IN THE THIRD JUDICIAL DISTRICT COURT SALT LAKE COUNTY, STATE OF UTAH

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1 Richard D. Burbidge (#0492) Jefferson W. Gross (#8339) Aida Neimarlija (#12181) BURBIDGE MITCHELL & GROSS 215 South State Street, Suite 920 Salt Lake City, Utah Telephone: Facsimile: Attorneys for Plaintiffs IN THE THIRD JUDICIAL DISTRICT COURT SALT LAKE COUNTY, STATE OF UTAH ELVIR and ZERNADA MEHANOVIC, individually and as the natural parents and heirs of Sacir Mehanovic, a minor, deceased, vs. Plaintiffs, COTTONWOOD HEIGHTS PARKS AND RECREATION SERVICE AREA, a Utah corporation; and DOES 1-50, Defendants. MEMORANDUM IN OPPOSITION TO DEFENDANT S MOTION FOR ENFORCEMENT OF LIMITATION OF JUDGMENTS AGAINST A GOVERNMENTAL ENTITY Case No Judge Mark Kouris (Tier III) Plaintiffs Elvir and Zernada Mehanovic, individually and as the natural parents and heirs of Sacir Mehanovic, a minor, by and through their counsel of record, submit the following Memorandum in Opposition to Defendant s Motion for Enforcement of Limitation of Judgments Against a Governmental Entity.

2 TABLE OF CONTENTS I. CONCISE STATEMENT OF PLAINTIFFS PREFERRED DISPOSITION OF SUBJECT MOTION...1 II. III. PLAINTIFFS RESPONSE AND OBJECTIONS TO DEFENDANT S FACTS...2 PLAINTIFFS FACTS...3 IV. PLAINTIFFS ADDITIONAL FACTS...4 V. ARGUMENT...7 A. Application Of The Utah Governmental Immunity Act To The Activities Of The Defendant In This Case Is Unconstitutional Under Article XVI, Section B. The Damages Cap Is Unconstitutional As Applied To This Case, Under The Open Courts Clause Of The Utah Constitution...14 C. The Special Use District In Question Is Not The State And Is Not Protected With Immunity Against This Wrongful Death Claim...18 VI. CONCLUSION...20 i

3 TABLE OF AUTHORITIES Cases Berry v. Beech Aircraft Corp. 717 P.2d 670 (Utah 1985)... 8, 14 Brown v. Salt Lake City, 33 Utah 222, 93 P. 570 (1908) Bybee v. Abdulla, 2008 UT 35, 189 P.3d Condemarin v. University Hospital, 775 P.2d 348 (Utah 1989) Craftsman Builder s Supply, Inc. v. Butler Manufacturing Co., 1999 UT 18, 974 P.2d DeBry v. Noble, 889 P.2d 428 (Utah 1995)... 9, 10, 11, 12, 15, 19, 20 Griffin v. Salt Lake City 176 P.2d 156 (Utah 1947) Jenkins v. Jordan Valley Water Conservancy District, 2012 UT App 204, 283 P.3d , 13 Johnson v. Salt Lake City Corp, 629 P.2d 432 (Utah 1981)... 11, 13, 17 Jones v. Carvell, 641 P.2d 105 (Utah 1982)... 8 Jones v. Ogden City, 32 Utah 221, 89 P (1907) Jordan v. Mt. Pleasant, 15 Utah 449, 49 P. 746 (1897) ii

4 Kiesel v. Ogden City, 8 Utah 237, 30 P. 758 (1892) Laney v. Fairview City, 2002 UT 79, 57 P.3d , 16 Levy v. Salt Lake City, 5 Utah 302, 16 P. 598 (1887) Lyon v. Burton 2000 UT 19, 5 P.3d , 16, 18 MacKay v. Salt Lake City, 29 Utah 247, 81 P. 81 (1905) Naylor v. Salt Lake City, 9 Utah 491, 35 P. 509 (1893) Ramirez v. Ogden City, 279 P.2d 463 (Utah 1955)... 10, 11 Scott v. Provo City, 14 Utah 31, 45 P (1895) Scott v. Universal Sales, Inc., 2015 UT 64, 356 P.3d , 17 Scott v. Univ. of Utah Hosp. and Med. Center No (3rd Dist. Ct., Nov. 10, 2015)... 17, 18 Scoville v. Salt Lake City, 11 Utah 60, 39 P. 481 (1895) Smith v. U.S., 2015 UT 68, 356 P.3d Standiford v. Salt Lake Corporation, 605 P.2d 1230 (Utah 1980)... passim Thomas v. Clearfield City, 642 P.2d 737 (Utah 1982) iii

