Bott v. DeLand, 930387

• Decision Date: 12 July 1996
• Docket Number: No. 930387,930387
• Citation: 922 P.2d 732
• Parties: Roger BOTT, Plaintiff, Appellant, and Cross-Appellee, v. Gary W. DeLAND, Blen Freestone, Dean Laney, and Robert F. Powell, Defendants, Appellees, and Cross-Appellants.
• Court: Utah Supreme Court

Page 732

922 P.2d 732

Roger BOTT, Plaintiff, Appellant, and Cross-Appellee, v. Gary W. DeLAND, Blen Freestone, Dean Laney, and Robert F.

Powell, Defendants, Appellees, and Cross-Appellants.

No. 930387.

Supreme Court of Utah.

July 12, 1996.

Ross C. Anderson, Steven W. Dougherty, Salt Lake City, for plaintiff.

Jan Graham, Atty. Gen., Elizabeth King, Carol Clawson, Asst. Attys. Gen., Salt Lake City, for defendants.

HOWE, Justice:

Plaintiff Roger Bott appeals from the district court's judgment that the Utah Governmental Immunity Act, Utah Code Ann. § 63-30-34(1)(a) & (b), limits to $250,000 his recovery of personal injury damages against defendants Department of Corrections Executive Director Gary DeLand, Utah State Prison Medical Administrator Blen Freestone, and Dean Laney, a nurse practitioner at the prison. Defendants cross-appeal from judgments against Laney for negligence and against DeLand, Freestone, and Laney for their violation of article I, section 9 of the Utah Constitution.

Bott became an inmate at the Utah State Prison on October 5, 1987. After almost two years of incarceration, he began experiencing blurred vision in his right eye. He reported this condition to a prison medical technician, and the technician informed Laney of Bott's complaint. A few days later, Laney examined Bott's eyes, determined that his condition was not serious, and placed him on a waiting list to see an optometrist. During the next four weeks, the vision in both of his eyes steadily worsened until he lost all of the vision in his right eye and most of the vision in his left. He also suffered from increasingly severe headaches, nausea, dizziness, and body aches. Bott asserts that although he complained repeatedly of these symptoms to the medical technicians and to Laney, they did not adequately examine him or inform a physician of his condition. In accordance with prison procedure, he submitted a grievance concerning his lack of medical attention to the appropriate correctional officer. Two weeks later, with the help of another inmate, he filed another grievance, complaining that he still had not received any medical attention. However, nearly another two weeks passed before he was examined by an optometrist. The optometrist observed signs of hemorrhaging in Bott's retina and sent him directly to the University of Utah Medical Center, where he was diagnosed with malignant hypertension and severe renal failure. By the time of the trial, he was dependent upon hemodialysis three times each week, and his life expectancy had allegedly greatly diminished.

Bott initiated two actions against defendants. The first was an action against Laney for negligently failing to examine him, notify physicians of his condition, and treat him prior to the onset of malignant hypertension and severe renal failure. The second was an action against DeLand, Freestone, Laney, and Robert F. Powell, who is not part of this appeal. That action alleged a claim for damages under the "unnecessary rigor" clause, article I, section 9 of the Utah Constitution, and under 42 U.S.C. § 1983 for the violation of Bott's right to be free from cruel and unusual punishments under the Eighth Amendment of the United States Constitution. The district court consolidated these two actions and conducted a jury trial. The jury found that Laney was negligent, causing Bott to suffer $490,000 in damages. The jury also found that Laney, DeLand, and Freestone violated Bott's rights under article I, section 9 of the Utah Constitution and, as a result, Bott suffered $490,000 in damages. ¹ In rendering its judgment, the trial court limited Bott's total recovery to $250,000, the maximum amount that a plaintiff may recover from government employees under the Governmental Immunity Act. Utah Code Ann. § 63-30-34(1)(a) & (b).

Bott appeals, making several constitutional and statutory arguments against the application of the statutory cap on damages. Before addressing these arguments, however, we will examine the issues raised by defendants in their cross-appeal. Their first contention is that statutory governmental immunity applies to shield them from Bott's negligence and state constitutional actions. Their second argument is that article I, section 9 of the state constitution cannot be the basis of an award of monetary damages. We examine each of these issues separately.

I. STATUTORY GOVERNMENTAL IMMUNITY FOR NEGLIGENCE

Defendants contend that under subsections 63-30-4(3) and (4) of the Governmental Immunity Act, they cannot be personally liable to Bott for damages under either the negligence theory or the state constitutional theory unless they acted with fraud or malice. See Maddocks v. Salt Lake City Corp., 740 P.2d 1337, 1339 (Utah 1987); Lancaster v. Utah State Prison, 740 P.2d 261, 262 (Utah 1987). The court below rejected that argument, ruling that subsections 63-30-4(3) and (4) violated the open courts clause of the Utah Constitution, Utah Const. art. I, § 11.

