DAVID CHRISTIANSEN as personal representative of THE ESTATE OF KASEY CHRISTIANSEN, DAVID CHRISTIANSEN, KAITLIN CHRISTIANSEN, and JOCALYN CHRISTIANSEN as heirs of KASEY CHRISTIANSEN v. HARRISON WESTERN CONSTRUCTION CORP.
No. 20180569
SUPREME COURT OF THE STATE OF UTAH
November 4, 2021
2021 UT 65
Heard November 15, 2019. On Appeal of Interlocutory Order. Third District, Salt Lake. The Honorable James D. Gardner. No. 170905685.
Attorneys:
Judson D. Burton, Murray, for appellants
Brett N. Anderson, Scott R. Taylor, Salt Lake City, for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE authored a concurring opinion.
JUSTICE HIMONAS authored a concurring opinion, in which JUSTICE PEARCE and JUSTICE PETERSEN joined.
Introduction
¶1 Kasey Christiansen was killed at work when the Caterpillar mini-excavator he was operating rolled down the mountainside in Little Cottonwood Canyon. Mr. Christiansen‘s Estate, father, and daughters (“the Christiansen parties“) sued his employer, Harrison Western, for damages. But the district court dismissed their lawsuit based on a provision of the Workers’ Compensation Act that bars employees from suing their employers over work-related injuries. The Christiansen parties appeal this dismissal, arguing that a narrow exception to the Act, which allows employees to sue over injuries caused by an employer‘s intentional act, applies to Mr. Christiansen‘s fatal injuries because they were the result of Harrison Western‘s intentional act. Because the Christiansen parties have failed to sufficiently plead that Harrison Western acted intentionally, we affirm the district court‘s dismissal of their complaint.
Background1
¶2 In 2016, the Utah Department of Transportation (“UDOT“) awarded Harrison Western a public contract to install a Blackjack Gazex avalanche control system near Alta Ski Resort in Little Cottonwood Canyon. According to UDOT, the project “require[d] special procedures relating to safety” based on the “steep and mountainous terrain at elevations from 9300 to 9800” feet. Based on this steep terrain, UDOT believed that a “walking excavator[],” which is a “type of excavator with legs that hold to steep surfaces,” was “the proper type of excavator for mountainous terrain.”
¶3 Although Harrison Western “knew that a walking excavator was essential for the safe completion” of the project, and it had “extensive experience” in “high angle and alpine
¶4 Harrison Western‘s superintendent of the project, Erik Sowell, directed Mr. Christiansen to operate the mini-excavator on the mountainside to “dig a trench line for . . . gas lines” under the Gazex machine. On multiple occasions while performing this work, Mr. Christiansen “slid down the mountain” in the mini-excavator. Harrison Western was aware of these slide-offs, but took no mitigation measures to prevent future slide-offs or rollovers. And after one slide, Mr. Christiansen was “told . . . to take the rest of the day off.”
¶5 On October 12, 2016, Mr. Christiansen was operating the mini-excavator “on an approximate 40-degree slope” when it rolled down the mountain. He “was ejected and sustained significant head injuries and evisceration of his abdomen.” He died as a result of his injuries.
¶6 The Christiansen parties brought claims against Harrison Western for negligence, known or expected injury, and vicarious liability. Harrison Western moved to dismiss, arguing that the Workers’ Compensation Act‘s exclusive remedy provision—which prevents most tort suits against employers—barred the Christiansen parties’ claims.
¶7 In response, the Christiansen parties moved for leave to amend and submitted to the district court a proposed Second Amended Complaint in which they alleged that Harrison Western intentionally injured Mr. Christiansen. In support of this allegation, the Christiansen parties pointed to the following facts: (1) Harrison Western had experience with similar projects on mountainous terrain; (2) it was aware that a walking excavator was necessary based on UDOT‘s bid summary; and (3) it failed to take additional
¶8 After considering the motion to dismiss and the Christiansen parties’ proposed Second Amended Complaint, the district court dismissed their claims against Harrison Western, concluding that the Christiansen parties had failed to allege that Harrison Western had acted intentionally and that the proposed changes to their complaint did not change this.
¶9 We granted the Christiansen parties’ petition for permission to appeal this interlocutory order.2 We have jurisdiction under
Standard of Review
¶10 “A
Analysis
¶11 In dismissing the Christiansen parties’ complaint and denying their request to amend, the district court concluded that their complaint failed to allege any set of facts supporting their claim that Mr. Christiansen‘s fatal injuries were the result of an intentional act, and that the additional facts in their proposed Second Amended Complaint did not cure this defect. Even when we view the alleged facts in the light most favorable to the Christiansen parties and “indulge all reasonable inferences in [their] favor,” we conclude that the facts and inferences are insufficient to support a claim that Harrison Western intended Mr. Christiansen‘s injury.6 Accordingly, the Workers’ Compensation Act‘s exclusive remedy provision bars the Christiansen parties’ claims. As a result, we affirm the district court‘s dismissal of their complaint.
¶12 In so doing, we consider the additional facts the Christiansen parties presented in their proposed Second Amended Complaint. Because we agree with the district court that these additional facts do not cure the defect in the Christiansen parties’ complaint, we conclude that their proposed amendment was futile. Accordingly, we also affirm the district court‘s denial of the Christiansen parties’ request to amend.
