Taylor Ex Rel. Taylor v. Ogden City School District

927 P.2d 159, 303 Utah Adv. Rep. 29, 1996 Utah LEXIS 100, 1996 WL 662222

• Court: Utah Supreme Court
• Decided: November 15, 1996
• Docket: 940450
• Status: Published

Opinions

RUSSON, Justice:

Susan Taylor brought this action on behalf of her minor son Zachary Taylor, seeking monetary relief for injuries he suffered after he was pushed into an allegedly unsafe window at Highland Middle School in Ogden City, Utah. The trial court granted the Ogden City School District’s motion for summary judgment, holding that Taylor’s claims were barred by the Utah Governmental Immunity Act, specifically, Utah Code Ann. § 63-30-10 (1989). We affirm.

BACKGROUND

This action arises out of an accident that occurred at Highland Middle School, which is in the Ogden City School District (the District). The parties agree that the District is a governmental entity and that the maintenance of the middle school is a governmental function.

The accident happened on May 18, 1989. Zachary Taylor and Trenton Leo, students at the middle school, were involved in a scuffle in a restroom. At one point, Trenton pushed Zachary into a glass window. Zachary’s hand was forced through the glass, resulting in nerve and tendon damage. Although the glass cut Zachary’s hand, the window was not in violation of bufiding codes or safety regulations, and the parties agree that it did not present a blatant design defect.

Trenton was charged with assault and tried in juvenile court on October 17, 1989. The juvenile court found the allegations of assault to be true and ordered Trenton to pay a fine and restitution.

On January 12, 1990, Susan Taylor filed this lawsuit on behalf of her son. She asserted a claim against the District for negligent failure to install safety glass in the window of the bathroom or institute some other safety measure that would have prevented her son’s accident.¹ Taylor’s action against the District was predicated on section 63-30-9 of the Utah Code before its 1991 amendments. The statute provided:

Immunity from suit of all governmental entities is wáived for any injury caused from a dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement. Immunity is not waived for latent defective conditions.[²]

Subsequently, the District moved for summary judgment, asserting that it was govem-mentally immune from liability. The District argued that it was immune from Taylor’s suit under section 63-30-10(l)(b) of the Utah Code, which provided at the time of the accident:

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:

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(b) arises out of assault... [,][³]

The District argued that Zachary’s injury was caused by Trenton’s assault upon him and it was therefore immune from liability for Zachary’s injuries.

The District’s motion was ultimately granted.⁴ The trial court based its ruling on two grounds. First, it held that the District was immune from suit because Zachary’s injuries arose out of an assault committed upon him by Trenton. Second, the trial court found that the District was immune from liability under section 63-30-10(l)(a) of the Utah Code, which provided at the time of the accident:

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:

(a) arises out of the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused[.][⁵]

The court ruled that the District’s decision regarding the type of glass to use was discretionary because there was no building code regulation mandating the use of safety glass for the bathroom window. Thus, the trial court held that under the assault and discretionary function exceptions to governmental waiver of immunity enumerated in section 63-30-10, the District was immune from Taylor’s suit predicated on section 63-30-9.

Taylor appealed to this court, which transferred the case to the Utah Court of Appeals pursuant to section 78-2-2(4) of the Utah Code. The court of appeals reversed the trial court’s ruling, holding that the retentions of immunity under section 63-30-10 were inapplicable to the waiver of immunity set forth in section 63-30-9. Taylor v. Ogden City Sch. Dist., 881 P.2d 907, 912 (Utah.Ct.App.1994). The court of appeals explained that the exceptions in section 63-30-10 were intended to apply only to injuries proximately caused by negligence, not injuries caused by dangerous conditions in public buildings under section 63-30-9. Id. at 911-12. Thus, the court of appeals held that “[t]he trial court ... erred by granting summary judgment to the ... District on the basis that the assault and the discretionary function exceptions applied to section 63-30-9 prior to 1991.” Id. at 913.

The District petitioned for certiorari, which this court granted on November 27, 1994. Taylor v. Ogden City Sch. Dist., 890 P.2d 1034 (Utah 1994). After the petition was granted, this court decided Keegan v. State of Utah, 896 P.2d 618 (Utah 1995). There we held that “the discretionary function exception set forth in section 63-30-10 does apply to eases brought under section 63-30-8,” which waives immunity for injuries caused by dangerous or defective conditions on roadways. Id. at 623. On the basis of this ruling, this court summarily reversed the court of appeals’ ruling in Taylor that the exceptions in section 63-30-10 did not apply to the waiver in section 63-30-9. Taylor v. Ogden City Sch. Dist., 902 P.2d 1234, 1234 (Utah 1995) (per curiam).

