Ross v. Schackel

Decision Date12 July 1996
Docket NumberNo. 930629,930629
Citation920 P.2d 1159
PartiesAlbert L. ROSS, Plaintiff and Appellee, v. Greg M. SCHACKEL, M.D., Defendant and Appellant.
CourtUtah Supreme Court

Ross C. Anderson, Nathan B. Wilcox, Salt Lake City, for plaintiff.

Jan Graham, Att'y Gen., Elizabeth King, Carol Clawson, Asst. Att'ys Gen., Salt Lake City, for defendant.

HOWE, Justice:

Plaintiff Albert L. Ross, a prison inmate, brought this negligence action against defendant Greg M. Schackel, a physician employed by the Utah State Prison. The district court denied Schackel's motion for summary judgment, and we granted his petition for interlocutory review.

In his complaint, Ross alleged that Schackel negligently misdiagnosed his leg fracture as cartilage and ligament damage, failed to treat the fracture, and ignored his repeated complaints of severe pain. As a result, his leg healed improperly and physicians at the University of Utah Medical Center had to perform surgery to rebreak the leg and set it properly with pins and metal rods. He brought this action against Schackel, claiming damages for physical pain, mental anguish, and severe leg impairment. Schackel moved to dismiss, contending that he was immune from liability for negligence under the Governmental Immunity Act, Utah Code Ann. § 63-30-4(4). 1 The trial court denied the motion, ruling that subsection 63-30-4(4) was unconstitutional under the open courts clause of the Utah Constitution. Utah Const. art. I, § 11. After further discovery, Schackel moved for summary judgment, arguing that subsection 63-30-4(4) did not violate the open courts clause because it was not an arbitrary or unreasonable abrogation of the rights or remedies that prisoners enjoyed at common law. The trial court rejected that argument and denied the motion. Schackel appeals.

We initially dispose of Ross's contention that this court lacks jurisdiction to grant and hear Schackel's appeal. He argues that the district court entered its order denying Schackel's motion for summary judgment on November 18, 1993, and that Schackel's petition for permission to appeal from that interlocutory order was not filed within twenty days thereafter as mandated by rule 5(a) of the Utah Rules of Appellate Procedure.

We conclude that we do have jurisdiction. Because the order denying Schackel's motion for summary judgment was not a final order, he could and did move for reconsideration of that denial. Utah R.Civ.P. 54(b); Timm v. Dewsnup, 851 P.2d 1178, 1185 (Utah 1993). His motion to reconsider was denied by the district court on December 6, 1993. His petition for permission to appeal from that December 6 denial was timely filed on December 27 (December 26, the twentieth day, fell on a holiday). Thereafter, this court granted Schackel's petition for permission to appeal from the December 6 order of denial.

In determining whether the trial court correctly denied Schackel's motion for summary judgment, we examine whether there is a genuine issue as to any material fact, and if there is not, we examine whether Schackel is entitled to judgment as a matter of law. Arrow Indus., Inc. v. Zions First Nat'l Bank, 767 P.2d 935, 936 (Utah 1988). Under subsection 63-30-4(4) of the Utah Code, a plaintiff cannot maintain an action against a government employee unless the employee acted with fraud or malice. Lancaster v. Utah State Prison, 740 P.2d 261, 262 (Utah 1987); Maddocks v. Salt Lake City Corp., 740 P.2d 1337, 1339 (Utah 1987). In this case, Ross has alleged only negligence. Therefore, we must reverse the trial court's order denying Schackel's motion for summary judgment unless we find that subsection 63-30-4(4) is unconstitutional as applied to prisoners' negligence actions against prison physicians. In examining this issue, we grant no deference to the trial court's conclusions of law but review them for correctness. Madsen v. Borthick, 769 P.2d 245, 247 (Utah 1988).


The open courts clause provides:

All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.

Utah Const. art. I, § 11. Schackel asks this court to reconsider its holding in Berry v. Beech Aircraft Corp., 717 P.2d 670, 680 (Utah 1985), that the open courts clause limits the legislature's ability to substantially modify or abrogate remedies for injuries to person, property, or reputation. He argues that, on its face, the open courts clause protects procedural rather than substantive rights and limits judicial rule making, not legislative lawmaking. He also argues that this court's interpretation of the open courts clause in Berry violates the fundamental principle of separation of powers by empowering the common law with constitutional status over statutory law. Finally, he asserts that the political climate during the early history of Utah, which was characterized by distrust of courts, demonstrates that the constitutional framers wrote the open courts clause solely as a limitation on the judiciary, not on the legislature.

