Scott Ex Rel. Scott v. School Board of Granite School District , 1977 Utah LEXIS 1230 ( 1977 )

HALL, Justice:

This is an appeal from a summary judgment in favor of defendants on an action alleging negligence causing injury to the minor’s finger which ultimately resulted in amputation.

The injury was sustained on December 20, 1974, while a member of a shop class at Valley Junior High School. The minor plaintiff was in the process of changing a drive belt on a drill press when a fellow student turned on the press.

Notice and claim for compensation was forwarded to defendant School Board on March 26, 1975, and because of defendant’s inaction suit was filed. Defendant School Board responded by motion to dismiss for failure to comply, or allege compliance, with the applicable statute¹ and at the hearing thereof orally moved to have the motion considered as one for summary judgment pursuant to Rule 12(b), U.R.C.P. This motion was granted without objection nor did plaintiffs move to amend their pleadings. The parties stipulated as to the authenticity of plaintiff’s letter notice, referred to above, mailed to defendant School Board on March 26, 1975, and received March 31, 1975, and the same was marked as an exhibit and received by the court, et seq.

Plaintiffs raise three points on appeal: (1) the differing notice requirements of Sections 12 and 13 of Title 63, chapter 30, U.C.A., 1953, creates discrimination constituting an unconstitutional denial of due process; (2) the lower court’s action in hearing the motion as one for summary judgment was contrary to Rules 12(b) and 56(b) and (c), U.R.C.P.; and (3) the minor plaintiff, being only 12 years of age, should not be barred from bringing the action.

The case of Gallegos v. Midvale City² presented a similar fact situation and this court determined that the then existing 30-day notice requirement of the statute³ did not deprive a two-year old child of due process and equal protection when the minor’s parents failed to make a timely claim. Consequently, the minor’s claim was barred, however, a strong dissenting opinion was filed citing a number of authorities to the contrary.

The Utah Legislature promptly thereafter recognized the constitutional problems inherent therein and during its 1973 session amended the statute ⁴ as it pertains to minors adding the following:

. If the person for whom a claim is made is a minor, then the claims covered by this section may be so presented within the time limits specified above or within one year after the person reaches the age of majority, whichever is longer. [Emphasis added.]

In Varoz v. Sevey⁵ this court had before it the interpretation of the notice requirements of the Governmental Immunity Act⁶ as they pertain to the claims of minors and it again held that thé minority of the plaintiff (four-year old) did not excuse failure to comply. It should be noted, however, that the decision was handed down prior to the enactment of the legislative amendment referred to above.

A further statutory provision is also involved here which is Section 78-12-36(1), U.C.A., 1953, (1975 Supp.) which reads as follows:

Effect of disability. — If a person entitled to bring an action, other than for the recovery of a real property, is at the time the cause of action accrued, either:

(1) Under the age of majority; or,

(2) Mentally incompetent and without a legal guardian; or,

(3) Imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term less than for life;—

The time of such disability is not a part of the time limited for the commencement of the action.

The foregoing section was deemed not applicable in Gallegos, footnote 2 above, nor in Greenhalgh v. Payson City,⁷ again by a divided court. The rationale adopted was that the various specific statutes of limitation take precedence over the general provisions of title 78, U.C.A., 1953, and that the specific requirement of notice takes further precedence at least as it may affect minors in the care of natural guardians.

A minor is incapable of giving notice by the very virtue of his minority, nor may he bring an action in his own behalf while a minor. He simply has no standing by statute⁸ and an action by or against a minor requires the appointment of a guardian ad litem.⁹

The parents, or natural guardians, have no specific legal duty to perform and have no responsibility to their minor off-spring other than their moral obligation. Consequently, in matters of this kind, when a parent, natural guardian, fails for one reason or another to give notice, file suit, or otherwise protect the minor’s legal interests, the minor is left completely without a remedy. This was undoubtedly one of the prime considerations which prompted the legislature to toll the statute during the minority of a claimant against municipalities. Their reason for not so providing in governmental immunity cases as we are faced with here is entirely unclear. However, the general legislative intent to protect the causes of minors is abundantly clear by said amendment and the specific provisions of the general statute of limitations.

Notwithstanding the prior pronouncements of this court, a minor claimant is justly entitled to the protection afforded by said Section 78-12-36(1j, U.C.A., 1953, in all cases, including notice requirements of the type contained in the Utah Governmental Immunity Act. To hold otherwise is a denial of due process and equal protection.

Having so concluded, the Court does not reach the remaining assignments of error.

The summary judgment is vacated and set aside and the case is remanded for further proceedings consistent herewith. No costs awarded.

ELLETT, C. J., and MAUGHAN and WILKINS, JJ., concur.

1 . Section 63-30-1, U.C.A., 1953, “Utah Governmental Immunity Act.”

2 . 27 Utah 2d 27, 492 P.2d 1335 (1972).

3 . Section 10-7-77, U.C.A., 1953.

4 . Section 10-7-77, U.C.A., 1953 (1975 Supp.).

5 . 29 Utah 2d 158, 506 P.2d 435 (1973).

6 . Section 63-30-13, U.C.A., 1953.

7 . Utah, 530 P.2d 799 (1975).

8 . Section 15-2-1, U.C.A., 1953 (1975 Supp.): “The period of minority extends in males and females to the age of eighteen years; . .

9 . U.R.C.P., Rule 17(b): “When an infant . is a party, he must appear either by his general guardian, or by guardian ad litem . . ..”