Pigs Gun Club, Inc. v. Sanpete County, 990213.

• Decision Date: 01 February 2002
• Docket Number: No. 990213.,990213.
• Citation: 42 P.3d 379,2002 UT 17
• Parties: PIGS GUN CLUB, INC., aka Pigs, Inc., Pigs Gun Club, L.L.C. aka Pigs, Inc., Bryce H. Roberts, Lynn Clayson, Robert Cordner, Paul Carnesecca, Frank Carnesecca, and Richard Bona, Plaintiffs and Appellants, v. SANPETE COUNTY, Sanpete County Road Department, Consolidated Sevier Bridge Company, Utah Department of Transportation, Department of Soil Conservation, Central Utah Water Conservancy District, State of Utah, State Engineers Office, Department of Natural Resources, Division of Water Rights, Sevier River Water Commission (Upper), State Park Service, Board of Water Resources, Deseret Irrigation Company, Utah Water Company, Milville Irrigation Company, Delta Canal Company, Abraham Irrigation Company, and John Does I through X, Defendants and Appellee.
• Court: Utah Supreme Court

42 P.3d 379

2002 UT 17

PIGS GUN CLUB, INC., aka Pigs, Inc., Pigs Gun Club, L.L.C. aka Pigs, Inc., Bryce H. Roberts, Lynn Clayson, Robert Cordner, Paul Carnesecca, Frank Carnesecca, and Richard Bona, Plaintiffs and Appellants, v. SANPETE COUNTY, Sanpete County Road Department, Consolidated Sevier Bridge Company, Utah Department of Transportation, Department of Soil Conservation, Central Utah Water Conservancy District, State of Utah, State Engineers Office, Department of Natural Resources, Division of Water Rights, Sevier River Water Commission (Upper), State Park Service, Board of Water Resources, Deseret Irrigation Company, Utah Water Company, Milville Irrigation Company, Delta Canal Company, Abraham Irrigation Company, and John Does I through X, Defendants and Appellee.

No. 990213.

Supreme Court of Utah.

February 1, 2002.

J. David Nelson, Robert D. Dahle, Sandy, and Jere Reneer, Spanish Fork, for plaintiffs.

David Nuffer, Brent M. Brindley, St. George, for Sanpete County.

HOWE, Chief Justice.

INTRODUCTION

¶ 1 This case involves a dispute over damage to real property owned by plaintiffs Pigs Gun Club, Inc. (PGC) and Bryce Roberts.¹ Plaintiffs appeal from the trial court's order granting defendant Sanpete County's (the County) motion for summary judgment and dismissing all of plaintiffs' claims. They contend that genuine issues of material fact should have prevented summary judgment.

BACKGROUND²

¶ 2 Plaintiffs are owners of real property in Sanpete County that adjoins the Sevier River and lies south of the Yuba Reservoir. The Sevier River flows north into the reservoir and is bisected by the Fayette River Lane (the Lane), a public road that lies between plaintiffs' property and the reservoir. The Lane, which has existed for many years, runs nearly perpendicular to the river; it crosses the river over a culvert bridge and provides access to the east and west sides of the river.

¶ 3 Before 1983, the Lane was low enough that when the river's waters rose too high to pass under the culvert bridge, the overflow water could flow north over the Lane toward the reservoir. However, in about 1983, run-off waters were high enough to wash out parts of the bridge culvert and the Lane. The County constructed a new bridge culvert and repaired the Lane. The repaired Lane was built higher than before the washout, and the County progressively built it up even higher through maintenance and repair from 1983 through 1995. In 1995, the river's water level was again higher than normal, and water accumulated on the south side of the Lane, flooding plaintiffs' property. Plaintiffs allege that the flooding was caused by the increased height of the Lane, which instead of allowing excess water to flow over it toward the reservoir as it had done before 1983, impeded the waters and caused them to back up onto and damage plaintiffs' property.

¶ 4 At some point during the flooding in 1995, plaintiffs met with the County to request that the Lane be breached to allow the excess waters to flow through to the reservoir. The County's representatives assessed the situation and decided not to breach the Lane. A short time later, the flood waters breached the lane and the water that had backed up onto plaintiffs' property receded. However, the County repaired the breach, after which water again backed up onto and further damaged plaintiffs' property.

¶ 5 Plaintiffs brought this action, asserting claims against the County³ for negligence and strict liability in failing to properly maintain the Lane. They also asserted that in failing to maintain the Lane properly and thus allowing the flooding that damaged plaintiffs' property, the County committed a partial or complete taking of their property.

¶ 6 The County moved for summary judgment on these claims, asserting, inter alia, that plaintiffs' claims were barred under the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -38 (1997) (the Act). The trial court granted the County's motion, making what it termed findings of undisputed fact and the following conclusions of law:

The County's decisions with regard to the management of the flood water during the spring 1995 runoff were the exercise of a discretionary function.

Further, the County's actions or inaction were for the management of flood waters and were related to the operation of flood or storm system.