I. The Christiansen Parties Fail to State a Claim Upon Which Relief Can Be Granted Because We Cannot Reasonably Infer Harrison Western Believed Mr. Christiansen‘s Fatal Injuries Were Virtually Certain to Occur
¶13 The Christiansen parties argue that the district court erred in applying the Workers’ Compensation Act‘s exclusive remedy provision to dismiss their complaint. Under the Act, employees are barred from suing their employers for injuries stemming from workplace accidents—except where the employer intended the harm. This exception is called the intentional-injury exception. A party‘s claim can fall within the intentional-injury exception where the party pleads facts leading to a reasonable inference7 that the
that, at most, would support a conclusion that Harrison Western acted with willful negligence, not intentionally, they fail to allege sufficient facts to bring their claims within the intentional-injury exception of the Act. As a result, we affirm dismissal.
¶14 In determining whether the Christiansen parties’ complaint contains sufficient facts to fall within the Act‘s intentional-injury exception, we must first consider the purpose and language of the Act.9 This is because the language of the Act, and our case law interpreting that language, sheds light on the narrow nature of the exception‘s scope.
¶15 The Workers’ Compensation Act is a comprehensive administrative scheme that provides the exclusive remedy for accidental workplace injuries.10 Its “primary objective” is to “remove industrial negligence, in all its forms, from the concept of the law of tort.”11 To accomplish this objective, employers are relieved under the Act‘s exclusive remedy provision of civil liability for an employee‘s workplace injuries:
The right to recover compensation pursuant to this chapter for injuries sustained by an employee, whether resulting in death or not, is the exclusive remedy against the employer . . . and the liabilities of the employer imposed by this chapter is in place of any and all other civil liability whatsoever, at common law or otherwise, to the employee . . . on account of any accident or injury or death, in any way contracted, sustained, aggravated, or incurred by the employee in the course of or because of or arising out of the employee‘s employment, and an action at law may not be maintained against an employer . . . based upon any accident, injury, or death of an employee.12
In exchange for their ability to sue employers for civil damages, injured employees receive a “simple, adequate, and speedy” remedy
without the burden of showing the employer‘s fault.13 In other words, in exchange for receiving a no-fault recovery under the workers’ compensation system, employees may not sue their employers for on-the-job injuries.
¶16 But the Act does not protect employers from liability for injuries resulting from the employer‘s intentional act.14 In Bryan v. Utah International, we held that the Act did not prohibit the employee‘s claim for damages, because a supervisor “intentionally caused a large cable to hit [an] employee.”15 In so doing, we reasoned that the exclusive remedy provision does “not insulate an employer from liability”16 for a “wrongful act” that is “not only done knowingly, but with the knowledge that it was wrongful to
¶17 But it is not always clear that an employer acted intentionally to injure an employee. In Helf v. Chevron U.S.A., Inc., we recognized that, unlike the alleged battery in Bryan, some “injury-producing activities” are not “clearly intentional.”19 Because an employer‘s intent is not always clear, we explained that an employee‘s injury can fall within the intentional-injury exception when the employee can show that the employer “knew or expected that injury would occur as a consequence of his [or her] actions . . . .”20
¶18 So, after our decision in Helf, an employee can successfully invoke the intentional-injury exception at the pleading stage in one of two ways. First, the employee can allege “that the actor desired the consequences of his [or her] actions.”21 Second, the employee can allege, by pleading facts suggesting that the employer believed the
employee‘s injury was “virtually certain to result,” that the employer “knew or expected that injury would occur as a consequence of his [or her] actions.”22 Because, in the absence of an admission of guilt, an employer‘s subjective belief “can only be inferred from the surrounding circumstances,” an employee must assert sufficient facts to support a reasonable inference that the employer knew the injury was virtually certain to occur.23
¶19 In order to assert sufficient “surrounding circumstances” that the employer believed injury was virtually certain to occur, an employee must plead more than an assertion that the employer knew there was some risk of injury. In other words, the employee must do more than assert that “some injury was substantially certain to occur at some time.”24 Provisions in the Act make this clear.
¶20 The Act explicitly covers injuries caused by an employer‘s willful conduct. That is, willful conduct alone is not sufficient to invoke the intentional-injury exception of the Act. For example, in
the Act by invoking the intentional-injury exception, an employee must allege facts from which it can reasonably be inferred that the employer‘s conduct rose beyond gross negligence or willful conduct.
¶21 This means that to satisfy the “virtually certain” standard, an employee must allege “[m]ore than [the employer‘s] knowledge or appreciation of risk”26 or that
¶22 We have held that injury is virtually certain to occur when an employer directs an employee to perform a specific task with the knowledge or expectation that “the assigned task will injure the particular employee that undertakes it.”29 And we have imputed this mental state to an employer who is aware that an assigned task has previously caused injury under the same circumstances and then failed to take any measures to create a different outcome.30 Our past applications of the “virtually certain” standard suggest that injury is virtually certain when, based on the alleged facts, it would be unreasonable to believe an employer who claims she did not know that the employee‘s injury would be the consequence of her action.
