Thayer v. Wash. Cnty. Sch. Dist.

• Decision Date: 25 May 2012
• Docket Number: No. 20100648.,20100648.
• Citation: 284 Ed. Law Rep. 567,709 Utah Adv. Rep. 45,2011 UT 31,285 P.3d 1142
• Parties: Ron THAYER and Cathie Thayer, Plaintiffs and Appellants, v. WASHINGTON COUNTY SCHOOL DISTRICT; City of Saint George; Robert Goulding; Michael Eaton; Stacy Richan; David Amodt; John and Jane Does 1–10; ABC Corporations 1–10; and XYZ Partnerships 1–10, Defendants and Appellees.
• Court: Utah Supreme Court

285 P.3d 1142

284 Ed. Law Rep. 567

709 Utah Adv. Rep. 45

2011 UT 31

Ron THAYER and Cathie Thayer, Plaintiffs and Appellants,

v.WASHINGTON COUNTY SCHOOL DISTRICT; City of Saint George; Robert Goulding; Michael Eaton; Stacy Richan; David Amodt; John and Jane Does 1–10; ABC Corporations 1–10; and XYZ Partnerships 1–10, Defendants and Appellees.

No. 20100648.

Supreme Court of Utah.

May 25, 2012.

Jeffrey C. Wilcox, Michael I. Welker, Jason L. Dixon, John L. Collins, Salt Lake City, for appellants.

Bridget K. Romano, Peter Stirba, Stephanie L. Warner, Julia D. Kyte, Bret W. Rawson, Salt Lake City, for appellees.

Justice DURHAM, opinion of the Court:

INTRODUCTION

¶ 1 This case arises from a lawsuit in federal district court over the death of fifteen-year-old Tucker Thayer. In that suit, Tucker's parents allege that Washington County School District officials were negligent when they allowed a gun loaded with blank cartridges to be used in a school musical production, resulting in their son's death. The school district asserts governmental immunity from these claims.

¶ 2 Because the school district's argument raises a novel issue of state law, the U.S. District Court for the District of Utah certified the governmental immunity question to us. We agreed to decide whether the conduct of school officials and those acting on the school district's behalf constituted the “issuance ... [of a] permit, license, certificate, approval, order, or similar authorization” such that the school district has retained immunity. Utah Code § 63G–7–301(5)(c). We hold that the conduct of school district officials in allowing the gun to be present on school grounds does not fall within this provision.

BACKGROUND ¹

¶ 3 In the fall of 2008, the drama department of Desert Hills High School (DHHS) staged a production of the musical Oklahoma! Tucker was a stage technician in the production. To enhance the production's sound effects during gunshot scenes, theater instructor and school district employee Michael Eaton wanted to fire blank bullets from a real gun, rather than use a prop gun. David Amodt, the father of a student involved in the production, offered his Smith & Wesson .38–caliber, six-shot revolver for use in the musical.

¶ 4 Mr. Eaton consulted School Resource Officer Stacy Richan about the use of the gun in the production because school policy and state law prohibited the possession of a firearm on school grounds. Officer Richan, the school's in-house representative from the St. George Police Department, approved the use of the gun on school property, subject to three conditions: (1) only an adult could transport the weapon to and from school for rehearsals and performances, (2) the weapon would remain in a locked container and be under an adult's control when not in use, and (3) only an adult could handle and fire the weapon. Officer Richan then approached DHHS Vice Principal Robert Goulding about the presence of the gun on school property. He informed Goulding that he had authorized use of the gun in the production. Goulding agreed with Officer Richan's decision and authorized use of the gun during the production, subject to the conditions Officer Richan had imposed.

¶ 5 Despite Officer Richan's conditions, Tucker was allowed to handle and fire the weapon. On November 15, 2008, Tucker was in the production's sound booth without adult supervision. The gun was discharged near his head, and although the firearm was loaded with a blank cartridge, the muzzle blast drove skull fragments into Tucker's brain. He died later that night.

¶ 6 After their son's death, Ron and Cathie Thayer filed state law negligence and wrongful death claims and federal civil rights claims against various defendants in the U.S. District Court for the District of Utah. The only claims at issue in this certified question are the Thayers' negligence claims against the school district stemming from the conduct of Vice Principal Goulding and Mr. Eaton. With respect to these claims, the school district moved for judgment on the pleadings under rule 12(c) of the Federal Rules of Civil Procedure, asserting immunity under the Governmental Immunity Act of Utah. It argued that it retained immunity from suit because Tucker's injuries arose out of, or resulted from, the “issuance ... [of a] permit, license, certificate, approval, order, or similar authorization” (the Licensing Exception). Utah Code § 63G–7–301(5)(c). The federal district court certified the governmental immunity question to this court, and we have jurisdiction under section 78A–3–102(1) of the Utah Code.

