Moab • 7th District Court Judge Don Torgerson will hear a motion for summary judgment in a lawsuit against the Moab Police Department filed by attorneys for Gabby Petito’s parents.

If granted, the case would essentially be dismissed — and that’s a result plaintiff’s attorney Brian Stewart said wouldn’t be surprising given Utah’s governmental immunity clause, which protects police officers from liability in cases of assault or battery, even when it results in death.

Petito was killed by her boyfriend Brian Laundrie in Wyoming in August 2021. Two weeks earlier, the couple was involved in a domestic violence incident in which Moab police failed to arrest either or both state domestic violence laws and department policy. They separated the two overnight to give them time to calm down.

In November 2022, Joseph Petito and Nichole Schmidt, through Parker & McConkie of Salt Lake City, announced they would file a $50 million claim wrongful death lawsuit against the Moab Police.

Attorneys for the Moab Police Department filed the motion for summary judgment last April, and Parker & McConkie filed an opposition in response in July. Torgerson will hear the motion Wednesday, Nov. 20, in Moab.

In their motion for summary judgment, MPD attorneys argued that Utah’s Governmental Immunity Act “prevents the Moab (Police Department) from being held liable for Laundrie’s brutal murder.”

There is a three-part test to determine whether the act applies, they wrote in court documents, to assess “whether the activity performed is a governmental function, whether governmental immunity for that activity has been waived; and if there is an exception to this waiver. A simple application of those factors confirms that plaintiff’s claims must be dismissed.”

According to lawyers on both sides, the Utah Supreme Court has ruled in several cases that immunity applies in cases of assault, battery and even death “even if the assault or battery occurs as a result of the negligence of the state or state agent” .

Attorneys for the Moab police also argue that “even without” Utah’s Governmental Immunity Act, the claims against MPD should still be dismissed. They claim that the plaintiffs have “repeatedly” invoked another statute, the Domestic Abuse Proceedings Act, which they claim provides that “A peace officer shall not be held liable in any civil action brought by a party to an incident of domestic violence because he committed or failed to commit. to make an arrest or to release from failure to issue a summons.”

They also point out that Moab police separated the pair for the night and that Petito’s killing happened two weeks later, hundreds of miles away.

Attorneys for Parker & McConkie argued in court documents that Utah’s Governmental Immunity Act applies only to state entities and not municipalities.

Stewart told The Times-Independent that it’s possible Judge Torgerson will grant MPD’s motion for summary judgment based on Utah’s Governmental Immunity Act, an outcome he said is “entirely possible” given how which the Utah Supreme Court has answered in similar cases in the past. If so, then they would file an appeal on behalf of Petito’s parents, Stewart said.

This story was first published by The Times-Independent.