Lois FIELD, Plaintiff and Appellant, v. The BOYER COMPANY, L.C., a Utah limited liability company; The Boyer Company of Idaho, Inc., a Utah corporation; Mervyn‘s, a California corporation; James McGuire, Security Manager, Brickyard Plaza; Jefrey B. Hatch; Wilda Gene Hatch; Diane G. Orr; and John Does A through K, Defendants and Appellees.
No. 960437.
Supreme Court of Utah.
March 3, 1998.
1078
ZIMMERMAN, C.J., HOWE, Associate C.J., and DURHAM and RUSSON, JJ., concur.
Kathryn P. Collаrd, Salt Lake City, for Plaintiff and Appellant.
Paul S. Felt, Terry M. Plant, Bradley R. Helsten, Salt Lake City, for Defendants and Appellees.
ZIMMERMAN, Chief Justice:
Plaintiff Lois Field appeals from an interlocutory order granting the Brickyard defendants’1 motion to have the conduct of an unknown assailant compared to their own allegedly negligent conduct in contributing to injuries suffered by Field during an assault that occurred at the Brickyard Plaza. We have jurisdiction over this matter under
We begin with a brief review of the facts before turning to the standard of review and our analysis. In September of 1994, Field
Field filed a complaint against Mervyn‘s and the Brickyard defendants, seeking damages and claiming that defendants were negligent in failing to provide adequate security for the employees and customers of the Mervyn‘s store and Brickyard Plaza. Mervyn‘s and the Brickyard defendants moved to include the fault of Field‘s unknown assailant in the jury‘s apportionment of fault among the parties, pursuant to
As to the standard of review, the trial court‘s determination that
Moving to our analysis,
(3) No defendant is liable to any person seeking recovery for any amount in excess
of the proportion of fault attributed to that defendant under Section 78-27-39. (4)(a) In determining the proportionate fault attributable to each defendant, the fact finder may, and when requested by a party shall, consider the conduct of any person who contributed to the alleged injury regardless of whether the person is a person immune from suit or a defendant in the action and may allocate fault to each person seeking recovery, to each defendant, and to any person immune from suit who contributed to the alleged injury.
In the definitions section, the statute defines “defendant” as “a person, other than a person immune from suit who is claimed to be liable because of fault to any person seeking recovery.”
any actionable breach of legal duty, act, or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification or abuse of a product.
The Brickyard defendants argue that thеy are entitled to a comparison of their allegedly negligent conduct with the intentional conduct of Field‘s unknown assailant. Field counters that (i) the statute‘s definition of “fault” precludes any comparison between negligent and intentional conduct and encompasses only comparisons between one person‘s negligence and another‘s; and (ii) the statute allows comparisons of fault only among parties to the action and does not provide for comparing the fault of an unknown assailant. We address each argument in turn.
As to the comparison of intentional and negligent conduct, we find that
The issue of whether
When faced with two seemingly contradictory portions of the same statute, “the Court looks to the rules of statutory construction to resolve the apparent contradiction.” Madsen v. Brown, 701 P.2d 1086, 1089 (Utah 1985). “In cases of apparent conflict between provisions of the same statute, it is the Court‘s duty to harmonize and reconcile statutory provisions, since the Court cannot presume that the legislature intended to create a conflict.” Id. at 1089-90 (citing 73 Am.Jur.2d Stаtutes §§ 254, 255 (1974)). In this case, the two portions of the statute can be reconciled and harmonized if the later language allowing the court to allocate fault only to three classes of persons—plaintiffs, defendants, and immune persons—is read as modifying the earlier language allowing the court to consider the fault of any person. Thus, the statutory scheme, taken as a whole, allows the court to consider the fault of any person, but to allocate fault only to plaintiffs, defendants, and persons immune from suit.