¶23 The facts underlying our decision in Helf I provide an example of surrounding circumstances in which it would be unreasonable to believe an employer who claimed he or she did not know an employee‘s injury was virtually certain to occur. In that case, Ms. Helf alleged that her employer had instructed another employee to neutralize the toxicity of caustic sludge through a process the employer “knew or should have known” “would create noxious, dangerous, and harmful vapors.”31 When the neutralization process was first initiated, a chemical reaction with the caustic sludge “released a noxious purple cloud” containing a number of “toxic chemical compounds.”32 This cloud drifted across the employer‘s premises, “setting off alarms and causing several of [the employer‘s] employees, some of whom were hundreds of yards from the [neutralization site], to fall ill and be sent home.”33
¶24 In the aftermath of this incident, the employer did not “take any safety measures.”34 Instead, the employer “decided to resume the process later in the evening after a shift change and under cover of night.”35 When Ms. Helf reported to work later that night, her night-shift supervisor directed her to re-initiate the neutralization process.36 When Ms. Helf did so, it “produced the same predictable and violent reaction that occurred earlier that day.”37 As a result, Ms. Helf suffered acute and permanent neurological damage.38 We concluded that the facts surrounding Ms. Helf‘s injury were sufficient to reasonably infer that her employer believed injury was virtually certain to occur.39
¶25 In so concluding, we focused on three factual circumstances alleged in Ms. Helf‘s complaint, which, when viewed in the light most favorable to her, demonstrated her employer believed injury
was virtually
¶26 Based on these factual circumstances, we held that Ms. Helf properly pled the intentional-injury exception because the “alleged facts . . . could convince a reasonable jury that her injuries were the expected result of re-initiating the neutralization process.”45 We note that our decision in Helf I hinged heavily on the recent history of prior injury: just a few hours earlier, injuries were actually sustained when a different employee initiated a neutralization process the employer knew to be dangerous. With full knowledge that the dangerous process could in fact cause injury, the employer waited until nightfall and ordered Ms. Helf, an unsuspecting employee, to perform the same dangerous task under the same dangerous conditions, an order which “produced the same predictable and violent reaction that occurred earlier that day.”46 So under Helf I, where an employer knows that a specific task previously caused injury to occur, assigns the same task to another employee, and then fails to make any changes that would create a different outcome, we can reasonably infer that the employer believed injury was virtually certain to occur. The allegations in the Christiansen parties’ complaint do not rise to this level.
¶27 The Christiansen parties identify two surrounding circumstances that they allege support a reasonable inference that
Harrison Western believed injury was virtually certain to occur. First, they allege that Harrison Western knew a walking excavator, rather than a mini-excavator, was necessary to safely complete Mr. Christiansen‘s assigned project. Second, they allege that before the rollover, the mini-excavator slid down the mountain on multiple occasions—a fact of which Harrison Western was aware. We conclude that neither of these factual circumstances reasonably implies that Harrison Western believed injury was virtually certain to occur. As a result, the Christiansen parties fail to state a claim, and the district court did not err in granting Harrison Western‘s motion to dismiss.
A. Harrison Western‘s Failure to Rent a Walking Excavator Does Not Support a Reasonable Inference That It Intended Mr. Christiansen‘s Fatal Injuries
¶28 The Christiansen parties allege that Harrison Western believed injury was virtually certain to occur because it knew that a walking excavator, and not a mini-excavator, was necessary to safely complete Mr. Christiansen‘s assigned project. For support, the Christiansen parties point to UDOT‘s bid summary, which informed all bidders, including Harrison Western, that “special procedures relating to safety” were required based on the “steep and mountainous terrain.” UDOT‘s bid summary further anticipated the need for a “walking excavator” for “digging the road and trenches for the [G]azex avalanche control units.” The Christiansen parties further allege that Harrison Western represented it had “specialized expertise” based on its prior success in “performing construction in high angle and alpine environment” with “walking excavators,” and was awarded the UDOT contract, in part, based on these representations. But Harrison Western‘s knowledge that a walking excavator,
¶29 As we have explained, in order to adequately plead the intentional-injury exception, it is not enough that an employee allege that an employer knew or appreciated risk.47 And an allegation that an employer has subjected its employees to an unsafe work
environment because the employer failed to “provide . . . safety devices” is nothing more than such an allegation.48
¶30 In fact, Harrison Western‘s alleged conduct seems akin to “willful failure” explicitly addressed by
¶31 In sum, the Christiansen parties’ allegations regarding Harrison Western‘s failure to provide a safer working environment and safer equipment do not support a reasonable inference that Harrison Western believed Mr. Christiansen‘s injuries were virtually certain to occur. Instead, they suggest merely that Harrison Western knew or appreciated the risks surrounding Mr. Christiansen‘s work. In other words, the alleged facts suggest, at most, that Harrison Western‘s failures were the type of willful conduct explicitly covered by the Act. Accordingly, these allegations are insufficient to trigger the intentional-injury exception to the Act.
B. The History of Prior Slides Does Not Create a Reasonable Inference That Harrison Western Intended Mr. Christiansen‘s Fatal Injuries
¶32 The Christiansen parties also allege that Harrison Western believed injury was virtually certain to occur because Mr. Christiansen previously “slid down the mountain on multiple occasions.” But this fact does not support the requisite reasonable inference because the prior slides did not result in injury and there is no alleged connection between the prior slides and the fatal rolling incident.
