Johnson v UDOT

2006 UT 15
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Craig Johnson, 	No. 20040921
Plaintiff and Appellee,
v.
F I L E D
Utah Department of Transportation,
Defendant and Appellant. 	March 10, 2006
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Second District, Layton
The Honorable Thomas L. Kay
No. 970700411
Attorneys: 	Erik M. Ward, Lindy Vandyke, Ogden, Stephen P.
Horvat, Salt Lake City, for plaintiff
Stephen J. Trayner, H. Scott Jacobson,
Salt Lake City, for defendant
Amicus Curiae Mark L. Shurtleff, Att’y Gen., Brent A.
Burnett, Asst. Att’y Gen., Salt Lake City
---
On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 	In this case, we address the discretionary function
exception to the waiver of immunity in Utah’s Governmental
Immunity Act (the Act). 	We granted certiorari to clarify when
governmental action qualifies for the exception and to reiterate
the test by which courts should assess such action.
¶2 	Plaintiff Craig Johnson filed a claim for injuries
suffered after he lost control of his car in a construction zone
on Interstate 15 (I-15). 	Rather than use concrete barriers as
dividers, the Utah Department of Transportation (UDOT) had
decided to separate the lane in which Johnson was traveling from
the construction area by placing orange barrels inside the
construction cutouts. 	The government filed for summary judgment,
claiming that the decision to use orange barrels qualified as a
discretionary function immunized from liability under the Act.
The district court agreed and awarded summary judgment.

1 UDOT has split the state of Utah into four regions, each
of which is headed by a region director. 	Region directors are
responsible for “(a) executing department policy within the
region; (b) supervising project development and operations of the
state transportation systems within the region; and (c) promoting
the department’s public involvement and information programs.”
Utah Code Ann. § 72-1-205(3) (2004). 	All of the region directors
report to UDOT’s Deputy Director. 	The Deputy Director reports to
UDOT’s Executive Director.
2 Nonetheless, FHA officials approved the final plan which
called for the use of orange barrels.
No. 20040921 	2
¶3 	Applying this court’s four-part test defining
discretionary function, the court of appeals reversed the
district court’s award of summary judgment to the government. 	We
affirm the judgment of the court of appeals.
BACKGROUND
¶4 	On September 14, 1996, Johnson was driving south on
I-15 when his front tire slid into a twelve- to eighteen-inch
deep cutout buttressing his lane of travel. 	He lost control of
his vehicle and drove into two additional cutouts. 	No painted
lines or physical barriers separated Johnson’s lane of travel
from the cutouts. 	In lieu of a buffer zone, orange plastic
barrels had been placed sporadically inside the cutouts as the
only indication of the hazard, although the traffic control plan
required additional safeguards. 	At the time of Johnson’s
accident, UDOT allowed for one extra lane of traffic--also in
violation of the traffic control plan--further limiting any
buffer for the traveling public. 	Dyke LeFevre, UDOT’s Region One
Director, 1 conceded that this practice is not safe and is
something he would never approve or allow the field engineer to
approve.
¶5 	Before taking bids on the I-15 construction project,
LeFevre had already decided to use the orange plastic barrels
instead of the concrete barriers recommended by the Federal
Highway Association (FHA) Guidelines. 2 	In making this decision,
LeFevre apparently did not request a safety analysis, even though
UDOT regularly employs such studies. 	While LeFevre’s supervisor,
Clint Topham, UDOT’s Deputy Director and “chief engineer for the
entire state of Utah, [who] had final say on all transportation
related engineering decisions,” signed off on the project
generally, LeFevre never discussed the decision to use plastic
barrels with Topham.

