Faucheaux v. Provo City

2015 UT App 3

_________________________________________________________

THE UTAH COURT OF APPEALS

KEVIN FAUCHEAUX,

Plaintiff and Appellant,

v.

PROVO CITY,

Defendant and Appellee.

Opinion

No. 20130690-CA

Filed January 2, 2015

Fourth District Court, Provo Department

The Honorable Fred D. Howard

No. 100401999

Ronald D. Wilkinson, Janet G. Peterson and

Marianne P. Card Attorneys for Appellant

Dennis C. Ferguson and Timothy J. Bywater,

Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which

JUDGE GREGORY K. ORME and SENIOR JUDGE RUSSELL W. BENCH

concurred.1

VOROS, Judge:

¶1 Afraid that his wife, Helen Faucheaux, had overdosed on

prescription pills, Kevin Faucheaux called 911. When police

1. The Honorable Russell W. Bench, Senior Judge, sat by special

assignment as authorized by law. See generally Utah R. Jud.

Admin. 11-201(6).

Faucheaux v. Provo City

officers arrived they concluded that Helen had not overdosed.2

Despite Kevin’s pleas that they call emergency medical

technicians, the officers tucked Helen into bed and told Kevin to

leave her alone. Sometime in the next couple of hours, Helen

died. Kevin brought this wrongful-death action against Provo

City in his capacity as personal representative of Helen’s estate.

The district court granted summary judgment in Provo’s favor,

ruling that Provo owed Helen no duty and that even if it did the

Governmental Immunity Act protected Provo because the

officers’ actions were discretionary. We reverse and remand the

case for further proceedings.

BACKGROUND3

¶2 Helen had a history of attempted suicide and

prescription-drug abuse. Her prescription-drug abuse worsened

after her incarceration, where she learned to ‚crush and snort

Percocet and Flexeril‛ for a more intense high. In the years

immediately before her death, Helen threatened or attempted

suicide several times. In fact, on one occasion, her suicide

attempt nearly proved successful: she ‚flat-lined,‛ but

paramedics were able to revive her.

2. Because Kevin and Helen Faucheaux have the same last name,

for clarity we refer to them by their first names. Furthermore, we

refer to Kevin Faucheaux as ‚Kevin‛ when referring to him in

his personal capacity and as ‚Faucheaux‛ when referring to him

in his capacity as personal representative of Helen’s estate.

3. On an appeal from a summary judgment, we recite the facts

and all reasonable inferences drawn therefrom in the light most

favorable to the nonmoving party. See Orvis v. Johnson, 2008 UT

2, ¶ 6, 177 P.3d 600. Consequently, most of the facts in this

section are drawn from Kevin’s affidavit.

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Faucheaux v. Provo City

¶3 One day in 2009, Helen appeared to be under the

influence of prescription drugs. She and Kevin fought, after

which both called the police. Because ‚Helen claimed she was

injured,‛ she went to the hospital but was released without

treatment. Kevin picked Helen up from the hospital but

‚dropped her at home‛ to ‚keep the situation from escalating

again.‛

¶4 After leaving, Kevin received a text message from Helen

saying goodbye. Because this was ‚the type of text that Helen

had sent [Kevin] in the past to make [him] think she was

committing suicide and to manipulate [him] into coming home,‛

Kevin did not immediately return. About an hour later, still

before Kevin had returned home, Helen called the police,

claiming that Kevin had locked her out of her home.

¶5 When Kevin returned home, he noticed a dusting of white

powder on the ‚bathroom sink, floor, and door.‛ He found

Helen ‚stumbling around and unable to walk straight, using the

wall to help her balance.‛ Helen then ‚stumbled into the

bathroom, and [Kevin] heard snorting noises.‛ Helen spoke in

slurred speech, and Kevin knew that ‚Helen was crushing pills.‛

Now ‚worried that Helen’s threat to commit suicide was

serious,‛ Kevin called 911, telling the operator that Helen

needed ‚to be pink-slipped because she was suicidal‛ and that

Helen had been abusing drugs.4

¶6 The officers arrived at about 10:00 p.m. Kevin met them

outside. He told the officers that he had ‚concerns that Helen

4. ‚Pink slip‛ is a term sometimes used to refer to the document

used to initiate the temporary restraint of a mentally ill person.

