Hansen v. Salt Lake County, 21024

Decision Date15 June 1990
Docket NumberNo. 21024,21024
Citation794 P.2d 838
PartiesPhil L. HANSEN, Plaintiff and Appellant, v. SALT LAKE COUNTY, a political subdivision of the State of Utah, Defendant and Appellee.
CourtUtah Supreme Court

Gregory B. Wall, Salt Lake City, for plaintiff and appellant.

Ernest W. Jones, Salt Lake City, for defendant and appellee.

DURHAM, Justice:

Plaintiff Phil L. Hansen filed suit against defendant Salt Lake County alleging that the County damaged or destroyed various improvements Hansen made to his property near the Big Cottonwood Canyon streambed. The County admitted that it had removed two bridges and various materials from the streambed during implementation of its flood control program but moved to dismiss, claiming immunity under the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -38 (1989), and that no cause of action could be maintained under the inverse condemnation section of the Utah Constitution. The trial court granted the County's motions to dismiss, and Hansen appealed. We reverse.

Hansen owns property adjacent to the Big Cottonwood Canyon stream. He alleged in his complaint that he had made various improvements to both the streambed and the property. He further alleged that beginning sometime in May 1984, the County, while engaged in altering and improving the streambed as part of its flood control program, intentionally or negligently damaged or destroyed a steel-beamed automobile bridge, a steel-beamed footbridge, a paved driveway, landscaping, and reinforcements to the streambed and banks. In January 1985, Hansen served a written notice of claim for damages upon the County pursuant to Utah Code Ann. §§ 17-15-10 (1987), 63-30-11, and 63-30-13 (1989). 1 These sections provide generally for the time limitations, content, form, and manner of presentation for claims against the County. The County denied the claim in March 1985, and Hansen filed suit on May 14, 1985, in the Third Judicial District Court of Utah. In his original complaint, Hansen claimed that he sustained damage as a direct and proximate result of the intentional and negligent acts of the County. He further claimed that any immunity from suit conferred on the County was waived under Utah Code Ann. § 63-30-10(1) (1989), which provides that "[i]mmunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment" unless the injury arises out of one of the activities listed in the statute as an exception to the waiver. Utah Code Ann. § 63-30-10(1)(a) through (m) (1989). 2

The following September, Hansen filed an amended complaint, adding an inverse condemnation claim based upon article I, section 22 of the Utah Constitution. 3 He also alleged that in addition to waiving immunity under section 63-30-10, the County waived immunity under Utah Code Ann. § 63-30-6 (1989), which reads:

Immunity from suit of all governmental entities is waived for the recovery of any property real or personal or for the possession thereof or to quiet title thereto, or to foreclose mortgages or other liens thereon or to determine any adverse claim thereon, or secure any adjudication touching any mortgage or other lien said entity may have or claim on the property involved.

The County responded by filing motions to dismiss each of Hansen's claims. The trial court granted the first motion on September 25, 1985, and the second on November 11, 1985. The first order of dismissal stated only, "Defendant's motion to dismiss as to the first cause of action is granted." The second order of dismissal stated that article I, section 22 of the Utah Constitution did not create a cause of action. Hansen appealed, and the case is now before us.

One ground for the County's first motion to dismiss was Hansen's failure to comply with Utah Code Ann. § 63-30-19 (1989), which provides:

At the time of filing the action the plaintiff shall file an undertaking in a sum fixed by the court, but in no case less than the sum of $300, conditioned upon payment by the plaintiff of taxable costs incurred by the governmental entity in the action if the plaintiff fails to prosecute the action or fails to recover judgment. 4

It is not clear on what ground the trial court granted the County's first motion to dismiss, because the undertaking issue was only part of the County's objection, the other argument being that under sections 63-30-3 and -10(1)(a), the County was immune from suit. 5 Failure to pay the undertaking is an affirmative defense not properly raised in a rule 12(b) motion to dismiss, see Utah R.Civ.P. 8(c), 12(b), although it may be appropriate to raise the issue by a motion analogous to one made under rule 12(k). 6 Dismissal based on failure to file the undertaking should be without prejudice. In contrast to other procedural requirements of the Governmental Immunity Act, failure to comply with section 63-30-19 does not bar a suit. Cf. Utah Code Ann. § 63-30-13 (1989). The policy of discouraging nuisance suits that supports the undertaking requirement is the same as that supporting the cost bond that can be required of nonresident plaintiffs under rule 12(j) of the Utah Rules of Civil Procedure. Our cases hold that dismissal for failure to file such a bond is without prejudice. See, e.g., Bunting Tractor Co. v. Emmett D. Ford Contractors, Inc., 2 Utah 2d 275, 278, 272 P.2d 191, 192-93 (1954). We therefore assume that Hansen's first cause of action was dismissed based on immunity.

