Keegan v. State

• Decision Date: 07 March 1995
• Docket Number: 930346,Nos. 930302,s. 930302
• Citation: 896 P.2d 618
• Parties: Cynthia L. KEEGAN, personally and as the personal representative of the Estate of David J. Keegan, Plaintiff, Appellant, and Cross-Appellee. v. STATE of Utah and the Utah Department of Transportation, Defendants, Appellees, and Cross-Appellants.
• Court: Utah Supreme Court

Page 618

896 P.2d 618

Cynthia L. KEEGAN, personally and as the personal representative of the Estate of David J. Keegan, Plaintiff, Appellant, and Cross-Appellee. v. STATE of Utah and the Utah Department of Transportation,

Defendants, Appellees, and Cross-Appellants.

Nos. 930302, 930346.

Supreme Court of Utah.

March 7, 1995.

Rehearing Denied May 30, 1995.

Carolyn Nichols, George M. Haley, Greggory J. Savage, Jo Carol Nesset-Sale, Salt Lake City, for plaintiff.

Jan Graham, Atty. Gen., Annina M. Mitchell, Brent A. Burnett, Asst. Attys. Gen., Salt Lake City, for defendants.

RUSSON, Justice:

Cynthia L. Keegan appeals the trial court's order reducing her damages in a wrongful death action from $500,000 to $250,000 pursuant to the damage cap provision of the Utah

Governmental Immunity Act, Utah Code Ann. § 63-30-34. The Utah Department of Transportation (UDOT) and the State of Utah (the State) cross-appeal the trial court's dismissal of their motion for summary judgment. We reverse and remand on the cross-appeal.

FACTS

This action arises out of a single vehicle accident which occurred on Interstate 80 in Parley's Canyon on January 9, 1990, at approximately 7:30 a.m. David Keegan's vehicle was eastbound on I-80 when it skidded on black ice, climbed the concrete median barrier separating the eastbound and westbound lanes, slid along the top of the barrier, and collided with a bridge support pillar. Mr. Keegan died as a result of this accident.

Mrs. Keegan filed a wrongful death action against UDOT and the State, alleging that they were negligent in failing to maintain the median barrier in a reasonably safe manner. She specifically asserted that although the barrier had originally been constructed in accordance with safety standards promulgated by the American Association of State Highway and Transportation Officials (AASHTO), two subsequent surface overlay projects had shortened the barrier below AASHTO standards, rendering the barrier unsafe.

UDOT and the State moved for summary judgment, arguing that the decision not to raise the concrete median barrier during the surface overlay projects was a discretionary act shielded from liability by governmental immunity under Utah Code Ann. § 63-30-10(1) (1989), which reads in relevant part:

Immunity 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 except if the injury:

(a) arises out of the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused[.]

Mrs. Keegan responded that a cause of action brought under Utah Code Ann. § 63-30-8 (1989), which provides that "[i]mmunity from suit of all governmental entities is waived for any injury caused by a defective, unsafe, or dangerous condition of any highway," is not subject to the exceptions set forth in section 63-30-10, including the discretionary function exception, and therefore, discretionary function analysis has no application to the present case. The trial court summarily denied defendants' motion for summary judgment.

Following trial, the jury returned a special verdict finding that defendants were negligent as alleged by Mrs. Keegan and that their negligence was the sole proximate cause of the death of Mr. Keegan. The jury awarded Mrs. Keegan damages of $500,000. The trial judge reduced the award to $250,000 pursuant to the damage cap provision of the Utah Governmental Immunity Act, Utah Code Ann. § 63-30-34, which provides in pertinent part:

(1)(b) A court may not award judgment of more than $250,000 for injury or death to one person regardless of whether or not the function giving rise to the injury is characterized as governmental.

Mrs. Keegan appeals, challenging the constitutionality of the cap provision of section 63-30-34. UDOT and the State cross-appeal the denial of their motion for summary judgment. ¹ Because defendants' appeal of the denial of their motion for summary judgment is dispositive of this case, we address defendants' cross-appeal first.