It is unnecessary for us in this case to undertake the reconsideration of our holding in Berry because even under that decision, the denial of Schackel's motion for summary judgment cannot be sustained. Under Berry, subsection 63-30-4(4) is unconstitutional if it abrogates an existing legal remedy for the violation of a basic right and fails either to provide an alternative remedy or to justify the abrogation by citing the vindication of a social or an economic evil. Berry, 717 P.2d at 677 n. 4, 680. In deciding whether this subsection abrogated such a remedy, we must examine the common law at the time of statehood to determine whether a prisoner could recover damages from a prison physician for negligent medical care. Id. at 676 n. 3

An examination of the cases decided by this court at or about the time of statehood reveals the general rule that public officers and employees enjoyed no official immunity for negligently performed ministerial acts but were shielded by immunity if the act involved the exercise of discretion. In Clinton v. Nelson, 2 Utah 284 (1877), a prisoner sued a U.S. marshal for false imprisonment and for "cruel and inhuman treatment" while a prisoner. Id. at 285. On the first issue, the prisoner contended that the marshal improperly imprisoned him at a location other than the county jail. Id. at 287. The Utah Territorial Supreme Court held that the marshal, who had acted in good faith and on a valid warrant, was entitled to "reasonable discretion" as to where he should house the prisoner. Id. at 290. On the second issue, the court found, "Nothing whatever has appeared that would evince any intention on the part of the marshal to act cruelly toward the appellant." Id. The court concluded that the prisoner was not entitled to any damages because the marshal had not violated any duty to the prisoner. Id. at 291.

In the early years of statehood, this court decided Garff v. Smith, 31 Utah 102, 86 P. 772 (1906). In Garff, a sheepherder brought a negligence action against the state sheep inspector, contending that the inspector's quarantine of his sheep in a place without proper food caused the death of 1,500 head. 31 Utah at 105-06, 86 P. at 772-73. The court articulated the following rule [A] public officer, acting judicially, or in a quasi judicial capacity, cannot be made personally liable in a civil action, unless the act complained of be willful, corrupt, or malicious, or without the jurisdiction of the officer. But, if the duties of the officer are merely ministerial, he is liable in a civil action when, in the performance of them, he acts negligently.

31 Utah at 107, 86 P. at 773. The court concluded that the inspector's actions were quasi-judicial in nature because he was statutorily authorized to make immediate regulations for the quarantining of diseased sheep. 31 Utah at 108, 86 P. at 774. These regulations, including the defining of the place and limits of the quarantine, were left wholly to the judgment and discretion of the inspector. Thus, the court held that the inspector was immune from a negligence action. Id.

This court continued to recognize the ministerial versus judicial/quasi-judicial distinction, although using somewhat different terminology, in Richardson v. Capwell, 63 Utah 616, 176 P. 205 (1918). In Richardson, this court found that a marshal could not be liable for false imprisonment if he acted pursuant to a warrant, in good faith, and without malice because the arrest, conviction, and imprisonment of a person are "official acts" subject to immunity. 63 Utah at 624, 176 P. at 208. However, we held that a jailer had to provide food, warmth, and sanitary conditions to prisoners and that a prisoner could obtain compensatory damages from a jailer for failing to provide these necessities. Id. The "official" acts referred to in Richardson were granted immunity the same as judicial/quasi-judicial acts were in Garff. The court explained that sound public policy demands that "all judicial officers feel free to exercise their duties fearlessly and without the dread or fear of a damage suit for false imprisonment for any mistake of judgment." 63 Utah at 624, 176 P. at 209.

We echoed this rule and policy statement in Hjorth v. Whittenburg, 121 Utah 324, 241 P.2d 907 (1952). There we held that a state road commissioner exercising his discretionary, official duties was not liable for damages to property adjacent to a highway, "otherwise public officials would be fearful to act at the risk of finding themselves personally liable for acts done in good faith in the performance of their duties." 121 Utah at 329, 241 P.2d at 909.

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