Winkler v. Lemieux
| Decision Date | 19 June 2014 |
| Docket Number | No. 20130130–CA.,20130130–CA. |
| Citation | 329 P.3d 849,763 Utah Adv. Rep. 47 |
| Parties | Shelby WINKLER, Plaintiff and Appellant, v. Robert LEMIEUX, State of Utah, and Utah Department of Transportation, Defendants and Appellees. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Gregory S. Wright, Attorney for Appellant.
Sean D. Reyes and Peggy E. Stone, Attorneys for Appellees.
Memorandum Decision
¶ 1 Shelby Winkler alleges that she was injured in a vehicle collision that occurred after an employee of the Utah Department of Transportation negligently allowed two cars travelling in opposite directions to use the same lane through a construction zone. Winkler, the driver of one of the cars, brought suit against the Utah Department of Transportation, the State of Utah, and the other driver.1 The district court dismissed UDOT from the suit after ruling that UDOT was immune from liability under the Governmental Immunity Act of Utah.2 We reverse the district court's ruling and remand for further proceedings.
¶ 2 Winkler was driving up Little Cottonwood Canyon when she encountered a UDOT work zone. UDOT had limited traffic to one of the two lanes in the work zone and was alternating the use of the open lane between eastbound and westbound vehicles. A UDOT employee, referred to as a flagger, was tasked with controlling eastbound access to the work zone, while another UDOT employee apparently controlled westbound access. The flagger initially stopped Winkler before signaling that she could enter the work zone and drive east in the open lane. While Winkler was traversing the work zone, a westbound vehicle driven by Robert Lemieux struck her vehicle head on.
¶ 3 Winkler brought negligence claims against UDOT and the other driver. UDOT moved to dismiss the claims against it, arguing that it was exempt from liability under the Governmental Immunity Act of Utah. See generallyUtah Code Ann. §§ 63G–7–101 to –904 (LexisNexis 2011 & Supp.2013). After oral argument, the district court agreed, ruling that “the licensing exception to the waiver [of governmental immunity] is in force here.” Accordingly, the district court dismissed UDOT as a defendant.
¶ 4 On appeal, Winkler contends that the district court erred by dismissing UDOT, because the flagger's instruction to Winkler to use the open lane did not constitute the issuance of an approval or authorization within the meaning of the Act. Wheeler v. McPherson, 2002 UT 16, ¶ 9, 40 P.3d 632 (citations omitted).
¶ 5 We typically apply a three-part test to determine whether a governmental entity enjoys immunity under the Act for the challenged activity. Thayer v. Washington County Sch. Dist., 2012 UT 31, ¶ 8, 285 P.3d 1142. “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. (citation and internal quotation marks omitted).
¶ 6 In this case, the parties agree that the first two inquiries are not at issue. The flagger's signal to Winkler to travel through the construction zone was a governmental function. SeeUtah Code Ann. § 63G–7–102(4) (LexisNexis 2011). Governmental immunity for the flagger's activity is therefore waived, unless an exception applies, because we accept as true Winkler's allegation that the flagger's negligence caused the accident. See id.§ 63G–7–301(4) (); Horton v. Royal Order of the Sun, 821 P.2d 1167, 1167–68 (Utah 1991) ().
¶ 7 The parties disagree about the third part of the test, which considers whether one of twenty-one enumerated exceptions applies.3 The district court determined that the so-called Licensing Exception insulated UDOT's alleged negligence from suit. SeeUtah Code Ann. § 63G–7–301(5)(c). The Licensing Exception provides that governmental immunity is not waived for injuries resulting from “the issuance, denial, suspension, or revocation of ... any permit, license, certificate, approval, order, or similar authorization.” Id.
¶ 8 The Utah Supreme Court most recently addressed the Licensing Exception in Thayer v. Washington County School District, 2012 UT 31, 285 P.3d 1142. There, a school administrator, apparently swayed by pleas for verisimilitude in a high school production of Oklahoma!, allowed the theater department to use a .38 caliber revolver, loaded with blanks, and subject to several safety precautions. Id. ¶¶ 3–4. Despite the precautions, a student died when the gun discharged in unclear circumstances. Id. ¶ 5. The supreme court held that the high school was not immune from suit because the school administrator's consent “was not a formal, official authorization by a governmental body ... endowed with regulatory power to issue such an authorization.” Id. ¶ 28.
¶ 9 The supreme court set forth two elements that must be satisfied for the Licensing Exception to apply—authority and formality. Id. ¶¶ 13–14, 28. Here, the application of those elements requires us to determine whether the flagger's signal (1) was an authorization UDOT possessed the regulatory power to issue and (2) can be properly characterized as a formal, official act.
¶ 10 In Thayer, the Utah Supreme Court reasoned that a “governmental entity ... cannot issue an authorization ... unless it has the power to give legal authority” and that such power can only vest in the entity via “legislative or executive enactment.” Id. ¶ 17 (brackets and internal quotation marks omitted). Put another way, the Licensing Exception only applies to a governmental entity's grant of authorization when that entity has been expressly empowered to give legal authority to those seeking such authorization. Id. ¶ 18.4
¶ 11 UDOT possessed the legal authority to restrict travel in its construction zones. Section 72–6–114(1) of the Utah Code provides that a “highway authority may close or restrict travel on a highway under their jurisdiction due to construction, maintenance work, or emergency.” Logically, a closure may be partial, and a restriction may include alternating the direction of travel along a lane that remains open. We therefore conclude that UDOT has statutory authority to close lanes, to restrict access to the resulting work zones, and to allow members of the public to travel through those work zones. Thus, the flagger's signal was within UDOT's regulatory power.
¶ 12 We next consider whether the flagger's signal was a formal, official government action. In Thayer, the Utah Supreme Court held that the decision to allow the use of a firearm in the school play “was not a formal, official authorization.” 2012 UT 31, ¶ 28, 285 P.3d 1142. To reach that conclusion, the supreme court examined the Licensing Exception's use of the terms “ ‘[i]ssuance, denial, suspension, [and] revocation’ ” and concluded that “each word describes a formal action undertaken as part of an entity's official power.” Id. ¶¶ 13–14 (emphasis added); see alsoid. ¶ 18 (). But seeid. ¶ 41 (Lee, J., dissenting) (). There is yet no bright-line rule that divides informal authorizations from formal ones. Seeid. ¶ 33 (Lee, J., dissenting) ().
¶ 13 Wherever the precise boundary between formality and informality may lie, we know that the authorization to use the firearm at issue in Thayer lacked the formality necessary to allow the governmental...
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True v. Utah Dep't of Transp.
...whether a governmental entity enjoys immunity under the Act for the challenged activity." Winkler v. Lemieux , 2014 UT App 141, ¶ 5, 329 P.3d 849.First, courts must ascertain whether the activity was a governmental function and thereby entitled to blanket immunity under the Act. Second, if ......