                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2015 UT 64


                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

                               MIKA SCOTT,
                                Appellant,
                                      v.
          UTAH COUNTY, UTAH COUNTY SHERIFF‘S OFFICE,
                    and JOHN DOES 1-10,
                          Appellees.

                             No. 20130257
                         Filed: August 5, 2015

                  Fourth District, Provo Dep‘t
                 Honorable David N. Mortensen
                        No. 110402718

                                Attorneys:
 Charles H. Thronson, Nicole G. Farrell, Scott S. Bell, Michael K.
McKell, Joseph M. Stultz, Michael A. Worel, John W. Christiansen,
      and Alan S. Mouritsen, Salt Lake City, for appellant
 Peter Stirba, Salt Lake City, for appellees Utah County and Utah
                       County Sheriff‘s Office
Peter W. Summerill and Tera J. Peterson, Salt Lake City, for amicus
                  Utah Association for Justice
 Jason B. Richards, Ogden, for amicus Utah Sherriff‘s Association

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE PARRISH, and
                       JUDGE ROTH joined.
 JUSTICE NEHRING did not participate herein due to his retirement;
          COURT OF APPEALS JUDGE STEPHEN L. ROTH sat.
 JUSTICE HIMONAS became a member of the Court on February, 13,
  2015, after oral argument in this matter, and accordingly did not
                             participate.
                        SCOTT v. UTAH COUNTY
                         Opinion of the Court
   CHIEF JUSTICE DURRANT, opinion of the Court:
                             Introduction
    ¶1 This case requires us to consider the conditions under which
the custodian of a dangerous person has a duty to prevent that
person from injuring others. In prior cases, we have concluded that
such a duty exists only if the custodian is aware, or should be aware,
that the person poses a threat to a specific individual or a discrete
group of individuals. In contrast, the Second Restatement of Torts
does not require notice of the same particularized danger, and the
Plaintiff in this case urges us to overrule our prior caselaw in favor of
the Restatement‘s approach. For three reasons, we accept that
invitation and adopt the standard articulated in the Restatement.
First, our caselaw in this area is based on incorrect assumptions
about the practical consequences of imposing such a duty. Second,
Utah law is out of step with the rule employed in the overwhelming
majority of other jurisdictions. And third, the old rule is inconsistent
with the analytical framework we have employed in our most recent
cases analyzing whether a defendant owes a duty of care.
    ¶2 We must also determine whether the Governmental
Immunity Act as applied in this case violates article I, section 11 of
the Utah Constitution (the open courts clause). We have read the
open courts clause to prohibit the legislature from eliminating a
cause of action unless it provides an alternative remedy that meets
certain criteria. As we explain in more detail below, the
Governmental Immunity Act grants governmental entities blanket
immunity from any liability that arises from the exercise of a
―governmental function.‖ The legislature recently expanded the
definition of that term to encompass any act or omission on the part
of a governmental actor, and the Plaintiff in this case has asserted a
tort claim against Utah County for its negligent operation of a prison
work-release program. The parties concede that under the most
recent version of the Governmental Immunity Act, the County is
immune from suit. The question, then, is whether the legislature‘s
expansion of governmental immunity eliminated a cause of action
that the Plaintiff could have maintained against the County before
the Act was amended. If it did, then the Act‘s application in this case
may run afoul of the open courts clause.
   ¶3 We conclude that the Governmental Immunity Act is not
unconstitutional as applied in this case. Even before the Act‘s
expansion of immunity, its blanket immunity protections extended
to any liability that arose from the performance of a uniquely
governmental function or other acts that are essential to a core
government activity. In this case, the Plaintiff‘s negligence claim
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                        Opinion of the Court

arises directly from a prison work-release program. Because
incarcerating and rehabilitating inmates falls squarely within that
definition, the Act would have shielded the County from liability
even if the Plaintiff brought suit before the legislature expanded
blanket immunity protections to encompass a much wider range of
activity. We affirm the district court‘s ruling on that basis.
                             Background
    ¶4 This appeal followed the district court‘s dismissal of Mika
Scott‘s complaint against Utah County, Intermountain Employment
Services (IES), and Universal Industrial Sales (Universal). On appeal
from a district court‘s decision granting a motion to dismiss, we
view the facts pled in the complaint and all reasonable inferences
from them in the light most favorable to the plaintiff. 1 We recite the
facts consistent with that standard.
   ¶5 For some time, Utah County has operated a program
known as ―Jail Industries,‖ which allows inmates to ―work for
private businesses in the community setting rather than on
correctional institution grounds.‖ The County actively seeks out
private businesses to participate in the program, ―emphasizing that
by hiring inmates,‖ the companies ―assist in the rehabilitation of
Utah County inmates, assist in the solvency of the Utah County
budget, and receive a substantial discount on the price of labor.‖ The
County retains seventy-five percent of the inmates‘ earnings, and
over the past decade, the program has ―produced over $5,000,000 in
gross revenues.‖ Not all inmates are eligible for Jail Industries—the
County screens each inmate that enlists in the program and does not
place anyone it has not approved with a private employer.
    ¶6 IES worked with the County ―to place‖ qualified inmates
with private employers. In the past, ―many‖ of these inmates
―flagrantly disobeyed the rules they agreed to when enlisting‖ in the
program, ―walking away from the private jobsites‖ during the day,
receiving illegal visits from friends and family, and using alcohol
and drugs. But employers typically waited until the end of the work
day to report these violations. Consequently, the County was aware
that an inmate ―could walk away from a private jobsite and the
inmate‘s absence might not be noted for the better part of a day.‖




   1Moss v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42, ¶ 3, 285
P.3d 1157.

                                  3
                       SCOTT v. UTAH COUNTY
                        Opinion of the Court
    ¶7 One of the inmates the County selected to participate in Jail
Industries was Shawn Michael Leonard. IES placed Mr. Leonard
with Defendant Universal in June 2010. According to Ms. Scott‘s
complaint, the County ―improperly screened‖ Mr. Leonard ―for
approval within the Jail Industries program because of a known
potential for violent behavior toward other people‖ and ―his
extensive criminal history, which included a prior sentence in the
Utah State Prison.‖ Proper screening would have revealed that Mr.
Leonard was ―not eligible to participate‖ in the program and that he
―posed‖ a particular danger ―to young women living in the vicinity‖
of the work site.
   ¶8 But the County had ―only one employee screen inmates
and‖ did ―not conduct[] one-on-one interviews with‖ Mr. Leonard or
any other ―inmates before placing them in the Jail Industries
program.‖ These improper screening procedures resulted in part
from the County‘s efforts to increase revenue—that is, ―the total
number of inmates in the Jail Industries program was driven by the
demand from the private businesses, not by the supply of qualified
inmates.‖ For their part, IES and Universal ―knew or should have
known that the participants in the Jail Industries program were
actual inmates of Utah County, and that they were therefore not
trustworthy and potentially dangerous to the public.‖ The
companies also ―knew or should have known‖ that the inmates
―regularly broke‖ program rules, ―including walking away from the
private jobsite and potentially committing crimes, and engaging in
alcohol and . . . drug use.‖
   ¶9 Mr. Leonard‘s participation in Jail Industries proved to be a
tragic mistake. The County did not provide guards or any means of
remotely supervising the inmates employed at Universal. And
Universal failed to take any action to prevent the inmates from
leaving the work site. As a result, on June 8, 2010, Mr. Leonard
escaped. Universal did not report Mr. Leonard‘s absence until about
one hour after his escape, and it took the County another hour to
notify police that he had indeed left the work site.
    ¶10 The next day, Mr. Leonard approached Ms. Scott on the
Provo River Trail about ten miles away from where he had been
working. He grabbed Ms. Scott, covered her mouth, and told her not
to scream. After forcing her off the trail into the bushes, Mr. Leonard
strangled her with a shoe string. Ms. Scott soon lost consciousness,
and Mr. Leonard then hit her repeatedly in the head with a cinder
block, sexually assaulted her, and left. Ms. Scott survived, but her
injuries were substantial. She had multiple surgeries to reconstruct
her face and mouth; her jaw was wired shut for months; and she