3 The Utah Legislature raised freeway speed limits across
the state after the parties entered into the contract.
4 Both Nichols’s letter and LeFevre’s deposition testimony
refer only to “the Commission.” 	Presumably, such references are
to the Transportation Commission, which has such statutory duties
as “determining priorities and funding levels of projects in the
state transportation systems for each fiscal year based on
project lists compiled by the department” and “making policies
and rules . . . necessary to perform the commission’s duties
described under this section.” 	Utah Code Ann. §§ 72-1-301 to
-303 (2004).
3 	No. 20040921
¶6 	After Granite Construction Company (Granite)
successfully bid for the nearly five million dollar project,
Granite expressed safety concerns to UDOT. 	In addition to
requesting concrete barriers in place of the orange plastic
barrels, Granite asked UDOT to reduce the speed limit from sixty-
five to fifty-five miles per hour, the maximum speed limit when
the parties consummated the contract. 3
¶7 	Agreeing with Granite’s concerns, Kent Nichols, UDOT’s
Project Engineer assigned to oversee the I-15 project, told
LeFevre that worker safety was not receiving adequate
consideration and recommended the use of concrete barriers.
Nichols provided an estimate from Granite that concrete barriers
would cost approximately an additional $540,000 and would enable
Granite to complete the project twenty-eight days ahead of
schedule.
¶8 	Subsequently, Nichols sent a letter to Granite saying
that UDOT would not pay for the concrete barriers. 	He explained
that LeFevre did not believe the Commission 4 would approve the
switch unless Granite could complete the project fifty days early
and reduce the additional cost to approximately $450,000. 	There
is no evidence that Topham was involved in the decision, nor any
evidence that the Commission would have actually rejected the
proposal. 	In fact, LeFevre never requested the additional funds
from the Commission. 	Granite responded that it could switch to
concrete barriers for roughly an additional $495,000-- provided
UDOT supplied certain construction equipment--but that Granite
could not complete the project earlier than twenty-eight days
ahead of schedule.
¶9 	Discussions stalled over this $45,000 difference and
the parties made no progress regarding the use of concrete
barriers or reducing the speed limit, even though no one disputed
that concrete barriers would substantially increase safety. 	In

5 The construction site displayed advisory speed limits of
fifty miles per hour, but the sixty-five miles per hour speed
limit signs were not removed or covered; the legal speed limit
remained sixty-five miles per hour.
6 Since this case began, the Utah Legislature has amended
the Governmental Immunity Act. 	In the new iteration of the Act,
the Legislature used identical language to define the
discretionary function exception. 	Thus, case law interpreting
the previous discretionary function exception, including this
case, will likely govern interpretation of the current version of
the exception, now codified as Utah Code section 63-30d-301(5)(a)
(2004) (providing exception to the immunity waiver “if the injury
arises out of, in connection with, or results from . . . the
exercise or performance, or the failure to exercise or perform, a
discretionary function, whether or not the discretion is
abused”).
No. 20040921 	4
fact, saving money was the only reason UDOT refused to switch to
concrete barriers. 	UDOT provided no reason for failing to lower
the speed limit.
¶10 	Nearly three months later, in an incident unrelated to
the cause of action in this case, a car drove into the
construction cutouts and knocked over multiple orange barrels.
The accident would have killed Granite employees had it not been
for the fact that they had left the site temporarily to obtain
additional materials. 	Granite informed UDOT of the accident and
reiterated that it did not believe UDOT had taken adequate
measures to ensure worker safety.
¶11 	Despite Granite’s repeated requests, and despite the
accident’s leaving no doubt that the orange barrels did not
adequately protect the public or the workers, LeFevre did not
budge from his initial cap of $450,000 to use concrete barriers.
Even after the accident, no evidence indicates that LeFevre
discussed the increased spending with Topham or with the
Commission, or that he requested a reduced speed limit.
Consequently, the construction site continued to utilize the
orange plastic barrels and maintain the sixty-five miles per hour
speed limit at the time of Johnson’s accident. 5
¶12 	On October 3, 1997, Johnson initiated this action in
the district court, suing both Granite and UDOT under negligence
theories. 	UDOT filed a motion for summary judgment, arguing that
the claim was precluded by the Act, Utah Code section 63-30-10
(repealed 2004). 6 	The district court granted the motion, finding
that UDOT’s actions qualified for the discretionary function

