2015 UT App 3

_________________________________________________________

THE UTAH COURT OF APPEALS

KEVIN FAUCHEAUX,

Plaintiff and Appellant,

v.

PROVO CITY,

Defendant and Appellee.

Opinion

No. 20130690-CA

Filed January 2, 2015

Fourth District Court, Provo Department

The Honorable Fred D. Howard

No. 100401999

Ronald D. Wilkinson, Janet G. Peterson and 

Marianne P. Card Attorneys for Appellant

Dennis C. Ferguson and Timothy J. Bywater,

Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGE GREGORY K. ORME and SENIOR JUDGE RUSSELL W. BENCH

concurred.

1

VOROS, Judge:

¶1 Afraid that his wife, Helen Faucheaux, had overdosed on 

prescription pills, Kevin Faucheaux called 911. When police 

 

1. The Honorable Russell W. Bench, Senior Judge, sat by special 

assignment as authorized by law. See generally Utah R. Jud. 

Admin. 11-201(6).
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officers arrived they concluded that Helen had not overdosed.2

Despite Kevin’s pleas that they call emergency medical 

technicians, the officers tucked Helen into bed and told Kevin to 

leave her alone. Sometime in the next couple of hours, Helen 

died. Kevin brought this wrongful-death action against Provo

City in his capacity as personal representative of Helen’s estate.

The district court granted summary judgment in Provo’s favor, 

ruling that Provo owed Helen no duty and that even if it did the 

Governmental Immunity Act protected Provo because the 

officers’ actions were discretionary. We reverse and remand the 

case for further proceedings.

BACKGROUND3

¶2 Helen had a history of attempted suicide and 

prescription-drug abuse. Her prescription-drug abuse worsened 

after her incarceration, where she learned to ‚crush and snort 

Percocet and Flexeril‛ for a more intense high. In the years

immediately before her death, Helen threatened or attempted 

suicide several times. In fact, on one occasion, her suicide 

attempt nearly proved successful: she ‚flat-lined,‛ but 

paramedics were able to revive her.

 

2. Because Kevin and Helen Faucheaux have the same last name, 

for clarity we refer to them by their first names. Furthermore, we 

refer to Kevin Faucheaux as ‚Kevin‛ when referring to him in 

his personal capacity and as ‚Faucheaux‛ when referring to him 

in his capacity as personal representative of Helen’s estate.

3. On an appeal from a summary judgment, we recite the facts 

and all reasonable inferences drawn therefrom in the light most 

favorable to the nonmoving party. See Orvis v. Johnson, 2008 UT 

2, ¶ 6, 177 P.3d 600. Consequently, most of the facts in this 

section are drawn from Kevin’s affidavit.
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¶3 One day in 2009, Helen appeared to be under the 

influence of prescription drugs. She and Kevin fought, after 

which both called the police. Because ‚Helen claimed she was 

injured,‛ she went to the hospital but was released without 

treatment. Kevin picked Helen up from the hospital but 

‚dropped her at home‛ to ‚keep the situation from escalating 

again.‛

¶4 After leaving, Kevin received a text message from Helen 

saying goodbye. Because this was ‚the type of text that Helen 

had sent [Kevin] in the past to make [him] think she was 

committing suicide and to manipulate [him] into coming home,‛ 

Kevin did not immediately return. About an hour later, still 

before Kevin had returned home, Helen called the police, 

claiming that Kevin had locked her out of her home.

¶5 When Kevin returned home, he noticed a dusting of white 

powder on the ‚bathroom sink, floor, and door.‛ He found 

Helen ‚stumbling around and unable to walk straight, using the 

wall to help her balance.‛ Helen then ‚stumbled into the 

bathroom, and [Kevin] heard snorting noises.‛ Helen spoke in 

slurred speech, and Kevin knew that ‚Helen was crushing pills.‛

Now ‚worried that Helen’s threat to commit suicide was 

serious,‛ Kevin called 911, telling the operator that Helen 

needed ‚to be pink-slipped because she was suicidal‛ and that 

Helen had been abusing drugs.4

¶6 The officers arrived at about 10:00 p.m. Kevin met them 

outside. He told the officers that he had ‚concerns that Helen 

 

4. ‚Pink slip‛ is a term sometimes used to refer to the document 

used to initiate the temporary restraint of a mentally ill person. 

