Rachel GRAVES and Dustin Russell, a married couple, individually and as Conservators for and on behalf of A.R., a minor child, Appellees, v. NORTH EASTERN SERVICES, INC., a Utah corporation and North Eastern Services-Lakeside, Inc., a Utah corporation, Appellants.
No. 20121012.
Supreme Court of Utah.
Jan. 30, 2015.
2015 UT 28
¶ 217 I also find that the district court applied the wrong legal standard to its determination to deny permanent alimony. The court ruled that “alimony may not be awarded without specific findings of the need of the recipient spouse.” I disagree with this conclusion of law. The controlling statutе mandates that courts “shall consider” seven enumerated “factors in determining alimony,” including “the financial condition and needs of the recipient spouse.”
Gregory J. Sanders, Patrick C. Burt, Salt Lake City, for appellants.
Justice LEE authored the opinion of the Court, in which Chief Justice DURRANT and Justice PARRISH joined. Associate Chief Justice NEHRING authored a dissenting and concurring opinion, in which Justice DURHAM joined.
Justice LEE, opinion of the Court:
¶ 1 This is an interlocutory appeal from the denial of a defense motion for summary judgment. Plaintiffs alleged negligence in the hiring, training, and supervision of defendants’ employees resulting in the sexual assault of A.R. (a minor child) by defendants’ employee Matthew Cooper. The assault took place in a home occupied by disabled individuals who wеre living under defendants’ care. Defendants moved for summary judgment on the grounds that they owed no duty of care to A.R. and that plaintiffs had failed to establish a standard of care through expert testimony. In a subsequent motion, defendants also asserted that in any event they were entitled to apportion liability to their employee under the comparative fault provisions of
¶ 2 We affirm in part and reverse in part. First, we affirm the decision holding that defendants owed a duty to A.R. to exercise reasonable care in the hiring, training, and
I
¶ 3 Defendants North Eastern Services-Lakeside, Inc. and North Eastern Services, Inc. (NES1) provide services for individuals with mental and physical disabilities. NES‘s services are provided under contracts with the State of Utah, monitored by the State Department of Human Services. NES employees provide various levels of supervision, depending on the needs of the client as determinеd by the client‘s “action plan.”
¶ 4 Some NES homes are in residential neighborhoods. Typically such homes are occupied by three or fewer residents. Some of NES‘s action plans include goals for residents to interact with children, on the rationale that such interactions may be beneficial to the residents.
¶ 5 The sexual assault on A.R. occurred in a duplex referred to by NES as “Res 7.” The Res 7 duplex was in Logan, in a complex surrounding a central parking lot and play area. According to the record on summary judgment, the main door to Res 7 was often left open during the summer, allowing children to come in or out as they pleased.
¶ 6 There was also evidence of certain features that may have attracted children to approach and enter Res 7. For one thing, one of the residents of Res 7 was known for having candy on hand in his room. When neighborhood children asked about candy, NES staff would sometimes retrieve it for them from that client‘s room. Alternatively, he or the staff would sometimes invite the children into Res 7 to find the candy.
¶ 7 The record also indicated that NES staff had maintained a portable swimming pool outside the open door to Res 7. The principal purpose of the pool was for the benefit of the other resident of Res 7 (a second NES client whose action plan required NES monitoring “at all times” when near children). The second client used the pool to soak his feet. Neighborhood children often used it to play in during the summer.
¶ 8 The other attraction in Res 7 was a television. According to the record, neighborhood children often entered the residence to watch television or videos with the residents and/or NES staff.
¶ 9 A.R. was sexually abused by NES employee Cooper on July 18, 2008. On that day A.R. was playing in the common area outside of Res 7, asked for some candy, and was invited into the residence to watch television with Cooper and one of the residents. Cooper eventually escorted A.R. into the bathroom, where he sexually assaulted her.
¶ 10 Cooper was under the supervision of NES employee Amber Brady at the time of the assault. Brady testified that she had a “bad feeling” when she saw Cooper show A.R. where the bathroom was, but proceeded with cleaning and vacuuming instead of intervening. She also indicated that when she went to put the vacuum away she saw Cooper and A.R. exiting the bathroom and “had such an awful feeling” when she noticed that A.R. had a “red face” and appeared to have been crying. At that point Brady asked A.R. what was wrong. A.R. responded inaudibly, and Cooper then answered for her, indicating that she “missed her home and wanted to go home.”
¶ 12 NES‘s actions in hiring and supervising Cooper were of central concern on summary judgment. The evidence established that Michelle Grajeda was the person responsible for interviewing Cooper and checking his references. Yet although Cooper had been terminated from a recent job in the same field for sexually abusive conduct, Grajeda apparently never asked about his previous employment, indicating that she had never been trained to ask such questions. As for checking references, Grajeda testified that she had no memory of calling Cooper‘s previous employer(s), but believes that she would have done so per her past practice. Plaintiffs, on the other hand, presented evidence that Cooper‘s prior employer, Lindon Care, had terminated Cooper for sexually abusive actions against a client, had concluded that Cooper was not qualified to work in the field, and alleged that it had “no record of any phone calls received from any representative of [NES] regarding Mr. Cooper‘s employment with Lindon Care.” As for training, the summary judgment record indicated that Brady had not received training on children in NES homes or on how to keep children safe.