5 Thomas v. Springville City, 9 Utah 426, 35 P. 503 (1893) Tindley v. Salt Lake City School District, 2005 UT 30, 116 P.3d Yearance v. Salt Lake City, 6 Utah 398, 24 P. 254 (1890) Statutes Article I, section 11 of the Utah Constitution... 1, 7, 8, 15 Article XVI, section 5 of the Utah Constitution... 1, 7, 8, 9 Utah Code Ann., , Utah Code Ann., section 17D Utah Code Ann. 63G passim iv

6 CONCISE STATEMENT OF PLAINTIFFS PREFERRED DISPOSITION OF SUBJECT MOTION The issue before the Court does not turn on whether the Utah Governmental Immunity Act, on its face, applies in this case. Utah Code Ann. 63G et seq. It does. Rather, the issue before the Court turns on whether the Utah Governmental Immunity Act, and its damage cap, as applied to this wrongful death case, violate: (1) Article XVI, section 5 of the Utah Constitution (their Wrongful Death provision), which provides in pertinent part: The right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation.[emphasis supplied]; Or, (2) Article I, section 11 of the Utah Constitution (the Open Courts Provision ), which provides in pertinent part: 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. The governmental or quasi-municipal corporate status of a negligent party such as Defendant does not determine whether that Defendant enjoys immunity and thus can reduce judgments for its negligence. In this instance, the Defendant was engaged in a clearly non-core governmental activity, or in the pre-standiford vernacular, proprietary activity. Entities like Defendant did not enjoy immunity for such non-core governmental activities before or after adoption of the Utah Constitution and do not enjoy such immunity now. 1

7 This is not a case of first impression. The Supreme Court has consistently ruled, on multiple occasions, that any legislative attempt to cloak with immunity any activities of governmental entities which are not core governmental functions, is constitutionally prohibited. Such activities were not, and are not, susceptible of immunity or any form of quasiimmunity through an artificial cap on damages awarded by a jury. Accordingly, Defendant s motion should be denied. PLAINTIFFS RESPONSE AND OBJECTIONS TO DEFENDANT S FACTS Defendant purports to set forth, in a section entitled Facts, selected quotes from statutory provisions. (See Defendant s Memorandum, pages 3-6, 1-8.) These are not facts but legal arguments, and they are incomplete. The referenced quotes go to the issue of the legal organization of Defendant and its right to conduct operations such as the swimming pool in question. These are not the issues before the Court. The issue before the Court is whether the Utah Constitution allows the Defendant immunity in non-core governmental activities. As more fully addressed within the Argument section of this memorandum, it does not. Further, under Facts, in paragraphs 10 and 11 of its memorandum (pp. 6-7), Defendant purports to supplement the record in this case with asserted facts concerning characteristics of the subject pool, the need for same, and its competitive position with private pools and the surrounding municipal areas. However, the facts that govern the disposition of this case are to be found within the record of this case and nowhere else. Plaintiffs object to those facts as outside the record. 2

8 This record admits of no further supplementation or speculation concerning the operation, finances, or other activities of the Defendant. The burden to establish the applicability of any damage cap lay with Defendant at trial. None of the evidence presented in the Declaration filed with this motion is found in the trial record. Therefore, such evidence must be disregarded. Defendants also object to the Facts on the grounds that they are wholly irrelevant to the legal argument presented to this Court. As more fully examined in the argument below, all of the activities pertinent to this case involve recreational activities which are, by clear and consistent Utah Supreme Court opinions, not core governmental functions or functions that a government must do as opposed to what governments can do. PLAINTIFFS FACTS 1. This case was tried to a jury between December 5-9, 2016, and the jury, having heard all of the evidence presented, rendered the verdict of $750,000 for the survival claim of Sacir Mehanovic and $2.25 million to each of the parents for the loss of Sacir s life and relational interests. 2. Defendant, a special use district and quasi-municipal corporate entity, engaged in the business of operating a public swimming pool for which it charged admission. 3. On the day that Sacir died, Mr. Mehanovic paid an admission fee for himself and his son for recreational use of the pool. 4. The non-core governmental activity before the Court is the operation of a public swimming pool for a fee payment. 3

