Mallory v. Brigham Young University , 715 Utah Adv. Rep. 53 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Randal Roy Mallory, ) OPINION
)
Plaintiff and Appellant, ) Case No. 20100991‐CA
)
v. )
) FILED
Brigham Young University, Sarah ) (August 23, 2012)
Robinson, and Does I‐X, )
) 2012 UT App 242Defendants and Appellees. )
‐‐‐‐‐
Fourth District, Provo Department, 090403834
The Honorable Claudia Laycock
Attorneys: Curtis L. Wenger, Salt Lake City, for Appellant
Steven M. Sandberg, Provo, for Appellee Brigham Young University
‐‐‐‐‐
Before Judges McHugh, Voros, and Christiansen.
McHUGH, Presiding Judge:
¶1 Randal Roy Mallory appeals from the trial court’s order dismissing his First
Amended Complaint (the Complaint) for lack of subject matter jurisdiction due to
Mallory’s failure to file a notice of claim under the Governmental Immunity Act of Utah
(the GIAU).1 See Utah Code Ann. § 63G‐7‐401 (2011).2 Mallory contends that the trial
1. This case was filed in the Third District Court for Salt Lake County and later
transferred to the Fourth District Court for Utah County. We use the term “trial court”
to refer to the Fourth District Court.
2. The Governmental Immunity Act of Utah has been renumbered and amended since
Mallory’s cause of action arose in April 2008. Because there have been no substantive
(continued...)
court erred in concluding that the GIAU provides immunity to defendants, Brigham
Young University (BYU) and Sarah Robinson (collectively, Defendants), and that the
trial court exceeded its discretion by denying Mallory’s motion to conduct additional
discovery. We affirm in part, and reverse and remand in part, for further proceedings
consistent with this opinion.
BACKGROUND3
¶2 On April 12, 2008, after a football game, Mallory was waiting on his motorcycle
to enter a public street from a BYU parking lot. Robinson, acting as a BYU traffic cadet,
directed Mallory to make a left turn onto University Avenue. Upon entering University
Avenue, Mallory’s motorcycle and an automobile driven by Vern Stratton collided.
Mallory suffered serious bodily injury and incurred economic damages as a result of the
accident.
¶3 On July 13, 2009, Mallory filed the Complaint4 in the Third Judicial District Court
for Salt Lake County, alleging that BYU, Robinson, other unidentified “agent[s] and
employee[s] of BYU,” and Stratton acted negligently.5 On August 7, 2009, Defendants
filed an answer to the Complaint that included the following affirmative defense:
Plaintiff’s claims are barred by Utah Code Title 63G, Chapter
7. The Defendant Robinson was at all times pertinent to the
Plaintiff’s Complaint, an agent of Provo City, State of Utah.
No Notice of Claim has been filed with, nor served upon,
Provo City, regarding the Plaintiff’s claims.
¶4 With the answer, BYU filed a Motion for Change of Venue, seeking to have the
case transferred to the Fourth District Court in Utah County. In a supporting
2. (...continued)
changes to the relevant code sections, we cite the current code for the convenience of the
reader.
3. We state the facts as set forth in the Complaint unless otherwise indicated.
4. Mallory filed his initial complaint on February 17, 2009.
5. Stratton, who was a named defendant in the Complaint, is not a party to this appeal.
20100991‐CA 2
memorandum, BYU argued that Utah County was more convenient because BYU is
headquartered there, all the defendants reside there, and the accident occurred there.
Mallory countered that some witnesses reside in Salt Lake County and also expressed
concern that it would be difficult to find an unbiased jury in Utah County because of
BYU’s prominence there. However, Mallory did not provide any detail about the
number of witnesses in Salt Lake County compared to the number in Utah County in
his opposition papers. Relying on the briefing of the parties without argument, the
Third District Court granted the change of venue. As a result, the matter was
transferred to the Fourth District Court and assigned to Judge Claudia Laycock.
¶5 On February 12, 2010, Defendants filed a Motion to Dismiss for Lack of Subject
Matter Jurisdiction (the Motion to Dismiss) under rule 12(b)(1) of the Utah Rules of
Civil Procedure. In a supporting memorandum, they argued that the trial court lacked
subject matter jurisdiction because Mallory had not filed a notice of claim as required by
the GIAU. According to Defendants, a notice of claim was required to confer subject
matter jurisdiction on the court because Robinson was acting as a servant or agent of
Provo City at the time of the accident. In support of the Motion to Dismiss, Defendants
filed an affidavit of a peace officer employed by BYU (Peace Officer). Peace Officer’s
affidavit indicated that the “University Police ha[d] been certified by the commissioner
of the Department of Public Safety as a law enforcement agency according to the rules
of the Department of Public Safety,” and that Robinson was a trained traffic cadet who
was directing traffic on Provo’s public streets after a BYU football game.
¶6 In his opposition memorandum, Mallory argued that “the inclusion of facts
outside the four corners of the [C]omplaint either require[d] a denial of [Defendants’]
motion [to dismiss] or the motion must be treated as one for summary judgment.”6 In
addition, Mallory requested that resolution of the Motion to Dismiss be deferred until
after the completion of additional discovery as allowed by rule 56(f) of the Utah Rules
of Civil Procedure. Finally, Mallory claimed that summary judgment was
inappropriate, even in the absence of additional discovery, because there were material
issues of disputed fact and because the Defendants were not entitled to judgment as a
matter of law.
