Mariani v. Driver License Division

2023 UT App 79

THE UTAH COURT OF APPEALS

RANDI MARIANI,
Appellant,
v.
DEPARTMENT OF PUBLIC SAFETY – DRIVER LICENSE DIVISION,
Appellee.

Opinion
No. 20220046-CA
Filed July 20, 2023

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 200902808

Caleb Bertch, Daniel F. Bertch, and Cassandra Dawn,
Attorneys for Appellant
Sean D. Reyes and J. Clifford Petersen,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN M. HARRIS
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 In August 2019, Randi Mariani was injured during the
required testing for a motorcycle endorsement to her driver
license. During the “quick stop” controlled deceleration portion
of the skills test, which was located over a patch of asphalt tar,
Mariani braked and immediately lost control of her motor scooter
after hitting the tar patch. Mariani suffered serious injury as a
result of the crash and sued the Utah Department of Public Safety-
Driver License Division (DLD) for negligently causing her
injuries. The district court granted summary judgment in favor of
the DLD, concluding that the DLD was immune from suit under
Mariani v. Dep’t of Public Safety

Utah’s governmental immunity statutes. Mariani appeals the
court’s summary judgment order, and we affirm.

BACKGROUND

¶2 In 2019, Mariani received a motor scooter from her
husband as a birthday present. But in order to legally drive her
new scooter, Mariani needed to obtain a motorcycle endorsement
to her driver license, and to obtain the endorsement, she had to
pass both a written exam and a motorcycle skills test. Mariani
passed the written exam and began practicing for the skills test.
She eventually took that skills test at the Heber City, Utah, DLD
facility on the afternoon of August 19, 2019, which Mariani
recalled being a very hot day—in excess of ninety degrees
Fahrenheit. During the test, Mariani attempted two “quick stop”
procedures under the supervision of a DLD employee. During her
second attempt, Mariani alleges that the front tire of her scooter
slipped due to the presence of warm asphalt tar at the end of the
quick stop boundary, leading to her injury. Because Mariani failed
the skills portion of the test, the DLD denied her application for a
motorcycle endorsement.

¶3 Mariani then sued the DLD for negligently causing injury
to her. The DLD filed a motion for summary judgment, arguing
that the suit should be dismissed because the DLD was immune
from liability for Mariani’s injuries under the so-called “licensing
exception” contained in Utah’s governmental immunity statutes.
See Utah Code § 63G-7-201(4)(c). In its ruling on the motion, the
district court found that the DLD satisfied the statutory
requirements for immunity—that Mariani’s injury arose out of or
in connection with, or resulted from the administration of the
motorcycle endorsement licensing test—and subsequently
dismissed Mariani’s lawsuit.

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Mariani v. Dep’t of Public Safety

ISSUE AND STANDARD OF REVIEW

¶4 On appeal, Mariani contends that the district court erred in
granting summary judgment and dismissing Mariani’s suit based
on its determination that the DLD was entitled to governmental
immunity. 1 We review summary judgment decisions de novo. See
Salo v. Tyler, 2018 UT 7, ¶ 19, 417 P.3d 581. We accord the district
court’s legal conclusions no deference and review those
conclusions—including statutory interpretation—for correctness.
See, e.g., Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 15, 390
P.3d 314.

ANALYSIS

¶5 The issue on appeal is whether the district court erred in
granting the DLD summary judgment under the Governmental
Immunity Act of Utah (the Act). The Act states that “each
governmental entity and each employee of a governmental entity
are immune from suit for any injury that results from the exercise
of a governmental function.” Utah Code § 63G-7-201(1). 2
However, the Act both waives sovereign immunity in particular
circumstances and carves out express exceptions to certain of
those waivers. The specific immunity waiver that is applicable to

1. In moving for summary judgment, the DLD also argued for
dismissal of the suit based on a pre-injury release Mariani signed
agreeing to hold the DLD harmless for damage or injury that
might occur during her motorcycle skills test. The district court
did not rule on the pre-injury release issue, and we do not reach
this issue as we affirm the court’s ruling on the immunity issue.

