Scott v. Universal Sales, Inc.

This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 64

IN THE

SUPREME COURT OF THE STATE OF UTAH

MIKA SCOTT,

Appellant,

v.

UTAH COUNTY, UTAH COUNTY SHERIFF‘S OFFICE,

and JOHN DOES 1-10,

Appellees.

No. 20130257

Filed: August 5, 2015

Fourth District, Provo Dep‘t

Honorable David N. Mortensen

No. 110402718

Attorneys:

Charles H. Thronson, Nicole G. Farrell, Scott S. Bell, Michael K.

McKell, Joseph M. Stultz, Michael A. Worel, John W. Christiansen,

and Alan S. Mouritsen, Salt Lake City, for appellant

Peter Stirba, Salt Lake City, for appellees Utah County and Utah

County Sheriff‘s Office

Peter W. Summerill and Tera J. Peterson, Salt Lake City, for amicus

Utah Association for Justice

Jason B. Richards, Ogden, for amicus Utah Sherriff‘s Association

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE PARRISH, and

JUDGE ROTH joined.

JUSTICE NEHRING did not participate herein due to his retirement;

COURT OF APPEALS JUDGE STEPHEN L. ROTH sat.

JUSTICE HIMONAS became a member of the Court on February, 13,

2015, after oral argument in this matter, and accordingly did not

participate.

SCOTT v. UTAH COUNTY

Opinion of the Court

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 This case requires us to consider the conditions under which

the custodian of a dangerous person has a duty to prevent that

person from injuring others. In prior cases, we have concluded that

such a duty exists only if the custodian is aware, or should be aware,

that the person poses a threat to a specific individual or a discrete

group of individuals. In contrast, the Second Restatement of Torts

does not require notice of the same particularized danger, and the

Plaintiff in this case urges us to overrule our prior caselaw in favor of

the Restatement‘s approach. For three reasons, we accept that

invitation and adopt the standard articulated in the Restatement.

First, our caselaw in this area is based on incorrect assumptions

about the practical consequences of imposing such a duty. Second,

Utah law is out of step with the rule employed in the overwhelming

majority of other jurisdictions. And third, the old rule is inconsistent

with the analytical framework we have employed in our most recent

cases analyzing whether a defendant owes a duty of care.

¶2 We must also determine whether the Governmental

Immunity Act as applied in this case violates article I, section 11 of

the Utah Constitution (the open courts clause). We have read the

open courts clause to prohibit the legislature from eliminating a

cause of action unless it provides an alternative remedy that meets

certain criteria. As we explain in more detail below, the

Governmental Immunity Act grants governmental entities blanket

immunity from any liability that arises from the exercise of a

―governmental function.‖ The legislature recently expanded the

definition of that term to encompass any act or omission on the part

of a governmental actor, and the Plaintiff in this case has asserted a

tort claim against Utah County for its negligent operation of a prison

work-release program. The parties concede that under the most

recent version of the Governmental Immunity Act, the County is

immune from suit. The question, then, is whether the legislature‘s

expansion of governmental immunity eliminated a cause of action

that the Plaintiff could have maintained against the County before

the Act was amended. If it did, then the Act‘s application in this case

may run afoul of the open courts clause.

¶3 We conclude that the Governmental Immunity Act is not

unconstitutional as applied in this case. Even before the Act‘s

expansion of immunity, its blanket immunity protections extended

to any liability that arose from the performance of a uniquely

governmental function or other acts that are essential to a core

government activity. In this case, the Plaintiff‘s negligence claim

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Opinion of the Court

arises directly from a prison work-release program. Because

incarcerating and rehabilitating inmates falls squarely within that

definition, the Act would have shielded the County from liability

even if the Plaintiff brought suit before the legislature expanded

blanket immunity protections to encompass a much wider range of

activity. We affirm the district court‘s ruling on that basis.

Background

¶4 This appeal followed the district court‘s dismissal of Mika

Scott‘s complaint against Utah County, Intermountain Employment

Services (IES), and Universal Industrial Sales (Universal). On appeal

from a district court‘s decision granting a motion to dismiss, we

view the facts pled in the complaint and all reasonable inferences

from them in the light most favorable to the plaintiff. 1 We recite the

facts consistent with that standard.

¶5 For some time, Utah County has operated a program

known as ―Jail Industries,‖ which allows inmates to ―work for

private businesses in the community setting rather than on

correctional institution grounds.‖ The County actively seeks out

private businesses to participate in the program, ―emphasizing that

by hiring inmates,‖ the companies ―assist in the rehabilitation of

Utah County inmates, assist in the solvency of the Utah County

budget, and receive a substantial discount on the price of labor.‖ The

County retains seventy-five percent of the inmates‘ earnings, and

over the past decade, the program has ―produced over $5,000,000 in

gross revenues.‖ Not all inmates are eligible for Jail Industries—the

County screens each inmate that enlists in the program and does not

place anyone it has not approved with a private employer.

¶6 IES worked with the County ―to place‖ qualified inmates

with private employers. In the past, ―many‖ of these inmates

―flagrantly disobeyed the rules they agreed to when enlisting‖ in the

program, ―walking away from the private jobsites‖ during the day,

receiving illegal visits from friends and family, and using alcohol

and drugs. But employers typically waited until the end of the work

day to report these violations. Consequently, the County was aware

that an inmate ―could walk away from a private jobsite and the

inmate‘s absence might not be noted for the better part of a day.‖

1Moss v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42, ¶ 3, 285

P.3d 1157.

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Opinion of the Court

¶7 One of the inmates the County selected to participate in Jail

Industries was Shawn Michael Leonard. IES placed Mr. Leonard

with Defendant Universal in June 2010. According to Ms. Scott‘s

complaint, the County ―improperly screened‖ Mr. Leonard ―for

approval within the Jail Industries program because of a known

potential for violent behavior toward other people‖ and ―his

extensive criminal history, which included a prior sentence in the

Utah State Prison.‖ Proper screening would have revealed that Mr.

Leonard was ―not eligible to participate‖ in the program and that he

―posed‖ a particular danger ―to young women living in the vicinity‖

of the work site.

¶8 But the County had ―only one employee screen inmates

and‖ did ―not conduct[] one-on-one interviews with‖ Mr. Leonard or

any other ―inmates before placing them in the Jail Industries

program.‖ These improper screening procedures resulted in part

from the County‘s efforts to increase revenue—that is, ―the total

number of inmates in the Jail Industries program was driven by the

demand from the private businesses, not by the supply of qualified

inmates.‖ For their part, IES and Universal ―knew or should have

known that the participants in the Jail Industries program were

actual inmates of Utah County, and that they were therefore not

trustworthy and potentially dangerous to the public.‖ The

companies also ―knew or should have known‖ that the inmates

―regularly broke‖ program rules, ―including walking away from the

private jobsite and potentially committing crimes, and engaging in

alcohol and . . . drug use.‖

¶9 Mr. Leonard‘s participation in Jail Industries proved to be a

tragic mistake. The County did not provide guards or any means of

remotely supervising the inmates employed at Universal. And

Universal failed to take any action to prevent the inmates from

leaving the work site. As a result, on June 8, 2010, Mr. Leonard

escaped. Universal did not report Mr. Leonard‘s absence until about

one hour after his escape, and it took the County another hour to

notify police that he had indeed left the work site.

¶10 The next day, Mr. Leonard approached Ms. Scott on the

Provo River Trail about ten miles away from where he had been

working. He grabbed Ms. Scott, covered her mouth, and told her not

to scream. After forcing her off the trail into the bushes, Mr. Leonard

strangled her with a shoe string. Ms. Scott soon lost consciousness,

and Mr. Leonard then hit her repeatedly in the head with a cinder

block, sexually assaulted her, and left. Ms. Scott survived, but her

injuries were substantial. She had multiple surgeries to reconstruct

her face and mouth; her jaw was wired shut for months; and she

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Opinion of the Court

contracted a heart condition, permanent scars, anxiety, insomnia,

and permanent double vision.