6. Mallory also claimed that Defendants had raised “an affirmative defense, like a
qualified privilege, for the first time in [the] motion to dismiss.” As noted previously,
Defendants raised the absence of a notice of claim under the GIAU as an affirmative
defense in the answer to the Complaint. See supra ¶ 3. Consequently, we do not
address this argument further.
20100991‐CA 3
¶7 On March 29, 2010, Defendants filed a reply memorandum supporting their
motion to dismiss, which was supported by a supplemental affidavit of Peace Officer.
The supplemental affidavit indicated that Peace Officer was Robinson’s supervisor and
related details of his supervision of her on the night of the accident.
¶8 The trial court set oral argument on the motion to dismiss for May 10, 2010. The
transcript from those proceedings indicates that Judge Laycock began with what she
referred to as her “usual disclaimer on BYU cases.” Judge Laycock provided a detailed
account of her association with BYU, both as the daughter of a BYU orchestra conductor
and as an alumna of its undergraduate and law schools, and further explained that any
of the parties could move to disqualify her from presiding over the case. In response to
Judge Laycock’s disclosures, Mallory’s counsel stated, “I certainly am perfectly
comfortable with you on the bench,” but indicated he would raise the issue with his
client. However, he then asserted that he “certainly want[ed] to follow through with
today’s hearing.” With that assurance, Judge Laycock entertained arguments on the
motion, eventually taking the matter under advisement.
¶9 On July 2, 2010, the trial court entered a Memorandum Decision, Conclusions of
Law, and Order on the Motion to Dismiss. First, the court rejected Mallory’s argument
that Defendants’ reliance on matters outside the Complaint, including Peace Officer’s
affidavits, converted the motion into one for summary judgment or mandated that the
court grant Mallory’s rule 56(f) motion for additional discovery. The trial court then
concluded that “[b]ecause Robinson was directing traffic under color of Provo City’s
authority, she is an employee of Provo City who is entitled to governmental immunity
under the [GIAU].” Consequently, the trial court ruled that Mallory’s failure to file a
notice of claim as required by the GIAU “strip[ped it] of subject matter jurisdiction.”
On October 25, 2010, the trial court entered an Order and Final Judgment dismissing the
claims against Defendants for lack of subject matter jurisdiction. Mallory filed a timely
appeal.
ISSUES AND STANDARDS OF REVIEW
¶10 On appeal, Mallory challenges the trial court’s denial of his rule 56(f) motion for
additional discovery. “To the extent this issue requires us to interpret rules of civil
procedure, it ‘presents a question of law which we review for correctness.’” Harris v.
IES Assocs., Inc., 2003 UT App 112 , ¶ 25, 69 P.3d 297 (quoting Nunley v. Westates Casing
Servs., Inc., 1999 UT 100, ¶ 42, 989 P.2d 1077). We review the trial court’s denial of a
request for additional discovery under rule 56(f) of those rules for an abuse of
discretion, and will “overturn it only if the denial of the motion exceed[s] the limits of
20100991‐CA 4
reasonability.” See Petersen v. Riverton City, 2010 UT 58, ¶ 25, 243 P.3d 1261 (alteration
in original) (internal quotation marks omitted).
¶11 In addition, Mallory argues that the trial court erred in granting Defendants’
Motion to Dismiss for Lack of Subject Matter Jurisdiction. “Compliance with the [Utah
Governmental] Immunity Act is a prerequisite to vesting a district court with subject
matter jurisdiction over claims against governmental entities. Accordingly, a district
court’s dismissal of a case based on governmental immunity is a determination of law
that we afford no deference.” Wheeler v. McPherson, 2002 UT 16, ¶ 9, 40 P.3d 632(citations omitted) (interpreting the Utah Governmental Immunity Act (the UGIA), the
predecessor statute to the GIAU).
¶12 Finally, Mallory contends that the Third District Court erred when it granted
BYU’s request for a change of venue. “Absent a clear abuse of discretion, we will not
disturb a trial court’s ruling on a motion to change venue. We will reverse such a
decision only if it exceeds the bounds of reasonability.” U.S. Bank Nat’l Ass’n v. HMA,
LC, 2007 UT 40, ¶ 30, 169 P.3d 433 (internal quotation marks omitted).
ANALYSIS
I. The Motion to Dismiss Was Not Converted to a Motion for Summary Judgment.
¶13 Mallory argues that, by relying on facts not set forth in the Complaint,
Defendants converted the motion to dismiss for lack of subject matter jurisdiction under
rule 12(b)(1) to one for summary judgment under rule 56. See generally Utah R. Civ. P.
12(b)(1) (motion to dismiss for lack of subject matter jurisdiction); id. R. 56 (motion for
summary judgment). Rule 12(b) provides that if, in a rule 12(b)(6) motion, “matters
outside the pleading are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided in Rule 56.” See
generally id. R. 12(b). Mallory claims that Defendants relied on matters outside the
pleadings and that, therefore, he was entitled to conduct additional discovery pursuant
to rule 56(f). See id. R. 56(f) (motion for further discovery). The Utah Supreme Court
has previously rejected this argument.