2. Several amendments were made to the Act between Mariani’s
injury in August 2019 and the issuance of this opinion. None of
these changes modified the applicable subsections (i.e., Utah
Code subsections 63G-7-201(1), and 63G-7-201(4)(c)), so we cite
the current statute for convenience.

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this case provides that immunity is waived for any injury
proximately caused by a negligent act of a governmental
employee. Id. § 63G-7-301(2)(i). And the relevant exception is the
“licensing exception,” restoring immunity—even in cases
involving governmental negligence—where the injury arises out
of or in connection with, or results from, the denial of any license.
Id. § 63G-7-201(4)(c).

¶6 In cases where a governmental entity asserts that it is
immune from suit under the Act, we apply a three-part test.
Winkler v. Lemieux, 2014 UT App 141, ¶ 5, 329 P.3d 849; Thayer v.
Washington County School 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.” Winkler, 2014 UT App 141, ¶ 5
(quotation simplified); Thayer, 2012 UT 31, ¶ 8; see Utah Code
§ 63G-7-101(3)–(4).

¶7 In this case, the parties (at least for purposes of the DLD’s
summary judgment motion) agree that the first two inquiries are
not at issue; that is, they agree that the injury resulted from a
governmental function and that the injury was proximately
caused by governmental negligence. Therefore, this appeal turns
on the third question: whether there is an exception to the waiver
of immunity. Nonetheless, we walk through the governmental
function and negligent activity factors as background to show that
the first two parts of the three-part immunity test have been
satisfied.

I. The Motorcycle Skills Test was a Governmental Function and
Thus Qualified for Immunity Under the Act

¶8 The DLD is a governmental entity. Utah Code § 63G-7-
102(4). As a governmental entity, the DLD oversees issuance of
motorcycle licenses as one of its governmental functions; the DLD
is statutorily mandated to examine every license applicant. Id.

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§ 63G-7-102(5)(a)–(b); id. § 53-3-204(2)(d). The DLD requires
motorcycle license applicants to pass both a written test and a
motorcycle skills test. Utah Dep’t Motor Safety, Add Motorcycle
Endorsement: Requirements for adding a motorcycle endorsement to
your Utah driver license, https://dld.utah.gov/add-motorcycle-
endorsement/ [https://perma.cc/C3WT-99KM]; Utah Code § 53-3-
202(4)(a)(i).

¶9 Mariani concedes that the placement of the motorcycle
quick stop exercise on the test course in Heber was a
governmental function. See Utah Code § 63G-7-102(5).

II. A Negligent Act During the Activity Led to Mariani’s Injury,
Thus Immunity Was Waived

¶10 Under the Act, immunity is expressly waived, subject to
subsections 63G-7-101(4) and 63G-7-201(4), “as to any injury
proximately caused by a negligent act or omission of an employee
committed within the scope of employment.” Utah Code § 63G-7-
301(2)(i). For purposes of consideration of its summary judgment
motion, the DLD does not dispute that there may have been
negligence on the part of the DLD in placing the quick stop
exercise on or near a tar patch on a hot day.

¶11 Governmental immunity for the quick stop exercise is
therefore waived, unless an exception applies, because the facts
that are undisputed for purposes of this appeal reveal that the
DLD’s apparently negligent choice of location for the quick stop
exercise caused Mariani’s accident. See id. §§ 63G-7-101(4), 63G-7-
201(4).

III. Mariani’s Injury Was Sufficiently Causally Related to
Issuance of a License, Thus Immunity Is Retained

¶12 On appeal, Mariani asserts that the district court erred in
ruling that the licensing exception applies to the waiver of
governmental immunity because, she claims, her injuries were

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Mariani v. Dep’t of Public Safety

proximately caused by the placement of the quick stop and not
caused by the denial of her motorcycle endorsement. Mariani
relies on the causation analysis set forth in Barneck v. Utah
Department of Transportation, 2015 UT 50, 353 P.3d 140, abrogated by
Utah Code § 63G-7-102. For the reasons set forth below, we
conclude this argument unpersuasive.

