Thomas v. Clearfield City, 17338

• Decision Date: 24 February 1982
• Docket Number: No. 17338,17338
• Citation: 642 P.2d 737
• Parties: Minnie H. THOMAS, Plaintiff and Appellant, v. CLEARFIELD CITY, a municipal corporation, Defendant and Respondent.
• Court: Utah Supreme Court

Page 737

642 P.2d 737

Minnie H. THOMAS, Plaintiff and Appellant, v. CLEARFIELD CITY, a municipal corporation, Defendant and Respondent.

No. 17338.

Supreme Court of Utah.

Feb. 24, 1982.

Ronald W. Perkins, Ogden, for plaintiff and appellant.

Alfred C. VanWagenen, Clearfield, for defendant and respondent.

OAKS, Justice:

In May, 1978, a blockage in the sewer line along 200 South in Clearfield City caused sewer water to back up into the basement of Minnie H. Thomas, a long-time resident of Clearfield. The City cleaned out their line and assured her that her damages would be paid. When this was not done, she gave the required statutory notice and then brought suit against Clearfield City for $2,500 in damages to her basement and its contents. Plaintiff alleged that the damage was sustained "as a result of flooding and water backing up into her premises" as a direct and proximate result of defendant City's negligence "in not properly maintaining the sewer system along 200 South" in Clearfield. The City moved for summary judgment on the basis that it was "protected by governmental immunity against any cause of action alleged in plaintiff's complaint." The district court granted that motion and dismissed the complaint with prejudice. Plaintiff took this appeal.

The question in this appeal is whether the City has immunity for the injuries inflicted in this case. This question turns on the interpretation we give to the Utah Governmental Immunity Act, U.C.A., 1953, § 63-30-1, et seq., and a sequence of Court decisions on governmental immunity.

In Cobia v. Roy City, 12 Utah 2d 375, 366 P.2d 986 (1961), this Court held that a city was immune from damages inflicted by the stoppage of a sewer because the operation of a sewer system was a governmental function qualifying for governmental immunity. The new Utah Governmental Immunity Act became effective in 1966. With this Act, the Legislature obviously intended to enlarge the liability of governmental entities and, as one eminent commentator observed, to induce the courts "to produce sounder, more imaginative, and more rationally principled decisions in this field (of governmental immunity) than in the past." Van Alstyne, "Governmental Tort Liability: A Decade of Change," 1966 U.Ill.L.Forum 919, 970. The effect of that legislation has now been explained in two decisions of this Court: Standiford v. Salt Lake City Corp., Utah, 605 P.2d 1230 (1980) and Johnson v. Salt Lake City Corp., Utah, 629 P.2d 432 (1981).

As we noted in Standiford, the Legislature designed the new Governmental Immunity Act "to allow the courts flexibility and adaptability in fashioning consistent and rational limits to governmental immunity." 605 P.2d at 1232. Under this legislation, the doctrine of governmental immunity was confined to the general limits enacted in § 63-30-3. As we explained in Johnson :

For present purposes, this means that "all government entities are immune from suit for any injury which results from the exercise of a governmental function," U.C.A., 1953, § 63-30-3, but such entities are not immune from suit for an injury which does not result "from the exercise of a governmental function."

629 P.2d at 433. The definition of "governmental function" is therefore critical in determining the general extent of governmental immunity. The definition this Court established in the Standiford case, and reaffirmed in the Johnson decision, is as follows:

We therefore hold that the test for determining governmental immunity is whether the activity under consideration is of such a unique nature that it can only be performed by a governmental agency or that it is essential to the core of governmental activity.

Standiford, 605 P.2d at 1236-37. The test was explained in Johnson as follows:

The first part of the Standiford test-activity of such a unique nature that it can only be performed by a governmental agency-does not refer to what government may do, but to what government alone must do. The provision of recreational opportunities (involved in both Standiford and Johnson) is not in that category. Nor does recreation fit within the second part of the Standiford test-"essential to the core of governmental activity"-, which refers to those activities not unique in themselves (and thus not qualifying under the first part) but essential to the performance of those activities that are uniquely governmental.

629 P.2d at 434.

It is generally conceded that the doctrine of governmental immunity, which originated in the personal privilege of the English Crown, is ill suited to the conditions of this Republic. By judicial decisions and by legislative enactments such as our Governmental Immunity Act and the federal Tort Claims Act, the rule of governmental immunity has been progressively and significantly reduced. The principal difficulty has been that of phrasing a rule of reduced immunity that would be fair and appropriate in theory and workable in practice. As noted in the Standiford case, the distinction between government activities that were "proprietary" (in the sense that they competed with private business) and those that were "governmental" (in the sense that they did not so compete) has been practically universally condemned as "inherently unsound." 605 P.2d at 1236. Thus, it was the proprietary/governmental distinction which led this Court into the anomaly noted in Standiford and Johnson that "a sewer system was an immune governmental function," Cobia v. Roy City, supra, "but a water system was not," Egelhoff v. Ogden City, 71 Utah 511, 267 P. 1011 (1928). 629 P.2d at 433. Instead of relying on that artificial distinction, courts should, as we noted in Standiford, focus on the real concern-"whether a governmental entity, like individuals and private entities, should be liable for an injury inflicted by it." 605 P.2d at 1234.

In Standiford and Johnson, this Court defined "governmental function" in a way that attempts to avoid the pitfalls encountered in earlier efforts, but still carries out the evident policy of the Legislature to broaden the liability of government entities in a manner defined in the gradual process of interpretive litigation. Those decisions held that governmental immunity was not a defense against actions for injuries sustained in the course of recreational activities, since the provision of recreational opportunities is not "the exercise of a governmental function." In this case, we must decide whether the same is true of damages inflicted by the negligent maintenance of a city sewer system.

The City argues that the maintenance of a sewer is "essential to the core of governmental activity" under the Standiford test because the Legislature has given municipalities the power and duty to provide sanitary sewer systems within their respective jurisdictions and the power to enforce mandatory hookups. U.C.A., 1953, § 10-7-14.1, § 10-8-38. These considerations surely establish that the operation of a sanitary sewer system is a governmental function for purposes of the municipality's authority to operate, but it does not...