¶11 Ms. Scott filed a negligence action against the County, IES,

and Universal in September 2011. She amended her complaint twice,

and then all three Defendants moved to dismiss the second amended

complaint. Ms. Scott opposed the dismissal and sought leave to file a

third amended complaint. The district court ruled in favor of the

Defendants, concluding that none of them owed a duty to Ms. Scott

and denying her motion to amend as futile. As an alternative basis

for dismissing the claims against the County, the district court also

concluded that the Utah Governmental Immunity Act barred all of

her claims against the County. Ms. Scott appealed.

¶12 Following oral argument in this case, Ms. Scott settled her

claims against IES and Universal, but not the County. The parties to

the settlement agreement then filed a suggestion of mootness under

rule 37(a) of the Utah Rules of Appellate Procedure. We agree that

Ms. Scott‘s claims against IES and Universal are now moot, and we

accordingly dismiss them.2 We have jurisdiction over the remaining

claims under Utah Code section 78A-3-102(3)(j).

Standard of Review

¶13 Ms. Scott argues that the district court improperly dismissed

her negligence claim for failing to allege enough facts to establish a

duty. We review a decision granting a motion to dismiss ―for

correctness, granting no deference to the decision of the district

court.‖3 In so doing, we ―accept the plaintiff‘s description of the facts

alleged in the complaint to be true, but we need not accept extrinsic

facts not pleaded nor need we accept legal conclusions in

contradiction to the pleaded facts.‖4 Ms. Scott also argues that the

application of the Utah Governmental Immunity Act ―violates the

open courts clause of the Utah Constitution.‖ A constitutional

challenge to a statute is a question of law, which we review for

correctness.511

2 See Phx. Indem. Ins. Co. v. Smith, 2002 UT 49, ¶ 3, 48 P.3d 976.

3 Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275.

4 Am. W. Bank Members, L.C. v. State, 2014 UT 49, ¶ 7, 342 P.3d 224

(internal quotation marks omitted).

5 See State v. Martinez, 2013 UT 23, ¶ 6, 304 P.3d 54

(―Constitutional issues, including questions regarding due process,

(Continued)

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Opinion of the Court

Analysis

¶14 In negligence cases involving ―a defense of governmental

immunity,‖ we first determine ―whether the defendant owed a duty

of due care to the plaintiff before deciding whether the defendant is

entitled to the affirmative defense of governmental immunity.‖ 6 We

do so for both policy reasons and practical considerations. By

analyzing questions of duty and immunity in that order, ―a court can

more clearly define the scope of each body of law and the policies

that underlie them.‖7 And as a practical matter, if a governmental

agency owes no duty of care, ―there can be no prima facie case of

negligence as a matter of law, and immunity would be immaterial.‖8

¶15 Accordingly, we first address whether the County owed Ms.

Scott a duty of care and then discuss her open courts clause

challenge to the Governmental Immunity Act. We conclude that the

County did owe Ms. Scott a duty of care because it took affirmative

steps that created a risk of harm—it established an off-site work-

release program for potentially dangerous inmates in its custody and

screened each inmate before placing them with employers.

¶16 But even though the County owed Ms. Scott a duty of care,

governmental immunity bars her claim unless the application of the

Governmental Immunity Act in this case violates the open courts

clause of the Utah Constitution. We conclude, however, that the Act

is not unconstitutional as applied in this case. We have read the open

courts clause to prevent the legislature from eliminating a cause of

action without providing an alternative remedy. In the context of

governmental immunity, this means that any law expanding

governmental immunity may violate the open courts clause by

eliminating a claim a plaintiff could have brought against a

governmental entity before the law‘s enactment. But here, the Act‘s

application is not unconstitutional, because governmental immunity

would have barred Ms. Scott‘s claim even before the legislature

amended the Act to expand governmental immunity. Prior to the

Act‘s expansion, its blanket immunity protections extended to any

liability that arose from the performance of core governmental

are questions of law that we review for correctness.‖ (internal

quotation marks omitted)).

6Day v. State ex rel. Utah Dep’t of Publ. Safety, 1999 UT 46, ¶ 10, 980

P.2d 1171.

7 Id.

8 Id.

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functions. And here, incarcerating and rehabilitating inmates is such

a function. Consequently, the County is immune from suit, and the

district court properly dismissed her complaint on that basis.

I. Duty and the Rollins Rule

¶17 Before analyzing whether the County owed Ms. Scott a

duty, we first address Ms. Scott‘s argument that the controlling

caselaw on the duty issue (the Rollins rule) should be overruled.

After setting forth the rule and discussing its underlying policies, we

overrule the Rollins rule because it is based on flawed reasoning, is

out of step with the vast majority of other jurisdictions, and is

inconsistent with our most recent negligence cases.

¶18 The district court determined that none of the Defendants

owed Ms. Scott a duty and, accordingly, dismissed her negligence

claim without discussing breach, causation, or damages. In so doing,

the court applied the Rollins rule, which we articulated in three prior

cases involving dangerous individuals who injured others during

their release from a hospital or correctional facility.9 The Rollins rule

provides that ―[b]efore any duty is imposed to protect others from

bodily harm caused by one‖ in the custody of another, ―the ‗others‘

to whom such bodily harm is ‗likely‘ and in favor of whom the duty

arises must be reasonably identifiable by the custodian either

individually or as members of a distinct group.‖10

¶19 For example, in Ferree v. State, an inmate killed Mr. Ferree

while on release from a community corrections center.11 The inmate

had an extensive criminal history of non-violent property and drug

crimes, and he was addicted to morphine, cocaine, and several other

drugs.12 Prior to his release, the inmate received a psychological

evaluation, which concluded that he ―was an impulsive person who

by his own admission acted without thinking and whose ready

anger at even minor obstacles caused him to engage in antisocial

acts.‖13 Despite these concerns, the corrections center approved the

9 See Higgins v. Salt Lake County, 855 P.2d 231 (Utah 1993); Rollins

v. Petersen, 813 P.2d 1156 (Utah 1991); Ferree v. State, 784 P.2d 149

(Utah 1989).

10 Rollins, 813 P.2d at 1162.

11 784 P.2d at 150.

12 Id.

13 Id.

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Opinion of the Court

inmate‘s release to a halfway house and allowed him to leave for the

weekend to attend a wedding.14 The inmate bludgeoned Mr. Ferree

to death with a pipe two days later while intoxicated.15 Mr. Ferree‘s

estate sued the corrections center for negligence.16 We affirmed a

summary judgment ruling in favor of the corrections center,

observing that there was no reason for officials ―to suspect that [the

inmate] was violent in general or would be violent toward a

particular person or a particular type of person.‖17 And we

concluded that for a duty to arise in these circumstances, officials

must ―have good reason to believe that a particular person may be

jeopardized by the release of a prisoner who has demonstrated

capacity for violence.‖18 We applied the same rule in Rollins v.

Petersen19 and Higgins v. Salt Lake County,20 holding that no duty

arises between the custodian of a dangerous individual and third

parties unless the custodian is aware of a specific threat to the third

parties that makes them ―a potential target.‖21

¶20 Here, there are no allegations that Mr. Leonard planned to

assault Ms. Scott prior to the attack. And according to our holding in

Higgins, even Ms. Scott‘s allegations that he posed a particular

danger to young women are not specific enough to create a duty.22

14 Id.

15 Id. at 151.

16 Id.

17 Id. at 152.

18 Id. (emphasis added).

19 813 P.2d at 1158–62 (holding that a hospital had no duty to a

motorist that was killed when a mental patient escaped from the

hospital, stole a car, and killed the motorist in a subsequent car

accident near the hospital, because the victim was ―simply a member

of the public, no more distinguishable to the hospital than any other

person‖).

