Cornwall v. Larsen

¶1(concurring with explanation).

¶2The question of negligence of a police officer driving a motor vehicle in the scope of official duty is to be determined from the provisions of Article 2, Title 41, Chapter 6, U.C.A.1953, Replacement Volume 5A. That article relates to traffic regulations and penalties for violations thereof.

¶3Section 41-6-14 provides “authorized emergency vehicles shall be exempt from the driving restrictions imposed under sections . . . ” wherein specific regulations are set forth. Subsection (a)(2) of Section 14 provides that the exemptions apply to emergency vehicles when audible signals are given as reasonably necessary and when the vehicle is equipped with at least one lighted red light, etc. The section then provides that a police vehicle need not be equipped with, or display, a red light.

¶4The driver of a police car is thus excused from the penalties provided for the violation of the named exemptions when he sounds the signal “as may be reasonably necessary.” He is under no obligation to display a red light in order to come within the exclusion.

¶5In this case there is no charge made against the officer for the violation of any law. If there were, then the question could be raised as to whether or not it was reasonable to give the audible signal.

¶6What this case is about is whether the officer is liable in a civil action to the plaintiff. Subsection (b) of Section 41-6-14 is the critical one to be examined. It provides: “The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, . .” The driver of a police car, thus, is liable in a civil action for a failure to drive with due regard for the safety of others.

¶7(concurring with comments).

¶8I concur with the conclusion reached in the majority opinion. However, I add these comments. All statutory references are to Utah Code Annotated, 1953, as amended.

¶9Traditionally, governmental entities, as the sovereign, were immune from suit and a plaintiff who was injured had to resort to taking action against the negligent employee of the sovereign.1 Individuals who were employed by a governmental entity did not enjoy immunity from their own torts, and were traditionally liable for their own negligence except under certain circumstances.2 It must be kept in mind that Chapter 30 of Title 63, is a waiver act. This act does not create immunity for governmental entities or individual tort-feasors. It rather waives the pre-existing immunity in certain instances which the governmental entity had, and provides a short limitation period within which to commence action against the government. Where the individual had no immunity prior to the Governmental Immunity Act, the act does nothing to change his liability.

¶10Defendants here argue that with the enactment of the Indemnification of Public Officers and Employees Act, Chapter 48 of Title 63 (enacted 1974), plaintiffs are now subject to the short limitation period provided for in Chapter 30, whether action is brought against the governmental entity or against its officers or employees. Their reasoning is that the governmental entity’s immunity is rendered meaningless if plaintiffs, though tardy in bringing action against the entity, may still bring action against the individual employee under the lengthier limitation period, and the individual employee may, under Chapter 48 of Title 63, by timely demand, compel the governmental entity to conduct his defense against the claim, and also to pay any resulting judgment against him. However, the Indemnification Act does not alter the Governmental Immunity Act. The express language of Sec. 63-48-7 is:

. Nothing contained in this act is intended to be in derogation of or to alter provisions of the governmental immunity act of this state or to create any individual liability or immunity for one’s acts contrary thereto. [Emphasis added.]

¶11Plaintiffs’ complaint against Salt Lake County was not filed within the limitation period set forth in Sec. 63-30-15 but it was timely filed against Sheriff Larsen and An-drus and these plaintiffs therefore should be permitted to pursue their course of action against these individuals. I see no legal reason for enlarging the umbrella of sovereign immunity to cover individuals who never had such immunity simply because the legislature has seen fit to relax the immunity which the governmental entity had traditionally.

¶12This may be a pyrrhic victory for Salt Lake County but the result, in my opinion, is inescapable.