Thomas K. True and Melissa L. True, Appellants,
Utah Department of Transportation, Appellee.
District Court, Ogden Department The Honorable Joseph M. Bean
Francis J. Martin, Attorney for Appellants
D. Reyes and J. Clifford Petersen, Attorneys for Appellee
Jill M. Pohlman authored this Opinion, in which Judge Diana
Hagen concurred. Judge Ryan M. Harris concurred in the
result, with opinion.
Appellants Thomas K. True and Melissa L. True appeal the
district court's grant of summary judgment in favor of
the Utah Department of Transportation (UDOT), dismissing on
the basis of governmental immunity their claim that injuries
they sustained in a traffic accident resulted from UDOT's
negligence. We affirm.
In June 2009, a construction project was underway in Ogden,
Utah, to install a water main line under a certain
intersection. Because the project involved "digging or
excavating" on a state highway, the project's
general contractor had been required by law to obtain a
permit from UDOT before beginning construction. The
contractor had duly submitted the permit application before
starting construction, which included submission of a traffic
control plan. UDOT approved the traffic control plan and then
issued the contractor the appropriate permit.
The permit "granted [the contractor] permission to
encroach on [the] state highway" and "identified
the what, when and where of [the contractor's]
authorization." It also required the contractor to
notify a UDOT permit inspector twenty-four hours before
starting the work and generally provided that "[a]n
inspector may be required at permittee's expense, with 48
hours notice." Failure to comply with the
"regulations, specifications, or instructions pertinent
to [the] permit" could result in UDOT either suspending
or "stopping all or any part of the work."
UDOT assigned a transportation technician to perform
inspections of the project, as provided in the permit. The
technician "regularly inspected the job site and
supported [the contractor] in its efforts to implement and
comply with the traffic control plan." The
technician's duties included inspecting the traffic
control at the site, making sure that it conformed to the
traffic control plan, and generally monitoring the
construction's effect on the highway. However, the
technician was not present at the project site every day.
On June 19, 2009, the Trues were riding a motorcycle together
in Ogden. As they rode through the intersection undergoing
construction, they were struck by a truck turning left into
the intersection. Both Trues were injured, and they brought a
negligence action against UDOT, the contractor, and the truck
driver. The Trues asserted that UDOT was negligent
on three grounds: (1) "approving an unsafe traffic
control plan"; (2) "failing to maintain a safe
intersection"; and (3) "failing to properly monitor
the traffic control to ensure it was being carried out in
accordance with the plan." In particular, the Trues
asserted that UDOT was negligent in "allowing the
removal of a no-left-turn sign days before the collision took
place, contrary to the traffic control plan, " and that,
had the sign remained in place, the truck driver would have
been prevented from turning left into their path.
Motion for Summary Judgment
UDOT moved for summary judgment. For purposes of its motion,
UDOT conceded that the Trues' injuries were
"proximately caused by a negligent act or omission"
sufficient to waive its immunity, but it argued that it
nonetheless retained immunity from suit through the permit
exception to the waiver of immunity provided in section
63G-7-301(5)(c) of the Governmental Immunity Act of Utah
(the Act). Specifically, UDOT contended that it retained
immunity because the Trues' injuries "arose out of,
in connection with, or resulted from" the issuance of
the permit to the contractor. At the time UDOT filed and
argued its motion, the Utah Supreme Court had interpreted the
"arose out of, in connection with, or resulted
from" language as establishing a "but-for"
causation standard. Accordingly, UDOT argued that all of the
Trues' allegations were connected to the issuance of the
permit and that "but for" the permit's
issuance, no accident or injury would have occurred.
The Trues argued, in contrast, that their claims of
negligence "arose not from issuance of the permit, but
from UDOT's own negligence in failing to ensure that the
intersection was safe during construction." They
contended that UDOT "had a duty to maintain the
intersection in a safe condition independently from the
issuance of the permit for the construction work" and
that UDOT had breached that duty by approving the unsafe
traffic control plan, failing to maintain a safe
intersection, and failing to properly monitor the traffic
control situation at the intersection. They also argued that
UDOT's negligent actions could not "be characterized
as formal, official acts, " as required for the permit
exception to apply.