9 PLAINTIFFS ADDITIONAL FACTS While Plaintiff asserts that no additional facts brought forward from outside the trial record are admissible on this or any other factual issue in this case, out of an abundance of caution, Plaintiffs provisionally file herewith the Declaration of Amedee Moran, General Manager of the Salt Lake County Club in Salt Lake City, Utah, attached as Exhibit A hereto. Mr. Moran s declaration responds to that of Mr. Wayne Johnson s and provides the following facts: 1. The assertion that there are no non-governmentally owned facilities that compete directly with Cottonwood Heights Recreation Center (the Rec Center ) in providing recreational swimming opportunities is simply incorrect. Operating a swimming pool is clearly not a unique governmental function. (Moran Decl. at 10.) 2. As Mr. Johnson states in his declaration, years ago, some residents of Salt Lake County recognized the importance of providing recreational swimming facilities and were successful in building several pools. (Johnson Decl. at 8.) However, there are numerous nongovernmentally operated swimming pools which can be used for general recreation in the Salt Lake Valley and which compete with the Rec Center. Some of them include: (a) (b) (c) (d) (e) Salt Lake Tennis & Health Club Jewish Community Center Treehouse Athletic Club The Sports Mall Life Center Athletic Club 4

10 (f) (g) (h) Eagle Ridge Tennis & Swim Club Cottonwood Country Club VASA Fitness which owns several locations which provide swimming opportunities. (Id. at 11.) 3. With respect to the access to the pools, there are different options for the public. (Id. at 12.) 4. For example, the Life Center Athletic Club and the Jewish Community Center do not require that one becomes a member to use their facility. (Id. at 13.) 5. The JCC allows daily entrance with no requirements of any type of commitment and their daily entrance fee is $8.00 for children and $16.00 for adults. The entrance fee includes not only access to the swimming pool, but also to all other amenities, including special classes, which normally cost extra at the Recreation Center. (Id. at 14.) 6. The Life Center Athletic Club s daily entrance fee is $6.50, and one must buy a 10-day-punch pass to use the facility for $65. (Id. at 15.) 7. Like the Rec Center, there are many places which have swimming pools and provide various options for membership. For example, many of the above-referenced clubs offer three-month summer membership which costs $60/month. (Id. at 16.) 8. Vasa, for example, allows the public to buy a yearly membership and have unlimited use of the swimming pools for $19.85 per month, which is not much more than what the Cottonwood Heights Rec Center charges a non-resident to use its swimming pool for a day. 5

11 Vasa also sometimes runs specials when the entire month costs only $10. Also, some places like Vasa also allow options of doing a month-to-month membership. (Id. at 17.) 9. The Rec Center yearly memberships for non-residents is commensurate in price with some other facilities memberships, such as Vasa. For example, in 2014, the Rec Center charged for a yearly membership for non-residents of Cottonwood Heights $270 for the Basic; $420 for Premium and $560 for the Ultimate. The Ultimate membership is similar to Vasa s basic membership in that it allows unlimited group fitness classes, basketball and other amenities. (2014 Facilities Guide, pp , Moran Decl., Ex. A.) Vasa s yearly membership is approximately $240 (but could be less with promotions). (Id. at 18.) 10. It is also worth noting that the daily ticket to the Rec Center swimming pool allows access only to the swimming pool. Any other aquatic activity or program, as well as other programs offered by the Rec Center, cost additional. (2014 Facilities Guide, p.12., Moran Decl., Ex. A.) (Id. at 19.) 11. Mr. Johnson states that there have been no non-governmental swimming pools capable of hosting competitive swimming competitions in Salt Lake County since (Johnson Decl. 4.) This case does not involve a drowning at a swimming competition. Also, the Rec Center s Pools schedule for June 8-June 21, 2014, (Johnson Decl., Exhibit B,) demonstrate that the primary purpose of the outdoor swimming pool at the Rec Center in the summer time was simply for enjoyment and open swimming. The Rec Center does have a 25- yard pool and a 50-meter pool; but the 50-meter length pool is not used in any high school swim events. (Id. at ) 6

12 12. Mr. Johnson does state that there are some privately owned swimming facilities with competition swimming pools such as the Brigham Young University, but he claims they are rare. (Johnson Decl., 9.) (Id. at 23.) 13. There are, actually, several non-governmentally operated swimming pools capable of hosting, and in fact do host, competitive swimming competitions. All these pools are 25 yards in length. The Life Center Athletic Club and the other athletic centers listed above also have 25-yard swimming pools. (Id. at 24.) 14. Similarly, the Country Club has a 25-yard swimming pool and it hosts swim meets and competitions. The Country Club s swim team competes against other teams from athletic clubs, country clubs and home owner associations. (Id. at 25.) ARGUMENT As referenced above, the Governmental Immunity Act is unconstitutional if it is applied to limit or abrogate damages in this wrongful death claim. This is based on two constitutional provisions, namely, Article XVI, section 5 ( Wrongful Death provision), and Article I, section 11 ( Open Courts provision ). Each will be addressed below, but both share the common issue that they turn on whether the negligent activities of the Defendant are the type considered by the Utah Supreme Court to be core governmental functions. A. Application Of The Utah Governmental Immunity Act To The Activities Of The Defendant In This Case Is Unconstitutional Under Article XVI, Section 5. As referenced above, Article XVI, section 5 states: 7

