Winkler v. Lemieux

2014 UT App 141
_________________________________________________________
THE UTAH COURT OF APPEALS
SHELBY WINKLER,
Plaintiff and Appellant,
v.
ROBERT LEMIEUX, STATE OF UTAH, AND UTAH DEPARTMENT OF
TRANSPORTATION,
Defendants and Appellees.
Memorandum Decision
No. 20130130-CA
Filed June 19, 2014
Third District Court, West Jordan Department
The Honorable Mark S. Kouris
No. 120402573
Gregory S. Wright, Attorney for Appellant
Sean D. Reyes and Peggy E. Stone, Attorneys
for Appellees
JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.
PEARCE, Judge:
¶1 Shelby Winkler alleges that she was injured in a vehicle
collision that occurred after an employee of the Utah
Department of Transportation negligently allowed two cars
travelling in opposite directions to use the same lane through a
construction zone. Winkler, the driver of one of the cars, brought
suit against the Utah Department of Transportation, the State of

Winkler v. Lemieux
20130130-CA 2 2014 UT App 141
Utah, and the other driver.1 The district court dismissed UDOT
from the suit after ruling that UDOT was immune from liability
under the Governmental Immunity Act of Utah.2 We reverse the
district court’s ruling and remand for further proceedings.
¶2 Winkler was driving up Little Cottonwood Canyon when
she encountered a UDOT work zone. UDOT had limited traffic
to one of the two lanes in the work zone and was alternating the
use of the open lane between eastbound and westbound
vehicles. A UDOT employee, referred to as a flagger, was tasked
with controlling eastbound access to the work zone, while
another UDOT employee apparently controlled westbound
access. The flagger initially stopped Winkler before signaling
that she could enter the work zone and drive east in the open
lane. While Winkler was traversing the work zone, a westbound
vehicle driven by Robert Lemieux struck her vehicle head on.
¶3 Winkler brought negligence claims against UDOT and the
other driver. UDOT moved to dismiss the claims against it,
arguing that it was exempt from liability under the
Governmental Immunity Act of Utah. See generally Utah Code
Ann. §§ 63G-7-101 to -904 (LexisNexis 2011 & Supp. 2013). After
oral argument, the district court agreed, ruling that ‚the
licensing exception to the waiver [of governmental immunity] is
in force here.‛ Accordingly, the district court dismissed UDOT
as a defendant.
¶4 On appeal, Winkler contends that the district court erred
by dismissing UDOT, because the flagger’s instruction to
1. Although other defendants were initially named, those
defendants have since been dismissed and are not party to this
appeal.
2. Because the State is involved in this case only through UDOT,
and because the State and UDOT filed a single brief with
coextensive arguments, we refer to them as a single entity—
UDOT—throughout.

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20130130-CA 3 2014 UT App 141
Winkler to use the open lane did not constitute the issuance of
an approval or authorization within the meaning of the Act. ‚*A+
district court’s dismissal of a case based on governmental
immunity is a determination of law that we afford no deference.
We review such conclusions for correctness.‛ Wheeler v.
McPherson, 2002 UT 16, ¶ 9, 40 P.3d 632 (citations omitted).
¶5 We typically apply a three-part test to determine whether
a governmental entity enjoys immunity under the Act for the
challenged activity. Thayer v. Washington County Sch. Dist., 2012
UT 31, ¶ 8, 285 P.3d 1142. ‚The test assesses (1) whether the
activity undertaken is a governmental function; (2) whether
governmental immunity was waived for the particular activity;
and (3) whether there is an exception to that waiver.‛ Id. (citation
and internal quotation marks omitted).
¶6 In this case, the parties agree that the first two inquiries
are not at issue. The flagger’s signal to Winkler to travel through
the construction zone was a governmental function. See Utah
Code Ann. § 63G-7-102(4) (LexisNexis 2011). Governmental
immunity for the flagger’s activity is therefore waived, unless an
exception applies, because we accept as true Winkler’s allegation
that the flagger’s negligence caused the accident. See id. § 63G-7-
301(4) (waiving governmental immunity for an employee’s
negligent acts committed within the scope of employment,
subject to certain exceptions); Horton v. Royal Order of the Sun,
821 P.2d 1167, 1167–68 (Utah 1991) (‚In deciding whether the
trial court properly dismissed the action . . . , we accept the
factual allegations of the complaint as true and consider them
and all reasonable inferences drawn therefrom in a light most
favorable to [the] plaintiff.‛).
¶7 The parties disagree about the third part of the test, which
considers whether one of twenty-one enumerated exceptions
applies.3 The district court determined that the so-called
3. Since the events giving rise to this case, our legislature has
amended the statute to add a twenty-second exception. See H.B.
(continued . . .)

