S.H. ex rel. R.H. v. State

ZIMMERMAN, Justice: Plaintiffs appeal from an order of summary judgment in favor of the State of Utah, Granite School District, the Utah State School for the Deaf and Blind, and the Utah State Board of Education (“school defendants”). We affirm. In reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in a light most favorable to the nonmoving party. Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993). We state the facts in this case accordingly. Plaintiff S.H., a deaf child, was transported daily to a school for the deaf and blind in a taxi owned by Yellow Cab, a company under contract with the school defendants to transport handicapped children. During one ride, the taxi driver, Charles Marsh, sexually molested and assaulted S.H. Plaintiffs R.H. and K.H., suing on behalf of their son and on behalf of themselves, claimed that several students had been sexually molested by other Yellow Cab drivers and that the school defendants had been aware of these previous incidents. As a result, plaintiffs alleged that the school defendants negligently employed, instructed, contracted with, or directed the Yellow Cab Co., as well as the other named defendants. The school defendants moved to dismiss the suit on the ground that they were immune under the Utah Governmental Immunity Act. See Utah Code Ann. § 63-30-10(2). After a hearing on the motion, the trial court dismissed the suit with prejudice against the school defendants on the basis of governmental immunity for injuries resulting from a battery. See id. Plaintiffs challenge the trial court’s ruling, arguing that S.H.’s injuries did not result from an assault and battery by an employee of the school defendants, but rather was the result of the school defendants’ negligent hiring, retention, and supervision of the Yellow Cab Co. and the other defen [1365] dants. Plaintiffs believe that their claim is particularly relevant in light of the fact that the school defendants knew of prior sexual abuse by employees of the cab company. Such knowledge, they claim, created a higher duty to plaintiffs, which they allege the school defendants breached. Our recent decisions in Ledfors v. Emery County School District, 849 P.2d 1162 (Utah 1993), and Higgins are dispositive here. In both cases, the underlying cause of the injury was assault or battery, and we noted in both that section 63-30-10(2) retains immunity from suit for negligence that results in an “injury [that] arises out of ... [an] assault [or] battery.” Utah Code Ann. § 63-30-10(2); Higgins, 855 P.2d at 240; Ledfors, 849 P.2d at 1166-67. In Ledfors, we stated that the structure of the Utah Governmental Immunity Act, especially section 63-30-10, focuses on the conduct or situation out of which the injury arose, not on the status of the party inflicting the injury. 849 P.2d at 1166. We repeated that this court has previously rejected “claims that have reflected attempts to evade these statutory categories by re-characterization of the supposed cause of the injury.” Id. Plaintiffs here have provided no legal argument that would set this ease apart. Plaintiffs may find the immunity given by the legislature unconscionable, but their remedy lies with that same legislature. The judgment of the trial court is affirmed. HALL, C.J., and HOWE, A.C.J., concur.