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Mallory v. Brigham Young University, 2014 UT 27 (July 8, 2014) 

Jul 8, 2014

The Utah Supreme Court held that a BYU traffic cadet was an “employee” of Provo City, thus barring the plaintiff’s claims under the Governmental Immunity Act of Utah. The plaintiff was injured when his motorcycle collided with another vehicle after a BYU football scrimmage. He alleged a BYU traffic cadet under the supervision of a BYU peace officer was negligent. The trial court determined that the traffic cadet was an agent of Provo City and thus an employee under the Act. This meant that the plaintiff was required to file a notice of claim within one-year after the accident. Because he did not do so, the court dismissed his claim. The Utah Court of Appeals reversed, concluding that an agent will only be considered an employee under the Act if the governmental entity “exercises control” over the purported employee. The Utah Supreme Court reversed the Utah Court of Appeals, holding that while an agent is not necessarily encompassed within the Act’s definition of “employee,” the Act does not impose a requirement that an individual must be “under the control of the governmental entity.” Id. ¶ 12. Nonetheless, the supreme court determined that if a “right to control,” even without an exercise of that control, is present, an individual will qualify as an employee. With that determination, the supreme court held that the BYU traffic cadet was under the control of Provo City and thus an employee. It reasoned that sufficient control existed because the Provo City Code “strictly regulate[d]” how BYU could perform traffic control, permitted the City to discharge BYU at will, and because the city council could rescind or amend the statute from which BYU derived its authority at any time. A dissent suggested that the court’s holding could open the door for a number of private actors to be entitled to governmental immunity.