¶33 When employees seek to avail themselves of the intentional-injury exception, they must allege a direct connection between the prior incidents and the injury-producing incident that
rises above a mere probability of injury.50 This is because where an employee alleges he or she was injured while engaged in a task that had previously caused a substantially similar injury in a substantially similar manner, and that the employer failed to take any measures to avoid the second injury, then a fact-finder could reasonably infer that the employer knew the second injury was virtually certain to occur.51 For example, in Helf I, we could directly connect the prior injury to Ms. Helf‘s injury: after the initial neutralization caused injury, the employer directed Ms. Helf to re-initiate the neutralization process in the same manner and under the same conditions.52 And so we could reasonably infer that her employer expected the same result – an injurious
¶34 But where an employee alleges only that he or she was injured while engaged in a task that had previously led to incidents that came close to causing an injury, or otherwise indicate there was a risk of injury, the employee has suggested only that injury was probable, not virtually certain.54 The Christiansen parties’ allegations regarding previous slides fall into this category.
¶35 The Christiansen parties allege that Mr. Christiansen previously “slid down the mountain on multiple occasions” when he operated the mini-excavator on the mountainside and that after one of these slides, Eric Sowell, the Harrison Western project supervisor, sent Mr. Christiansen home. They also allege that, despite the previous slides, Harrison Western failed to mitigate the danger of
future slide-offs or rolls because it failed to provide the proper equipment to safely complete the project.
¶36 On appeal, the Christiansen parties equate their allegation of a history of slides to the history of prior injury in Helf I. But these facts are not equivalent: in Helf I, the key fact was the history of prior injury, not the history of a prior risk of injury.55 A task that carries some risk of injury, but has never resulted in injury, cannot be virtually certain to cause injury without additional factual support. And here, Mr. Christiansen used the mini-excavator on multiple occasions without incident or injury. So while we can reasonably infer that a history of prior slides meant there was a risk of injury, without more, we cannot infer that injury was virtually certain.
¶37 We further conclude that the fact that the excavator had previously slid down the hill does not mean that Mr. Christiansen‘s rollover injury was virtually certain to occur. The Christiansen parties argue that the history of slides would allow a fact-finder to reasonably infer that the mini-excavator would one day roll. So, according to them, because the prior slides show that the excavator was more likely to roll, and an injury is virtually certain to occur when an excavator rolls, a fact-finder could reasonably infer that Harrison Western believed injury was virtually certain to occur when it directed Mr. Christiansen to continue excavation the day he was killed. But this argument falls short.
¶38 The fact that Mr. Christiansen used the excavator on multiple occasions without injury, and without the excavator rolling over, strongly supports the conclusion that Harrison Western did not believe Mr. Christiansen‘s rollover injury was virtually certain. After multiple slides that did not cause injury, Harrison Western directed Mr. Christiansen to operate the excavator in the same manner and under the same conditions. Although on this final occasion, the excavator rolled, which resulted in Mr. Christiansen‘s fatal injuries, this was a very different result than what had occurred with the prior slides. Based on these facts, a fact-finder could not reasonably infer that Harrison Western believed the excavator was virtually certain to cause Mr. Christiansen‘s injuries.
¶39 In sum, the facts alleged in the Christiansen parties’ complaint do not reasonably imply that Harrison Western believed Mr. Christiansen‘s injuries were virtually certain to occur. In other words, Harrison Western‘s failure to rent the proper equipment and
its knowledge of the excavator‘s previous slides suggest that, at most, Harrison Western was grossly negligent but did not act intentionally. As a result, the district court did not err in granting Harrison‘s Western‘s
II. The Christiansen Parties’ Proposed Second Amended Complaint Is Futile Because It Fails to Withstand Harrison Western‘s Motion to Dismiss
¶40 The Christiansen parties also argue the district court erred in denying their motion to amend. They argue they properly pled the intentional-injury exception in their proposed Second Amended Complaint, and so their request to amend was not futile.
¶41 When a plaintiff requests leave to amend its complaint, “the court should freely give permission when justice requires.”56 But justice “does not require that leave be given ‘if doing so would be futile.‘”57 A motion to amend is “futile if the proposed amendment would not withstand a motion to dismiss . . . .”58
¶42 In their proposed Second Amended Complaint, the Christiansen parties include a number of facts that were not included in their first complaint. They argue these facts support their conclusion that the intentional-injury exception applies. First, they provided details of the contract between UDOT and Harrison Western, including UDOT‘s anticipation that a walking excavator was needed based on the project‘s steep terrain. Second, they added that Harrison Western knew a walking excavator was needed based on its extensive experience with similar projects. And third, they alleged that Harrison Western failed to take additional safety precautions after the excavator slid on prior occasions.
¶43 We conclude that, even when these additional factual details are considered, the allegations in their complaint were insufficient to withstand a motion to dismiss. Accordingly, the Christiansen
parties’ proposed Second Amended Complaint was futile.59 As a result, we affirm the district court‘s denial of the Christiansen parties’ motion to amend.
Conclusion
¶44 We hold that the Christiansen parties fail, in their original complaint, to allege sufficient facts to support a reasonable inference that Harrison Western believed Mr. Christiansen‘s fatal injuries were virtually certain to occur. As a result, their claims do not fall within the intentional-injury exception to the Workers’ Compensation Act. Their claims are therefore barred by the Act and the district court‘s dismissal of their complaint was proper. We also hold that the Christiansen parties’ proposed amendment to their complaint was futile because, even when the additional factual allegations in the amended complaint are considered, they do not support application of the exception. For this reason, the Christiansen parties’ request for leave to amend was futile, and the district court did not err in denying it. Accordingly, we affirm the district court on both points.
ASSOCIATE CHIEF JUSTICE LEE, concurring:
¶45 The Workers’ Compensation Act has long provided that an administrative action under the statute is the “exclusive remedy” for any “injuries sustained . . . on account of any accident or injury or death, in any way contracted, sustained, aggravated, or incurred by the employee in the course of or because of or arising out of the employee‘s employment.”
¶46 Notwithstanding these provisions, this court long ago adopted an intentional-injury exception to the exclusive remedy provision of the Workers’ Compensation Act. See Bryan v. Utah Int‘l, 533 P.2d 892 (Utah 1975). In the Bryan case, the majority held that the Workers’ Compensation Act does not insulate an employer from liability for a “wrongful act” that is “not only done knowingly,” but “intentionally” in the sense of being done “with the knowledge that it was wrongful to do it.” Id. at 894 (citations omitted). The Bryan majority thus suggested the
¶47 The Bryan majority position was challenged in a dissent. The dissent highlighted the broad, “all inclusive” terms of the statute‘s exclusive remedy provision—a provision making a workers’ compensation action the sole remedy for all claims for “any accident or [any] injury” sustained in the course of employment. See id. at 895 (Crockett, J., dissenting) (alteration in original) (quoting
¶48 Our subsequent case law has applied, explained, and narrowed the intentional-injury exception established in Bryan. We have held that a common-law tort claim is available only for conduct “beyond gross negligence or willful conduct” – conduct that is “intentional” in the sense that the employer not only knew of a risk of harm to an employee but either “desired” the imposition of such harm or believed that it was “virtually certain” to occur. Supra ¶¶ 17-20 (citing cases). This “virtually certain” standard is at issue in
this case. And the majority adds important clarity to the standard in our case law, explaining that it is not enough for an employer to have “knowledge or appreciation of risk” in the workplace in general. Supra ¶ 21. Instead, the employer must have the knowledge or expectation of a “history of prior injury, not the history of a prior risk of injury.” See supra ¶ 36. “A task that carries some risk of injury, but has never resulted in injury, cannot be virtually certain to cause injury without additional factual support.” Supra ¶ 36.
¶49 This is an important clarification. It is crucial to maintaining a distinction between “intentional injury” under our cases and “grossly negligent” or “willful” conduct, which are expressly covered by the Workers’ Compensation Act.
¶50 I concur in the court‘s opinion in full. I do so despite my conclusion that the dissent in the Bryan case “had the better of the argument” under the statute as a matter of first-impression. Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 92 n.1, 361 P.3d 63 (Lee, A.C.J., dissenting). This has been and is still my view. But I concur fully in the majority opinion on the basis of the doctrine of stare decisis.
¶51 The “rule of law” would be impossible without a doctrine of stare decisis. State v. Wilder, 2018 UT 17, ¶ 19, 420 P.3d 1064. Our courts would be pressed “almost to the breaking point if every past decision could be reopened in every case.” BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 149 (1921). For that reason, our case law has long endorsed a presumption of deference to past precedent. See Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553.
¶52 The presumption, of course, is rebuttable. No one views our precedent as cemented permanently in place. The key question thus goes to the standards for rebutting the presumption of deference to our past decisions.
¶53 Our case law has identified “two broad factors” that we apply to “distinguish between weighty precedents and less weighty ones: (1) the persuasiveness of the authority and reasoning on which the precedent was originally based, and (2) how firmly the precedent has become established in the law since it was handed down.” Eldridge, 2015 UT 21, ¶ 22. These factors are a good starting place for the stare decisis inquiry. But they leave open some key points of indeterminacy—in the way the factors are defined and in how they interact with each other.
¶54 This is a gap in our doctrine as it now stands. In an appropriate case, we should fill the gap by clarifying these points. Until we do so, we will not be fully fulfilling the aspirations of a “law of precedent“—a statement of a set of rules that restrain
“judicial discretion” and “promote[] public confidence in the judiciary.” Wilder, 2018 UT 17, ¶ 19. And we will leave ourselves open to the concern that we may be shaping the factors in one way when we wish to preserve our
¶55 My colleagues have challenged my approach to stare decisis in a few recent cases. They have asserted that I have been too “willing” to “uproot” our precedent60 and suggested that my approach “doesn‘t respect” the doctrine of stare decisis.61 I disagree with these critiques. Yet I concede that my own writing to date has left some aspects of my position on the stare decisis standard unstated.
¶56 I write separately here to state my view more clearly. I first highlight some elements of our Utah standards of stare decisis that are as yet unresolved. Second, I identify some historical material that could help clarify and refine our doctrine in a manner that can better restrain our judicial discretion going forward. Third, I close by explaining how my decision to defer to our Bryan line of cases flows directly from the historical standards that are most firmly rooted in historical practice.
I
¶57 Our case law has identified “two broad factors” that guide our judgment in distinguishing the “weighty” precedents worthy of substantial deference from the “less weighty” ones more susceptible to overruling: (1) the “persuasiveness” of a prior decision and (2) “how firmly” it “has become established in [our] law.” Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553. These are important starting points that align with standards prescribed by the United States Supreme Court and other bodies.62 But in our court, as
elsewhere, these starting points leave open some gaps—imprecision in the content of the two factors, and indeterminacy in the interplay between them.63
¶ 58 We have long said that we start by looking to the “persuasiveness” of a prior decision but have not been clear on what we mean by that. Sometimes we treat this factor as an inquiry into whether our past cases reached results that we view as correct in light of our own contemporary analysis.64 In
¶ 59 A similar imprecision appears in our analysis of the second factor identified in our cases—as to “how firmly the precedent has become established in the law since it was handed down.” Eldridge v. Johndrow, 2015 UT 21, ¶ 22. On this factor, we have noted that myriad “considerations” can come into play, “including the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people‘s reliance on the precedent would create injustice or hardship if it were overturned.” Id. We have identified a broad range of “reliance” interests and “hardship[s]” of relevance to this inquiry, but stopped short of specifying the nature of the relevant reliance interests or clarifying the relative weight to be given to any such interests.66 And we have not indicated whether our standard requires reliance in the form of concrete ordering of a person‘s legal affairs (such as by writing a contract or will) or whether widespread acceptance of our past statements as “the law” might be sufficient.
¶ 60 We have also stopped short of indicating how the two Eldridge factors are supposed to interact with each other. And we have compounded this problem by sometimes introducing a third factor. See State v. Robertson, 2017 UT 27, ¶ 30, 438 P.3d 491 (“We consider at least three factors when deciding whether to overrule a prior interpretation of a statute“: the two factors listed in Eldridge “and the strength of the arguments for changing that interpretation.” (emphasis added)). The third factor mentioned in the Robertson case is a malleable one. It asks whether there are “policy arguments” or “practical factors” that tell us whether “more good than harm will come by departing from precedent.”67 Id. ¶ 38 (citations and internal quotation marks omitted).
¶ 61 These are all concerns for a doctrine that seeks to cabin judicial discretion and promote decisionmaking by the rule of law. These goals suggest the need to clarify the content of the Eldridge factors and explain how the factors interact. Our pursuit of predictability
II
¶ 62 In the paragraphs below I first present some historical material of relevance to the above-noted points of imprecision in our Eldridge line of cases. I then outline how I would refine our law of stare decisis by adopting at least some of the deeply rooted elements of the historical doctrine of stare decisis. Finally, I highlight some important upsides of providing greater clarity in our doctrine of stare decisis—upsides that in my view outweigh some admitted downsides.
A
¶ 63 History can inform and refine our approach to the doctrine of stare decisis on all three of the points of imprecision in our case law.
1
¶ 64 Historically, the threshold stare decisis inquiry centered on whether a prior decision was “demonstrably erroneous“—objectively wrong in the sense of being a clear departure from the ordinary meaning of a governing statute or constitutional provision. Where a past decision was not demonstrably erroneous, courts were bound by it. But a decision shown to be not just wrong but demonstrably so was more open to reconsideration.
¶ 65 Two key concepts informed the historical inquiry into whether an alleged error in a past decision was demonstrable: (1) the degree of indeterminacy of many written laws and (2) the resulting need to resolve ambiguous language. Courts and legal theorists recognized that a certain level of ambiguity or vagueness in written laws was unavoidable in light of the inherent indeterminacy of language.68 And they “believed that precedents would operate” within the “range of indeterminacy” in written laws to resolve points of ambiguity and vagueness.69
¶ 66 The upshot was that not all precedents were afforded the same weight. “[W]hen the early interpreters of a statute or constitutional provision that was obscure or ‘controverted’ gave it a permissible construction, they helped to ‘settle its meaning’ and bound ‘subsequent interpreters...even if [the subsequent interpreters] would have adopted a different [construction] as an original matter.‘”70 But if “subsequent interpreters remained convinced that a prior construction went beyond the range of indeterminacy, they did not have to treat it as a valid gloss on the law.”71
¶ 67 This framework was “remarkably widespread”72 and reigned throughout the nineteenth century, including during the framing of our Utah Constitution.73 This
2
¶ 68 In historical doctrine, “[j]udges frequently indicated that if past decisions had established ‘rules of property‘—if titles had passed in reliance on them or if people had otherwise conducted transactions in accordance with them—the resulting reliance interests could provide a reason to adhere to the decisions even if they were now deemed erroneous.”76 This is a form of what is sometimes referred to as “specific reliance.”77 To this day, the law of stare decisis gives this kind of reliance special weight. Courts routinely hold that “precedent that creates a rule of property—a widely relied-on legal principle established by a judicial decision or series of decisions relating to title to real, personal, or intellectual property—is generally treated as inviolable.” BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 421 (2016).
¶ 69 Over time, the law of stare decisis sometimes has been extended to encompass other categories of reliance interests—interests that include “governmental reliance,” meaning “reliance by Congress, the executive branch, or another governmental unit“; “doctrinal reliance,” meaning “reliance by the judiciary itself that arises when many cases depend upon a foundational precedent;” and “societal reliance,” which has reference to “the effect of the precedent on shaping societal perceptions.”78 But these sorts of interests are not consistently credited in the case law.79 And they are more difficult to define or to weigh in any consistent fashion.80
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¶ 70 In historical practice, courts seem to have mediated the tension between the prerogative of overruling demonstrably erroneous precedents and the concern for reliance
B
¶ 71 I would refine our law of stare decisis by adopting at least some of the elements of the historical framework outlined above. At a minimum, I would clarify (1) that our inquiry into the “persuasiveness” of our precedent should turn on whether a past decision is “demonstrably erroneous,”86 (2) that a precedent that sustains “specific reliance” interests merits strong deference, and (3) that the foregoing considerations are balanced on a sliding scale in which the showing of demonstrable error must be stronger where the reliance interests at stake are greater.
¶ 72 These considerations are deeply embedded in the historical case law outlined above—including in our Utah cases. And they can advance the interests of transparency and constraint on our discretion without eliminating elements of discretion that are necessary or inevitable.
¶ 73 I leave for a future date the question of how to handle a number of other problems highlighted in my historical discussion above. I stop short of addressing, for example, the question of how to more precisely define categories of reliance interests (“governmental,” “doctrinal,” and “societal” reliance), and the question of how those reliance interests should be accounted for in weighing the factors under Eldridge. These and other questions are less clearly established in the historical case law. And they are not implicated by my decision in this case. So I leave them for another day.
C
¶ 74 I am not suggesting that the historical approach to stare decisis is required as a matter of our constitutional judicial power.87 Nor am I asserting that the historical formulation eliminates all discretion from the stare decisis analysis. Even under the clarification that I propose, judges will still differ on
¶ 75 The clarification that I have in mind admittedly gives rise to downsides. If and when we move to increase the clarity of the content and operation of our standard of stare decisis, we will be detracting from the flexibility of the doctrine and limiting the discretion afforded to the judges who apply it.
¶ 76 Reasonable minds can differ on whether the upsides of clarification outweigh the downsides. The “rules versus standards” debate has long raged throughout our law.88 And I can see the argument for a more standard-like law of stare decisis.
¶ 77 That said, I am inclined to see more upside than downside in clarification of our law in this field. The doctrine of stare decisis is aimed at enhancing the stability of our law and inspiring confidence in the impartiality of the judiciary—by ensuring that our law does not duck and swerve with changes in judicial personnel.89 And our doctrine will fall short of those ideals if we fail to clarify the points of imprecision that I have highlighted.
III
¶ 78 In Bryan and its progeny, this court has identified and filled in an ambiguity in the Workers’ Compensation Act‘s use of the word “willful.” The question is whether the legislature left open the possibility of tort recovery for “intentional” acts or omissions despite its indication that “willful” conduct is covered exclusively under the Act. See
¶ 79 I have stated previously that the dissent in Bryan “seems to have had the better of the argument.” Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 92 n.1, 361 P.3d 63 (Lee, A.C.J., dissenting). That is still my view. But I nonetheless vote to uphold the Bryan line of cases despite the fact that I would have dissented from the Bryan decision if the question had been presented to me in the first instance. My decision in this case flows directly from the historical clarifications outlined above. First, the Bryan line of cases is not a “demonstrably erroneous” departure from the law but a plausible resolution of a point of ambiguity in our law. Second, our holdings in these cases sustains substantial elements of “specific reliance.” The Bryan line of decisions establishes a “square and straightforward” standard (made even more so by the important opinion handed down today) that has given rise to “substantial reliance interests on the part of employees and employers.” Id. ¶ 92.
¶ 80 These are sufficient grounds for deference to the Bryan line of decisions under the points of clarification to our Eldridge factors outlined above. I concur in the majority opinion on this basis.
JUSTICE HIMONAS,
¶ 81 I concur fully with the Chief Justice‘s well-reasoned opinion. I write separately only to respond to the Associate Chief Justice‘s concurring opinion. I disagree both with his substantive view of our stare decisis doctrine and with the way he expresses that view today. I begin with an overview of this court‘s established stare decisis framework and then explain why his suggestions are unnecessary and detrimental.
¶ 82 ”Stare decisis is a cornerstone of Anglo-American jurisprudence because it is crucial to the predictability of the law and the fairness of adjudication. Because stare decisis is so important to the predictability and fairness of a common law system, we do not overrule our precedents lightly.” Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553 (citations omitted) (internal quotation marks omitted). To further the goals of predictability and fairness, this court has over time developed many principles guiding when to overrule and when to respect precedent.
¶ 83 Relatively recently, we distilled these established stare decisis principles into “two broad factors.” Id. ¶ 22. We consider: “(1) the persuasiveness of the authority and reasoning on which the precedent was originally based, and (2) how firmly the precedent has become established in the law since it was handed down.” Id. We have explained that the first factor is contextual; our persuasiveness analysis necessarily depends on the relevant source of law.90 “The second factor encompasses a variety of considerations, including the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people‘s reliance on the precedent would create injustice or hardship if it were overturned.” Id.