A. Scope of Utah Code Ann. § 63-30-3: Grant of Immunity

The primary defense of the state and its political subdivisions against being sued is contained in Utah Code Ann. § 63-30-3 (1989), which reads:

Except as may be otherwise provided in this chapter, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function, governmentally-owned hospital, nursing home, or other governmental health care facility, and from an approved medical, nursing, or other professional health care clinical training program conducted in either public or private facilities.

The management of flood waters and other natural disasters and the construction, repair, and operation of flood and storm systems by governmental entities are considered to be governmental functions, and governmental entities and their officers and employees are immune from suit for any injury or damage resulting from those activities.

(Emphasis added).

Hansen claims that section 63-30-3 does not exempt the County from liability in this case and that, even if it did, any immunity conferred by this section is waived under section 63-30-10(1). Hansen's first point is that the County's actions did not constitute "management of flood waters." Hansen also argues that section 63-30-3 should not apply because Big Cottonwood Creek is not a flood or storm system as contemplated by the statute.

We need not consider the scope of the phrase "management of flood waters" because section 63-30-3 also confers immunity for "the construction, repair, and operation of flood and storm systems" by governmental entities. Hansen acknowledges that the property damage occurred while the County was altering and improving the Big Cottonwood Canyon streambed as part of its flood control program. Hansen's argument that the streambed is a "naturally existing water carrying system" and thus cannot be a "flood or storm system" as contemplated by the statute is flawed. The Utah Governmental Immunity Act does not define the terms "flood or storm system," but chapter 8 of title 17 authorizes counties to construct flood control projects, and Utah Code Ann. § 17-8-5.5 (1987) specifically authorizes boards of county commissioners "to provide by ordinance for the protection and use of flood channels [and to] establish by ordinance the boundaries of these flood channels...." 7 Salt Lake County Code of Ordinances § 17.08.040.A.10 (1987) includes Big Cottonwood Creek as "part of [Salt Lake County's] storm drainage and flood control system." We conclude that section 63-30-3 of the Utah Governmental Immunity Act applies in this case.

The more difficult question raised by the parties is whether the application of section 63-30-3 confers absolute or qualified immunity on the County. The first of the two paragraphs in this section contains a general grant of immunity to governmental entities for the exercise of governmental functions, but begins by subjecting that immunity to exceptions elsewhere in the Act. Following this grant, various governmentally operated health care activities are listed for which governmental entities are also immune from suit. 8 The second paragraph defines flood control activities as governmental functions and reiterates the grant of immunity for those activities. The question is whether the grant of immunity for flood control activities mentioned in the second paragraph is subject to the exceptions mentioned in the first paragraph of section 63-30-3. For the following reasons, we conclude that it is.

When interpreting an ambiguous statute, we first try to discover the underlying intent of the legislature, guided by the meaning and purpose of the statute as a whole and the legislative history. See, e.g., Mountain States Tel. & Tel. Co. v. Payne, 782 P.2d 464, 466 (Utah 1989); Crawford v. Tilley, 780 P.2d 1248, 1251 (Utah 1989).

Before the Utah Governmental Immunity Act was passed in 1965, Utah adhered to the common law doctrine of sovereign immunity. See, e.g., Note, The Utah Governmental Immunity Act: An Analysis, 1967 Utah L.Rev. 120. Section 63-30-3, as enacted in 1965, read:

Section 3. General Immunity in Exercise of Governmental Functions.

Except as may be otherwise provided in this act, all govermental entities shall be immune from suit for any injury which may result from the activities of said entities wherein said entity is engaged in the...

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