13 The right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation. (Emphasis supplied.) This constitutional protection accords wrongful death claims unique protection. To that effect, in Bybee v. Abdulla, 2008 UT 35, 18-19, 189 P.3d 40, the Utah Supreme Court held: Despite the absence of discussion or debate about Article XVI, section 5 in the Journal of Constitutional Proceedings, we have attributed the incorporation of the wrongful death cause of action into our constitution to the perceived importance of the right and to a desire to remove any uncertainty in our state about its viability. Id. [Jones v. Carvell, 641 P.2d 105, 107 (Utah 1982)]. Also, constitutional protection of the right serves to set it apart from the unsettled status of the right to recover for wrongful death elsewhere. Id. We have previously acknowledged that the wrongful death action s constitutional status entitles it to special protection against attempts to pare back its scope. In Berry v. Beech Aircraft Corp., we interpreted article I, section 11 of the Utah Constitution, known commonly as the open courts clause, to restrict the Legislature's prerogative to abrogate causes of action or their remedies. 717 P.2d 670, 680 (Utah 1985). We held that the Legislature could alter or abolish most causes of action so long as it provided a reasonable alternative remedy or if the legislative action was shown to be a reasonable way to eliminate a clear social or economic evil. Id. We observed that owing to its constitutional status, the right protected by article XVI, section 5 entitles it to a particularized application of the open courts provision, one not susceptible to legislative encroachment even under circumstances that would satisfy the conditions under which Berry would permit the elimination or limitation of other causes of action or their remedies. Id. at 683. Berry's treatment of article XVI, section 5 is both consistent with and made inevitable by our pre-berry pronouncement that the provision was directed at preventing the Legislature from abolishing a right of action for wrongful death, whether in a wholesale or piecemeal fashion. (Emphasis supplied.) In its most recent articulation, the Utah Supreme Court, in Smith v. U.S., 2015 UT 68, 356 P.3d 1249, ruled (on a question certified from the United States District Court) that the 8

14 damage cap in Section 78B of the Malpractice Act was not constitutionally permissible as applied to wrongful death cases. In that regard, the Court held: It is against this legal backdrop that the framers adopted the constitutional provision protecting the recovery of damages for wrongful death. Accordingly, article XVI, section 5 protects recovery of economic damages compensation for the loss of the reasonably-anticipated net financial productivity of the deceased and the costs occasioned by the death. It also protects recovery of certain noneconomic damages designed to compensate for the loss of the assistance, association, care, comfort, companionship, nurture, pleasure, protection, society, and support of the deceased. Because such damages were available at the time our constitution was adopted, they shall not be subject to any statutory limitation. But those damages for the mental anguish and suffering of survivors, which were not available at the time of statehood, may be limited by the Legislature. Id. at 15 (emphasis added). Accordingly, whether the application of the Utah Governmental Immunity Act in this case unconstitutionally limits the damages on an action for wrongful death turns on this question: whether, at the time the Constitution was entered into, a claimant had the right to bring the action for wrongful death against a governmental unit for a proprietary or non-core governmental activity, such as that involved in this case. Fortunately, the Utah Supreme Court clearly defined the constitutional boundary for governmental immunity concerning such activities long before this case appeared, and made clear that at the time the Utah Constitution was adopted, governmental entities engaging in noncore governmental (or in the prior vernacular, proprietary ) activities were not immune from suit for injuries inflicted on others. DeBry v. Noble, 889 P.2d 428, 432 (Utah 1995). In that regard, the Utah Supreme Court in 1980, in Standiford v. Salt Lake Corporation, 605 P.2d 1230 (Utah 1980), abandoning the governmental proprietary distinction, held: 9