See Douglas Mossman, Psychiatric Holds for Nonpsychiatric 

Patients, Current Psychiatry, March 2013, at 34, 34. This is

apparently the sense in which Kevin used the term.
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was attempting suicide,‛ that he ‚was seriously concerned she 

had overdosed,‛ and that she had sent him a text message 

saying goodbye. He told the officers that Helen had been 

‚crushing and snorting her prescription drugs,‛ that if they 

looked in the bathroom they ‚would see crushed powder all 

over it and Helen’s mortar and pestle that she used to crush her 

pills,‛ and that Helen had already attempted suicide twice that 

year. 

¶7 The police went inside to talk to Helen. According to the 

officers, Helen maintained that she had taken her pills only as 

prescribed, that she was not suicidal, and that the white powder 

resulted from baking pancakes. The officers then concluded that 

Helen had not overdosed, so they ‚tucked her into bed.‛

¶8 After helping Helen to bed, the officers told Kevin that 

Helen just needed to ‚sleep it off.‛ However, still concerned 

about Helen, Kevin ‚pleaded with [the officers] to call the 

EMTs‛ to ensure that Helen had not overdosed. He explained to 

the officers that he could not get Helen to the hospital himself. 

The officers responded, ‚You don’t need to get her to the car sir, 

you just need to leave her alone.‛ The officers then told Kevin 

that if they received another call where he was the disturbance, 

they would arrest him.

¶9 After Kevin’s discussion with the police, he stayed in the 

home but stayed away from Helen ‚as the officers had 

instructed.‛ However, after about twenty minutes, Kevin 

opened Helen’s bedroom door to check on her. She was lying in 

her bed, ‚apparently asleep.‛ Kevin went back to the living 

room and watched a movie, returning to the bedroom to check 

on her a couple of hours later. This time, he found her dead.5

 

5. The officers’ version of events differs slightly from Kevin’s. 

According to the officers, they did not tuck Helen into bed, tell 

(continued...)
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¶10 Kevin sued Provo City in his capacity as the personal 

representative of Helen’s estate, alleging that the police officers

acted negligently. After discovery, the district court granted 

summary judgment in Provo’s favor, ruling that Provo owed 

Helen no duty of care and that, even if it did, Provo was immune 

from suit. This appeal followed.

ISSUE ON APPEAL

¶11 Faucheaux contends that the district court erred in 

granting summary judgment in Provo’s favor for two reasons.

First, Faucheaux argues that the district court erred in 

concluding that Provo owed Helen no duty of care. Second, 

Faucheaux argues that the district court erred in concluding that 

Provo is immune from this lawsuit because the officers’ actions 

qualify as discretionary.

ANALYSIS

I. The District Court Erred in Concluding That the Police Officers 

Owed Helen No Duty of Care. 

¶12 Faucheaux first contends that the district court erred in 

concluding that the police officers owed Helen no duty of care.

Faucheaux argues that ‚a special relationship between police 

and Helen arose when police undertook specific action to protect 

Helen.‛ Provo responds that ‚Utah law does not impose a 

 

Kevin to leave Helen alone, or tell Kevin that Helen needed to 

‚sleep it off.‛ But at the summary judgment stage we recite the 

facts and draw all reasonable inferences in the light most 

favorable to the nonmoving party, Faucheaux. See Orvis v. 

Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
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‘special relationship’ duty on a peace officer who responds to a 

welfare check.‛

¶13 Summary judgment should be awarded only when ‚there 

is no genuine issue as to any material fact and . . . the moving 

party is entitled to a judgment as a matter of law.‛ Utah R. Civ. 

P. 56(c). We review a grant of summary judgment for 

correctness. Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.

