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Laney v. Fairview City8/9/2002
llegedly harmed them.
In the case before us, the amended statute in question declares any act of government, even a proprietary act, to be a governmental function, thereby enjoying absolutely immunity from liability. In other words, under this act, a government entity can own and operate a golf course, an amusement park, a ski resort, a farm, a retail store, or other such private business and not be liable for negligently doing so. It can compete in the market place with private persons or businesses but not be legally responsible for its harms. This is an abandonment of long-held legal, economic, and political principles fundamental to our way of life. When government participates in the private proprietary sphere, it is subject to the open courts clause of the Utah Constitution just as are those with whom the government is competing.
The operation of a power plant by a government entity is proprietary. This status cannot be changed by the legislature. What the legislature can do, however, is pass legislation modifying, restricting, or eliminating the right of people to seek a remedy against private persons, or a government entity, operating a power plant, but such legislation must meet the Berry test.
Therefore, in the case before us, Fairview City was acting in a private or proprietary function in its operation of an electrical power plant for which it was subject to liability for negligence, if any, and the amendment to the statute did not change, nor could it change, this status. Furthermore, the amendment to the statute did not purport to affect the City's liability for operation of the power plant as a proprietary function, but even if it did, it failed to meet the Berry test.
For the above reasons, I concur that the 1987 amendment is unconstitutional as it applies to municipalities operating electrical power systems and violates article I, section 11 of the open courts clause of the Utah Constitution. The case must therefore be reversed and remanded to the trial court for trial on the merits of appellant's claims.
WILKINS, Justice, concurring and dissenting:
I concur with nearly all of section I of the lead opinion, the well-reasoned discretionary function analysis. I state no opinion, however, as to whether compliance with industry standards is necessary for an act or omission of a municipality to constitute a discretionary function, see supra 24-25, as I deem it unnecessary to the analysis.
I dissent, however, with section II of the lead opinion, the majority's interpretation of the Open Courts Clause. In my view the current interpretation of the Open Courts Clause originating with Berry ex. rel Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), and the accompanying Berry test, places this court outside of its constitutional role and creates separation of powers problems. I would overturn Berry in favor of the more procedural interpretation of the Open Courts Clause advanced in our jurisprudence prior to, and since, Berry. I also disagree with Justice Russon's concurring opinion, as he also declares the section 63-30-2(4)(a) unconstitutional and continues to adhere to Berry.
In my opinion, section 63-30-2(4)(a) of the Utah Governmental Immunity Act, Utah Code Ann. ยงยง 63-30-1 to -38 (1997 & Supp. 2000), does not violate article I, section 11 of the Utah Constitution, the Open Courts Clause. I would therefore affirm the district court's ruling that Fairview City is immune from suit for the alleged negligence. In my view, the Legislature acted within its constitutional authority in setting forth the current scheme of sovereign immunity in Utah. Under the statute, Fairview City sh
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