Kouris v. Utah Highway Patrol, 20010097.

• Citation: 2003 UT 19,70 P.3d 72
• Decision Date: 06 May 2003
• Docket Number: No. 20010097.,20010097.
• Parties: Michael KOURIS, individually, and for the Estate of Michael Kouris, a deceased minor, and Pam Kouris, individually, Plaintiffs and Appellants, v. UTAH HIGHWAY PATROL, State of Utah, and Cortland Childs, Defendants and Appellees.
• Court: Supreme Court of Utah

70 P.3d 72

2003 UT 19

Michael KOURIS, individually, and for the Estate of Michael Kouris, a deceased minor, and Pam Kouris, individually, Plaintiffs and Appellants, v. UTAH HIGHWAY PATROL, State of Utah, and Cortland Childs, Defendants and Appellees.

No. 20010097.

Supreme Court of Utah.

May 6, 2003.

Seventh District, Price Dep't.; The Honorable Bruce K. Halliday.

Warren W. Driggs, J. Bradford DeBry, Salt Lake City, for plaintiffs.

Mark L. Shurtleff, Att'y Gen., Sandra L. Steinvoort, Nancy L. Kemp, Brent A. Burnett, Asst. Att'ys Gen., Salt Lake City, for defendants.

RUSSON, Justice.

¶ 1 The parents and estate of Michael Kouris ("plaintiffs") appeal the summary judgment dismissing their wrongful death action brought against the Utah Highway Patrol ("UHP"), the State of Utah, and Utah State Trooper Cortland Childs ("Childs").

BACKGROUND

I. PROCEDURAL HISTORY

¶ 2 Plaintiffs' complaint, filed in December 1998, alleged that UHP, the State of Utah, and Childs ("defendants") wrongfully caused the death of Michael Kouris ("Michael") in a collision between Michael's bicycle and Childs' patrol car. Subsequent to defendants' answer, plaintiffs added claims for negligent supervision and civil rights violations. Defendants moved to dismiss the civil rights claims and the claims against Childs and sought summary judgment on all other claims, asserting they were barred by the Utah Governmental Immunity Act. Following exchange of memoranda and three separate hearings, plaintiffs stipulated to dismissal of the civil rights claims and the claims against Childs. On January 24, 2001, the trial court entered summary judgment in favor of defendants on the remaining claims, and denied plaintiffs' motion for reconsideration filed pursuant to rules 60(b) and 56(f) of the Utah Rules of Civil Procedure. On January 29, 2001, plaintiffs timely filed a notice of appeal.

¶ 3 Plaintiffs assert on appeal that the trial court erred in granting summary judgment because there were indeed facts in dispute material to the issue of governmental immunity, and because the affidavit of plaintiffs' expert witness, containing material facts, was improperly stricken by the court. Defendants argue that summary judgment was proper because there were no issues of material fact in dispute and defendants were protected by the Utah Governmental Immunity Act.

II. FACTS

¶ 4 On July 19, 1998, in Price, Utah, Trooper Childs was on duty and was southbound on Highway 10 in his patrol car when he received a radio call describing a child riding in the trunk of an automobile and holding down the trunk lid. Childs was the closest officer in the vicinity and responded by making a U-turn, going north on Carbon Avenue, and increasing his speed in order to catch up to the reported vehicle. As Childs was northbound on Carbon Avenue, a two-way street with one lane of traffic in either direction and a center turning lane, he came up behind an automobile driven by Tammy Auberger ("Auberger") and followed her for about one mile. As Auberger approached the intersection of Carbon Avenue and 500 South, she slowed down from 45 m.p.h. to 30 m.p.h., in compliance with the decreased speed limit. When Auberger decelerated, Childs turned into the center lane to pass her. At that same moment, eleven-year-old Michael entered Carbon Avenue on his bicycle from the east shoulder, approximately thirty feet south of the crosswalk located on the north side of Carbon Avenue and 500 South. Childs swerved to avoid a collision with Michael but could not avoid the impact, hitting Michael. Michael died of his injuries. At some point during this chain of events, Childs activated his patrol car's emergency warning lights.

STANDARD OF REVIEW

¶ 5 "Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Hill v. Allred, 2001 UT 16, ¶ 12, 28 P.3d 1271; see also Utah R. Civ. P. 56(c). "The trial court's resolution of the legal issues is accorded no deference since entitlement to summary judgment is a question of law." Hill, 2001 UT 16 at ¶ 12, 28 P.3d 1271. Accordingly, on appeal

[w]e determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact. Furthermore, in reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.