7 In its current form, the Act is codified as Utah Code
sections 63-30d-101 to -904 (2004 & Supp. 2005).
5 	No. 20040921
exception to the waiver of immunity under the Act. 	On appeal,
the court of appeals applied the four-part test defining
discretionary function articulated in Little v. Utah State
Division of Family Services, 667 P.2d 49, 51 (Utah 1983), and
reversed the summary judgment order. 	Johnson v. Dep’t of
Transp., 2004 UT App 284, ¶ 30, 98 P.3d 773. 	We affirm.
STANDARD OF REVIEW
¶13 	We granted certiorari to review the court of appeals’
reversal of summary judgment. 	We have jurisdiction over this
matter pursuant to Utah Code section 78-2-2 (2002).
¶14 	Summary judgment should be awarded only when “there is
no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” 	Utah R.
Civ. P. 56(c).
¶15 	Appellate courts review a grant of summary judgment for
correctness and afford no deference to conclusions of law. 	Laney
v. Fairview City, 2002 UT 79, ¶ 9, 57 P.3d 1007. 	Thus, on appeal
the facts must be viewed in the light most favorable to the
nonmoving party. 	Ledfors v. Emery County Sch. Dist., 849 P.2d
1162, 1162 (Utah 1993).
ANALYSIS
¶16 	UDOT argues that it should be shielded from liability
for this accident under the Act, Utah Code Section 63-30-10
(repealed 2004). 7 	Without addressing any issues of fault or
evaluating the merits of Johnson’s case, we consider (1) the
applicability of the Act and (2) the Act’s discretionary function
exception to the waiver of immunity.
I. 	THE UTAH GOVERNMENTAL IMMUNITY ACT
¶17 	As our precedent repeatedly discusses, the Act requires
a three-step analysis. 	See, e.g., Laney v. Fairview City, 2002
UT 79, ¶ 11, 57 P.3d 1007; Keegan v. State, 896 P.2d 618, 619–20
(Utah 1995); Ledfors v. Emery County Sch. Dist., 849 P.2d at
1164. 	First, we must decide if the Act affords immunity through
its blanket immunization. 	Laney, 2002 UT 79, ¶ 11. 	Second, we
must determine if the Act waives immunity given the particular
circumstances of the case. 	Id. 	Third, we must consider if the

8 Currently, the immunity waiver is codified as Utah Code
sections 63-30d-301 and -302 (2004).
No. 20040921 	6
governmental action qualifies for an exception to the waiver of
immunity. 	Id.
¶18 	The parties do not disagree over the first two steps,
acknowledging that UDOT’s action qualifies under the Act’s
blanket immunity and that Utah Code section 63-30-8 (repealed
2004) 8 waives this immunity. 	Accordingly, the issue before this
court is whether UDOT’s decision to implement, and refusal to
modify, a traffic control plan using orange plastic barrels
instead of concrete barriers qualifies as an exception to the
waiver of immunity under the Act. 	Specifically, the parties
dispute whether the Act immunizes UDOT under the discretionary
function exception, which overrides the immunity waiver “if the
injury arises out of, in connection with, or results from . . .
the exercise or performance or the failure to exercise or perform
a discretionary function, whether or not the discretion is abused
. . . .” 	Utah Code Ann. § 63-30-10 (repealed 2004).
II. 	THE DISCRETIONARY FUNCTION EXCEPTION
TO THE WAIVER OF IMMUNITY
¶19 	This court has always read the discretionary function
exception to the immunity waiver narrowly. 	To do otherwise would
allow the exception to swallow the rule. 	Nelson v. Salt Lake
City, 919 P.2d 568, 575 (Utah 1996) (“Nearly all acts performed
by government employees involve some amount of discretion.
However, discretionary immunity clearly was not designed to cloak
the ancient doctrine of sovereign immunity in modern garb.”).
Accordingly, we have explained that “[d]iscretionary immunity is
a distinct, more limited form of immunity and should be applied
only when a plaintiff is challenging a governmental decision that
involves a basic policy-making function.” 	Id.
¶20 	We recognize that governmental immunity is essential to
the daily operations of the government and enables the government
to serve the interests of its constituency. 	In that vein, the
discretionary function exception to the immunity waiver is
designed to “shield those governmental acts and decisions
impacting on large numbers of people in a myriad of unforeseen
ways from individual and class legal actions, the continual
threat of which would make public administration all but
impossible.” 	Keegan v. State, 896 P.2d 618, 623 (internal
quotation marks omitted). 	Thus, we will not question the
judgment of governmental bodies when such judgment is “regulated
by the political process.” 	Id.; Little v. Utah State Div. of

