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Day v. State5/11/1999
dded), and from certain other traffic regulations. Subsection 3(a) of section 41-6-14 stated: "The privileges under this section do not relieve the operator of an authorized emergency vehicle from the duty to operate the vehicle with regard for the safety of all persons, or protect the operator from the consequences of an arbitrary exercise of the privileges." (Emphasis added.)
Effective April 23, 1990, the Legislature amended section 63-30-7 by adding subsection (2)(a) to provide a limited immunity for a very narrow type of emergency vehicle operation. However, the amendment maintained the general waiver of immunity if an emergency vehicle was not operated in compliance with section 41-6-14. The amended section read as follows:
"(1)(a) Immunity from suit of all governmental entities is waived for injury resulting from the negligent operation by any employee of a motor vehicle or other equipment during the performance of his duties, within the scope of employment, or under color of authority."
"(b) This subsection does not apply to the operation of emergency vehicles as defined by law and while being driven in accordance with the requirements of Section 41-6-14."
"(2)(a) All governmental entities employing peace officers retain and do not waive immunity from liability for civil damages for personal injury or death or for damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he is being or has been pursued by a peace officer employed by the governmental entity in a motor vehicle." Utah Code Ann. § 63-10-7 (Supp. 1990).
Subsection (2)(a) was in effect for six days more than a year. It was repealed effective April 29, 1991, six weeks after the collision between Floyd and the Days, when the Legislature repealed all of section 63-30-7, see 1991 Utah Laws ch. 76, § 10, and in lieu thereof added subsection 15 to section 63-30-10, the general waiver of governmental immunity for injury caused by an act or omission of a government employee, with a list of exceptions to the waiver. See id. ch. 76, § 4. Subsection 15 of § 63-30-10 barred an action for the negligent "operation of an emergency vehicle while being driven in accordance with the requirements of Section 41-6-14." Utah Code Ann. § 63-30-10(15) (Supp. 1991) (emphasis added). Thus, the Legislature abolished the narrow immunity created by subsection (2)(a) and reestablished the law as it had existed from the time the Governmental Immunity Act was first established.
The Court of Appeals ruled that subsection (2)(a) of section 63-30-7 was constitutional and barred Mrs. Day's claims. See Day v. State, 882 P.2d 1150, 1159 (Utah Ct. App. 1994). The consequence of that ruling, together with the immunity conferred on government employees in 1983 by enactment of section 63-30-4(3)(a) and (b) of the Governmental Immunity Act for negligent and reckless acts, was to leave Mrs. Day with no remedy at all against the State or its employees. The rationale for the Court of Appeals' opinion that section 63-30-7(2)(a) was constitutional was that the "common law doctrine of governmental immunity as it had developed to the time of Utah's statehood precluded a cause of action" in favor of one injured by a high-speed police pursuit of a fleeing suspect. Day, 882 P.2d at 1159. In our view, the Court of Appeals erred in two respects. First, the rights protected by Article I, section 11 are not defined by those causes of action that existed in 1896. Second, the law, both in Utah and in other states, has long recognized the principle that negligence of law enforcement officers in apprehending a fleeing misdemeanant
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