¶14 In Spoons v. Lewis, 1999 UT 82, 987 P.2d 36, a plaintiff sued a district court judge
without first filing a notice of claim under the predecessor of the GIAU, the UGIA. See
id. ¶ 1; see also Utah Code Ann. §§ 63‐30‐11 to ‐13 (1997) (current version at id. §§ 63G‐7‐
401 to ‐403 (2011)). In response, the judge filed a motion to dismiss for lack of subject
matter jurisdiction supported by affidavits asserting facts not contained in the
20100991‐CA 5
Complaint. See Spoons, 1999 UT 82, ¶ 1. The trial court granted the judge’s motion to
dismiss and the plaintiff appealed, claiming that reliance on the affidavit converted the
motion to one for summary judgment. See id. ¶¶ 1, 3. The supreme court disagreed,
explaining that “[r]ule 12 . . . does not convert motions based on subsections (b)(1)
through (5) . . . into motions for summary judgment simply because they include some
affirmative evidence relating to the basis for the motion.” See id. ¶ 5; see also Wheeler
2002 UT 16, ¶ 20 (holding that reliance on affidavits in support of a rule 12(b)(1) motion
based on the plaintiffs’ failure to file a notice of claim under the UGIA did not convert
the motion to one for summary judgment).
¶15 Because Defendants’ motion to dismiss was based on lack of subject matter
jurisdiction under rule 12(b)(1), it was not converted to a summary judgment motion
when Defendants filed the affidavits. See Spoons, 1999 UT 82, ¶ 5. Thus, the provisions
of rule 12 providing for the conversion to a summary judgment motion are inapplicable,
as are the provisions of rule 56(f). See Utah R. Civ. P. 12; id. R. 56(f); see also Wheeler,
2002 UT 16, ¶ 20.
¶16 Nevertheless, uncertainty as to the facts relevant to assessing the court’s subject
matter jurisdiction will make it inappropriate to grant a motion to dismiss under rule
12(b)(1). Although the supreme court rejected Spoon’s argument that the motion to
dismiss had been converted to a summary judgment, it reversed the dismissal of
Spoon’s complaint. See Spoons, 1999 UT 82, ¶ 7. The supreme court explained that the
complaint alleged generally that the judge had engaged in a conspiracy but did not
include enough factual detail to determine the context in which the judge allegedly did
so. See id. It concluded that the dismissal was premature because, if the plaintiff
can maintain any viable claims that [the judge] engaged in a
conspiracy occurring outside the performance of her duties,
not within the scope of her employment, and not under color
of authority, the [UGIA’s] notice of claim provisions would
not apply. In such a case, the district court would have
jurisdiction to entertain the suit.
Id. Here, Mallory argues that Defendants are not protected by the GIAU and that,
therefore, the trial court has subject matter jurisdiction over his claims. On appeal, we
must decide whether the trial court correctly concluded that the facts alleged in the
Complaint, together with the affidavits, establish that Defendants were protected by the
GIAU, including its notice of claim requirements.
II. Agents Must Be Under the Significant Control of a Governmental Entity to Be
20100991‐CA 6
Entitled to GIAU Immunity.
¶17 When interpreting this state’s statutes, our goal is to give effect to the intent of
the Utah Legislature. See Harold Selman, Inc. v. Box Elder Cnty., 2011 UT 18, ¶ 18, 251
P.3d 804. To discern that intent, we begin by examining the plain language of the
statute at issue. See id.; see also State v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780. If that
language, interpreted “in light of its linguistic, structural, and statutory context,” is
clear, we apply the statute accordingly. See Olsen v. Eagle Mountain City, 2011 UT 10,
¶ 9, 248 P.3d 465. “‘[S]tatutory construction presumes that the expression of one should
be interpreted as the exclusion of another. Thus, we should give effect to any omission
in the [statutory] language by presuming that the omission is purposeful.’” State v.
Houston, 2011 UT App 350, ¶ 12, 263 P.3d 1226 (quoting Carrier v. Salt Lake Cnty., 2004
UT 98, ¶ 30, 104 P.3d 1208).
¶18 Utah Code section 63G‐7‐201 provides, “Except as may be otherwise provided in
this chapter, each governmental entity and each [E]mployee of a governmental entity are
immune from suit for any injury that results from the exercise of a governmental
function.”7 Utah Code Ann. § 63G‐7‐201(1) (Supp. 2012) (emphasis added). Thus, this
section of the GIAU plainly states that to fall within the scope of the GIAU, an
individual must be an “[E]mployee of a governmental entity” engaged in a
“governmental function.” Id.
¶19 While Mallory concedes that “traffic direction on public roads is a governmental
function,” he disputes that the “authorization to perform a governmental function
makes the actor an agent of the government granting the authorization,” and he further
challenges the assumption that “[a]ll agents are automatically [E]mployees of the
authorizing government under the [GIAU].” In contrast, Defendants assert that the trial
court correctly concluded that they are Employees of Provo City. They first note that
BYU is a corporation and “can only act through [its] agents, be they officers or
employees.” See Orlob v. Wasatch Mgmt., 2001 UT App 287, ¶ 18, 33 P.3d 1078 (internal
quotation marks omitted). Next, they contend that because Robinson, as an employee
of BYU, was authorized by ordinance to direct post‐event traffic, they are both entitled
to immunity based on the Provo City ordinance. See Provo City, Utah, Code
7. The term “Employee,” as defined in the GIAU, is broader than the common meaning
of employee, and includes “a governmental entity’s officers, employees, servants,
trustees, or commissioners,” regardless of whether or not those positions are paid. See
Utah Code Ann. § 63G‐7‐102(2) (2011). For the convenience of the reader, when
referring to the term as used in the GIAU, we use “Employee,” and when referring to
the common meaning of the term, we use “employee.”