7 	No. 20040921
Family Servs., 667 P.2d 49, 51 (“Where the responsibility for
basic policy decisions has been committed to one of the branches
of our tri-partite system of government, the courts have
refrained from sitting in judgment of the propriety of those
decisions.”).
¶21 	While the judiciary strives not to interfere with
governmental deliberations addressed by the political process,
the government cannot escape liability by simply claiming that
some discretion, however minimal, was used in making a decision.
On the contrary, the government carries the burden to prove that
it qualifies for the discretionary function exception to the
immunity waiver. 	Little, 667 P.2d at 51 (“If the State posits
immunity on such an exercise of discretion, it must make a
showing that a conscious balancing of risks and advantages took
place.”). 	The key, of course, is that the government actually
exercises a level of discretion in a manner that implicates
policy-making and thrusts the decision into the political
process. 	Keegan, 896 P.2d at 623-24.
¶22 	To determine whether governmental action qualifies for
the discretionary function exception to the immunity waiver, this
court will continue to use the Little four-part test. 	667 P.2d
at 51. 	Thus, we consider the following questions to resolve the
issue:
(1) Does the challenged act, omission, or
decision necessarily involve a basic
governmental policy, program, or objective?
(2) Is the questioned act, omission, or
decision essential to the realization or
accomplishment of that policy, program, or
objective as opposed to one which would not
change the course or direction of the policy,
program, or objective?
(3) Does the act, omission, or decision
require the exercise of basic policy
evaluation, judgment, and expertise on the
part of the governmental agency involved?
(4) Does the governmental agency involved
possess the requisite constitutional,
statutory, or lawful authority and duty to do
or make the challenged act, omission, or
decision?

9 For this reason, we disagree with Johnson when he asserts
that “the discretionary function exception would bar practically
every negligence claim against a governmental entity.” 	While the
safety concerns inherent in this case help to satisfy the first
part of the Little test, Johnson simply overstates the effect on
the remaining parts by claiming that “if a plaintiff asserts that
a governmental entity negligently made a decision or omission
relating to safety, the decision or omission automatically
satisfies the first three prongs of the Little test.”
Furthermore, Johnson argues with this court’s statement in
Laney “that it would not be within a municipality’s discretion to
construct electrical systems and power lines that do not meet
industry safety standards,” and thus, the government could not
qualify for the discretionary exception. 	Laney, 2002 UT 79,
¶ 25. 	We do not comment on this argument because the language
from Laney has no application to the facts of this case.
No. 20040921 	8
Id.
A. 	Basic Governmental Objective
¶23 	First, the challenged act, omission, or decision must
necessarily involve a basic governmental policy, program, or
objective. 	Id. 	Because this case deals exclusively with UDOT’s
ensuring public safety on I-15, the first part of the Little test
is satisfied.
¶24 	Our previous cases have left no ambiguity on this
point: 	public safety on the roads is a basic governmental
policy. 	In Keegan, UDOT’s decision not to raise a cement median
barrier satisfied the first part because “the decision involved a
basic governmental objective: 	to wit, public safety on the
roads.” 	896 P.2d at 624; see also Laney v. Fairview City, 2002
UT 79, ¶ 17, 57 P.3d 1007 (“[T]he challenged act, omission, or
decision does necessarily involve a basic policy, program, or
objective, namely public safety . . . .”). 	Similarly, this case
undoubtedly involves public safety on the roads because Johnson
is suing under negligence theories after suffering injuries on
the freeway.
¶25 	Nevertheless, this single factor does not end the
inquiry. 	That public safety decisions may immunize the
government does not mean that the government is necessarily
immunized for every decision implicating public safety. 	On the
contrary, the remaining parts of the Little test distinguish
decisions which implicate safety and merit immunity from those
which do not merit immunity. 9 	Little, 667 P.2d at 51.