20 855 P.2d at 239–40 (concluding that there was an issue of fact

about whether a mental hospital owed a duty of care to a child who

was killed by a patient on weekend release from the hospital,

because a proper examination of the patient ―would have revealed‖

the child was ―a potential target‖).

21 Id.

22Id. at 239 (concluding that ―[t]he entire undifferentiated female

half of the population does not comprise a distinct, identifiable

(Continued)

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Thus, the Rollins rule required the district court to dismiss Ms. Scott‘s

negligence claim—just like the victim in Ferree, Ms. Scott ―was

simply a member of the public, no more distinguishable to [the

Defendants] than to any other person.‖23

¶21 Like any duty determination, the Rollins rule is a policy

choice.24 In making that choice, we departed from the rule that

appears to be followed in most jurisdictions,25 which imposes a duty

of care on the custodian of a dangerous person if the custodian

―knows or should know‖ that the person is ―likely to cause bodily

harm to others if not controlled.‖26 There is no requirement that the

threat target a specific individual or distinct group of people.27

¶22 We justified our departure from the majority rule after

weighing the importance of rehabilitative programs against the risk

of injury to the public. Ultimately, we determined that the majority

rule could threaten the future of such programs, ―expos[ing] the

state to potentially every wrong that flows from the necessary

programs of rehabilitation and paroling of prisoners.‖28 Such a duty,

we reasoned, would be ―realistically incapable of performance,‖

―closely approximate a strict liability standard of care,‖29 and make

―custodians running transitional programs virtual insurers of their

group‖ for purposes of imposing a duty of care on the custodian of a

dangerous individual).

23 Rollins, 813 P.2d at 1162; see also Ferree, 784 P.2d at 152.

24 Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 19, 215 P.3d

152 (―A court determines whether a duty exists by analyzing the

legal relationship between the parties, the foreseeability of injury, the

likelihood of injury, public policy as to which party can best bear the

loss occasioned by the injury, and other general policy

considerations.‖).

25 See infra nn. 42–43.

26 RESTATEMENT (SECOND) OF TORTS § 319 (1965).

27 Id.

28Ferree, 784 P.2d at 151; see also Rollins, 813 P.2d at 1161 (―If these

custodians owed a duty to every member of the public for any harm

done by a person under their control, the broad potential for liability

could effectively cripple these programs.‖).

29 Higgins, 855 P.2d at 235–36 (internal quotation marks omitted).

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Opinion of the Court

services.‖30 Ms. Scott argues that the Rollins rule is inconsistent with

our recent negligence caselaw and based on flawed premises, and

she urges us to overrule it. We agree and overrule this line of cases.

¶23 ―Those asking us to overturn prior precedent have a

substantial burden of persuasion.‖31 To do so, we must be ―clearly

convinced that‖ prior caselaw ―was originally erroneous or is no

longer sound because of changing conditions.‖32 We also consider

whether ―substantial reliance interests . . . counsel against

overturning our precedent.‖33 We overrule the Rollins line of cases

because, despite the reliance interests of hospitals and correctional

facilities, (1) the Rollins rule was based on dubious assumptions

when it was decided, (2) a strong majority of other states follow the

Restatement rule, and (3) the duty analysis in Rollins is inconsistent

with our recent caselaw.

¶24 First, the policy reasons we cited as support for the Rollins

rule cannot withstand careful scrutiny. As we have discussed,

Rollins‘s underlying premise is that prison officials and health care

providers are incapable of preventing dangerous individuals in

rehabilitative programs from harming members of the public, so

imposing a duty to control them exposes the operators of such

30 Rollins, 813 P.2d at 1161–62.

31 State v. Menzies, 889 P.2d 393, 398 (Utah 1994).

32 Id. at 399 (internal quotation marks omitted); see also Halliburton

Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2407 (2014) (―Before

overturning a long-settled precedent . . . , we require special

justification, not just an argument that the precedent was wrongly

decided.‖ (internal quotation marks omitted)); Montejo v. Louisiana,

556 U.S. 778, 792–93 (2009) (―Beyond workability, the relevant factors

in deciding whether to adhere to the principle of stare decisis include

the antiquity of the precedent, the reliance interests at stake, and of

course whether the decision was well reasoned.‖).

33 Cope v. Utah Valley State Coll., 2014 UT 53, ¶ 20, 342 P.3d 243; see

also Carter v. Lehi City, 2012 UT 2, ¶ 6, 269 P.3d 141 (noting that stare

decisis recognizes the principle that ―people should know what their

legal rights are as defined by judicial precedent, and having

conducted their affairs in reliance on such rights, ought not to have

them swept away by judicial fiat‖ (internal quotation marks

omitted)).

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Opinion of the Court

programs to massive liability.34 And because the principal

beneficiaries of rehabilitative programs are often dangerous

individuals, the mere recognition of a duty would impose a standard

of care ―realistically incapable of performance‖ and ―fundamentally

at odds with the nature of the parties‘ relationship.‖35 In other

words, according to Rollins, recognizing a duty of care in this context

would amount to strict liability whenever someone in a

rehabilitative program injures a third party, effectively bankrupting

these important programs.36

¶25 That conclusion is not consistent, however, with basic

principles of tort law, which limit liability even when a duty exists.

Negligence claims have four distinct elements—duty, breach,

causation, and damages.37 The question of whether a duty exists is

therefore analytically distinct from whether the defendant in a

particular case acted reasonably enough to meet the applicable

standard of care.38 And as every first-year law student learns, a

defendant who takes reasonable precautions to prevent injury can

avoid liability, if, notwithstanding her best efforts, she nevertheless

injures the plaintiff.39 It is therefore simply not correct that

34 See Higgins, 855 P.2d at 236 (noting that a ―duty to the general

public would closely approximate a strict liability standard of care‖

(internal quotation marks omitted)); Rollins, 813 P.2d at 1161 (―If

these custodians owed a duty to every member of the public for any

harm done by a person under their control, the broad potential for

liability could effectively cripple these programs.‖); Ferree, 784 P.2d

at 151 (concluding that recognition of a duty to protect the public

from a dangerous person in custody ―could well . . . burden

corrections officials and chill legitimate rehabilitative programs‖).

35 Rollins, 813 P.2d at 1160 (internal quotation marks omitted).

36 See Higgins, 855 P.2d at 236.

37 See, e.g., Webb v. Univ. of Utah, 2005 UT 80, ¶ 9, 125 P.3d 906,

overruled on other grounds by Cope, 2014 UT 53, ¶¶ 19–27; Schuurman v.

Shingleton, 2001 UT 52, ¶ 17, 26 P.3d 227 (noting that even if a

psychotherapist‘s conduct ―amount[s] to a breach of the standard of

care, . . . the remaining elements of a malpractice action must still be

met‖).

38 B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 23, 275 P.3d 228.

39See Torrie v. Weber County, 2013 UT 48, ¶ 17, 309 P.3d 216 (―In

reaching the conclusion that law enforcement officers owe a legal

(Continued)

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Opinion of the Court

recognizing a duty would, in practice, impose liability on the

custodian of a dangerous individual every time the individual

harmed a third party.

¶26 For instance, if a prison carefully screened participants in

work-release programs to assure that only model inmates with no

history of violence could participate, it would be difficult to say the

prison breached a duty if an inmate escaped while on release and

committed a violent crime. And even when inmates with violent

criminal histories participate in work-release programs, rigorous

screening procedures and appropriate supervision may be

reasonable steps that could prevent many injuries without imposing

prohibitive costs.