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                           Opinion of the Court

contracted a heart condition, permanent scars, anxiety, insomnia,
and permanent double vision.
    ¶11 Ms. Scott filed a negligence action against the County, IES,
and Universal in September 2011. She amended her complaint twice,
and then all three Defendants moved to dismiss the second amended
complaint. Ms. Scott opposed the dismissal and sought leave to file a
third amended complaint. The district court ruled in favor of the
Defendants, concluding that none of them owed a duty to Ms. Scott
and denying her motion to amend as futile. As an alternative basis
for dismissing the claims against the County, the district court also
concluded that the Utah Governmental Immunity Act barred all of
her claims against the County. Ms. Scott appealed.
    ¶12 Following oral argument in this case, Ms. Scott settled her
claims against IES and Universal, but not the County. The parties to
the settlement agreement then filed a suggestion of mootness under
rule 37(a) of the Utah Rules of Appellate Procedure. We agree that
Ms. Scott‘s claims against IES and Universal are now moot, and we
accordingly dismiss them.2 We have jurisdiction over the remaining
claims under Utah Code section 78A-3-102(3)(j).
                           Standard of Review
    ¶13 Ms. Scott argues that the district court improperly dismissed
her negligence claim for failing to allege enough facts to establish a
duty. We review a decision granting a motion to dismiss ―for
correctness, granting no deference to the decision of the district
court.‖3 In so doing, we ―accept the plaintiff‘s description of the facts
alleged in the complaint to be true, but we need not accept extrinsic
facts not pleaded nor need we accept legal conclusions in
contradiction to the pleaded facts.‖4 Ms. Scott also argues that the
application of the Utah Governmental Immunity Act ―violates the
open courts clause of the Utah Constitution.‖ A constitutional
challenge to a statute is a question of law, which we review for
correctness.511



   2   See Phx. Indem. Ins. Co. v. Smith, 2002 UT 49, ¶ 3, 48 P.3d 976.
   3   Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275.
   4 Am. W. Bank Members, L.C. v. State, 2014 UT 49, ¶ 7, 342 P.3d 224
(internal quotation marks omitted).
   5 See State v. Martinez, 2013 UT 23, ¶ 6, 304 P.3d 54
(―Constitutional issues, including questions regarding due process,
                                                       (Continued)
                                  5
                        SCOTT v. UTAH COUNTY
                         Opinion of the Court
                                Analysis
   ¶14 In negligence cases involving ―a defense of governmental
immunity,‖ we first determine ―whether the defendant owed a duty
of due care to the plaintiff before deciding whether the defendant is
entitled to the affirmative defense of governmental immunity.‖ 6 We
do so for both policy reasons and practical considerations. By
analyzing questions of duty and immunity in that order, ―a court can
more clearly define the scope of each body of law and the policies
that underlie them.‖7 And as a practical matter, if a governmental
agency owes no duty of care, ―there can be no prima facie case of
negligence as a matter of law, and immunity would be immaterial.‖8
    ¶15 Accordingly, we first address whether the County owed Ms.
Scott a duty of care and then discuss her open courts clause
challenge to the Governmental Immunity Act. We conclude that the
County did owe Ms. Scott a duty of care because it took affirmative
steps that created a risk of harm—it established an off-site work-
release program for potentially dangerous inmates in its custody and
screened each inmate before placing them with employers.
    ¶16 But even though the County owed Ms. Scott a duty of care,
governmental immunity bars her claim unless the application of the
Governmental Immunity Act in this case violates the open courts
clause of the Utah Constitution. We conclude, however, that the Act
is not unconstitutional as applied in this case. We have read the open
courts clause to prevent the legislature from eliminating a cause of
action without providing an alternative remedy. In the context of
governmental immunity, this means that any law expanding
governmental immunity may violate the open courts clause by
eliminating a claim a plaintiff could have brought against a
governmental entity before the law‘s enactment. But here, the Act‘s
application is not unconstitutional, because governmental immunity
would have barred Ms. Scott‘s claim even before the legislature
amended the Act to expand governmental immunity. Prior to the
Act‘s expansion, its blanket immunity protections extended to any
liability that arose from the performance of core governmental

are questions of law that we review for correctness.‖ (internal
quotation marks omitted)).
   6Day v. State ex rel. Utah Dep’t of Publ. Safety, 1999 UT 46, ¶ 10, 980
P.2d 1171.
   7   Id.
   8   Id.

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                              Opinion of the Court

functions. And here, incarcerating and rehabilitating inmates is such
a function. Consequently, the County is immune from suit, and the
district court properly dismissed her complaint on that basis.
                           I. Duty and the Rollins Rule
   ¶17 Before analyzing whether the County owed Ms. Scott a
duty, we first address Ms. Scott‘s argument that the controlling
caselaw on the duty issue (the Rollins rule) should be overruled.
After setting forth the rule and discussing its underlying policies, we
overrule the Rollins rule because it is based on flawed reasoning, is
out of step with the vast majority of other jurisdictions, and is
inconsistent with our most recent negligence cases.
    ¶18 The district court determined that none of the Defendants
owed Ms. Scott a duty and, accordingly, dismissed her negligence
claim without discussing breach, causation, or damages. In so doing,
the court applied the Rollins rule, which we articulated in three prior
cases involving dangerous individuals who injured others during
their release from a hospital or correctional facility.9 The Rollins rule
provides that ―[b]efore any duty is imposed to protect others from
bodily harm caused by one‖ in the custody of another, ―the ‗others‘
to whom such bodily harm is ‗likely‘ and in favor of whom the duty
arises must be reasonably identifiable by the custodian either
individually or as members of a distinct group.‖10
    ¶19 For example, in Ferree v. State, an inmate killed Mr. Ferree
while on release from a community corrections center.11 The inmate
had an extensive criminal history of non-violent property and drug
crimes, and he was addicted to morphine, cocaine, and several other
drugs.12 Prior to his release, the inmate received a psychological
evaluation, which concluded that he ―was an impulsive person who
by his own admission acted without thinking and whose ready
anger at even minor obstacles caused him to engage in antisocial
acts.‖13 Despite these concerns, the corrections center approved the


   9 See Higgins v. Salt Lake County, 855 P.2d 231 (Utah 1993); Rollins
v. Petersen, 813 P.2d 1156 (Utah 1991); Ferree v. State, 784 P.2d 149
(Utah 1989).
   10   Rollins, 813 P.2d at 1162.
   11   784 P.2d at 150.
   12   Id.
   13   Id.

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                         SCOTT v. UTAH COUNTY
                          Opinion of the Court
inmate‘s release to a halfway house and allowed him to leave for the
weekend to attend a wedding.14 The inmate bludgeoned Mr. Ferree
to death with a pipe two days later while intoxicated.15 Mr. Ferree‘s
estate sued the corrections center for negligence.16 We affirmed a
summary judgment ruling in favor of the corrections center,
observing that there was no reason for officials ―to suspect that [the
inmate] was violent in general or would be violent toward a
particular person or a particular type of person.‖17 And we
concluded that for a duty to arise in these circumstances, officials
must ―have good reason to believe that a particular person may be
jeopardized by the release of a prisoner who has demonstrated
capacity for violence.‖18 We applied the same rule in Rollins v.
Petersen19 and Higgins v. Salt Lake County,20 holding that no duty
arises between the custodian of a dangerous individual and third
parties unless the custodian is aware of a specific threat to the third
parties that makes them ―a potential target.‖21
   ¶20 Here, there are no allegations that Mr. Leonard planned to
assault Ms. Scott prior to the attack. And according to our holding in
Higgins, even Ms. Scott‘s allegations that he posed a particular
danger to young women are not specific enough to create a duty.22

