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Sanders v. Leavitt8/31/2001
, 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) (1997).
Given this broad definition, the alleged actions or omissions of DCFS and its employees regarding Breanna in this case fall within the definition of a governmental function.
We next look to whether some section of the Act has waived that blanket immunity, and if so, whether an exception to that waiver exists, thereby retaining immunity. The version of section 63-30-10 in effect at the time of Breanna's death read, in relevant part:
(1) 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:
(b) assault, battery, false imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, or civil rights; Utah Code Ann. § 63-30-10 (1989); see also Utah Code Ann. § 63-30-10 amendment notes (1997) (stating " he 1996 amendment by ch. 159, effective July 1, 1996, added 'in connection with, or results from' to the end of the introductory paragraph").
Defendants argue immunity is retained because Breanna's death arose out of abuse inflicted by the Widdisons. Plaintiff argues that section 63-30-10(2) can be interpreted in two different ways. One interpretation is that immunity is retained regardless of who commits the battery. The other interpretation, the one proposed by plaintiff, is that immunity should be retained only if the battery is committed by the employee within the scope of employment.
We have previously held in several cases that immunity is retained under the Utah Governmental Immunity Act if an assault or battery is involved, regardless of who the tortfeasor is, and even if the assault or battery occurs as the result of the negligence of the state or state agent. See, e.g., Ledfors, 849 P.2d at 1165-67 (explaining that if the injury arises out of an assault or battery, immunity is retained, because the Act focuses on the cause of the injury or conduct out of which the injury arose, not on the status of the tortfeasor or on the plaintiff's theory of liability or the type of negligence alleged); see also Higgins v. Salt Lake County, 855 P.2d 231, 240 (Utah 1993) ("When we have considered claims that the state's negligence permitted an assault by a person who was not a state employee, we have held uniformly that the state is immune.") (citing, inter alia, Ledfors, 849 P.2d at 1165-67)); S.H. ex rel. R.H. v. State, 865 P.2d 1363, 1364- 65 (Utah 1993) (explaining that the Act focuses on the conduct or situation out of which the injury arose, not on the status of the party inflicting the injury); Taylor ex rel. Taylor v. Ogden City Sch. Dist., 927 P.2d 159, 163-64 (Utah 1996) (explaining that the statutory language places no importance on the status of the assailant and that nothing suggests that the one committing the assault need be a governmental employee). Inasmuch as the status of the assailant who committed the assault or battery is irrelevant under our long-accepted interpretation of the Act, the question now is whether Breanna's death arose out of an assault or battery.
Rule 56(e) of the Utah Rules of Civil Procedure reads, in relevant part,
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but hi
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