Mallory v. Brigham Young Univ.

Decision Date08 July 2014
Docket NumberNo. 20120799.,20120799.
Citation332 P.3d 922,764 Utah Adv. Rep. 27
CourtUtah Supreme Court
PartiesRandall Roy MALLORY, Plaintiff and Appellee, v. BRIGHAM YOUNG UNIVERSITY, a Utah nonprofit corp., Sarah Robinson, and Does I–X, Defendants and Appellants.


Curtis L. Wenger, Salt Lake City, for plaintiff.

Steven M. Sandberg, Provo, for defendants.

On Certiorari to the Utah Court of Appeals.

Justice DURHAM, opinion of the Court:


¶ 1 This case concerns the interpretation and application of the term “Employee” in Utah's Governmental Immunity Act (Act). SeeUtah Code §§ 63G–7–101 to –904. Under the Act, plaintiffs who have a claim against a governmental employee for acts committed during the performance of the employee's duties must file a notice of claim within one year after the claim arises, or the claim is barred. Id. §§ 63G–7–401(2), –402. In this case, Randall Roy Mallory was injured in a motorcycle accident while leaving a Brigham Young University (BYU) parking lot. He filed a complaint against BYU and its traffic cadet, Sarah Robinson (together, BYU Defendants),1 for allegedly causing the injuries he sustained in that accident. In the district court, the BYU Defendants maintained that, at the time of the collision, they were “Employees” of Provo City as defined in the Act. They further argued that because Mr. Mallory failed to file a timely notice of claim with Provo City, his lawsuit was barred. The district court agreed with BYU on both points and consequently dismissed Mr. Mallory's complaint for lack of subject matter jurisdiction. Mr. Mallory timely appealed to the court of appeals, which reversed the district court, holding that dismissal was premature given insufficient evidence that the BYU Defendants were “Employees” under the Act. BYU then filed a petition for writ of certiorari with this court, which we granted.

¶ 2 We address two issues. The first is whether the court of appeals erred in its construction of the Act's statutory definition of “Employee,” 2 and the second is whether the court of appeals erred in reversing the district court's order of dismissal as premature. We conclude that the court of appeals erred both in interpreting the statutory definition of Employee and in reversing the trial court's dismissal. Accordingly, we reverse and reinstate the district court's order dismissing Mr. Mallory's claims for lack of subject matter jurisdiction.


¶ 3 On April 12, 2008, roughly 16,700 people attended BYU's spring football scrimmage at LaVell Edwards Stadium in Provo, Utah. Following the game, Ms. Robinson, a BYU traffic cadet, was directing traffic under the supervision of a BYU peace officer. A Provo City ordinance allows a university's nonpeace officer employees to “direct traffic on public streets while under the supervision of a peace officer employed by the same ... university ... to aid in the orderly movement of traffic related to public gatherings in excess of 5,000 people.” Provo, Utah, Code § 9.10.060(2)-(3). At the time of the accident, Ms. Robinson was stationed at the stadium's west exit to facilitate the exodus of motorists onto University Avenue—the public thoroughfare adjacent to the parking lot. During this time, Ms. Robinson was in continuous radio contact with her supervising peace officer. While Ms. Robinson was directing traffic, Mr. Mallory drove his motorcycle from the stadium parking lot onto University Avenue and collided with another vehicle. Mr. Mallory suffered serious bodily injury and incurred economic damages as a result of the collision.

¶ 4 In February of the following year, Mr. Mallory filed a complaint alleging that the BYU Defendants, among others, negligently caused Mr. Mallory's collision and were therefore liable for damages. Mr. Mallory later amended his complaint and the BYU Defendants responded with a timely answer. In their answer, the BYU Defendants asserted that Mr. Mallory's claims were barred by the Act because at the time of the accident, Ms. Robinson was an agent (and therefore an Employee) of Provo City and that Mr. Mallory was thus required—but had failed—to file a notice with Provo City within one year of when his claim arose.

¶ 5 The BYU Defendants subsequently filed a motion to dismiss, again asserting that Mr. Mallory's claims were barred because he had failed to file a timely notice of claim as required by the Act. The trial court granted the BYU Defendants' motion, holding that because the BYU Defendants were agents of Provo City, they also qualified as its Employees under the Act. As a result, the court ruled that Mr. Mallory's failure to file a timely notice of claim stripped the court of subject matter jurisdiction. The trial court entered a final judgment dismissing all claims against the BYU Defendants, and Mr. Mallory appealed.

¶ 6 On review, the Utah Court of Appeals disagreed with the BYU Defendants' assertion that because they were Provo City's agents, they were automatically its Employees. The court of appeals based its conclusion primarily on the fact that the term “agents” is not listed in the Act's definition of Employee. Mallory v. Brigham Young Univ., 2012 UT App 242, ¶ 32, 285 P.3d 1230. The court concluded that “the omission of ‘agents' suggest[s] that the Utah Legislature was aware of the imprecision in the use of the term ‘agent’ and carefully selected language designed to limit immunity to those relationships where the governmental entity exercises control over the actor sufficient to qualify the actor as the government's servant.3Id. ¶ 34 (emphasis added). Additionally, the court of appeals ruled that the district court dismissed the case prematurely because the record provided “no information about the control, if any, exercised by Provo City over the manner in which [the BYU] Defendants performed traffic control activities.” Id. ¶ 38 (emphasis added). “As a result,” the court held, “there is insufficient evidence to establish whether [the BYU] Defendants were acting as Employees of Provo City.” Id. In light of that ruling, the court of appeals remanded the case for further proceedings. Id. ¶ 44.


