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Sanders v. Leavitt8/31/2001
for a second time on the last day of the session but never voted on the bill before the end of the session. See Utah House Journal, 51st Utah Leg., Gen. Sess., 1022-23 (March 1, 1995). Id. at 169 n.7
Thereafter the matter appears to have slipped from legislative view.
I reference this history because I believe that the rule as it stands creates unfairness and inconsistency, which the legislature may yet wish to address. As Justice Stewart wrote in his dissenting opinion in S.H. ex rel. R.H. v. State, 865 P.2d 1363 (Utah 1993):
It is indefensible for a child who is [sexually abused and assaulted] by a negligently hired cab driver [hired to transport handicapped students to public school] to be able to recover from the State for an injury caused by the cab driver's negligently colliding with another automobile but not to be able to recover when that contractor assaults a child. Id. at 1366.
It is equally disturbing for the rule to prevent, as in this case, a claim against DCFS for negligence in the supervision and protection of an abused infant. The factual record in the case of State v. Widdison, 2001 UT 60, 12, 425 Utah Adv. Rep. 27, establishes that DCFS had received information that Breanna had been abused and was in danger of further abuse a short time before her death. In fact, a caseworker who had examined Breanna in her home on one prior occasion actually came to the home and was refused access by Breanna's mother, Bobbie Dawn Widdison, on the day before Breanna's death. See id. at n.4. The record in that case did not disclose what, if anything, DCFS did thereafter, but Breanna was not seen by anyone from DCFS or removed from her home. She died less than forty-eight hours later.
It is possible that the State might be immune from negligence claims arising out of these circumstances on some other basis (e.g., the discretionary function exception), but it seems bizarre that the assault and battery rule should immunize from suit an agency whose primary function is to protect vulnerable children from physical abuse and neglect. In S.H., the court agreed that the result was "unconscionable" but held that only the legislature could change the law. See S.H., 865 P.2d at 1345. In Ledfors, the court expressed sympathy for the plight of a child viciously beaten by other students during an unsupervised physical education class, but again deferred to the legislature:
It is unfortunate that any parent who is required by state law to send his or her child to school lacks a civil remedy against negligent school personnel who fail to assure the child's safety at school. Nevertheless . . . we are constrained by . . . the Act . . . . It is [however] entirely within the legislature's power to permit all plaintiffs to whom the government owes a duty of care based on a special relationship to bring suit for injuries arising out of a breach of that duty. Ledfors, 849 P.2d at 1167.
In view of these repeated references to the anomalies and unfairness created by the assault and battery exception, I write in hope that the legislature will re-examine its scope. If this court's construction has created an unintended result or poor public policy, in the legislature's view, the statute should be repaired. At the very least, it deserves some open discussion and debate in view of our frequent observation that it seems to create inconsistency and injustice.
WEST, Judge, concurring:
I concur with the majority opinion as written by Justice Wilkins. I write separately to concur with Justice Durham's specific suggestion that the Utah Legislature consider clarifying the scope of governmental immunity under Section 63
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