Cornwall v. Larsen

571 P.2d 925, 1977 Utah LEXIS 1278

• Court: Utah Supreme Court
• Decided: October 20, 1977
• Docket: 14771
• Status: Published

Opinions

HALL, Justice:

This case involves an action for personal injuries sustained by a minor as a result of a collision between the car in which he was riding and one driven by Owen Richard Andrus, a deputy sheriff. Delmar F. Larsen is the duly elected and qualified sheriff for whom Andrus serves as a deputy and Salt Lake County is the political entity they jointly serve. The other named defendants are not concerned with this appeal.

The collision occurred on August 12,1974, at a time when Andrus, in the course of his official duties, was responding to an emergency situation by traveling to the scene thereof by car without utilizing audible or visible emergency devices which plaintiff alleges was reckless, wilful, unlawful, and in excess of his authority.¹ It is conceded for the purpose of this appeal that Andrus was negligent.

Plaintiffs, through counsel, timely filed a claim with Salt Lake County and thereafter commenced an action against the sheriff and his deputy by filing a complaint. A subsequent amendment thereto added Salt Lake County as a defendant.

The court below, on its own motion, dismissed as to Larsen and Andrus by order of June 4, 1976, and summary judgment was granted in favor of Salt Lake County on September 1, 1976, hence this appeal.

Suits against political subdivisions of the State of Utah are governed by statute² which requires a claim to be filed with the appropriate governmental entity and if not approved or denied within 90 days thereafter the same is deemed denied.³ The statute further provides that if the claim is denied, an action must be commenced within one year thereafter.

In this instance the claim was filed October 11, 1974, and was not approved or denied formally so was deemed denied by operation of the statute on January 9,1975. The action was not filed until February 10, 1976, and was, therefore, not commenced in time. The basic rule governing such matters is stated in Hamilton v. Salt Lake City⁴ as follows:

The right to recover damages is statutory, it can only be availed of when there has been a compliance with the conditions upon which the right is conferred, [citation omitted] Where a right is purely statutory and is granted upon conditions, one who seeks to enforce the right must by allegation and proof bring himself within the conditions, [citation omitted]

In an action against a school district after the enactment of the Governmental Immunity Act⁵ where immunity from suit was waived, this Court, in the case of Scarborough v. Granite School District,6 held:

The School District is a political subdivision of the state. Therefore it would normally be immune from suit; and the right to sue is an exception created by statute. We have consistently held that where a cause of action is based upon a statute, full compliance with its requirements is a condition precedent to the right to maintain a suit.

The appellants’ claim that an insurance adjuster for the county lulled them into a false sense of security by requesting medical information regarding the physical condition of the minor appellant. The affidavit of counsel for appellants states that the information was sent while the affidavit of the adjuster states that it was never received although twice requested, and that a statement was included in the request to the effect that all defenses would be claimed. If this dispute were material, it would prevent a summary judgment in this case. The trial court did not receive the affidavits until after the motion for summary judgment was heard.

The appellant relies upon the case of Rice v. Granite School District⁷ which held that a lay person might be so deceived by the conduct of an insurance adjuster as to create an estoppel on the part of the school district from raising the matter of late filing of the complaint. The instant matter differs from the Rice ease. There the plaintiff was not represented by counsel and late filing was alleged to be excusable by the actions and conduct of the adjuster which gave rise to a genuine issue of material fact to be determined by the trial court. In the present case, the plaintiff had counsel who had timely filed the claim and who was well acquainted with the statute which provided that a complaint must be filed within one year after a claim is denied. The actions of the adjuster under those circumstances were not such as would warrant a conclusion that the clear mandate of the statute need not be followed.

Turning now to the dismissal as to Larsen and Andrus, respondent relies substantially upon the case of Sheffield v. Turner,⁸ however, it is distinguishable on the facts. In that case the Court addressed itself to the general principles of sovereign immunity as applied to the warden of the Utah State Prison in the performance of discretionary acts. His employees were allegedly negligent in failing to restrain an inmate from committing violent acts upon a fellow inmate. The suit was against the warden and not an employee. The holding there was that if the warden did err in determining how inmates should be handled, that in the absence of bad faith or a wilful or malicious wrongful act, such was merely an error in discretion for which he was entitled to immunity from suit.⁹

In this case, the defendant Andrus was an employee, performing a ministerial act and not a discretionary act, and since no evidence was taken in the case, the allegation of negligence in the pleadings must be taken as true for purposes here, and in fact the pleadings, as amended, go further to allege in the second cause of action that his acts in driving an emergency vehicle were wilful, unlawful, and in excess of his authority.¹⁰ Such appears to meet the criteria of wilfulness set forth in Sheffield v. Turner, supra.

The case of Bowman v. Hayward¹¹ is supportive of appellants’ position and is viable authority for the proposition that a sheriff and his deputy are liable in damages for their wrongful acts while acting within the scope of their authority. Also, the case of Benally v. Robinson¹² clearly holds that a policeman is liable for his own negligence and the trial court was reversed when it refused to allow the jury to consider the question of negligence requiring instead their consideration of an intentional tort.

The Utah Governmental Immunity Act¹³ applies only to entities and does not include individuals (employees) and such was noted by the court in Sheffield v. Turner, supra, and the Act contains no language exempting employees from suit. It only insulates an employee by barring any action against him after judgment is had and obtained against the entity¹⁴ and if no judgment is obtained against the entity, it follows that an aggrieved party may proceed against an employee thereof. Such legislative intent is clearly expressed in that portion of Act¹⁵ which allows the entity to insure its employees against liability for their negligent acts.

The trial court’s summary judgment in favor of Salt Lake County is affirmed, but the order of dismissal as to Larsen and Andrus is vacated, set aside, and the matter is remanded for the purpose of resolving those issues of fact raised by the pleadings such as, but not necessarily limited to, the negligence if any, of the respective parties.¹⁶ Costs to appellants.

1 . U.C.A.1953, 41-6-14, exempts authorized emergency vehicles from the usual standard of operation required of vehicles generally when in response to an emergency call an audible warning device is activated.

2 . U.C.A.1953, 63-30-15.

3 . U.C.A.1953, 63-30-11 and 14.

4 . 99 Utah 362, 106 P.2d 1028 (1940).

5 . Chapter 139, Laws of Utah, 1965; U.C.A. 1953, 63-30-1, et seq.

6 . Utah, 531 P.2d 480 (1975).

7 . 23 Utah 2d 22, 456 P.2d 159 (1969).

8 . 21 Utah 2d 314, 445 P.2d 367 (1968).

9 . A number of cases are cited in the Sheffield v. Turner case supporting this general rule of sovereign immunity but none appear to involve an employee defendant as distinguished from a state or political subdivision thereof, or a public official.

10 .See footnote 1 above.

11 . 1 Utah 2d 131, 262 P.2d 957 (1953).

12 . 14 Utah 2d 6, 376 P.2d 388 (1962).

13 . U.C.A.1953, 63-30-1, et seq.

14 . See U.C.A.1953, 63-30-20.

15 . U.C.A.1953, 63-30-33.

16 . See Jensen v. Taylor, 2 Utah 2d 196, 271 P.2d 838 (1954) on the issue of negligence in the operation of an emergency vehicle and the interpretation of Section 41-6-14 referred to in note 1 above.