Further, the flooding of the real property to which Plaintiffs claim title was the result of a latent dangerous or defective condition of a road, culvert and bridge.

Therefore, for all the foregoing reasons, Plaintiffs' negligence claim against the County is barred by operation of the Act.

Additionally, the trial court dismissed several of the named plaintiffs from the suit because they had failed to file a notice of claim, and it dismissed plaintiffs' strict liability claim pursuant to the Act. The trial court also dismissed with prejudice the inverse condemnation claim because "the flooding of Plaintiffs' property was not the intended or unavoidable consequence of the County's activities with regard to the lane." Plaintiffs appeal, asserting that the above legal conclusions are erroneous because disputed issues of material fact remain.

STANDARD OF REVIEW

¶ 7 A motion for summary judgment should be granted only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c); Copper State Leasing v. Blacker Appliance, 770 P.2d 88, 89 (Utah 1988). Accordingly, in reviewing a trial court's grant of summary judgment, "`we consider only whether [it] correctly applied the law and correctly concluded that no disputed issues of material fact existed.'" Surety Underwriters v. E & C Trucking, 2000 UT 71, ¶ 14, 10 P.3d 338 (quoting Aurora Credit Servs., Inc. v. Liberty W. Dev., Inc., 970 P.2d 1273, 1277 (Utah 1998)). In so doing, we view all facts and reasonable inferences drawn therefrom in a light most favorable to the nonmoving party. Tretheway v. Miracle Mortgage, Inc., 2000 UT 12, ¶ 2, 995 P.2d 599.

ANALYSIS

I. UTAH GOVERNMENTAL IMMUNITY ACT

¶ 8 The trial court dismissed the following claims pursuant to the Act: all claims of those plaintiffs who had failed to file a notice of claim, all claims based on strict liability, and all negligence claims. We review first whether the Act does indeed bar those claims; then we review the dismissal of the inverse condemnation claim.

A. Notice of Claim

¶ 9 To begin, we affirm the trial court's dismissal of the claims of plaintiffs Lynn Clayson, Robert Cordner, Paul Carnesecca, Frank Carnesecca, and Richard Bona. Section 63-30-11 of the Act requires any person making a claim against a government entity or one of its employees to file with that entity a written notice of claim before that person can maintain an action. Section 63-30-13 requires that the notice be filed "within one year after the claim arises, or before the expiration of any extension of time granted." Utah Code Ann. § 63-30-13 (1997).

¶ 10 The only notice of claim timely filed in this case listed only PGC and Mr. Roberts as claimants. Plaintiffs argue that this notice was sufficient for all plaintiffs because "[t]here is no case law ... [that] asserts that the [A]ct requires a specific name to be on the notice of claim when all the governmental entities involved know who the plaintiffs are." However, we note that the statute itself clearly requires any person filing suit against a government agency to file a notice of claim. Id. § 63-30-11(2). In other words, each plaintiff's name must be on the notice of claim. Although the purpose of a notice of claim is to "provide[ ] the governmental entity an opportunity to correct the condition that caused the injury, evaluate the claim, and perhaps settle the matter without the expense of litigation," Larson v. Park City Mun. Corp., 955 P.2d 343, 345-46 (Utah 1998), as plaintiffs themselves note, we have consistently held that those purposes are fulfilled only by the timely filing of a notice of claim-even when the entity charged had actual notice of the circumstances of the claim. See Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 21, 9 P.3d 762

("`We have consistently required strict compliance with the requirements of the Immunity Act. Actual notice does not cure a party's failure to meet these requirements.'" (quoting Rushton v. Salt Lake County., 1999 UT 36, ¶ 19, 977 P.2d 1201)). Because the notice of claim filed in this case included only the claims of PGC and Mr. Roberts, we hold that it was insufficient to support the action in behalf of Lynn Clayson, Robert Cordner, Paul Carnesecca, Frank Carnesecca, and Richard Bona. The claims of these plaintiffs were therefore properly dismissed.

B. Strict Liability and Negligence

¶ 11 In Utah, government entities are immune from suit for injury resulting from the exercise of governmental functions unless that immunity has been waived by statute. To determine whether immunity has been waived for the particular activity for which a plaintiff is filing a claim, we must answer three questions: (1) whether the activity is a governmental function, for which the legislature has granted blanket immunity in section 63-30-3;⁴ (2) if the activity is an immunized governmental function, whether that blanket immunity has been waived in another section of the Act; and (3) if immunity has been waived, whether the Act contains an exception to that waiver that would result in the retention of the immunity despite the waiver. See Keegan v. State, 896 P.2d 618, 619-20 (Utah 1995)

(citing Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1164 (Utah 1993)).

¶ 12 The injuries for which the County is being sued arise out of activities that have been characterized by the parties as (1) the negligent management of flood waters, or (2) the dangerous, unsafe, or defective design, construction, maintenance, or repair of a public highway, reservoir, dam, dike or levee. The parties...