Winkler v. Lemieux
20130130-CA 4 2014 UT App 141
Licensing Exception insulated UDOT’s alleged negligence from
suit. See Utah Code Ann. § 63G-7-301(5)(c). The Licensing
Exception provides that governmental immunity is not waived
for injuries resulting from ‚the issuance, denial, suspension, or
revocation of . . . any permit, license, certificate, approval, order,
or similar authorization.‛ Id.
¶8 The Utah Supreme Court most recently addressed the
Licensing Exception in Thayer v. Washington County School
District, 2012 UT 31, 285 P.3d 1142. There, a school administrator,
apparently swayed by pleas for verisimilitude in a high school
production of Oklahoma!, allowed the theater department to use
a .38 caliber revolver, loaded with blanks, and subject to several
safety precautions. Id. ¶¶ 3–4. Despite the precautions, a student
died when the gun discharged in unclear circumstances. Id. ¶ 5.
The supreme court held that the high school was not immune
from suit because the school administrator’s consent ‚was not a
formal, official authorization by a governmental
body . . . endowed with regulatory power to issue such an
authorization.‛ Id. ¶ 28.
¶9 The supreme court set forth two elements that must be
satisfied for the Licensing Exception to apply—authority and
formality. Id. ¶¶ 13–14, 28. Here, the application of those
elements requires us to determine whether the flagger’s signal
(1) was an authorization UDOT possessed the regulatory power
to issue and (2) can be properly characterized as a formal, official
act.
¶10 In Thayer, the Utah Supreme Court reasoned that a
‚governmental entity . . . cannot issue an authorization . . .
unless it has the power to give legal authority‛ and that such
power can only vest in the entity via ‚legislative or executive
293, 60th Leg. (Utah 2014) (providing that immunity is not
waived for injuries arising from the use of a public or private
road and related to certain wildlife activities). That exception is
not at issue here.

Winkler v. Lemieux
20130130-CA 5 2014 UT App 141
enactment.‛ Id. ¶ 17 (brackets and internal quotation marks
omitted). Put another way, the Licensing Exception only applies
to a governmental entity’s grant of authorization when that
entity has been expressly empowered to give legal authority to
those seeking such authorization. Id. ¶ 18.4
¶11 UDOT possessed the legal authority to restrict travel in its
construction zones. Section 72-6-114(1) of the Utah Code
provides that a ‚highway authority may close or restrict travel
on a highway under their jurisdiction due to construction,
maintenance work, or emergency.‛ Logically, a closure may be
partial, and a restriction may include alternating the direction of
travel along a lane that remains open. We therefore conclude
that UDOT has statutory authority to close lanes, to restrict
access to the resulting work zones, and to allow members of the
public to travel through those work zones. Thus, the flagger’s
signal was within UDOT’s regulatory power.
¶12 We next consider whether the flagger’s signal was a
formal, official government action. In Thayer, the Utah Supreme
Court held that the decision to allow the use of a firearm in the
school play ‚was not a formal, official authorization.‛ 2012 UT
31, ¶ 28. To reach that conclusion, the supreme court examined
the Licensing Exception’s use of the terms ‚‘[i]ssuance, denial,
suspension, [and] revocation’‛ and concluded that ‚each word
describes a formal action undertaken as part of an entity’s official
power.‛ Id. ¶¶ 13–14 (emphasis added); see also id. ¶ 18 (‚We
hold that the Licensing Exception uses terms reflecting formality,
official action, and authorization.‛). But see id. ¶ 41 (Lee, J.,
dissenting) (arguing that the common feature of the types of
4. The Thayer court also held that the Licensing Exception did not
apply to ‚a governmental entity’s internal approval or
authorization of an employee’s negligent conduct.‛ Thayer v.
Washington County Sch. Dist., 2012 UT 31, ¶ 11, 285 P.3d 1142.
Although the parties mention that aspect of Thayer’s holding in
their briefs, we need not examine that proposition to reach our
decision.

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20130130-CA 6 2014 UT App 141
authorization listed in the Licensing Exception is not formality of
process but functional effect). There is yet no bright-line rule that
divides informal authorizations from formal ones. See id. ¶ 33
(Lee, J., dissenting) (noting that the majority opinion ‚limit*s+ the
statute to those authorizations issued by the government with a
sufficient (but undefined) degree of formality‛).
¶13 Wherever the precise boundary between formality and
informality may lie, we know that the authorization to use the
firearm at issue in Thayer lacked the formality necessary to allow
the governmental entity to invoke the Licensing Exception. In
Thayer, the school’s theater instructor consulted the police officer
assigned to the school. The officer agreed to allow the gun on
campus subject to three safety conditions. The officer then
approached the school administrator and informed him of the
firearm request and the conditions the officer had imposed. The
school administrator agreed with the officer’s decision and
‚authorized use of the gun during the production, subject to the
conditions.‛ Id. ¶¶ 3–4.
¶14 Here, the record before us is insufficient to support a legal
conclusion that the flagger’s signal possessed even the level of
formality that Thayer found insufficient. The proceedings below
did not focus on whether any formality surrounded the flagger’s
decision to signal.5 The record thus does not reveal whether the
5. UDOT’s brief on appeal focuses almost exclusively on the
authority prong and relies heavily on the same case that the
district court appears to have read as suggesting that an
authorization need not be formal for the Licensing Exception to
apply—Moss v. Pete Suazo Utah Athletic Commission, 2007 UT 99,
175 P.3d 1042. In Moss, the Utah Supreme Court held that the
‚broad‛ language of the exception ‚certainly is not restricted to
those decisions that constitute licensing decisions per se. Rather,
it extends to approvals and similar authorizations . . . .‛ Id. ¶ 15.
Moss, which was decided five years before Thayer, did not focus
on the formality of the governmental entity’s decisions and
(continued . . .)

Winkler v. Lemieux
20130130-CA 7 2014 UT App 141
signal stemmed from any institutional procedure that might
have imparted formality to it. Certainly, the parties have not
directed us to anything in the record suggesting such formality.
Given the record before us, we cannot conclude as a matter of
law that the flagger’s signal was a formal, official authorization.
¶15 The Licensing Exception applies when a governmental
entity possesses regulatory power to issue an authorization and
the authorization is formal and official. Because UDOT failed to
demonstrate formality, we hold that the district court erred in
ruling that UDOT’s actions fell within the Licensing Exception to
the Act’s general waiver of immunity.
¶16 We reverse and remand for further proceedings.
therefore did not recite the facts that would provide insight into
the level of formality that accompanied those decisions.