We can imagine situations where the conduct of an unknown tortfeasor would be “considered” by a court in determining the relevant percentages of fault attributable to a plaintiff and a defendant, but fault may not be attributed to such an unknown tortfeasor. For example, an erratic driver might cause a defendant who was negligently following too closely to swerve and hit another car whose driver was negligently driving too fast. In apportioning fault between the defendant who was following too closely and the plaintiff who was speeding and who was hit, the court might consider the fault of the erratic driver (who drove on and was never identified or made a party to the litigation) in determining the relative fault of the plaintiff and the defendant. Nevertheless, according to the terms of the statute, the court‘s allocation of fault to the plaintiff and the defendant would have to equal 100%, the absent driver‘s conduct being “considered” only in determining whether the split between the plaintiff and the defendant should be 50/50, 60/40, or some other proportion.
This reading of the statute is consistent with the mandate of
Further, we find the Brickyard defendants’ reading of
We also note that the statute provides a mechanism whereby those such аs the Brickyard defendants “may join as a defendant any person other than a person immune from suit who may have caused or contributed to the injury or damage for the purpose of having determined their respective proportions of fault.”
The Brickyard defendants also argue that our reading of the statute is inconsistent with our opinion in Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877 (Utah 1993). In Sullivan, we held that a prior version of the comparative fault scheme should be read to require comparison of the fault of immune employers, even though the statutory language contemplated attributions of fault only to plaintiffs and defendants. Sullivan, 853 P.2d at 884. This case can be distinguished, howеver, because of changes in the statutory scheme since that case was decided. Partly in response to the Sullivan opinion, the legislature subsequently modified the statute to explicitly require the attribution of fault to immune persons. See
The trial court‘s ruling that Utah‘s comparative fault scheme requires comparison of negligent and intentional conduct is affirmed. The trial court‘s ruling that the statute requires attribution of fault to Field‘s nonparty, unknown assailant is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.
HOWE, Associate C.J., concurs in the result.
STEWART, Justice, concurring in part, dissenting in part:
I agree that Utah‘s Comparative Fault Act, see
I emphatically disagree, however, with the dictum in Chief Justice Zimmerman‘s opinion that the Comparative Negligence Act requires a comparison of the “fault” of an intentional tortfeasor with the “fault” of a negligent tortfeasor. Reducing the legal liability of an intentional tortfeasor by аnother person‘s negligence is contrary to terms of the Act, legislative history, and sound policy and logic.
Although the instant case involves alleged negligent defendants seeking to reduce their liability to plaintiff by the intentional fault of a third person, a rapist who is not a party to the action,1 the legal principle Chief Justice
I. PRINCIPLES OF COMPARATIVE FAULT
Contributory negligence has never been a defense, absolute or otherwise, to an intentional tort. See Restatement (Second) of Torts § 481 (1965). Intentional tortious conduct has always been deemed to be categorically different from nonintentional tortious conduct.2 Intentional torts generally require an intent or purpose to harm another. Unintentional torts do not involve an intent or purpose to harm; they involve carelessness or indifference. Prominent legal scholars have long recognized the categorical difference between intentional and unintentional torts and the inappropriateness of including intentional torts in comparative fault schemes: “[I]f the consequences of which the plaintiff complains were intended by the defendant, contributory negligence is out of the case. On this proposition all agree.” 4 Fowler V. Harper et al., The Law of Torts § 22.5, at 293 (2d ed.1986) (quotations omitted). “Intentional wrongdoing is so much graver a wrong than negligence both in its social consequences and in the amount of resentment it arouses that the felt need both to deter and to punish it outweighs any social benefits that are thought to accrue from the rule of contributory negligence.” Id. at 294. Professor Fleming also distinguishes an intended injury from the unintended consequences of wilful wrongdoing. J. Fleming, The Law of Torts 254 (6th ed.1983). Dean Prosser, moreover, emphasizes the extent of the categorical distinction between negligence and intentional torts: “[W]here the defendant‘s conduct is actually intended to inflict harm upon the plaintiff, there is a difference [from negligence], not merely in degree but in the kind of fault.” William L. Prosser, A Handbook on the Law of Torts § 66, at 426 (4th ed.1971); see also 4 Fowler V. Harper et al., The Law of Torts § 22.5, at 294-95 (Supp.1997) (noting “clear difference in kind between the two wrongs involvеd“).3
Until comparatively recently, contributory negligence was an absolute defense to a negligence action. Comparative negligence was designed “to mitigate the unjust hardships that the contributory negligence doctrine imposes on accident victims,” and should not be read “to expand the operation of the discredited fault principle [embodied in contributory negligence] into areas previously free from its unwholesome influence.” 4 Harper 1997, § 22.5, at 295. Rather, “[t]he new-found freedom to balance should be exercised in light of history and of sound policy.” Id. As the court in White v. Hansen, 837 P.2d 1229, 1233 n. 6 (Colo.1992), stated, “[I]t is ... well settled that actions founded on intentional misconduct by the defendant were not subject to the defense of contributory negligence and are not subject to comparative fault principles.”