¶ 13 Plaintiffs Rachel Graves and Dustin Russell, A.R.‘s parents, filed this negligence action on her behalf in the First District Court. Initially the complaint asserted claims only against Cooper. Plaintiffs subsequently amended the complaint to add claims against the NES defendants, including claims for negligence in hiring, training, and supervising its employees.
¶ 14 NES eventually filed a motion for summary judgment. The motion asserted two grounds for dismissal of plaintiffs’ claims for negligence: (a) that NES owed no duty to A.R., a guest in the home of NES‘s clients, in its hiring, training, and supervision of employees; and (b) that plaintiffs had failed to establish a standard of care through expert testimony, thereby leaving the jury to speculate as to what NES was reasonably required to do under the circumstances of the cаse.
¶ 15 Soon after the filing of the NES motion, plaintiffs sought voluntary dismissal of their claims against Cooper. NES filed a notice asserting its intention to seek apportionment of comparative fault of Cooper under
¶ 16 The district court denied NES‘s motion for summary judgment on the negligence claims. It also approved dismissal of Cooper as a defendant and ruled that apportionment as to his intentional conduct was improper under
¶ 17 We granted NES‘s petition for interlocutory appeal. We now review the district court‘s decisions—on summary judgment, and on issues of law—de novo, affording no deference to its determination of the matters on appeal. Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d 56.
II
¶ 18 We affirm the denial of NES‘s motion for summary judgment, concluding that NES owed a duty to A.R. and that plaintiffs had no obligation to present expert testimony in support of a standard of care. We reverse as to the district court‘s determination regarding apportionment, however. On this issue, we hold that the text of the apportionment statute broadly authorizing apportionment for any and all “fault“—expressly defined to encompass “any actionable breach of legal duty, act, or omission proximately causing or contributing to injury,”
A. Duty
¶ 19 We recently clarified and extended the paradigm for analyzing questions of duty in tort in our opinion in B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228. In that case we reaffirmed the core tort-law distinction between misfeasance (active misconduct) and nonfeasance (omissions). Id. ¶ 17. Specifically, we noted that we аll generally have a duty
¶ 20 Thus, a key threshold question regarding duty is whether the plaintiff‘s harm is alleged to have been caused by (a) an affirmative act of the defendant or (b) an act of a third party that the defendant failed to prevent. In the former case a tort-law duty is the general rule. But in the latter case the general rule is the contrary. A person generally has “no duty to control the conduct of third persons.” Higgins v. Salt Lake Cnty., 855 P.2d 231, 236 (Utah 1993) (citing
¶ 21 In explaining these principles in Rollins, we “acknowledge[d] the general applicability in Utah of the ‘special relation’ analysis described in sections 314 through 320 of the Restatement of Torts.” 813 P.2d at 1159. The issue in Rollins was whether a mental health facility owed a duty to prevent a patient from leaving the facility and causing a car accident. Id. at 1158. In declining to find such a duty, we first invoked the standard set forth in section 315 of the second Restatement—that
[t]here is no duty so to control the conduct of a third person to prevent him [or her] from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person‘s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.
Id. at 1159, n. 1 (second alteration in original) (quoting
¶ 22 Our holding in Rollins was to decline to find a special relationship between the mental health facility and the plaintiff‘s decedent. We based that decision on a limiting construction of section 319—that “the ‘others’ to whom ... bodily harm is ‘likely’ and in favor of whom the duty arises must be reasonably identifiable by the custodian either individually or as members of a distinct group.” Id. at 1162. And because the plaintiff‘s decedent was not reasonably identifiable, we held that the “hospital owed no duty.” Id.
¶ 23 The parties in this case have staked out contrary positions under the above framework. Because the assault on A.R. was perpetrated by a third party (Cooper), NES frames the case as one involving only its nonfeasance—in not undertaking acts (supervision, training, and employment background checks) to prevent the assault. And because the assault was outside the scоpe of Cooper‘s employment, NES insists that it bears no responsibility for the acts of its employee.
¶ 24 Plaintiffs frame the case quite differently. They first portray NES‘s responsibility in terms of affirmative acts of misfeasance, noting that NES affirmatively enticed children like A.R. into Res 7, in a manner leading to the assault. Alternatively, plaintiffs contend that this case does involve a special relationship—arising under the
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.
¶ 25 We endorse NES‘s view of the case on the misfeasance / nonfeasance front, but accept plaintiffs’ basis for a special relationship. Thus, we conclude that the essence of plaintiffs’ claim is in asserting the unreasonableness of NES‘s failure to prevent the assault perpetrated by a third party, but we adopt the principle set forth in section 317 of the second restatement and find its standards satisfied here.
1. Misfeasance / Nonfeasance
¶ 26 As plaintiffs have noted, their claims implicate some affirmative acts attributable to NES—in enticing children like A.R. into Res 7 by keeping the door open, maintaining a portable swimming pool outside, and offering candy and television inside. And those acts are plausibly connected to the assault on A.R. Thus, to the extent plaintiffs are complaining about these affirmative acts, NES would have a duty to perform them in a non-negligent, reasonable manner.
