Laney v. Fairview City8/9/2002
ental agency involved?
(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? See Keegan, 896 P.2d at 624 (Utah 1995); accord Trujillo v. Utah Dep't. of Transp., 1999 UT App. 227, 27, 986 P.2d 752; Little, 667 P.2d at 51 (quoting Evangelical United Brethren Church of Adna v. State, 407 P.2d 440, 445 (Wash. 1965)).
Although a party's entitlement to discretionary function immunity is a question of law, a court must have sufficient facts before it to determine whether the challenged act, omission, or decision satisfies the four-part Little test. See, e.g., Rocky Mountain Thrift v. Salt Lake City, 784 P.2d 459, 464 (Utah 1989); Hansen v. Salt Lake County, 794 P.2d 838, 840 (Utah 1990); Trujillo, 1999 UT App. 227 at 28, 43. The record in the present case contains sufficient facts to apply the Little test.
We first note that the discretionary function analysis in Little depends on which specific act, omission, or decision is being challenged by the plaintiffs, see, e.g., Rocky Mountain Thrift, 784 P.2d at 461-64, Trujillo, 1999 UT App. 227 at 29-37, and whether it involves a basic governmental policy, program, or objective. The decisions or omissions challenged by the plaintiffs in this case are those that resulted in not raising the height of the power lines, not insulating the power lines, and not providing further warnings, all pertinent to the safety of members of the public who might encounter the lines. These challenged decisions are closely connected to the basic governmental objective of public safety. Because the plaintiffs' complaint specifically identifies the City's failure to adequately make the lines safe as the basis of their action, our analysis is limited to reviewing the challenged decisions in that light. As such, the challenged act, omission, or decision does necessarily involve a basic policy, program, or objective, namely public safety, and the first part of the Little inquiry is answered affirmatively.
Second, we conclude that the questioned omissions or decisions regarding the safety of the power lines are essential to the realization or accomplishment of the policy, program, or objective identified here--public safety. Again, because the plaintiffs allege the City failed to adequately warn or make the power lines safe by raising or insulating them, "that policy, program, or objective" subject to analysis is the promotion of public safety. Little, 667 P.2d at 51. Decisions touching the safety of the power lines clearly affect the accomplishment of the objective of public safety. Consequently, part two of the Little inquiry is also answered in the affirmative.
Third, the challenged act, omission, or decision regarding the power lines requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. Although we are not presented with evidence regarding whether the City actually conducted on-site inspections, analyzed various safety factors, or conducted collaborative review of its decision not to raise the power lines, we think that the decision required, at a minimum, a basic cost-benefit analysis and exercise of financial expertise and judgment by the City. This is sufficient under part three of the Little test.
Finally, we also answer the fourth question in the affirmative. Under Utah Code Ann. § 10-8-14 (Supp. 2001), the City is authorized to own and operate an electric utility. Id. see also Utah Const. art. XI, § 5. Thus, the City has the requisite authority to decide whether or not to raise the lines or otherwise make them more
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