Trujillo v. Utah Dept. of Transp.

Decision Date22 July 1999
Docket NumberNo. 981331-CA.,981331-CA.
Citation1999 UT App 227,986 P.2d 752
PartiesAlan TRUJILLO and Sharon Trujillo, Plaintiffs and Appellants, v. UTAH DEPARTMENT OF TRANSPORTATION; Ball, Ball & Brosamer, Inc., a California corporation; and John Does I through X, Defendants and Appellees.
CourtUtah Court of Appeals

Gary B. Ferguson, Williams& Hunt, Salt Lake City, for Appellants.

Mark J. Williams, Plant, Wallace, Christensen & Kanell and Stephen P. Horvat, Anderson & Karrenberg, Salt Lake City, for Appellee Utah Department of Transportation.

Stephen G. Morgan and Joseph E. Minnock, Morgan, Meyer and Rice, Salt Lake City, for Appellee Ball, Ball & Brosamer.

Before BILLINGS, JACKSON, and ORME, JJ.

OPINION

ORME, Judge:

¶ 1 Alan and Sharon Trujillo appeal the trial court's grant of summary judgment in favor of defendants Utah Department of Transportation (UDOT) and Ball, Ball and Brosamer, Inc. (Ball). The Trujillos were injured in a traffic accident on a stretch of I-84 then under construction. The Trujillos challenge the trial court's rulings that the "discretionary function" variant of governmental immunity shields UDOT from liability and that the general contractor, Ball, is not liable to the Trujillos because it followed plans and specifications that were not unreasonably dangerous. The Trujillos' points are well-taken, and we reverse.

BACKGROUND

¶ 2 Because they appeal from summary judgment against them, we state the facts in the light most favorable to the Trujillos. See Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1162 (Utah 1993).

¶ 3 On September 24, 1995, the Trujillos were driving eastbound on a winding, two-lane stretch of I-84 through Weber Canyon when a westbound pick-up truck veered into their lane and collided head-on with their motor home. The Trujillos suffered serious permanent injuries from the accident, and the driver of the pick-up died at the scene.

¶ 4 I-84 is normally a four-lane, divided highway. However, at the time of the accident, the two eastbound lanes on the stretch of road where the accident occurred were closed for road resurfacing. Consequently, both directions of traffic had been channeled onto the two previously westbound lanes. Diversion of both directions of traffic onto two contiguous lanes is known as two-lane, two-way operations (TLTWO). The two lanes of the TLTWO were each ten to twelve feet wide with only two feet between them. Double yellow lines painted on the road surface and hollow plastic barrels spaced at 100-foot intervals divided the traffic flowing in opposite directions.

¶ 5 Traffic in the construction zone had been redirected pursuant to a traffic control plan designed by UDOT and implemented by Ball. Plans for the entire I-84 project were drafted, formulated, and approved in a series of meetings and reviews over the course of approximately one year. Participants included Federal Highway Administration representatives; UDOT maintenance, engineering, design, and administrative personnel; and several city and county officials. However, although deposition testimony indicates that two UDOT engineers discussed the traffic control plan's separation of the two lanes, the record contains no evidence that the traffic control plan was ever specifically singled out for discussion, review, or approval at any point in the approval process.

¶ 6 As general contractor, Ball was contractually responsible for supervision of traffic control in the construction zone. Ball's contract with UDOT also required it to propose an alternate traffic control plan if it found UDOT's plan to be unsafe or inadequate. Shortly after construction on the project began and four months before the Trujillos' accident, Ball's project manager, Shankar Narayanan, wrote to Larry Durrant, UDOT's project engineer, expressing his concern that UDOT's traffic control plan was inadequate. The letter stated in part:

This letter is to reiterate our concerns with regard to UDOT's less than adequate traffic control design for this project. In particular we feel that the use of drums at 100' spacing to delineate opposing traffic in an Interstate highway is hazardous to the travelling public resulting in increasing the chances of accidents.

¶ 7 Five days later, Durrant answered the letter, stating that "[i]f [Ball] feels UDOT's traffic control plans are inadequate, then as outlined [in the contract], the traffic control supervisor's responsibility is to prepare and submit revisions to the traffic control plans for the subject project." Narayanan testified in his deposition that he and Durrant discussed possible options for addressing his concerns, including the use of concrete barriers. However, it is undisputed that no aspect of the traffic control plan was altered.