   14   Id.
   15   Id. at 151.
   16   Id.
   17   Id. at 152.
   18   Id. (emphasis added).
   19 813 P.2d at 1158–62 (holding that a hospital had no duty to a
motorist that was killed when a mental patient escaped from the
hospital, stole a car, and killed the motorist in a subsequent car
accident near the hospital, because the victim was ―simply a member
of the public, no more distinguishable to the hospital than any other
person‖).
   20 855 P.2d at 239–40 (concluding that there was an issue of fact
about whether a mental hospital owed a duty of care to a child who
was killed by a patient on weekend release from the hospital,
because a proper examination of the patient ―would have revealed‖
the child was ―a potential target‖).
   21   Id.
   22Id. at 239 (concluding that ―[t]he entire undifferentiated female
half of the population does not comprise a distinct, identifiable
                                                          (Continued)
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                               Cite as: 2015 UT 64
                               Opinion of the Court

Thus, the Rollins rule required the district court to dismiss Ms. Scott‘s
negligence claim—just like the victim in Ferree, Ms. Scott ―was
simply a member of the public, no more distinguishable to [the
Defendants] than to any other person.‖23
   ¶21 Like any duty determination, the Rollins rule is a policy
choice.24 In making that choice, we departed from the rule that
appears to be followed in most jurisdictions,25 which imposes a duty
of care on the custodian of a dangerous person if the custodian
―knows or should know‖ that the person is ―likely to cause bodily
harm to others if not controlled.‖26 There is no requirement that the
threat target a specific individual or distinct group of people.27
    ¶22 We justified our departure from the majority rule after
weighing the importance of rehabilitative programs against the risk
of injury to the public. Ultimately, we determined that the majority
rule could threaten the future of such programs, ―expos[ing] the
state to potentially every wrong that flows from the necessary
programs of rehabilitation and paroling of prisoners.‖28 Such a duty,
we reasoned, would be ―realistically incapable of performance,‖
―closely approximate a strict liability standard of care,‖29 and make
―custodians running transitional programs virtual insurers of their



group‖ for purposes of imposing a duty of care on the custodian of a
dangerous individual).
   23   Rollins, 813 P.2d at 1162; see also Ferree, 784 P.2d at 152.
   24  Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 19, 215 P.3d
152 (―A court determines whether a duty exists by analyzing the
legal relationship between the parties, the foreseeability of injury, the
likelihood of injury, public policy as to which party can best bear the
loss occasioned by the injury, and other general policy
considerations.‖).
   25   See infra nn. 42–43.
   26   RESTATEMENT (SECOND) OF TORTS § 319 (1965).
   27   Id.
   28Ferree, 784 P.2d at 151; see also Rollins, 813 P.2d at 1161 (―If these
custodians owed a duty to every member of the public for any harm
done by a person under their control, the broad potential for liability
could effectively cripple these programs.‖).
   29   Higgins, 855 P.2d at 235–36 (internal quotation marks omitted).

                                        9
                          SCOTT v. UTAH COUNTY
                           Opinion of the Court
services.‖30 Ms. Scott argues that the Rollins rule is inconsistent with
our recent negligence caselaw and based on flawed premises, and
she urges us to overrule it. We agree and overrule this line of cases.
    ¶23 ―Those asking us to overturn prior precedent have a
substantial burden of persuasion.‖31 To do so, we must be ―clearly
convinced that‖ prior caselaw ―was originally erroneous or is no
longer sound because of changing conditions.‖32 We also consider
whether ―substantial reliance interests . . . counsel against
overturning our precedent.‖33 We overrule the Rollins line of cases
because, despite the reliance interests of hospitals and correctional
facilities, (1) the Rollins rule was based on dubious assumptions
when it was decided, (2) a strong majority of other states follow the
Restatement rule, and (3) the duty analysis in Rollins is inconsistent
with our recent caselaw.
   ¶24 First, the policy reasons we cited as support for the Rollins
rule cannot withstand careful scrutiny. As we have discussed,
Rollins‘s underlying premise is that prison officials and health care
providers are incapable of preventing dangerous individuals in
rehabilitative programs from harming members of the public, so
imposing a duty to control them exposes the operators of such




   30   Rollins, 813 P.2d at 1161–62.
   31   State v. Menzies, 889 P.2d 393, 398 (Utah 1994).
   32  Id. at 399 (internal quotation marks omitted); see also Halliburton
Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398, 2407 (2014) (―Before
overturning a long-settled precedent . . . , we require special
justification, not just an argument that the precedent was wrongly
decided.‖ (internal quotation marks omitted)); Montejo v. Louisiana,
556 U.S. 778, 792–93 (2009) (―Beyond workability, the relevant factors
in deciding whether to adhere to the principle of stare decisis include
the antiquity of the precedent, the reliance interests at stake, and of
course whether the decision was well reasoned.‖).
   33 Cope v. Utah Valley State Coll., 2014 UT 53, ¶ 20, 342 P.3d 243; see
also Carter v. Lehi City, 2012 UT 2, ¶ 6, 269 P.3d 141 (noting that stare
decisis recognizes the principle that ―people should know what their
legal rights are as defined by judicial precedent, and having
conducted their affairs in reliance on such rights, ought not to have
them swept away by judicial fiat‖ (internal quotation marks
omitted)).

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                            Opinion of the Court

programs to massive liability.34 And because the principal
beneficiaries of rehabilitative programs are often dangerous
individuals, the mere recognition of a duty would impose a standard
of care ―realistically incapable of performance‖ and ―fundamentally
at odds with the nature of the parties‘ relationship.‖35 In other
words, according to Rollins, recognizing a duty of care in this context
would amount to strict liability whenever someone in a
rehabilitative program injures a third party, effectively bankrupting
these important programs.36
    ¶25 That conclusion is not consistent, however, with basic
principles of tort law, which limit liability even when a duty exists.
Negligence claims have four distinct elements—duty, breach,
causation, and damages.37 The question of whether a duty exists is
therefore analytically distinct from whether the defendant in a
particular case acted reasonably enough to meet the applicable
standard of care.38 And as every first-year law student learns, a
defendant who takes reasonable precautions to prevent injury can
avoid liability, if, notwithstanding her best efforts, she nevertheless
injures the plaintiff.39 It is therefore simply not correct that


   34  See Higgins, 855 P.2d at 236 (noting that a ―duty to the general
public would closely approximate a strict liability standard of care‖
(internal quotation marks omitted)); Rollins, 813 P.2d at 1161 (―If
these custodians owed a duty to every member of the public for any
harm done by a person under their control, the broad potential for
liability could effectively cripple these programs.‖); Ferree, 784 P.2d
at 151 (concluding that recognition of a duty to protect the public
from a dangerous person in custody ―could well . . . burden
corrections officials and chill legitimate rehabilitative programs‖).
   35   Rollins, 813 P.2d at 1160 (internal quotation marks omitted).
   36   See Higgins, 855 P.2d at 236.
   37 See, e.g., Webb v. Univ. of Utah, 2005 UT 80, ¶ 9, 125 P.3d 906,
overruled on other grounds by Cope, 2014 UT 53, ¶¶ 19–27; Schuurman v.
Shingleton, 2001 UT 52, ¶ 17, 26 P.3d 227 (noting that even if a
psychotherapist‘s conduct ―amount[s] to a breach of the standard of
care, . . . the remaining elements of a malpractice action must still be
met‖).
   38   B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 23, 275 P.3d 228.
   39See Torrie v. Weber County, 2013 UT 48, ¶ 17, 309 P.3d 216 (―In
reaching the conclusion that law enforcement officers owe a legal
                                                        (Continued)
                                 11
                        SCOTT v. UTAH COUNTY
                         Opinion of the Court
recognizing a duty would, in practice, impose liability on the
custodian of a dangerous individual every time the individual
harmed a third party.
    ¶26 For instance, if a prison carefully screened participants in
work-release programs to assure that only model inmates with no
history of violence could participate, it would be difficult to say the
prison breached a duty if an inmate escaped while on release and
committed a violent crime. And even when inmates with violent
criminal histories participate in work-release programs, rigorous
screening procedures and appropriate supervision may be
reasonable steps that could prevent many injuries without imposing
prohibitive costs.
    ¶27 Moreover, other negligence principles further limit a
custodian‘s potential liability. Under the proximate cause element,
prison officials and hospitals cannot be liable unless the plaintiff‘s
injuries are a foreseeable result of their negligence.40 Thus, the
greater the temporal and geographic distance between the plaintiff‘s
injury and the custodian‘s role in releasing the dangerous individual,
the more difficult it is for plaintiffs to establish a causal link between
their injury and any breach of duty.41




