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Utah Supreme Court ruling, Thayer vs. Washington County School District

Utah Supreme Court ruling, Thayer vs. Washington County School District

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Published by Ben Winslow
The Utah Supreme Court's ruling in the case involving the 2008 prop gun death of 15-year-old Tucker Thayer.
The Utah Supreme Court's ruling in the case involving the 2008 prop gun death of 15-year-old Tucker Thayer.

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Published by: Ben Winslow on May 26, 2012
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05/26/2012

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This opinion is subject to revision before final publication in the Pacific Reporter 
2011 UT 31
IN THE
S
UPREME
C
OURT OF THE
S
TATE OF
U
TAH
R
ON
T
HAYER
and C
ATHIE
T
HAYER
,
Plaintiffs and Appellants
,
v
.W
ASHINGTON
C
OUNTY
S
CHOOL
D
ISTRICT
; C
ITY OF
S
AINT
G
EORGE
;R
OBERT
G
OULDING
; M
ICHAEL
E
ATON
; S
TACY
R
ICHAN
; D
AVID
A
MODT
; John and Jane Does 1-10; ABC Corporations 1-10;and XYZ Partnerships 1-10,
Defendants and Appellees
. ____________ No. 20100648Filed May 25, 2012On Certification from the United States District Courtfor the District of Utah – Central Division ____________ Attorneys: Jeffrey C. Wilcox, Michael I. Welker, Jason L. Dixon, John L. Collins, Salt Lake City, for appellantsBridget K. Romano, Peter Stirba, Stephanie L. Warner, Julia D. Kyte, Bret W. Rawson, Salt Lake City,for appellees ____________  J
USTICE
D
URHAM
authored the opinion of the Court,in which A
SSOCIATE
C
HIEF
 J
USTICE
N
EHRING
,and J
USTICE
P
ARRISH
 joined. J
USTICE
L
EE
filed a dissenting opinion in whichC
HIEF
 J
USTICE
D
URRANT
 joined. J
USTICE
D
URHAM
, opinion of the Court:
INTRODUCTION
¶1This case arises from a lawsuit in federal district court overthe death of fifteen-year-old Tucker Thayer. In that suit, Tucker’sparents allege that Washington County School District officials werenegligent when they allowed a gun loaded with blank cartridges tobe used in a school musical production, resulting in their son’sdeath. The school district asserts governmental immunity from theseclaims.
 
T
HAYER
 
v.
W
ASHINGTON
C
OUNTY
S
CHOOL
D
ISTRICT
Opinion of the Court
1
The facts surrounding Tucker’s death are taken from theThayers’ complaint. The parties have stipulated to these facts forpurposes of certification of the state law question before this court.2¶2Because the school district’s argument raises a novel issueof state law, the U.S. District Court for the District of Utah certifiedthe governmental immunity question to us. We agreed to decidewhether the conduct of school officials and those acting on theschool district’s behalf constituted the “issuance . . . [of a] permit,license, certificate, approval, order, or similar authorization” suchthat the school district has retained immunity. U
TAH
C
ODE
§ 63G-7-301(5)(c). We hold that the conduct of school district officials in al-lowing the gun to be present on school grounds does not fall withinthis provision.
BACKGROUND
1
¶3In the fall of 2008, the drama department of Desert HillsHigh School (DHHS) staged a production of the musical
Oklahoma!
Tucker was a stage technician in the production. To enhance theproduction’s sound effects during gunshot scenes, theater instructorand school district employee Michael Eaton wanted to fire blankbullets from a real gun, rather than use a prop gun. David Amodt,the father of a student involved in the production, offered his Smith& Wesson .38-caliber, six-shot revolver for use in the musical.¶4Mr. Eaton consulted School Resource Officer Stacy Richanabout the use of the gun in the production because school policy andstate law prohibited the possession of a firearm on school grounds.Officer Richan, the school’s in-house representative from the St.George Police Department, approved the use of the gun on schoolproperty, subject to three conditions: (1) only an adult could trans-port the weapon to and from school for rehearsals and perfor-mances, (2) the weapon would remain in a locked container and beunder an adult’s control when not in use, and (3) only an adult couldhandle and fire the weapon. Officer Richan then approached DHHSVice Principal Robert Goulding about the presence of the gun onschool property. He informed Goulding that he had authorized useof the gun in the production. Goulding agreed with Officer Richan’sdecision and authorized use of the gun during the production, sub- ject to the conditions Officer Richan had imposed.¶5Despite Officer Richan’s conditions, Tucker was allowedto handle and fire the weapon. On November 15, 2008, Tucker wasin the production’s sound booth without adult supervision. The gunwas discharged near his head, and although the firearm was loadedwith a blank cartridge, the muzzle blast drove skull fragments intoTucker’s brain. He died later that night.¶6After their son’s death, Ron and Cathie Thayer filed statelaw negligence and wrongful death claims and federal civil rights
 
Cite as: 2011 UT 31Opinion of the Court3claims against various defendants in the U.S. District Court for theDistrict of Utah. The only claims at issue in this certified question arethe Thayers’ negligence claims against the school district stemmingfrom the conduct of Vice Principal Goulding and Mr. Eaton. Withrespect to these claims, the school district moved for judgment onthe pleadings under rule 12(c) of the Federal Rules of Civil Proce-dure, asserting immunity under the Governmental Immunity Act ofUtah. It argued that it retained immunity from suit because Tucker’sinjuries arose out of, or resulted from, the “issuance . . . [of a] permit,license, certificate, approval, order, or similar authorization” (theLicensing Exception). U
TAH
C
ODE
§ 63G-7-301(5)(c). The federaldistrict court certified the governmental immunity question to thiscourt, and we have jurisdiction under section 78A-3-102(1) of theUtah Code.
STANDARD OF REVIEW 
¶7“On certification, we answer the legal questions presentedwithout resolving the underlying dispute.”
Iverson v. State Farm Mut.Ins. Co.
, 2011 UT 34, ¶ 8, 256 P.3d 222 (internal quotation marksomitted).
ANALYSIS
¶8When a governmental entity asserts immunity under theGovernmental Immunity Act of Utah, this court typically applies athree-part test to determine whether immunity applies.
Peck v. State
,2008 UT 39, ¶ 8, 191 P.3d 4. “The test assesses (1) whether the activ-ity undertaken is a governmental function; (2) whether governmen-tal immunity was waived for the particular activity; and (3) whetherthere is an exception to that waiver.”
Id.
(internal quotation marksomitted).¶9In this case, the first two questions are not at issue. It isundisputed that the school district was engaged in a governmentalfunction under the Act’s general grant of immunity.
See
U
TAH
C
ODE
§ 63G-7-201(1). It is also undisputed that, under the allegations in theThayers’ complaint, the school district waived its immunity becauseTucker’s death was “proximately caused by a negligent act or omis-sion of [a governmental] employee committed within the scope ofemployment.”
Id.
§ 63G-7-301(4). The sole question certified for ourreview is whether the school district has retained immunity underthe Licensing Exception—section 63G-7-301(5)(c) of the Utah Code.Under this exception, the school district retains immunity if Tucker’sinjury “ar[ose] out of, in connection with, or result[ed] from . . . theissuance, denial, suspension, or revocation of . . . any permit, license,certificate, approval, order, or similar authorization.”
Id.
§ 63G-7-301(5)(c).¶10The school district concedes that its officials did not issuea permit, license, certificate, or order allowing the presence of the

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