¶ 84 Still, I recognize that stating our doctrine of stare decisis is the easy part. Applying the doctrine is the hard part—the hard work we expect appellate judges to do. Balancing the factors is a “difficult, slippery, and intimidating inquir[y].” Randy J. Kozel, Stare Decisis as Judicial Doctrine, 67 WASH. & LEE L. REV. 411, 466 (2010). And application of the doctrine “will always remain part art and part science. We should not expect it to become the stuff of algorithm.” Id. A decision to overrule precedent is rarely taken lightly or approached rashly. Past decisions form the foundation of our jurisprudence. An imprecise or poorly considered attempt to renovate that foundation can have profound and unseen impacts on the integrity of our case law. See, e.g., John Paul Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U. L. REV. 1, 4 (1983) (“The framework for most Court opinions is created by previously decided cases.“).
¶ 85 Nevertheless, this court has embraced the hard work and consistently applied Eldridge without significant trouble. See, e.g., Rutherford v. Talisker Canyons Fin., Co., 2019 UT 27, ¶¶ 31-74, 445 P.3d 474 (going through persuasiveness in depth, before turning to our “firmly established” factors and analyzing them); State v. Sanders, 2019 UT 25, ¶ 38, 445 P.3d 453 (noting the interplay between the Eldridge factors); id. ¶¶ 36-42 (analyzing the Eldridge factors); C.R. England v. Swift Transp. Co., 2019 UT 8, ¶¶ 28-39, 437 P.3d 343 (analyzing the Eldridge factors in the same order and in some depth). These decisions present different depths of analysis because they reflect different problems—problems with the precedent at issue, problems due to different
¶ 86 The Eldridge framework is not algorithmic by design. It necessarily balances the competing goals of predictability and flexibility. See Am. Trucking Ass‘ns, Inc. v. Smith, 496 U.S. 167, 205 (1990) (Scalia, J., concurring) (“[T]he doctrine of stare decisis is a flexible command.“); Jill E. Fisch, The Implications of Transition Theory for Stare Decisis, 13 J. CONTEMP. LEGAL ISSUES 93, 107-08 (2003) (“How does one weigh the adverse impact posed by a bad or erroneous decision against the systemic harm created by too-frequent overruling? The Court is being asked to weigh competing yet incommensurate values - the value of an identified legal improvement against the process values sacrificed by overruling.” (citation omitted)).
¶ 87 But the Associate Chief Justice thinks this existing framework insufficient. He aspires to create a “law of precedent” that will “cabin judicial discretion and promote decisionmaking by the rule of law.” Supra ¶¶ 54, 61. In his view, we have never explained how the Eldridge factors are defined or interact with each other. Supra ¶ 53. He thus seeks to “fill the gap” in our existing stare decisis doctrine, supra ¶ 54, by suggesting how we may provide clarification in a future case.
¶ 88 I take issue with his suggestions for two main reasons. First, he looks to history and concludes that precedent should be overruled if it is “demonstrably erroneous.” Supra ¶ 71. The problem, of course, is that this proposal assumes we can all agree a precedent is demonstrably erroneous. Agreeing on demonstrable error is not easy for any court. As one scholar pointed out about the United States Supreme Court, “cases are legion in which the Justices who comprise the majority and the Justices in dissent each appear to view the contrary position as not just wrong, but manifestly wrong.” Kozel, supra ¶ 84, at 419. We should not expect this court to fare any better. Ultimately, this clarification provides none.
¶ 89 Second, the Associate Chief Justice effectively suggests that the only type of reliance we should consider under the second Eldridge factor is “specific reliance“: reliance based on rules of property.91 Supra ¶¶ 68-69. This would strip from consideration the various types of reliance interests that have historically informed our stare decisis analysis—in particular, societal reliance.
¶ 90 Societal reliance lies at the heart of stare decisis and originated with Justice Brandeis‘s statement that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting); see Emery G. Lee III, Overruling Rhetoric: The Court‘s New Approach to Stare Decisis in Constitutional Cases, 33 U. TOL. L. REV. 581, 617 (2002) (“This ‘better-settled-than-right’ argument clearly rests on an understanding of reliance.“). It provides predictability and stability, and avoids “injustice or hardship” caused when rights are “swept away by judicial fiat.” Eldridge, 2015 UT 21, ¶ 35 (citation omitted).
¶ 91 When we address reliance, we routinely consider the effect of overruling precedent on various stakeholders and the public at large. See, e.g., Rutherford, 2019 UT 27, ¶ 68 (analyzing reliance on our precedents by different groups of individuals and at different levels); Rueda v. Utah Lab. Comm‘n, 2017 UT 58, ¶ 66, 423 P.3d 1175 (Opinion by Himonas, J.) (explaining that “we consider whether overturning the [precedent] now would create injustice or hardship in the realm of workers’ compensation” and pointing out that “people have relied” on the precedent in question (emphasis added)); id. ¶ 193 (Opinion by Lee, A.C.J.) (describing
¶ 92 Again, two main goals of the doctrine of stare decisis are predictability and fairness. See Eldridge, 2015 UT 21, ¶ 21. Perhaps the suggestion to consider only “specific reliance” would lead to more predictable outcomes for litigants lobbying this court to overrule precedent; perhaps not. But it most certainly would come at the price of decreased predictability and fairness for all other stakeholders who, knowingly or not, have come to rely on a stable body of relevant law.