duty to fleeing suspects, we reiterate that the imposition of a duty is
a separate and distinct analysis from breach and proximate cause.‖).
   40  See, e.g., Mitchell v. Pearson Enters., 697 P.2d 240, 245–46 (Utah
1985) (―The standard definition of proximate cause is that cause
which, in natural and continuous sequence, (unbroken by an
efficient intervening cause), produces the injury and without which
the result would not have occurred. It is the efficient cause—the one
that necessarily sets in operation the factors that accomplish the
injury.‖ (internal quotation marks omitted)).
   41  Cf. Jeffs, 2012 UT 11, ¶ 35 (noting that the ―requirements of
breach and proximate cause . . . pose significant barriers to plaintiffs‖
in cases where a physician negligently prescribes medication to a
patient who becomes violent and injures a third party); see also Don
F. Vaccaro, Annotation, Liability of Public Officer or Body for Harm
Done by Prisoner Permitted to Escape, 44 A.L.R. 3d 899, § 2a (1972)
(―[W]here there is nothing in an escaped prisoner‘s criminal
background, psychiatric history, or prison experience to indicate that
he is likely to assault members of the public, liability may be denied
for harm resulting from the intentional acts of the escapee, on the
                                                            (Continued)
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                          Opinion of the Court

    ¶28 Not only is the reasoning in our prior caselaw questionable,
but a strong majority of states impose a duty much broader than the
Rollins rule on custodians of dangerous individuals. Thirty
jurisdictions require hospitals and prisons to protect third parties
from dangerous people in their custody even if the custodian is not
aware of a threat to a specific individual or group. These
jurisdictions have either explicitly adopted section 319 of the Second
Restatement of Torts42 or cited the Restatement approvingly and
followed its general approach.43 Section 319 provides that ―[o]ne


ground that there is no basis for concluding that his conduct was
foreseeable.‖).
   42  See Ryan v. State, 656 P.2d 597, 599 (Ariz. 1982), superseded by
statute on other grounds as stated in Clouse ex rel. Clouse v. State, 16 P.3d
757, 761, 763 (Ariz. 2001); Perreira v. State, 768 P.2d 1198, 1208–09
(Colo. 1989); Trammel v. Bradberry, 568 S.E.2d 715, 720–22, 722 n.2
(Ga. Ct. App. 2002); Caldwell v. Idaho Youth Ranch, Inc., 968 P.2d 215,
218–22 (Idaho 1998); Cansler v. State, 675 P.2d 57, 66 (Kan. 1984);
Davis v. Puryear, 673 So. 2d 1298, 1309 (La. Ct. App. 1996); Lamb v.
Hopkins, 492 A.2d 1297, 1302 (Md. 1985); Rum River Lumber Co. v.
State, 282 N.W.2d 882, 886 (Minn. 1979); Buchler v. State, 853 P.2d 798,
802 (Or. 1993); Goryeb v. Commonwealth, 575 A.2d 545, 549 (Pa. 1990);
Dudley v. Offender Aid & Restoration of Richmond, Inc., 401 S.E.2d 878,
881 (Va. 1991); Sheikh v. Choe, 128 P.3d 574, 577–78 (Wash. 2006).
   43 See State v. Cowles, 151 P.3d 353, 363–64 (Alaska 2006); Dore v.
City of Fairbanks, 31 P.3d 788, 793 (Alaska 2001); Nova Univ., Inc. v.
Wagner, 491 So. 2d 1116, 1118 (Fla. 1986); Ajirogi v. State, 583 P.2d 980,
985–86 (Haw. 1978); Estate of Mathes v. Ireland, 419 N.E.2d 782, 784–85
(Ind. Ct. App. 1981); Raas v. State, 729 N.W.2d 444, 449–50 (Iowa
2007); Knight v. State, 297 N.W.2d 889, 894–95 (Mich. Ct. App. 1980);
Sykes v. Grantham, 567 So. 2d 200, 214 (Miss. 1990); Starkenburg v.
State, 934 P.2d 1018, 1028 (Mont. 1997); Poppe v. City of Lincoln, 723
N.W.2d 661, 665 (Neb. Ct. App. 2006); D’Amico v. Christie, 518 N.E.2d
896, 902 (N.Y. 1987); King v. Durham Cnty. Mental Health
Developmental Disabilities & Substance Abuse Auth., 439 S.E.2d 771,
774–75 (N.C. Ct. App. 1994); Estates of Morgan v. Fairfield Family
Counseling Ctr., 673 N.E.2d 1311, 1319–20 (Ohio 1997), superseded by
statute on other grounds as stated in Dillon v. Ohio Health Corp., 31
N.E.3d 1232, 1251 (Ohio Ct. App. 2015); Rock v. State, 681 A.2d 901,
902–04, 904 n.2 (R.I. 1996); E.P. ex rel. R.P. v. Riley, 604 N.W.2d 7, 14–
16 (S.D. 1999); Hembree v. State, 925 S.W.2d 513, 517 (Tenn. 1996); Tex.
Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 32, 38–39 (Tex. 2002); Jankee
                                                              (Continued)
                                    13
                           SCOTT v. UTAH COUNTY
                           Opinion of the Court
who takes charge of a third person whom he knows or should know
to be likely to cause bodily harm to others if not controlled is under a
duty to exercise reasonable care to control the third person to
prevent him from doing such harm.‖44 While there are subtle
differences between the Restatement and how states have chosen to
implement it, very few require the person with custody of the
dangerous individual to be aware of threats to a specific victim or
group that includes the victim. Aside from Utah, we have found just
four states that impose such a requirement.45 And as we discuss
later, almost all of the jurisdictions that follow the Restatement‘s
approach also operate rehabilitative programs.46
     ¶29 Finally, our most recent negligence caselaw is more
consistent with the Restatement than it is with Rollins. In B.R. ex rel.
Jeffs v. West, we identified a number of factors that are ―relevant to
determining whether a defendant owes a duty to a plaintiff.‖47 These
include ―(1) whether the defendant‘s allegedly tortious conduct
consists of an affirmative act or merely an omission; (2) the legal
relationship of the parties; (3) the foreseeability or likelihood of
injury; (4) public policy as to which party can best bear the loss
occasioned by the injury; and (5) other general policy
considerations.‖48 We made clear that each factor must be ―analyzed
at a broad, categorical level for a class of defendants‖49 rather than a
factually intense inquiry ―decided on a case-by-case basis.‖50 If ―the
relevant category of cases‖ ―includes individual cases in which the
likelihood of some type of harm is sufficiently high that a reasonable




v. Clark County, 612 N.W.2d 297, 321–22 (Wis. 2000); Natrona County.
v. Blake, 81 P.3d 948, 957–58 (Wyo. 2003).
   44   RESTATEMENT (SECOND) OF TORTS § 319 (1965).
   45  See Saccuzzo v. Krystal Co., 646 So. 2d 595, 596 (Ala. 1994);
Thompson v. County of Alameda, 614 P.2d 728, 738 (Cal. 1980); Faile v.
S.C. Dep’t of Juvenile Justice, 566 S.E.2d 536, 546 n.6 (S.C. 2002); Sorge
v. State, 762 A.2d 816, 822–23 (Vt. 2000).
   46   See infra ¶ 49.
   47   2012 UT 11, ¶ 5.
   48   Id. (internal quotation marks omitted).
   49   Id. ¶ 23.
   50   Id. (internal quotation marks omitted).