We initially dispose of Bott's contention that defendants did not preserve the issue of governmental immunity for appeal. As defendants point out, Laney's first response to the negligence action was to move for dismissal on the basis of governmental immunity. The trial court denied this motion when it ruled that subsections 63-30-4(3) and (4) were unconstitutional. Meanwhile, in the action for damages under the state and federal constitutions, DeLand, Freestone, and Laney pleaded the defense of immunity in their answer to the amended complaint. After the court consolidated the claims, held trial, and received the jury's verdict, defendants again raised the issue of governmental immunity in their memorandum in support of judgment notwithstanding the verdict. The court again refused to apply governmental immunity. Thus, defendants, who appeal from all of these orders, properly preserved the issue of governmental immunity for appeal.

A. The Negligence Claim

In arguing that governmental immunity does not shield Laney from the negligence action, Bott asserts that this court should affirm the trial court's ruling that subsections 63-30-4(3) and (4) are unconstitutional because they violate the open courts clause, article I, section 11, the due process clause, article I, section 7, and the uniform operation of laws clause, article I, section 24 of the Utah Constitution. We have already addressed these arguments in Ross v. Schackel, 920 P.2d 1159 (Utah 1996), also issued today, and have determined that these subsections are constitutional as applied to prisoners' negligence actions against prison physicians. Bott's claim against Laney differs from the plaintiff's claim in Ross only in that Laney is a nurse practitioner, not a physician. Although prison physicians arguably enjoy a higher status within the prison employment system than nurse practitioners, we conclude that this difference does not prevent us from applying the constitutional analysis advanced in Ross.

In Ross, we held that subsections 63-30-4(3) and (4) do not violate the open courts clause because they did not abrogate a remedy available to prisoners at common law. We find no basis for distinguishing Laney's position from the position of the prison physician in Ross, and thus we conclude that Bott could not have maintained a negligence action against Laney at common law and that subsections 63-30-4(3) and (4) are constitutional under the open courts clause.

Our analysis of these subsections in Ross under the due process and uniform operation of laws clauses also applies in this case. Laney's position as a nurse practitioner does not alter either the standards of review or the statutory objectives upon which we based our analysis in Ross, and Bott does not present any arguments that we did not consider in that case. Therefore, we reverse the trial court's judgment in favor of Bott on the issue of Laney's negligence.

B. The State Constitutional Claim

Next, we examine whether governmental immunity shields DeLand, Freestone, and Laney from Bott's action under the "unnecessary rigor" clause of the Utah Constitution, article I, section 9. As with the negligence claim, Bott asserts that subsections 63-30-4(3) and (4) should not be applied because doing so would violate the open courts clause. We agree that these subsections should not be applied, but we do not base our conclusion upon the open courts clause. Quite simply, we decline to apply these subsections because they constitute an unreasonable regulation of Bott's article I, section 9 right to be free of "unnecessary rigor."

"[A]ny rule or regulation in regard to the remedy which does not, under pretense of modifying or regulating it, take away or impair the right itself, cannot be regarded as beyond the proper province of legislation." 2 Thomas M. Cooley, Constitutional Limitations 756 (1927). However, the legislature's "fraud or malice" standard contained in subsections 63-30-4(3) and (4) impairs article I, section 9 rights because it does bar claims that would otherwise be allowed under the standards that we will subsequently discuss. Moreover, governmental immunity cannot apply where a claimant alleges that the state or a state employee violated his constitutional rights. Colman v. Utah State Land Bd., 795 P.2d 622, 630-35 (Utah 1990); Wickham v. Fisher, 629 P.2d 896, 900-01 (Utah 1981); Burdette v. State, 166 Mich.App. 406, 421 N.W.2d 185, 186 (1988); Terranova v. State, 111 Misc.2d 1089, 445 N.Y.S.2d 965, 969 (1982) ("However [the state's police power] must be exercised reasonably ... and with scrupulous regard for constitutionally guaranteed rights."). But see Figueroa v. State, 61 Haw. 369, 604 P.2d 1198, 1205 (1979); Medina v. State, 871 P.2d 1379, 1386 (Okla.1993). As the Michigan court of appeals explained: "Constitutional rights serve to restrict government conduct. These rights would never serve this purpose if the state could use governmental immunity to avoid constitutional...