Cleste Moss, an heir of Bradley A. Rone v. Pete Suazo Athletic Commission, et al.

1 Bradley Rone died during a boxing match. His sister
and heir, Celeste Moss, seeks to recover damages from the Pete
Suazo Utah Athletic Commission (the "Athletic Commission") for
allowing Rone to fight. The question before us is whether the
Athletic Commission is immune from such a suit under the Utah
Governmental Immunity Act (the "Act"), Utah Code Ann. §§ 63-30-1
to -38 (1997) (repealed and replaced by the Governmental Immunity
Act of Utah, id. §§ 63-30d-101 to -904 (2004 & Supp. 2007)).1 We
conclude that it is. The Athletic Commission's failure to
prevent Rone from boxing is a licensing decision that is immune
from suit under Utah Code section 63-30-10(3) (1997). We further
conclude that this statutory grant of immunity does not violate
the open courts clause of the Utah Constitution.

BACKGROUND

2 Rone, a professional boxer, accepted a fight in Cedar
City, Utah, in an attempt to raise sufficient funds to purchase
an airline ticket to Ohio for the purpose of attending his
mother's funeral. Tragically, Rone died in the ring from heart
failure and was buried alongside his mother. Moss filed a
lawsuit against the Athletic Commission, claiming that her
brother's death was caused by the Athletic Commission's
negligence in allowing the fight to proceed.2

3 In support of her negligence claim, Moss alleged that
the Athletic Commission had violated a number of its own rules.
First, the Pete Suazo Utah Athletic Commission Act Rules (the
"Athletic Commission Rules") prohibit any boxer who has lost six
consecutive fights from fighting until either the boxing
commission has reviewed the fights or the boxer has submitted to
a medical examination. Utah Admin. Code r. 151-33-613(8) (2003).
Moss alleged that the Athletic Commission failed to review Rone's
fights or require that he submit to a medical examination even
though he had lost twenty-six consecutive fights.

4 The Athletic Commission Rules also prescribe procedures
to be followed in cases where boxing contestants are knocked out
or sustain damaging head blows. Specifically, they provide that
in cases where a boxing contestant has lost by a technical
knockout, the contestant cannot fight again "for a period of 30
calendar days or until the contestant has submitted to a medical
examination." Id. r. 151-33-613(1). And in cases where a boxing
contestant has been knocked out or received excessive hard blows
to the head that rendered him defenseless or incapable of
continuing, the Athletic Commission Rules provide that the
contestant shall not be permitted to fight for a period of at
least sixty days. Id. r. 151-33-613(6). Even then, the
contestant cannot resume boxing unless a physician certifies that
the contestant is fit to box following a neurological
examination. Id. r. 151-33-613(7). Moss alleges that the
Athletic Commission violated these rules by allowing Rone to
fight without a neurological examination, despite the fact that
he had lost a fight by a technical knockout less than two months
before.

5 The Athletic Commission Rules also state that all
boxing contestants must be examined by a physician not less than
eight hours before a fight and that contestants who are unfit for
competition may not compete. Id. r. 151-33-505. Moss alleges
that Rone was not examined as required.

6 Finally, Moss points to Athletic Commission Rule
151-33-613(10), which prohibits a boxer from competing if he has
been prohibited from boxing in any other state due to medical
reasons. Moss alleges that Nevada had prohibited Rone from
boxing for medical reasons but that the Athletic Commission
nevertheless allowed the fight to go forward.

7 The Athletic Commission moved to dismiss Moss's lawsuit
under rule 12(b)(6) of the Utah Rules of Civil Procedure, arguing
that even if all of the allegations contained in the complaint
were true, relief would be barred by the Utah Governmental
Immunity Act. The district court concurred and granted the
motion to dismiss. Moss appealed to this court. We now review
the district court's ruling.