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                            Opinion of the Court

person could anticipate a general risk of injury to others,‖ the
defendant likely owes a duty of care to the plaintiff.51
    ¶30 In the cases in which we adopted and applied the Rollins
rule, we focused on specific factual considerations to determine
whether a duty existed rather than examining the parties‘
relationship in broad categorical terms. In Ferree, we determined that
a corrections center owed no duty of care because the plaintiffs
―presented no evidence that Ferguson‖—a temporarily released
inmate—―had previously exhibited violent behavior toward another
or that he had physically threatened another.‖52 We observed that
even though ―proof of the allegations‖ in the plaintiffs‘ complaint
―might establish lack of due care in the abstract,‖ there was ―nothing
to indicate that the officials were aware of anything more than a
generalized possibility‖ of harm.53 Similarly, in Rollins we concluded
that a hospital did not owe a duty to a motorist injured by an
escaped mental patient because the ―record [was] devoid of any
evidence‖ that the patient had ―set himself apart in terms of
dangerousness to [the motorist] personally or to any distinct group
of which [the motorist] was a member.‖54
    ¶31 This type of specific, case-by-case analysis is incompatible
with our directive in Jeffs that courts articulate a party‘s duty of care
―in relatively clear, categorical, bright-line rules of law applicable to
a general class of cases.‖55 In Jeffs, we clarified that the ―essential
difference among the elements [of negligence] is that duty is a
question of law determined on a categorical basis, while breach and
proximate cause are questions for the fact finder determined on a
case-specific basis.‖56 In adopting and applying the Rollins rule, we
therefore conflated the case-specific analysis properly reserved for
breach and causation with the abstract, categorical inquiry that
should have been employed to articulate the duty.
   ¶32 In sum, the Rollins rule is based on flawed premises,
inconsistent with the law in most other jurisdictions, and at odds


   51   Id. ¶ 27.
   52   Ferree, 784 P.2d at 152.
   53   Id.
   54   Rollins, 813 P.2d at 1162.
   55   Jeffs, 2012 UT 11, ¶ 23 (internal quotation marks omitted).
   56   Id. ¶ 25.

                                     15
                          SCOTT v. UTAH COUNTY
                           Opinion of the Court
with our own most recent negligence caselaw. Consequently, even
though departing from the rule may upset the reliance interests of
correctional facilities and health care providers that regularly house
dangerous individuals, we overrule Rollins.
 II. Under the Proper Duty Analysis, We Conclude that the County
        Owed Ms. Scott a Duty and Adopt Section 319 of the
                    Second Restatement of Torts
    ¶33 Having overruled the Rollins rule, we now consider anew
the circumstances under which the custodian of a dangerous person
owes a duty to third parties that the dangerous person injures. As we
have just discussed, Jeffs requires tort duties to be articulated ―in
relatively clear, categorical, bright-line rules of law applicable to a
general class of cases.‖57 We therefore analyze each pertinent factor
in the duty analysis ―at a broad, categorical level for a class of
defendants‖ without focusing on the particular circumstances of a
given case.58 These factors are ―(1) whether the defendant‘s allegedly
tortious conduct consists of an affirmative act or merely an omission;
(2) the legal relationship of the parties; (3) the foreseeability or
likelihood of injury; (4) public policy as to which party can best bear
the loss occasioned by the injury; and (5) other general policy
considerations.‖59 Below, we analyze each of these factors in turn. In
so doing, we adopt section 319 of the Second Restatement of Torts
and hold that the custodian of a dangerous individual has a duty of
care to prevent that individual from harming members of the public.
And under this standard, we conclude that Ms. Scott pled enough
facts to establish that the County owed her a duty.
    ¶34 Each of the five duty factors we articulated in Jeffs favors
imposing a duty on the County. First, operating a work-release
program is an affirmative act, not an omission. Second, while the
County had no legal relationship with Ms. Scott, it did have a
custodial relationship with her attacker. Third, failing to adequately
screen inmates before allowing them to participate in a temporary
work-release program could foreseeably result in dangerous
individuals harming others. Fourth, it is the custodian of the
dangerous individual—not potential victims—that is best situated to
bear the loss associated with such an injury. And finally, numerous

   57B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 23, 275 P.3d 228 (internal
quotation marks omitted).
   58   Id.
   59   Id. ¶ 5 (internal quotation marks omitted).

                                    16
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                           Opinion of the Court

jurisdictions impose a duty on prisons and hospitals to control
dangerous individuals in their custody, and all of them operate
transitional rehabilitative programs.
    ¶35 The first duty factor favors imposing a duty of care on the
County because screening and placing inmates in a work-release
program is an affirmative act, not an omission. The distinction
between passive inaction and affirmative acts is ―central to
assessing‖ the duty question,60 because the law imposes a duty of
care ―where an individual‘s active misconduct work[ed] positive
injury to others.‖61 But an omission, or the ―failure to take positive
steps to benefit others,‖ gives rise to a duty only when there is a
special legal relationship between the parties.62 The line between acts
and omissions is sometimes subtle. Borrowing from Justice Cardozo,
we have characterized the inquiry as ―whether the putative
wrongdoer has advanced to such a point as to have launched a force
or instrument of harm, or has stopped where inaction is at most a
refusal to become an instrument for good.‖63
    ¶36 The conduct in this case involves more than the passive
failure to protect another. When the custodian of potentially
dangerous individuals negligently places those individuals in a
rehabilitative program, that action ―launche[s] a force or instrument
of harm,‖64 creating a risk of injury to others. And here, the County
created a work-release program and placed potentially dangerous
inmates with private companies. It screened each inmate who
volunteered, refusing to place anyone with an employer who was
not approved. And once approved, the inmates worked outside
prison walls without any meaningful supervision by prison officials.
By placing inmates in the community, the County engaged in ―active
misconduct‖ if its screening procedures were inadequate to discover
obvious dangers work-release participants might pose to the public.
Consequently, this is not a case where liability stems from a
plaintiff‘s failure to warn or take other affirmative steps to protect

   60   Id. ¶ 9 (internal quotation marks omitted).
   61 Herland v. Izatt, 2015 UT 30, ¶ 34, 345 P.3d 661 (alteration in
original) (internal quotation marks omitted).
   62   Id. (internal quotation marks omitted).
   63 Id. ¶ 35 (quoting H.R. Moch Co. v. Rensselaer Water Co., 159 N.E.
896, 898 (N.Y. 1928) (Cardozo, C.J.)).
   64   Id. (internal quotation marks omitted).

                                    17
                           SCOTT v. UTAH COUNTY
                            Opinion of the Court
the defendant. Instead, the County‘s conduct involves an affirmative
act, and this factor accordingly weighs in favor of imposing a duty.
    ¶37 Next, we turn to the second factor in our duty analysis—the
parties‘ relationship. This factor favors imposing a duty if there is a
special legal relationship between the parties.65 Some examples
include ―common carrier to its passenger, innkeeper and guest,
landowner and invitee to his land, and one who takes custody of
another.‖66 The County argues that Ms. Scott must show a special
relationship to establish a duty, most likely because historically the
public duty doctrine has prohibited imposing a duty on
governmental actors for even affirmative acts absent a special
relationship.67 But in Cope v. Utah Valley State College, a case issued
last year, we made clear that the public duty doctrine no longer
imposes such a requirement when a governmental defendant‘s
negligence stems from an affirmative act rather than an omission.68
Here, because the County‘s negligence arises from an affirmative act,
Ms. Scott does not need to establish a special relationship between
herself and the County for her claim to survive dismissal.
    ¶38 But even if she did, there is a legal relationship that favors
imposing a duty. We have recognized that someone who has ―actual
custody . . . of a third person who causes harm to the plaintiff‖69 may
have a duty if he knew, or should have known, that the third person
is dangerous. Two aspects of the custodial relationship between
prison officials and inmates show why such a duty should apply in
this case. First, prison70 officials ―exert actual, physical dominion and
control over the prisoners,‖71 giving them a wealth of information
about the inmates‘ physical and mental capacities to which no one

   65   See Cope v. Utah Valley State Coll., 2014 UT 53, ¶ 25, 342 P.3d 243.
   66   Jeffs, 2012 UT 11, ¶ 8 (internal quotation marks omitted).
   67 See, e.g., Webb v. Univ. of Utah, 2005 UT 80, ¶ 11, 125 P.3d 906,
overruled by Cope, 2014 UT 53, ¶¶ 19–27.
   68   See Cope, 2014 UT 53, ¶¶ 19–27.
   69Francis v. State, 2013 UT 65, ¶ 27, 321 P.3d 1089 (internal
quotation marks omitted).
   70 We use the term ―prison‖ throughout this opinion in a broad
sense that encompasses any place of involuntary ―confinement or
restriction,‖ which would include a county jail. See THE AMERICAN
HERITAGE DICTIONARY 1402 (5th ed. 2011).
   71   72 C.J.S. Prisons and Rights of Prisoners § 63.