20100991‐CA 7
§ 9.10.060(2)‐(3) (2012). In particular, Defendants argue that they were acting as
servants or agents of Provo City. See Utah Code Ann. § 63G‐7‐102(2)(a)(i), ‐201(1) (2011
& Supp. 2012) (granting immunity from suit to government Employees, including
“servants,” when performing a “governmental function”).
¶20 To determine whether Defendants are Employees of Provo City, “we must read
the plain language of the [definition section of the GIAU] as a whole” and “construe
[its] provisions in harmony with other provisions in the [GIAU].” See Archuleta v. St.
Mark’s Hosp., 2009 UT 36, ¶ 8, 238 P.3d 1044 (internal quotation marks omitted). Section
63G‐7‐201 provides immunity to a governmental entity and its Employees for “any
injury that results from the exercise of a governmental function.” See Utah Code Ann.
§ 63G‐7‐201(1). In turn, a “governmental function” is defined as “each activity,
undertaking, or operation performed by a department, agency, employee, agent, or
officer of a governmental entity.” See id. § 63G‐7‐102(4)(b) (emphasis added). Thus, the
scope of immunity provided under the GIAU explicitly includes protection to a
governmental entity and its Employees for claims arising out of the acts of the entity’s
agents. However, the only individuals entitled to assert that immunity are those who
are classified as a governmental entity’s Employees. See id. § 63G‐7‐102(2)(a), ‐201(1)
(providing that “each governmental entity and each [E]mployee of a governmental
entity are immune from suit”). The definition section of the GIAU provides in relevant
part, “‘Employee’ includes: . . . a governmental entity’s officers, employees, servants,
trustees, or commissioners . . . whether or not the individual holding that position
receives compensation.” Id. § 63G‐7‐102(2)(a), (b) (emphases added). And the statute
further indicates that “‘Employee’ does not include an independent contractor.” Id.
§ 63G‐7‐102(2)(c).
¶21 Although the Utah Legislature did not expressly list “agent” as an example of an
“Employee” who is entitled to immunity, Defendants ask us to assume that the Utah
Legislature inadvertently omitted that term and intended to grant immunity to both
servants and all other agents. Compare id. § 63G‐7‐102(2) (listing who may qualify as an
Employee under the GIAU), with id. § 63G‐7‐104(4)(b) (providing that governmental
functions include acts performed by a governmental entity’s agents), and id. § 63G‐7‐
201(1) (providing immunity to governmental entities and Employees for injuries
resulting from “the exercise of a governmental function”). They contend that the
legislature’s use of the word “includes” in the definition of “Employee” indicates that
the list provided is not exclusive. See, e.g., Boyle v. Christensen, 2011 UT 20, ¶ 27, 251
P.3d 810 (“When ‘including’ precedes a list, its common usage is to indicate a partial
list.” (citing Black’s Law Dictionary 777‐78 (8th ed. 2004))). While the use of “includes”
does generally indicate a nonexhaustive list, it does not justify adding terms that are
“inconsistent with the manifest intent of the Legislature” or “repugnant to the context of
20100991‐CA 8
the statute.” See Utah Code Ann. § 68‐3‐12 (1)(a), (f) (2011). Thus, we must “look to the
reason, spirit, and sense of the legislation, as indicated by the entire context and subject
matter of the statute” when we consider whether such a contrary intent is evident here.
See In re Marriage of Gonzalez, 2000 UT 28, ¶ 23, 1 P.3d 1074 (internal quotation marks
omitted). In doing so, we do not lightly assume that the legislature overlooked
“agents” when listing examples of governmental Employees, but remembered to
include it in the definition of governmental function located in the same section of the
GIAU. Compare Utah Code Ann. § 63G‐7‐102(2)(a) (defining “Employee”), with id.
§ 63G‐7‐102(4)(b) (defining “[g]overnmental function”). Rather, we begin with the
assumption that the different terms were used advisedly. See Due South, Inc. v.
Department of Alcoholic Beverage Control, 2008 UT 71 , ¶ 33, 197 P.3d 82.
¶22 The only listed category of Employee upon which Defendants rely is “servants.”
See Utah Code Ann. § 63G‐7‐102(2)(a). In addition, they contend that as Provo City’s
agents for traffic direction, they are immune by implication even if they do not fall
within an express category of Employees. To determine whether the GIAU includes all
agents as Employees, we first compare the reach of the statute if only servants of a
governmental entity are included as Employees to its reach if all agents are also entitled
to immunity. Second, we review whether any limitation created by including only
servants is consistent with the legislative purpose of the GIAU. Finally, we interpret the
GIAU consistent with that purpose to determine whether the trial court was correct in
dismissing the Complaint.
A. The Difference Between Servants and Agents
¶23 The Utah Supreme Court has long recognized that “a servant is defined as a
‘person employed to perform service for another in his affairs and who, with respect to
his physical conduct in the performance of the service, is subject to the other’s control or
right to control.’” Dowsett v. Dowsett, 116 Utah 12, 207 P.2d 809, 811 (1949) (quoting
Restatement (First) of Agency § 220 (1933)); see also Black’s Law Dictionary 1490‐92 (9th
ed. 2009) (defining servant as “[a] person who is employed by another to do work
under the control and direction of the employer”). Servants include both employees
and “agents with limited powers.” See Intermountain Speedways, Inc. v. Industrial
Commʹn, 101 Utah 573, 126 P.2d 22, 24 (1942); see also Black’s Law Dictionary 602 (9th ed.