¶ 27 That is ultimately an inadequate basis for a finding of duty here, however. The crux of plaintiffs’ case is not that NES was uncareful in the way it placed the portable swimming pool, or in the manner in which it offered candy or television programming. Instead, plaintiffs’ core complaint is with NES‘s omissions or failures—in not performing an employment background check on Cooper, and in not providing training and supervision for Brady and Cooper. Those omissions, moreover, were significant in their failure to prevent a tortious act of a third party (Cooper). So a decision upholding a duty by NES to perform its affirmative acts in a reasonable manner would not get the plaintiffs very far. It would leave room for them to charge negligence in the placement of the swimming pool or in offering candy or television, but not to assert their core claim for negligent hiring, training, and supervision.
¶ 28 The point is related to one we made recently in Hill v. Superior Property Management Services, Inc., 2013 UT 60, 321 P.3d 1054. In Hill the question was whether an entity hired to mow the lawn at an apartment complex owed a duty to apartment residents to prevent the hazard associated with offshoots of tree roots growing hidden in the grass. Id. ¶ 1. As one of several grounds for such a duty, plaintiffs in Hill asserted that the property management company had voluntarily undertaken the affirmative act of mowing the lawn, and claimed that that undertaking sustained a duty under the
¶ 29 A similar approach is in order here. NES‘s affirmative acts are a basis for imposing a duty in the performance of those acts, not for a broader duty to undertake additional measures aimed at preventing the sexual assault by a third party. And because plain-
2. Restatement (Second) section 317
¶ 30 NES questions the basis for any such relationship here by asserting that Cooper‘s sexual assault on A.R. was outside the scope of his employment. Citing Birkner v. Salt Lake County, 771 P.2d 1053, 1056-57 (Utah 1989), NES asserts that an “unprovoked, highly unusual, and quite outrageous” act undertaken for “purely personal motives” is beyond the scope of employment. And on that basis NES insists that it “had no special relationship to A.R. who was harmed by the independent conduct of NES‘s employee Cooper when he criminally acted outside the scope of his emрloyment.”
¶ 31 NES‘s argument misses a key distinction between vicarious and direct liability. The scope of employment question concerns a principle of agency law, of relevance to the question of an employer‘s vicarious liability. But the question presented here is one of direct liability—of whether NES can be liable directly (for its own negligence) for harm to a guest resulting from negligence in hiring, training, or supervision.
¶ 32 The answer to that question depends on whether there is a basis for finding a special relationship sustaining a duty in the circumstances of this case. We find such a basis in the principle set forth in section 317 of the
¶ 33 Section 317 recognizes a “special relationship” basis for a duty of an employer to exercise reasonable care in preventing an employee from acting outside the scope of employment in “intentionally harming others.”
¶ 34 For the most part, NES‘s opposition is mistaken and misdirected—aimed at a strawman, and not at the section 317 standard that we adopt today. First, as already noted, the duty at stake under section 317 sounds in direct—not vicarious—liability. So
¶ 88 I highlight these concerns not to opine on the wisdom of various tort reforms but to support my belief that the majority does not give effect to the legislature‘s intent. The majority‘s decision today marks a stark departure from long-established tort liability jurisprudence in Utah. Indeed, the majority seems to recognize the significant move it makes. Despite its confident assertions that the statute is unambiguous,77 the majority nonetheless admits that “the statute arguably leaves room for doubt on this question,”78 and notes that “the statutory question before us is difficult” аnd “might merit further attention in the legislature.”79 Given the language of the statute and the history of our tort liability doctrines, I am not persuaded that the legislature intended the LRA to allow for the allocation of fault to intentional tortfeasors. And I am not comforted by the idea that the legislature may someday give the matter “further attention.”80 I would therefore deny defendants’ attempt to allocate fault to Mr. Cooper for his intentional tort.
Notes
the standard we adopt makes no employer an insurer and in no way undercuts the vicarious liability principle of respondeat superior. This is about an employer‘s duty with respect to its own negligence, not its secondary liability for someone else‘s.
¶ 35 Second, the standard in section 317 does not impose liability on “every employer who runs a business that ever has children present.” Instead, as quoted above the duty standard we adopt requires proof (a) that the employee who intentionally harms another is on premises he is entitled to enter only by virtue of his status as an employee, and (b) that the employer knows or has reason to know that he has the ability to control the employee and knows or should know of the necessity and opportunity for exercising such control. Id. Perhaps this standard would not be satisfied in circumstances where the employer‘s business does not foreseeably put its workers in contact with the public, since in that case the employer might not know of the necessity and opportunity for exercising control. But this is not such a case. Here it is more than foreseeable that NES‘s workers will come into contact with the public, including children like A.R. As noted above, NES affirmatively went out of its way to encourage the involvement of neighbors in the goings-on in Res 7. It is hardly in a position to question the basis for its knowledge of the necessity of controlling its employees in their interactions with the public.
¶ 36 Thus, we hereby adopt the standard set forth in section 317 of the second Restatement. And because its elements are satisfied under the undisputed facts of this case, we affirm the district court‘s decision denying NES‘s motion for summary judgment on the question of duty.
B. Standard of Care
¶ 37 The standard of care in a negligence action is generally a question of fact for the jury. The jury‘s determination, moreover, is a matter for the commonsense assessment of a lay juror—not for expert testimony. This follows logically from the premise of the standard of care in tort. Because the essential question is the care that a reasonable person would undertake in the defendant‘s circumstances, we generally leave it to jurors—as ordinary persons representing a particular community—to make that judgment. See Pearce v. Utah Athletic Found., 2008 UT 13, ¶¶ 25-26, 179 P.3d 760.
