Rocky Mountain Thrift Stores, Inc. v. Salt Lake City Corp.

• Decision Date: 14 December 1989
• Docket Number: No. 20513,20513
• Citation: 784 P.2d 459
• Parties: ROCKY MOUNTAIN THRIFT STORES, INC., et al., Plaintiffs and Appellants, v. SALT LAKE CITY CORPORATION, et al., Defendants and Appellees.
• Court: Utah Supreme Court

Page 459

784 P.2d 459

ROCKY MOUNTAIN THRIFT STORES, INC., et al., Plaintiffs and Appellants, v. SALT LAKE CITY CORPORATION, et al., Defendants and Appellees.

No. 20513.

Supreme Court of Utah.

Dec. 14, 1989.

Wesley F. Sine, Marcus G. Theodore, Salt Lake City, for plaintiffs and appellants.

Roger F. Cutler, David L. Wilkinson, Paul M. Warner, Kevan F. Smith, Allan L. Larson, Christopher C. Fuller, Salt Lake City, for defendants and appellees.

HOWE, Associate Chief Justice:

Plaintiffs are owners and proprietors of commercial properties on three city blocks abutting North Temple Street in Salt Lake City, Utah. They brought this action against defendant governmental entities for damages caused their businesses by defendants' alleged negligent mismanagement of flood waters during the 1983 spring runoff and for compensation for inverse condemnation of their property rights of ingress and egress. The trial court granted defendants' motions for summary judgment and dismissed plaintiffs' claims based on the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 through -38 (Supp.1985, amended 1989), and because there was no unconstitutional "taking" to justify their inverse condemnation claim. Plaintiffs appeal.

The winter of 1982-83 brought record amounts of snowfall to the Wasatch Mountains east of Salt Lake City. Governmental authorities anticipated a higher-than-average spring runoff. In May 1983, due to a rapid warming after many months of cold weather, it became apparent that the runoff from City Creek might overwhelm the City Creek drainage system, which consisted, in part, of a culvert running west beneath North Temple Street to the Jordan River. This, in fact, proved to be true, as massive amounts of water carried tons of debris into the drainage system, eventually clogging the North Temple culvert between 600 West and 800 West Streets, causing flooding. The immediate threat of extensive flooding in major portions of downtown Salt Lake City, including plaintiffs' properties, prompted both the mayor of Salt Lake City and the governor of the state of Utah to declare a "state of emergency."

When the North Temple culvert became clogged, defendants used sandbags and other measures to divert the flood waters of City Creek along Canyon Road to State Street and then south to 400 South, 800 South, and 1300 South Streets, where culverts in those streets carried the waters west to the Jordan River. Defendants then proceeded to remove the tons of debris which clogged the North Temple culvert and eventually excavated sections of North Temple Street and broke open the culvert to allow water to flow unimpeded. When the waters of City Creek were redirected through the North Temple culvert, they flowed through what had become an "open canal" in the middle of that street. The court stated that as a result of this procedure, from June 3 to June 18, 1983, North Temple Street was closed to vehicular traffic west of 600 West Street. From June 19 to November 4, 1983, while defendants cleaned and repaired the street and culvert, the street was open to automobile traffic and passable on both sides of the open conduit. Traffic could not, of course, make left turns over the center of the street. All cleanup and repairs were completed by November 4, 1983.

Plaintiffs' properties were never damaged by flood waters. They claim damages, however, for loss of business allegedly caused by defendants' temporary closing of a portion of North Temple Street to all vehicular traffic between June 3 and June 18 and by the traffic problems which existed during the cleanup and repair of the street through November 4, 1983. For the same reasons, plaintiffs seek compensation for inverse condemnation of their rights of ingress and egress. These claims are made even though it is conceded that plaintiffs' commercial properties were accessible by vehicle, through more circuitous routes, after June 19 and otherwise accessible on the days the street was closed to all vehicular traffic.