¶14 To prove a claim of negligence, the ‚plaintiff must 

establish four essential elements: (1) that the defendant owed the 

plaintiff a duty, (2) that the defendant breached that duty, (3) 

that the breach of duty was the proximate cause of the plaintiff’s 

injury, and (4) that the plaintiff in fact suffered injuries or 

damages.‛ Hunsaker v. State, 870 P.2d 893, 897 (Utah 

1993) (citations omitted). A ‚[d]uty arises out of the relationship 

between the parties and imposes a legal obligation on one party 

for the benefit of the other party.‛ Torrie v. Weber County, 2013 

UT 48, ¶ 9, 309 P.3d 216 (citation and internal quotation marks 

omitted). Furthermore, duty determinations should be expressed 

in ‚relatively clear, categorical, bright-line rules of law 

applicable to a general class of cases.‛ Jeffs ex rel B.R. v. 

West, 2012 UT 11, ¶ 23, 275 P.3d 228 (citation and internal 

quotation marks omitted). However, ‚because negligence cases 

often require the drawing of inferences from the facts, which is 

properly done by juries rather than judges, summary judgment 

is appropriate in negligence cases only in the clearest instances.‛ 

Nelson v. Salt Lake City, 919 P.2d 568, 571 (Utah 1996) (citation 

and internal quotation marks omitted).

¶15 To show that the defendant owed the plaintiff a duty of 

care ‚is more complicated when the government is the 

defendant.‛ Francis v. State, 2013 UT 65, ¶ 25, 321 P.3d 1089. 

Under the public-duty doctrine, ‚[i]f a plaintiff’s claim is based 

on the defendant’s failure to adequately discharge a public duty, 

a presumption arises that this duty may not be a basis for 

liability in a lawsuit.‛ Cope v. Utah Valley State College, 2014 UT 
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53, ¶ 30. Our supreme court has defined a public duty as ‚an 

obligation owed to the general public at large.‛ Id. ¶ 31 (citation 

and internal quotation marks omitted). Thus, under the publicduty doctrine ‚a governmental entity is not liable for injury to a 

citizen where liability is alleged on the ground that the 

governmental entity owes a duty to the public in general, as in 

the case of police or fire protection.‛ John H. Derrick, 

Annotation, Modern Status of Rule Excusing Governmental Unit

from Tort Liability on Theory That Only General, Not Particular, 

Duty Was Owed Under Circumstances, 38 A.L.R. 4th 1194, § 2 

(1985), cited with approval in Cope, 2014 UT 53, ¶ 31.

¶16 However, the public-duty doctrine ‚applies only to the 

omissions of a governmental actor.‛ Cope, 2014 UT 53, ¶ 2. Thus, 

‚[w]here the affirmative acts of a public employee actually cause 

the harm . . . the public duty doctrine does not apply.‛ Id. ¶ 24. 

Affirmative acts include ‚active misconduct working positive 

injury to others, while omissions are defined as passive inaction, 

[i.e.,] a failure to take positive steps to benefit others, or to 

protect them from harm.‛ Id. ¶ 35 (alteration in original) (citation 

and internal quotation marks omitted). A negligent affirmative 

act leaves the plaintiff ‚positively worse off as a result of the 

wrongful act,‛ whereas in cases of negligent omissions, the 

plaintiff’s ‚situation is unchanged; [she] is merely deprived of a 

protection which, had it been afforded [her], would have 

benefitted [her].‛ Francis H. Bohlen, The Moral Duty to Aid Others 

as a Basis of Tort Liability, 56 U. Pa. L. Rev. 217, 220 (1908).

¶17 Finally, if a plaintiff’s claims are based on an omission of a 

governmental actor, ‚courts will recognize the duty only if the 

plaintiff establishes a special relationship that imposes a specific 

duty of care toward the plaintiff as an individual that is 

distinguishable from a public duty owed to the general public.‛

Cope, 2014 UT 53, ¶ 12. To determine whether a special 

relationship exists in a particular case, and thus whether a duty 

exists, we have always ‚taken a policy-based approach.‛ Higgins 

v. Salt Lake County, 855 P.2d 231, 236 (Utah 1993). We carefully 
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20130690-CA 8 2015 UT App 3

consider the consequences of imposing a duty and ‚are loath to 

recognize a duty that is realistically incapable of performance or 

fundamentally at odds with the nature of the parties’ 

relationship.‛ Id. at 237.