¶27 Moreover, other negligence principles further limit a

custodian‘s potential liability. Under the proximate cause element,

prison officials and hospitals cannot be liable unless the plaintiff‘s

injuries are a foreseeable result of their negligence.40 Thus, the

greater the temporal and geographic distance between the plaintiff‘s

injury and the custodian‘s role in releasing the dangerous individual,

the more difficult it is for plaintiffs to establish a causal link between

their injury and any breach of duty.41

duty to fleeing suspects, we reiterate that the imposition of a duty is

a separate and distinct analysis from breach and proximate cause.‖).

40 See, e.g., Mitchell v. Pearson Enters., 697 P.2d 240, 245–46 (Utah

1985) (―The standard definition of proximate cause is that cause

which, in natural and continuous sequence, (unbroken by an

efficient intervening cause), produces the injury and without which

the result would not have occurred. It is the efficient cause—the one

that necessarily sets in operation the factors that accomplish the

injury.‖ (internal quotation marks omitted)).

41 Cf. Jeffs, 2012 UT 11, ¶ 35 (noting that the ―requirements of

breach and proximate cause . . . pose significant barriers to plaintiffs‖

in cases where a physician negligently prescribes medication to a

patient who becomes violent and injures a third party); see also Don

F. Vaccaro, Annotation, Liability of Public Officer or Body for Harm

Done by Prisoner Permitted to Escape, 44 A.L.R. 3d 899, § 2a (1972)

(―[W]here there is nothing in an escaped prisoner‘s criminal

background, psychiatric history, or prison experience to indicate that

he is likely to assault members of the public, liability may be denied

for harm resulting from the intentional acts of the escapee, on the

(Continued)

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Opinion of the Court

¶28 Not only is the reasoning in our prior caselaw questionable,

but a strong majority of states impose a duty much broader than the

Rollins rule on custodians of dangerous individuals. Thirty

jurisdictions require hospitals and prisons to protect third parties

from dangerous people in their custody even if the custodian is not

aware of a threat to a specific individual or group. These

jurisdictions have either explicitly adopted section 319 of the Second

Restatement of Torts42 or cited the Restatement approvingly and

followed its general approach.43 Section 319 provides that ―[o]ne

ground that there is no basis for concluding that his conduct was

foreseeable.‖).

42 See Ryan v. State, 656 P.2d 597, 599 (Ariz. 1982), superseded by

statute on other grounds as stated in Clouse ex rel. Clouse v. State, 16 P.3d

757, 761, 763 (Ariz. 2001); Perreira v. State, 768 P.2d 1198, 1208–09

(Colo. 1989); Trammel v. Bradberry, 568 S.E.2d 715, 720–22, 722 n.2

(Ga. Ct. App. 2002); Caldwell v. Idaho Youth Ranch, Inc., 968 P.2d 215,

218–22 (Idaho 1998); Cansler v. State, 675 P.2d 57, 66 (Kan. 1984);

Davis v. Puryear, 673 So. 2d 1298, 1309 (La. Ct. App. 1996); Lamb v.

Hopkins, 492 A.2d 1297, 1302 (Md. 1985); Rum River Lumber Co. v.

State, 282 N.W.2d 882, 886 (Minn. 1979); Buchler v. State, 853 P.2d 798,

802 (Or. 1993); Goryeb v. Commonwealth, 575 A.2d 545, 549 (Pa. 1990);

Dudley v. Offender Aid & Restoration of Richmond, Inc., 401 S.E.2d 878,

881 (Va. 1991); Sheikh v. Choe, 128 P.3d 574, 577–78 (Wash. 2006).

43 See State v. Cowles, 151 P.3d 353, 363–64 (Alaska 2006); Dore v.

City of Fairbanks, 31 P.3d 788, 793 (Alaska 2001); Nova Univ., Inc. v.

Wagner, 491 So. 2d 1116, 1118 (Fla. 1986); Ajirogi v. State, 583 P.2d 980,

985–86 (Haw. 1978); Estate of Mathes v. Ireland, 419 N.E.2d 782, 784–85

(Ind. Ct. App. 1981); Raas v. State, 729 N.W.2d 444, 449–50 (Iowa

2007); Knight v. State, 297 N.W.2d 889, 894–95 (Mich. Ct. App. 1980);

Sykes v. Grantham, 567 So. 2d 200, 214 (Miss. 1990); Starkenburg v.

State, 934 P.2d 1018, 1028 (Mont. 1997); Poppe v. City of Lincoln, 723

N.W.2d 661, 665 (Neb. Ct. App. 2006); D’Amico v. Christie, 518 N.E.2d

896, 902 (N.Y. 1987); King v. Durham Cnty. Mental Health

Developmental Disabilities & Substance Abuse Auth., 439 S.E.2d 771,

774–75 (N.C. Ct. App. 1994); Estates of Morgan v. Fairfield Family

Counseling Ctr., 673 N.E.2d 1311, 1319–20 (Ohio 1997), superseded by

statute on other grounds as stated in Dillon v. Ohio Health Corp., 31

N.E.3d 1232, 1251 (Ohio Ct. App. 2015); Rock v. State, 681 A.2d 901,

902–04, 904 n.2 (R.I. 1996); E.P. ex rel. R.P. v. Riley, 604 N.W.2d 7, 14–

16 (S.D. 1999); Hembree v. State, 925 S.W.2d 513, 517 (Tenn. 1996); Tex.

Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 32, 38–39 (Tex. 2002); Jankee

(Continued)

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SCOTT v. UTAH COUNTY

Opinion of the Court

who takes charge of a third person whom he knows or should know

to be likely to cause bodily harm to others if not controlled is under a

duty to exercise reasonable care to control the third person to

prevent him from doing such harm.‖44 While there are subtle

differences between the Restatement and how states have chosen to

implement it, very few require the person with custody of the

dangerous individual to be aware of threats to a specific victim or

group that includes the victim. Aside from Utah, we have found just

four states that impose such a requirement.45 And as we discuss

later, almost all of the jurisdictions that follow the Restatement‘s

approach also operate rehabilitative programs.46

¶29 Finally, our most recent negligence caselaw is more

consistent with the Restatement than it is with Rollins. In B.R. ex rel.

Jeffs v. West, we identified a number of factors that are ―relevant to

determining whether a defendant owes a duty to a plaintiff.‖47 These

include ―(1) whether the defendant‘s allegedly tortious conduct

consists of an affirmative act or merely an omission; (2) the legal

relationship of the parties; (3) the foreseeability or likelihood of

injury; (4) public policy as to which party can best bear the loss

occasioned by the injury; and (5) other general policy

considerations.‖48 We made clear that each factor must be ―analyzed

at a broad, categorical level for a class of defendants‖49 rather than a

factually intense inquiry ―decided on a case-by-case basis.‖50 If ―the

relevant category of cases‖ ―includes individual cases in which the

likelihood of some type of harm is sufficiently high that a reasonable

v. Clark County, 612 N.W.2d 297, 321–22 (Wis. 2000); Natrona County.

v. Blake, 81 P.3d 948, 957–58 (Wyo. 2003).

44 RESTATEMENT (SECOND) OF TORTS § 319 (1965).

45 See Saccuzzo v. Krystal Co., 646 So. 2d 595, 596 (Ala. 1994);

Thompson v. County of Alameda, 614 P.2d 728, 738 (Cal. 1980); Faile v.

S.C. Dep’t of Juvenile Justice, 566 S.E.2d 536, 546 n.6 (S.C. 2002); Sorge

v. State, 762 A.2d 816, 822–23 (Vt. 2000).

46 See infra ¶ 49.

47 2012 UT 11, ¶ 5.

