¶1(dissenting):
¶2For the following reasons, I dissent. The notice provisions of the Governmental Immunity Act create an inconsistency which may not be rationalized by the cited excuses, viz., opportunity to investigate and to remedy any defect, the avoidance of unnecessary litigation; the avoidance of difficulties which might arise from changes of administration. These are judicially constructed excuses, without the support of any expressed legislative intention.
¶3Section 63-30-4, U.C.A.1953, as enacted 1965, provides:
. Wherein immunity from suit is waived by this act, consent to be sued is granted and liability of the entity shall be determined as if the entity were a private person. [Emphasis added.]
¶4The legislature by section 4 has expressly established a classification where immunity has been waived by the Governmental Immunity Act. The governmental entity is specifically classified as a private person.
¶5The act then proceeds by the notice requirements, in this action Sec. 63-30-12, to confer an additional benefit, viz., defense, on one private person which it does not grant to another tort-feasor. The asserted rational basis to support the classification has, in fact, been negated by legislative enactment, which has expressly declared the status of the governmental entity as that of a private person. The effect of the notice provisions is to engraft a condition precedent onto section 4, viz., immunity from suit is only waived if notice during the designated time period is filed. Such an *195interpretation creates a patent inconsistency with the express language of section 4. Under section 4, if the act or transaction involving the alleged tort falls within one of the provisions waiving immunity, such immunity is waived from the inception of the commission of the tort, and the liability of the entity is henceforth deemed that of a private person.
¶6This Court has consistently adhered to the standard set forth in State v. Mason :
It is only where some persons or transactions excluded from the operation of the law are as to the subject matter of the law in no differentiable class from those included in its operation that the law is discriminatory in the sense of being arbitrary and unconstitutional. If a reasonable basis to differentiate those included from those excluded from its operation can be found, it must be held constitutional. .
¶7Since the legislature has specified that governmental entities, where immunity has been waived, are included in the same classification as private persons, there is no reasonable basis to differentiate the governmental entities from other tort-feasors, who are excluded from the operation of the notice requirements. The notice requirements are unconstitutional.
¶8In Turner and Reich, the Nevada and Michigan Courts took an unwavering look at notice provisions, such as those we review. They correctly concluded such were barred, because equal protection of the law was denied. They also hold such provisions to be violative of due process, as to minors.
¶9In this jurisdiction we have some decisions involving minors which are in need of correction.
¶10For another example of these notice provisions as a trap for the unwary, see: Crowder v. Salt Lake County.
¶11. 94 Utah 501, 510, 78 P.2d 920, 117 A.L.R. 330 (1938).
¶12. See Turner v. Staggs, 89 Nev. 230, 510 P.2d 879, 59 A.L.R.3d 81 (1973); Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700 (1972); 59 A.L.R.3d 93, § 5(b), 111-114.
¶13. Scarborough v. Granite School District, Utah, 531 P.2d 480 (1975); Varoz v. Sevey, 29 Utah 2d 158, 506 P.2d 435 (1973); Gallegos v. Midvale City, 27 Utah 2d 27, 492 P.2d 1335 (1972).
¶14. Utah, 552 P.2d 646 (1976).