This holding left undecided the issues of whether the discretionary function exception or the assault exception applied to the facts of this case. Rather than remanding the case to the court of appeals to resolve these issues, this court retained jurisdiction and directed the parties to brief the following issues:

(1) Whether the injuries allegedly suffered by plaintiff “arose out of’ the assault and battery exception to the waiver of immunity in Utah Code Ann. § 63-30-10(2) or whether those injuries arose out of the alleged negligence of defendant’s having failed to install safety plate glass.

(2) Whether, assuming that the alleged injuries suffered by plaintiff arose out of defendant’s negligence, in whole or in part, rather than out of an assault and battery, defendant’s failure to install safety plate glass was a ministerial or a discretionary function under § 63-30-10(1).

Id. Having been fully briefed by the parties, we now proceed to review the basis for the trial court’s summary judgment in favor of the District.

STANDARD OF REVIEW -

Summary judgment is proper only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c); Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993). Because we resolve only legal issues on appeal from a summary judgment, we do not defer to the trial court’s conclusions of law but review them for correctness. Ferree v. State, 784 P.2d 149, 151 (Utah 1989); accord Higgins, 855 P.2d at 235. On appeal, “[w]e determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact.” Ferree, 784 P.2d at 151; Bowen v. Riverton City, 656 P.2d 434, 436 (Utah 1982).

ANALYSIS

To determine whether a governmental entity is immune from suit under the Utah Governmental Immunity Act (the Act), three questions must be answered:

(1) Was the activity undertaken by the entity a governmental function and therefore immunized from suit under the general grant of immunity contained in Utah Code Ann. § 63-30-3?

(2) If the activity undertaken was a governmental function, has another section of the Act waived that blanket immunity?

(3) If immunity has been waived, does the Act contain an exception to that waiver resulting in a .retention of immunity against the claim asserted?

Keegan v. State of Utah, 896 P.2d 618, 619-20 (Utah 1995) (citing Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1164 (Utah 1993)).

In this case, the first two questions are not in dispute. Both parties agree that the District is a governmental entity and that maintenance of a school is a governmental function. In addition, the parties agree that a section of the Act, section 63-30-9, has waived the District’s blanket immunity.

However, the parties disagree as to whether the Act provides an exception to the waiver provisions of section 63-30-9 that results in the District’s retaining immunity from Taylor’s claims. The District contends that both the assault and the discretionary function exceptions of section 63-30-10 apply to the facts of this case. Taylor argues that they do not.

With regard to the assault exception of section 63-30-10(l)(b), Taylor maintains that this exception should not apply where, as in this case, the injuries have a greater link to a dangerous and defective condition in a public building than to the assault and where the assault was unrelated to the conduct of a government employee. The District responds that the exception should apply because Zachary was injured as a direct result of Trenton’s assault upon him and, therefore, Zachary’s injuries must be said to have “ar[isen] out of [an] assault.” Utah Code Ann. § 63-30-10(l)(b) (1989).

In analyzing the parties’ positions, we must keep in mind that “the legislature has recognized the necessity of immunity as essential to the protection of the state in rendering the many and ever increasing number of governmental services.” Epting v. State, 546 P.2d 242, 243 (Utah 1976). In a prefatory section of the Act, the legislature made this abundantly clear:

Except as may be otherwise provided in this chapter, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function.

Utah Code Ann. § 63-30-3 (1989) (emphasis added). As this court explained in Holt v. Utah State Road Commission, 30 Utah 2d 4, 6, 511 P.2d 1286, 1288 (1973), overruled on other grounds, Colman v. Utah State Land Board, 795 P.2d 622 (Utah 1990), “This ... indicate^] an intention that the act be strictly applied to preserve sovereign immunity.” We will therefore apply the assault exception accordingly.

The assault exception retains immunity from suit “if the injury ... arises out of assault.” Utah Code Ann. § 63-30-10(l)(b) (1989). In applying this exception, we assume that “each term ... was used advisedly; thus the ... words are read literally, unless such a reading is unreasonably eon-fused or inoperable.” Savage Indus., Inc. v. Utah State Tax Comm’n, 811 P.2d 664, 670 (Utah 1991). The issue in this case is whether Zachary’s injuries “ar[ose] out of’ Trenton’s assault.