STANDARD OF REVIEW

8 In reviewing an order of dismissal entered pursuant to
rule 12(b)(6), we "accept the material allegations in the
complaint as true and interpret those facts and all reasonable
inferences drawn therefrom in a light most favorable to the
plaintiff as the non-moving party." Wagner v. State, 2005 UT 54,
9, 122 P.3d 599 (internal quotation marks and citation
omitted). We review the grant of a rule 12(b)(6) motion for
correctness, ceding no deference to the district court. Oakwood
Vill. LLC v. Albertsons, Inc., 2004 UT 101, 9, 104 P.3d 1226.

ANALYSIS

9 The district court dismissed the complaint after
holding that the Athletic Commission was immune from suit
pursuant to Utah Code section 63-30-10(3) (1997). Moss argues
that the holding was incorrect. In the alternative, Moss argues
that if section 63-30-10(3) does shield the Athletic Commission
from liability, it violates the open courts clause of the Utah
Constitution. Because we avoid constitutional claims if
possible, Lyon v. Burton, 2000 UT 19, 10, 5 P.3d 616, we
address the statutory arguments first and then address the
constitutional claim.

I. STATUTORY ANALYSIS

10 Following the structure of the Utah Governmental
Immunity Act, this court has established a three-step analysis to
determine whether a government entity is immune from suit for a
particular activity:

"First, was the activity the entity performed
a governmental function and therefore
immunized from suit by the general grant of
immunity contained in section 63-30-3?
Second, if the activity was a governmental
function, has some other section of the Act
waived that blanket immunity? Third, if the
blanket immunity has been waived, does the
Act also contain an exception to that waiver
which results in a retention of immunity
against the particular claim asserted in
[the] case?"

Lyon v. Burton, 2000 UT 19, 13, 5 P.3d 616 (citation omitted)
(quoting Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1164
(Utah 1993)).

11 We now apply this analysis to Moss's claims against the
Athletic Commission. With respect to the first factor, there is
no question that the activity of licensing boxers constitutes a
governmental function as defined by Utah Code section
63-30-2(4)(a) (1997) and that such activity is therefore
immunized from suit by the Act's general grant of immunity.

Second, because we accept the material allegations of the
complaint as true when reviewing a dismissal under rule 12(b)(6),
there is no question that the allegedly negligent conduct of the
Athletic Commission is subject to the general waiver of immunity
for injury caused by the negligent act or omission of government
employees. See id. § 63-30-10. Thus, resolution of the case
turns on the third step of the analysis, specifically, whether
the Athletic Commission's allegedly negligent acts and omissions
fall within any of the statutory exceptions to the general waiver
of immunity. See id.

12 The Athletic Commission argues that it is immune from
suit because the actions in question fall within the exception
articulated in section 63-30-10(3). That section states that
governmental immunity is not waived for "the issuance, denial,
suspension, or revocation of or by the failure or refusal to
issue, deny, suspend, or revoke any permit, license, certificate,
approval, order, or similar authorization." Id. § 63-30-10(3).
Moss disagrees.

13 Moss first argues that section 63-30-10(3) should not
be applied to licenses granted for activities that pose a high
risk to health or safety. Moss produces no case law, however,
that directly supports this proposition, nor has she made any
attempt to reconcile her proposed interpretation with the
language of the statute. Indeed, Moss's proposed interpretation
would place a condition on the applicability of the exception
without any textual justification. We decline to stray from the
plain meaning of the text where the statute is unambiguous and
there is no compelling reason to believe that the legislature has
misspoken. Lyon, 2000 UT 19, 17 ("‘[W]here the statutory
language is plain and unambiguous, we do not look beyond the
language's plain meaning . . . .'" (quoting Horton v. Royal Order
of the Sun, 821 P.2d 1167, 1168 (Utah 1991))); see also Savage v.
Utah Youth Vill., 2004 UT 102, 18, 104 P.3d 1242 (holding that
a statute may be interpreted contrary to its plain meaning only
where the plain language "works an absurd result or is
unreasonably confused, inoperable, or in blatant contravention of
the express purpose of a statute" (internal quotation marks and
citation omitted)). In addition, Moss's proposed interpretation
is contrary to a reading of the Immunity Act as a whole, which
immunizes many governmental acts or omissions that impact life
and safety. See, e.g., Utah Code Ann. § 63-30-10(2) (assault and
battery); id. § 63-30-10(7) (riots, mob violence, and civil
disturbances); id. § 63-30-10(18) (emergency medical assistance,
fire fighting, and regulating hazardous materials).

