Smith v. Weber County School Dist.

• Decision Date: 07 July 1994
• Docket Number: No. 930596-CA,930596-CA
• Citation: 877 P.2d 1276
• Parties: 93 Ed. Law Rep. 355 Harry and Eva SMITH, natural parents of Anthony Smith, a minor, Plaintiffs and Appellants, v. WEBER COUNTY SCHOOL DISTRICT, and G. Lynn Knight, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 1276

877 P.2d 1276

93 Ed. Law Rep. 355

Harry and Eva SMITH, natural parents of Anthony Smith, a minor, Plaintiffs and Appellants, v. WEBER COUNTY SCHOOL DISTRICT, and G. Lynn Knight, Defendants and Appellees.

No. 930596-CA.

Court of Appeals of Utah.

July 7, 1994.

Gordon K. Jensen, Salt Lake City, for plaintiffs and appellants.

William J. Hansen, Mark L. Anderson, and Karra J. Porter, Salt Lake City, for defendants and appellees.

Before BENCH, BILLINGS and ORME, JJ.

OPINION

BILLINGS, Presiding Judge:

Harry and Eva Smith appeal from a summary judgment in a wrongful death action in favor of the Weber County School District and G. Lynn Knight, a school bus driver employed by the District. We affirm.

FACTS

On appeal from a summary judgment, "we consider the facts in the light most favorable to the party against whom the judgment was rendered." Beach v. University of Utah, 726 P.2d 413, 414 (Utah 1986). We recite the facts accordingly.

Anthony Smith, the fourteen-year-old son of Harry and Eva Smith, was a student at Wahlquist Junior High School in the Weber County School District. In order to attend school, he crossed a busy street each morning to meet the school bus. Eva Smith sent a letter to Wahlquist Junior High School in 1988, complaining of the danger posed by the location of the bus stop. In 1989, Mrs. Smith had Anthony hand-deliver a letter to Mr. Knight, the bus driver, expressing the same concern. Neither the school nor the District responded to the letters, and the location of the bus stop was not changed. ¹

On November 26, 1990, while crossing the street to reach the bus stop, Anthony was struck and killed by a van driven by a third party. The school bus had not yet reached the bus stop at the time of the accident. Knight, the bus driver, first observed Anthony lying in the middle of the street from a distance of approximately thirty to forty yards from the bus stop.

The Smiths brought a wrongful death action against the District and Knight, alleging that the District was negligent in locating the bus stop and operating the school bus on the west side of the street, thus requiring Anthony to cross the street every morning. They also claimed that Knight was negligent in failing to activate the flashing red lights on the bus as he approached the bus stop.

Appellees moved for summary judgment. The trial court granted summary judgment in favor of the District, concluding that the Utah Governmental Immunity Act precluded the action and that the District owed no duty to Anthony to change the bus stop or route. In addition, the court ruled that Knight was not negligent in failing to activate the flashing lights and that any such failure was not the proximate cause of Anthony's death. The Smiths appeal, challenging each of the court's rulings.

"Summary judgment is appropriate only where there exists no genuine issue of material fact and the moving party is entitled to judgment as [a] matter of law. We accord no deference to the trial court's conclusions of law, reviewing them for correctness." Rollins v. Petersen, 813 P.2d 1156, 1159 (Utah 1991) (citations omitted). Moreover, in negligence cases, summary judgment should be "granted with great caution." Apache Tank Lines, Inc. v. Cheney, 706 P.2d 614, 615 (Utah 1985).

I. CLAIM AGAINST SCHOOL BUS DRIVER

The Smiths allege that the trial court erred in ruling that Knight was not negligent as a matter of law in failing to activate the flashing red lights on the bus as he approached the bus stop. The trial court relied upon Utah Code Ann. § 41-6-100.10(3) (1989), which establishes the standard of care for activating flashing red lights on school buses. The statute provides:

(a) The operator of a school bus shall operate alternating flashing red light signals at all times when children are unloading from a school bus to cross a highway, or when a school bus is stopped for the purpose of loading children who must cross a highway to board the bus, or at any other time when it would be hazardous to proceed past the stopped school bus.

(b) The alternating flashing red light signals may not be operated except when the school bus is stopped for loading or unloading school children or for any emergency purpose.

Id.

The court concluded that school bus operators must activate flashing red lights only when the bus is stopped. Based upon that conclusion, the court determined that Knight did not breach a duty to Anthony because the bus was not stopped at the time of the accident. The court, therefore, held that Knight was not negligent as a matter of law.

