Condemarin v. University Hosp.

Decision Date01 May 1989
Docket NumberNo. 20602,20602
Citation775 P.2d 348
Parties54 Ed. Law Rep. 669 Crelia CONDEMARIN, individually and as Guardian Ad Litem of Leonel Condemarin, and Jose Condemarin, Plaintiffs and Appellants, v. UNIVERSITY HOSPITAL, University of Utah, R.M. Larkin, M.D., Gayle M. Carter, M.D., Carlos Dibble, M.D., John Soper, M.D., Jane and John Does I through X, Defendants and Appellees.
CourtUtah Supreme Court

Timothy C. Houpt, Paul R. Lovell, Salt Lake City, for plaintiffs and appellants.

Merlin Lybert, David G. Williams, R. Paul Van Dam, William T. Evans, Salt Lake City, for defendants and appellees.

DURHAM, Justice:

This case raises important questions of first impression regarding the Utah Governmental Immunity Act. Utah Code Ann. §§ 63-30-1 to -38 (1986 & Supp.1988). It comes to us on an interlocutory appeal from the denial of plaintiffs' motion for a summary judgment striking certain provisions of the Act as unconstitutional. 1

The following facts were undisputed in the trial court. Plaintiff Crelia Condemarin, who was pregnant with her second child, went to Cottonwood Hospital in the early morning of May 19, 1982, after several hours of labor and a suspected premature rupture of membranes. Because her treating physician anticipated a high risk delivery, she was transferred on his orders to the University Hospital in Salt Lake City. Plaintiff Leonel Condemarin was born at the University Hospital that same day after an emergency caesarean section. Attending physicians concluded that he suffered fetal distress and was "severely asphyxiated" at birth, which resulted in "severe neurologic damage," including impairments of hearing, sight, and ability to be fed, as well as a seizure disorder and spasticity.

The minor plaintiff's treating physician believes that the child will have a normal life span as a severely retarded and handicapped person. He believes there is little doubt that plaintiff's physical and mental defects are related to the asphyxia at the time of his birth. It is likely that the cost of medical and custodial care related to the severe neurologic disorder of Leonel Condemarin in its various aspects will greatly exceed the sum of $100,000.

Each of the individual defendants in this action and each person who provided care to plaintiffs at the University Hospital during the labor and delivery was an employee of the University Hospital or the University of Utah and was acting as such at the time in question.

I. Governmental Immunity and Hospitals

It is appropriate at this time in the evolution of the doctrine of governmental immunity to remind ourselves of its origins. In the 1961 case of Muskopf v. Corning Hospital District, 55 Cal.2d 211, 359 P.2d 457, 11 Cal.Rptr. 89 (1961), Justice Traynor detailed the history of the rule:

The shifting fortune of the rule of governmental immunity as applied to hospitals is illustrative of the history of the rule itself. From the beginning there has been misstatement, confusion, and retraction. At the earliest common law the doctrine of "sovereign immunity" did not produce the harsh results it does today. It was a rule that allowed substantial relief. It began as the personal prerogative of the king, gained impetus from sixteenth century metaphysical concepts, may have been based on the misreading of an ancient maxim, and only rarely had the effect of completely denying compensation. How it became in the United States the basis for a rule that the federal and state governments did not have to answer for their torts has been called "one of the mysteries of legal evolution." Borchard, Governmental Responsibility in Tort, 34 Yale L.J., 1, 4.


None of the reasons for its continuance can withstand analysis. No one defends total governmental immunity. In fact, it does not exist. It has become riddled with exceptions, both legislative ... and judicial ..., and the exceptions operate so illogically as to cause serious inequality. Some who are injured by governmental agencies can recover, others cannot: one injured while attending a community theater in a public park may recover (Rhodes v. City of Palo Alto, 100 Cal.App.2d 336, 341-342, 223 P.2d 639), but one injured in a children's playground may not (Farrell v. City of Long Beach, 132 Cal.App.2d 818, 819-920, 283 P.2d 296); for torts committed in the course of a "governmental function" there is no liability, unless the tort be classified as a nuisance (Phillips v. City of Pasadena, 27 Cal.2d 104, 106, 162 P.2d 625). The illogical and inequitable extreme is reached in this case: we are asked to affirm a rule that denies recovery to one injured in a county or hospital district hospital, although recovery may be had by one injured in a city and county hospital. Beard v. City and County of San Francisco, 79 Cal.App.2d 753, 755-768, 180 P.2d 744.