See Douglas Mossman, Psychiatric Holds for Nonpsychiatric

Patients, Current Psychiatry, March 2013, at 34, 34. This is

apparently the sense in which Kevin used the term.

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Faucheaux v. Provo City

was attempting suicide,‛ that he ‚was seriously concerned she

had overdosed,‛ and that she had sent him a text message

saying goodbye. He told the officers that Helen had been

‚crushing and snorting her prescription drugs,‛ that if they

looked in the bathroom they ‚would see crushed powder all

over it and Helen’s mortar and pestle that she used to crush her

pills,‛ and that Helen had already attempted suicide twice that

year.

¶7 The police went inside to talk to Helen. According to the

officers, Helen maintained that she had taken her pills only as

prescribed, that she was not suicidal, and that the white powder

resulted from baking pancakes. The officers then concluded that

Helen had not overdosed, so they ‚tucked her into bed.‛

¶8 After helping Helen to bed, the officers told Kevin that

Helen just needed to ‚sleep it off.‛ However, still concerned

about Helen, Kevin ‚pleaded with [the officers] to call the

EMTs‛ to ensure that Helen had not overdosed. He explained to

the officers that he could not get Helen to the hospital himself.

The officers responded, ‚You don’t need to get her to the car sir,

you just need to leave her alone.‛ The officers then told Kevin

that if they received another call where he was the disturbance,

they would arrest him.

¶9 After Kevin’s discussion with the police, he stayed in the

home but stayed away from Helen ‚as the officers had

instructed.‛ However, after about twenty minutes, Kevin

opened Helen’s bedroom door to check on her. She was lying in

her bed, ‚apparently asleep.‛ Kevin went back to the living

room and watched a movie, returning to the bedroom to check

on her a couple of hours later. This time, he found her dead.5

5. The officers’ version of events differs slightly from Kevin’s.

According to the officers, they did not tuck Helen into bed, tell

(continued...)

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Faucheaux v. Provo City

¶10 Kevin sued Provo City in his capacity as the personal

representative of Helen’s estate, alleging that the police officers

acted negligently. After discovery, the district court granted

summary judgment in Provo’s favor, ruling that Provo owed

Helen no duty of care and that, even if it did, Provo was immune

from suit. This appeal followed.

ISSUE ON APPEAL

¶11 Faucheaux contends that the district court erred in

granting summary judgment in Provo’s favor for two reasons.

First, Faucheaux argues that the district court erred in

concluding that Provo owed Helen no duty of care. Second,

Faucheaux argues that the district court erred in concluding that

Provo is immune from this lawsuit because the officers’ actions

qualify as discretionary.

ANALYSIS

I. The District Court Erred in Concluding That the Police Officers

Owed Helen No Duty of Care.

¶12 Faucheaux first contends that the district court erred in

concluding that the police officers owed Helen no duty of care.

Faucheaux argues that ‚a special relationship between police

and Helen arose when police undertook specific action to protect

Helen.‛ Provo responds that ‚Utah law does not impose a

Kevin to leave Helen alone, or tell Kevin that Helen needed to

‚sleep it off.‛ But at the summary judgment stage we recite the

facts and draw all reasonable inferences in the light most

favorable to the nonmoving party, Faucheaux. See Orvis v.

Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.

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Faucheaux v. Provo City

‘special relationship’ duty on a peace officer who responds to a

welfare check.‛

¶13 Summary judgment should be awarded only when ‚there

is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.‛ Utah R. Civ.

P. 56(c). We review a grant of summary judgment for

correctness. Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.