15 We therefore hold that the test for determining governmental immunity 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.... Id. at (emphasis added). Addressing a sledding accident on a golf course owned by a municipal corporation, the Court held that such recreational activity did not meet the test for core governmental activity so as to be protected with immunity and/or a damage cap. The Standiford court further held that its definition of core governmental activity was... in accordance with the reality of today s governmental operation and planning. Because the Utah Governmental Immunity Act authorizes the procurement of governmental insurance protection, the governmental entities may sensibly budget to include insurance premiums for tort claims arising out of the operation of such things as public golf courses. Id. at 1237 (emphasis added). Subsequent to the issuance of the Standiford decision, the Utah Supreme Court explained that the Standiford test, in effect, stated the essence of the scope of the immunity that was recognized in the early Utah cases, and is consistent with the underlying concept of governmental immunity as it existed at statehood. DeBry, supra, 889 P.2d at 440 (emphasis added). It is stunning that counsel argues that prior cases which found the operation of swimming pools proprietary, are no longer controlling. Counsel does so without mentioning the long line of Utah Supreme Court opinions, including DeBry, supra, wherein the Supreme Court reviewed the prior and inconsistent use of the proprietary and governmental distinction, and cited cases represented in Defendant s memorandum, including the decision in Ramirez v. Ogden City, 279 P.2d 463 (Utah 1955), as object lessons on why the Standiford standard was articulated. In 10

16 that regard, Justice Stewart, writing the opinion of the Court in DeBry, commented on an example of an earlier and now disavowed test for governmental function as something done or furnished for the public good, citing Ramirez v. Ogden City, supra. See Debry, 889 P.2d at 439. The Utah Supreme Court in DeBry then made clear that the controlling standard, then and at the time of the adoption of the Constitution, was the Standiford test, and provides that: [T]he test for determining governmental immunity 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 governmental activity. Standiford, supra, 605 P.2d at (emphasis added). A year after the Standiford decision, the Court in Johnson v. Salt Lake City Corp, 629 P.2d 432, 434 (Utah 1981), again held that the operation of a public sledding hill, on a municipal golf course, or any other recreational activity, did not and could not meet the Standiford test. In that regard, the Supreme Court stated, We think it evident that a governmental entity's provision of winter recreation does not qualify for immunity under this [Standiford] test. Id. The Court went on to hold: The first part of the Standiford test activity of such a unique nature that it can only be performed by a governmental agency does not refer to what government may do, but to what government alone must do. The provision of recreational opportunities is not in that category. Nor does recreation fit within the second part of the Standiford test essential to the core of governmental activity, which refers to 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. Id. (emphasis added). A few years later, the Utah Supreme Court, in Thomas v. Clearfield City, 642 P.2d 737 (Utah 1982), held that collecting and disposing of sewage was not essential to the core of 11

17 governmental activity, under Standiford. In that regard, the Court addressed the City s argument as follows: The City argues that the maintenance of sewer is essential to the core of governmental activity under the Standiford test because the legislature has given municipalities the power and duty to provide sanitary sewer systems within their respective jurisdictions and the power to enforce mandatory hookups. Utah Code Ann., , These considerations surely establish the operation of a sanitary sewer system is a governmental function for purposes of the municipalities authority to operate, but it does not follow that this function automatically qualifies for governmental immunity as essential to the core of governmental activity. The whole history of governmental immunity controversy is replete with circumstances where government has the authority to operate but where its operations do not enjoy governmental immunity. Id. at 739 (emphasis added). In Jenkins v. Jordan Valley Water Conservancy District, 2012 UT App 204, 283 P.3d 1009, the Court of Appeals similarly held that the operation of water lines did not meet the Standiford test. In that regard, the court held: Contrary to the District's suggestion, we are not convinced that these post- Standiford decisions support the conclusion that the provision of water by the District would also have been treated as a governmental function. Unlike the fire fighting activities in Lyon or the government licensing and inspections of buildings at issue in DeBry, the provision of water has not been historically treated as a governmental function. Id. at 78 (emphasis added). Finding such immunity to be against the public interest, the Court went on to observe: Moreover, we are not convinced that granting the District immunity for its negligence in failing to replace Identified Pipe within a reasonable time will result in an overall loss of safety or welfare to the community. See Lyon, 2000 UT 19, 41, 5 P.3d 616. Rather, allowing a negligence claim to proceed under the circumstances of this case will promote public safety and welfare, see DeBry v. Noble, 889 P.2d 428, (Utah 1995), by encouraging water conservancy districts to respond reasonably to identified risks of failure in their equipment. In turn, the replacement of Identified Pipe within a reasonable time will advance public safety and welfare by preventing damage to 12