¶ 38 Our cases recognize a limited exception to this general rule. In medical malpractice cases, we have generally required expert testimony regarding the standard of care. See Bowman v. Kalm, 2008 UT 9, ¶ 7, 179 P.3d 754. The rationale is rooted in an intuitive exception to the above-noted rule—that unlike the run-of-the-mill negligence case, “most medical malpractice cases ‘depend upon knowledge of the scientific effect of medicine,‘” a matter “not within the common knowledge of the lay juror.” Id. (quoting Fredrickson v. Maw, 119 Utah 385, 227 P.2d 772, 773 (1951)).
¶ 39 The medical malpractice exception itself is subject to a further exception. Under the “common knowledge” exception, expert testimony is not required—and the matter is left up to the jury‘s lay assessment—in cases where the standard of care could be assessed according to lay common knowledge. Id. ¶¶ 9-10. Thus, where a “medical procedure is so common or the outcome so affronts our notions of medical propriety” that scientific knowledge is not necessary, “the plaintiff can rely on the common knowledge and understanding of laymen to establish this element.” Nixdorf v. Hicken, 612 P.2d 348, 353 (Utah 1980).
¶ 40 Ultimately, then, the question of the need for expert testimony turns on the nature of the standard to be addressed by the jury. Questions of ordinary negligence are properly determined by the lay juror without the need for expert testimony. Where the standard implicates scientific matters beyond the capacity of an ordinary juror, however, expert testimony may be required. See Jenkins v. Jordan Valley Water Conservancy Dist., 2013 UT 59, ¶¶ 11, 16-17, 321 P.3d 1049 (holding that expert testimony was required on the question whether a cast-iron pipeline needed to be replaced, given that analysis of that question was “not within the knowledge and experience оf average lay
¶ 41 We see no basis for requiring expert testimony regarding the standard of care in this case. The question of what a reasonable person would do in performing background checks in hiring and in training and supervising employees is one permissibly resolved on the basis of the knowledge and experience of lay persons. NES has cited no cases, and we are aware of none, requiring expert testimony on such matters.
¶ 42 The case NES does cite, Collins v. Utah State Developmental Center, 1999 UT App 336, 992 P.2d 492, clearly cuts the other way. In Collins, the staff of a group home allowed a mentally handicapped woman to use a swing set, resulting in severe injury. Id. ¶ 3. The issue in the ensuing litigation concerned the need for expert testimony regarding the reasonable care required of a group home in this circumstance. See id. ¶¶ 6-8. The Collins court concluded that this case was different from the medical malpractice context, where “the nature of the profession removes the particularities of its practice from the knowledge and understanding of the average citizen.” Id. ¶ 7 (internal quotation marks omitted). Instead, the court of appeals held that this fell within the Nixdorf “common-knowledge” exception, as “a lay juror can readily evaluate the alleged negligence by the Center in failing to protect Collins from a swing injury.” Id. ¶ 8.
¶ 43 The Collins court relied on a case that is even closer to the fact pattern at hand, Virginia S. v. Salt Lake Care Center, 741 P.2d 969 (Utah Ct. App. 1987). In that case the court of appeals concluded that “where a mentally and physically incapacitated seventeen-year-old girl was raped while under the care and custody of the defendant nursing home, there are no medical technicalities involved that call for expert testimony to determine whether the nursing home breached its standard of care.” Id. at 972. This case is parallel to Collins and Virginia S. The matters at issue appear to us to sound in common sense, not science or other subjects of expertise. We accordingly see no basis for requiring plaintiffs to present expert testimony on the standard of care, and affirm the denial of summary judgment on this question as well.
C. Allocation of Liability
¶ 44 Decades ago our legislature abrogated the common law doctrine of contributory negligence. In the 1978 Comparative Negligence Act, the legislature replaced this common law defense with a comparative negligence regime. 1973 Utah Laws 710-12. The 1978 act was subsequently revised and extended by the Liability Reform Act of 1986, which maintained the comparative liability regime while extending its scope. 1986 Utah Laws 470.
¶ 45 Although the governing statutory regime has been in place for decades, this court has not yet had occasion to make a definitive pronouncement on the question presented by this case—whether our comparative negligence regime provides for allocation of responsibility for intentionally tortious conduct. Various members of the court have opined on the issue in separate opinions. See Field v. Boyer Co., 952 P.2d 1078, 1080 (Utah 1998) (Zimmerman, C.J., plurality opinion) (concluding that “an intentional tort such as battery is an act that proximately causes or contributes to injury or damage,” and thus that “the legislature included intentional acts in its comparative fault schemе“); id. at 1088 (Stewart, J., concurring in part, dissenting in part, joined by Durham, J.) (“The Legislature never intended such an absurd result.“). But we have not as yet resolved the matter, as the Field case was decided on other grounds, and no majority view was announced on the question before us.
¶ 46 We now interpret our statutory comparative liability regime to call for apportionment of responsibility for intentional torts. That conclusion appears to us to follow from the broad, categorical terms of the Liability Reform Act, as informed by the history and evolution of our statutory scheme. In so holding, we recognize that the statute arguably leaves room for doubt on this question, and of course acknowledge the legislature‘s prerogative to override our deci-
1. Fault
¶ 47 The apportionment provision of our code calls for the court to “allocate the percentage or proportion of fault attributable to each person seeking recovery, to each defendant, to any person immune from suit, and to any other person identified under Subsection 78B-5-821(4) for whom there is a factual and legal basis to allocate fault.”