¶14 To prove a claim of negligence, the ‚plaintiff must

establish four essential elements: (1) that the defendant owed the

plaintiff a duty, (2) that the defendant breached that duty, (3)

that the breach of duty was the proximate cause of the plaintiff’s

injury, and (4) that the plaintiff in fact suffered injuries or

damages.‛ Hunsaker v. State, 870 P.2d 893, 897 (Utah

1993) (citations omitted). A ‚[d]uty arises out of the relationship

between the parties and imposes a legal obligation on one party

for the benefit of the other party.‛ Torrie v. Weber County, 2013

UT 48, ¶ 9, 309 P.3d 216 (citation and internal quotation marks

omitted). Furthermore, duty determinations should be expressed

in ‚relatively clear, categorical, bright-line rules of law

applicable to a general class of cases.‛ Jeffs ex rel B.R. v.

West, 2012 UT 11, ¶ 23, 275 P.3d 228 (citation and internal

quotation marks omitted). However, ‚because negligence cases

often require the drawing of inferences from the facts, which is

properly done by juries rather than judges, summary judgment

is appropriate in negligence cases only in the clearest instances.‛

Nelson v. Salt Lake City, 919 P.2d 568, 571 (Utah 1996) (citation

and internal quotation marks omitted).

¶15 To show that the defendant owed the plaintiff a duty of

care ‚is more complicated when the government is the

defendant.‛ Francis v. State, 2013 UT 65, ¶ 25, 321 P.3d 1089.

Under the public-duty doctrine, ‚[i]f a plaintiff’s claim is based

on the defendant’s failure to adequately discharge a public duty,

a presumption arises that this duty may not be a basis for

liability in a lawsuit.‛ Cope v. Utah Valley State College, 2014 UT

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53, ¶ 30. Our supreme court has defined a public duty as ‚an

obligation owed to the general public at large.‛ Id. ¶ 31 (citation

and internal quotation marks omitted). Thus, under the public-

duty doctrine ‚a governmental entity is not liable for injury to a

citizen where liability is alleged on the ground that the

governmental entity owes a duty to the public in general, as in

the case of police or fire protection.‛ John H. Derrick,

Annotation, Modern Status of Rule Excusing Governmental Unit

from Tort Liability on Theory That Only General, Not Particular,

Duty Was Owed Under Circumstances, 38 A.L.R. 4th 1194, § 2

(1985), cited with approval in Cope, 2014 UT 53, ¶ 31.

¶16 However, the public-duty doctrine ‚applies only to the

omissions of a governmental actor.‛ Cope, 2014 UT 53, ¶ 2. Thus,

‚[w]here the affirmative acts of a public employee actually cause

the harm . . . the public duty doctrine does not apply.‛ Id. ¶ 24.

Affirmative acts include ‚active misconduct working positive

injury to others, while omissions are defined as passive inaction,

[i.e.,] a failure to take positive steps to benefit others, or to

protect them from harm.‛ Id. ¶ 35 (alteration in original) (citation

and internal quotation marks omitted). A negligent affirmative

act leaves the plaintiff ‚positively worse off as a result of the

wrongful act,‛ whereas in cases of negligent omissions, the

plaintiff’s ‚situation is unchanged; [she] is merely deprived of a

protection which, had it been afforded [her], would have

benefitted [her].‛ Francis H. Bohlen, The Moral Duty to Aid Others

as a Basis of Tort Liability, 56 U. Pa. L. Rev. 217, 220 (1908).

¶17 Finally, if a plaintiff’s claims are based on an omission of a

governmental actor, ‚courts will recognize the duty only if the

plaintiff establishes a special relationship that imposes a specific

duty of care toward the plaintiff as an individual that is

distinguishable from a public duty owed to the general public.‛

Cope, 2014 UT 53, ¶ 12. To determine whether a special

relationship exists in a particular case, and thus whether a duty

exists, we have always ‚taken a policy-based approach.‛ Higgins

v. Salt Lake County, 855 P.2d 231, 236 (Utah 1993). We carefully

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Faucheaux v. Provo City

consider the consequences of imposing a duty and ‚are loath to

recognize a duty that is realistically incapable of performance or

fundamentally at odds with the nature of the parties’

relationship.‛ Id. at 237.