48 Id. (internal quotation marks omitted).

49 Id. ¶ 23.

50 Id. (internal quotation marks omitted).

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person could anticipate a general risk of injury to others,‖ the

defendant likely owes a duty of care to the plaintiff.51

¶30 In the cases in which we adopted and applied the Rollins

rule, we focused on specific factual considerations to determine

whether a duty existed rather than examining the parties‘

relationship in broad categorical terms. In Ferree, we determined that

a corrections center owed no duty of care because the plaintiffs

―presented no evidence that Ferguson‖—a temporarily released

inmate—―had previously exhibited violent behavior toward another

or that he had physically threatened another.‖52 We observed that

even though ―proof of the allegations‖ in the plaintiffs‘ complaint

―might establish lack of due care in the abstract,‖ there was ―nothing

to indicate that the officials were aware of anything more than a

generalized possibility‖ of harm.53 Similarly, in Rollins we concluded

that a hospital did not owe a duty to a motorist injured by an

escaped mental patient because the ―record [was] devoid of any

evidence‖ that the patient had ―set himself apart in terms of

dangerousness to [the motorist] personally or to any distinct group

of which [the motorist] was a member.‖54

¶31 This type of specific, case-by-case analysis is incompatible

with our directive in Jeffs that courts articulate a party‘s duty of care

―in relatively clear, categorical, bright-line rules of law applicable to

a general class of cases.‖55 In Jeffs, we clarified that the ―essential

difference among the elements [of negligence] is that duty is a

question of law determined on a categorical basis, while breach and

proximate cause are questions for the fact finder determined on a

case-specific basis.‖56 In adopting and applying the Rollins rule, we

therefore conflated the case-specific analysis properly reserved for

breach and causation with the abstract, categorical inquiry that

should have been employed to articulate the duty.

¶32 In sum, the Rollins rule is based on flawed premises,

inconsistent with the law in most other jurisdictions, and at odds

51 Id. ¶ 27.

52 Ferree, 784 P.2d at 152.

53 Id.

54 Rollins, 813 P.2d at 1162.

55 Jeffs, 2012 UT 11, ¶ 23 (internal quotation marks omitted).

56 Id. ¶ 25.

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with our own most recent negligence caselaw. Consequently, even

though departing from the rule may upset the reliance interests of

correctional facilities and health care providers that regularly house

dangerous individuals, we overrule Rollins.

II. Under the Proper Duty Analysis, We Conclude that the County

Owed Ms. Scott a Duty and Adopt Section 319 of the

Second Restatement of Torts

¶33 Having overruled the Rollins rule, we now consider anew

the circumstances under which the custodian of a dangerous person

owes a duty to third parties that the dangerous person injures. As we

have just discussed, Jeffs requires tort duties to be articulated ―in

relatively clear, categorical, bright-line rules of law applicable to a

general class of cases.‖57 We therefore analyze each pertinent factor

in the duty analysis ―at a broad, categorical level for a class of

defendants‖ without focusing on the particular circumstances of a

given case.58 These factors are ―(1) whether the defendant‘s allegedly

tortious conduct consists of an affirmative act or merely an omission;

(2) the legal relationship of the parties; (3) the foreseeability or

likelihood of injury; (4) public policy as to which party can best bear

the loss occasioned by the injury; and (5) other general policy

considerations.‖59 Below, we analyze each of these factors in turn. In

so doing, we adopt section 319 of the Second Restatement of Torts

and hold that the custodian of a dangerous individual has a duty of

care to prevent that individual from harming members of the public.

And under this standard, we conclude that Ms. Scott pled enough

facts to establish that the County owed her a duty.

¶34 Each of the five duty factors we articulated in Jeffs favors

imposing a duty on the County. First, operating a work-release

program is an affirmative act, not an omission. Second, while the

County had no legal relationship with Ms. Scott, it did have a

custodial relationship with her attacker. Third, failing to adequately

screen inmates before allowing them to participate in a temporary

work-release program could foreseeably result in dangerous

individuals harming others. Fourth, it is the custodian of the

dangerous individual—not potential victims—that is best situated to

bear the loss associated with such an injury. And finally, numerous

57B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 23, 275 P.3d 228 (internal

quotation marks omitted).

58 Id.

59 Id. ¶ 5 (internal quotation marks omitted).

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jurisdictions impose a duty on prisons and hospitals to control

dangerous individuals in their custody, and all of them operate

transitional rehabilitative programs.

¶35 The first duty factor favors imposing a duty of care on the

County because screening and placing inmates in a work-release

program is an affirmative act, not an omission. The distinction

between passive inaction and affirmative acts is ―central to

assessing‖ the duty question,60 because the law imposes a duty of

care ―where an individual‘s active misconduct work[ed] positive

injury to others.‖61 But an omission, or the ―failure to take positive

steps to benefit others,‖ gives rise to a duty only when there is a

special legal relationship between the parties.62 The line between acts

and omissions is sometimes subtle. Borrowing from Justice Cardozo,

we have characterized the inquiry as ―whether the putative

wrongdoer has advanced to such a point as to have launched a force

or instrument of harm, or has stopped where inaction is at most a

refusal to become an instrument for good.‖63

¶36 The conduct in this case involves more than the passive

failure to protect another. When the custodian of potentially

dangerous individuals negligently places those individuals in a

rehabilitative program, that action ―launche[s] a force or instrument

of harm,‖64 creating a risk of injury to others. And here, the County

created a work-release program and placed potentially dangerous

inmates with private companies. It screened each inmate who

volunteered, refusing to place anyone with an employer who was

not approved. And once approved, the inmates worked outside

prison walls without any meaningful supervision by prison officials.

By placing inmates in the community, the County engaged in ―active

misconduct‖ if its screening procedures were inadequate to discover

obvious dangers work-release participants might pose to the public.

Consequently, this is not a case where liability stems from a

plaintiff‘s failure to warn or take other affirmative steps to protect

60 Id. ¶ 9 (internal quotation marks omitted).

61 Herland v. Izatt, 2015 UT 30, ¶ 34, 345 P.3d 661 (alteration in

original) (internal quotation marks omitted).

62 Id. (internal quotation marks omitted).

63 Id. ¶ 35 (quoting H.R. Moch Co. v. Rensselaer Water Co., 159 N.E.

896, 898 (N.Y. 1928) (Cardozo, C.J.)).

64 Id. (internal quotation marks omitted).

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Opinion of the Court

the defendant. Instead, the County‘s conduct involves an affirmative

act, and this factor accordingly weighs in favor of imposing a duty.

¶37 Next, we turn to the second factor in our duty analysis—the

parties‘ relationship. This factor favors imposing a duty if there is a

special legal relationship between the parties.65 Some examples

include ―common carrier to its passenger, innkeeper and guest,

landowner and invitee to his land, and one who takes custody of

another.‖66 The County argues that Ms. Scott must show a special

relationship to establish a duty, most likely because historically the

public duty doctrine has prohibited imposing a duty on

governmental actors for even affirmative acts absent a special

relationship.67 But in Cope v. Utah Valley State College, a case issued

last year, we made clear that the public duty doctrine no longer

imposes such a requirement when a governmental defendant‘s

negligence stems from an affirmative act rather than an omission.68

Here, because the County‘s negligence arises from an affirmative act,

Ms. Scott does not need to establish a special relationship between

herself and the County for her claim to survive dismissal.

¶38 But even if she did, there is a legal relationship that favors

imposing a duty. We have recognized that someone who has ―actual

custody . . . of a third person who causes harm to the plaintiff‖69 may

have a duty if he knew, or should have known, that the third person

is dangerous. Two aspects of the custodial relationship between

prison officials and inmates show why such a duty should apply in

this case. First, prison70 officials ―exert actual, physical dominion and

control over the prisoners,‖71 giving them a wealth of information

about the inmates‘ physical and mental capacities to which no one

65 See Cope v. Utah Valley State Coll., 2014 UT 53, ¶ 25, 342 P.3d 243.

66 Jeffs, 2012 UT 11, ¶ 8 (internal quotation marks omitted).

67 See, e.g., Webb v. Univ. of Utah, 2005 UT 80, ¶ 11, 125 P.3d 906,

overruled by Cope, 2014 UT 53, ¶¶ 19–27.