We agree with the trial court. In all instances, the duty to activate the lights arises only when the vehicle is stopped. Because the school bus was still approaching the bus stop and therefore was not "stopped," Knight was not negligent as a matter of law in failing to activate the lights. ²

II. CLAIM AGAINST THE DISTRICT

Normally, an appellate court will treat the traditional tort liability question before analyzing governmental immunity, Ledfors v. Emery County School District, 849 P.2d 1162, 1163-64 (Utah 1993), because "sovereign immunity is an affirmative defense which arises conceptually after the determination of tort liability." C.T. v. Martinez, 845 P.2d 246, 247 (Utah 1992). However, when the governmental immunity question is clear and dispositive, a court may reach the issue without first resolving the duty question. Petersen v. Board of Educ., 855 P.2d 241, 243 (Utah 1993) (per curiam). Because we can affirm on the issue of governmental immunity, we treat it first and assume, without deciding, the less clearcut question of duty.

A. Governmental Immunity

The Utah Supreme Court has set forth the following framework for analyzing governmental immunity:

The Utah Governmental Immunity Act requires that [the court] address three questions in determining whether a governmental entity is immune from suit. First, was the activity the entity performed a governmental function and therefore immunized from suit by the general grant of immunity contained in section 63-30-3? Utah Code Ann. § 63-30-3 (1989) (now codified at § 63-30-3(1)). Second, if the activity was a governmental function, has some other section of the Act waived that blanket immunity? Third, if the blanket immunity has been waived, does the Act also contain an exception to that waiver which results in a retention of immunity against the particular claim asserted in this case?

Ledfors, 849 P.2d at 1164; accord Petersen, 855 P.2d at 243. We follow this analytical framework.

The functions in question are the design of school bus routes and the choice of bus stops. Neither party disputes that these functions are governmental functions implicating the blanket immunity in Utah Code Ann. § 63-30-3 (1989). Therefore, we turn to the second consideration.

The Smiths assert that three specific waivers of immunity allow their claim to proceed. We consider each in turn.

B. Section 63-30-7

First, the Smiths invoke Utah Code Ann. § 63-30-7 (1989) (repealed 1991), which provided: ³

Immunity from suit of all governmental entities is waived for injury resulting from the negligent operation by any employee of a motor vehicle or other equipment during the performance of his [or her] duties, within the scope of employment, or under color of authority; provided, however, that this section shall not apply to the operation of emergency vehicles as defined by law and while being driven in accordance with the requirements of Section 41-6-14.

This section waives immunity for injury arising out of a government employee's negligent operation of a motor vehicle. We have already concluded that Knight was not negligent as a matter of law in driving the school bus. Therefore, the waiver of immunity contained in section 63-30-7 does not apply to the facts of this case.

C. Section 63-30-8

Next the Smiths rely on Utah Code Ann. § 63-30-8 (1989) (amended 1991), ⁴ which at the time of this lawsuit stated:

Immunity from suit of all governmental entities is waived for any injury caused by a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct or other structure located thereon.

Under section 63-30-8, immunity is waived for unsafe or dangerous highway conditions. This exception has been employed when some physical aspect of a highway is dangerous. For example, in Richards v. Leavitt, 716 P.2d 276 (Utah 1985) (per curiam), the condition in question was the growth of trees and shrubs that obscured motorists' vision at an intersection, leading to an automobile accident. Id. at 277. Similarly, in Bigelow v. Ingersoll, 618 P.2d 50 (Utah 1980), superseded on other grounds by rule, as stated in Workman v. Nagle Construction, Inc. 802 P.2d 749, 751 n. 4 (Utah App.1990), a malfunctioning traffic signal was at issue. Id. at 51; see also McCorvey v. UDOT, 868 P.2d 41 (Utah 1993) (excess gravel on highway and absence of construction warning signs); Ingram v. Salt Lake City, 733 P.2d 126 (Utah 1987) (per curiam) (negligently placed manhole cover); Bowen v. Riverton City, 656 P.2d 434 (Utah 1982) (stop sign lying on ground); Velasquez v. Union Pac. R.R. Co., 24 Utah 2d 217, 469 P.2d 5 (1970) (absence of warning device at railroad crossing).

Here, the Smiths do not point to any aspect of the road itself that was unsafe, nor to any structure on the roadway that was unsafe. Indeed, the governmental function they criticize does not involve the construction or maintenance of a highway or appurtenant structure, but the design of a school bus route and the designation of bus stops. The gravamen of their claim is that the District negligently located the bus stop on the "wrong side" of a busy street. This use of section 63-30-8 is strained. We cannot assume the legislature intended to include the function of designing school bus routes within this waiver. The legislature could choose to specifically...