Id. (internal citations and quotations omitted).

ANALYSIS

I. FINDINGS OF THE TRIAL COURT

¶ 6 For purposes of the motion for summary judgment, the trial court found the following eight material facts to be undisputed:

1. At the time of the collision Trooper Childs was responding to an emergency radio call.

2. At the time of the collision Trooper Childs was driving in an authorized emergency vehicle as defined by [Utah Code Ann. § ] 41-6-1(3).

3. At the time of the collision Trooper Childs had activated the vehicles [sic] visible signal as defined by [Utah Code Ann. § ] 41-6-132.

4. The collision took place on Carbon Avenue south of the intersection of Carbon Avenue and 5th South (the intersection). Immediately north of the intersection is a cross walk [sic].

5. Michael Kouris was not crossing Carbon Avenue at the cross walk [sic]. The point of collision being some 30 + feet south of the cross walk [sic].

6. There are no semaphores or stop signs at the intersection controlling traffic in the direction both Trooper Childs and Michael Kouris were traveling.

7. The state and UHP are governmental entities.

8. At the time of the collision Cortland Childs was acting within the scope of his employment with the Utah Highway Patrol.

¶ 7 From these findings of fact, the trial court made the following conclusions of law:

At the time of collision Trooper Childs was operating his emergency vehicle in accordance with the requirements of [Utah Code Ann. § ] 41-6-14.

That the state and UHP are immune from any claim of negligence arising out of Child's [sic] operation of [his] emergency vehicle under Section 63-30-10(15) of the Utah Governmental Immunity Act.

II. GOVERNMENTAL IMMUNITY

¶ 8 The Utah Governmental Immunity Act ("Act") grants general immunity to government entities "from suit for any injury which results from the exercise of a governmental function." Utah Code Ann. § 63-30-3(1) (1997). On the other hand, the Act also provides a waiver of immunity "for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment." Id. § 63-30-10. However, the Act lists numerous exceptions to this waiver of immunity, one of which is "the operation of an emergency vehicle, while being driven in accordance with the requirements of Section 41-6-14." Id. § 63-30-10(15).

¶ 9 It follows, then, that the question for this court is whether Childs was operating his patrol vehicle "in accordance with the requirements of Section 41-6-14," as stated in section 63-30-10(15) of the Utah Code. If he was not, the exception to the waiver of immunity would not attach. Immunity would accordingly be waived, and defendants would be subject to suit "for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment." Id. § 63-30-10.

III. SECTION 41-6-14 OF THE UTAH CODE

¶ 10 Section 41-6-14 of the Utah Code states in pertinent part:

(1) The operator of an authorized emergency vehicle, when responding to an emergency call ... may exercise the privileges under this section....

(2) The operator of an authorized emergency vehicle may:

...

(b) proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(c) exceed the maximum speed limits; or

(d) disregard regulations governing direction of movement or turning in specified directions.

(3) Privileges granted under this section to the operator of an authorized emergency vehicle ... apply only when the operator of the vehicle sounds an audible signal under Section 41-6-146, or uses a visual signal as defined under Section 41-6-132, which is visible from in front of the vehicle.

Id. § 41-6-14(1) to (3) (1998) (emphasis added).

¶ 11 Section 41-6-132, concerning visual signals, states in relevant part:

Every authorized emergency vehicle shall... be equipped with signal lamps mounted as high and as widely spaced laterally as practicable ... and these lights shall have sufficient intensity to be visible at 500 feet in normal sunlight.

Id. § 41-6-132(a).

¶ 12 This court has previously stated that "the plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute and with other statutes under the same and related chapters." State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667 (internal citations omitted). In the statutes under consideration here, section 41-6-132 is not only cited as part of section 41-6-14, it is also included in the same chapter. It necessarily follows that the two statutes should be read together as a whole and interpreted in harmony with each other.

¶ 13 Section 41-6-14 states that the privileges of the emergency vehicle exception to the waiver of governmental immunity for negligent acts apply only when the vehicle's operator "uses a visual signal as defined under Section 41-6-132," and that section states that the visual signal must be "visible at 500 feet in normal sunlight." The statutory language therefore requires that emergency visual signals not only be activated, but that they also be visible—so visible, in fact, that they can be seen at "500 feet in normal sunlight." As the intent of emergency visual signals is to warn the public, and not to merely cloak emergency vehicles with immunity, the adequate visibility of the signals is one factor, among many, to be taken into account when determining the proximate cause of an...