¶18 Our caselaw creates special relationships in at least four 

circumstances: 

(1) by a statute intended to protect a specific class 

of persons of which the plaintiff is a member from 

a particular type of harm; (2) when a government 

agent undertakes specific action to protect a person 

or property; (3) by governmental actions that 

reasonably induce detrimental reliance by a 

member of the public; and (4) under certain 

circumstances, when the agency has actual custody 

of the plaintiff or of a third person who causes 

harm to the plaintiff. 

Day v. State, 1999 UT 46, ¶ 13, 980 P.2d 1171. At issue here are 

circumstances (2) and (3): whether the officers undertook specific 

action to protect Helen or reasonably induced detrimental 

reliance on their actions.6

¶19 Here, the district court erred in ruling as a matter of law

that the public-duty doctrine shields Provo. Faucheaux’s 

negligence claim may be interpreted in one of two ways. On the 

one hand, Faucheaux does allege negligent affirmative acts—not 

 

6. On appeal, Faucheaux also argues that the district court erred 

because a statute created a duty of care. But in a hearing before 

the district court, Faucheaux specifically stated, ‚[W]e are not 

claiming‛ that a statute created the duty here. Thus, Faucheaux 

invited this alleged error, and we consequently decline to 

address it. See Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366.
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merely omissions—of the officers. See Cope, 2014 UT 53, ¶ 24. 

Faucheaux alleges that the officers came to Helen’s home when 

she was so intoxicated that she could hardly walk or talk; that 

instead of taking her to the hospital they proceeded to tuck her 

into bed, admonishing Kevin to ‚leave her alone‛ and telling 

him that Helen needed to ‚sleep it off‛; and that they threatened 

to arrest him if they received another call. These alleged acts 

constitute ‚active misconduct working positive injury to others,‛

id. ¶ 35 (citation and internal quotation marks omitted), 

especially considering our ‚societal expectation of unquestioned 

[police] command‛ in such situations, Brendlin v. California, 551 

U.S. 249, 258 (2007) (alteration in original) (citation and internal 

quotation marks omitted). Faucheaux does not allege only that 

the officers withheld a protection that would have benefitted 

Helen but that the officers’ actions left Helen worse off. 

Therefore, because Faucheaux can, at least in theory, trace 

Helen’s death to an affirmative act by the officers, the district 

court erred in ruling as a matter of law that the public-duty 

doctrine shields Provo. See Cope, 2014 UT 53, ¶ 37. The officers, 

Faucheaux alleges, did not merely fail to help, they hindered.

¶20 On the other hand, the officers did not actually cause the 

harm. Id. ¶ 2. They did not administer the prescription 

medications that Faucheaux alleges killed Helen. But even if we 

were to interpret Faucheaux’s claim as based on omissions, 

under Faucheaux’s version of events—and perhaps the officers’ 

version as well—the officers created a special relationship with 

Helen. Faucheaux argues that the officers created a special 

relationship by undertaking specific action to protect Helen. To 

succeed on this argument, Faucheaux must show first that the 

police officers ‚undertook specific action,‛ and second that 

‚those actions were intended to protect a person or property.‛ 

See Francis v. State, 2013 UT 65, ¶ 27, 321 P.3d 1089.

¶21 Here, Faucheaux’s version of the facts supports his 

allegation that the officers created a special relationship with 

Helen. First, under Faucheaux’s version of events, the police 
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officers ‚undertook specific action‛ by entering Helen’s home, 

asking her if she was suicidal, asking her about the powder they 

found on her, and then tucking her into bed. See id. Second, these 

actions ‚were intended to protect‛ Helen. See id. Thus, assuming 

the truth of Faucheaux’s version of events, the officers created a 

special relationship with Helen and consequently owed her a 

duty to act reasonably.

