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Laney v. Fairview City8/9/2002
r dilapidated signs and indicating that the plaintiff should not necessarily recover "simply because a better warning signal could or should have been installed"); Duncan v. Union Pac. R.R., 790 P.2d 595, 601-02 (Utah Ct. App. 1990) (concluding that UDOT was "immune for its failure to do more than minimal warning and control," and stating, "Every highway could probably be made safer by further expenditures, but we will not hold UDOT (and implicitly, the legislature) negligent for having to strike a difficult balance between the need for greater safety and the burden of funding improvements"), aff'd 842 P.2d 832 (Utah 1992); Gleave v. Denver & Rio Grande W. R.R., 749 P.2d 660, 668-69 (Utah Ct. App. 1988) (holding that "UDOT's failure to install different safety signals or devices at the subject crossing was a purely discretionary function within the meaning of section 63-30-10(1)(a)" because (1) the challenged omission, failure to install different safety devices, involved the basic governmental objective of promoting public safety; (2) evaluating numerous railroad crossings and assigning priorities for safety signal upgrades was essential to the realization of public safety, especially in light of the fact that unlimited funds were not available to upgrade all needy crossings at once; (3) the decision whether to improve the traffic signals was the exercise of basic policy judgment because UDOT conducted on-site inspections, analyzed several safety factors, and participated in collective decision-making; and (4) UDOT was statutorily empowered to supervise and regulate the safety of the railroad crossings).
It is undisputed that the standards used in the electrical power industry in Utah follow those set forth in the National Electric Safety Code ("NESC"). Section 232 of the 1987 edition of the NESC, which was in effect at the time of Mr. Laney's accident, provides that power lines over farm land be at least eighteen feet above the ground. The power line at issue was over twenty-eight feet above the ground, thereby exceeding the standard set forth by the NESC. The NESC further provides that power lines are insulated when they are separated from other conducting surfaces by air space, as was the case here.
We wish to emphasize, however, that it would not be within a municipality's discretion to construct electrical systems and power lines that do not meet industry safety standards. Here, the City's electrical system, including the power line that caused Mr. Laney's death, met all applicable industry safety standards. Therefore, a decision by the City to not improve its power lines above industry standards is discretionary and is entitled to discretionary function immunity under the Act.
In sum, we conclude that the trial court was correct in concluding that the City was immune from suit under the Act. The alleged negligence of the City in failing to raise the height of, insulate, or provide further warnings on its power lines, resulted from the performance of discretionary functions under the Little test. Consequently, the Act immunizes the City from suit for the negligence alleged by the plaintiffs.
II. CONSTITUTIONALITY OF UTAH CODE ANN. § 63-30-2(4)(a)
Because we find that the City's maintenance of the power lines constitutes a discretionary function within the meaning of the Governmental Immunity Act, we must address the plaintiffs' challenge to the constitutionality of Utah Code Ann. § 63-30-2(4)(a) (Supp. 2000).
As explained above, the Utah Governmental Immunity Act grants the City immunity from suit for its decision not to increase the safety of its power lines. This is, in part, because the City's operation of its municipal
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