2009) (defining employee as “[a] person who works in the service of . . . the employer[]
under an express or implied contract for hire, under which the employer has the right to
control the details of work performance”). Accordingly, if Defendants were acting
under the control and direction of Provo City, they are agents of the city acting as its
servants and are expressly covered by the GIAU.
20100991‐CA 9
¶24 The term “agent” is susceptible to both a broad and narrow meaning. Under its
expansive definition, “agent” can be used generally to refer to “[o]ne who is authorized
to act for or in place of another; a representative.” Black’s Law Dictionary 72 (9th ed.
2009); see also Restatement (Third) of Agency § 1.01 cmt. b (2006) (noting that “agency”
is often used in a broad sense to include “parties who serve any intermediary
function”). This use of the term covers a broad spectrum of relationships, ranging from
those where the principal maintains strict control to those where the agent has
significant discretion. See Restatement (Third) of Agency § 1.01 cmt. c (2006) (“[A]
person may be an agent although the principal lacks the right to control the full range of
the agent’s activities, how the agent uses time, or the agent’s exercise of professional
judgment.”). “‘An agent who is not subject to control as to the manner in which he
performs the acts that constitute the execution of his agency’” is an independent
contractor. See Dowsett, 207 P.2d at 811 (emphasis omitted) (quoting Restatement (First)
of Agency § 220 cmt. c (1933)). When agency is used in its broadest sense, independent
contractors are agents. Thus, if BYU and Provo were authorized to act for Provo City,
they are its agents in this broad sense.
¶25 However, in a more technical sense, an agency relationship requires that a
person is “authorized by another to act on his behalf and subject to his control” and a
“manifestation of consent to create an agency relationship.” See Stamper v. Johnson, 2010
UT 26, ¶ 18, 232 P.3d 514 (internal quotation marks omitted)); see also Restatement
(Third) of Agency § 1.01 (2006) (defining agency as “the fiduciary relationship that
arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’)
that the agent shall act on the principal’s behalf and subject to the principal’s control,
and the agent manifests assent or otherwise consents so to act”). When the term
“agent” is used in this strict legal sense, i.e., to denote a “true agency,” the definition
excludes relationships that allow one person to act on behalf of another, where “one or
more of the defining elements of agency are not present.” Restatement (Third) of
Agency § 1.01 cmt. b (2006). Thus, under this more restrictive definition, an agent must
be subject to the control of the principal, and an independent contractor is not an agent.
Under this definition, Defendants are only agents if they were subject to Provo City’s
control and agreed to its request that they act on the city’s behalf.
¶26 In summary, when used in its broad sense, the term agent can include all persons
acting on behalf of a governmental entity, from servants, on the closely controlled side
of the spectrum, to independent contractors, on the other extreme. Our review of the
GIAU convinces us that the Utah Legislature did not intend to extend immunity to all
agents of a governmental entity under this expansive definition.
B. The Use of the Terms “Servant” and “Agent” in the GIAU
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¶27 By listing “servants” and “employees” as examples of the types of individuals
who may invoke the protections of the GIAU, but excluding “independent contractors,”
the Utah Legislature has narrowed the applicability of the GIAU’s individual immunity
to a subset of the more expansive definition of agent. See Utah Code Ann. § 63G‐7‐
102(2)(a)(i), (2)(c) (2011). The difference between those individuals expressly included
as Employees and those explicitly excluded is the extent of the governmental entity’s
control. Where the entity can exercise the level of control to create a servant or
employee relationship, the individual is entitled to the protection of the GIAU. Cf.
Dowsett, 207 P.2d at 811. But if the governmental entity does not retain control over the
manner of performance, the individual is an independent contractor not entitled to
immunity under the GIAU. Cf. id. Accordingly, the plain language of the GIAU
includes some, but not all, broadly defined agents as Employees.
¶28 While Defendants are correct that the GIAU defines governmental function as
including the acts of all “agent[s]” of a governmental entity, the omission of that term in
the definition of “Employee” does not indicate an oversight by the Utah Legislature.
See Utah Code Ann. § 63G‐7‐102(2), (4)(b). Rather, the Legislature has simply defined
the scope of immunity under the GIAU more expansively than the group of individuals
who are protected by that immunity. While only individuals under the supervision of
the governmental entity are Employees who enjoy immunity, those Employees are
“immune from suit for any injury that results from” their own activities and the actions
of any agent of a governmental entity. See id. § 63G‐7‐201 (Supp. 2012); see also id. § 63G‐
7‐102(4)(b) (2011) (defining “[g]overnmental function” as “each activity, undertaking, or
operation performed by a department, agency, employee, agent, or officer of a
governmental entity”). This means that although an agent over whom the entity does
not exercise sufficient control to create a master‐servant relationship, such as an
independent contractor, may be sued, the plaintiff cannot bring claims against the
governmental entity or its Employees as a result of that individual’s conduct.