The great majority of states that have ruled on the issue of whether comparative fault should be applied to compare intentional culpability and carelessness have held that there is a fundamental difference between intentional and unintentional torts, and they have refused to apply comparative fault concepts where an intentional tort is involved. See Allan L. Schwartz, Annotation, Applicability of Comparative Negligence Principles to Intentional Torts, 18 A.L.R.5th 525, § 2, at 533 (1994) (“The clearly prevailing view is that comparative negligence principles are not applicable to intentional torts.“); id. § 3 (listing cases from 20 jurisdictions, including the United States, that refused to compare negligence and intentional torts);4 57B Am.
II. UTAH COMPARATIVE NEGLIGENCE ACT
It is axiomatic that “[t]he primary rule of statutory interpretation is to give effect to the intent of the legislature in light of the purpose the statute was meant to achieve.” Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877, 880 (Utah 1993) (quoting Reeves v. Gentile, 813 P.2d 111, 115 (Utah 1991) (footnote omitted)). To that end, a statute should be construed as a comprehensive whole, not in a piecemeal fashion. Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1045 (Utah 1991). In accord with that principle, it is imperative that single words or phrases in a statute not be defined or construed apart from the context in which they appear and the overall statutory purpose. Richardson v. Matador Steak House, 948 P.2d 347 (Utah 1997) (holding that term “third person” had to be construed more narrowly than plain meaning because statutory context so required).
“Fault” means any actionable breach of legal duty, act, or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all its degrees, contributory negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification or abuse of a product.
To make comparative principles apply in products liability and breach of warranty cases, the Liability Reform Act substituted the term “fault” for the term “negligence” in
The legislative history of the Liability Reform Act of 1986 provides no basis for concluding that the Legislature intended to include intentional wrongdoing in the term “fault” or that the Legislature intended comparative principles to apply to intentional torts. Senator Lyle Hillyard stated during debate on the Act, “I understand the word ‘fault’ and that‘s negligence or not doing what you‘re supposed to, and that‘s a normal negligent recovery.” Floor Debate S.B. 64, Utah Senate, 46th Leg.1986, General Sess., Senate Day 31, Records No. 63 (Feb. 12, 1986) (emphasis added). An attorney for the drafter of the bill stated when questioned by the Senate, “This is a comparative negligence statute.” Id. Statement of Steve Mecham.
The word “fault” in
It is, at best, far-fetched to say that the word “fault” as used in the statute includes intentional torts and requires a logically impossible comparison of intentional, criminal-like culpability against mere carelessness when the word “fault” does not denote intentional misconduct and the legislative history evidences no intent to include intentional torts. It is simply implausible to ascribe to the Legislature an intent to include within the comparative fault scheme one of the main branches of tort law when there is no reference to that branch of the law or to any specific intentional tort claims, especially in view of the fact that the Legislature referred with such specificity to various unintentional causes of action and defenses thereto.
