Johnson v. Utah Dept. of Transportation

• Citation: 2006 UT 15,133 P.3d 402
• Decision Date: 10 March 2006
• Docket Number: No. 20040921.,20040921.
• Parties: Craig JOHNSON, Plaintiff and Appellee, v. UTAH DEPARTMENT OF TRANSPORTATION, Defendant and Appellant.
• Court: Supreme Court of Utah

133 P.3d 402

2006 UT 15

Craig JOHNSON, Plaintiff and Appellee, v. UTAH DEPARTMENT OF TRANSPORTATION, Defendant and Appellant.

No. 20040921.

Supreme Court of Utah.

March 10, 2006.

Erik M. Ward, Lindy Vandyke, Ogden, Stephen P. Horvat, Salt Lake City, for plaintiff.

Stephen J. Trayner, H. Scott Jacobson, Salt Lake City, for defendant.

Amicus Curiae Mark L. Shurtleff, Att'y Gen., Brent A. Burnett, Asst. Att'y Gen., Salt Lake City.

DURHAM, Chief Justice:

INTRODUCTION

¶ 1 In this case, we address the discretionary function exception to the waiver of immunity in Utah's Governmental Immunity Act (the Act). We granted certiorari to clarify when governmental action qualifies for the exception and to reiterate the test by which courts should assess such action.

¶ 2 Plaintiff Craig Johnson filed a claim for injuries suffered after he lost control of his car in a construction zone on Interstate 15 (I-15). Rather than use concrete barriers as dividers, the Utah Department of Transportation (UDOT) had decided to separate the lane in which Johnson was traveling from the construction area by placing orange barrels inside the construction cutouts. The government filed for summary judgment, claiming that the decision to use orange barrels qualified as a discretionary function immunized from liability under the Act. The district court agreed and awarded summary judgment.

¶ 3 Applying this court's four-part test defining discretionary function, the court of appeals reversed the district court's award of summary judgment to the government. We affirm the judgment of the court of appeals.

BACKGROUND

¶ 4 On September 14, 1996, Johnson was driving south on I-15 when his front tire slid into a twelve- to eighteen-inch deep cutout buttressing his lane of travel. He lost control of his vehicle and drove into two additional cutouts. No painted lines or physical barriers separated Johnson's lane of travel from the cutouts. In lieu of a buffer zone, orange plastic barrels had been placed sporadically inside the cutouts as the only indication of the hazard, although the traffic control plan required additional safeguards. At the time of Johnson's accident, UDOT allowed for one extra lane of traffic — also in violation of the traffic control plan — further limiting any buffer for the traveling public. Dyke LeFevre, UDOT's Region One Director,¹ conceded that this practice is not safe and is something he would never approve or allow the field engineer to approve.

¶ 5 Before taking bids on the I-15 construction project, LeFevre had already decided to use the orange plastic barrels instead of the concrete barriers recommended by the Federal Highway Association (FHA) Guidelines.² In making this decision, LeFevre apparently did not request a safety analysis, even though UDOT regularly employs such studies. While LeFevre's supervisor, Clint Topham, UDOT's Deputy Director and "chief engineer for the entire state of Utah, [who] had final say on all transportation related engineering decisions," signed off on the project generally, LeFevre never discussed the decision to use plastic barrels with Topham.

¶ 6 After Granite Construction Company (Granite) successfully bid for the nearly five million dollar project, Granite expressed safety concerns to UDOT. In addition to requesting concrete barriers in place of the orange plastic barrels, Granite asked UDOT to reduce the speed limit from sixty-five to fifty-five miles per hour, the maximum speed limit when the parties consummated the contract.³

¶ 7 Agreeing with Granite's concerns, Kent Nichols, UDOT's Project Engineer assigned to oversee the I-15 project, told LeFevre that worker safety was not receiving adequate consideration and recommended the use of concrete barriers. Nichols provided an estimate from Granite that concrete barriers would cost approximately an additional $540,000 and would enable Granite to complete the project twenty-eight days ahead of schedule.

¶ 8 Subsequently, Nichols sent a letter to Granite saying that UDOT would not pay for the concrete barriers. He explained that LeFevre did not believe the Commission⁴ would approve the switch unless Granite could complete the project fifty days early and reduce the additional cost to approximately $450,000. There is no evidence that Topham was involved in the decision, nor any evidence that the Commission would have actually rejected the proposal. In fact, LeFevre never requested the additional funds from the Commission. Granite responded that it could switch to concrete barriers for roughly an additional $495,000 — provided UDOT supplied certain construction equipment — but that Granite could not complete the project earlier than twenty-eight days ahead of schedule.