Id. at 214-215, 216, 359 P.2d at 458-59, 460, 11 Cal.Rptr. at 90-91, 92 (citations omitted).

Immunity from liability existed as a matter of common law in Utah for government entities engaging in governmental, as opposed to proprietary, activities. See Ramirez v. Ogden City, 3 Utah 2d 102, 104, 279 P.2d 463, 464 (1955), and cases cited therein. Section 63-30-3 of the Utah Governmental Immunity Act, effective July 1, 1966, provides for governmental immunity, unless waived, for "all governmental entities ... for any injury which results from the exercise of a governmental function, governmentally-owned hospital ... and from an approved ... professional health care clinical training program conducted in either public or private facilities."

After the passage of the Act, this Court applied the traditional "governmental/proprietary" test until Standiford v. Salt Lake City Corp., 605 P.2d 1230 (Utah 1980). In that case, this Court rejected the test:

Originally, the proprietary-governmental distinction was created as a device to limit the harsh results produced by the doctrine of sovereign immunity. The doctrine operated on the basis that a public entity should be liable for the torts it committed in the exercise of a proprietary function but not for those committed in the exercise of a governmental function. See Gillmor v. Salt Lake City, 32 Utah 180, 89 P. 714 (1907); Sehy v. Salt Lake City, 41 Utah 535, 126 P. 691 (1912); Alder v. Salt Lake City, 64 Utah 568, 231 P. 1102 (1924); Rollow v. Ogden City, 66 Utah 475, 243 P. 791 (1926); Niblock v. Salt Lake City, 100 Utah 573, 111 P.2d 800 (1941). The distinction is, however, "one of the most unsatisfactory known to the law," Davis, Administrative Law, Ch. 9, "Tort Liability of Governments and of Officers," at 179.


Clearly, factors which may lead to such contrary and unpredictable results do not provide an adequate test upon which governmental agencies can rely in planning their budgets and providing for their tort liability, whether by way of insurance coverage or otherwise.

Id. at 1233, 1235 (citation omitted). Standiford set forth a new standard for determining governmental immunity under section 63-30-3: "whether the activity under consideration is of such a unique nature that it can only be performed by a governmental agency or ... it is essential to the core of governmental activity." Id. at 1236-37.

Under the Utah Governmental Immunity Act, immunity is specifically waived for all government entities (1) as to contractual obligations, (2) as to actions involving real and personal property, (3) for negligent operation of nonemergency motor vehicles, (4) for defective highways, bridges, and other structures, and (5) for nonlatent defective conditions in public buildings and structures. Utah Code Ann. §§ 63-30-5 to -9. In addition, immunity of government entities is waived for injuries caused by employee negligence committed within the scope of employment except where the injuries arise out of certain specific activities listed in section 63-30-10(1)(a) to (l ). Each of the excepted activities listed in section -10 is, interestingly, within the "core" of governmental functions discussed in Standiford. Each is of "such a unique nature that it can only be performed by a governmental agency or that it is essential to the core of governmental activity." Standiford, 605 P.2d at 1237.

The net result of this statutory classification scheme is that government-owned health care facilities, out of all the hundreds of government entities, have been singled out for "retained" immunity for non governmental functions. Moreover, the notion of "retained" immunity is descriptively inaccurate, since such facilities and activities were not protected by immunity at common law or under the original version of the Utah Governmental Immunity Act. 2

It seems plain enough that the intent of [section 63-30-4] was to retain the then existing law, both as to immunity and as to liability, except for the nonexempt areas specifically set forth in Section 63-30-10 of the new act, none of which covers the operation of a hospital. It is therefore our conclusion that proprietary functions of a municipality are not within the coverage of the Utah Governmental Immunity Act.

Greenhalgh v. Payson City, 530 P.2d 799, 801 (Utah 1975) (citation omitted).

The 1978 amendments to the Utah Governmental Immunity Act also changed section 63-30-4(4). The amendment states: "[N]o employee may be held personally liable for acts or omissions occurring during the performance of the employee's duties, within the scope of employment or under color of authority, unless it is established that the employee acted or failed to act due to fraud or malice." Thus by simultaneously adding government-owned health care facilities to the category of government entities immune from suit, the legislature, via section 63-30-3, brought employees of those entities within the coverage of another change in the statute, in section 63-30-4(4). Consequently, immunity for the ministerial acts of employees of government entities performing nongovernmental...

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