Kouris v. Utah Highway Patrol , 473 Utah Adv. Rep. 7 ( 2003 )

WILKINS, Justice,

dissenting opinion:

I 19 I respectfully dissent.

120 I agree that under the statutory language of section 41-6-14, the privileges of the emergency vehicle exception to the waiver of governmental immunity for negligent acts applies only when the vehicle's operator "uses a visual signal as defined under Section 41-6-132." I also agree that the statutory language of section 41-6-1382 clearly requires the visual signal to be of an intensity to be "visible at 500 feet in normal sunlight." However, I do not agree that the description of the intensity of the visual signal, "visible at 500 feet in normal sunlight," mandates that the signal be activated to give an actual warning from at least 500 feet away to the public that an emergency response is in progress. To do so would make the first 500 feet of any emergency vehicle's movement subject to liability, since it would be impossible under the majority opinion's interpretation of the statute to claim that any person within that first 500 feet had the required advance notice that the vehicle was in the process of an emergency response. This seems inconsistent with the clear intent of the statutory scheme.

{21 Moreover, how would this interpretation be applied to cireumstances where, despite the adequacy of the intensity of the emergency signal, the weather conditions, traffic conditions, the relative location of structures or obstacles, or some other factor, simply prevented observation of the visual signal from a distance of 500 feet? What if the injured plaintiff in an action is visually impaired in some fashion, does that modify the requirement? 'To what degree does the ordinary inattention of a child crossing the street, perhaps in mid-block, affect the determination of what constitutes a reasonable degree of advance notice to the public? These are concerns raised by the new standard adopted in the majority opinion. They are not addressed. Perhaps a "reasonable person" standard must be applied to the person making a claim, to determine if there was sufficient time to see the vehicle within 500 feet. I do not believe the statutory scheme at issue here contemplates such an analysis.

{22 The loss of the life of a child is a tragedy. The loss of young Michael Kouris no doubt has, and will continue to touch the lives of not only his family, friends, and community, but also Trooper Childs, his family, his friends, and his community. However, the question before us is not the degree of harm done to Michael and his parents, but one of application of policy choices already made by our legislature. It is not our place to revise those choices. The statutory language of section 41-6-14 requires that an emergency vehicle be equipped with lights that are powerful enough to be seen from 500 feet away in normal sunlight. It is silent as to when the lights must be activated, or what consideration is required regarding the objective or subjective ability and opportunity of another to observe the lights.

1 23 Associate Chief Justice DURRANT concurs in Justice WILKINS dissenting opinion.