                                       18
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                                Opinion of the Court

else has comparable access. Second, such a relationship involves the
―legal authority to control‖ the person‘s movement and interactions
with the public.72
    ¶39 The custodian‘s knowledge should inform the manner in
which it exercises control—a reasonable custodian that knows an
individual is dangerous would impose more constraints on that
individual than someone without violent tendencies. And the
custodian would also take reasonable steps to discover this
information before making decisions that could expose the
individual to potential victims. Section 319 of the Second
Restatement of Torts articulates just such a duty: ―One who takes
charge of a third person whom he knows or should know to be likely
to cause bodily harm to others if not controlled is under a duty to
exercise reasonable care to control the third person to prevent him
from doing such harm.‖73 By way of illustration, the Restatement
provides an example that is particularly apt to the facts of this case:
―A operates a private sanitarium for the insane. Through the
negligence of the guards employed by A, B, a homicidal maniac, is
permitted to escape. B attacks and causes harm to C. A is subject to
liability to C.‖74
   ¶40 The County argues that its relationship with Mr. Leonard is
insufficient to create a duty. It maintains that a custodian‘s duty
should hinge on whether it ―has actual, physical control over the
individual.‖ And here, Mr. Leonard was not under the County‘s
direct supervision when he escaped.
    ¶41 Accepting the County‘s argument, however, would create
perverse incentives. If a custodian‘s duty in this context were limited
solely to protecting others from dangerous people under its actual,
physical control at the time of an attack, prisons and hospitals that
remain willfully blind to an individual‘s violent tendencies when
releasing him or her into a rehabilitative program would be placed
in precisely the same position as a custodian who took every
precaution to ensure no dangerous individual was temporarily
released—neither would face liability. By contrast, extending a
custodian‘s duty to the manner in which it exercises legal control


    See 2 DAN B. DOBBS, PAUL T. HAYDEN, & ELLEN M. BUBLICK, THE
   72

LAW OF TORTS § 418 (2d ed. 2011).
   73   RESTATEMENT (SECOND) OF TORTS § 319 (1965).
   74   Id. cmt. a, illus. 2.

                                        19
                           SCOTT v. UTAH COUNTY
                            Opinion of the Court
imposes greater liability on custodians who fail to screen inmates or
patients for violent tendencies than it does those who employ
prudent screening procedures. Focusing the duty on legal control
therefore properly encourages all custodians to be careful about
which individuals they expose to the general public through
rehabilitative programs.
    ¶42 For these reasons, we adopt the Restatement standard for
determining when the custodian of a dangerous individual owes a
duty to prevent the individual from injuring others. And we
conclude that because the County had legal custody of Ms. Scott‘s
attacker, this factor weighs in favor of imposing a duty. We now turn
to the next factor, foreseeability.
    ¶43 This factor, the third in our duty analysis, also favors
imposing a duty on the County. As discussed earlier, foreseeability
analysis for duty purposes differs in kind from foreseeability in
proximate cause.75 We do not examine whether the County could
have foreseen the specific chain of events that led to Ms. Scott‘s
injury. Rather, we ask ―whether a category of cases includes
individual cases in which the likelihood of some type of harm is
sufficiently high that a reasonable person could anticipate a general
risk of injury to others.‖76 Here, the relevant category of cases
involves the custodian of a potentially dangerous individual who
places the individual in the community outside its direct physical
control with minimal supervision. And in so doing, the custodian
fails to adequately evaluate the individual for potential
dangerousness.
    ¶44 There are certainly circumstances within this class of cases
in which the custodian could foresee a risk of injury. For example,
inmates are in state custody. Some are nonviolent offenders who
would pose little, if any, foreseeable danger to the public if
temporarily released. Others may have committed violent offenses
but have been model citizens throughout their prison term. But there
are also other categories of inmates who have significant disciplinary
problems in prison, a history of violence, mental illnesses, problems
with substance abuse, or a combination of several of these issues.
Inmates in this category pose a heightened risk of harm to others if
allowed to work outside the prison without meaningful supervision.
Consequently, a custodian that employs inadequate screening


   75   Jeffs, 2012 UT 11, ¶ 25.
   76   Id. ¶ 27.

                                    20
                            Cite as: 2015 UT 64
                           Opinion of the Court

procedures could certainly foresee one of these dangerous
individuals escaping from a minimally supervised work site and
harming someone. The foreseeability factor therefore favors
imposing a duty on the County.
   ¶45 The fourth duty factor—―public policy as to which party can
best bear the loss occasioned by the injury‖—similarly supports
imposing a duty of care on the County.77 Under this factor, we do
not consider ―the depth of [the parties‘] pockets,‖ but instead
examine which of them ―is best situated to take reasonable
precautions to avoid injury.‖78 In Jeffs, we determined that
physicians are in the best position to prevent injuries to third parties
caused by patients who received erroneously prescribed
medication.79 We noted that medical experts ―can take into account
the propensities of the drug, as well as the susceptibilities of [the]
patient,‖ and we concluded that ―the prescribing physician of a
prescription drug is the person best able to take or recommend
precautions against potential injuries.‖80
    ¶46 Our reasoning in Jeffs applies with equal force here.
Although it is true that private employers and potential victims can
access public records detailing an inmate‘s criminal history, only
prison officials are acquainted with the inmate‘s behavior since his
conviction. Prison officials‘ daily interactions with inmates give them
important insights about who can be trusted to participate in a
temporary work-release program and who should remain behind
bars. Just as a physician becomes acquainted with a patient‘s
particular response to different medications, prison officials become
intimately familiar with which inmates routinely abuse privileges
and create conflict. No one can predict with perfect accuracy
whether an inmate will injure someone during temporary release,81
but it is difficult to imagine anyone in a better position to assess that
risk than the custodian charged with supervising the inmate on a

   77   See id. ¶ 5 (internal quotation marks omitted).
   78   Id. ¶¶ 29–30.
   79   Id. ¶ 31.
   80   Id. (internal quotation marks omitted).
   81 See Sonja B. Starr, Evidence-Based Sentencing and the Scientific
Rationalization of Discrimination, 66 STAN. L. REV. 803, 817–21 (2014)
(discussing the difficulties of using a defendant‘s past behavior to
predict future violence).

                                     21
                           SCOTT v. UTAH COUNTY
                            Opinion of the Court
daily basis. Accordingly, this factor weighs in favor of imposing a
duty.
    ¶47 We now turn to the final factor—―other general policy
considerations‖—and conclude that the competing public policies at
issue supports the imposition of a duty.82 We reach this conclusion
because we see no reason why a policy favoring rehabilitative
programs cannot coexist with the tort law policy of compensating
injured parties. Both policies are important. With respect to
rehabilitative programs, we have stated that ―parole and minimum
security programs are designed to give the inmate the best
opportunity to successfully become a member of society again.‖83 So
even though there is substantial ―imprecision associated with
predicting violent human conduct,‖ such programs are ―practically
indispensable.‖84 We agree with those statements and reaffirm them
today.
    ¶48 But recognizing a duty promotes equally weighty policy
concerns, and we are not convinced that doing so would impede the
State‘s ability to maintain rehabilitative programs. To begin with, the
basic purpose of tort law is ―to place an injured person in a position
as nearly as possible to the position he would have occupied but for
the defendant‘s‖ tortious behavior.85 Providing such compensation
both ―protect[s] societal interests in human life, health[,] and
safety‖86 and deters harmful behavior by requiring individuals
whose conduct harms those around them to bear the full cost of their
actions.87 Here, imposing a duty on custodians of dangerous
individuals serves these important interests. A plaintiff, like
Ms. Scott, can be compensated for her injuries, and the potential
liability for prison officials and other custodians provides a powerful
incentive to screen program participants rigorously.


