that at another vehicle. majority a of the court will want to continue noted, Summary T2 in sub- The court's along path Berry, it but started (i) one, paragraph that all mem- ambitious different vehicle and with less agreed bers of the court with Justice Stew- objective. may it decide to abandon the Or holding "that trial art's court erred event, at- altogether. venture But either denying plaintiffs prejudgment interest." developing to be turned to tention needs Burton, 19, T1, Lyon v. 2000 UT 887 Utah addressing analytical model for different "Lyon Rep. Adv. That [hereinafter I"]. these issues. however, opinion, portion of Justice Stewart's upon I and the members 192 call the bar predicated damages on his view that the drop Berry the fixation on of this court cap trial was unconstitutional and that problem creatively and to address holding pre- court erred in therefore world, how, post-Berry in a this court can judgment subject cap. interest was to the sphere, appropriate remain within its while majority Because a of the court declared the meaning provi- giving to the constitutional constitutional, cap necessary it becomes speak importance sions that of the of reme- prejudgment interest consider whether wrongs. civil What understandable dies for properly "damages" classified as under see- prac- that are standards can be fashioned subject and therefore tion 63-30-34 tically application? capable predictable $250,000cap. plenty opinions in various There are of ideas over the written members of this court alia, I,

years addressing, inter article section Although I shared T3 Justice (due clause); I, 24 process article section ques constitutional Stewart's views (uniform laws); operation of article section that, tion, agree given I with defendants clause); XVI, (takings and article must, majority holding, prejudgment interest actions), (wrongful death that could be fact, "judgment" part of the be considered Condemarin, opinions The various useful. intended to limit. I therefore the statute example, contain a number of veins of majority of the write for a reconstituted thought profitably could be mined. But question the limited of how to treat court on found, fact wherever the ideas are re- light statutory prejudgment interest creative and ca- mains that this court needs clearly cap. We hold that section 78-27-44 pable approaches to advance new advocates "in- requires prejudgment interest to be help way. its and to the court find judgment," ... Code thle] eclude{d] 78-27-44(2) (1996), and that section Ann. 2000 UT 55 $250,000 subjects it to the 63-30-34 therefore Rehearing On Petition for adopt agree the reason limit. We DURHAM, Justice. ing appeals in Hart v. Salt of the court Commission, plaintiffs T1 Both County and defendants have Lake por- various subject. asked this court to reconsider Ct.App.1997) on the self, Howe, and Associate Chief retired Justice Zimmerman Chief Justice 1. Justice Stewart authority shortly opinion to consider resigned Justice Russon with from the court after down, rehearing. leaving only my- petition in the handed case was [ (i) therefore vacate subsection We Lyon and affirm the

paragraph one in denying plaintiffs

ruling of the trial court

prejudgment interest. DURRANT and WILKINS Justices participate

do not herein.2

16 Chief Justice HOWE and Associate in Justice

Chief Justice RUSSON concur opinion.

DURHAM's 42UT Utah,

STATE of Plaintiff Respondent,

Nealy ADAMS, W. Defendant

and Petitioner.

No. 980261.

Supreme Court of Utah.

5,May 2000. required. no further action is we decided case, Because to rehear but only modify part opinion, of the court's earlier notes torts, for their wholly remained intact. This ¶ 40 Ogden Rollow v. City, immunity official law was wholly also almost (Utah 1926), 243 P. 791 held that fighting judge-made. fire "governmental" activities were un activities state, 137 In this the governmental/pro der the common law governmental/proprie test, prietary gave highly rise to con tary test and therefore immune from tort legal analysis fused results, and inconsistent liability. Plaintiffs contend that under longer is no determinative of gov whether a test set in DeBry out fighting is not an agency ernmental is governmental entitled to governmental essential function entitled immunity. 428; See DeBry, 889 P.2d Mad immunity protection because fire Borthick, can (Utah sen v. be and 1983); 658 P.2d 627 sometimes by private is offered organiza Clearfield, Thomas v. 642 P.2d 737 1982); However, rejected tions. DeBry proposi Johnson v. City, Salt Lake 629 P.2d (Utah 1981); Standiford, just 1230. tion that activity because an performed same is by government true be, most other may states. See or some Rhyne, Charles S. The Law Local is, Govern performed times privately, activity (1980).9 Operations ment governmental therefore a nonessential activi ty and not entitled to immunity. DeBry, Standiford, was the 889 P.2d at fighting, 441-42. Fire well as as first case to scope adumbrate the govern- governmental activities, most can be and immunity mental prin- established ciples enunciated in the 1965Act. Standiford sometimes is private done organizations. particular Whether a noted the may per inconsistent function and chaotic status of governmental by nongovernmental formed case law as it entities is existed prior to the Immunity Governmental one factor Act of to be in determining considered provided a new basis whether function is a Standiford distinguishing between activi- id.; function and therefore immune. See see days 9. From the earliest of state example, constitutions- ties. Pennsylvania For constitution adoption even before the of the United States provided open provision courts remedies Constitution-inherent tension was observed be- sovereign immunity. also referred to See Crafts tween the sovereign immunity doctrine of man, ¶ 46, (Stew UT 18 at rights state persons constitutional to civil law art, J., concurring). injuries remedies for persons proper- to their remedies, from tort Thomas, are immune Bry, and Madsen, also

Case Details

Case Name: Lyon v. Burton

Court Name: Utah Supreme Court

Date Published: Jan 19, 2000

Citation: 5 P.3d 616

Docket Number: 950515, 950516

Court Abbreviation: Utah