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Thomas Peck, aka Thomas Joseph Peck v. State ofUtah, and the Utah Highway Patrol : Reply BriefUtah Court of Appeals

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Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Bart J. Johnsen; Chandler P. Thomson; Van Cott, Bagley, Cornwall & McCarthy; Attorney forAppellee.Peggy E. Stone; Assistant Utah Attorney General; Mark L. Shurtleff; Utah Attorney General;Attorneys for Appellants.

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Recommended CitationReply Brief, Peck v. Utah, No. 20070117 (Utah Court of Appeals, 2007).https://digitalcommons.law.byu.edu/byu_ca3/81

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No. 20070117

IN THE UTAH SUPREME COURT

THOMAS PECK, aka Thomas Joseph Peck,

Plaintiff/ Appellee,

vs.

STATE OF UTAH, and the UTAH HIGHWAY PATROL,

Defendants/Appellants.

REPLY BRIEF OF APPELLANTS

Interlocutory Appeal from an Order of the Third Judicial District Court, Salt Lake County, State of Utah,

the Honorable Stephen Henriod presiding

Bart J. Johnsen, Esq. PEGGY E. STONE - 6658 Chandler P. Thompson, Esq. Assistant Utah Attorney General VAN COTT, BAGLEY, MARK L. SHURTLEFF - 4666 CORNWALL & MCCARTHY Utah Attorney General 36 South State Street, Suite 1900 160 East 300 South, Sixth Floor Salt Lake City, UT 8411-1478 P.O. Box 140856 Attorney for Appellee Salt Lake City, Utah 84114-0856

Telephone: (801) 366-0100 Attorneys for Appellants

ORAL ARGUMENT REQUESTED FILEJ

UTAH APPELLATE C O " ^

AUG 2 0 2007

No. 20070117

IN THE UTAH SUPREME COURT

THOMAS PECK, aka Thomas Joseph Peck,

Plaintiff/Appellee,

vs.

STATE OF UTAH, and the UTAH HIGHWAY PATROL,

Defendants/ Appellants.

REPLY BRIEF OF APPELLANTS

Interlocutory Appeal from an Order of the Third Judicial District Court, Salt Lake County, State of Utah,

the Honorable Stephen Henriod presiding

Bart J. Johnsen, Esq. Chandler P. Thompson, Esq. V A N COTT, BAGLEY, CORNWALL & MCCARTHY 36 South State Street, Suite 1900 Salt Lake City, UT 8411-1478 Attorney for Appellee

PEGGY E.STONE-6658 Assistant Utah Attorney General MARK L. SHURTLEFF - 4666 Utah Attorney General 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 Attorneys for Appellants

ORAL ARGUMENT REQUESTED

LIST OF ALL PARTIES

All of the parties are listed on the cover of this Brief.

TABLE OF CONTENTS

Table of Contents ii

Table of Authorities iii

Argument 2

Conclusion 7

Certificate of Service 8

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TABLE OF AUTHORITIES

CASES

American Fork City v. Pena-Flores, 2002 UT 131, 63 P.3d 675 6

Emery v. State, 26 Utah 2d 1, 483 P.2d 1296, 1297 (1971) 3

Spring Canyon Coal Co., v. Indus. Comm 'n of Utah, 74 Utah 103,

277 P. 206,'212 (1929) 3

State v. Burgess-Beynon, 2004 UT App. 312, 99 P.3d 383 2, 3,4, 5

State v. Hunt, 906 P.2d 311, 313 (Utah 1995) 4

STATUTES

Utah Code Ann. § 63-30-10(10) (West 2004) 2

Utah Code Ann. § 76-8-305(3) 6

Utah Code Ann. § 76-8-418 (2002) 4

RULES

73 Am. Jur.2d Statutes § 149 (Supp. 2007) 3

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No. 20070117

IN THE UTAH SUPREME COURT

THOMAS PECK, aka Thomas Joseph Peck,

Plaintiff/Appellee,

vs.

STATE OF UTAH, and the UTAH HIGHWAY PATROL,

Defendants/Appellants,

REPLY BRIEF OF APPELLANTS

Defendants-appellants State of Utah and the Utah Highway Patrol,

collectively, "Highway Patrol," submit this reply brief in support of their

interlocutory appeal from an order denying their motion for judgment on the

pleadings.

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ARGUMENT

Because "place of legal confinement" is not limited to a physical facility or building, the Highway Patrol is statutorily immune from Peck's negligence claim.

For purposes of immunity, "place of legal confinement" means the area

to which Peck was confined in front of the patrol car. Nothing in the subject

statute or case law limits the meaning to a physical facility or building. See

Utah Code Ann. § 63-30-10(10) (West 2004) (providing an exception to the

waiver of immunity if the injuries arose out of, in connection with, or

resulted from "the incarceration of any person in any state prison, county or

city jail, or other place of legal confinement.") Peck does not dispute that he

was incarcerated, so immunity turns on whether he was in a "place of legal

confinement."

The definition of "place" is "an area with definite or indefinite

boundaries, a portion of space; a room or space." The American Heritage

Dictionary (4th ed. 2000) (online version http://www.bartleby.com). The

definition of "confinement" is "the state of being physically contained

within some type of boundary." State v. Burgess-Beynon, 2004 UT App.

312, f 9, 99 P.3d 383. Applying those definitions here, Peck was required to

stand in a "place" - in front of the patrol car. Further, Peck was required to

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http://www.bartleby.com

stand still and to face the patrol car and was thus physically contained within

some type of boundary. Nothing in the language or spirit of either definition

limits "place of legal confinement" - as Peck argues - to a building or

physical facility. Accord Emery v. State, 26 Utah 2d 1, 483 P.2d 1296, 1297

(1971) (noting that "place of legal confinement" obviously applies to more

than jails or prisons).

