Clegg v. WASATCH COUNTY

Decision Date05 February 2010
Docket NumberNo. 20070547.,20070547.
Citation2010 UT 5,227 P.3d 1243
PartiesSteve CLEGG, Plaintiff and Appellant, v. WASATCH COUNTY and Bruce T. Jensen, Defendants and Appellees.
CourtUtah Supreme Court

Daniel F. Bertch, Kevin K. Robson, Salt Lake City, for plaintiff.

Linette B. Hutton, Salt Lake City, for defendants.

INTRODUCTION

NEHRING, Justice:

¶ 1 Steven Clegg sued Wasatch County and Wasatch County Sheriff's Deputy Travis Jensen for injuries he sustained when Deputy Jensen's patrol car struck the rear portion of his vehicle. The district court granted Wasatch County's motion for summary judgment on the basis that the Utah Governmental Immunity Act barred Mr. Clegg's claims. Mr. Clegg appealed. We affirm in part and reverse in part.

BACKGROUND

¶ 2 On July 16, 2002, Steven Clegg visited the Hamlet Condominiums on the outskirts of Midway, Utah. As he was leaving, Mr. Clegg came to a stop at the intersection of 750 East and SR 113 in anticipation of making a left hand turn. He then pulled forward to a position from which he could better view approaching eastbound traffic. At the same time, Deputy Jensen was driving east on SR 113. He was responding to an injury-accident in Timber Lakes, Utah. At the time his car collided with Mr. Clegg's vehicle, Deputy Jensen had activated both his siren and his emergency lights. Deputy Jensen claims that Mr. Clegg was partially blocking the eastbound lane of SR 113 and that he attempted to pass Mr. Clegg on the south shoulder of the highway because he saw oncoming traffic in the westbound lanes. Deputy Jensen's attempted pass was not successful, and his police car struck the rear portion of Mr. Clegg's vehicle.

¶ 3 Mr. Clegg sued Deputy Jensen and Wasatch County for negligence.1 Wasatch County moved for summary judgment on the basis that the Governmental Immunity Act, which retains the immunity of governmental entities from suit for the operation of emergency vehicles, barred Mr. Clegg's claim. Mr. Clegg argued that the section of the Governmental Immunity Act that grants immunity for the operation of emergency vehicles is unconstitutional under the open courts clause of article I, section 11, and the uniform operation of laws clause found in article I, section 24 of the Utah Constitution. Mr. Clegg also asserted that operators of emergency vehicles and other personnel who respond to emergencies owe a duty of care to others on the road. In addition, Mr. Clegg claimed that because Deputy Jensen had violated the Wasatch County Policy and Procedure Manual, he had breached that duty of care. Finally, Mr. Clegg argued that disputed facts remained regarding whether the audible and visual signals on the patrol car gave adequate notice of a peace officer responding to an emergency because he stated that he never heard Deputy Jensen's siren nor saw his lights until the police car was skidding towards his vehicle. The district court adopted all of Wasatch County's factual statements as true and granted summary judgment to the County.

¶ 4 On appeal, Mr. Clegg makes the following four arguments: (1) that granting summary judgment to Wasatch County on the issue of governmental immunity was improper because there are material issues of fact in dispute, in particular, whether the audible and visual signals were "adequate"; (2) that even if the audible and visual signals were adequate, the 1993 amendments to Utah Code section 41-6-14 are unconstitutional under the open courts clause and the uniform operation of laws provision of the Utah Constitution; (3) that because Wasatch County was constitutionally prohibited from obtaining complete immunity for the operation of emergency vehicles, Deputy Jensen was negligent if he was driving faster than allowed by the Wasatch County Sheriff's Department Policy Manual; and (4) that the affidavit of Mr. Bonner should not have been admitted and the affidavit of Mr. Robson should not have been stricken.

¶ 5 Wasatch County argues that the district court was correct when it granted summary judgment because the Governmental Immunity Act is constitutional and bars Mr. Clegg's claims against the County. Moreover, the County contends that neither Deputy Jensen's siren nor his visual signals were inadequate. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j)(2008).

STANDARD OF REVIEW

¶ 6 We review a district court's grant of summary judgment for correctness. Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 14, 194 P.3d 956. When reviewing the grant of summary judgment, we interpret "the facts in the light most favorable to the nonmoving party," here, Mr. Clegg. Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 6, 201 P.3d 966.

