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Laney v. Fairview City8/9/2002
ry which results from the exercise of a governmental function . . . ." Utah Code Ann. § 63-30-3(1). Section 63-30-2(4)(a) states that
'Governmental function' means any act, failure to act, operation, function, or undertaking of a governmental entity whether or not the act, failure to act, operation, function, or undertaking is characterized as governmental, proprietary, a core governmental function, unique to government, undertaken in a dual capacity, essential to or not essential to a government or governmental function, or could be performed by private enterprise or private persons.
Utah Code Ann. § 63-30-2(4)(a). Under this definition, the City's operation of power lines is a governmental function, and the City is therefore immunized from suit by the general grant of immunity contained in section 63-30-3(1).
We also answer the second question, does some other section of the Act waive the blanket immunity in section 63-30-3(1), in the affirmative. Utah Code Ann. § 63-30-10 states, in pertinent part:
Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if . . . .
In this section, the legislature has waived the blanket coverage of sovereign immunity outlined in sections 63-30-3(1) and 63-30-2(4)(a) for negligence committed by governmental entities through their employees. In this case, appellants allege the City was negligent, and the Act waives immunity for that negligence.
The third question, does the Act contain an exception to the blanket waiver of immunity that results in a retention of immunity against the particular claim asserted by the plaintiffs in this case, is more complicated. Utah Code Ann. § 63-30-10 states:
Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of employment except if the injury arises out of, in connection with, or results from:
(1) the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused; (emphasis added).
Clearly, this section contains an exception to the waiver of blanket immunity, and the exception results in a retention of immunity for discretionary functions. Therefore, to determine whether the City has immunity against appellants' claims, we must determine whether the allegedly negligent decisions or omissions of the City constitute discretionary functions under the Act.
The test used to determine whether a governmental act, omission, or decision qualifies as a discretionary function under section 63-30-10(1) requires a four-part inquiry. See Keegan v. State, 896 P.2d 618, 624 (Utah 1995). An affirmative response to each inquiry leads to the conclusion that the action under review is a discretionary function. While the test was most recently applied by this court in Keegan, it first appeared in Little v. Utah State Division of Family Services, 667 P.2d 49, 51 (Utah 1983), and includes the following:
(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?
(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?
(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governm
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Utah Personal Injury Attorneys
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