¶ 8 About one year after the September 1995 accident, the Trujillos filed suit against UDOT and Ball in Third District Court. The Trujillos alleged that UDOT and Ball were negligent in the design, supervision, and implementation of the traffic control plan for the I-84 resurfacing project. Specifically, the Trujillos alleged that UDOT and Ball negligently failed to install concrete barriers to prevent crossover accidents in the area where the Trujillos' accident took place.

¶ 9 UDOT and Ball moved for summary judgment, arguing they owed no duty of care to protect the Trujillos from crossover accidents. UDOT also argued that governmental immunity shielded it from tort liability. The trial court granted summary judgment in favor of both defendants, reasoning that "the decision made by UDOT in planning and designing the I-84 resurfacing project, which included a Traffic Control Plan utilizing barrels to separate [traffic in the TLTWO] was a discretionary act which created immunity for UDOT under the discretionary function exception to the Governmental Immunity Act." The court further ruled that "in carrying out the plans and specifications for I-84 drafted by UDOT, [Ball] acted in accordance with the plans and specifications, which were not so unreasonably dangerous that a reasonable contractor would not perform and carry out said plans and specifications."

¶ 10 The Trujillos timely appealed to the Utah Supreme Court, which transferred the matter to this court as permitted by Utah Code Ann. § 78-2a-3(2)(j) (1996).

ISSUES AND STANDARDS OF REVIEW

¶ 11 The Trujillos raise two issues on appeal. First, the Trujillos argue the trial court erred when it concluded that governmental immunity shields UDOT from liability for alleged negligence in planning and designing the I-84 resurfacing project, including formulating the traffic control plan, and in ruling that design of the project was a discretionary function under a provision of the Utah Governmental Immunity Act, Utah Code Ann. § 63-30-10(1) (1997).1 Second, the Trujillos challenge the trial court's conclusions that, as a matter of law, the traffic control plan designed by UDOT was not unreasonably dangerous and that Ball was therefore not negligent in implementing it.

¶ 12 "Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Taylor v. Ogden Sch. Dist., 927 P.2d 159, 162 (Utah 1996). We review the trial court's conclusion that the parties raised no genuine issues of material fact, and its application of the governing law, for correctness. See Nelson v. Salt Lake City, 919 P.2d 568, 571 (Utah 1996). As we analyze the issues, we are mindful that, "because negligence cases often require the drawing of inferences from the facts, which is properly done by juries rather than judges, `summary judgment is appropriate in negligence cases only in the clearest instances.'" Id. (quoting Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991)).

DISCRETIONARY FUNCTION IMMUNITY

¶ 13 Sovereign immunity, rooted in the medieval British notion that the King could do no wrong, precludes lawsuits against governmental entities without the government's consent. See Brittain v. State, 882 P.2d 666, 668-69 (Utah Ct.App.1994).

A. Statutory Immunity Scheme

¶ 14 In 1965, the Utah Legislature passed the Governmental Immunity Act, codifying the sovereign immunity doctrine in Utah. See DeBry v. Noble, 889 P.2d 428, 432 (Utah 1995) (citing 1965 Utah Laws 390, ch. 139, § 3). The Act first grants general immunity from suit to governmental entities, then narrows that general grant by waiving immunity for certain claims, and finally broadens immunity again with exceptions to the waivers that result in retaining immunity under certain circumstances. See Hansen v. Salt Lake County, 794 P.2d 838, 842 (Utah 1990).

¶ 15 Section 63-30-3(1) of the Act confers the general grant of immunity: "Except as may be otherwise provided in this chapter, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function[.]" Utah Code Ann. § 63-30-3(1) (1997). "Governmental function" is broadly defined as "any act, failure to act, operation, function, or undertaking of a governmental entity." Id. § 63-30-2(4)(a) (1997). Cf. Keegan v. State, 896 P.2d 618, 620 (Utah 1995) ("[T]he test for determining whether the activity undertaken is a governmental function focuses on whether that activity `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.'") (quoting Standiford v. Salt Lake City Corp., 605 P.2d 1230, 1236-37 (Utah 1980)).

¶ 16 Scattered sections of the Act waive immunity under particular circumstances. Thus, the Act permits claims against governmental entities that involve contract obligations, see Utah Code Ann. § 63-30-5 (1997); property, see id. §§ 63-30-6, -10.5; defective public buildings and improvements, see id. § 63-30-9; and negligent acts and omissions of public employees. See id. § 63-30-10. The Act specifically waives immunity for injuries caused by dangerous or defective highways. See id. §...

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