¶29 In the absence of immunity, a principal can be sued for direct or vicarious
liability as a result of the actions of its agent. See Restatement (Third) of Agency § 7.03
(2006) (listing the requirements for direct and vicarious liability). Furthermore, direct
liability can arise “either from the principal’s relationship with an agent whose conduct
harms a third party or from the agent’s failure to perform a duty owed by the principal
to the third party.” Id. § 7.03 cmt. b. Direct liability can also arise from the principal’s
own negligence in selecting or supervising the agent. See id. In turn, the principal is
subject to vicarious liability when its true agent “commits a tort while acting within the
scope of employment.” See id. § 7.03(2)(a); see also Diversified Holdings, LC v. Turner, 2002
UT 129, ¶ 36, 63 P.3d 686 (“‘A master is subject to liability for the torts of his servants
committed while acting in the scope of their employment.’” (quoting Restatement
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(Second) of Agency § 219 (1958))). By including the acts of a governmental entity’s
“agents” within the definition of “governmental function,” the GIAU provides
immunity from all of these claims. See Utah Code Ann. §§ 63G‐7‐102(4)(b), ‐201(1).
However, to be individually protected by the GIAU, the agent must be sufficiently
under the control of the governmental entity to qualify as its servant. See id. § 63G‐7‐
102(2). This distinction is consistent with the purpose of the GIAU.
¶30 By enacting the GIAU and its predecessor, the UGIA, “the ‘legislature has
recognized the necessity of immunity as essential to the protection of [governmental
entities] in rendering the many and ever increasing number of governmental services.’”
See Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 14, 24 P.3d 958 (quoting Epting v. State,
546 P.2d 242, 243 (Utah 1976)) (discussing the UGIA specifically and sovereign
immunity generally). Affording a governmental entity immunity for the acts of its
agents generally advances this purpose by protecting its resources for the provision of
services to the community. See generally Tindley v. Salt Lake City Sch. Dist., 2005 UT 30,
¶ 32, 116 P.3d 295 (recognizing the preservation of “the treasuries of the state and its
political subdivisions” as a “legitimate governmental purpose” under the GIAU).
However, extending immunity to an agent acting on behalf of the governmental entity,
but not under its control, does not. Unlike the governmental entity, the independent
contractor’s assets will not be used to provide public services if not paid in damages.
Consequently, barring suit against the independent agent does not further this goal of
the GIAU.
¶31 In turn, the purpose of granting immunity to individuals acting in an official
capacity “is to avoid making ‘public officials unduly fearful in their exercise of
[discretionary] authority and discourag[ing] them from taking prompt and decisive
action.’” Lyon v. Burton, 2000 UT 19, ¶ 44, 5 P.3d 616 (alterations in original) (quoting
George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum. L. Rev.
1175, 1178 (1977)), as modified by denial of rehearing, 2000 UT 55. Furthermore,
governmental entities, like corporations, can only act through individuals. By adding
“servants” to the group of persons individually covered by the GIAU, the Utah
Legislature has extended immunity to the individuals acting under the direction of the
governmental entity who do not meet the traditional definition of an employee. As a
result, both employees and servants are able to act according to the entity’s direction
without fear of being sued. In contrast, an agent acting on behalf of the governmental
entity, but not under its direction, is free to make its own decisions concerning the
performance of the task. If the agent’s independent decisions result in injury to a third
party, allowing the agent to assert immunity does not advance the governmental
entity’s interest in assuring that individuals will carry out the directives of
governmental entities.
20100991‐CA 12
¶32 For these reasons, we are convinced that the Utah Legislature carefully selected
the terms it used to define the individuals entitled to protection and the extent of the
immunity granted to them. While the immunity granted to Employees of a
governmental entity is broad enough to insulate the governmental entity and the
individuals through whom it acts from claims arising from the acts of all agents of the
entity, that immunity is not available to every agent in the broadest definition of that
term. Instead, agents not acting under the direction of the governmental entity can be
sued for their independent decisions. Because we conclude that this distinction is
consistent with the purposes of governmental immunity and the plain language of the
GIAU, we reject Defendants’ suggestion that the legislature inadvertently omitted the
term agents from the definition of Employee. Instead, the GIAU provides that agents
who are also servants due to the level of control the entity retains over their
performance are Employees, while agents who are only independent contractors are
not.
¶33 While our conclusion that the plain language of the statute itself negates the need
to consider the legislative history of the GIAU, see State v. MacGuire, 2004 UT 4, ¶ 15, 84
P.3d 1171, it also suggests that the Utah Legislature thoughtfully differentiated between
persons entitled to immunity and the scope of that protection. The predecessor to the
GIAU was originally codified in 1965.8 The act’s original definition of Employee was
“any officer, employee or servant of a governmental entity.” See Utah Code Ann. § 63‐
30‐2(4) (1968). Since then, the legislature has amended the act’s definition of Employee
several times but has not added “agent,” a term used in other provisions of the same
section of the act. Indeed, when a definition of “governmental function” was added in
1987, providing that such a function could “be performed by any department, agency,
employee, agent, or officer of a governmental entity,” see id. § 63‐30‐2(4)(b) (1989)
8. At common law, “government employees in this state were personally liable for civil
wrongs committed in a ministerial or operational capacity.” See Lyon v. Burton, 2000 UT
19, ¶ 45, 5 P.3d 616. The UGIA, first adopted in 1965, codified the common law rule but
provided that the governmental entity could purchase insurance for its employees. See
id. ¶ 50. In subsequent versions of the UGIA and the current GIAU, the Utah
Legislature extended the protection of the act to governmental employees. See, e.g.,
Utah Code Ann. § 63‐30‐4 (1993) (granting personal immunity to governmental
Employees for negligence in the course and scope of their employment); Utah Code
Ann. § 63G‐7‐201 (Supp. 2012) (providing immunity to “each [E]mployee of a
governmental entity . . . for any injury that results from the exercise of a governmental
function”).