Plaintiffs allege that defendants were well aware of the runoff hazards from City Creek but failed to take adequate precautions to prevent the damage caused by the 1983 spring runoff; that defendants knew the existing drainage system for City Creek was inadequate to handle the high water runoff expected that spring; that defendants failed to clean the North Temple culvert in advance of the runoff and were negligent in allegedly removing culvert grates covering the inlet opening, allowing tons of debris to enter and clog the culvert in front of plaintiffs' properties; and that defendants failed to promptly repair cuts in the street surface made to remove the debris. Plaintiffs rely on several affidavits and a series of reports from the U.S. Army Corps of Engineers to substantiate their claims. While it is clear from the record that defendants were equally prepared to rebut these claims below, the court did not reach the negligence issues and, upon defendants' motions, granted summary judgment in favor of defendants and dismissed the claims under the Governmental Immunity Act. It further found no unconstitutional taking of plaintiffs' property rights of ingress and egress.

I.

Our general governmental immunity provision is Utah Code Ann. § 63-30-3 (1989):

Except as may be otherwise provided in this chapter, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function, governmentally-owned hospital, nursing home, or other governmental health care facility, and from an approved medical, nursing, or other professional health care clinical training program conducted in either public or private facilities.

The management of flood waters and other natural disasters and the construction, repair, and operation of flood and storm systems by governmental entities are considered to be governmental functions, and governmental entities and their officers and employees are immune from suit for any injury or damage resulting from those activities.

When the 1983 spring floods occurred and when this action was commenced, only the first paragraph of section 63-30-3 was in existence. Under that paragraph, the trial court determined that all of defendants' flood control measures at issue in this case were "governmental function[s]" and were covered by the statute's broad grant of immunity. It then determined that none of the statutory exceptions enumerated in sections 63-30-5 to -10 applied to waive immunity and, therefore, defendants were "immune from suit for any injury which result[ed] from the exercise of a governmental function." Utah Code Ann. § 63-30-3 (Supp.1983, 1989).

The second paragraph of section 63-30-3 is a 1984 amendment which became effective March 29, 1984. It specifically defines the "management of flood waters and other natural disasters and the construction, repair, and operation of flood and storm systems by governmental entities" as governmental functions. It seems clear that this language was intended to cover the very type of emergency flood control measures at issue in this case, as well as the "construction, repair, and operation" of the City Creek drainage system, including the North Temple culvert. There is some question, however, as to whether the 1984 amendment provides governmental entities with "absolute immunity" in flood control activities or whether the initial language of paragraph one, "[e]xcept as may be otherwise provided in this chapter," also applies to the language of paragraph two. The ambiguity arises through the language of paragraph two which provides that "governmental entities and their officers and employees are immune from suit for any injury or damage resulting from those [flood control] activities." Defendants suggest that this additional language of paragraph two has independent meaning separate and apart from the language of paragraph one and thus removes their flood control activities from the reach of the "[e]xcept as may be otherwise provided in this chapter" clause of paragraph one. They argue that any other interpretation would establish language of mere repetition without allowing the more specific language to control that of the more general. Forbes v. St. Mark's Hospital, 754 P.2d 933, 935 (Utah 1988). Plaintiffs contend that the 1984 amendment was intended merely to clarify flood control activities as governmental functions for purposes of governmental immunity but that the exceptions contained in the Governmental Immunity Act (primarily in section 63-30-10) which waive immunity under certain circumstances may be applied.

We need not resolve this conflict in the instant case. Even if defendants' interpretation of section 63-30-3 is correct, we will not apply the 1984 amendment retroactively. "No part of these revised statutes is retroactive, unless expressly so declared." Utah Code Ann. § 68-3-3 (1989). While it is true that this Court has made exceptions to this general rule and applied amendments retroactively "when the purpose of an amendment is to clarify the meaning of an earlier enactment," State Dep't of Social Servs. v. Higgs, 656 P.2d 998, 1001 (Utah 1982), or is merely an "amplification as to how the law should have been understood prior to its enactment," Okland Constr. Co. v. Industrial Comm'n, 520 P.2d 208, 210-11 (Utah 1974), this is not such a case. The cause of action for plaintiffs' alleged injuries and damages accrued in 1983, prior to the amendment in question. "[A] later statute or amendment should not be applied in a retroactive manner to deprive a party of his rights or impose greater liability upon him." Okland Constr. Co., 520 P.2d at 210. Under defendants' interpretation of the 1984 amendment, plaintiffs would have no opportunity to sue at all, due to defendants' "absolute immunity" in their flood control activities. If the 1984 amendment provides defendants with any greater degree of immunity in flood control activities than...