In ordinary usage, the words “arises out of’ import a concept of causation. “‘The term “arising out of’ is ordinarily understood to mean originating from, incident to, or connected with the item in question.’ ” National Farmers Union Property & Cas. Co. v. Western Cas. & Sur. Co., 577 P.2d 961, 963 (Utah 1978) (quoting Rouse v. Greyhound Rent-A-Car, Inc., 506 F.2d 410, 414 (5th Cir.1975)).

“[Tjhe words ‘arising out of are very broad, general and comprehensive. They are commonly understood to mean originating from, growing out of, or flowing from, and require only that there be some causal relationship between the injury and the risk [provided for].”

Id. (quoting Lawver v. Boling, 71 Wis.2d 408, 238 N.W.2d 514, 518 (1976)); see also Murdock v. Dinsmoor, 892 F.2d 7, 8 (1st Cir.1989); Orsini v. Industrial Comm’n, 117 Ill.2d 38, 109 Ill.Dec. 166, 169, 509 N.E.2d 1005, 1008 (1987). Thus, for the District to be immune from liability for Zachary’s injuries, the injuries must have had some causal link to the assault upon him. In other words, his injuries must have originated from, grown out of, or flowed from the assault.

Strict application of the literal meaning of the assault exception reveals a sufficient causal link between Zachary’s injuries and the assault perpetrated upon him. The un-eontroverted facts show that the nerve and tendon damage to Zachary’s hand was the result of his being shoved into the window by a fellow student. Thus, Zachary’s injuries originated from, grew out of, and flowed from Trenton’s violent conduct. Moreover, it is undisputed that Trenton’s actions amounted to an assault. He was charged with and convicted of assault in juvenile court. Therefore, Zachary’s injuries arose out of the assault.

Taylor maintains that the assault exception should not apply because Zachary’s injuries have a greater link to the dangerous window in the restroom than to Trenton’s assault. However, “arises out of’ within the assault exception “‘is a phrase of much broader significance than “caused by.” ’ ” National Farmers Union, 577 P.2d at 963 (quoting Hartford Accident & Indem. Co. v. Civil Serv. Employees Ins. Co., 33 Cal.App.3d 26, 108 Cal.Rptr. 737, 741 (1973)). Under the phrase’s ordinary meaning, the assault need not be the sole cause of the injury to except the governmental entity from liability for the injury. See id. The language demands “ ‘only that there be some causal relationship between the injury and the risk’ ” provided for. Id. (emphasis added) (quoting Lawver, 238 N.W.2d at 518). In this case, there is undoubtedly “some” causal relationship between Zachary’s injury and Trenton’s assault upon him. But for the assault, Zachary’s injuries would not have occurred.

Taylor also argues that the assault exception should not apply because the assault was unrelated to the actions of government employees. Taylor contends that section 63-30-10 of the Utah Code does not apply to the actions of nonemployees because the statute refers to employees, but nowhere does it refer to the conduct of nongovernment employees. In so arguing, Taylor attempts to distinguish this ease from this court’s previous decisions holding governmental entities immune from suit under the assault exception even though the assault was committed by a nongovernment employee. See Tiede v. State, 915 P.2d 500, 502-03 (Utah 1996); Malcolm v. State, 878 P.2d 1144, 1146-47 (Utah 1994); S.H. v. State, 865 P.2d 1363, 1364-65 (Utah 1993); Higgins v. Salt Lake County, 855 P.2d 231, 240-41 (Utah 1993); Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1165-67 (Utah 1993). Taylor contends that in each of these eases, the negligence of a government employee or entity caused the assault that resulted in the injury. See, e.g., Tiede, 915 P.2d at 501 (plaintiffs alleged that State was negligent in failing to apprehend escaped convicts who, while fugitives, killed plaintiffs’ relatives). Taylor argues that in this case, there is no such allegation and, therefore, these cases should not control.