¶18 Our caselaw creates special relationships in at least four

circumstances:

(1) by a statute intended to protect a specific class

of persons of which the plaintiff is a member from

a particular type of harm; (2) when a government

agent undertakes specific action to protect a person

or property; (3) by governmental actions that

reasonably induce detrimental reliance by a

member of the public; and (4) under certain

circumstances, when the agency has actual custody

of the plaintiff or of a third person who causes

harm to the plaintiff.

Day v. State, 1999 UT 46, ¶ 13, 980 P.2d 1171. At issue here are

circumstances (2) and (3): whether the officers undertook specific

action to protect Helen or reasonably induced detrimental

reliance on their actions.6

¶19 Here, the district court erred in ruling as a matter of law

that the public-duty doctrine shields Provo. Faucheaux’s

negligence claim may be interpreted in one of two ways. On the

one hand, Faucheaux does allege negligent affirmative acts—not

6. On appeal, Faucheaux also argues that the district court erred

because a statute created a duty of care. But in a hearing before

the district court, Faucheaux specifically stated, ‚[W]e are not

claiming‛ that a statute created the duty here. Thus, Faucheaux

invited this alleged error, and we consequently decline to

address it. See Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366.

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Faucheaux v. Provo City

merely omissions—of the officers. See Cope, 2014 UT 53, ¶ 24.

Faucheaux alleges that the officers came to Helen’s home when

she was so intoxicated that she could hardly walk or talk; that

instead of taking her to the hospital they proceeded to tuck her

into bed, admonishing Kevin to ‚leave her alone‛ and telling

him that Helen needed to ‚sleep it off‛; and that they threatened

to arrest him if they received another call. These alleged acts

constitute ‚active misconduct working positive injury to others,‛

id. ¶ 35 (citation and internal quotation marks omitted),

especially considering our ‚societal expectation of unquestioned

[police] command‛ in such situations, Brendlin v. California, 551

U.S. 249, 258 (2007) (alteration in original) (citation and internal

quotation marks omitted). Faucheaux does not allege only that

the officers withheld a protection that would have benefitted

Helen but that the officers’ actions left Helen worse off.

Therefore, because Faucheaux can, at least in theory, trace

Helen’s death to an affirmative act by the officers, the district

court erred in ruling as a matter of law that the public-duty

doctrine shields Provo. See Cope, 2014 UT 53, ¶ 37. The officers,

Faucheaux alleges, did not merely fail to help, they hindered.

¶20 On the other hand, the officers did not actually cause the

harm. Id. ¶ 2. They did not administer the prescription

medications that Faucheaux alleges killed Helen. But even if we

were to interpret Faucheaux’s claim as based on omissions,

under Faucheaux’s version of events—and perhaps the officers’

version as well—the officers created a special relationship with

Helen. Faucheaux argues that the officers created a special

relationship by undertaking specific action to protect Helen. To

succeed on this argument, Faucheaux must show first that the

police officers ‚undertook specific action,‛ and second that

‚those actions were intended to protect a person or property.‛

See Francis v. State, 2013 UT 65, ¶ 27, 321 P.3d 1089.

¶21 Here, Faucheaux’s version of the facts supports his

allegation that the officers created a special relationship with

Helen. First, under Faucheaux’s version of events, the police

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Faucheaux v. Provo City

officers ‚undertook specific action‛ by entering Helen’s home,

asking her if she was suicidal, asking her about the powder they

found on her, and then tucking her into bed. See id. Second, these

actions ‚were intended to protect‛ Helen. See id. Thus, assuming

the truth of Faucheaux’s version of events, the officers created a

special relationship with Helen and consequently owed her a

duty to act reasonably.