¶22 We draw support for this conclusion from our supreme 

court’s decision in Francis, 2013 UT 65. There, the supreme court 

held that the State created a special relationship with a camper 

who was mauled by a black bear because the State undertook 

specific action to protect an identifiable group. Id. ¶¶ 31, 33. In 

Francis, the Division of Wildlife Resources received a report 

about a black bear attacking a camper. Id. ¶ 9. After the Division 

learned of the attack, it decided to ‚track and destroy the bear‛ 

because the bear posed ‚a threat to public safety.‛ Id. ¶ 10. The 

Division tracked the bear with dogs for ‚four to five hours, with 

no success.‛ Id. ¶ 11. Knowing that the bear ‚would likely 

return‛ to the campsite ‚if attracted,‛ the Division’s agents

‚checked the [c]ampsite to make sure it was unoccupied and 

clean of any [bear] attractants.‛ Id. But the Division’s agents

‚made no effort to warn anyone who might arrive‛ at the 

campsite after they left. Id. ¶ 12. As the Division’s agents left the 

campsite they drove past a family heading toward the campsite. 

Id. ¶ 13. The agents did not stop the family or warn them of the 

earlier attack ‚but merely waved as they passed.‛ Id. After 

passing the Division’s agents, the family set up the campsite and 

cooked dinner. Id. ¶ 14. A little later, the bear returned, attacking 

and killing one of the campers. Id. Our supreme court held that 

because the Division undertook action to protect ‚the next group 

to use the campsite,‛ the Division created a special relationship

with the next occupants of the campsite and that consequently 

the Division owed them a duty of care. Id. ¶ 4. 

¶23 Like the Division’s employees in Francis, the police 

officers here did not originally have a special relationship with 
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20130690-CA 11 2015 UT App 3

Helen. In Francis, agents created the special relationship when 

they tracked the bear, returned to the campsite, made sure the 

campsite was free of bear attractants, and waved at the family 

heading toward the campsite. Here, the officers created the 

special relationship when they entered Helen’s home, took 

control of the situation, asked Helen if she was abusing drugs 

and suicidal, asked her about the powder they found on her, and 

subsequently tucked her into bed, directing Kevin to leave her 

alone.

¶24 Provo counters that police officers do not have a duty to 

protect people from harming themselves. We agree that police 

officers have no general duty to protect people from harming

themselves. But our supreme court has declared that a special 

relationship arises ‚when a government agent undertakes 

specific action to protect a person or property.‛ Day v. State, 1999 

UT 46, ¶ 13, 980 P.2d 1171. We conclude that, under this rule, if a 

police officer enters a person’s home concerned that the person 

may have overdosed and undertakes specific action to protect 

that person, the officer creates a special relationship with that 

person and consequently must act reasonably.

¶25 We reiterate that we ‚are loath to recognize a duty that is 

realistically incapable of performance or fundamentally at odds 

with the nature of the parties’ relationship.‛ Higgins v. Salt Lake 

County, 855 P.2d 231, 237 (Utah 1993). But to recognize a special 

relationship on facts as alleged by Faucheaux does not create a 

duty realistically incapable of performance. Rather, this holding 

imposes on police officers the duty to act reasonably when they 

enter a person’s home, undertake specific action to protect that 

person, and prevent others in the home from taking protective

action.

¶26 Provo further argues that a Utah statute precludes 

imposing a duty on the officers here. The statute in question

states that police officers ‚may‛ take a person into protective 

custody if the officer has ‚probable cause.‛ See Utah Code Ann. 
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§ 62A-15-629(2) (LexisNexis 2012). Provo asserts that the officers 

did not have probable cause here and therefore could not 

remove Helen from her home. Because the officers ‚lacked the 

statutory authority to forcibly remove Helen from her home,‛ 

Provo argues, they owed her no duty. 

