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True v. Utah Department of Transportation

Court of Appeals of Utah

May 10, 2018

Thomas K. True and Melissa L. True, Appellants,
v.
Utah Department of Transportation, Appellee.

          Second District Court, Ogden Department The Honorable Joseph M. Bean No. 110903926

          Francis J. Martin, Attorney for Appellants

          Sean D. Reyes and J. Clifford Petersen, Attorneys for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judge Diana Hagen concurred. Judge Ryan M. Harris concurred in the result, with opinion.

          POHLMAN, Judge

         ¶1 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.

         BACKGROUND

         The Accident

         ¶2 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.

         ¶3 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."

         ¶4 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.

         ¶5 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.[1] 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.

         The Motion for Summary Judgment

         ¶6 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)[2] 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.

         ¶7 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.

         ¶8 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 retained immunity.

         The Issuance of Barneck

         ¶9 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.

         ¶10 On June 16, 2015, counsel for UDOT sent the court a letter advising the court of Barneck.[3] 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 20, 2016.

         ¶11 The Trues timely appealed the district court's July 29, 2015 summary judgment order in favor of UDOT.

         ISSUE AND STANDARD OF REVIEW

         ¶12 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.

         ¶13 "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. 56(a).

         ANALYSIS

         ¶14 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.

         ¶15 "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 599.

         ¶16 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) (LexisNexis 2008).

         ¶17 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.

         I. Proximate Causation under Barneck

         ¶18 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.

         ¶19 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 injuries.

         ¶20 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.

         ¶21 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 ...


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