Taylor on Behalf of Taylor v. Ogden City School Dist.

• Decision Date: 18 August 1994
• Docket Number: No. 930598-CA,930598-CA
• Citation: 881 P.2d 907
• Parties: 94 Ed. Law Rep. 592 Susan TAYLOR, on Behalf of her minor son Zachary TAYLOR, Plaintiff and Appellant, v. OGDEN CITY SCHOOL DISTRICT; and Marsha Leo, guardian of her minor son Trenton Leo, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 907

881 P.2d 907

94 Ed. Law Rep. 592

Susan TAYLOR, on Behalf of her minor son Zachary TAYLOR Plaintiff and Appellant, v. OGDEN CITY SCHOOL DISTRICT; and Marsha Leo, guardian of her minor son Trenton Leo, Defendants and Appellees.

No. 930598-CA.

Court of Appeals of Utah.

Aug. 18, 1994.

Martin W. Custen, James R. Hasenyager, and Patrick F. Holden, Ogden, for appellant.

Jan Graham and Elizabeth King, Salt Lake City, for appellees.

Before BILLINGS, DAVIS and ORME, JJ.

OPINION

DAVIS, Judge:

Susan Taylor appeals the trial court's entry of summary judgment in favor of defendant Ogden City School District (School District) on the basis of governmental immunity. We reverse.

FACTS

The facts of this case are undisputed. On May 18, 1989, Trenton Leo grabbed Zachary Taylor's lunch ticket and dangled it over the toilet in the boys' bathroom at Highland Middle School, threatening to flush the ticket if Zachary got any closer. Zachary approached Trenton demanding his ticket and Trenton dropped it into the toilet. As Zachary retrieved the ticket, he splashed Trenton's face with water from the toilet. Trenton responded with a hard shove, and Zachary fell back into a plate glass window. The glass broke, severing the radial nerve and four tendons on Zachary's right hand.

Charges were filed against Trenton, and on October 17, 1989, the juvenile court found the allegations supporting the charge of assault to be true. The court ordered that Trenton pay fines and restitution.

PROCEDURAL BACKGROUND

Zachary's mother filed a complaint sounding in negligence against Trenton and the School District on January 12, 1990. In particular, she alleged that the School District was negligent in failing to shield the plate glass in the boys' bathroom or to replace it with safety glass. On November 3, 1992, the School District filed a motion for summary judgment claiming governmental immunity. The School District argued that while immunity is waived for negligent acts of government employees by Utah Code Ann. § 63-30-10 (1989), there is an exception pursuant to section 63-30-10(1)(b) if the injury arose out of an assault or battery. Therefore, because Trenton was found guilty of assault, the School District claims exemption from the waiver of immunity.

The trial court denied the School District's summary judgment motion on December 14, 1992. The School District responded with a motion to alter or amend the judgment pursuant to Rule 60 of the Utah Rules of Civil Procedure due to claimed errors in the trial court's factual findings. The court issued an amended ruling on February 9, 1993, determining that there was no factual basis for its earlier finding that the School District violated regulations prescribing safety glass in public buildings. Because there was no building code regulation mandating the use of safety glass in this case, the court ruled that the School District's decision regarding which glass to use was discretionary. Under Utah Code Ann. § 63-30-10(1)(a) (1989), ¹ the exercise of a discretionary function qualifies as another exception to the general waiver of immunity for negligent acts. The court felt there was a "causal nexus between the acts governed by both [section] 63-30-10(1)(a) and [Utah Code Ann. § 63-30-9 (1989) ]," that is, the defective or dangerous condition in the government building--covered by section 9--was caused by negligence of a government employee--covered by section 10, therefore "immunity waived under section 9 would be restored under section 10." In addition, the court held that the assault and battery exception in section 10(1)(b) ² would also apply to the waiver of immunity in section 9. The trial court's amended ruling was based upon the legislature's alleged "clarification" of the interaction between section 9 and section 10 in the 1991 amendments, as well as Utah Supreme Court case law. For these reasons, the trial court reversed its earlier decision and granted summary judgment for the School District. This appeal followed.