¶ 9 Discussions stalled over this $45,000 difference and the parties made no progress regarding the use of concrete barriers or reducing the speed limit, even though no one disputed that concrete barriers would substantially increase safety. In fact, saving money was the only reason UDOT refused to switch to concrete barriers. UDOT provided no reason for failing to lower the speed limit.

¶ 10 Nearly three months later, in an incident unrelated to the cause of action in this case, a car drove into the construction cutouts and knocked over multiple orange barrels. The accident would have killed Granite employees had it not been for the fact that they had left the site temporarily to obtain additional materials. Granite informed UDOT of the accident and reiterated that it did not believe UDOT had taken adequate measures to ensure worker safety.

¶ 11 Despite Granite's repeated requests, and despite the accident's leaving no doubt that the orange barrels did not adequately protect the public or the workers, LeFevre did not budge from his initial cap of $450,000 to use concrete barriers. Even after the accident, no evidence indicates that LeFevre discussed the increased spending with Topham or with the Commission, or that he requested a reduced speed limit. Consequently, the construction site continued to utilize the orange plastic barrels and maintain the sixty-five miles per hour speed limit at the time of Johnson's accident.⁵

¶ 12 On October 3, 1997, Johnson initiated this action in the district court, suing both Granite and UDOT under negligence theories. UDOT filed a motion for summary judgment, arguing that the claim was precluded by the Act, Utah Code section 63-30-10 (repealed 2004).⁶ The district court granted the motion, finding that UDOT's actions qualified for the discretionary function exception to the waiver of immunity under the Act. On appeal, the court of appeals applied the four-part test defining discretionary function articulated in Little v. Utah State Division of Family Services, 667 P.2d 49, 51 (Utah 1983), and reversed the summary judgment order. Johnson v. Dep't of Transp., 2004 UT App 284, ¶ 30, 98 P.3d 773. We affirm.

STANDARD OF REVIEW

¶ 13 We granted certiorari to review the court of appeals' reversal of summary judgment. We have jurisdiction over this matter pursuant to Utah Code section 78-2-2 (2002).

¶ 14 Summary judgment should be awarded only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c).

¶ 15 Appellate courts review a grant of summary judgment for correctness and afford no deference to conclusions of law. Laney v. Fairview City, 2002 UT 79, ¶ 9, 57 P.3d 1007. Thus, on appeal the facts must be viewed in the light most favorable to the nonmoving party. Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1162 (Utah 1993).

ANALYSIS

¶ 16 UDOT argues that it should be shielded from liability for this accident under the Act, Utah Code Section 63-30-10 (repealed 2004).⁷ Without addressing any issues of fault or evaluating the merits of Johnson's case, we consider (1) the applicability of the Act and (2) the Act's discretionary function exception to the waiver of immunity.

I. THE UTAH GOVERNMENTAL IMMUNITY ACT

¶ 17 As our precedent repeatedly discusses, the Act requires a three-step analysis. See, e.g., Laney v. Fairview City, 2002 UT 79, ¶ 11, 57 P.3d 1007; Keegan v. State, 896 P.2d 618, 619-20 (Utah 1995); Ledfors v. Emery County Sch. Dist., 849 P.2d at 1164. First, we must decide if the Act affords immunity through its blanket immunization. Laney, 2002 UT 79, ¶ 11, 57 P.3d 1007. Second, we must determine if the Act waives immunity given the particular circumstances of the case. Id. Third, we must consider if the governmental action qualifies for an exception to the waiver of immunity. Id.

¶ 18 The parties do not disagree over the first two steps, acknowledging that UDOT's action qualifies under the Act's blanket immunity and that Utah Code section 63-30-8 (repealed 2004)⁸ waives this immunity. Accordingly, the issue before this court is whether UDOT's decision to implement, and refusal to modify, a traffic control plan using orange plastic barrels instead of concrete barriers qualifies as an exception to the waiver of immunity under the Act. Specifically, the parties dispute whether the Act immunizes UDOT under the discretionary function exception, which overrides the immunity waiver "if the injury arises out of, in connection with, or results from . . . the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused. . . ." Utah Code Ann. § 63-30-10 (repealed 2004).

II. THE DISCRETIONARY FUNCTION EXCEPTION TO THE WAIVER OF IMMUNITY

¶ 19 This court has always read the discretionary function exception to the immunity waiver narrowly. To do otherwise would allow the exception to swallow the rule. Nelson v. Salt Lake City, 919 P.2d 568, 575 (Utah 1996) ("Nearly all acts performed by government employees involve some amount of discretion. However, discretionary immunity clearly was not designed to cloak the ancient doctrine of sovereign immunity in modern...