¶22 We draw support for this conclusion from our supreme

court’s decision in Francis, 2013 UT 65. There, the supreme court

held that the State created a special relationship with a camper

who was mauled by a black bear because the State undertook

specific action to protect an identifiable group. Id. ¶¶ 31, 33. In

Francis, the Division of Wildlife Resources received a report

about a black bear attacking a camper. Id. ¶ 9. After the Division

learned of the attack, it decided to ‚track and destroy the bear‛

because the bear posed ‚a threat to public safety.‛ Id. ¶ 10. The

Division tracked the bear with dogs for ‚four to five hours, with

no success.‛ Id. ¶ 11. Knowing that the bear ‚would likely

return‛ to the campsite ‚if attracted,‛ the Division’s agents

‚checked the [c]ampsite to make sure it was unoccupied and

clean of any [bear] attractants.‛ Id. But the Division’s agents

‚made no effort to warn anyone who might arrive‛ at the

campsite after they left. Id. ¶ 12. As the Division’s agents left the

campsite they drove past a family heading toward the campsite.

Id. ¶ 13. The agents did not stop the family or warn them of the

earlier attack ‚but merely waved as they passed.‛ Id. After

passing the Division’s agents, the family set up the campsite and

cooked dinner. Id. ¶ 14. A little later, the bear returned, attacking

and killing one of the campers. Id. Our supreme court held that

because the Division undertook action to protect ‚the next group

to use the campsite,‛ the Division created a special relationship

with the next occupants of the campsite and that consequently

the Division owed them a duty of care. Id. ¶ 4.

¶23 Like the Division’s employees in Francis, the police

officers here did not originally have a special relationship with

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Faucheaux v. Provo City

Helen. In Francis, agents created the special relationship when

they tracked the bear, returned to the campsite, made sure the

campsite was free of bear attractants, and waved at the family

heading toward the campsite. Here, the officers created the

special relationship when they entered Helen’s home, took

control of the situation, asked Helen if she was abusing drugs

and suicidal, asked her about the powder they found on her, and

subsequently tucked her into bed, directing Kevin to leave her

alone.

¶24 Provo counters that police officers do not have a duty to

protect people from harming themselves. We agree that police

officers have no general duty to protect people from harming

themselves. But our supreme court has declared that a special

relationship arises ‚when a government agent undertakes

specific action to protect a person or property.‛ Day v. State, 1999

UT 46, ¶ 13, 980 P.2d 1171. We conclude that, under this rule, if a

police officer enters a person’s home concerned that the person

may have overdosed and undertakes specific action to protect

that person, the officer creates a special relationship with that

person and consequently must act reasonably.

¶25 We reiterate that we ‚are loath to recognize a duty that is

realistically incapable of performance or fundamentally at odds

with the nature of the parties’ relationship.‛ Higgins v. Salt Lake

County, 855 P.2d 231, 237 (Utah 1993). But to recognize a special

relationship on facts as alleged by Faucheaux does not create a

duty realistically incapable of performance. Rather, this holding

imposes on police officers the duty to act reasonably when they

enter a person’s home, undertake specific action to protect that

person, and prevent others in the home from taking protective

action.

¶26 Provo further argues that a Utah statute precludes

imposing a duty on the officers here. The statute in question

states that police officers ‚may‛ take a person into protective

custody if the officer has ‚probable cause.‛ See Utah Code Ann.

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Faucheaux v. Provo City

§ 62A-15-629(2) (LexisNexis 2012). Provo asserts that the officers

did not have probable cause here and therefore could not

remove Helen from her home. Because the officers ‚lacked the

statutory authority to forcibly remove Helen from her home,‛

Provo argues, they owed her no duty.