¶27 This argument misses the mark. Faucheaux does not 

contend that the officers acted negligently only by not taking

Helen into custody. Rather, Faucheaux alleges that the officers 

formed a special relationship with Helen and thus owed her a 

duty to act reasonably. The officers could have discharged this 

duty in a number of ways without taking Helen into custody. 

And even if Provo is right ‚that the officers lacked the statutory 

authority to forcibly remove Helen from her home,‛ this 

argument addresses whether the officers acted reasonably, not 

whether they had a duty to act reasonably. In sum, a statute 

authorizing police to remove a person from her home with 

probable cause does not protect them from a claim that their 

actions placed her in danger and prevented others from 

addressing that danger.

¶28 In conclusion, we hold that the district court erred in 

ruling as a matter of law that the public-duty doctrine shields

Provo from Faucheaux’s negligence claim. First, to the extent 

Faucheaux bases his claim on the affirmative negligent acts of 

the officers, the public-duty doctrine is not available. Second, to 

the extent Faucheaux bases his claim on alleged omissions, the 

officers created a special relationship with Helen. Thus, the 

district court incorrectly granted summary judgment in Provo’s 

favor.

II. Utah’s Governmental Immunity Act Does Not Protect Provo 

from the Officers’ Nondiscretionary Acts.

¶29 Faucheaux next contends that the district court erred in 

concluding that Utah’s Governmental Immunity Act immunizes 

Provo from this lawsuit. Faucheaux argues that Provo ‚is not 
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immune from suit under the Governmental Immunity Act 

because [the] police officers were not performing a discretionary 

function when they responded to Kevin’s 911 call.‛ Provo 

responds that a statute giving police discretion to detain 

mentally ill persons who may harm themselves or others 

illustrates the discretionary nature of the officers’ actions.

¶30 A district court’s interpretation of a statute is a question of 

law. Harvey v. Cedar Hills City, 2010 UT 12, ¶ 10, 227 P.3d 256. 

Consequently, we review the interpretation for correctness. Id.

¶31 Sovereign immunity, ‚rooted in the medieval British

notion that the King could do no wrong, precludes lawsuits 

against governmental entities without the government’s 

consent.‛ Trujillo v. Utah Dep’t of Transp., 1999 UT App 227, ¶ 13, 

986 P.2d 752. Utah’s Governmental Immunity Act first grants 

general immunity from suit to governmental entities. Utah Code 

Ann. § 63G-7-201(1) (LexisNexis 2012). The Act then narrows 

that general grant by waiving immunity for certain claims, 

including claims for injuries proximately caused by ‚a negligent 

act or omission.‛ Id. § 63G-7-301(4). However, the Act then 

creates exceptions to those waivers of immunity. Id. § 63G-7-

301(5). For example, the Act retains immunity for injuries that 

arise out of the ‚exercise or performance, or the failure to 

exercise or perform, a discretionary function, whether or not the 

discretion is abused.‛ Id. § 63G-7-301(5)(a).

¶32 ‚To determine whether governmental action qualifies for 

the discretionary function exception,‛ we must first ask whether 

the ‚challenged act, omission, or decision necessarily involve[s]

a basic governmental policy, program, or objective.‛ Johnson v. 

Utah Dep’t of Transp., 2006 UT 15, ¶ 22, 133 P.3d 402 (citation and 

internal quotation marks omitted). But ‚[n]ot every 

governmental action involving discretion is a discretionary 

function within the meaning of the Act. Were it otherwise, the 

exception would swallow the rule, as almost all governmental 

decisions involve some discretion.‛ Trujillo, 1999 UT App 227, 
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¶ 21 (citing Nelson v. Salt Lake City, 919 P.2d 568, 575 (Utah 

1996)). ‚[D]iscretionary functions are those requiring evaluation 

of basic governmental policy matters and do not include acts 

and decisions at the operational level, namely those everyday, 

routine matters not requiring evaluation of broad policy factors.‛

Johnson, 2006 UT 15, ¶ 31 (citation and internal quotation marks 

omitted). 

