Jenkins v. Jordan Valley Water Conservancy Dist.

• Citation: 713 Utah Adv. Rep. 37,2012 UT App 204,283 P.3d 1009
• Decision Date: 19 July 2012
• Docket Number: No. 20100400–CA.,20100400–CA.
• Parties: Alan JENKINS, Ash Jenkins, and Patricia Jenkins, Plaintiffs and Appellants, v. JORDAN VALLEY WATER CONSERVANCY DISTRICT, Defendant and Appellee.
• Court: Court of Appeals of Utah

283 P.3d 1009

713 Utah Adv. Rep. 37

2012 UT App 204

Alan JENKINS, Ash Jenkins, and Patricia Jenkins, Plaintiffs and Appellants,

v.JORDAN VALLEY WATER CONSERVANCY DISTRICT, Defendant and Appellee.

No. 20100400–CA.

Court of Appeals of Utah.

July 19, 2012.

Unconstitutional as Applied

West's U.C.A. § 63G–7–102(4).

Carl E. Kingston, Salt Lake City, for Appellants.

David C. Richards and Sarah E. Spencer, Salt Lake City, for Appellee.

Before Judges McHUGH, VOROS, and ORME.

AMENDED OPINION ¹

McHUGH, Presiding Judge:

¶ 1 Alan, Ash, and Patricia Jenkins (the Jenkinses) appeal from the trial court's order granting summary judgment in favor of Jordan Valley Water Conservancy District (the District) on the Jenkinses' claim for damages to their home and property after a water line owned and operated by the District broke and flooded the Jenkinses' home on two separate occasions. The trial court ruled that the Jenkinses' claims were barred by the public duty doctrine. We conclude that the trial court was incorrect and reverse on this issue. In addition, we reject the District's alternative grounds for summary judgment. Although the District's actions fall within the scope of the statutory immunity afforded governmental entities, the current definition of “governmental function” results in a complete abrogation of the Jenkinses' preexisting remedy and violates the Utah Constitution's open courts clause. Therefore, we remand to the trial court for further proceedings consistent with this decision.

BACKGROUND

¶ 2 Alan Jenkins is the owner of a home located in South Salt Lake, Utah (the Home). During the relevant time period, Alan's son and daughter-in-law, Ash and Patricia Jenkins, and Ash's and Patricia's three children lived with Alan in the Home. The District is a political subdivision of the State of Utah. It treats and delivers water to other local districts, cities, residents, and businesses located within the geographic boundaries of the District. To accomplish these purposes, the District owns and operates approximately 275 miles of water transmission and distribution pipelines, including a section that is buried along the south side of 3300 South Street between 200 and 500 East (the Water Line Section). The Water Line Section runs parallel to the Jenkinses' Home, which abuts 3300 South.

¶ 3 In December 2002, after considering numerous factors, including the history of prior breaks, the Engineering Department Manager and Distribution & Transmission Technical Advisor (collectively, the Engineers) identified the Water Line Section as needing to be replaced. Most of the pipe comprising the water line is cast iron pipe that was installed in the 1950s and 1960s; the Water Line Section was installed in 1957. These older pipes have a useful life expectancy of forty to seventy years depending upon various factors, including the depth of the pipe and soil conditions. Consequently, many sections of the water line were coming to the end of their useful life, and a significant number of sections had been identified for replacement (the Identified Pipe).

¶ 4 According to the District, it is financially impossible to replace all of the Identified Pipe in a single year. Therefore, the District has adopted procedures to prioritize the replacement of Identified Pipe according to various factors affecting need, cost, and convenience, and to recommend which Identified Pipe should be replaced in any given year (the Recommended Pipe). Based on the application of those factors, the Engineers determined that the replacement of the Water Line Section should be deferred because it was not economically justified at that time. In their 2003–2004 annual budget proposal to the District's Board of Trustees (the Board), the Engineers presented their recommendation of which Identified Pipe should be replaced that year, the reasons for that recommendation, and a request for the necessary funds to replace the Recommended Pipe. The Engineers acknowledge that their decision was influenced by the Board's expectation that they not exceed the prior year's capital improvement budget by more than a certain percentage. Although they identified the Water Line Section as needing to be replaced in 2002, the Engineers did not recommend it for replacement until 2006. The Board allocated the necessary funds for replacement of the Water Line Section in the District's 2006–2007 fiscal year budget.