¶ 7 We review the court of appeals'[ ] interpretation of a statute for correctness and give no deference to its conclusions of law.” State v. Ostler, 2001 UT 68, ¶ 5, 31 P.3d 528.

¶ 8 With regard to the motion to dismiss, we review the court of appeals' decision for correctness, focusing on whether that court correctly reviewed the [district] court's decision under the appropriate standard of review.” Medved v. Glenn, 2005 UT 77, ¶ 8, 125 P.3d 913 (alteration in original) (internal quotation marks omitted). “Jurisdictional questions, such as subject matter jurisdiction, are reviewed for correctness.” Canfield v. Layton City, 2005 UT 60, ¶ 10, 122 P.3d 622.


¶ 9 The Act “governs all claims against governmental entities or against their [E]mployeesor agents arising out of the performance of the [E]mployee's duties, within the scope of employment, or under color of authority.” Utah Code § 63G–7–101(2)(b).4 The Act in turn defines “Employee” as a class of persons that “includes ... a governmental entity's officers, employees, servants, trustees, or commissioners” along with nine other specific—but wide-ranging—groups of persons, including tutors, authorized student teachers, members of governing bodies, volunteers, and educational aides. Id.§ 63G–7–102(2)(a) (emphasis added). Only one discrete group—independent contractors—is categorically excluded from the statutory definition of Employee. Id.§ 63G–7–102(2)(c).

¶ 10 The BYU Defendants urge us to interpret the Act's definition of Employee to include all authorized agents of a governmental entity except those that are independent contractors. The BYU Defendants acknowledge that the Act does not explicitly include the term “agent” in its statutory definition of Employee, but argue that this omission does not connote the legislature's intent to restrict Employee status to only those enumerated categories. Instead, the BYU Defendants argue that the legislature's decision to define Employee by describing what that term “ includes,”—rather than declaring what it “ means ”—demonstrates the legislature's intent to provide illustrative, but nonexhaustive, examples of Employee status under the Act. Additionally, the BYU Defendants assert that each of the enumerated classes in the statute—including independent contractors—are agents of a governmental entity when performing a governmental function. The BYU Defendants argue, therefore, that the legislature intended Employee to include all agents of a governmental entity except those agents that are independent contractors.

¶ 11 The court of appeals disagreed with the BYU Defendants' interpretation. The court argued that it could not lightly assume that the legislature simply “overlooked ‘agents' when listing examples of governmental Employees.” Mallory v. Brigham Young Univ., 2012 UT App 242, ¶ 21, 285 P.3d 1230. The court went on to explain that the term agent is “susceptible to both a broad and narrow meaning,” the broad meaning characterized by a relationship where the agent has “significant discretion,” and the narrow one characterized by a relationship where the “principal maintains strict control.” Id. ¶ 24. The court of appeals reasoned that the legislature's omission of the word “agent” acted as a disavowal of the potentially broad meaning of “agent,” in light of the legislature's purposeful inclusion of the terms “employee” and “servant”—which connote stricter control—but exclusion of “independent contractor,” which connotes less control. In other words, the court of appeals concluded that the structure of the Act's definition of Employee evinced the legislature's intent to “narrow[ ] the applicability of the [Act's] individual immunity to a subset of the more expansive definition of agent”...

To continue reading

Request your trial
9 cases
  • Summerhaze Co. v. Fed. Deposit Ins. Corp.
    • United States
    • Utah Supreme Court
    • July 8, 2014
  • Browning-Ferris Indus. of Cal., Inc. v. Nat'l Labor Relations Bd.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 28, 2018
    ...of a task and in its result, and not the actual exercise of control or supervision.’ ") (citation omitted); Mallory v. Brigham Young Univ. , 332 P.3d 922, 928–929 (Utah 2014) ("If the principal has the right to control the agent's method and manner of performance, that agent is a servant wh......
  • Jensen v. Xlear, Inc.
    • United States
    • U.S. District Court — District of Utah
    • May 11, 2020
    ...liability to exist. See Mallory v. Brigham Young Univ., 2012 UT App 242, ¶ 29, 285 P.3d 1230, 1238, rev'd on other grounds by, 2014 UT 27, 332 P.3d 922 (noting that "a principal can be sued for direct or vicarious liability as a result of the actions of its agent" (citingRestatement (Third)......
  • Vega v. Jordan Valley Med. Ctr., LP
    • United States
    • Utah Supreme Court
    • July 19, 2019
    ...those facts are considered in a light most favorable to the plaintiff." Mallory v. Brigham Young Univ. , 2014 UT 27, ¶ 32 n.1, 332 P.3d 922 (Stone, J., dissenting).4 "A malpractice action against a health care provider may not be initiated unless and until the plaintiff ... gives the prospe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT