*1 ACCULOG, INC., сorporation, a Colorado Shaw, and Kenton co-
Robert Pfister Services, partners Field d/b/a Appellants,
Plaintiffs PETERSON, Peterson
Keith d/b/a
Ford, Respondent. Defendant and
No.
Supreme Court Utah.
1,May Snow, Mortensen, Harry
Paul W. E. Moab, plaintiffs appellants. Hayes, City, Nelson E. Lake Salt respondent. defendant and HOWE, Justice: Acculog appeal judg- Plaintiffs from a ment of “no cause of action” which was entered after a returned a vеr- dict. 1977 four-wheel-drive Ford Quadravan, E250 at a value of estimated $7,000,caught destroyed fire and was later day the same that defendant Peterson Ford had fuel filter to cor- installed a new *2 729 engine. 2. overheating your Question de- If rect Also answer to No. 1 is Acculog’s stroyed geological “yes,” the fire was following then answer ques- the equipment сonsisting Sopris of a Mount negligence proximate tion: Was such logging on bore-hole unit mounted the vehi- damage cause the fire of and sustained $41,- stipulated cle and to have a value of by plaintiffs on said date? Acculog that the 687.95. claimed destruc- plaintiffs negligent 3. Was the at [sic] the equipment tion of van and resulted in the of question timе the fire in on June $33,- profits by it at over estimated 28, 1979? day Acculog 000. On the of the fire did not your Question If answer to No. 3 is extinguisher a fire in its carry van. “yes,” following ques- then answer the trial, Ford moved di- At Peterson for a tion: verdict in its favor at the of rected end such negligence proximate Was Acculog’s profits. case on issue of the lost damage сause of the fire and sustained ground The motion was based that by plaintiffs on said date? plaintiffs prove had failed to the loss of you If have all previ- answered the binding any profits under contracts. The questions “yes,” then, ous then and ground granted was that on motion on you are to answer question: this ground by the the further added court that Taking the negligenсe combined that jury was no the there evidence before what damage caused the as one hundred the amount of the would have been. (100%), cent percentage what that Acculog excepted At the end of the trial ligence to atributable the [sic] on special to a verdict form the that percentage tiffs and whаt was attributa- support was no to there evidence submit- ble to the defendant? question comparative ting the and con- (a) Percentage attributable to defend- tributory negligence jury. Acculog to the ant? the to instruct also asked trial court Peter- (b) Percentage plaintiffs? attributable to argue son Ford not to that the TOTAL 100% extinguisher of a fire absence constituted During deliberation the delivered a any negli- on its negligence part such they note to the trial court that could not gence was not the relevant causation of questions answer 2 “they appear and 4 as difficulty fire. The court that it had noted two-part questions to be that we issue cannot ques- with that as it sеemed to be a However, singular answer with answer.” The trial tion of responded “you court answer must either stipulated the amount yes parties questions or no to each of by the referred determined Consult I that it could not instruct miti- above. the instructions. can- therefore on gation. request help you Questions further.” Plaintiffs’ denied Nos. through with a that 4 were the court comment answered the affirma- looking Question be absence fire tive. percent “would at of a No. 5 attributed [the standpoint extinguisher] negligence percent from the of it be- to the defendant and 86 maybe just another one of the elements plaintiffs.1 up the fire.” That that ended points appeal on can rе- be argument was made defense to major (1) duced to two issues: Was it error jury. for the trial court to to direct refuse verdict contained five inter- verdict in Acculog favor of the issue of rogatories: plaintiffs’ comparative negligence? (2) Was it 1.Was error the trial court to direct a defendant servicing plaintiffs’ van on verdict in favor of Ford on the manner Peterson profits? issue of 1979? loss June $41,- stipulated percentages closely parallel equipment 1. These seem to 687.95, $7,000 value estimated truck to take the COMPARATIVE NEGLIGENCE combined damage apportion it caused the be Utah’s parties. (Interrogatory 5.) tween the two 1953, 78-27-37, U.C.A., provides Testimony at trial made it clear that сontributory negligence of a shall spread prevented could have recovery negli- “for bar the engine fire from the of the van gence resulting ... in death or *3 logging equipment a fire extin negligence if person property, or such was guisher available, that should not but negligence great as as the ... of the question presented have been the to the recovery against sought whom is ” jury. We are not concerned in question posed The is .... therefore negligence law with the cause of the dam plaintiffs’ alleged negligence, their whether age, injury with the of the in but cause extinguisher carry failure a fire stead. van, property, their own “injury” caused jury whether instruction on
and
“injury”
term
The
is sometimes used in
negligence
proper
tiffs’
was
under the cir-
“damage,”
including
the sense of
as
cumstances of this case.
compensation
for
harm or loss
which
is
sought,
damage
and has
been defined
compara
The ultimate facts
act;
resulting from an unlawful
but
negligence
only negli
tive
case embrace
is,
significance,
legal
proper-
strict
there
gence,
percentages
causation and the
ly speaking, a
distinction
material
be-
negligence
plaintiff
de
attributed
and
terms,
injury
tween the two
in that
Cortese,
414,
fendant. Marcus v.
98 N.M.
something
against
right
means
done
(App.1982).
plaintiff
P.2d 482
A
can
649
party, producing damage,
of the
whereas
contributorily negligent
held
not be
to be
detriment,
damage
harm,
or loss
causally
negligence
unless his
is
connected
by
injury.
sustained
reason
plaintiff’s injury.
to the
Boeke v. Interna
(Cal), Inc.,
89,
Wash.App.
Cassetty,
27
Clark v.
71
376
tional Paint
N.M.
P.2d 37
Co.
611,
(1980);
(1962).
Kennedy City
where conduct was apposite here, versely plaintiff sued de- contributing causing injury, factor originat- fendant for loss of his car in a fire comparative negligence becomes a defense premisеs. outside defendant’s Defend- for the defendant. ant for a moved directed verdict on the sprinkler that his failure to have a present Here there was no evidence system prem- fire extinguishers and on the any Acculog way ed at trial that caused ises bore no causal connection de- the fire. found The that Peterson plaintiff’s struction of trial car. The negligently Ford had serviced the van and appealed. the motion denied and defendant proximate its was cause Finding no causal between connection de- damage by of the fire Accu and sustained loss, plaintiff’s fendant’s and 2.) log. 1 and (Interrogatories appeals court stated: Acculog also fоund to have been (Inter cause, proximate damage. On the issue we and are fire 4.) rogatories ap When faced with that the and reasonable portioning negligence, was asked inference warranted the record
7 n ka, proximate, In direct immediate that case a [plaintiffs] company survey cause of the loss of automo- losses suffered when a broke out helicopter company damaged fire which and com- a gravity bile me- premises over which menced ter it gravity used to conduct [defend- control, spread had no and which ... surveys in region seismic Sound Norton ant] repair room and Alaska, sales type not dissimilar to the [defendant’s] garаge. engaged work the instant survey company case. The based its claim review, in the case under Likewise property business proximate, direct and immediate cause disruption helicopter company's Acculog’s equipment van and ligence. Survey work was halted for 25 engine a fire which out in the broke days a new gravity until meter could be through spread no fault of gave obtained. trial court the follow- logging unit. Peterson Ford did *4 ing jury instruction: plaintiffs’ comparative the have defense of expressed The court the negligence. trial you If find that gravity the loss the might opinion question that there be a proximately meter was caused the damages, but that issue not [helicopter of the company] us and we decline to it. before address you may award damages as tiff compensate such amount as will for hold that court committed We the trial interruption, including the business submitting but prejudicial error in standby not to question limited the time of plaintiffs’ comparative the the crew the and the aboard vessel cоsts ligence. delay completion
related to the
in
LOSS
PROFITS
OF
seismographic work for the client of
plaintiff.
defendant,
motion of
the trial
On
the
against plaintiffs
court directed
verdict
complementary
Two
instructions dealt with
profits
they
issue of lost
because
did
on the
party’s duty
to avoid loss and minimize
they
produce
not
evidence that
had entered
damages, and
damages proximately
with
any binding
they
into
contracts
were
resulting
wrongful
from the
act. The re-
they
perform
to
lost
van
unable
when
their
viewing
upheld
those instructions and
equipment.
court also
its
The
based
proper.
awarded thereunder as
ruling
that on the evidence Again,
measure of
the
for loss of
court,
befоre
not
then
could
property
use of
was set out
State v.
profit
any job
concluded
have
what
Alaska,
Stanley,
would
been. Defendant’s motion
Stanley
fishing
had lost his
boat as a
crab
supported by
verdict
its
a directed
Damages
result
negligence.
of the state’s
profits
that
could
be
argument
lost
were
for
use
awarded
for 18
understanding
upon an
between Ac-
based
months,
period required
replace
to
customers)
(one
culog and
of its
Amoco
general
recognizing
vessel. After
ob-
did not
level
a legally
that
rise to the
jective
injured per-
place
of tort law to
an
binding
misperceives
contract. Defendant
position
nearly
possible
son in a
as
аs
seeking
test.
lost
position
occupied
he would
but
have
for
resulting
con-
from
breach of
tort,
applied
the defendant’s
the court
contracting
Damages
party.
tract
objective
the loss of
vessel:
“[T]he
tort
sounding
claimed in an
were
action
be the
share
would
vessel’s
noncontracting party.
against
gross earnings
anticiрated
reasonably
involved,
period
expendi-
...
less
general
damages,
that all
rule
chargeable
tures which would have been
general, which are
whether
or
caus
Id.
owner.”
at 1293.
ally connected
tortious actions
party’s
to a
recognized
profits may
We have
are recoverable was restated
ERA Heli
lost
Alaska, Inc., Alas- be recovered when the
copters,
Digicon
Inc. v.
evidence submitted
OAKS,
(concurring):
Justice
estimating them with
a basis
provides
certainty.
the evidence
reasonable
While
opinion,
I
in the Court’s
but be-
concur
as to allow the
indefinite
must not be so
reserving judgment on
lieve that instead
amount,
their
some
as to
speculate
mitigatе
plaintiffs “failure to
the effect of
uncertainty is tolerable. Cook
degree of
give guidance
damages,” this Court should
Warnick, Utah, 664
Associates,
v.
Inc.
court should handle
on how the district
Penelko,
(1983);
Inc. v. John
P.2d 1161
damages on the
apportionment
issue
Utah,
Inc.,
Assocs.,
HALL,
reduction,
the de-
This
on which
applies
J.,
proof,
in the result.
fendant has the burden of
STEWART,
concurs
HALL,
plaintiff
Chief
whеre the
is found to have been
Justice:
negligent
failing mitigate
or avoid
brought
Plaintiff
this action to recover
negligence is
and where this
injuries
guest passen-
sustained while a
found to have increased his total
ger
jeep operated by
in a
defendant that
if
beyond what he would have suffered
he
attempting
rolled over while
an off-road
had not been
in this manner.
hill climb.
step
under this
The reduction
granted summary judg-
The trial court
centage
total
that is at-
upon
ment
favor of defendant
reliance
plaintiffs negligence
in fail-
tributable
Statute, U.C.A., 1953,
the Guest
41-9-1.
ing mitigate
or avoid
appeals,
cross-ap-
Plaintiff
and defendant
process
two-step
specified
here is the
peals thе court’s denial of his motion to
applied by
one described and
the North
dismiss a
second cause
action based on
Supreme
Dakota
Court
Halvorson v.
intoxication and willful misconduct.
N.D.,
Voeller,
(1983),
STEWART, HOWE, and DUR- OAKS HAM, JJ., concur. Plaintiff, BOTTOMS, Appellant
Douglas Cross-Respondent, Defendant, HUNSAKER, *6 O.
Scott Cross-Appellant.
Respondent and BUNKER, By Through Melissa her No. 17775. MECHAM, general guardian, Karen Plaintiff-Appellant, Supreme Court of Utah.
1,May MOHLMAN, Defendant-Respоndent. Ted No. 17286. Supreme Court of Utah. Black, City, L. Salt Lake John 1,May
tiff, cross-respondent. appellant and Bullock, City, Roger H. Salt Lake
defendant, cross-appellant. respondent and car, Y, $100,000 driving findings, driving On the basis X of these
1. Assume: get percent, motorcycle, Y is not wear- award should be reduced in an accident. contributing percent X is 60 which аccounts for Y’s a helmet. The finds Hence, "injury” causing the accident cause of accident. the award is [the liable for Y, $60,000. 78-27-37], making motorcy- diminished to under clist, $60,000 percent the acci- should now be reduced to the liable for [damages] have avoid- extent that Y’s would have been dent. The also finds Y would helmet, i.e., [damages] percent injuries had he worn a [avoided] of his if he ed 60 helmet; adjustment percent liable for cent. This $24,000. leaves a total award of had worn a causing X is 40 |100,000 [damages]. proves Y’s Y at 121-22 n. 2. Id.