STANDARD OF REVIEW

¶ 7 “On certification, we answer the legal questions presented without resolving the underlying dispute.” Iverson v. State Farm Mut. Ins. Co., 2011 UT 34, ¶ 8, 256 P.3d 222 (internal quotation marks omitted).

ANALYSIS

¶ 8 When a governmental entity asserts immunity under the Governmental Immunity Act of Utah, this court typically applies a three-part test to determine whether immunity applies. Peck v. State, 2008 UT 39, ¶ 8, 191 P.3d 4. “The test assesses (1) whether the activity undertaken is a governmental function; (2) whether governmental immunity was waived for the particular activity; and (3) whether there is an exception to that waiver.” Id. (internal quotation marks omitted).

¶ 9 In this case, the first two questions are not at issue. It is undisputed that the school district was engaged in a governmental function under the Act's general grant of immunity. SeeUtah Code § 63G–7–201(1). It is also undisputed that, under the allegations in the Thayers' complaint, the school district waived its immunity because Tucker's death was “proximately caused by a negligent act or omission of [a governmental] employee committed within the scope of employment.” Id.§ 63G–7–301(4). The sole question certified for our review is whether the school district has retained immunity under the Licensing Exception—section 63G–7–301(5)(c) of the Utah Code. Under this exception, the school district retains immunity if Tucker's injury “ar[ose] out of, in connection with, or result[ed] from ... the issuance, denial, suspension, or revocation of ... any permit, license, certificate, approval, order, or similar authorization.” Id.§ 63G–7–301(5)(c).

¶ 10 The school district concedes that its officials did not issue a permit, license, certificate, or order allowing the presence of the gun on school grounds. Instead, it argues that the Licensing Exception applies because Tucker's death arose out of Officer Richan's and Vice Principal Goulding's issuance of an “approval” or “authorization” granting permission for the revolver to be at DHHS. In contrast, the Thayers contend that the Licensing Exception “is intended to cover the regulatory, discretionary activities of government agencies that are endowed with the authority to regulate a particular activity” and does not apply to school officials' negligent operational decision to create a dangerous condition at the school.

¶ 11 From the plain language of the statute, we conclude that the Licensing Exception applies only to formal, official, regulatory authorizations by a governmental entity empowered to issue, deny, suspend, or revoke such authorizations. We also conclude that Officer Richan's and Vice Principal Goulding's authorization of the presence of the firearm on school grounds was not such a formal, official, and regulatory authorization. In addition, we hold that the Licensing Exception is unavailable in this case because it does not apply to a governmental entity's internal approval or authorization of an employee's negligent conduct. A contrary interpretation of the exception would permit it to “swallow the rule” and would compromise the harmonious whole of the Governmental Immunity Act.

¶ 12 To determine the meaning of “approval” and “authorization” as used in the Licensing Exception, we begin our analysis with the statute's plain language, from which we seek to ascertain the intent and purpose of the legislature. “Under our rules of statutory construction, we must give effect to every provision of a statute and avoid an interpretation that will render portions of a statute inoperative.” Warne v. Warne, 2012 UT 13, ¶ 36, 275 P.3d 238. In analyzing the Governmental Immunity Act, we have “decline[d] to stray from the plain meaning of the text where the statute is unambiguous and there is no compelling reason to believe that the legislature has misspoken.” Moss v. Pete Suazo Utah Athletic Comm'n, 2007 UT 99, ¶ 13, 175 P.3d 1042.

¶ 13 Under the Licensing Exception, a governmental entity retains immunity if an injury caused by an employee's negligence “ar[ose] out of, in connection with, or result[ed] from ... the issuance, denial, suspension, or revocation of ... any permit, license, certificate, approval, order, or similar authorization.” Utah Code Ann. § 63G–7–301(5)(c). The causation language of the exception (“ar[ose] out of, in connection with, or result[ed] from”) is not at issue in the certified question before us. The operative text at issue can be separated into two categories of terms: those relating to the governmental action (“issuance, denial, suspension, or revocation”) and those relating to the object of that action (“permit, license, certificate, approval, order, or similar authorization”).

¶ 14 With respect to the first category, each word describes a formal action undertaken as part of an entity's official power. For example, “issuance” derives from the verb “issue,” which means “[t]o send out or distribute officially,” Black's Law Dictionary 908 (9th ed. 2009), and “to cause to appear or become available by officially putting forth or distributing or granting or proclaiming or promulgating,” Webster's Third New International Dictionary 1201 (1961). Similarly, a “revocation” is “[a]n annulment, cancellation, or reversal, usu[ally] of an act or power.” Black's Law Dictionary 1435. “Denial” and “suspension” also are imbued with...