68 See Cope, 2014 UT 53, ¶¶ 19–27.

69Francis v. State, 2013 UT 65, ¶ 27, 321 P.3d 1089 (internal

quotation marks omitted).

70 We use the term ―prison‖ throughout this opinion in a broad

sense that encompasses any place of involuntary ―confinement or

restriction,‖ which would include a county jail. See THE AMERICAN

HERITAGE DICTIONARY 1402 (5th ed. 2011).

71 72 C.J.S. Prisons and Rights of Prisoners § 63.

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else has comparable access. Second, such a relationship involves the

―legal authority to control‖ the person‘s movement and interactions

with the public.72

¶39 The custodian‘s knowledge should inform the manner in

which it exercises control—a reasonable custodian that knows an

individual is dangerous would impose more constraints on that

individual than someone without violent tendencies. And the

custodian would also take reasonable steps to discover this

information before making decisions that could expose the

individual to potential victims. Section 319 of the Second

Restatement of Torts articulates just such a duty: ―One who takes

charge of a third person whom he knows or should know to be likely

to cause bodily harm to others if not controlled is under a duty to

exercise reasonable care to control the third person to prevent him

from doing such harm.‖73 By way of illustration, the Restatement

provides an example that is particularly apt to the facts of this case:

―A operates a private sanitarium for the insane. Through the

negligence of the guards employed by A, B, a homicidal maniac, is

permitted to escape. B attacks and causes harm to C. A is subject to

liability to C.‖74

¶40 The County argues that its relationship with Mr. Leonard is

insufficient to create a duty. It maintains that a custodian‘s duty

should hinge on whether it ―has actual, physical control over the

individual.‖ And here, Mr. Leonard was not under the County‘s

direct supervision when he escaped.

¶41 Accepting the County‘s argument, however, would create

perverse incentives. If a custodian‘s duty in this context were limited

solely to protecting others from dangerous people under its actual,

physical control at the time of an attack, prisons and hospitals that

remain willfully blind to an individual‘s violent tendencies when

releasing him or her into a rehabilitative program would be placed

in precisely the same position as a custodian who took every

precaution to ensure no dangerous individual was temporarily

released—neither would face liability. By contrast, extending a

custodian‘s duty to the manner in which it exercises legal control

See 2 DAN B. DOBBS, PAUL T. HAYDEN, & ELLEN M. BUBLICK, THE

72

LAW OF TORTS § 418 (2d ed. 2011).

73 RESTATEMENT (SECOND) OF TORTS § 319 (1965).

74 Id. cmt. a, illus. 2.

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Opinion of the Court

imposes greater liability on custodians who fail to screen inmates or

patients for violent tendencies than it does those who employ

prudent screening procedures. Focusing the duty on legal control

therefore properly encourages all custodians to be careful about

which individuals they expose to the general public through

rehabilitative programs.

¶42 For these reasons, we adopt the Restatement standard for

determining when the custodian of a dangerous individual owes a

duty to prevent the individual from injuring others. And we

conclude that because the County had legal custody of Ms. Scott‘s

attacker, this factor weighs in favor of imposing a duty. We now turn

to the next factor, foreseeability.

¶43 This factor, the third in our duty analysis, also favors

imposing a duty on the County. As discussed earlier, foreseeability

analysis for duty purposes differs in kind from foreseeability in

proximate cause.75 We do not examine whether the County could

have foreseen the specific chain of events that led to Ms. Scott‘s

injury. Rather, we ask ―whether a category of cases includes

individual cases in which the likelihood of some type of harm is

sufficiently high that a reasonable person could anticipate a general

risk of injury to others.‖76 Here, the relevant category of cases

involves the custodian of a potentially dangerous individual who

places the individual in the community outside its direct physical

control with minimal supervision. And in so doing, the custodian

fails to adequately evaluate the individual for potential

dangerousness.

¶44 There are certainly circumstances within this class of cases

in which the custodian could foresee a risk of injury. For example,

inmates are in state custody. Some are nonviolent offenders who

would pose little, if any, foreseeable danger to the public if

temporarily released. Others may have committed violent offenses

but have been model citizens throughout their prison term. But there

are also other categories of inmates who have significant disciplinary

problems in prison, a history of violence, mental illnesses, problems

with substance abuse, or a combination of several of these issues.

Inmates in this category pose a heightened risk of harm to others if

allowed to work outside the prison without meaningful supervision.

Consequently, a custodian that employs inadequate screening

75 Jeffs, 2012 UT 11, ¶ 25.

76 Id. ¶ 27.

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procedures could certainly foresee one of these dangerous

individuals escaping from a minimally supervised work site and

harming someone. The foreseeability factor therefore favors

imposing a duty on the County.

¶45 The fourth duty factor—―public policy as to which party can

best bear the loss occasioned by the injury‖—similarly supports

imposing a duty of care on the County.77 Under this factor, we do

not consider ―the depth of [the parties‘] pockets,‖ but instead

examine which of them ―is best situated to take reasonable

precautions to avoid injury.‖78 In Jeffs, we determined that

physicians are in the best position to prevent injuries to third parties

caused by patients who received erroneously prescribed

medication.79 We noted that medical experts ―can take into account

the propensities of the drug, as well as the susceptibilities of [the]

patient,‖ and we concluded that ―the prescribing physician of a

prescription drug is the person best able to take or recommend

precautions against potential injuries.‖80

¶46 Our reasoning in Jeffs applies with equal force here.

Although it is true that private employers and potential victims can

access public records detailing an inmate‘s criminal history, only

prison officials are acquainted with the inmate‘s behavior since his

conviction. Prison officials‘ daily interactions with inmates give them

important insights about who can be trusted to participate in a

temporary work-release program and who should remain behind

bars. Just as a physician becomes acquainted with a patient‘s

particular response to different medications, prison officials become

intimately familiar with which inmates routinely abuse privileges

and create conflict. No one can predict with perfect accuracy

whether an inmate will injure someone during temporary release,81

but it is difficult to imagine anyone in a better position to assess that

risk than the custodian charged with supervising the inmate on a

77 See id. ¶ 5 (internal quotation marks omitted).

78 Id. ¶¶ 29–30.

79 Id. ¶ 31.

80 Id. (internal quotation marks omitted).

81 See Sonja B. Starr, Evidence-Based Sentencing and the Scientific

Rationalization of Discrimination, 66 STAN. L. REV. 803, 817–21 (2014)

(discussing the difficulties of using a defendant‘s past behavior to

predict future violence).

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Opinion of the Court

daily basis. Accordingly, this factor weighs in favor of imposing a

duty.

¶47 We now turn to the final factor—―other general policy

considerations‖—and conclude that the competing public policies at

issue supports the imposition of a duty.82 We reach this conclusion

because we see no reason why a policy favoring rehabilitative

programs cannot coexist with the tort law policy of compensating

injured parties. Both policies are important. With respect to

rehabilitative programs, we have stated that ―parole and minimum

security programs are designed to give the inmate the best

opportunity to successfully become a member of society again.‖83 So

even though there is substantial ―imprecision associated with

predicting violent human conduct,‖ such programs are ―practically

indispensable.‖84 We agree with those statements and reaffirm them

today.

¶48 But recognizing a duty promotes equally weighty policy

concerns, and we are not convinced that doing so would impede the

State‘s ability to maintain rehabilitative programs. To begin with, the

basic purpose of tort law is ―to place an injured person in a position

as nearly as possible to the position he would have occupied but for

the defendant‘s‖ tortious behavior.85 Providing such compensation

both ―protect[s] societal interests in human life, health[,] and

safety‖86 and deters harmful behavior by requiring individuals

whose conduct harms those around them to bear the full cost of their

actions.87 Here, imposing a duty on custodians of dangerous

individuals serves these important interests. A plaintiff, like

Ms. Scott, can be compensated for her injuries, and the potential

liability for prison officials and other custodians provides a powerful

incentive to screen program participants rigorously.