However, the difference Taylor points out between this ease and this court’s previous cases concerning assaults perpetrated by nongovernment assailants is inconsequential. In many of those cases, this court found the allegations of negligence on the part of the governmental entity immaterial. We concluded that such allegations were merely “attempts to evade the statutory categories by recharacterizing the supposed cause of the injury” and were summarily rejected. Tiede, 915 P.2d at 502; see also Malcolm, 878 P.2d at 1146-47; S.H., 865 P.2d at 1365; Petersen v. Board of Educ. of Davis County Sch. Dist., 855 P.2d 241, 243 (Utah 1993) (per curiam); Ledfors, 849 P.2d at 1166. The focus in those decisions was on the conduct of the assailants and whether their actions amounted to assaults. See Tiede, 915 P.2d at 502-03; Malcolm, 878 P.2d at 1147; Higgins, 855 P.2d at 241; Ledfors, 849 P.2d at 1166-67. The conduct of the governmental entities played no part in the court’s analyses or conclusions that because of the assailants’ violence, the governmental entity was immune from suit. Thus, these decisions are controlling and demand that we reject Taylor’s argument.

Taylor also argues that to the extent these decisions cannot be distinguished, they should be overturned. She argues that section 63-30-10 refers only to the conduct of government employees, not to the conduct of nongovernment employees. Thus, she concludes, the assault exception should apply only when a government employee commits the assault. However, our prior cases make clear that the statutory language of the assault exception places no importance on the status of the assailant. “[T]he [Act], especially section 63-30-10, focuses on the conduct or situation out of which the injury arose, not on the status of the party inflicting the injury.” S.H., 865 P.2d at 1365 (citing Ledfors, 849 P.2d at 1166); see also Petersen, 855 P.2d at 243.

This proposition is confirmed by subsections of section 63-30-10 that undoubtedly encompass conduct of those not affiliated with the government. For example, section 63-30-10(l)(g) (1989) excepts liability for injuries “aris[ing] out of or resulting] from riots, unlawful assemblies, public demonstrations, mob violence, and civil disturbances.” Section 63 — 30—10(l)(j) (1989) excepts liability if the injury “arises out of the incarceration of any person in any state prison, county, or city jail or other place of legal confinement.” Thus, these subsections demonstrate that although section 63-30-10 does not specifically refer to the conduct of those not affiliated with the government, the legislature intended to retain immunity for certain injuries arising out of the conduct of such persons.

Finally, the fact that the assault exception is not expressly limited to assaults by government-affiliated persons requires that the exception include injuries caused by nongov-ernment assailants. The Act and this court’s prior decisions demand that “the act be strictly applied to preserve sovereign immunity.” Holt, 30 Utah 2d at 6, 511 P.2d at 1288; see Utah Code Ann. § 63-30-3 (1989). In the codification of the assault exception, “[n]othing suggests that the one committing the assault need be a governmental employee.” Higgins, 855 P.2d at 240. Thus, applying the exception strictly to preserve sovereign immunity, its protective sweep must be applied to include assaults committed by non-government assailants.

We therefore hold that the trial court did not err in granting the District summary judgment. The undisputed facts show that the injury for which Taylor seeks compensation arose out of an assault, and the District is therefore immune from suit under the assault exception to the Act. Because we affirm the trial court’s summary judgment on this ground, we need not decide whether the District qualifies for governmental immunity under the discretionary function exception.

CONCLUSION

We conclude that the trial court correctly granted the District summary judgment pursuant to the assault exception of the Act. We therefore affirm.

ZIMMERMAN, C.J., and HOWE, J., concur in Justice RUSSON’s opinion.

1 . Taylor also asserted a claim against Marsha Leo, Trenton's mother, but that claim is not involved here.

2 . Following the 1991 amendments, section 63-30-9 now provides:

Unless the injury arises out of one or more of the exceptions to waiver set forth in Section 63-30-10, immunity from suit of all governmental entities is waived for any injury caused from a dangerous or defective condition of any public building, structure, dam, reservoir, or other public improvement.

3 . The assault exception now provides:

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, in connection with, or results from:

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(2) assault ...[.]

Utah Code Ann. § 63-30-10(2) (Supp.1996).

4 .Initially, the trial court denied the motion due to its misconception that the restroom window was in violation of the Uniform Building Code as adopted in Utah. After the District demonstrated in its motion for reconsideration that the District had not violated the building code, the trial court amended its prior ruling and granted the District's motion for summary judgment.

5 . The discretionary function exception now provides:

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, in connection with, or results from:

(1) the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abusedf.]

Utah Code Ann. § 63-30-10(1) (Supp.1996).