¶ 48 That question turns on the statutory definition of “fault.” The term is expressly defined in the Liability Reform Act. Under
“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, comparative 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.
¶ 49 We interpret this definition to encompass intentionally tortious activity. The core definition is broad and categorical. It extends to “any actionable breach of legal duty, act or omission proximately causing or contributing to injury or damages.” Thus, the key limiting term of the definition is the element of causation. Any breach of duty, act, or omission counts as fault so long as it is proximately connected to injury or damages.
¶ 50 The parties’ briefs focus on the question whether an intentional tort amounts to a breach of duty. We think that it does, as our caselaw has long defined “duty” in tort to encompass any “obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another,” Jeffs, 2012 UT 11, ¶ 5, 275 P.3d 228 (internal quotation marks omitted), and everyone has a legal obligation to refrain from committing intentional torts.
¶ 51 That said, the statutory question presented does not require an answer to the “duty” question, as apportionment is called for under the statute not just for breaches of duty but for any act or omission that proximately causes or contributes to injury or damages. And because there is no tenable notion of “act” that does not extend to an intentional tort, we read the text of our statute to call for apportionment for torts like Matthew Cooper‘s sexual assault.3
¶ 53 The second point confirming our construction is that the list of actions included within the definition of fault is introduced by the word “including.” This renders the absence of any specific reference to intentional torts inconsequential. Like any, including is an established term of art with an established meaning. Black‘s Law Dictionary 831 (9th ed. 2009) (“[including typically indicates a partial list.“). In statutory cases far and wide, this term is routinely construed as introducing a non-exclusive, exemplary list.5
¶ 54 A 1994 amendment to the statute omitted an additional phrase—“not limited to.” 1994 Utah Laws 1022. Thus, prior to the amendment the statutory definition of fault introduced the listed examples with the phrase “including but not limited to.” Id.
¶ 55 The above analysis forecloses plaintiffs’ invocation of the ejusdem generis canon of construction. That canon, as plaintiffs note, provides that an ambiguity regarding a general term following or followed by an “inexhaustive enumeration of particular or specific terms” may be resolved by interpreting the general term to be “restricted to include things of the same kind, class, character, or nature as those specifically enumerated, unless there is something to show a contrary intent.” State ex rel. A.T., 2001 UT 82, ¶ 12, 34 P.3d 228.
¶ 56 That conclusion likewise forecloses any significance of the title of
¶ 57 In this case, moreover, there is a simple explanation—evident in the historical evolution of our statutory scheme—for the section title‘s reference to comparative negligence. The first statutory iteration of our comparative liability regime, the 1973 Comparative Liability Act, dealt exclusively with negligence. It provided that a plaintiff‘s “[c]ontributory negligence shall not bar recovery” in a negligence action, so long as
¶ 58 It is hardly surprising, therefore, that the provision at issue here is titled “Comparative Negligence.” That was its sole original focus. And even today, that is perhaps its principal application. We cannot from that premise proceed to conclude that the 1986 Liability Reform Act “did not alter the basic principles of comparative negligence contained in the 1978 Act,” or that the amended provision “did not ... include any claims for relief that involved an intent or purpose to harm.” Field, 952 P.2d at 1086 (Stewart, J., concurring in part, dissenting in part).
¶ 59 The 1986 amendments most certainly did alter the principles of comparative negligence in the 1978 Act. They did so first by abrogating the doctrine of joint and several liability, which had persisted under the 1973 Act. Compare 1973 Utah Laws 710 (“The right of contribution shall exist among joint tortfeasors,” with “each remaining severally liable to the injured person for the whole injury as at common law.“), with 1986 Utah Laws 471 (“No defendant is entitled to contributiоn from any other person.“). More significantly, the 1986 amendments replaced the concept of apportionment of comparative “negligence” with the operative principle of apportionment of comparative “fault.” Compare 1973 Utah Laws 710 (“Contributory negligence shall not bar recovery....“), with 1986 Utah Laws 471 (“The fault of a person seeking recover[y] shall not alone bar recovery....“). And of course the 1986 amendments adopted a definition of “fault” that broadly extends beyond mere principles of negligence. It is thus impossible to read the 1986 Act as merely retaining—and not altering—the basic principles of comparative negligence in the 1973 Act.
¶ 60 Granted, the 1986 Act “broaden[s] the statute to apply comparative principles in products liability and breach of warranty cases so that defenses such as misuse, abuse of product modification, etc., were no longer absolute bars to recovery but operated only to reduce a plaintiff‘s recovery.” Field, 952 P.2d at 1086 (Stewart, J., concurring in part, dissenting in part) (characterizing 1986 Act as “reflect[ing] the abolition of absolute defenses and the adoption of comparative negligence principles” in products liability cases under circumstances like those in Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981))). But it would be an oversimplification to read the 1986 amendments as doing no more than that. That conclusion would overlook the impact of the legislative decision to replace a narrow principle of apportionment of comparative “negligence” with a broad concept of apportionment of comparative “fault.”