18 property and avoiding accidents caused by released water that could lead to personal injury or death. Id. at 79 (emphasis added). The observations made by the Court in Jenkins, supra, are particularly appropriate in this case, where extravagant mismanagement and lack of training and testing were found to be instrumental in bringing about the death of Sacir Mehanovic. To the same effect, the Supreme Court found municipal operation of an electric power system was not immune in Laney v. Fairview City, 2002 UT 79, 72, 57 P.3d 1007, and the operation of a hospital was found not to be a core governmental function in Condemarin v. University Hospital, 775 P.2d 348, 366 (Utah 1989). The Defendant posits that the operation of a public pool is beneficial for the residents in or around the special use district. This may well be true, and it is not the Plaintiffs purpose here to argue against governmental entities involving themselves in competition with other commercial activities. As the Supreme Court in Johnson v. Salt Lake City Corp. observed, the test is not what a government may do, but what government alone must do. 629 P.2d at 434 (emphasis added). Historically, the operation of swimming pools has simply never been seen as a core governmental function and cannot remotely meet the Standiford test. To that effect (and long before its Standiford decision), the Utah Supreme Court in Griffin v. Salt Lake City, made the following observation: We confess our utter inability to perceive any act of a governmental nature which the city exercises in owning, operating, and conducting the bathhouses and swimming pools[.] 176 P.2d 156, 160 (Utah 1947). 13

19 Because the right to bring suit for wrongful death against a governmental entity, engaged in non-core governmental activity, existed at the time the Utah Constitution was adopted, the wrongful death claims cannot be abrogated, nor can the damages be limited by the legislature. That could only occur by constitutional amendment. B. The Damages Cap Is Unconstitutional As Applied To This Case, Under The Open Courts Clause Of The Utah Constitution. The Court should also conclude that applying the damages cap in this case would violate the Open Courts clause of the Utah Constitution. As above referenced, the Open Courts provision provides as follows: 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. Utah Const., art. I, 11. In the seminal case, Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), the Court held that the Open Court s Provision provided substantive protection for existing remedies for injuries and property loss. The Court held that the legislature is not free to arbitrarily abrogate legal remedies for injuries to one s person, property or reputation. As Judge Stewart noted in Craftsman Builder s Supply, Inc. v. Butler Manufacturing Co., 1999 UT 18, 75, 974 P.2d 1194: Berry held that the Legislature is not free to abrogate legal remedies for injuries to one's person, property, or reputation for arbitrary or capricious reasons. To achieve that purpose, Berry established a two-part test to determine the constitutionality of a statute which abrogates remedies that vindicate the interests protected by section 11: 14

20 First, section 11 is satisfied if the law provides an injured person an effective and reasonable alternative remedy by due course of law for vindication of his constitutional interests. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one's person, property, or reputation, although the form of the substitute remedy may be different... Second, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective. Accordingly, the Open Courts provision restricts the legislature s ability to pass laws that abrogate a cause of action existing at the time of the law s enactment. See Scott v. Universal Sales, Inc., 2015 UT 64, 52, 356 P.3d In that regard, the Utah Supreme Court held: Id. at 54. To determine whether the Governmental Immunity Act violates the open courts clause in a particular case, [Utah courts] look to see whether the plaintiff could have brought his or her cause of action prior to because 1987 is the highwater mark of governmental liability in Utah[.] In that regard, the Utah Supreme Court in DeBry, supra, stated: [W]e note that in 1987 the Legislature amended the Act [Governmental Immunity Act] by adding (4)(a), which vastly expanded the scope of the term governmental function and therefore the scope of governmental immunity by making all government acts subject to immunity, regardless of whether the actions were deemed essential, core, or uniquely governmental activities. The amendment, in effect, made the right to sue the state dependent entirely upon legislative grace expressed in a statutory waiver of immunity. By defining the term governmental function to cover all governmental acts, the amendment extended the scope of governmental immunity far beyond the common law doctrine of sovereign immunity as if the guaranteed remedy provision in article I, section 11 had no bearing on the scope of governmental immunity. 889 P.2d at