   82   See Jeffs, 2012 UT 11, ¶ 5 (internal quotation marks omitted).
   83   Rollins v. Petersen, 813 P.2d 1156, 1161 (Utah 1991).
   84   Ferree v. State, 784 P.2d 149, 151 (Utah 1989).
   85 Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107, ¶ 97, 37 P.3d
1130 (internal quotation marks omitted).
   86State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 592 N.W.2d 201,
214 (Wis. 1999).
   87 See, e.g., Mary Glick & Cory Sinclair, Damages Resulting From a
Lost Opportunity: The Proper Damage Date in Utah Contract and Tort
Cases, UTAH B.J., July-Aug. 2010, at 30, 33.

                                      22
                              Cite as: 2015 UT 64
                           Opinion of the Court

    ¶49 Of course, subjecting prisons and hospitals to liability also
raises the cost of rehabilitative programs, which appears to have
been the Rollins court‘s central concern.88 But it is far from clear to us
that these additional costs will be prohibitive—according to the Utah
Sheriffs‘ Association‘s amicus brief, ―every state except New Jersey
[has] a formal temporary release program in place.‖ And yet, at least
thirty of these jurisdictions impose a duty similar to the Restatement
standard.89 Moreover, the Sheriffs‘ Association also reports that in a
survey of twenty-five counties in Utah, around 530 inmates are
released to work in the community and 212 are released for
employment or education. And of the twenty-five counties surveyed,
just two ―reported a negative interaction with the community.‖ If the
vast majority of these programs successfully place inmates without
incident, we struggle to see why recognizing a duty endangers their
fiscal integrity, particularly in light of other limiting principles of tort
law we have already discussed.90 Thus, rather than undermining the
State‘s interest in rehabilitating inmates, recognition of a duty in this
instance accommodates the competing policies at stake.
    ¶50 In sum, each of the five factors we analyze to establish a
duty of care favors imposing one on the County. We therefore
conclude that the County owes Ms. Scott a duty of care and adopt
the standard set forth in section 319 of the Second Restatement of
Torts. The custodian of a dangerous individual must exercise
reasonable care when deciding whether to allow that individual to
participate in temporary release programs. And if the custodian‘s
negligence allows a dangerous individual to harm someone while on
release, the custodian may be liable for the harm.91




   88 813 P.2d at 1161 (―If these custodians owed a duty to every
member of the public for any harm done by a person under their
control, the broad potential for liability could effectively cripple
these programs.‖).
   89   See supra ¶ 28 nn. 42–43.
   90   See supra ¶¶ 25–27.
   91RESTATEMENT (SECOND) OF TORTS § 319 (1965) (―One who takes
charge of a third person whom he knows or should know to be likely
to cause bodily harm to others if not controlled is under a duty to
exercise reasonable care to control the third person to prevent him
from doing such harm.‖).

                                      23
                        SCOTT v. UTAH COUNTY
                         Opinion of the Court
         III. Even Though the County Owes Ms. Scott a Duty,
                       It is Immune From Suit
   ¶51 Having concluded that the County owes Ms. Scott a duty,
we now discuss whether it is immune from suit. We begin by noting
that Ms. Scott concedes that the Governmental Immunity Act bars
her claim. But she argues that the Act is unconstitutional as applied
under article I, section 11 of the Utah Constitution (the open courts
clause). That clause provides,
        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.
    ¶52 We have interpreted the open courts clause to prevent the
legislature from passing a law that ―abrogates a cause of action
existing at the time of [the law‘s] enactment‖ unless it (1) provides
―an effective and reasonable alternative remedy‖ or (2) ―seeks to
eliminate a clear social or economic evil‖ by means that are not
―arbitrary or unreasonable.‖92
    ¶53 None of the parties has argued that Ms. Scott was afforded
an alternative remedy, so the central question is whether the
legislature abrogated her cause of action when it expanded the
Governmental Immunity Act. Because the interaction of
governmental immunity and the open courts clause is somewhat
complex, we first briefly discuss the historical development of
governmental immunity in Utah and then set forth the legal
standard we apply for open courts clause challenges in this context.
Applying that standard, we then conclude that the legislature did
not abrogate a cause of action Ms. Scott would have had before it
expanded governmental immunity, so the Act‘s application in this
case is not unconstitutional.
         A. Governmental Immunity and the Open Courts Clause
   ¶54 To determine whether the Governmental Immunity Act
violates the open courts clause in a particular case, we look to see
whether the plaintiff could have brought his or her cause of action

   92 Tindley v. Salt Lake City Sch. Dist., 2005 UT 30, ¶¶ 17, 18, 116
P.3d 295 (internal quotation marks omitted).

                                   24
                         Cite as: 2015 UT 64
                        Opinion of the Court

prior to 1987.93 As we explain below, this is because 1987 is the high-
water mark of governmental liability in Utah, and any subsequent
amendments to the Act expanding governmental immunity
therefore eliminates causes of action that could have been
maintained against governmental entities before 1987.
    ¶55 Prior to the enactment of the Governmental Immunity Act
in 1965, the common law doctrine of sovereign immunity prevented
a citizen from suing a state governmental entity for any act
considered to be a function of government.94 Our cases characterized
a state action as ―governmental‖ if it was not serving a ―proprietary‖
function. By ―proprietary,‖ we meant that, in performing the action,
the State obtained a pecuniary benefit, competed directly with
private entities in the marketplace, or engaged in activity that could
be successfully operated by private enterprise.95
    ¶56 The 1965 Governmental Immunity Act expanded liability
for state entities beyond common law sovereign immunity by
making the government subject to suit when it engaged in specific
activities.96 It also provided that governmental entities retained
blanket sovereign immunity protections when ―engaged in the
exercise and discharge of a governmental function.‖97 But nowhere
in the Act did the legislature define the term ―governmental
function,‖ so Utah courts relied on the governmental-proprietary
function test from our sovereign immunity caselaw to interpret the
full scope of immunity under the Act.98
   ¶57 In Standiford v. Salt Lake City Corporation, we expressly
disavowed this precedent because it led to ―contrary and


   93   See id. ¶ 21.
   94 See Standiford v. Salt Lake City Corp., 605 P.2d 1230, 1235 (Utah
1980) (―The term ‗government function‘ is a term of art in the law of
sovereign immunity, meaning that a public entity is not liable for its
torts committed in the exercise of a governmental function.‖).
   95   Id. at 1234.
    See Utah Governmental Immunity Act, ch. 139, § 10, 1965 Utah
   96

Laws 390, 391–92.
    See Utah Governmental Immunity Act, ch. 139, § 3, 1965 Utah
   97

Laws 390, 391.
    See Standiford, 605 P.2d at 1235 (discussing the sovereign
   98

immunity test and citing cases that applied it).