The district court orally granted UDOT's summary judgment
motion during the hearing on the motion, and it directed
counsel for UDOT to prepare an order. The court determined
that issuing the permit to the contractor constituted a
formal, official act and stated that UDOT would retain
immunity for actions "related to [or] arising out of
the issuance of the permit." The court further concluded
that the specific actions complained of by the
Trues-approving the traffic control plan, failing to maintain
a safe intersection, and failing to properly inspect the
intersection-arose from, were related to, and "came as a
result of UDOT issuing the Permit." Consequently, the
court determined that but for the issuance of the permit, the
injuries would not have occurred, and that UDOT therefore
Issuance of Barneck
The district court held the summary judgment hearing on June
11, 2015. One day later, the Utah Supreme Court issued its
decision in Barneck v. Utah Department of
Transportation, 2015 UT 50, 353 P.3d 140. In that
decision, the supreme court repudiated the
"but-for" causation standard that had previously
been applied to determine whether an injury "arises out
of, in connection with, or results from" the exceptions
listed in Utah Code section 63G-7-301(5), including the
permit exception. Id. ¶ 2. In its place, the
court adopted a proximate cause standard for determining
whether an injury was sufficiently related to an enumerated
exception. Id. ¶¶ 2, 38, 44.
On June 16, 2015, counsel for UDOT sent the court a letter
advising the court of Barneck. UDOT's
counsel explained his belief that the court's oral ruling
was still correct even under the new causation standard, but
he requested an opportunity to brief the issue if the court
chose to revisit its summary judgment decision. UDOT's
counsel copied the Trues' counsel on the letter. The
Trues did not respond to the letter or otherwise ask the
court to reevaluate its summary judgment decision in light of
the new causation standard established in Barneck.
UDOT filed its proposed order on July 27, 2015, which the
Trues approved as to form, and the district court entered its
written order granting summary judgment on July 29, 2015,
approximately fifty days after the court issued its oral
ruling during the hearing. The case remained pending for
nearly another year, during which time the Trues settled
their claims against the other defendants. The district court
entered final judgment as to all parties and claims on July
The Trues timely appealed the district court's July 29,
2015 summary judgment order in favor of UDOT.
AND STANDARD OF REVIEW
The Trues argue on appeal that the district court improperly
granted UDOT's motion for summary judgment, challenging
the district court's determination that UDOT retained
immunity under the permit exception to immunity waiver.
Specifically, they contend that UDOT's issuance of the
construction permit did not proximately cause the accident
and their injuries; therefore, UDOT did not have immunity
under the permit exception.
"We review the district court's decision granting
summary judgment de novo, affording it no deference, "
and in doing so, "we determine whether UDOT has
established that there are no genuine issues of material fact
and that it is entitled to judgment as a matter of law."
Barneck v. Utah Dep't of Transp., 2015 UT 50,
¶ 8, 353 P.3d 140; see also Utah R. Civ. P.
The district court determined that the Trues' injuries
"arose out of, related to, or resulted from UDOT's
issuance of the Permit." It did so by applying the
pre-Barneck but-for causation standard. On appeal,
the Trues argue for the first time that UDOT was not immune
from suit under the permit exception of the Act because
UDOT's issuance of the permit did not proximately cause
the accident and their injuries. In particular, they contend
that, through its negligent actions, UDOT waived its
immunity, and that no waiver exception applied to effectively
reinstate its immunity.
"We typically apply a three-part test to determine
whether a governmental entity enjoys immunity under the Act
for the challenged activity." Winkler v.
Lemieux, 2014 UT App 141, ¶ 5, 329 P.3d 849.
First, courts must ascertain whether the activity was a
governmental function and thereby entitled to blanket
immunity under the Act. Second, if the activity constituted a
governmental function, courts must then look to see whether
the State has waived immunity under another section of the
Act. Finally, courts must determine whether there is an
exception to the waiver of immunity that retains immunity
against suit for the cause of action in the particular case.
Wagner v. State, 2005 UT 54, ¶ 12, 122 P.3d
Both parties concede that the first two prongs are met in
this case and that only the third prong-"whether there
is an exception to the waiver of immunity that retains
immunity against suit"-is at issue. Id. The Act
provides that immunity to suit will be reinstated for
"any injury proximately caused by a negligent act or
omission of an employee committed within the scope of
employment, if the injury arises out of, in connection with,
or results from, " among other things, "the
issuance, denial, suspension, or revocation of, or by the
failure or refusal to issue, deny, suspend, or revoke, any
permit, license, certificate, approval, order, or similar
authorization." Utah Code Ann. § 63G-7-301(5)(c)
The parties disagree about whether the permit exception under
subsection (5)(c) applies. The Trues argue that the permit
exception does not apply for two reasons: (1) the issuance of
the construction permit did not proximately cause their
injuries under the causation standard announced in
Barneck, and (2) UDOT's negligent actions
"cannot be characterized as formal, official acts,
" as required under the supreme court's statutory
interpretation of the permit exception in Thayer v.
