Utah Supreme Court: Private University’s Police Cadet was Public Employee Entitled to Immunity

In Mallory v. Brigham Young University, the Utah Supreme Court held that a police cadet employed by BYU was considered an employee for governmental immunity purposes.  The decision reversed a 2012 Utah Court of Appeals decision holding otherwise, and concluded that the plaintiff had no claim because he had failed to serve a notice of claim under the Governmental Immunity Act. 

Utah statute allows private universities to establish law enforcement agencies under certain conditions.  BYU obtained the necessary certifications to create a law enforcement agency and established its own police force.  Provo, the city in which BYU is located, adopted an ordinance in which it permitted BYU to employ non-peace officers to direct traffic in certain circumstances so long as those employees were supervised by peace officers employed by BYU.  Provo provided no other mechanism of control over this authority other than reserving in its ordinance the right of the Provo City Police Chief to discharge officers and agents of the Provo City Police Department.

In 2008, a BYU employee was directing traffic when an accident occurred.  The injured person sued BYU and the BYU employees without first serving a notice of claim with Provo City under the Governmental Immunity Act.  BYU claimed that the employee was a Provo City employee as that term was defined under the Governmental Immunity Act and sought dismissal of the complaint.  The trial court dismissed the claim and, on appeal, the Court of Appeals reversed.

The Utah Supreme Court reversed the Court of Appeals holding (1) the term “agent” had a broader meaning than decided by the appellate court, and (2) because Provo City ultimately had the right to control the BYU defendants’ method or even right to control traffic on Provo’s streets, it had sufficient control to establish a master-servant relationship, making the subordinant BYU employee a “servant” of Provo City sufficient that the Governmental Immunity Act applied.  Importantly, in footnote 7 of the majority opinion, the Utah Supreme Court rejected the application of the “right-to-control” case law established in the workers compensation context to the governmental immunity cases.

The dissenting justices provided a spirited opinion in which they strongly disagreed with the analysis of the majority, concluding that they would have held that the employee was much more like an independent contractor and thus not an employee of Provo City.