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Laney v. Fairview City8/9/2002
erson, property, or reputation' has been denied a remedy by due course of law should be decided by reference to the general law of rights and remedies at the time that the Legislature abrogates a remedy."). Thus, the State's argument that there is no abrogation of a remedy if a statute is already in effect at the time a cause of action arises is inapplicable.
Plaintiffs assert that the 1987 amendment abrogated a remedy because the law in effect prior to the amendment provided individuals negligently injured by municipality-operated power lines with a cause of action against the municipality. Prior to the amendment, the scope of sovereign immunity depended on whether the governmental activity complained of was found to be a "governmental function" or a "proprietary function." Only those activities determined to be governmental functions were afforded immunity. See Standiford v. Salt Lake City Corp., 605 P.2d 1230, 1235 (Utah 1980) ("The general grant of immunity only extends to injuries resulting from 'the exercise of a governmental function . . . ."). The Act did not define what constituted a governmental function, therefore this court established a standard whereby a function could be considered a governmental function. See id. ("Th[e statute's] language gives this Court the power to define understandably and logically the term 'governmental function.'"). In Standiford, we held that a governmental function must be "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." Id. at 1236-37. This definition of the term governmental function was used to determine whether an activity was covered by the Act until the legislature redefined the term in the 1987 amendment.
Plaintiffs argue that the City's operation and maintenance of a municipal electrical power system would not have been a governmental function under the Standiford standard because maintaining power lines is not "of such a unique nature that it can only be performed by a governmental agency or that . . . is essential to the core of governmental immunity." Id. We agree.
Prior to the 1987 amendment, the operation of an electrical power system was considered a proprietary function, which was not entitled to immunity under the Act. See, e.g., Lehi City v. Meiling, 48 P.2d 530, 546 (Utah 1935) (Wolfe, J., concurring)(" he supplying of water, light, and gas were considered as commodities and subjects of commerce and were performed almost altogether in the beginning by private corporations."); Egelhoff v. Ogden City, 71 Utah 511, 516, 267 P. 1011, 1012 (Utah 1928) ("A municipality which supplies water to its citizens, and charges therefor, is liable for negligence . . . ." (quoting McQuillin, Mun. Corps. § 2880, 5514)); Note, Defining Governmental Function Under the Utah Governmental Immunity Act, 9 J. Contemp. L. 193, 195, n.10 (1983) (" he supplying of water, light and gas were considered subjects of commerce and had historically been performed by private corporations."). Under the 1987 amendment, however, a claim against a municipality for negligent maintenance of power lines can be barred by the scope of immunity protection afforded the City. Although the Act waives immunity for governmental functions if there is negligence involved, see § 63-30-10, a plaintiff suing a municipality is now subject to the exceptions to the waiver of immunity, see, e.g., § 63-30-10(1) to (19). By defining a governmental function as any act of a governmental entity, whether or not the activity is characterized as governmental or proprietary, the 1987 amendment effectively grants immunity protection for some activities that were formerly considered proprietary and
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