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Laney v. Fairview City8/9/2002
ways be proprietary regardless of what the legislature says it is. The legislature can pass laws pertaining to the operation of automobiles, but cannot declare automobiles to henceforth be sailboats or houses. "Governmental functions" differ in nature from "proprietary functions." While each may be affected by legislation, one cannot be declared to be the other.
Government entities perform governmental functions, and sometimes proprietary functions. Governmental functions are those functions that can be performed only by government. In performing such functions, government entities enjoy absolute immunity from liability. They cannot be sued, even where such activities are negligently performed, unless they so consent. Indeed, the legislature enacted the Utah Governmental Immunity Act, which waives immunity in certain enumerated situations, subject to conditions. And the legislature can, at any time, withdraw such waiver of immunity or modify the same, and do so without meeting the requirements set forth by the Berry test. The test set forth in Berry does not apply to governmental immunity cases. Governmental immunity applies when core governmental functions are involved.
On the other hand, government occasionally becomes involved in activities that are not governmental in nature but, rather, are proprietary. Such functions are those normally performed by private persons or businesses. When performing proprietary functions, the government does not enjoy governmental immunity. It is subject to the same risks and standards that govern private persons or businesses. Whenever government moves beyond its core functions into the proprietary realm, it enters into direct competition with, and in certain instances, even supplants, private enterprise. In certain instances, government is at a decided advantage when it competes with private entities in the private sector, because the government's cost of doing business does not include the cost of insurance or adverse litigation awards and because government is subsidized by the captive taxpayer base. On the other hand, private businesses often incur not inconsequential costs through the necessity of carrying insurance and defending against litigation, because they are not afforded the same protections or immunity as the government.
If government chooses to engage in proprietary activities, it must do so on the same basis as private persons. It has been long established that government, when performing proprietary functions, is liable for its actions. The cases brought before this court for decades have required a determination of whether the government entity involved was performing a governmental function for which it could not be sued or a proprietary function for which it could be sued.
The right of the people to seek a remedy for harm against persons, private entities, or government when performing private or proprietary functions is guaranteed by article I, section 11 of the Utah Constitution. Such right, however, does not exist against a government agency involved in core governmental activities unless, of course, immunity has been expressly waived.
However, the legislature does have power, in certain limited circumstances, to limit or even eliminate the right of persons seeking a remedy against those who have harmed them, including a government entity when acting in a proprietary manner, if such legislation meets the Berry test. The Berry test applies to legislative acts that would restrict or eliminate the right of the people to seek a remedy under the open courts provision of the Utah Constitution against a person, business, or government entity participating in a private or proprietary action that a
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