Edwards v. Iron County ex rel. Valley View Medical Center

MAUGHAN, Justice

(dissenting):

I respectfully dissent. Plaintiff filed this action alleging negligence on the part of a hospital operated by the County. Defendant filed a motion to dismiss, asserting as its sole defense provisions of the Governmental Immunity Act, Chapter 30, Title 63. In the recent decision of Greenhalgh against Payson City, No. 13695, January 2, 1975, this Court held that the operation of a hospital by a municipality is a proprietary function, and that such functions are not within the coverage of the Governmental Immunity Act.

The effect of the Greenhalgh decision, on the instant case, was to strike the sole defense asserted, in the motion to dismiss. The substitution and assertion by this Court, of an alternative defense, viz., Section 17-15-10, U.C.A.1953 as amended, deals with facts not before us, decides, in effect, what 17-15-10 means, and advances an opinion we are not called upon to make.

In view of the fact that the two litigants and the court were dealing with law inapplicable to the fact situation, this case should be remanded to the trial court for further proceedings. Defense counsel may then determine the appropriate mode of asserting those defenses which he deems valid, and plaintiff will be granted an opportunity to determine if Section 17-15-10, U.C.A.1953 as amended, is any bar to his action.