                                  25
                          SCOTT v. UTAH COUNTY
                           Opinion of the Court
unpredictable results.‖99 We held ―that the test for determining
governmental immunity‖ under the Act ―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.‖100
    ¶58 Perhaps in response to our decision in Standiford, the
legislature restricted governmental liability in 1987 by expanding the
Act‘s definition of ―governmental function‖ to include ―any act,
failure to act, operation, function, or undertaking‖ regardless of
whether the activity ―is characterized as governmental, proprietary,
a core governmental function, unique to government, undertaken in
a dual capacity, essential to or not essential to a government or
governmental function, or could be performed by private enterprise
or private persons.‖101 The legislature has continued to expand the
definition of ―governmental function‖ in subsequent amendments,
and the statute currently defines that term as encompassing
anything the government decides to do—―each activity,
undertaking, or operation performed by a department, agency,
employee, agent, or officer of a government entity.‖102
   ¶59 Anytime the legislature expands the definition of
―governmental function,‖ it restricts the government‘s liability
beyond the scope of the Act as interpreted in Standiford—possibly
abrogating causes of action that would have existed before the 1987
amendment and violating the open courts clause. Consequently, we
have looked to the Standiford test—which defined ―governmental
function‖ in the Act before the legislature expanded the definition of




   99 Id. at 1235, 1236–37. For example, under the old test, we
determined that the operation of a golf course was a governmental
function because, at the time the case was decided, ―[o]ne searches in
vain to find public golf courses in this area that are successfully
operated by private enterprise.‖ Jopes v. Salt Lake County, 343 P.2d
728, 730 (Utah 1959).
   100   Standiford, 605 P.2d at 1236–37.
   101See Richards Irrigation Co. v. Karren, 880 P.2d 6, 9 (Utah Ct. App.
1994) (quoting UTAH CODE § 63-30-2(4)(a) & (b) (1993), which
includes the 1987 amendment to the Governmental Immunity Act).
   102   UTAH CODE § 63G-7-102(4)(b).

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that term in 1987—to determine ―whether the Act in its current form
abrogates a cause of action that existed prior to its enactment.‖103
         B. The Application of the Governmental Immunity Act in this
                            Case is Not Unconstitutional
      ¶60 We now apply the Standiford test to resolve Ms. Scott‘s open
courts clause challenge to the Governmental Immunity Act. As we
have discussed, she must show that the legislature abrogated a cause
of action she could have brought before 1987.104 To make that
determination, we apply the Standiford test, assessing ―whether the
activity giving rise to the cause of action [1] is of such a unique
nature that it can only be performed by a governmental agency or
. . . [2] is essential to the core of governmental activity.‖ 105 If
operating Jail Industries falls under either category, then the County
would have been immune from Ms. Scott‘s suit in 1987 before the
legislature expanded governmental immunity, and the Act‘s
application in this case would not violate the open courts clause.
   ¶61 The first category ―does not refer to what government may
do, but to what government alone must do.‖106 The second
encompasses ―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.‖107 We have
previously determined that the following activities were not
governmental functions under Standiford: operating a public golf
course,108 operating a public sledding hill,109 collecting and disposing


   103 Tindley, 2005 UT 30, ¶ 22; Lyon v. Burton, 2000 UT 55, ¶ 35, 5
P.3d 616 (noting that the Standiford test has been adopted to police
―the proper constitutional boundary between those governmental
activities that are entitled to immunity under governmental
immunity law (subject to legislative waiver) and are not subject to
[the open courts clause] protections, and those governmental
activities that are not subject to immunity and that are subject to the
remedies protected by‖ the clause).
   104   Supra ¶¶ 54–59.
   105   Tindley, 2005 UT 30, ¶ 22 (internal quotation marks omitted).
     Johnson v. Salt Lake City Corp., 629 P.2d 432, 434 (Utah 1981)
   106

(emphasis added).
   107   Id.
   108   Standiford, 605 P.2d at 1237.

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                           SCOTT v. UTAH COUNTY
                            Opinion of the Court
of sewage,110 operating a municipal electrical power system,111 and
operating a hospital where only ―3.5 percent of the hospital‘s
operating budget came from legislative appropriations.‖112 By
contrast, we have held that transporting students to an out-of-state
debate tournament,113 the regulation of boxing matches,114 and
operating a public transportation system were governmental
functions.115 In these cases, we identified the following factors as
characteristics that weigh in favor of finding that an activity is a
governmental function—the extent to which the activity is funded by
the State, competes in the marketplace with private entities,
generates annual profits, and would be ―qualitatively different‖ if
engaged in by a private entity.
    ¶62 Under this standard, we conclude that rehabilitation
programs like Jail Industries are essential to the core governmental
activity of running a state prison system. We have described
rehabilitative programs for inmates as ―necessary programs‖ that are
―practically indispensable‖116 to managing the prison population.
Housing and rehabilitating inmates is an integral piece of the justice
system, and if administering justice to those who violate the penal
code is not a governmental function, we do not know what is.
   ¶63 Ms. Scott nevertheless argues that Jail Industries is
qualitatively different than traditional work-release programs
because ―inmates, rather than parolees, were inserted into the
community with little supervision as a source of revenue for Utah
County and its private partners.‖ Although it is true that a
governmental activity that generates profits is more likely to be




   109   Johnson, 629 P.2d at 434–35.
   110   Thomas v. Clearfield City, 642 P.2d 737, 739 (Utah 1982).
   111   Laney v. Fairview City, 2002 UT 79, ¶ 53, 57 P.3d 1007.
   112   Condemarin v. Univ. Hosp., 775 P.2d 348, 373–74 (Utah 1989).
   113   Tindley, 2005 UT 30, ¶¶ 25–26.
   114Moss v. Pete Suazo Utah Athletic Comm’n, 2007 UT 99, ¶¶ 26–28,
175 P.3d 1042.
   115   Parks v. Utah Transit Auth., 2002 UT 55, ¶ 14, 53 P.3d 473.
   116   Ferree v. State, 784 P.2d 149, 151 (Utah 1989).

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                           Opinion of the Court

classified as a nongovernmental function under               Standiford,
profitability alone is not a determinative factor.117
   ¶64 Moreover, the fact that Jail Industries places inmates with
employers outside the prison is insufficient to transform what we
have recognized as a core governmental activity into a private
endeavor. An activity that supports a core governmental function
may satisfy the Standiford test even if it is not indispensable.118 For
example, in Tindley v. Salt Lake City School District, we concluded that
an extracurricular school debate program was essential to the core
governmental function of educating students.119 We so held even
though the negligence claim at issue arose from the school‘s efforts
to transport the debate team to out-of-state competitions.120 We
observed that the debate program ―clearly benefits student
education and is unlikely to be available to public school students if
not offered through their schools.‖121
   ¶65 Similarly, Jail Industries gives inmates the benefit of work
experience and a modest paycheck—significant experience that may
ease their transition back into society and serves the core
governmental function of rehabilitating inmates. It is certainly
possible to house inmates without a program like Jail Industries. But
the program ―clearly benefits‖ inmates, and its unique benefits are
―unlikely to be available‖ to them if the prison does not provide it.122
   ¶66 We therefore conclude that Jail Industries is essential to the
core governmental function of housing and rehabilitating inmates,
and the program accordingly qualifies as a ―governmental function‖
under Standiford. Consequently, the County has always enjoyed
immunity for such an activity, and the legislature‘s expansion of
governmental immunity in 1987 did not abrogate Ms. Scott‘s cause


   117  Standiford, 605 P.2d at 1234 (rejecting the common law
distinction between governmental and proprietary activities as a
way to interpret the term ―governmental function‖ in the Immunity
Act, because focusing on ―whether the public entity derived a special
pecuniary benefit . . . . led to . . . conflicting results‖).
   118   See Tindley, 2005 UT 30, ¶ 23.
   119   Id. ¶ 24.
   120   Id. ¶ 25.
   121   Id.
   122   See id.

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                       SCOTT v. UTAH COUNTY
                        Opinion of the Court
of action. Accordingly, the Governmental Immunity Act is not
unconstitutional as applied in this case.
                             Conclusion
    ¶67 We overrule the Rollins rule and hold that the custodian of a
dangerous individual has a duty to take reasonable precautions to
prevent that individual from injuring others. Under that standard,
we conclude that the County owed Ms. Scott a duty. But even
though the County owed Ms. Scott a duty, her negligence claim is
barred by the Governmental Immunity Act. Finally, because work-
release programs are essential to the core governmental activity of
housing and rehabilitating inmates, the Act is not unconstitutional as
applied in this case. We therefore affirm the district court‘s decision
dismissing Ms. Scott‘s negligence claims against the County.




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