Washington County School District, 2012 UT 31, 285 P.3d
1142. We address each contention below.
Proximate Causation under Barneck
During the summary judgment proceedings, the parties
disagreed about whether the issuance of the permit caused the
Trues' injuries. The causation standard then in effect
and relied upon by the parties for determining whether a
waiver exception applied was "but-for" causation,
as articulated in cases such as Blackner v. State
Department of Transportation, 2002 UT 44, 48 P.3d 949.
See Hoyer v. State, 2009 UT 38, ¶ 32, 212 P.3d
547 (explaining that "the test for whether an exception
to the waiver of immunity for negligence applies is whether
'but for' the excepted act, the harm would not have
occurred"). Under that standard, UDOT simply had to
demonstrate "some causal nexus" between
the issuance of the permit and the harm that followed.
See Blackner, 2002 UT 44, ¶ 15; see also
Moss v. Pete Suazo Utah Athletic Comm'n, 2007 UT 99,
¶¶ 14-19, 175 P.3d 1042 (interpreting the permit
waiver exception to conclude that the challenged governmental
action need not be "directly tied to a licensing
decision, " because the statutory language is
"broad" and "certainly is not restricted to
those decisions that constitute licensing decisions per
se"). Accordingly, the district court's oral ruling
and written order on summary judgment incorporated and
applied the "but-for" causation standard to
determine that UDOT had established its entitlement to
immunity under the permit exception to waiver.
On appeal, the Trues do not ask us to reverse the district
court's summary judgment ruling on the basis that its
but-for causation determination was erroneous. Rather, they
ask us to reverse the court's ruling based on the new
proximate causation standard announced in Barneck.
As discussed above, Barneck repudiated the
"but-for" causation standard applicable to waiver
exceptions and replaced it with a narrower proximate
causation standard. Barneck v. Utah Dep't of
Transp., 2015 UT 50, ¶ 2, 353 P.3d 140.
Specifically, Barneck held that "an
immunity-invoking condition . . . must be a
proximate cause of the plaintiff's injuries in
order to sustain the reinstatement of immunity."
Id. ¶ 38; see also id. ¶¶
42-44 (explaining that "a but-for connection"
"would allow the statutory exceptions to nullify the
immunity waivers, " which is illogical "in the
context of a statute aimed at waiving governmental immunity
for negligence"). Relying on Barneck, the Trues
contend that the issuance of the construction permit did not
proximately cause their injuries, because "[i]ssuing the
construction permit did not foreseeably heighten the
'scope of the risk' of [their] accident, " as
required to establish proximate causation. (Quoting
Barneck, 2015 UT 50, ¶ 48.) Instead, they
allege that "UDOT's own negligence in approving an
unsafe traffic control plan and then failing to make sure the
plan was being carried out correctly" caused their
In response, UDOT argues that we should decline to reach the
Trues' Barneck causation argument because the
Trues failed to preserve it in the district court and have
not otherwise cited an exception to our preservation
requirement. UDOT concedes that Barneck changed the
causation standard applicable to whether immunity could be
reinstated pursuant to a waiver exception and that all of the
"litigation preceding [the district court's verbal
summary judgment] ruling, including the summary judgment
briefing and the extensive discovery conducted[, ] . . .
proceeded under what was then the governing
pre-Barneck standard." However, UDOT contends
that, despite having ample opportunity to raise the new
causation standard as a basis for revisiting the summary
judgment motion, the Trues failed to do so. Accordingly, UDOT
contends that the Trues should not be permitted to now argue
that reversal is appropriate under Barneck.
After conceding in their opening brief that the proximate
causation issue was not raised below, the Trues counter in
their reply brief that we should reach their causation
argument because "[t]he basic issue of whether Defendant
UDOT has immunity based on the permit exception was preserved
for review." The Trues also argue that the district
court's silence in response to UDOT's letter advising
the court of the change in ...