DISCRETIONARY FUNCTION IMMUNITY

To determine whether a governmental entity is immune from suit under the Utah Governmental Immunity Act (the Act), three questions must be answered: (1) Was the activity undertaken by the entity a governmental function and therefore immunized from suit under the general grant of immunity As to the first question, the test for determining whether the activity undertaken is a governmental function focuses on whether that activity "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 v. Salt Lake City Corp., 605 P.2d 1230, 1236-37 (Utah 1980). In the present case, neither party contests that activities related to the construction and maintenance of state highways can only be performed by governmental agencies; accordingly, for purposes of this appeal, we will assume that such activities fit within the ambit of this test.

contained in Utah Code Ann. § 63-30-3? (2) If the activity undertaken was a governmental function, has another section of the Act waived that blanket immunity? (3) If immunity has been waived, does the Act contain an exception to that waiver resulting in a retention of immunity against the claim asserted? Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1164 (Utah 1993).

The next question is whether another section of the Act has waived immunity. This question must also be answered in the affirmative here because Utah Code Ann. § 63-30-8 (1989) specifically waives immunity "for any injury caused by a defective, unsafe, or dangerous condition of any highway." Id.

Having determined (1) that the activity in question is a governmental function subject to the immunity provisions of section 63-30-3 and (2) that blanket immunity has been waived by section 63-30-8, we are left with the question of whether the Act provides an exception to the waiver provisions of section 63-30-8 that results in the government retaining immunity against the claim asserted. See Ledfors, 849 P.2d at 1164. In other words, does the discretionary function exception set forth in section 63-30-10 apply to section 63-30-8, thereby resulting in the retention of immunity in the present case? Defendants argue that section 63-30-10 does apply to section 63-30-8 and offer two alternative grounds in support of their argument: first, they argue that the 1991 amendment to section 63-30-8, which explicitly supports their position, should be applied retroactively, and second, they assert that even under the prior law, section 63-30-10 applies to section 63-30-8. Keegan responds that section 63-30-10 does not apply to section 63-30-8 and, therefore, immunity has not been retained.

Retroactive Application of 1991 Amendment to Section 63-30-8

UDOT and the State argue that the 1991 amendment to section 63-30-8, which explicitly provides that the waiver provisions therein are subject to the discretionary function exception of section 63-30-10, is a clarification of section 63-30-8 and therefore should be applied retroactively. Keegan responds that the 1991 amendment should not be applied retroactively because it affects her substantive rights.

Utah Code Ann. § 68-3-3 provides the general rule that statutes are not to be applied retroactively unless expressly so declared by the legislature. However, an exception exists for amendments clarifying statutes, which are applied retroactively, State v. Higgs, 656 P.2d 998, 1001 (Utah 1982); Okland Constr. Co. v. Industrial Comm'n, 520 P.2d 208, 210-11 (Utah 1974), so long as they " 'do not enlarge, eliminate, or destroy vested or contractual rights.' " Board of Equalization v. Utah State Tax Comm'n ex rel. Benchmark, Inc., 864 P.2d 882, 884 (Utah 1993) (quoting Pilcher v. State, 663 P.2d 450, 455 (Utah 1983)).

Prior to the 1991 amendment, section 63-30-8 read:

Immunity from suit of all governmental entities is waived for any injury caused by a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct or other structure located thereon.

Utah Code Ann. § 63-30-8 (1989). In 1991, the legislature amended section 63-30-8 to state:

Unless the injury arises out of one or more of the exceptions to waiver set forth in Section 63-30-10, immunity from suit of all governmental entities is waived for any injury caused by a defective, unsafe, or dangerous condition of any highway, road Utah Code Ann. § 63-30-8 (1993) (emphasis added).

street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them.

UDOT and the State argue that this amendment to section 63-30-8 is a clarification of the Governmental Immunity Act and should be applied retroactively. They support their position by noting that the legislative bill containing this amendment was entitled "An Act Relating to Governmental Immunity; Clarifying the Scope and Coverage of Governmental Immunity; and Making Technical Corrections." S.B. 218, 49th Leg., Gen.Sess., 1991 Utah Laws 230. However, that same bill contained a provision stating, "This act has prospective effect only and any changes to the law caused by this act do not apply to any claims based upon injuries or losses that occurred before the effective date of this act." Id. at 233. This provision clearly indicates that the legislature did not intend changes in the language of section 63-30-8 to be applied retroactively. Accordingly, defendants' argument that the 1991 amendment to section 63-30-8 should be applied retroactively fails.

Application of Section 63-30-10

to Section 63-30-8

under Prior Law

Alternatively, UDOT and the State assert that even under the prior law, section 63-30-10 applies to section 63-30-8. Keegan responds that section 63-30-10 does not apply to section 63-30-8 and,...