The Supreme Court gave the Jenkins family a second chance in court today.

The dispute arose in 2005 when a water main broke on 3300 South in Salt Lake and flooded the Jenkins’ home.  Investigation revealed that the line had been installed in about 1957 and was near the end of its useful life.  During the decade before 2005, the line had broken near the Jenkins’ home about 9 time times.  In 2002, the Jordan Valley Water Conservancy District had decided to replace the line but delayed for financial reasons.

When no settlement could be reached, the Jenkins sued.  Judge Judith Atherton threw the case out of court.  She threw the case out, reasoning that the case was barred by the public duty doctrine.

The public duty doctrine prevents lawsuits against governmental entities when the government fails to protect the public.  The State of Utah successfully used it to defend itself when a mental patient escaped from the Utah State Hospital and injured an innocent member of the public.  The public duty doctrine says that the governmental is not liable in court for failing to protect the public.

The Court of Appeals disagreed with Judge Atherton.  The Court of Appeals said the public duty doctrine did not apply because the Jenkins were not merely part of the general public.  They were homeowners who lived adjacent to a pipe that had been slated to be replaced.  Because the Jenkins had a “special” relationship, they are allowed to sue.

Next, Judge Atherton reasoned that a 1987 law gave the Water District complete immunity.  The Court of Appeals agreed but found the 1987 law unconstitutional.

The Utah Constitution prohibits the legislature from closing the court house doors.  This is frequently called the “Open Courts” provision of the constitution.  The reason it was put in was that the founding fathers of the State were worried that special interest groups would lobby the legislature to close the court house doors to people who might have previously had valid claims against the special interest group.

Recent years have show that concern to be well founded.  Over the past 30 years, the legislature has been requested to close the court house doors.  Just last year, the legislature closed the court house doors to patients injured when hospitals hire doctors the hospitals no are bad doctors.  That legislation was sponsored by Senator Adams who happens to also serve on a hospital board.  I call it the “pass the trash” bill.

In the Jenkins case, the Court of Appeals ruled that the legislature closed the court house doors to the Jenkins.  Normally, businesses can be sued.  The delivery of water for a fee is a business.  Before 1987, all water companies could be sued for negligence.  It didn’t matter whether they were private or public.  After 1987, public water systems were given immunity.

This raises the question of whether the court made a decision that is good for the people of the State of Utah.  I believe it did.  We’ve seen an increasing trend of governmental entities taking on responsibilities that could be run privately.  Many cities in Utah recently took on the business of selling Internet services.

One may argue that the city needs to supply water because no one else would do it.  That isn’t true.  In many areas of the State of Utah, water is supplied by private companies.  Gas, electricity, telephone and internet are routinely supplied by private companies.

Giving a public utility immunity only puts the public utility at a competitive advantage.  It makes it harder for private utilities to compete.

Rather than giving public utilities immunity, the people of the State of Utah would be better off if governmental entities got out of competing with private businesses.