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Laney v. Fairview City8/9/2002
te to do anything about it. Therefore, a high degree of duty is upon one who transmits electricity in high tensionwires to see that no harm befalls a person rightfully in proximity thereto when that person is himself guilty of no wrongdoing. In other words, the highest degree of care must be used to prevent harm from coming to others. Id. at 395 (emphasis added).
The 1987 amendment of section 63-30-2(4)(a) eliminates the appellants' right to sue for Mr. Laney's wrongful death. The statutory amendment thus sharply limited instances where municipalities operating a power system could be held liable for their negligence.
As we have done in prior cases, we examine the legislature's purpose in curtailing the previously existing remedy for the negligent operation of a municipal power system. The 1987 amendment was proposed by the Governmental Immunity Task Force of the legislature. The Task Force specifically found:
In the past several years, lawsuits naming governmental entities as defendants have increased dramatically. The large damage awards against governmental entities that plaintiffs have obtained in these lawsuits has made it increasingly difficult for government entities to obtain or afford liability insurance. . . . If a government entity does not have liability insurance, and a court orders the entity to pay damages, the entity would need to pay the award by taking money from its general fund.
See John L. Fellows, Memorandum to Members of the State and Local Affairs Interim Committee, at 1 (Sept. 4, 1986) (on file with the State of Utah Office of Legislative Research and General Counsel).
According to the legislative history, the task force proposed the 1987 amendment in the "hope that passage of these bills will make it easier or cheaper for a government entity to obtain liability insurance." Id. Thus the legislative objective appears to have been to make liability insurance more affordable for government entities by reducing liability risks. While that objective is worthy, the legislature swept too broadly when it severely curtailed negligence actions against municipalities operating power systems. The amendment partially abrogated the remedy of persons injured by a breach of the high duty of care imposed on such operators. The legislative concern about increased damage awards against governmental entities is stated in very general terms; no specifics are given. We do not know whether any municipality in this state operating an electrical system has sustained a large damage award. We do know that only a small fraction operate municipal power systems. The general nature of the legislative findings do not show that large damage awards have been made against municipalities in connection with their operation of an electrical power system, or that such operation has been affected in any way by potential liability.
The City generates an annual profit operating its electrical power system. It is not an operation subsidized by tax dollars. The cost of liability insurance, therefore, might not even be paid for by the taxpayers of the City, but rather by consumers of the electrical power, some of whom may live outside the City. Obtaining liability insurance is one of the costs of a power plant doing business, whether it is a private or municipal power system. If the City cannot afford to purchase reasonable amounts of liability insurance to meet its high standard of care, rate increases may be justified and necessary.
Equally disturbing is the broad sweep that the legislature took to meet its objective. In Hirpa v. IHC Hospitals, Inc., 948 P.2d 785, this court emphasized the narrow tailoring of the Good Samaritan Act in up
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