ISSUE

The sole issue on appeal is whether, prior to the 1991 amendments to the Utah Governmental Immunity Act, the exceptions to the waiver of immunity for negligence of government employees contained in Utah Code Ann. § 63-30-10(1)(a) (1989) (discretionary function) and id. § 63-30-10(1)(b) (assault and battery) applied to the waiver of immunity for defective or dangerous conditions in government buildings found in id. § 63-30-9 (1989). ³

STANDARD OF REVIEW

Summary judgment is appropriate where there are no disputes regarding material facts and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993); accord State Farm Fire & Casualty Co. v. Geary, 869 P.2d 952, 954 (Utah App.1994). We review legal determinations for correctness, according no deference to the trial court. Higgins, 855 P.2d at 235; Geary, 869 P.2d at 954.

ANALYSIS

In order to determine whether the School District is immune from suit under the Utah Governmental Immunity Act, we employ the analytic model set forth in Ledfors v. Emery County School District, 849 P.2d 1162, 1164 (Utah 1993). Accord Petersen v. Board of Educ. of Davis County Sch. Dist., 855 P.2d 241, 243 (Utah 1993); Smith v. Weber County Sch. Dist., 877 P.2d 1276, 1279 (Utah App.1994). This model consists of three questions:

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.

The first question is not at issue. Taylor concedes that the School District performs a governmental function. The second question is also not really at issue because the School District does not meaningfully rebut Taylor's assertion that a waiver of blanket immunity is provided by Utah Code Ann. § 63-30-9 (1989). At the time the cause of action in this case accrued, section 63-30-9 provided:

Immunity from suit of all governmental entities is waived for any injury caused from a dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement. Immunity is not waived for latent defective conditions.

Id.

Thus, the focus of this appeal concerns the third question of the Ledfors test--whether there are exceptions to the section 63-30-9 waiver resulting in retention of immunity. Taylor contends that the trial court erred in looking beyond the one express limitation on the section 63-30-9 waiver--latent conditions--and determining that the discretionary function and assault exceptions in section 63-30-10 were applicable to section 63-30-9. ⁴ Section 63-30-10 states in relevant part:

(1) Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury:

(a) arises out of the exercise or performance or failure to exercise or perform a discretionary function, whether or not the discretion is abused; or

(b) arises out of an assault, battery

....

Id. § 63-30-10(1).

The Utah Governmental Immunity Act, as it existed prior to the 1991 amendments, is silent regarding the relationship between section 63-30-9 and section 63-30-10, and the parties have not cited any legislative history focusing on this issue. The Utah Supreme Court first addressed the issue of whether the exceptions listed in section 63-30-10 may apply to other sections of the Act in Velasquez v. Union Pacific Railroad, 24 Utah 2d 217, 469 P.2d 5 (1970). The appellant in Velasquez was a passenger in a pickup truck that was hit by a Union Pacific train. Appellant sued the State of Utah Public Service Commission, alleging that the section 63-30-8 waiver of immunity applied. Section 63-30-8 waived immunity for injury caused by, inter alia, a defective, unsafe, or dangerous condition of any highway. Utah Code Ann. § 63-30-8 (1989). Appellant claimed that the highway was defective in that the railroad crossing did not have proper warning devices to adequately alert motorists. The supreme court held that even if the failure to adequately warn motorists of the presence of trains were a "defect" pursuant to section 63-30-8, the exception in section 63-30-10 for discretionary functions precluded appellant's action. Therefore, Velasquez suggests that an exception in section 63-30-10 can apply to the other waivers of immunity. ⁵

Notwithstanding Velasquez, in Sanford v. University of Utah, 26 Utah 2d 285, 488 P.2d 741 (1971), the Utah Supreme Court took an apparently different position with respect to the applicability of the section 63-30-10 exceptions to other waivers. In Sanford, appellant sued the University for extensive water damage to her house that occurred after some construction projects by the University changed the direction of water drainage in the area. Appellant claimed that the State had waived immunity pursuant to section 63-30-8 (defective condition of a street) and section 63-30-9 (defective condition of any public structure). The State responded that two exceptions to section 63-30-10 (discretionary function and failure to inspect) resulted in a retention of immunity.

The supreme court held, without mentioning Velasquez, that

[s]ince the waiver of immunity in [sections] 8 and 9 encompasses a much broader field of tort liability than merely negligent conduct of employees within the scope of their employment, the legislature could not have intended that [section] 10, including its exceptions, should modify [sections] 8 and 9,...