ANALYSIS

¶ 7 The district court granted summary judgment in favor of the defendants. In doing so, Judge Howard "adopted and incorporated the arguments set forth in Defendants' memoranda on all issues and particularly found there was no factual issue as to Deputy Jensen's speed to defeat summary judgment." The district court held that the Governmental Immunity Act barred Mr. Clegg's claim because the patrol car was operated in compliance with Utah Code sections 41-6-132 and 41-6-146. By granting summary judgment to the defendants, the district court held that there were no material facts in dispute and that Deputy Jensen's audible and visual signals were adequate. We hold that (1) the adequacy of the audible and visual signals is a material fact in dispute; (2) until this issue is resolved, Mr. Clegg's constitutional arguments are not ripe for our consideration; and (3) the Wasatch County Policy and Procedures Manual is relevant to the question of negligence if on remand the court determines that Wasatch County does not enjoy governmental immunity, and that the district court's rulings regarding the affidavits were not in error.

I. THE DISTRICT COURT ERRED IN HOLDING THERE WAS NO ISSUE OF MATERIAL FACT AS TO WHETHER DEPUTY JENSEN'S LIGHTS OR SIREN WERE PROPERLY AUDIBLE OR VISIBLE FROM 500 FEET UNDER NORMAL CONDITIONS, AND THUS, THE DISTRICT COURT ERRED IN DETERMINING THAT THE UTAH GOVERNMENTAL IMMUNITY ACT BARRED MR. CLEGG'S CLAIMS

¶ 8 We begin our governmental immunity analysis by analyzing whether Deputy Jensen owed a duty of care to other drivers on the road. We traditionally start with this common law duty analysis because if we find no duty exists, no negligence action can be maintained, and a plaintiff cannot recover even if we find governmental immunity is waived. Day v. State, 1999 UT 46, ¶ 10, 980 P.2d 1171; Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1163-64 (Utah 1993).

¶ 9 We have long recognized that drivers of emergency vehicles owe a duty of reasonable care to other motorists on the road. See Day, 1999 UT 46, ¶ 31, 980 P.2d 1171; Howe v. Jackson, 18 Utah 2d 269, 421 P.2d 159, 161-62 (1966); Jensen v. Taylor, 2 Utah 2d 196, 271 P.2d 838, 841 (1954). In doing so, we have recognized that emergency situations sometimes necessitate actions that may be unreasonable otherwise, and thus "emergency vehicles are not bound by all traffic laws" and drivers "do not necessarily violate a duty of due care when they exceed the speed limit or do not comply with certain other safety regulations." Day, 1999 UT 46, ¶ 31, 980 P.2d 1171. Although we afford emergency vehicle operators some latitude in responding to an emergency, we do not absolve them of all responsibility to act reasonably and "`any careless, arbitrary or unreasonable exercise of those privileges would be negligence.'" Id. ¶ 14 (quoting Howe, 421 P.2d at 161-62). In an effort to balance the interest of safety for all persons, "the test is whether the driver of the emergency vehicle acted reasonably and with appropriate care for the safety of others in light of all the circumstances." Id. ¶ 32.

¶ 10 Having concluded that Deputy Jensen owed a common law duty to other motorists on the road, we now examine whether the Governmental Immunity Act nevertheless prevents Mr. Clegg from bringing his negligence claim against Wasatch County.

¶ 11 In Ledfors, we set forth a three part inquiry to determine whether a governmental entity is entitled to immunity. First, we ask whether the activity performed was "a governmental function and therefore immunized from suit by the general grant of immunity contained in section 63-30-3." Lyon v. Burton, 2000 UT 19, ¶ 13, 5 P.3d 616 (quoting Ledfors, 849 P.2d at 1164). "Second, if the activity was a governmental function," we then determine whether "some other section of the Act has waived that blanket immunity." Id. "Third, if the blanket immunity has been waived," we determine whether the Act "also contains an exception to that waiver which results in a retention of immunity against the particular claim." Id.

¶ 12 There is no dispute that the operation of an emergency vehicle constitutes a governmental function, and is thus immunized from suit. Likewise, the parties do not dispute that Utah Code section 63-30-10 (2002)2 waives that immunity if during such operation, injury is caused by an officer's negligent act. Thus, the only remaining issue is whether Deputy Jensen's operation of his emergency vehicle fits within an exception to the waiver of that immunity.

¶ 13 Utah Code section 63-30-10(15) contains an exception to the waiver, retaining immunity for officers so long as the emergency vehicle was "driven in accordance with the requirements of Section 41-6-14." Utah Code Ann. § 63-30-10(15). Thus, in order for Deputy Jensen and Wasatch County to qualify for governmental immunity and fit within the exception to the waiver of that immunity, Deputy Jensen must have operated his vehicle in a manner consistent with Utah Code section 41-6-14. Section 41-6-14(3) states that the privilege only applies when the operator of the vehicle, not involved in a vehicle pursuit, "sounds an audible signal under section 41-6-146, or uses a visual signal as defined under section 41-6-132, which is visible from in front of the vehicle." Id. § 41-6-14(...

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