10 Although not at issue in this case, the government may
qualify for the discretionary function exception by demonstrating
that a particular allocation of funds was based on an analytical
project prioritization.
9 	No. 20040921
Accordingly, when a case presents an issue of public safety, we
turn a critical eye to the remaining parts of the Little test.
B. 	Essential to the Realization of Objective
¶26 	Second, we must determine whether the act, omission, or
decision is essential to the realization of the policy, program,
or objective in question. 	Little, 667 P.2d at 51. 	As the court
of appeals observed, UDOT failed to make any showing that the
orange barrels were essential to the accomplishment of a policy
or program. 	Johnson v. Dep’t of Transp., 2004 UT App 284, ¶ 21,
98 P.3d 773. 	Nor did UDOT demonstrate that the $45,000
differential between LeFevre’s desired additional cost and
Granite’s estimate affected UDOT’s ability to finish this or any
project. 10 	Thus, the decision was not essential to the
realization of the governmental objective. 	To the contrary, the
record suggests that the use of concrete barriers would have
facilitated the objective of preserving public safety and would
have resulted in earlier completion of the project. 	Thus, UDOT
has failed to prove that using orange barrels was essential to
public safety or to the I-15 construction project.
¶27 	Keegan, in contrast to this case, provides an example
of the government carrying its burden with respect to the second
part of the Little test. 	896 P.2d at 624. 	The decision at issue
in Keegan not to raise a concrete median barrier “involved a
determination of not only the degree of safety that would be
provided by various options considered, but also what degree of
safety would be an appropriate goal given time and cost
constraints.” 	Id. 	In making the determination, the government
used a “report [that] examined many factors including the cost of
removing and replacing the barrier.” 	Id. 	Consequently, this
court concluded that the government weighed the options,
considered the implications of those options, and thus, “the
decision was essential to the realization of [the government’s]
policy.” 	Id.
¶28 	Here, no evidence indicates that UDOT conducted any in-
depth safety studies or performed a comprehensive analysis to
assess the benefits of the incremental cost of using concrete

11 In his testimony, LeFevre said he could not remember if
UDOT conducted such studies for this project. 	Viewing this
evidence in the light most favorable to the nonmoving party, as
we must do on a motion for summary judgment, we will assume UDOT
conducted no such study. 	Peterson v. Sunrider Corp., 2002 UT 43,
¶ 24, 48 P.3d 918.
No. 20040921 	10
barriers, even though UDOT conducts such studies regularly. 11 	In
the absence of a documented report, this court can only surmise
what sort of scrutiny and analytical rigor UDOT utilized in
making these decisions.
¶29 	We do not hold that an intensive study is a
prerequisite to satisfying this part of the Little test. 	Rather,
we reaffirm prior case law that such studies substantially help
the government establish that immunity is warranted under the
discretionary function exception. 	Unmistakably, however, a
manager’s unilateral decision--never discussed with his
supervisor--to disregard obvious safety issues without fully
considering the implications of his decision does not establish
the orange barrels’ necessity to the project. 	The government has
not satisfied its burden under this part of the test.
C. 	Exercise of Basic Policy Evaluation
¶30 	Third, we must determine if the act, omission, or
decision requires the exercise of basic policy evaluation.
Little, 667 P.2d at 51. 	We agree with the court of appeals that
UDOT did not exercise policy evaluation when LeFevre repeatedly
refused to pay for concrete barriers despite numerous
recommendations from UDOT’s Project Engineer to do so. 	Johnson,
2004 UT App 284, ¶ 23. 	Accordingly, UDOT does not satisfy the
third part of the Little test.
¶31 	As we have explained, “discretionary functions are
those requiring evaluation of basic governmental policy matters
and do not include acts and decisions at the operational level,
namely those everyday, routine matters not requiring evaluation
of broad policy factors.” 	Nelson, 919 P.2d at 575 (internal
quotation marks omitted). 	While the government may enjoy
immunity for policy-making, the “exception is not extended to the
ministerial implementation of that basic policy.” 	Carroll v.
State, 496 P.2d 888, 891 (Utah 1972); Andrus v. State, 541 P.2d
1117, 1120 (Utah 1975) (“The decision to build the highway and
specifying its general location were discretionary functions, but
the preparing of plans and specifications and the supervision of
the manner in which the work was carried out cannot be labeled
discretionary functions.”).

