Former Justice Christine Durham Joins Petito Family’s Legal Team in Utah

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Former Justice Christine Durham Joins Petito Family’s Legal Team in Utah

By Lukas Greenwood
July 10, 2024

Hon. Justice Christine M. Durham (Ret.)

Former Utah Supreme Court Chief Justice

Salt Lake City, Utah – July 10, 2024 – Former Utah Supreme Court Chief Justice Christine Durham has entered her appearance on behalf of Gabby Petito’s family, joining the law firm of Parker & McConkie in the Utah wrongful death case (Case No. 220700046). Christine Durham is a retired Justice of the Utah Supreme Court who served as a Justice from 1982 to 2017 and as Chief Justice from 2002 to 2012. She currently practices as Senior of Counsel with Wilson Sonsini Goodrich & Rosati.

In a statement, Justice Durham emphasized the “important state constitutional questions” at stake, noting that “this case presents a significant opportunity for the court to clarify the constitution’s intent to preserve the right of Utah citizens to hold their government accountable in cases of wrongful death.” In the end, this case is about ensuring “that the parents of Gabby Petito can exercise their constitutional right to recover for Gabby’s wrongful death—a death that would not have occurred had it not been for the negligence and misconduct of Moab City and its officers,” she stated.​

“Justice Durham is one of the preeminent legal minds in Utah and the United States,” Petito family attorney Brian C. Stewart stated. “She brings an unmatched wealth of experience and expertise, particularly in Utah constitutional law, to our efforts to fight for justice for Gabby.”

Gabby’s mother, Nichole Schmidt, stated, “We are honored to have Justice Durham join us in this case. Her commitment to fighting for Gabby and the rights of all victims instills great confidence in our cause. This truly demonstrates the validity and importance of our claims.  What is it that we are fighting for? Through dedicated training, collaboration, and accountability, we aim to transform outcomes for victims in grave danger.”

In response to Moab Police Department’s statements on Tuesday, calling the lawsuit a “GoFundMe campaign,” Joseph Petito, Gabby’s father, called the comments “unfortunate” and said, “Moab still doesn’t get it. This case has never been about money. It has always been about seeking accountability and fighting for change that will save lives. When law enforcement fails to follow the law, fails to protect, and refuses to learn from its mistakes, like the Moab police department, it puts us all at risk.”

Moab City Police Department has filed a motion to dismiss the Petito family’s lawsuit, arguing that their claims are barred by Utah’s Governmental Immunity Act. However, in their opposition brief, filed on July 9, 2024, the Petito family argues that their wrongful death claims are protected under the Utah Constitution.

Summary of Constitutional Arguments

In 1965, the Utah State Legislature enacted a statute known as the Utah Governmental Immunity Act. This statute purported to make all branches, departments, and agencies of government immune from lawsuits in certain circumstances. One such circumstance, retains immunity in personal injury cases arising from assault or battery, even if the injuries were also caused by the government’s own negligence.

This basis for immunity was challenged under the wrongful death clause to the Utah Constitution in the 1996 case of Tiede v. State. In that case, two felons walked away from a state-owned halfway house, broke into a cabin, and murdered the owners. These murders were, in turned out, premeditated, and an informant notified the State of the felons’ location and plans beforehand. The State, nevertheless, failed to act. When the heirs of the cabin owners sued the State for wrongful death, the district court dismissed, citing the governmental immunity act’s retention of immunity when injury is cased, even in part, by an assault or battery. On appeal, the Utah Supreme Court upheld the district court’s dismissal. It also rejected a constitutional challenge to the immunity act under Article XVI, Section 5 of the Utah Constitution—also known as the wrongful death clause.​

Moab City Police Department now relies on Tiede and the governmental immunity act to seek dismissal of Joseph Petito and Nichole Schmidt’s case. Yesterday, Mr. Petito and Mrs. Schmidt filed a brief with the court opposing Moab City Police Department’s requested dismissal. As their brief notes, Moab essentially argues that “when a child dies due to the negligence of a city and an assault and battery of a third party, the law leaves her parents without remedy.” But, they note, “this was not the view held by those who settled this state.” They marshal evidence showing that when Utah first achieved statehood, municipalities—like Moab—could be sued for wrongful death. Ultimately, they ask the Court to declare the governmental immunity act unconstitutional and note that “doing so will return Utah law to its original understanding and restore to those within this state the protections intended by Utah’s founders.”






Petito – Plaintiffs Opposition to Moabs MTD 07-09-2024


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