Canons of statutory construction require that only tortious conduct similar to the claims for relief listed in
Furthermore, the Legislature has clarified that the claims for relief and defenses listed in
The sole basis for Chief Justice Zimmerman‘s position is that
Second, the term “actionable breach of legal duty” is restricted by the term “fault” so that not every “actionable breach of legal duty” is meant, but only those that involve “fault.” The plain meaning of the term “fault” means unintentional tortious conduct, i.e., negligence and cognate actions. Black‘s Law Dictionary 608 (6th ed.1990) defines “fault” in just that fashion: “Negligence; an error or defect of judgment or of conduct; any deviation from prudence, duty, or rectitude; any shortcoming, or neglect of care or performance resulting from inattention, incapacity, or perversity; a wrong tendency, course, or act; bad faith or mismanagement; neglect of duty.” This definition is sufficiently broad to include products liability and breach of warranty.5
Third, as noted above, the Legislature specified the types of “fault” and “actionable breach[es] of legal duty” it meant to include in the comparative fault scheme when it listed unintentional-type torts, e.g., negligence, products liability, and breach of warranty. By not including any references to intentional torts, it intended to exclude them from the comparative fault scheme.
A basic principle of comparative fault law is that comparison of fault must be reciprocal between the parties. That is, each party must be able to argue that its fault should be reduced or offset by another party‘s fault in causing the injury. Thus, the term “fault” in
The principle that should apply in this case was applied by the Kansas Supreme Court in Kansas State Bank & Trust Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587, 606 (1991), in holding that a bus driver‘s intentional sexual abuse of a special education student could not be compared against the negligence of a school district and a transportation company that failed to take reasonable measures to prevent such intentional wrongs. “Negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent.” Id. 819 P.2d at 606. Or as stated by a Florida appellate court, “It is neither unfair nor irrational for an innocent plaintiff to collect full damages from negligent defendants who knew, or should have known, that an injury would be intentionally inflicted and failed in their duty to prevent it.” Wal-Mart Stores, Inc., 676 So.2d at 22; see also Cortez v. University Mall Shopping Ctr., 941 F. Supp. 1096 (D.Utah 1996).
We have held that a premises owner “must exercise due care and prudence for the safety of business invitees” and that the duty extends to protecting against “criminal acts by third parties.” Steffensen v. Smith‘s Management Corp., 862 P.2d 1342, 1344-45 (Utah 1993). This duty, however, “does not arise until the business owner knows, or should know, that criminal acts are likely to occur.” Id. at 1345 (quoting Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991)); Mitchell v. Pearson Enters., 697 P.2d 240, 243 (Utah 1985); see also Nero v. Kansas State Univ., 253 Kan. 567, 861 P.2d 768 (1993) (holding that duty of landlord to proteсt arises only when impending danger becomes apparent, or circumstances are such that reasonably careful person was on notice of potential danger). As Magistrate Judge Boyce noted in a case nearly identical to that before us, “[T]he defendant‘s duty is secondary to the assailant‘s conduct” because the duty “is to act against the anticipated criminal wrong of another to prevent the misconduct of the third person.” Cortez, 941 F.Supp. at 1099–1100.
Given defendants’ duty to provide a safe workplace and their breach of that duty, it would be patently unfair to allow their liability to a faultless, injured plaintiff to be reduced or even eliminated by the culpability of an intentional wrongdoer, thereby depriving the faultless plaintiff of an adequate remedy or any remedy at all. Such an application of comparative principles would eviscerate defendants’ duty to prevent such a wrong. Seе id. at 1099 (“To require comparison distorts the protections a plaintiff should be able to claim from a defendant‘s duty to protect.“); Kansas State Bank & Trust, 819 P.2d at 605-06.
