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

2

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 
Cite as: 2015 UT 64

Opinion of the Court

3

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.‖ 

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

P.3d 1157.
SCOTT v. UTAH COUNTY

Opinion of the Court

4

¶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 
Cite as: 2015 UT 64

Opinion of the Court

5

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)
SCOTT v. UTAH COUNTY

Opinion of the Court

6

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 workrelease 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)). 

6 Day v. State ex rel. Utah Dep’t of Publ. Safety, 1999 UT 46, ¶ 10, 980 

P.2d 1171.

7 Id. 

8 Id. 
Cite as: 2015 UT 64

Opinion of the Court

7

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.
SCOTT v. UTAH COUNTY

Opinion of the Court

8

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. 

22 Id. at 239 (concluding that ―[t]he entire undifferentiated female 

half of the population does not comprise a distinct, identifiable 

(Continued)
Cite as: 2015 UT 64

Opinion of the Court

9

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. 

28 Ferree, 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).
SCOTT v. UTAH COUNTY

Opinion of the Court

10

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)). 
Cite as: 2015 UT 64

Opinion of the Court

11

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.

39 See Torrie v. Weber County, 2013 UT 48, ¶ 17, 309 P.3d 216 (―In 

reaching the conclusion that law enforcement officers owe a legal 

(Continued)
SCOTT v. UTAH COUNTY

Opinion of the Court

12

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)
Cite as: 2015 UT 64

Opinion of the Court

13

¶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)
SCOTT v. UTAH COUNTY

Opinion of the Court

14

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).
Cite as: 2015 UT 64

Opinion of the Court

15

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.
SCOTT v. UTAH COUNTY

Opinion of the Court

16

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 

57 B.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).
Cite as: 2015 UT 64

Opinion of the Court

17

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).
SCOTT v. UTAH COUNTY

Opinion of the Court

18

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.

69 Francis 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.
Cite as: 2015 UT 64

Opinion of the Court

19

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 

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

LAW OF TORTS § 418 (2d ed. 2011).

73 RESTATEMENT (SECOND) OF TORTS § 319 (1965).

74 Id. cmt. a, illus. 2. 
SCOTT v. UTAH COUNTY

Opinion of the Court

20

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.
Cite as: 2015 UT 64

Opinion of the Court

21

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).
SCOTT v. UTAH COUNTY

Opinion of the Court

22

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). 

86 State 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.
Cite as: 2015 UT 64

Opinion of the Court

23

¶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.

91 RESTATEMENT (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.‖).
SCOTT v. UTAH COUNTY

Opinion of the Court

24

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).
Cite as: 2015 UT 64

Opinion of the Court

25

prior to 1987.93 As we explain below, this is because 1987 is the highwater 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.

96 See Utah Governmental Immunity Act, ch. 139, § 10, 1965 Utah 

Laws 390, 391–92.

97 See Utah Governmental Immunity Act, ch. 139, § 3, 1965 Utah 

Laws 390, 391. 

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

immunity test and citing cases that applied it). 
SCOTT v. UTAH COUNTY

Opinion of the Court

26

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.

101 See 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). 
Cite as: 2015 UT 64

Opinion of the Court

27

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).

106 Johnson v. Salt Lake City Corp., 629 P.2d 432, 434 (Utah 1981)

(emphasis added).

107 Id. 

108 Standiford, 605 P.2d at 1237.
SCOTT v. UTAH COUNTY

Opinion of the Court

28

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.

114 Moss 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).
Cite as: 2015 UT 64

Opinion of the Court

29

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.
SCOTT v. UTAH COUNTY

Opinion of the Court

30

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 workrelease 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.