¶27 This argument misses the mark. Faucheaux does not

contend that the officers acted negligently only by not taking

Helen into custody. Rather, Faucheaux alleges that the officers

formed a special relationship with Helen and thus owed her a

duty to act reasonably. The officers could have discharged this

duty in a number of ways without taking Helen into custody.

And even if Provo is right ‚that the officers lacked the statutory

authority to forcibly remove Helen from her home,‛ this

argument addresses whether the officers acted reasonably, not

whether they had a duty to act reasonably. In sum, a statute

authorizing police to remove a person from her home with

probable cause does not protect them from a claim that their

actions placed her in danger and prevented others from

addressing that danger.

¶28 In conclusion, we hold that the district court erred in

ruling as a matter of law that the public-duty doctrine shields

Provo from Faucheaux’s negligence claim. First, to the extent

Faucheaux bases his claim on the affirmative negligent acts of

the officers, the public-duty doctrine is not available. Second, to

the extent Faucheaux bases his claim on alleged omissions, the

officers created a special relationship with Helen. Thus, the

district court incorrectly granted summary judgment in Provo’s

favor.

II. Utah’s Governmental Immunity Act Does Not Protect Provo

from the Officers’ Nondiscretionary Acts.

¶29 Faucheaux next contends that the district court erred in

concluding that Utah’s Governmental Immunity Act immunizes

Provo from this lawsuit. Faucheaux argues that Provo ‚is not

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immune from suit under the Governmental Immunity Act

because [the] police officers were not performing a discretionary

function when they responded to Kevin’s 911 call.‛ Provo

responds that a statute giving police discretion to detain

mentally ill persons who may harm themselves or others

illustrates the discretionary nature of the officers’ actions.

¶30 A district court’s interpretation of a statute is a question of

law. Harvey v. Cedar Hills City, 2010 UT 12, ¶ 10, 227 P.3d 256.

Consequently, we review the interpretation for correctness. Id.

¶31 Sovereign immunity, ‚rooted in the medieval British

notion that the King could do no wrong, precludes lawsuits

against governmental entities without the government’s

consent.‛ Trujillo v. Utah Dep’t of Transp., 1999 UT App 227, ¶ 13,

986 P.2d 752. Utah’s Governmental Immunity Act first grants

general immunity from suit to governmental entities. Utah Code

Ann. § 63G-7-201(1) (LexisNexis 2012). The Act then narrows

that general grant by waiving immunity for certain claims,

including claims for injuries proximately caused by ‚a negligent

act or omission.‛ Id. § 63G-7-301(4). However, the Act then

creates exceptions to those waivers of immunity. Id. § 63G-7-

301(5). For example, the Act retains immunity for injuries that

arise out of the ‚exercise or performance, or the failure to

exercise or perform, a discretionary function, whether or not the

discretion is abused.‛ Id. § 63G-7-301(5)(a).

¶32 ‚To determine whether governmental action qualifies for

the discretionary function exception,‛ we must first ask whether

the ‚challenged act, omission, or decision necessarily involve[s]

a basic governmental policy, program, or objective.‛ Johnson v.

Utah Dep’t of Transp., 2006 UT 15, ¶ 22, 133 P.3d 402 (citation and

internal quotation marks omitted). But ‚[n]ot every

governmental action involving discretion is a discretionary

function within the meaning of the Act. Were it otherwise, the

exception would swallow the rule, as almost all governmental

decisions involve some discretion.‛ Trujillo, 1999 UT App 227,

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Faucheaux v. Provo City

¶ 21 (citing Nelson v. Salt Lake City, 919 P.2d 568, 575 (Utah

1996)). ‚[D]iscretionary functions are those requiring evaluation

of basic governmental policy matters and do not include acts

and decisions at the operational level, namely those everyday,

routine matters not requiring evaluation of broad policy factors.‛

Johnson, 2006 UT 15, ¶ 31 (citation and internal quotation marks

omitted).