20100991‐CA 13
(emphasis added), the legislature did not add “agent” to the list of individuals expressly
included as an Employee of a governmental entity.
¶34 In 2004, the legislature conducted a comprehensive overhaul of the immunity act,
repealing and reenacting it. See generally Jenkins v. Jordan Valley Water Conservancy Dist.,
2012 UT App 204, ¶ 84, 713 Utah Adv. Rep. 37. In so doing, it noted in the Senate
Journal that the revision was an “effort to completely repeal, rethink, reorganize and
then enact a new Governmental Immunity Act.” Senate Journal, Gen. Sess. Day 38, at
10 (Utah Feb. 25, 2004). The revision was the result of “hundreds of hours” of meetings
and drafting. See id. at 11. Again, however, the Utah Legislature did not add the term
“agents” to the express list of Employees. See Utah Code Ann. § 63‐30d‐102(2) (2004).9
In light of this careful and extensive review of governmental immunity, we are further
convinced that the Utah Legislature intentionally omitted the generic term “agents”
from the definition of “Employee.” Rather than exhibiting inadvertence, the express
exclusion of “independent contractors” and the omission of “agents” suggest that the
Utah Legislature was aware of the imprecision in the use of the term “agent” and
carefully selected language designed to limit immunity to those relationships where the
governmental entity exercises control over the manner in which the work is performed.
C. Application of the GIAU to Defendants
¶35 Defendants assert that because Robinson was authorized as a BYU employee to
direct post‐event traffic, she and BYU were acting as agents of Provo City. See Provo
City, Utah, Code § 9.10.060 (2012) (allowing “a person who is employed by a college or
university” to “direct [post‐event] traffic on public streets while under the supervision
of a peace officer employed by the same college or university”). As discussed, however,
an agency relationship alone is not enough to establish the applicability of the GIAU
and the correctness of the trial court’s dismissal of the Complaint for lack of subject
matter jurisdiction. Instead, the determination of whether the GIAU applies is
dependent on the degree of control Provo City maintained over Defendants’ traffic
control activities. For example, the indicia of a master‐servant relationship include the
“right to discharge” the individual, the “nature of [the] work,” and whether the
relationship is “for a definite piece of work.” See Intermountain Speedways, Inc. v.
Industrial Comm’n, 101 Utah 573, 126 P.2d 22, 24 (1942). The most important
consideration, however, is the ability to control the “means and method of
performance.” Id. “‘Those rendering service but retaining control over the manner of
9. The GIAU was again renumbered in 2008 as Utah Code sections 63G‐7‐101 to ‐904.
See Utah Code Ann. §§ 63G‐7‐101 to ‐904 amend notes (2011).
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doing it are not servants.’” Dowsett v. Dowsett, 116 Utah 12, 207 P.2d 809, 811 (1949)
(emphasis omitted) (quoting Restatement (First) of Agency § 220 cmt. c (1933)); see also
Restatement (Second) of Agency § 2 (1958) (“A servant is an agent . . . whose physical
conduct in the performance of the service is controlled or is subject to the right to
control by the master.”).
¶36 If Defendants were acting merely as independent contractors for Provo City, they
are not entitled to assert immunity under the GIAU, even though they were acting as its
agents in the broad sense. See Utah Code Ann. § 63G‐7‐102(2)(c). Under those
circumstances, Defendants would not be protected by the GIAU and Mallory’s failure to
file a notice of claim would not divest the trial court of jurisdiction. Thus, Defendants
must establish that they were acting as agents under the control of Provo City with
respect to traffic control, i.e. as servants.
III. The Record Contains Insufficient Evidence to Determine Whether the City Retained
Control over Defendants.
¶37 Because this matter comes to us on a motion to dismiss, we must determine if the
issue of whether Defendants were servants of Provo City can be answered as a matter of
law based on the Complaint and the affidavits provided to the trial court. See Wheeler v.
McPherson, 2002 UT 16, ¶¶ 9, 20, 40 P.3d 632. If it cannot, the dismissal was premature
and the case must be remanded to the trial court for further proceedings. See Spoons v.
Lewis, 1999 UT 82, ¶ 7, 987 P.2d 36. Accordingly, we focus our review on whether the
facts asserted in the Complaint, together with the affidavits, establish that Provo City
retained control over Defendants’ traffic direction activities. See Dowsett, 207 P.2d at
811; see also Restatement (Second) of Agency § 2 (1958).
¶38 Non‐peace officers employed by BYU are allowed by ordinance to direct traffic
on public streets “to aid in the orderly movement of traffic related to public gatherings
in excess of 5,000 people” if the non‐peace officers are supervised by a university peace
officer. See Provo City, Utah, Code § 9.10.060. The affidavit of Peace Officer states that
“University Police has been certified . . . as a law enforcement agency according to the
rules of the Department of Public Safety.” The affidavit also indicates that “University
Police trains all of its student traffic cadets extensively in proper traffic direction.”
Peace Officer’s second affidavit provides information relating to his supervision of
Robinson on the day of the accident. This evidence appears sufficient to support the
conclusion that Robinson’s direction of traffic was supervised by a BYU peace officer,
and was therefore permitted by the ordinance. However, it is insufficient to show
whether Defendants were acting as servants, rather than independent contractors, of
20100991‐CA 15
Provo City, and were therefore Employees covered by the GIAU. The record before us
provides no information about the control, if any, exercised by Provo City over the
manner in which Defendants performed traffic control activities. For example, the
record does not establish whether Provo City had any role in developing BYU’s traffic
direction program, provided any oversight of that program, or imposed requirements
for the hiring, training, or supervision of cadets. As a result, there is insufficient
evidence to establish whether Defendants were acting as Employees of Provo City.
