Epting v. State , 1976 Utah LEXIS 752 ( 1976 )

CROCKETT, Justice:

Plaintiffs, minor children of Cynthia Epting Mitchell, sue the State alleging that it was negligent in allowing Michael Hart, a prisoner in the state prison, to escape and become involved in killing their mother. The trial court granted defendant’s motion to dismiss. Plaintiffs appeal, seeking to have the case remanded for trial.

For the purpose of considering defendant’s motion to dismiss we accept the plaintiffs’ statement of facts.¹

In October 1974, prisoner Michael Hart had been granted the privilege of being on a “work release” program. Each work day morning he was released from the prison and driven to his work at Uvalco, Inc., in Orem, and was then picked up after work and brought back to the prison. On October 10, Hart escaped and later in the evening (detail not material here) became involved in the killing of Cynthia Epting Mitchell, for which crime he was also later convicted.

The plaintiffs contend that the State was negligent in failing to use due care in keeping the prisoner Hart incarcerated or under surveillance and that this failure proximately caused the death of their mother.

A threshold issue is whether the state’s immunity from such a cause of action is waived by the Utah Government Immunity Act.² The part of the act which both parties agree is crucial to the issue just stated is Section 63-30-10, U.C.A.19S3:

Waiver of immunity — Injury caused by negligent act or omission of employee —Exceptions.—Immunity from suit of all governmental entities is waived, for injury proximately caused by negligent act or omission of an employee committed within the scope of his employment except if the injury:

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

* * * * * *

(10) arises out of the incarceration of any person in any state prison, county or city jail or other place of legal confinement, or

* * * * * *

The trial court’s ruling included a recital that “the provable facts under plaintiffs’ complaint conclusively show” that plaintiffs’ claim arises out of the exercise of a “discretionary function”; and also that it arises out of the “incarceration of a person in the state prison,” within the meaning of the underscored phrases just quoted. Plaintiffs argue that the trial court erred in both grounds of his ruling just stated.

In approaching the analysis of the opposing contentions it is well to have 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. In a prefatory section of the act, 63-30-3, U.C.A.19S3, it has provided that:

Except as may be otherwise provided in this act, all governmental entities shall be immune from suit for any injury which may result from the activities of said entities wherein said entity is engaged in the exercise and discharge of a governmental function.

The decisions of this court,³ and other states,⁴ have indicated recognition of the principle that where there is thus a general preservation of governmental immunity, any exception must be found to be clearly stated within the provisions of the act.

In regard to the problem: whether the placing of a prisoner in a “work release” program comes within subsection (1) above quoted as “the exercise . [of] ... a discretionary function, . ,” we make the following observations: The prison authorities are faced with the dilemma which has always existed in penal institutions: as to what extent they are furnishing an education for further crime, or for the rehabilitation of prisoners into useful citizenship. We think there is not much doubt that the use of work release programs is a worthwhile effort toward the latter objective. But that is within the discretion of the prison authorities to decide. In addition to the exercise of this judgment as to the value and practicability of such a program generally, there are problems about its advisability as to each individual prisoner. In order to weigh the positive values of possible benefit for him in such a program against the negative factors such as the likelihood of his escaping and engaging in more antisocial conduct, it is essential to consider the various aspects of his personality: his intelligence, aptitudes and qualities of character such as honesty, integrity and industry; and whether he has demonstrated a sincere desire to rehabilitate himself so that there is a reasonable probability that he will succeed. Accordingly, we agree with the view of the trial court that the handling of the prisoner Michael Hart was something which “arises out of the exercise of a discretionary function”⁵ for which subsection (1) of Section 63-30-10 quoted above has retained sovereign immunity.

The foregoing adequately supports the ruling of the trial court. But the ruling was also based on subsection (10) of Section 63-30-10 quoted above, which leaves the protection of sovereign immunity for injuries which arise out of incarceration in the state prison. We therefore make this further comment: As to the status of Michael Hart vis-a-vis the state prison, there seem to be just two alternatives, either: (a) He had totally escaped the control of the prison and was thus acting on his own so the prison was not responsible for him; or (b) he was still under the control of the prison authorities so that his conduct would “arise out of the incarceration of any person in [the] state prison . . .” in which latter instance the prison is immune from suit under the statute.

Because of our agreement with the trial court, as above explained, on the fundamental proposition upon which any further proceeding against the state by the plaintiffs must depend, we do no more than mention other critical problems which would be confronted in order for the plaintiffs to recover, viz: whether there was any negligence on the part of the prison officials; whether the killing of Cynthia Epting Mitchell was something which could reasonably be foreseen and therefore could be found to be a proximate result of such negligence; and the additional ground cited by the trial court, that the plaintiffs had failed to file an undertaking as required by Section 63-30-19, U.C.A.1953. (All emphasis herein ours.)

Affirmed. No costs awarded.

HENRIOD, C. J., and ELLETT, J., concur.

1 . Malmstrom v. Olsen, 16 Utah 2d 316, 400 P.2d 209 (1965) ; Ewan v. Butters, 16 Utah 2d 272, 399 P.2d 210 (1965).

2 . Title 63, Chapter 30, U.C.A.1953.

3 . See Holt v. Road Commission, 30 Utah 2d 4, 511 P.2d 1286; Sheffield v. Turner, 21 Utah 2d 314, 445 P.2d 367.

4 . In Lively v. City of Blaekfoot, 91 Idaho 80, 416 P.2d 27; Schrader v. Veatch, 216 Or. 105, 337 P.2d 814 (1959) ; Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 177 P.2d 397 (1947) ; and Los Angeles Cornty v. Riley, 20 Cal.2d 652, 128 P.2d 537; Williams v. Board of County Commissioners of Rice County, 192 Kan. 548, 389 P.2d 795.

5 . See Evangelical United Breth. Church of Adna v. State, 67 Wash.2d 246, 407 P.2d 440; and Danner v. United States, D.C., 114 F. Supp. 477.