¶ 5 On November 19, 2005, after it had been listed as Identified Pipe but before the Engineers had designated it as a Recommended Pipe, the Water Line Section ruptured, resulting in the flooding of the Jenkinses' property and the Home (the 2005 Breach). The Jenkinses contend that the 2005 Breach caused “structural damage to the [Home] and realty and destroy[ed] personal property belonging to [them].” Subsequently, the Board accepted the Engineers' recommendation that the Water Line Section be replaced and allocated the necessary funds to do so. In October 2006, the District began replacing the six-inch cast iron pipe in the Water Line Section with six-inch PVC pipe. The replacement was timed to coincide with a South Salt Lake City construction project involving the sidewalk, curb, and gutterlocated above the Water Line Section. On October 2, 2006, while the District was laying the new PVC pipe alongside the cast iron pipe, the Water Line Section broke at a different point in the same general location as the 2005 Breach, again flooding the Home and causing additional damage (the 2006 Breach).² The Water Line Section had broken at least nine times in the nine years preceding the Breaches, and seven of those breaches had occurred during the five years immediately preceding the 2005 Breach.

¶ 6 Although the District provided some financial assistance to the Jenkinses after the 2005 Breach, the Jenkinses claim that it did not compensate them fully for their damages then and that the District has refused to pay any amounts in connection with the 2006 Breach. Consequently, on November 1, 2006, the Jenkinses served a notice of claim indicating their intent to sue the District. When the District failed to respond, the Jenkinses filed a complaint, seeking damages for property damage, emotional distress, and lost wages. The District answered the complaint, raising both the public duty doctrine and governmental immunity as defenses. Thereafter, the District filed a motion and memorandum for summary judgment asserting (1) that the Jenkinses' claims were barred by the public duty doctrine; (2) that even if not barred by that doctrine, the Jenkinses could not prevail because they had failed to designate an expert; (3) that even if the Jenkinses could establish liability without an expert, the District was immune from suit; and (4) that the trial court lacked jurisdiction over some of the Jenkinses' claims because they were not identified in the notice of claim. After full briefing and hearing, the district court granted summary judgment on the basis that the claims against the District were barred by the public duty doctrine. Because the district court found this doctrine determinative, it did not consider the other grounds for summary judgment advanced by the District. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶ 7 The Jenkinses appeal the trial court's order granting summary judgment in favor of the District. “We review summary judgments for correctness, giving no deference to the trial court's decision (even on questions that would be denominated as ‘mixed’ [questions of law and fact] if they arose on appeal after trial).” Bahr v. Imus, 2011 UT 19, ¶ 16, 250 P.3d 56.

ANALYSIS

¶ 8 We begin our analysis with the examination of the District's challenge to the sufficiency of the notice of claim because we generally consider issues affecting subject matter jurisdiction first. See Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 9, 199 P.3d 957 (“The first issue is whether we have jurisdiction....”); Hicks v. UBS Fin. Servs., Inc., 2010 UT App 26, ¶ 12, 226 P.3d 762 (“[B]efore reaching the substantive issue ... we must first determine whether we have jurisdiction to hear this appeal.”), cert. granted,238 P.3d 443 (Utah 2010). We conclude that subject matter jurisdiction exists with respect to the Jenkinses' claims, but we remand to the trial court for the resolution of factual issues determinative of the damages available to the Jenkinses. We then proceed to the issue of whether the Jenkinses' negligence claim is barred by the public duty doctrine. See generally Rollins v. Petersen, 813 P.2d 1156, 1162 n. 3 (Utah 1991) (noting that the public duty doctrine should be considered before questions of immunity). We conclude that it is not and reverse the trial court's summary judgment in favor of the District on that theory.

¶ 9 We next address the alternative grounds raised by the District in support of summary judgment in its favor. Because “judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them,” State v. Thurman, 846 P.2d 1256, 1262 (Utah 1993) (internal quotation marks omitted), we defer the open courts challenge advanced by the Jenkinses until after the consideration of all other issues. See Clegg v. Wasatch Cnty., 2010 UT 5, ¶¶ 26–27, 227 P.3d 1243 (declining to reach an open courts clause question when a factual issue remained with respect to the application of immunity because “to do so would be to impermissibly render an advisory opinion”). Thus, we begin our analysis of the District's alternative grounds by considering whether summary judgment is appropriate because the Jenkinses failed to designate an expert. Under the unique facts present here, we hold that expert testimony is not required. We then proceed to the issue of whether, even if the District negligently caused damage to the Jenkinses, it is immune from liability under the Governmental Immunity Act of Utah (the GIAU). SeeUtah Code...