¶39 Accordingly, we conclude that the case was dismissed prematurely and remand
to the trial court for further proceedings to determine whether Defendants are entitled
to the protections of the GIAU.10 If the trial court determines that Provo City did not
retain control over Defendants, then the court has subject matter jurisdiction.
Otherwise, the GIAU and its notice of claim provision applies.
IV. Venue Was Properly Transferred to Utah County.
¶40 We next consider Mallory’s challenge to the change of venue because it will
affect the proceedings on remand. The Utah Legislature has provided that civil cases
are to be “tried in the county in which: (a) the cause of action arises; or (b) any
defendant resides at the commencement of the action.” Utah Code Ann. § 78B‐3‐307(1)
(2008). Venue can be changed “when the convenience of witnesses and the ends of
justice would be promoted by the change.” Id. § 78B‐3‐309(3). Defendants requested a
change of venue under Utah Code section 78B‐3‐309(3), based on the “convenience of
witnesses” and “the ends of justice.” The Third District Court granted Defendants’
request for change of venue to the Fourth District because all defendants reside in Utah
County and the accident occurred in Utah County. “Although we will not disturb a
trial court’s ruling on a motion to change venue absent a clear abuse of discretion, we
will reverse if the decision exceeds the bounds of reasonability.” See Durham v.
Duchesne Cnty., 893 P.2d 581, 582 (Utah 1995) (citation omitted).
10. Mallory also challenges the constitutionality of the GIAU as applied in this case.
We first note that these claims are inadequately briefed. See Utah R. App. P. 24(a)(9)
(“The argument shall contain the contentions and reasons of the appellant with respect
to the issues presented . . . with citations to the authorities, statutes, and parts of the
record relied on.”). Furthermore, because we have remanded this matter to the trial
court so that issues related to the applicability of the GIAU to these proceedings can be
determined, any discussion of the due process or First Amendment implications of
cloaking Defendants with immunity would be premature.
20100991‐CA 16
¶41 Mallory asserts that the convenience of the witnesses did not mandate a change
of venue. In the trial court and in the briefs with this court, he asserted that forty
percent of his treating doctors and two other potential witnesses reside in Salt Lake
County.11 However, Mallory did not indicate how many treating doctors were involved
or were expected to testify. Nor did Mallory otherwise challenge Defendants’ position
that Utah County is the more convenient forum because “[t]he cause of action, all
named parties [including Mallory], the investigating police officer, and the majority of
the witnesses all reside in Utah County.”
¶42 Mallory further complains of BYU’s prominence in Utah County and raises
concerns about empaneling an impartial jury there.12 While Mallory expressed general
concerns about potential bias in the Utah County jury pool, “[a] trial court does not
abuse its discretion” by denying a motion for change of venue when “allegations of
bias” are based on mere “conjecture.” See City of Grantsville v. Redevelopment Agency,
2010 UT 38, ¶ 53, 233 P.3d 461 (internal quotation marks omitted). This is because trial
tools such as voir dire provide an “opportunity to weed out potentially biased jurors.”
See id.¶43 Ultimately, the Third District Court determined that Utah County was more
convenient because the accident occurred in Utah County and all of the defendants
resided there. We cannot conclude that the Third District Court’s decision exceeded the
bounds of reasonableness.
11. At oral argument, Mallory for the first time asserted that of the eleven potential
witnesses, five reside in Salt Lake County. Because Mallory did not brief this argument,
we decline to address it. See Workers Comp. Fund v. Argonaut Ins. Co., 2011 UT 61, ¶ 9
n.2, 266 P.3d 792.
12. For the first time on appeal, Mallory also asserts that Judge Laycock “was a
graduate of BYU . . . and her husband was employed at BYU.” We do not address this
issue of alleged bias because Mallory affirmatively assented to going forward with the
May 10, 2010 hearing on the motion to dismiss after Judge Laycock provided a detailed
account of her association with BYU, including that she has friends and relatives
employed as BYU faculty. See, e.g., State v. Rudolph, 970 P.2d 1221, 1230 (Utah 1998)
(holding that where the defendant “stated that he wanted the trial to proceed” before
the same trial judge who was the subject of his earlier motion to recuse, he waived his
right to object to the judge’s participation in the matter); Lunt v. Lance, 2008 UT App 192,
¶ 12, 186 P.3d 978 (“[P]arties may waive disqualification of a judge otherwise
disqualified . . . if, after disclosure of the basis for disqualification, the parties consent to
the judge’s continued participation in the proceeding.”).
20100991‐CA 17
CONCLUSION
¶44 Defendants’ motion to dismiss for lack of subject matter jurisdiction was not
converted into a motion for summary judgment. However, because of uncertainty
regarding the facts relevant to subject matter jurisdiction, dismissal of the action was
premature. Accordingly, we remand to the Fourth District Court to conduct the
proceedings it deems appropriate to resolve those issues. We also affirm the Third
District Court’s order transferring venue to the Fourth District Court for the
convenience of the witnesses and parties.
¶45 Affirmed in part, reversed and remanded in part.
____________________________________
Carolyn B. McHugh,
Presiding Judge
‐‐‐‐‐
¶46 WE CONCUR:
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
____________________________________
Michele M. Christiansen, Judge
20100991‐CA 18