21 Therefore, in determining whether the act is unconstitutional as applied to the government activity in question, the Court must discern if the plaintiff could have brought the cause of action prior to To do that, the Utah courts are to apply the Standiford test. Scott, supra, 2015 UT 64 at 60. As the Utah Supreme Court stated in Tindley v. Salt Lake City School District, 2005 UT 30, 116 P.3d 295: The 1987 amendment substantively expanded the scope of immunity established by the Act, providing immunity for activities that were once deemed proprietary and, therefore, had not been covered by immunity under the common law. See Laney, 2002 UT 79 at 53, 57 P.3d 1007 ( By defining a governmental function as any act of a governmental entity, whether or not the activity is characterized as governmental or proprietary, the 1987 amendment effectively grants immunity protection for some activities that were formerly considered proprietary and were not entitled to immunity. ). Accordingly, to determine whether the Act, or its 1987 amendment, abrogates a cause of action existing at the time of its enactment, id. at 50, we must determine whether plaintiffs would have had a right to bring their cause of action against the District at any time prior to If not, the Act does not abrogate an existing remedy, thereby terminating our analysis. If, however, plaintiffs would have been able to bring suit against the District prior to 1987, we must then determine whether the Act's abrogation of that cause of action is permissible under Berry. Our jurisprudence has established a distinct test, based on our opinion in Standiford, for determining whether the Act in its current form abrogates a cause of action that existed prior to its enactment. Under this test, we assess whether the activity giving rise to the cause of action is of such a unique nature that it can only be performed by a governmental agency or that... is essential to the core of governmental immunity. Laney, 2002 UT 79 at 52, 57 P.3d 1007 (quoting Standiford, 605 P.2d at ); see Lyon, 2000 UT 19 at 35, 5 P.3d 616 (recognizing that the Standiford test reflect[s] the proper constitutional boundary between those governmental activities that implicate the open courts clause and those that do not). Id. at (emphasis added). 16

22 Accordingly, the test for this Court under the Open Courts provision of the Constitution is: could the Mehanovic family have brought an action against the Defendant respecting its operation of a swimming pool before the 1987 Amendment of the Governmental Immunity Act. The answer is yes, because the Defendant could not meet the Standiford test and has not and could not show that the activity is of such a unique nature that it can only be performed by a governmental agency or is essential to the core of governmental activity. As the Court repeated in Scott v. Universal Sales: The first category does not refer to what government may do, but to what government alone must do. (Citing Johnson v. Salt Lake City Corp., 629 P.2d 432, 434 (Utah 1981) UT 64 at 61 (emphasis in original). Accordingly, it is clear that the Governmental Immunity Act would unconstitutionally deprive the Mehanovics of their claim for relief for wrongful death under the Open Courts provision of the Utah Constitution. As applied to the activity at issue in this case, the Defendant cannot remotely meet the Berry test, and does not ever attempt to show it could do so. In the first instance, there is not a remedy of equal value provided. The statutory cap is $702,000 and the jury has found that appropriate damages are $5.25 million. Further, of course, the failure to supply an adequate remedy cannot be excused based upon justification that it is attempting to eliminate a clear social or economic evil. In that regard, a non-core governmental or proprietary function could simply never qualify such a justification. Recently, District Judge Su Chon of this Court declined to apply Governmental Immunity Act s damages cap to a multi-million-dollar jury verdict on the ground that this would violate the Open Courts clause. Scott v. Univ. of Utah Hosp. and Med. Center, No (3rd Dist. 17

23 Ct., Nov. 10, 2015) (Exhibit B hereto). In reaching this conclusion, Judge Chon determined that the medical services provided by the defendant University of Utah state hospital do not qualify as a governmental activity under the Standiford test. Id. at 6-7. By contrast, in this case, the Defendant does not even purport to argue that even if the pool operation of the Defendant were somehow to be considered a core governmental function, it could remotely meet the Berry test. C. The Special Use District In Question Is Not The State And Is Not Protected With Immunity Against This Wrongful Death Claim. Finally, the Defendant argues that because the GIA defines Governmental entity as the State and its political subdivisions as both are defined in this section, the Defendant must be considered as the State. That, of course, is not remotely what the GIA provides. In fact, in Section 63G (7), Political subdivisions are separately defined from the State. In that regard, the term Political subdivision is defined as: any county, city, town, school district, community reinvestment agency, special improvement or taxing district, local district, special service district, an entity created by an interlocal agreement adopted under Title 11, Chapter 13, Interlocal Cooperation Act, or other governmental subdivision or public corporation. In contrast, under Section 63G (9), the term State is defined as: the state of Utah, and includes each office, department, division, agency, authority, commission, board, institution, hospital, college, university, Children's Justice Center, or other instrumentality of the state. Accordingly, the Defendant, as an artificial quasi-municipal corporation, is neither the State of Utah, nor the county in which it operates. It is a separate juristic entity. To that point, the Court in Lyon v. Burton, 2000 UT 19, 79-80, 5 P.3d 616, held that a fire protection district 18