Finally, it should be noted that only by not allowing the assailant‘s “fault” in this case to reduce or eliminate defendants’ liability can defendants’ legal duty to provide safe premises for their employees be given full force. Nevertheless, defendants do have an independent cause of action against the assailant
DURHAM, J., concurs in Justice STEWART‘s concurring and dissenting opinion.
RUSSON, Justice, dissenting:
I respectfully dissent from Chief Justice Zimmerman‘s conclusion that the defendants in this case are not entitled to an allocation of fault between defendants and the unknown assailant.
The guiding principle of our comparative fault statute is that “[n]o defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributed to that defendant under section 78-27-39.”
Chief Justice Zimmerman has concluded that the unknown assailant is not a defendant in this case and therefore cannot be attributed fault under
A person seeking recovery, or any defendant who is a party to the litigation, may join as a defendant, in accordance with the Utah Rules of Civil Procedure, any person other than a person immune from suit who may have caused or contributed to the injury or damage for which recovery is sought, for the purpose of having determined their respective proportions of fault.
Chief Justice Zimmerman states that this section “indicates a legislative intent that defendants wishing to have their fault compared with nonparties join such nonparties under section 78-27-41 or bear the burden if such people cannot be joined.” The Chief Justice, however, ignores the language of this section providing for joinder by the plaintiff and overlooks the fact that the plaintiff in this case has indeed joined the unknown assailant as a defendant. In paragraph 15 of her complaint, plaintiff names
Defendant “I“, “J“, and “K“, those other persons, corporations, or other entities whose negligence or other wrongful conduct contributed to the injuries and damages suffered by the Plaintiff Lois Field, whose true and correct names and identities are otherwise unknown to Plaintiff Lois Field, but which will be substituted by amendment when ascertained.
(Emphasis added.) Thus, the unknown assailant is clearly a “defendant,” which the comparative negligence statute dеfines as “a person ... who is claimed to be liable because of fault to any person seeking recovery.”
According to
This case is not one in which the defendant has conjured up a third-party “phantom” wrongdoer whose existence is at issue. All parties here agree that plaintiff was attacked and injured by an unknown assailant. Thus, the fact finder must not only consider, but
Notes
While the Chief Justice correctly notes that we did not consider the second part of section 77-27-38(4)(a), he labels the mother a “nonparty,” thereby implying that the mother was not properly considered for purposes of proportioning fault. However, the statute defines “person seeking recovery” as “any person seeking damages or reimbursement on its own behalf, or on behalf of another for whom it is authorized to act as legal representative.”
Arkansas: The state supreme court held that comparative fault does not apply to mitigate a defendant‘s intentional conduct in a battery action. Whitlock v. Smith, 297 Ark. 399, 762 S.W.2d 782, 783 (1989).
Colorado: “A finding of intentional wrongdoing on the part of the defendant renders the comparative negligence statute inapplicable.” Carman v. Heber, 43 Colo. App. 5, 601 P.2d 646, 648 (1979); see also Finnigan v. Sandoval, 43 Colo. App. 219, 600 P.2d 123 (1979).
Georgia: Two courts of appeals held that it was “well-settled” that the state‘s comparative negligence statute did not apply because the torts alleged by the plaintiffs were intentional. Hopkins v. First Union Bank, 193 Ga. App. 109, 387 S.E.2d 144, 146 (1989) (intentional infliction of emotional distress action); Terrell v. Hester, 182 Ga. App. 160, 355 S.E.2d 97, 98 (1987) (battery action).
Idaho: “It is a well-settled rule that the negligence of a plaintiff is not a defense available to a defendant who has committed an intentional tort.” Fitzgerald v. Young, 105 Idaho 539, 670 P.2d 1324, 1326 (1983). This court of appeals holding is consistent with dictum from the Idaho Supreme Court in Burgess v. Salmon River Canal Co., 119 Idaho 299, 805 P.2d 1223, 1233 (1991).