¶ 61 This court‘s opinion in the Mulherin case puts the 1986 amendments in perspective. That case involved “jury findings of concurrent proximate causes of ... injury“—of a “defective condition” of a product and of “plaintiff‘s misuse” of it. 628 P.2d at 1303. Our opinion concluded that the 1973 Act did not apply, as its principles of comparative fault extended only to actions “to recover damages for negligence or gross negligence,” and products liability did not technically implicate negligence. Id. (quoting
¶ 62 The 1986 Act adopted the essential principles of the Mulherin court‘s analysis. It defined “fault” in a manner that was “not synonymous with ‘negligence,’ but instead connote[d] responsibility.” Id. at 1303, n. 7; see
¶ 63 Plaintiffs’ construction of the 1986 Act robs the statute‘s text of its plain meaning. It shifts the focus back to the 1978-era notion of comparative negligence and away from relative fault and causation. We cannot adopt that reading without overriding the clear import of the statutory text.
¶ 64 Nor can we credit statements in the 1986 Act‘s legislative history, cited by both the plaintiffs and the dissent, as sustaining the conclusion that our current statute is still merely “a comparative negligence statute.” Field, 952 P.2d at 1086 (Stewart, J., concurring in part, dissenting in part) (quoting Floor Debate S.B. 64, Utah Senate, 46th Leg. 1986, General Sess., Senate Day 31, Records No. 63 (Feb. 12, 1986)); see also infra ¶ 88. The statutory text extends well beyond comparative negligence. Such extension, in fact, was the whole point of the 1986 amendments. We cannot properly invoke the legislative history in a manner overriding the terms of the statute. Legislative history is not law. It may be useful in informing our construction of ambiguities in the law. But its utility ends there. See Hooban v. Unicity Int‘l, Inc., 2012 UT 40, ¶ 17, 285 P.3d 766 (holding that “the statute‘s language marks its reach,” and refusing to allow the legislative history to “supplant” the statutory text).
¶ 65 The cited legislative history suggests that individual legislators and their counsel may have understood the statutory definition of “fault” as synonymous with “negligence.” See Field, 952 P.2d at 1086 (Stewart, J., concurring in part, dissenting in part) (citing statements of Senator Lyle Hillyard and attorney Steve Mecham, both of whom equated “fault” with “negligence“). And perhaps those statements could be accepted as indicating the typical reach of the statute—as explaining that a common application of fault is negligence. But they cannot properly be read to define the full breadth of the statute‘s scope. That would give primacy to legislative history, and only secondary significance to the duly enacted statute. And it would thereby turn a core principle of statutory construction on its head.
¶ 66 The dissent chides us for extending fault allocation “to hitherto unknown territory” that it sees as incompatible with the legislature‘s “purpose.” Infra ¶ 82. In the dissent‘s view, “[t]he purpose of the Comparative Negligence Act was to ameliorate the harsh common law rules that made contributory negligence, no matter how slight, an absolute defense to an action by a plaintiff for negligence and barred all recovery.” Infra ¶ 82 (internal quotation marks omitted). And the dissent would have us limit our understanding of the statute to that purpose, in a manner foreclosing its application to intentional torts.
¶ 67 We disagree on two grounds. First, as our recent decisions have emphasized, the governing law is defined not by our abstract sense of legislative purpose, but by the statutory text that survived the constitutional process of bicameralism and presentment.8
3. Policy
¶ 69 Plaintiffs’ position, while falling short under the governing text of the statute, is not without some basis in public policy. We acknowledge some sympathy for the notion that extending the principle of comparative fault to intentional torts may threaten to dampen incentives of a defendant who has a duty to undertake due care in preventing acts of intentional misconduct. Thus, in cases involving a duty to supervise or train employees in a manner that would mitigate the possibility of an intentional tort by another, we recognize that it may seem “unfair to allow [a defendant‘s] liability to a faultless, injured plaintiff to be reduced or even eliminated by the culpability of an intentional wrongdoer.” Field, 952 P.2d at 1088 (Stewart, J., concurring in part, dissenting in part).
¶ 70 That said, the scope of our authority in this matter is limited. In the face of a detailed statutory scheme like the Liability Reform Act, our role as policymaker is preempted. We are relegated to the function of agent of the legislature—of interpreting the policy judgment that it reached, and not of imposing our own will through the exercise of our limited judicial power.
¶ 71 In any event, the policy question presented in this case is more nuanced—and substantially more difficult—than that posed above. First, it is an overstatement to suggest that extending comparative fault to intentional misconduct would “eliminate[ ]” the incentive for due care in a manner “eviscerat[ing] defendants’ duty to prevent” an intentional wrong. Id. at 1083. It is impossible to argue with the proposition that “[i]ntentional tortious conduct has always been deemed to be categorically different from nonintentional tortious conduct.” Id. at 1088. But that does not render “absurd[ ]” any attempt to apportion relative fault. See id. at 1088 (“Comparing a defendant‘s negligence and a rapist‘s intentional tort results in an absurdity; it is a comparison of unlikes, of apples and oranges.“). In a case like this one—where NES allegedly failed to avail itself of numerous opportunities for a clear chance of preventing a sexual assault by an employee
¶ 72 Second, a refusal to apportion liability for intentional torts would raise line-drawing problems of a different sort. Our comparative liability statute plainly calls for apportionment for a range of tortious activity—not just for simple negligence but also for gross negligence and even recklеssness.