82 See Jeffs, 2012 UT 11, ¶ 5 (internal quotation marks omitted).

83 Rollins v. Petersen, 813 P.2d 1156, 1161 (Utah 1991).

84 Ferree v. State, 784 P.2d 149, 151 (Utah 1989).

85 Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107, ¶ 97, 37 P.3d

1130 (internal quotation marks omitted).

86State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 592 N.W.2d 201,

214 (Wis. 1999).

87 See, e.g., Mary Glick & Cory Sinclair, Damages Resulting From a

Lost Opportunity: The Proper Damage Date in Utah Contract and Tort

Cases, UTAH B.J., July-Aug. 2010, at 30, 33.

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¶49 Of course, subjecting prisons and hospitals to liability also

raises the cost of rehabilitative programs, which appears to have

been the Rollins court‘s central concern.88 But it is far from clear to us

that these additional costs will be prohibitive—according to the Utah

Sheriffs‘ Association‘s amicus brief, ―every state except New Jersey

[has] a formal temporary release program in place.‖ And yet, at least

thirty of these jurisdictions impose a duty similar to the Restatement

standard.89 Moreover, the Sheriffs‘ Association also reports that in a

survey of twenty-five counties in Utah, around 530 inmates are

released to work in the community and 212 are released for

employment or education. And of the twenty-five counties surveyed,

just two ―reported a negative interaction with the community.‖ If the

vast majority of these programs successfully place inmates without

incident, we struggle to see why recognizing a duty endangers their

fiscal integrity, particularly in light of other limiting principles of tort

law we have already discussed.90 Thus, rather than undermining the

State‘s interest in rehabilitating inmates, recognition of a duty in this

instance accommodates the competing policies at stake.

¶50 In sum, each of the five factors we analyze to establish a

duty of care favors imposing one on the County. We therefore

conclude that the County owes Ms. Scott a duty of care and adopt

the standard set forth in section 319 of the Second Restatement of

Torts. The custodian of a dangerous individual must exercise

reasonable care when deciding whether to allow that individual to

participate in temporary release programs. And if the custodian‘s

negligence allows a dangerous individual to harm someone while on

release, the custodian may be liable for the harm.91

88 813 P.2d at 1161 (―If these custodians owed a duty to every

member of the public for any harm done by a person under their

control, the broad potential for liability could effectively cripple

these programs.‖).

89 See supra ¶ 28 nn. 42–43.

90 See supra ¶¶ 25–27.

91RESTATEMENT (SECOND) OF TORTS § 319 (1965) (―One who takes

charge of a third person whom he knows or should know to be likely

to cause bodily harm to others if not controlled is under a duty to

exercise reasonable care to control the third person to prevent him

from doing such harm.‖).

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Opinion of the Court

III. Even Though the County Owes Ms. Scott a Duty,

It is Immune From Suit

¶51 Having concluded that the County owes Ms. Scott a duty,

we now discuss whether it is immune from suit. We begin by noting

that Ms. Scott concedes that the Governmental Immunity Act bars

her claim. But she argues that the Act is unconstitutional as applied

under article I, section 11 of the Utah Constitution (the open courts

clause). That clause provides,

All courts shall be open, and every person, for an

injury done to him in his person, property or

reputation, shall have remedy by due course of law,

which shall be administered without denial or

unnecessary delay; and no person shall be barred from

prosecuting or defending before any tribunal in this

State, by himself or counsel, any civil cause to which he

is a party.

¶52 We have interpreted the open courts clause to prevent the

legislature from passing a law that ―abrogates a cause of action

existing at the time of [the law‘s] enactment‖ unless it (1) provides

―an effective and reasonable alternative remedy‖ or (2) ―seeks to

eliminate a clear social or economic evil‖ by means that are not

―arbitrary or unreasonable.‖92

¶53 None of the parties has argued that Ms. Scott was afforded

an alternative remedy, so the central question is whether the

legislature abrogated her cause of action when it expanded the

Governmental Immunity Act. Because the interaction of

governmental immunity and the open courts clause is somewhat

complex, we first briefly discuss the historical development of

governmental immunity in Utah and then set forth the legal

standard we apply for open courts clause challenges in this context.

Applying that standard, we then conclude that the legislature did

not abrogate a cause of action Ms. Scott would have had before it

expanded governmental immunity, so the Act‘s application in this

case is not unconstitutional.

A. Governmental Immunity and the Open Courts Clause

¶54 To determine whether the Governmental Immunity Act

violates the open courts clause in a particular case, we look to see

whether the plaintiff could have brought his or her cause of action

92 Tindley v. Salt Lake City Sch. Dist., 2005 UT 30, ¶¶ 17, 18, 116

P.3d 295 (internal quotation marks omitted).

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prior to 1987.93 As we explain below, this is because 1987 is the high-

water mark of governmental liability in Utah, and any subsequent

amendments to the Act expanding governmental immunity

therefore eliminates causes of action that could have been

maintained against governmental entities before 1987.

¶55 Prior to the enactment of the Governmental Immunity Act

in 1965, the common law doctrine of sovereign immunity prevented

a citizen from suing a state governmental entity for any act

considered to be a function of government.94 Our cases characterized

a state action as ―governmental‖ if it was not serving a ―proprietary‖

function. By ―proprietary,‖ we meant that, in performing the action,

the State obtained a pecuniary benefit, competed directly with

private entities in the marketplace, or engaged in activity that could

be successfully operated by private enterprise.95

¶56 The 1965 Governmental Immunity Act expanded liability

for state entities beyond common law sovereign immunity by

making the government subject to suit when it engaged in specific

activities.96 It also provided that governmental entities retained

blanket sovereign immunity protections when ―engaged in the

exercise and discharge of a governmental function.‖97 But nowhere

in the Act did the legislature define the term ―governmental

function,‖ so Utah courts relied on the governmental-proprietary

function test from our sovereign immunity caselaw to interpret the

full scope of immunity under the Act.98

¶57 In Standiford v. Salt Lake City Corporation, we expressly

disavowed this precedent because it led to ―contrary and

93 See id. ¶ 21.

94 See Standiford v. Salt Lake City Corp., 605 P.2d 1230, 1235 (Utah

1980) (―The term ‗government function‘ is a term of art in the law of

sovereign immunity, meaning that a public entity is not liable for its

torts committed in the exercise of a governmental function.‖).

95 Id. at 1234.

See Utah Governmental Immunity Act, ch. 139, § 10, 1965 Utah

96

Laws 390, 391–92.

See Utah Governmental Immunity Act, ch. 139, § 3, 1965 Utah

97

Laws 390, 391.

See Standiford, 605 P.2d at 1235 (discussing the sovereign

98

immunity test and citing cases that applied it).

