Can a governmental entity waive its immunity defense through inaction at trial? Hart v. Salt Lake County Commission Explained

Background and Facts

Richard Hart was injured in December 1986 when an unlicensed, drunk driver collided with him on Wasatch Boulevard. Hart sued Salt Lake County, alleging the County negligently designed, engineered, constructed, and maintained the road, and failed to install adequate warning devices. The County raised governmental immunity in its answer but during oral arguments on summary judgment, County counsel explicitly told the trial court it had decided not to pursue this defense “at that time.” The County never raised immunity again throughout the four-day trial.

Key Legal Issues

The central issues were whether Salt Lake County waived its governmental immunity defense by failing to argue it at trial, and whether postjudgment interest should be included within the statutory damages cap under Utah Code section 63-30-34. The jury found the County 51% liable with total damages of $1,330,000, but the trial court reduced the County’s liability to $250,000 pursuant to the statutory cap, including all interest and costs.

Court’s Analysis and Holding

The Court of Appeals affirmed that governmental immunity is an affirmative defense, not a jurisdictional issue, citing Nelson v. Salt Lake City and other precedents. Because the County explicitly abandoned this defense during summary judgment proceedings and failed to present any evidence supporting it at trial, the court held the County had waived this defense. However, the court reversed on damages, ruling that while prejudgment interest and costs are included in “the judgment” under the damages cap statute, postjudgment interest accrues separately and should not be included within the $250,000 cap.

Practice Implications

This decision emphasizes that governmental entities must actively preserve and prove their immunity defenses at trial. Mere pleading is insufficient—defendants must present evidence supporting the discretionary function exception or other immunity grounds. The ruling also clarifies the calculation of damages caps, ensuring that postjudgment interest provides proper incentive for governmental entities to timely pay judgments. Practitioners representing governmental entities should ensure immunity defenses are thoroughly briefed and supported with evidence, while plaintiffs’ counsel should monitor whether such defenses are properly preserved and argued.