¶ 73 The fairness concerns regarding apportionment, in other words, cut two ways. There is a downside in allowing intentionally tortious conduct to cut off (or at least pare back) the incentive for due care in preventing it. But once we have started down the path of apportionment, there is also a downside to apportioning for negligence, gross negligence, and even recklessness but not for intentional acts.
¶ 74 The dissent overlooks these nuances. Instead of acknowledging the policies supporting extension of the Liability Reform Act‘s apportionment principle to intentional torts, the dissent simply rehearses the above-noted countervailing concerns. Infra ¶ 86 (asserting that “allowing allocation of intentional tortfeasors could have the consequence of rendering the duty of reasonable care by others unenforceable“). And after articulating those policies and ignoring those that cut the other way, the dissent proceeds to espouse the “belief” that those concerns must represent the legislature‘s true “intent.” Infra ¶ 88. But that is not a matter of interpretation of the law. It is the assertion of a preferred policy position, cloaked in an assurance that such position (deemed reasonable
¶ 75 That sort of search for legislative intent is perilous, for reasons articulated long ago:
[I]n many cases, it is difficult to discover motives, which may have prompted those who drew up the text; but it is also dangerous to construe upon supposed motives, if they are not plainly expressed. Every one is apt to substitute what his motives would have been, or perhaps, unconsciously, to fashion the supposed motives according to his own interests and views of the case; and nothing is a more ready means to bend laws, charters, wills, treatises, & c., according to preconceived purposes, than by their construction upon supposed motives. To be brief, unless motives are expressed, it is exceedingly difficult to find them out, except by the text itself; they must form, therefore, in most cases, a subject to be found out by the text, not the ground on which we construe it.
Francis Lieber, Legal and Political Hermeneutics, or Principles of Interpretation and Construction in Law and Politics 127-28 (1839). We reject the dissent‘s invocation of policy on these grounds. Interpreting the text of the Liability Reform Act as we understand it, we conclude that the statutory principle of apportionment for “fault” extends to cases involving intentional torts.
¶ 76 In so doing, we need not take sides on the question of which set of policy concerns identified above may ultimately prove more weighty. Because we conclude that our legislature has spoken on this issue, we defer to its judgment and enforce its decision as we understand it. And we do so not based on any abstract notion of purpose or intent but based on the legislature‘s aсtual product—the statutory text. We highlight the above concerns, however, because the statutory question before us is difficult, and we deem the matter sufficiently significant that it might merit further attention in the legislature.
Rachel GRAVES and Dustin Russell, a married couple, individually and as Conservators for and on behalf of A.R., a minor child, Appellees, v. NORTH EASTERN SERVICES, INC., a Utah corporation and North Eastern Services-Lakeside, Inc., a Utah corporation, Appellants.
No. 20121012.
Supreme Court of Utah.
Jan. 30, 2015.
2015 UT 28
Associate Chief Justice NEHRING, dissenting:
¶ 77 I concur with the majority opinion in Parts I, II.A, and II.B. However, I respectfully dissent as to Part II.C of the majority opinion because I do not believe the legislature intended the Liability Reform Act (LRA) to allow for the allocation of fault for intentional torts.
¶ 78 When interpreting a statute, “it is axiomatic that this court‘s primary goal is to give effect to the legislature‘s intent in light of the purpose that the statute was meant to achieve.”12 In so doing, “we begin first by looking to the plain language of the [statute].”13 I agree with the majority that the LRA is written in “broad, categorical terms.”14 The Act allows a party to allocate the “fault” that is attributable to the plaintiff, another defendant, immune persons, or non-parties.15 And the statute defines “fault” as “any actionable breach of legal duty, act, or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery.”16
¶ 79 While I agree the definition of “fault” is broad, “we do not interpret the plain meaning of a statutory term in isolation. Our task, instead, is to determine the meaning of the text given the relevant context of the statute (including, particularly, the structure and language of the statutory scheme).”17 The majority focuses on the term “act,” concluding that “act” must logically and unambiguously encompass intentional torts.18 Instead, I would evaluate the
¶ 80 The legislature‘s use of the word “fault” instead of “negligence” should not be read to indicate a sea change in fault allocation. When the legislature expanded allocation principles from traditional negligence to doctrines like strict liability and products liability, it necessarily could not continue to use the word “negligence.” This is because “negligence” is a legal term of art which connotes the existence of a duty and a breach of that duty.27 But strict liability and products liability do not involve any analysis of duty and breach; thus reference to “negligence” in such cases would be inaccurate. The broader term “fault” more aptly encompasses these doctrines.