14 Moss also argues that the Athletic Commission's duty to
prevent Rone from fighting under its regulations was separate
from its decision to "issue, deny, suspend, or revoke" his boxing
license. As support for this argument, Moss points to the fact
that several of the regulations allegedly ignored by the Athletic
Commission do not explicitly mention the suspension or revocation
of a boxing license but simply state that the contestant "shall
be prohibited from boxing" or "competing" if certain conditions
are not met. Utah Admin. Code rr. 151-33-505(1)-(2), -613(8),
-613(10) (2003). In other words, Moss argues that the Athletic
Commission's negligence was not directly tied to a licensing
decision and therefore the Athletic Commission is not entitled to
immunity under section 63-30-10(3).

15 We reject Moss's proposed interpretation of the
exception as inconsistent with the statutory language. Utah Code
section 63-30-10(3) provides that immunity is not waived for
injuries that "arise[] out of, in connection with, or result[]
from" the revocation or suspension of "any permit, license,
certificate, approval, order, or similar authorization." Utah
Code Ann. § 63-30-10(3) (emphasis added). This language is
broad. It certainly is not restricted to those decisions that
constitute licensing decisions per se. Rather, it extends to
approvals and similar authorizations, such as the Athletic
Commission's decision to allow Rone's participation in the boxing
match.

16 This interpretation is supported by our analysis in
Gillman v. Department of Financial Institutions, 782 P.2d 506
(Utah 1989). In that case, two financial institutions were
mismanaged and ultimately filed bankruptcy, resulting in losses
to investors. Id. at 507-08. The bankruptcy trustee brought
suit against the Utah Department of Financial Institutions,
alleging that the bankruptcies were caused by the department's
negligence in failing to properly inspect and regulate the
lenders as required by statute. Id. at 508. The principal issue
we addressed was whether the alleged negligence resulted from a
licencing decision or from some other duty separable from the
department's licensing function. Id. at 509.

17 We rejected the theory that the statutorily mandated
regulation of a license holder is not a licensing decision. Even
though the statutes mandating that the department inspect the
lenders on a yearly basis did not specifically reference the
lenders' licenses, we noted that "the only sanction the
Department can impose on a licensed financial institution for
misconduct of any kind is to suspend or revoke the financial
institution's operating license." Id. at 511. Therefore, "any
injury resulting from a Department action or inaction ultimately
results from a failure to suspend or revoke [the lender's]
license, an immune act." Id.

18 We further held that a statute mandating regulation
need not explicitly reference an entity's license in order for
the regulation to constitute a licensing decision. For example,
one of the relevant statutes did not refer to a lender's license
but simply stated that if serious problems were detected, "the
Department is authorized to take possession of any banking
institution and suspend its privilege of conducting business."
Id. at 511 n.7. We concluded that by taking such action, "the
Department essentially suspends or revokes the financial
organization's operating license." Id.

19 Under the standard adopted in Gillman, all of Moss's
allegations of negligence are directed to licensing decisions for
which immunity has not been waived. Moss essentially alleges
that the State was negligent in not following regulations that
would have prohibited Rone from fighting. Even though some of
the Athletic Commission Rules do not label the Athletic
Commission's authority to prevent boxers from competing as the
revocation or suspension of a boxing license, the Athletic
Commission's authority to prevent a boxer from competing is
indistinguishable from a licensing decision. The essential
element of such a decision continues to be whether to retract
governmental authorization of private activity.

20 We therefore reject both of Moss's statutory arguments
and hold that the Athletic Commission is immune from suit under
the terms of Utah Code section 63-30-10(3).

II. CONSTITUTIONAL ANALYSIS

21 Having concluded that the Athletic Commission is immune
from suit for the actions of which Moss complains, we now turn to
the question of whether the legislature acted within the limits
drawn by the Utah Constitution in restricting governmental
liability. The open courts clause of the Utah Constitution
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.
Utah Const. art. I, § 11.