¶33 Utah caselaw has identified two policies that this

discretionary-function immunity serves. First, discretionary-

function immunity ‚shield[s] those governmental acts and

decisions impacting on large numbers of people in a myriad of

unforeseeable ways from individual and class legal actions, the

continual threat of which would make public administration all

but impossible.‛ Hansen v. Salt Lake County, 794 P.2d 838, 846

(Utah 1990) (citation and internal quotation marks omitted).

Second, where ‚the responsibility for basic policy decisions has

been committed to one of the branches of our tri-partite system

of government,‛ discretionary-function immunity preserves the

autonomy of coordinate branches of government by keeping

courts from ‚sitting in judgment‛ of other branches’ policy-

making decisions. Little v. Utah Div. of Family Servs., 667 P.2d 49,

51 (Utah 1983).

¶34 Our caselaw illustrates the distinction between policy-

level decisions, which qualify for discretionary-function

immunity, and operational-level decisions, which do not. For

example, this court previously held that the Utah Department of

Transportation’s formulation of a traffic-control plan, including

its decision to use barrels instead of concrete barriers to separate

traffic, did not qualify for discretionary-function immunity,

because the control plan was not ‚the product of the exercise of

policy-level discretion.‛ Trujillo, 1999 UT App 227, ¶ 33. In

contrast, our supreme court held that a decision not to raise

concrete barriers during construction qualified for discretionary-

function immunity as ‚studies of the plan, its cost, and the

degree of safety it would provide were carried out by senior

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engineers and circulated throughout and debated within the

department.‛ Keegan v. State, 896 P.2d 618, 624 (Utah 1995).

¶35 The officers’ actions as alleged by Faucheaux do not

qualify for the discretionary-function exception. Their alleged

acts and omissions include, among other things, answering

Kevin’s 911 call, evaluating Helen’s condition, asking Helen

about her prescription-drug use, failing to take Helen to the

hospital, refusing to assist Kevin in getting Helen to the car,

refusing to call emergency medical technicians, and tucking

Helen into bed. These acts and omissions do not require

‚evaluation of basic governmental policy matters.‛ Johnson, 2006

UT 15, ¶ 31 (citation and internal quotation marks omitted).

Rather, they occurred at ‚the operational level‛ and qualify as

actions ‚not requiring evaluation of broad policy factors.‛

Keegan, 896 P.2d at 623 (citation and internal quotation marks

omitted).

¶36 Nevertheless, Provo argues that it is immune from suit

because the Utah Code provides that officers ‚may‛ take a

person into protective custody against the person’s will. See Utah

Code Ann. § 62A-15-629(2) (LexisNexis 2012). But the fact that an

officer’s action required the exercise of some amount of

discretion does not qualify it as discretionary for purposes of

Utah’s Governmental Immunity Act. As stated above, ‚[n]ot

every governmental action involving discretion is a

discretionary function within the meaning of the Act. Were it

otherwise, the exception would swallow the rule, as almost all

governmental decisions involve some discretion.‛ Trujillo v. Utah

Dep’t of Transp., 1999 UT App 227, ¶ 21, 986 P.2d 752. The

relevant question asks whether the discretionary act occurred at

the ‚operational level‛ or required ‚evaluation of broad policy

factors.‛ See Johnson, 2006 UT 15, ¶ 31 (citation and internal

quotation marks omitted). The officers’ acts as alleged by

Faucheaux fall squarely into the former category.

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CONCLUSION

¶37 The district court erred in concluding as a matter of law

that the public-duty doctrine shields Provo from liability. To the

extent Faucheaux bases his negligence claim on the alleged

affirmative acts of the officers, the public-duty doctrine is not

available. Furthermore, to the extent Faucheaux bases his

negligence claim on omissions, the district court erred in ruling

that officers did not create a special relationship with Helen.

Additionally, we conclude that the Governmental Immunity Act

does not immunize Provo from the officers’ actions and

omissions. Consequently, the district court’s decision is reversed

and the case remanded for further proceedings.

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