¶ 81 The majority reasons that there is “no tenable notion of ‘act’ that does not extend to an intentional tort.”28 And thus, because “fault” is a broader term than “negligence,” its application has no bounds.29 But a broadening of fault allocation does not require unlimited expansion. The breadth of possible fault allocation remains cabined by the intent of the legislature. Conspicuously absent from the statute is any reference to intentional torts. The definitional section provides an illustrative list establishing that “fault” includes “negligence in all its degrees, comparative 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.”30 This absence is also noticeable throughout the remaining sections of the statute—there is no reference in any of the statutory sections to an intentional act. Rules of statutory construction dictate that “omissions in statutory language should be taken note of and given effect.”31 Contrary to this canon, the majority reads the solitary term “act” to include intentional torts. But intentional torts are nowhere mentioned or alluded to in the statute. I believe that the illustrative list does not demonstrate any intent to expand allocation to intentional tortfeasors, and I would view the omission of intentional torts from the LRA as purposeful.32
¶ 82 Moreover, the statutory development of Utah‘s liability jurisprudence can inform our understanding of the legislative intent.33 Prior to 1973, Utah recognized and applied the doctrine of contributory negligence.34 As noted by the majority, the legislature abrogated the doctrine of contributory negligence in 1973 with the passage of the Comparative Negligence Act.35 The purpose of the Comparative Negligence Act “was to ameliorate the harsh common law rules that made contributory negligence, no matter how slight, an absolute defense to an action by a plaintiff for negligence and barred all recovery.”36 The subsequent LRA amendments of 1986 effected two changes. The first was the abrogation of joint and several liability.37 The second change “broadened the statute to apply comparative principles in products liability and breach of warranty cases so that defenses such as misuse, abuse of product
¶ 83 In extending allocation of fault to intentional torts, the majority cites our 1981 opinion in Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981) (39) as putting the 1986 amendments “in perspective.”40 While I agree that Mulherin puts the amendments in perspective, I disagree with the majority‘s reading of the case. In Mulherin, we were asked to decide whether comparative negligence principles applied to actions based in strict products liability and product misuse.41 We stated that due to the defective condition of a product manufactured by the defendant and the misuse of that product by the plaintiff, “[b]oth parties [could] therefore be said to be at fault in contributing to plaintiff‘s injuries.”42 A footnote to this statement reads, “[a]s used in this context, the word ‘fault’ is not synonymous with ‘negligence,’ but instead connotes responsibility.”43 The majority cites this footnote, but omits the important qualifier: “[a]s used in this context“—namely, the context of products liability claims. The majority correctly notes that the 1986 Act adopted the principles espoused in Mulherin,44 because the legislature passed the LRA amendments in response to our decision in that case.45 However, in so doing, the legislature did not adopt the majority‘s interpretation of “fault” as encompassing intentional torts. Instead, the legislature simply “broadened the statute” to apply comparative principles to cases involving “assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification, or abuse of a product.”46 These additions to the statute did incorporate the Mulherin opinion, but that decision had nothing to do with intentional torts. The legislative history confirms this: “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.‘”47 An attorney for the drafter of the bill responded, “This is a comparative negligence statute.”48 Additionally, the full name of the Liability Reform Act is “An Act Relating to the Judicial Code; Modifying Provisions Relating to Comparative Negligence; Specifying Duties of Jurors and Judges; Abolishing Joint and Several Liability and Rights of Contribution Among Defendants; and Defining Certain Terms.”49 The “amendment‘s title is telling.”50 The Act‘s history, evidenced by the floor debates and the Act‘s title, indicate that the LRA was not intended to encompass intentional torts. Furthermore, the fact that
¶ 84 Furthermore, Mulherin‘s footnote seven, cited by the majority, provides another indication that intentional torts are not included in the statutory definition of fault.
¶ 85 In Cortez v. University Mall Shopping Center, 941 F. Supp. 1096 (D. Utah 1996), the federal district court considered whether a defendant shopping mall could apportion fault under the LRA to an unknown assailant who kidnapped the plaintiff from the mall parking lot and assaulted her.60 The court explained that “[t]he concepts of intentional tort liability and negligent fault do not lend themselves to easy comparison.”61 The court ultimately concluded that the LRA does not allow for the allocation of fault to intentional tortfeasors.62 The court also noted that in situations where a defendant owes a duty to protect the plaintiff from a specific harm, permitting the defendant to shift fault to the assailant perverts that very duty.63 I would agree with the courts in Cortez and many of our sister states64 that intentional torts and negligence
¶ 87 I am also wary of a categorical pronouncement that the LRA applies to all scenarios involving intentional torts, particularly where we have not answered the question of whether the legislature has abolished joint and several liability as to intentional tortfeasors.72 Commentators have remarked that the extension of fault allocation to intentional torts can implicate different scenarios, including allocation between: (1) an intentional tortfeasor plaintiff and a negligent defendant, (2) a negligent plaintiff and an intentional tortfeasor defendant, and (3) an innocent plaintiff and a negligent defendant and an intentional tortfeasor defendant.73 Each of these scenarios may implicate different policy considerations.74 Thus, for example, though the Restatement does apportion tort liability to intentional torts, it also explicitly notes that “[i]ntentional torts present special prob-
(128 P.3d 1146).First, the foreseeability aspect of proximate causation is frequently relaxed in the case of intentional torts, see W. Page Keeton et al., Prosser and Keeton on Torts § 8, at 37 (5th ed. 1984); id. § 43, at 293, but proximate cause is in no way an alien inquiry in the world of intentional torts. See, e.g., United Food & Commercial Workers Unions, Emp‘rs Health & Welfare Fund v. Philip Morris, Inc., 223 F.3d 1271, 1273-74 (11th Cir. 2000) (recognizing “that the requirements of proximate cause are relaxed—to some degree—in intentional tort cases” but concluding that “the usual common law rule [of proximate cause] still forbids claims like Plaintiff‘s, even where those claims are premised upon intentional torts“). Second, “fault” is broadly defined by statute to encompass “any ... act[] or omission.”