22 In interpreting this provision, we have held that the
State may constitutionally immunize itself from suit if it can
satisfy either prong of the test set forth in Standiford v. Salt
Lake City Corp., 605 P.2d 1230 (Utah 1980). Tindley v. Salt Lake
City Sch. Dist., 2005 UT 30, 22, 116 P.3d 295; DeBry v. Noble,
889 P.2d 428, 440 (Utah 1995). Under this test, Moss must
"overcome the presumption of constitutionality that attaches to
subsection[] (3) . . . of § 63-30-10." DeBry, 889 P.2d at 441.
Therefore, immunity is proper if the Athletic Commission can
successfully defend either (1) the presumption that "the activity
under consideration is of such a unique nature that it can only
be performed by a governmental agency" or (2) the presumption
that the activity "is essential to the core of governmental
activity." Standiford, 605 P.2d at 1236-37; accord Tindley, 2005
UT 30, 22;3 DeBry, 889 P.2d at 433, 440.

23 We first address the question of whether the regulation
of professional boxing is "of such a unique nature that it can
only be performed by a governmental agency." Standiford, 605
P.2d at 1236-37. Moss asserts that because amateur boxing and
other professional sports are not regulated by the government,
the regulation of professional boxing could likewise be performed
by a private entity. In applying our precedent on this issue,
however, we find that the regulation of professional boxing is
uniquely governmental because government regulation in this area
is qualitatively different from the type of regulation that could
be provided by a private organization.

24 In Madsen v. Borthick, 658 P.2d 627, 631 (Utah 1983),
we applied the uniquely governmental prong of the Standiford test
to state regulation of financial institutions.4 In so doing, we
held that "Standiford's reference to activities that ‘can only be
performed by a governmental agency' does not preclude
governmental immunity for supervisory functions in some respects
similar to those that could be performed by a private association
authorized by agreement, such as self-regulation by an industry."
Id. Using this reasoning, we held that "governmental supervision
of financial institutions in the public interest . . . and
private oversight by a voluntary association of businesses are
qualitatively different." Id.

25 Later, in DeBry v. Noble, we expanded upon this
rationale when called upon to determine whether conducting
building inspections was a uniquely governmental function:
Practically speaking, only government can
enact binding, enforceable building standards
designed to protect the entire community.
Although private groups may ostensibly
perform somewhat similar functions, there is
a qualitative difference between government's
actions and those of private groups. The
issuance of permits is integral to assuring
compliance with building code standards.
Licensing to insure compliance with those
standards is not a function that can be
privately performed.

26 Like the regulation of financial institutions and
building code standards, the regulation of professional boxing is
uniquely governmental in nature. Although a private boxing
association could theoretically regulate professional boxing in
Utah, such regulation would differ qualitatively from the
regulation provided by the government. Only the government can
regulate the sport for the common good, rather than for the
benefit of a select, financially interested sector of the boxing
industry. Only the government may wield its police power to
ensure that safety regulations are followed. We weigh these
considerations heavily in finding the regulation of boxing to be
uniquely governmental because of the inherent dangers of the
sport.

27 Finally, even absent these compelling considerations,
the regulation of boxing is quite literally a uniquely
governmental activity because federal law prohibits private
associations from independently regulating the sport. Under
federal statute, "[n]o person may arrange, promote, organize,
produce, or fight in a professional boxing match held in a State
that does not have a boxing commission unless the match is
supervised by a boxing commission from another State . . . ." 15
U.S.C. § 6303(a) (2000). A "boxing commission" is defined by
statute as "an entity authorized under State law to regulate
professional boxing matches." Id. § 6301(2)(A). Therefore, even
under a generous reading of this statute, a private association
simply may not regulate professional boxing absent oversight and
regulation by state government.

28 Because the regulation of boxing is a uniquely
governmental activity, the legislative grant of governmental
immunity at issue here does not violate the open courts clause of
the Utah Constitution. We therefore need not consider the core
governmental activity prong of the Standiford test.

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http://www.utcourts.gov/opinions/supopin/Moss122107.pdf