Illinois: The state supreme court held, “Because of the qualitative difference between simple negligence and willful and wanton conduct, and because willful and wanton conduct carries a degree of opprobrium not found in merely negligent behavior, we hold that a plaintiff‘s negligence cannot be compared with a defendant‘s willful and wanton conduct.” Burke v. Rothschild‘s Liquor Mart, Inc., 148 Ill. 2d 429, 170 Ill. Dec. 633, 643, 593 N.E.2d 522, 532 (1992).
Iowa: The state supreme court concluded that the state comparative fault statute did not apply in fraud cases. Tratchel v. Essex Group, Inc., 452 N.W.2d 171, 180-81 (Iowa 1990). Also the court of appeals held that taking hostages was an intentional act and thus not within the comparative fault statute. State v. Wagner, 484 N.W.2d 212, 216 (Iowa Ct.App.1992).
Maine: The state supreme court stated, “We have never recognized contributory or comparative negligence as a defense to the intentional tort of assault and battery and we decline to do so now.” Doing so, the court held, would contravene the state statute as well as “sound policy.” McLain v. Training & Dev. Corp., 572 A.2d 494, 497 (Me.1990) (assault and battery action).
Massachusetts: The state supreme court held that intentional stabbing could not be involved in comparison of fault undеr the Massachusetts statute. “The strong majority view across the country is that comparative fault statutes do not apply to intentional tort claims.” Flood v. Southland Corp., 416 Mass. 62, 616 N.E.2d 1068, 1072 (1993).
Michigan: “[W]here defendant intentionally commits a tort, comparative negligence is no defense which can serve to reduce his potential liability. The reason is clear from the very name of the comparative negligence doctrine. In such circumstances, defendant has simply not been negligent. There are not degrees of negligence to compare. A person‘s obligation to guard himself from injury caused by design is insignificant, if existent at all, compared to his obligation to guard himself from injury caused by another‘s simple lack of care.” Melendres v. Soales, 105 Mich. App. 73, 306 N.W.2d 399, 403 (1981).
Minnesota: The state supreme court held, “Without question, principles of comparative negligence would not apply to an intentional tort; we have never so applied them.” Florenzano v. Olson, 387 N.W.2d 168, 175 (Minn.1986).
Mississippi: The statе supreme court held, “The authorities in this state and elsewhere are unanimous in declaring that the defenses of contributory or comparative negligence have no application to cases of intentional tort such as assault and battery.” Graves v. Graves, 531 So. 2d 817, 820 (Miss.1988).
Ohio: The state supreme court held, under its comparative fault statute, that negligence of another is not a defense to a defendant‘s intentional tort. Schellhouse v. Norfolk & W. Ry., 61 Ohio St. 3d 520, 575 N.E.2d 453, 456-57 (1991).
South Dakota: The state supreme court held that instructing the jury in comparative fault was reversible error by the trial court in a battery action. Frey v. Kouf, 484 N.W.2d 864, 869 (S.D. 1992).
Texas: The court of civil appeals held that the statute relating to comparative fault applied only to actions based in negligence. McCrary v. Taylor, 579 S.W.2d 347, 349-50 (Tex. Civ.App.1979).
Vermont: The state supreme court held that comparative negligence did not apply when damages assessed were based on deliberate, not negligent, acts. Stephan v. Lynch, 136 Vt. 226, 388 A.2d 376, 379 (1978).
Washington: “A plaintiff‘s contributory fаult cannot be used to reduce a defendant‘s liability for assault and battery.” Honegger v. Yoke‘s Washington Foods, Inc., 83 Wash. App. 293, 921 P.2d 1080, 1082 (1996).
Wisconsin: The state supreme court refused to apply the comparative negligence statute to intentional tort. Schulze v. Kleeber, 10 Wis. 2d 540, 103 N.W.2d 560 (1960).
Wyoming: The Tenth Circuit, applying Wyoming law, held that the state would not apply comparative fault in a suit alleging outrageous conduct related to state elections. Bell v. Mickelsen, 710 F.2d 611 (10th Cir.1983).