Kirk Family’s Wrongful Death Suit Immunized?

Letter to Ephesians: Is there any doubt UVU botched security in Charlie Kirk’s assassination? Yet family’s wrongful death suit faces Utah’s unwaivable gov’t immunity law. Does a dubious “assumption of duty” theory have a shot of surviving its dismissal?

Fox News coverage included experts debating the headwinds the Kirk suit faces… even after conceding the state college’s security chief told Kirk’s security team “I got you covered” when alerted to an obvious lack of rooftop exposure to sniper fire that could be trained on Charlie 200 yards away. The problem, the lawyers said, was with Utah’s unique law & state Supreme Court’s broad interpretation of it. In Sanders v Leavitt, it ruled, gov’t immunity can’t be “waived” if the deadly event “arises out of an assault or battery,” even when the gov’t’s actions were negligent. Moreover, the college’s security chief would not be seen as having “authority” to verbally waive its statutory immunity. If so, that lack of an immunity waiver argument may be an insurmountable barrier to the family’s suit.

There is an alternative legal theory the plaintiffs might use … perhaps a Hail Mary one … that seeks to dodge the “immunity” law by arguing the college’s security chief’s affirmative words (& grossly negligent inaction) had “assumed the duty” to protect Team Kirk BEFORE the deadly shooting. Some federal Circuits & even the US Supreme Court applying the Federal Tort Claims Act appear to have recognized such a duty to protect others that’s distinct from a subsequent “assault or battery." In Sheridan v US (1988), e.g., the Justices held the FTCA’s assault & battery exception did not necessarily bar the underlying negligence claim because the gov’t’s alleged liability arose from duties it had AFFIRMATIVELY UNDERTAKEN BEFORE THE SHOOTING. Yet, the FTCA & Utah’s immunity statutes aren’t identical. And, regardless, the Utah Supreme Court has never entertained that federal assumption theory (or fiction?), which would try to circumvent the state’s broad immunity law by relabeling the claim.

Davd Soul