Moreover, respecting the nearly identical phrase "place of

confinement," the Court of Appeals determined that phrase does not solely

refer to buildings or physical facilities. Burgess-Beynon, 2004 UT App. 312,

112. In that case, interpreting a criminal statute that prohibited damaging a

"place of confinement," the court held that the back seat of a patrol car was a

"place of confinement." Id. The court's analysis is instructive here because

when the same words or phrases are used in more than one legislative

enactment, they have the same meaning. 73 Am. Jur.2d Statutes § 149

(Supp. 2007); see also Spring Canyon Coal Co., v. Indus. Comm 'n of Utah,

74 Utah 103, 277 P. 206, 212 (1929).

In Burgess-Beynon, police officers arrested the defendant for driving

under the influence of alcohol. She was taken into custody and placed in the

back of the arresting officer's car. Id. at 12. The defendant kicked out the

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rear window of the car and was subsequently charged with violating Utah

Code Ann. § 76-8-418 (2002), which provides, "A person who willfully, and

intentionally breaks down, pulls down, destroys, floods, or otherwise

damages any public jail or other place of confinement is guilty of a felony

of the third degree." Id. at fflf 2, 6 (emphasis added). The trial court

determined that "other place of confinement" was not limited to a building

by the phrase "public jail" that preceded it. Instead, read in context, the

phrase applied to the patrol car as well. Id. at Tf 5. The defendant entered a

conditional guilty plea and appealed to the Court of Appeals. Id. at \ 4.

Defendant argued, like Peck in this case, that "other place of

confinement" was limited to a "jail, prison, or other penal facility" where

"an accused is committed as an inmate." Id. at | 8. The Court of Appeals

rejected that argument and held that the plain language of the statute was not

so limited. Id.

The Burgess-Beynon court recognized the "fundamental principle of

statutory construction (and... of language itself) that the meaning of a word

cannot be determined in isolation, but must be drawn from the context in

which it is used." Id. at f 7 (quoting State v. Hunt, 906 P.2d 311,313 (Utah

1995)). The court defined confinement and determined that "reading, 'other

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place of confinement' in context (... then), it seems consistent that the

statute applies to places of confinement controlled by a governmental

authority and used in the detention of suspected criminals." Id. at f 9.

Applying the reasoning of Burgess-Beynon here, Peck was arrested

and told to stand still in the area just in front of the patrol car while the back

was cleared out for him. He was thus in an area that had defined boundaries

and that was controlled by a governmental authority. That bounded area was

being used as a temporary substitute for the patrol car until it was ready to be

occupied. Because Peck would have had freedom to move after being put in

the back seat, the degree of his confinement was arguably greater outside the

patrol car where he was told to stand still and face the car. If the back seat

of a car is a place of confinement under Burgess-Beynon, when ordered to

stand still in front of and face the patrol car, Peck too was put in a "place of

legal confinement."

Peck also argues that the government should be immune only after an

arrested person is brought inside a law enforcement building because the

government controls the environment there. Applying that logic here, Peck

must concede that the Highway Patrol is immune from suit because its

control over Peck in the limited confines in front of the patrol car was much

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greater than the degree of control that government has in prisons, jails, and

police stations where criminals are exposed to each other and the physical

aspects of the facilities.1

Peck further contends that the Highway Patrol seeks to expand

immunity to all injuries associated with an arrest. Not so. Although people

who have been arrested have restrictions placed on their movement, they are

not generally required to stand still, directly in front of and facing a patrol

car. Because the restrictions on Peck were greater than those of the typical

arrestee, the Highway Patrol does not advocate immunity in all cases or

arrest. This case merely falls within circumstances described by the statute

and should therefore result in immunity.

Because the Highway Patrol's immunity is retained, it cannot be liable

for Peck's injuries allegedly caused by the troopers' negligence. The trial

court erred when it denied the Highway Patrol's motion to dismiss and

motion for judgment on the pleadings.

1 The high degree of the Highway Patrol's control is highlighted by its authority to arrest others if they had entered the area directly in front of the patrol car where Peck was told to stand. See American Fork City v. Pena-Flores, 2002 UT 131, T[ 11, 63 P.3d 675 (refusing to step away from area where suspects were being detained violates Utah Code Ann. § 76-8-305(3), prohibiting interference with a detention by "another person's refusal to refrain from performing any act that would impede" the detention).

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CONCLUSION

The Highway Patrol retains its immunity from suit for Peck's negligence

claims. Accordingly, this Court should reverse the trial court's denial of the

Highway Patrol's motion to dismiss and motion for judgment on the

pleadings and dismiss Peck's suit with prejudice.

RESPECTFULLY submitted this Z£>^ day of August 2007.

Peggy E. Stone Assistant Utah Attorney General Attorney for Appellants State of Utah and Utah Highway Patrol

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CERTIFICATE OF SERVICE

I certify that two true and correct copies of the foregoing, REPLY

BRIEF OF APPELLANTS, was served by U.S. mail this Q& day of

August, 2007, to the following:

Bart J. Johnsen, Esq. Chandler P. Thompson, Esq. VAN COTT, BAGLEY, CORNWALL & MCCARTHY 36 South State Street, Suite 1900 Salt Lake City, UT 8411-1478 Attorney for Thomas Peck

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Brigham Young University Law SchoolBYU Law Digital Commons2007

Thomas Peck, aka Thomas Joseph Peck v. State of Utah, and the Utah Highway Patrol : Reply BriefUtah Court of AppealsRecommended Citation

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