A. Barneck Proximate Cause Test (Abrogated)

¶13 In Barneck, our supreme court held that there was a genuine
issue of material fact as to whether the Utah Department of
Transportation (UDOT) proximately caused injuries to drivers
and passengers who drove into an unmarked roadway chasm
created by UDOT’s negligent maintenance of a road and a clogged
culvert. See id. ¶¶ 1–2. The court’s reasoning centered around its
choice to “deem the reference to ‘arises out of’ as synonymous
with ‘proximately caused,’” id. ¶ 40, with the court holding “that
an immunity-invoking condition . . . must be a proximate cause of
the plaintiff’s injuries in order to sustain the reinstatement of
immunity,” id. ¶ 38. In so doing, the court stepped back from
previous decisions that held that “a but-for causal connection is
sufficient to trigger a statutory reinstatement of immunity under
an exception provision of the Act.” Id. ¶ 39 (emphasis added).

¶14 Following the court’s decision in Barneck, the Utah
Legislature lightened the causation standard adopted by the court
by amending the Act in 2017; these amendments had the effect of
expanding immunity under the Act. Our legislature
accomplished this chiefly by adding a statutory definition of the
phrase “arises out of or in connection with, or results from.” See
Utah Code § 63G-7-102(1). In Barneck, our supreme court
interpreted “arises out of” as equivalent to proximate cause, but
under the new statute, as discussed below, “arising out of”
causation exists wherever “the causal relationship is sufficient to
conclude that the injury originates with, flows from, or is incident
to the conduct or condition.” Id. § 63G-7-102(1)(c).

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B. The Current Statutory Test

¶15 Specifically, in the amended version of the Act, the
legislature defined “arises out of or in connection with, or results
from” to mean that “there is some causal relationship between the
conduct or condition and the injury;” “the causal relationship is
more than any causal connection but less than proximate cause;” and
“the causal relationship is sufficient to conclude that the injury
originates with, flows from, or is incident to the conduct or
condition.” Id. § 63G-7-102(1) (emphasis added).

¶16 This relaxed causation test, when applied to the relevant
provisions of the Act, operates to expand the scope of
governmental immunity. Under the current statute, even an
“injury proximately caused by a negligent act or omission of” a
government employee—injuries for which immunity is
presumptively waived, see id. § 63G-7-301(2)(i)—is nevertheless
covered by governmental immunity in all cases in which that
injury “arises out of or in connection with, or results from . . . the
issuance [or] denial . . . of . . . any permit [or] license,” see id. § 63G-
7-201(4)(c). And now, “arises out of or in connection with, or
results from” no longer requires a proximate causal connection;
immunity exists if “the causal relationship is sufficient to
conclude that the injury originates with, flows from, or is incident
to the conduct or condition.” Id. § 63G-7-102(1)(c). As applied to
this case, these provisions mean that the DLD is immune from
Mariani’s lawsuit if Mariani’s injury was at least “incident to” the
DLD’s denial of her request for a motorcycle endorsement.

¶17 Under the circumstances presented here, Mariani’s injuries
were indeed at least “incident to” the DLD’s denial of her request.
Mariani’s injury occurred during the very act of her taking a skills
test to obtain her motorcycle endorsement, and in so doing she
affirmatively availed herself of the DLD’s licensing authority and
actively attempted to demonstrate her qualifications for the
DLD’s authorization to operate a motorcycle on Utah roads.

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Indeed, among the reasons the DLD denied Mariani’s request for
a motorcycle endorsement was her failure to execute the quick
stop maneuver during the skills test. It would be unreasonable to
suggest that Mariani’s injury—which occurred as a result of her
crashing her scooter during the quick stop—did not originate
from, flow from, or was not at least incident to the licensing
approval process to obtain a motorcycle endorsement.

¶18 Accordingly, the district court correctly concluded that the
DLD is immune from Mariani’s suit because the licensing
exception to the waiver of governmental immunity applies
whether or not the DLD was negligent.

CONCLUSION

¶19 The district court did not err in concluding that the DLD
was immune from Mariani’s lawsuit under the licensing
exception. We therefore affirm the court’s order dismissing
Mariani’s suit.

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