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SCOTT v. UTAH COUNTY

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unpredictable results.‖99 We held ―that the test for determining

governmental immunity‖ under the Act ―is whether the activity

under consideration is of such a unique nature that it can only be

performed by a governmental agency or that it is essential to the core

of governmental activity.‖100

¶58 Perhaps in response to our decision in Standiford, the

legislature restricted governmental liability in 1987 by expanding the

Act‘s definition of ―governmental function‖ to include ―any act,

failure to act, operation, function, or undertaking‖ regardless of

whether the activity ―is characterized as governmental, proprietary,

a core governmental function, unique to government, undertaken in

a dual capacity, essential to or not essential to a government or

governmental function, or could be performed by private enterprise

or private persons.‖101 The legislature has continued to expand the

definition of ―governmental function‖ in subsequent amendments,

and the statute currently defines that term as encompassing

anything the government decides to do—―each activity,

undertaking, or operation performed by a department, agency,

employee, agent, or officer of a government entity.‖102

¶59 Anytime the legislature expands the definition of

―governmental function,‖ it restricts the government‘s liability

beyond the scope of the Act as interpreted in Standiford—possibly

abrogating causes of action that would have existed before the 1987

amendment and violating the open courts clause. Consequently, we

have looked to the Standiford test—which defined ―governmental

function‖ in the Act before the legislature expanded the definition of

99 Id. at 1235, 1236–37. For example, under the old test, we

determined that the operation of a golf course was a governmental

function because, at the time the case was decided, ―[o]ne searches in

vain to find public golf courses in this area that are successfully

operated by private enterprise.‖ Jopes v. Salt Lake County, 343 P.2d

728, 730 (Utah 1959).

100 Standiford, 605 P.2d at 1236–37.

101See Richards Irrigation Co. v. Karren, 880 P.2d 6, 9 (Utah Ct. App.

1994) (quoting UTAH CODE § 63-30-2(4)(a) & (b) (1993), which

includes the 1987 amendment to the Governmental Immunity Act).

102 UTAH CODE § 63G-7-102(4)(b).

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that term in 1987—to determine ―whether the Act in its current form

abrogates a cause of action that existed prior to its enactment.‖103

B. The Application of the Governmental Immunity Act in this

Case is Not Unconstitutional

¶60 We now apply the Standiford test to resolve Ms. Scott‘s open

courts clause challenge to the Governmental Immunity Act. As we

have discussed, she must show that the legislature abrogated a cause

of action she could have brought before 1987.104 To make that

determination, we apply the Standiford test, assessing ―whether the

activity giving rise to the cause of action [1] is of such a unique

nature that it can only be performed by a governmental agency or

. . . [2] is essential to the core of governmental activity.‖ 105 If

operating Jail Industries falls under either category, then the County

would have been immune from Ms. Scott‘s suit in 1987 before the

legislature expanded governmental immunity, and the Act‘s

application in this case would not violate the open courts clause.

¶61 The first category ―does not refer to what government may

do, but to what government alone must do.‖106 The second

encompasses ―those activities not unique in themselves (and thus

not qualifying under the first part) but essential to the performance

of those activities that are uniquely governmental.‖107 We have

previously determined that the following activities were not

governmental functions under Standiford: operating a public golf

course,108 operating a public sledding hill,109 collecting and disposing

103 Tindley, 2005 UT 30, ¶ 22; Lyon v. Burton, 2000 UT 55, ¶ 35, 5

P.3d 616 (noting that the Standiford test has been adopted to police

―the proper constitutional boundary between those governmental

activities that are entitled to immunity under governmental

immunity law (subject to legislative waiver) and are not subject to

[the open courts clause] protections, and those governmental

activities that are not subject to immunity and that are subject to the

remedies protected by‖ the clause).

104 Supra ¶¶ 54–59.

105 Tindley, 2005 UT 30, ¶ 22 (internal quotation marks omitted).

Johnson v. Salt Lake City Corp., 629 P.2d 432, 434 (Utah 1981)

106

(emphasis added).

107 Id.

108 Standiford, 605 P.2d at 1237.

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of sewage,110 operating a municipal electrical power system,111 and

operating a hospital where only ―3.5 percent of the hospital‘s

operating budget came from legislative appropriations.‖112 By

contrast, we have held that transporting students to an out-of-state

debate tournament,113 the regulation of boxing matches,114 and

operating a public transportation system were governmental

functions.115 In these cases, we identified the following factors as

characteristics that weigh in favor of finding that an activity is a

governmental function—the extent to which the activity is funded by

the State, competes in the marketplace with private entities,

generates annual profits, and would be ―qualitatively different‖ if

engaged in by a private entity.

¶62 Under this standard, we conclude that rehabilitation

programs like Jail Industries are essential to the core governmental

activity of running a state prison system. We have described

rehabilitative programs for inmates as ―necessary programs‖ that are

―practically indispensable‖116 to managing the prison population.

Housing and rehabilitating inmates is an integral piece of the justice

system, and if administering justice to those who violate the penal

code is not a governmental function, we do not know what is.

¶63 Ms. Scott nevertheless argues that Jail Industries is

qualitatively different than traditional work-release programs

because ―inmates, rather than parolees, were inserted into the

community with little supervision as a source of revenue for Utah

County and its private partners.‖ Although it is true that a

governmental activity that generates profits is more likely to be

109 Johnson, 629 P.2d at 434–35.

110 Thomas v. Clearfield City, 642 P.2d 737, 739 (Utah 1982).

111 Laney v. Fairview City, 2002 UT 79, ¶ 53, 57 P.3d 1007.

112 Condemarin v. Univ. Hosp., 775 P.2d 348, 373–74 (Utah 1989).

113 Tindley, 2005 UT 30, ¶¶ 25–26.

114Moss v. Pete Suazo Utah Athletic Comm’n, 2007 UT 99, ¶¶ 26–28,

175 P.3d 1042.

115 Parks v. Utah Transit Auth., 2002 UT 55, ¶ 14, 53 P.3d 473.

116 Ferree v. State, 784 P.2d 149, 151 (Utah 1989).

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classified as a nongovernmental function under Standiford,

profitability alone is not a determinative factor.117

¶64 Moreover, the fact that Jail Industries places inmates with

employers outside the prison is insufficient to transform what we

have recognized as a core governmental activity into a private

endeavor. An activity that supports a core governmental function

may satisfy the Standiford test even if it is not indispensable.118 For

example, in Tindley v. Salt Lake City School District, we concluded that

an extracurricular school debate program was essential to the core

governmental function of educating students.119 We so held even

though the negligence claim at issue arose from the school‘s efforts

to transport the debate team to out-of-state competitions.120 We

observed that the debate program ―clearly benefits student

education and is unlikely to be available to public school students if

not offered through their schools.‖121

¶65 Similarly, Jail Industries gives inmates the benefit of work

experience and a modest paycheck—significant experience that may

ease their transition back into society and serves the core

governmental function of rehabilitating inmates. It is certainly

possible to house inmates without a program like Jail Industries. But

the program ―clearly benefits‖ inmates, and its unique benefits are

―unlikely to be available‖ to them if the prison does not provide it.122

¶66 We therefore conclude that Jail Industries is essential to the

core governmental function of housing and rehabilitating inmates,

and the program accordingly qualifies as a ―governmental function‖

under Standiford. Consequently, the County has always enjoyed

immunity for such an activity, and the legislature‘s expansion of

governmental immunity in 1987 did not abrogate Ms. Scott‘s cause

117 Standiford, 605 P.2d at 1234 (rejecting the common law

distinction between governmental and proprietary activities as a

way to interpret the term ―governmental function‖ in the Immunity

Act, because focusing on ―whether the public entity derived a special

pecuniary benefit . . . . led to . . . conflicting results‖).

118 See Tindley, 2005 UT 30, ¶ 23.

119 Id. ¶ 24.

120 Id. ¶ 25.

121 Id.

122 See id.

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of action. Accordingly, the Governmental Immunity Act is not

unconstitutional as applied in this case.

Conclusion

¶67 We overrule the Rollins rule and hold that the custodian of a

dangerous individual has a duty to take reasonable precautions to

prevent that individual from injuring others. Under that standard,

we conclude that the County owed Ms. Scott a duty. But even

though the County owed Ms. Scott a duty, her negligence claim is

barred by the Governmental Immunity Act. Finally, because work-

release programs are essential to the core governmental activity of

housing and rehabilitating inmates, the Act is not unconstitutional as

applied in this case. We therefore affirm the district court‘s decision

dismissing Ms. Scott‘s negligence claims against the County.

30