24 was not the state or an agency of the state, and held that the special use district was liable for costs of suit. Further, by its legislative authorization in Utah Code Ann., section 17D-1-103, the Defendant, as a special use district, is given the power to enter into contracts with the state and other agencies, and the power to sue and be sued. Its bond obligations under section 17D are not an obligation of any other entity, including but not limited to the state. In that respect, section 17D specifically provides: A special service district bond, note, or other obligation or indebtedness, whether or not payable from taxes, may not be: (1) considered to be a bond, note, or other obligation or indebtedness of or to be enforceable against the state or a county, municipality, school district, or other political subdivision of the state; or (2) taken into account in calculating a debt limit applicable to the state or a county, municipality, school district, or other political subdivision of the state. As noted above, in DeBry, the Court provided a history of governmental entities held liable in tort. See 889 P.2d at That history included the following: Even before 1896, this Court had recognized exceptions to the governmental immunity that were based on a theory and logic that allowed the exceptions to expand as the role of government in the lives of individuals became more pervasive and the nature and number of the governmental activities increased. Quoting Kiesel v. Ogden City, 8 Utah 237, 30 P. 758 (1892), the DeBry court went on to emphasize: A number of subsequent cases held that municipalities either were or could be held liable for negligence in a variety of activities. Levy v. Salt Lake City, 5 Utah 302, 16 P. 598 (1887) (Levy II ) (construction of ditch); Yearance v. Salt Lake City, 6 Utah 398, 24 P. 254 (1890) (obstruction in street); Thomas v. Springville City, 9 Utah 426, 35 P. 503 (1893) (maintenance of bridge); Naylor v. Salt Lake City, 9 Utah 491, 35 P. 509 (1893) (obstruction in street); Scoville v. Salt Lake 19

25 City, 11 Utah 60, 39 P. 481 (1895) *438 (nonremoval of ice from sidewalk); Scott v. Provo City, 14 Utah 31, 45 P (1895) (maintenance of streets); Jordan v. Mt. Pleasant, 15 Utah 449, 49 P. 746 (1897) (construction of barriers and ditches to control flooding); MacKay v. Salt Lake City, 29 Utah 247, 81 P. 81 (1905) (maintenance of bridge); Jones v. Ogden City, 32 Utah 221, 89 P (1907) (obstruction in street); Brown v. Salt Lake City, 33 Utah 222, 93 P. 570 (1908) (maintenance of water system used by public). Debry, 889 P.2d at The Debry Court continued: It has been argued, and some later cases asserted, that a statutory waiver of immunity was necessary for a case to be brought against a governmental agency. The argument rested on a plainly erroneous construction of a statute enacted in 1898 in which the Legislature acknowledged, and in effect ratified, the judicially created doctrine of municipal liability. See Utah Rev.Stat. 312 (1898). In fact, the statute did not purport to waive sovereign immunity. It merely established a procedural requirement that a claim for negligence against a city or town had to be presented to a city or town council within a certain time before an action could be maintained. Brown v. Salt Lake City, 33 Utah 222, 233, 93 P. 570, 572 (1908). Id. (footnote omitted). CONCLUSION This tragic case was brought about by mismanagement of a special use district engaging in the non-core governmental commercial function of operating a public, fee-based swimming pool. It had the right to buy insurance and did so for the express purpose of compensating those individuals who were harmed by its carelessness. The Mehanovic family fell victim to Defendant s institutional dysfunction and negligence, and their right to recover full damages for Sacir s wrongful death is preserved and protected by the Utah Constitution against any legislative abrogation or limitation. // // 20

26 Accordingly, the constitutional protection should be honored and the Judgment should not be reduced nor abrogated in any way. DATED this 15th day of February, BURBIDGE MITCHELL & GROSS /s/ Richard D. Burbidge Attorneys for Plaintiffs 21

27 CERTIFICATE OF SERVICE THE UNDERSIGNED certifies that copies of the foregoing were served upon the persons named below, in the manner indicated, on the 15th day of February, Nate N. Nelson Michael Hansen Bret W. Rawson Jeremy G. Jones NELSON JONES, PLLC 8941 South 700 East, Suite 203 Sandy, UT And Mark F. James Mitchell A. Stephens HATCH, JAMES & DODGE, P.C. 10 West Broadway, Suite 400 Salt Lake City, UT Attorneys for Defendant Cottonwood Heights Parks and Recreation Service Area [ ] U.S. Mail [ ] Federal Express [ ] Hand Delivery [ ] Telefacsimile [ ] [X] Electronic [ ] U.S. Mail [ ] Federal Express [ ] Hand Delivery [ ] Telefacsimile [ ] [X] Electronic s/ Cathie Smith 22