¶33 Utah caselaw has identified two policies that this

discretionary-function immunity serves. First, discretionaryfunction immunity ‚shield[s] those governmental acts and 

decisions impacting on large numbers of people in a myriad of 

unforeseeable ways from individual and class legal actions, the 

continual threat of which would make public administration all 

but impossible.‛ Hansen v. Salt Lake County, 794 P.2d 838, 846 

(Utah 1990) (citation and internal quotation marks omitted). 

Second, where ‚the responsibility for basic policy decisions has 

been committed to one of the branches of our tri-partite system 

of government,‛ discretionary-function immunity preserves the 

autonomy of coordinate branches of government by keeping

courts from ‚sitting in judgment‛ of other branches’ policymaking decisions. Little v. Utah Div. of Family Servs., 667 P.2d 49, 

51 (Utah 1983). 

¶34 Our caselaw illustrates the distinction between policylevel decisions, which qualify for discretionary-function 

immunity, and operational-level decisions, which do not. For 

example, this court previously held that the Utah Department of 

Transportation’s formulation of a traffic-control plan, including 

its decision to use barrels instead of concrete barriers to separate 

traffic, did not qualify for discretionary-function immunity, 

because the control plan was not ‚the product of the exercise of 

policy-level discretion.‛ Trujillo, 1999 UT App 227, ¶ 33. In 

contrast, our supreme court held that a decision not to raise 

concrete barriers during construction qualified for discretionaryfunction immunity as ‚studies of the plan, its cost, and the 

degree of safety it would provide were carried out by senior 
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engineers and circulated throughout and debated within the 

department.‛ Keegan v. State, 896 P.2d 618, 624 (Utah 1995).

¶35 The officers’ actions as alleged by Faucheaux do not 

qualify for the discretionary-function exception. Their alleged 

acts and omissions include, among other things, answering 

Kevin’s 911 call, evaluating Helen’s condition, asking Helen 

about her prescription-drug use, failing to take Helen to the 

hospital, refusing to assist Kevin in getting Helen to the car, 

refusing to call emergency medical technicians, and tucking 

Helen into bed. These acts and omissions do not require 

‚evaluation of basic governmental policy matters.‛ Johnson, 2006 

UT 15, ¶ 31 (citation and internal quotation marks omitted). 

Rather, they occurred at ‚the operational level‛ and qualify as 

actions ‚not requiring evaluation of broad policy factors.‛ 

Keegan, 896 P.2d at 623 (citation and internal quotation marks 

omitted).

¶36 Nevertheless, Provo argues that it is immune from suit 

because the Utah Code provides that officers ‚may‛ take a 

person into protective custody against the person’s will. See Utah 

Code Ann. § 62A-15-629(2) (LexisNexis 2012). But the fact that an 

officer’s action required the exercise of some amount of 

discretion does not qualify it as discretionary for purposes of 

Utah’s Governmental Immunity Act. As stated above, ‚[n]ot 

every governmental action involving discretion is a 

discretionary function within the meaning of the Act. Were it 

otherwise, the exception would swallow the rule, as almost all 

governmental decisions involve some discretion.‛ Trujillo v. Utah 

Dep’t of Transp., 1999 UT App 227, ¶ 21, 986 P.2d 752. The 

relevant question asks whether the discretionary act occurred at 

the ‚operational level‛ or required ‚evaluation of broad policy 

factors.‛ See Johnson, 2006 UT 15, ¶ 31 (citation and internal 

quotation marks omitted). The officers’ acts as alleged by 

Faucheaux fall squarely into the former category.
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CONCLUSION

¶37 The district court erred in concluding as a matter of law 

that the public-duty doctrine shields Provo from liability. To the 

extent Faucheaux bases his negligence claim on the alleged 

affirmative acts of the officers, the public-duty doctrine is not 

available. Furthermore, to the extent Faucheaux bases his 

negligence claim on omissions, the district court erred in ruling 

that officers did not create a special relationship with Helen. 

Additionally, we conclude that the Governmental Immunity Act 

does not immunize Provo from the officers’ actions and 

omissions. Consequently, the district court’s decision is reversed 

and the case remanded for further proceedings.