11 	No. 20040921
¶32 	Once again, Keegan illustrates the kind of scenario
that typifies policy-making necessary to satisfy this part of the
Little test. 	Keegan, 896 P.2d at 624. 	Describing the manifest
policy considerations, the Keegan court emphasized that the study
had been “circulated throughout and debated within the
department.” 	Id. 	Because the government effectively
demonstrated department-wide consideration and evaluation, and an
incontestable weighing of the policies at issue, we concluded
that the decision had required the government to exercise policy
considerations to merit immunity under the discretionary function
exception. 	Id.
¶33 	By contrast, in Carroll v. State, the government’s
failure to effectively warn drivers of an abandoned road did not
qualify as discretionary simply because a member of the
government had made some decision which endangered lives. 	496
P.2d at 889–91. 	Rather, the court considered whether any policy
considerations were at play when the government failed to warn an
injured driver that the road ended. 	Id. at 891-92. 	Because the
failure to warn did not arise from deliberative policy making,
the court ruled such failure an operational decision pertaining
to the manner in which the government carried out the project.
Id. 	Thus, the government did not qualify for the discretionary
exception to the immunity waiver. 	Id.
¶34 	The policy decision in the present case was whether or
not to perform the construction on I-15. 	Presumably, Topham,
LeFevre, and UDOT’s entire policy-making personnel were pivotal
in the decision to spend nearly five million dollars on the
construction project. 	The allocation of these funds, combined
with the adverse effects on public convenience, placed that
decision squarely in the public policy arena. 	Thus, the
overarching decision regarding whether or not to undertake the
construction qualifies as the type of policy-making for which the
government is entitled to immunity.
¶35 	The manner in which the construction occurred, however,
is where the line is drawn between operational and policy
decisions. 	Keegan, 896 P.2d at 625 n.4 (defining operational
decisions as those “choices of how specifically to carry out some
previously made policy-based decision”). 	Topham, LeFevre’s
supervisor, did not expressly approve of the orange barrels and
certainly did not engage in policy considerations concerning
their use. 	Instead, LeFevre informed Topham that there were no
concerns with the project generally, opting not to discuss the
use of orange barrels with Topham. 	The decision to use plastic
barrels was thus so inconsequential in the overall construction

12 We do not hold that an employee in LeFevre’s position
could never exercise basic policy evaluation. 	Rather, the
circumstances of this case do not support that using the orange
barrels required such policy evaluation.
13 This policy underlies our explanation that “‘[e]very
highway could probably be made safer by further expenditures, but
we will not hold UDOT . . . negligent for having to strike a
difficult balance between the need for greater safety and the
burden of funding improvements.’” 	Keegan, 896 P.2d at 624
(quoting Duncan v. Union Pac. R.R., 790 P.2d 595, 601 (Utah Ct.
App. 1990)).
No. 20040921 	12
project that Topham was not even included in the decision; this
epitomizes the kind of operational decision that does not qualify
for immunity within the narrow scope of the discretionary
exception to the immunity waiver. 12
¶36 	While we explained in Laney that “at a minimum, a basic
cost-benefit analysis and exercise of financial expertise and
judgment by the City . . . is sufficient under part three of the
Little test,” 2002 UT 79, ¶ 19, we did not intend to create
blanket immunity for governmental negligence in every case where
the government saves money. 	A real and substantial consideration
of the relevant concerns, such as the benefits to public welfare
and safety weighed against increases in spending taxpayers’
money, is necessary to prove that the government engaged in
policy-level considerations. 13 	Such an evaluation shifts
accountability for decision-making to the public forum and allows
the political process to hold government officials accountable
for those decisions. 	These considerations are indicative of the
kind of policy-based decisions requiring governmental discretion,
as distinguished from truly operational decisions.
¶37 	An unsubstantiated decision not to spend money is not
the same as a thorough and deliberate cost-benefit analysis.
Accordingly, LeFevre’s ambivalence about requesting the
additional $45,000 from the Commission fails to meet the criteria
for the type of cost-benefit analysis which may satisfy this
third part of the Little test.
D. 	Requisite Authority for the Decision
¶38 	Since the parties agree that, under the fourth part of
the Little test, UDOT had the authority to make the decision at
issue, we need not address this question.

13 	No. 20040921
CONCLUSION
¶39 	Pursuant to the foregoing analysis, we conclude that
UDOT has failed to satisfy the second and third parts of the
Little test. 	Thus, its use of orange plastic barrels on this
construction project does not qualify for the discretionary
exception to the waiver of governmental immunity under the Act.
Accordingly, we affirm the court of appeals’ reversal of summary
judgment and remand this case to the district court.
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¶40 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.