*2 KELLY, Before HOLLOWAY and BRISCOE, Judges. Circuit HOLLOWAY, Judge. Circuit Corporation, Plaintiff along parties appeal, brought others not to this against profes- action 1988 for malpractice sional and breach of contract. (sometimes Higgins Defendant Johnson & H) referred herein as J & is the actuarial firm aspects which handled em- ployee plan. retirement Defendants Reeves and Bertoldo were the individual members Higgins responsible Johnson & for the work on Steiner’s matters. trial, judgment
After a bench
was entered
in favor of
on its claim that defen
negligently
plain
dant
redrafted a section of
plan,
plaintiffs primary
tiffs
claim for
rejected.
professional malpractice was
Both
appealed.
part,
sides
re
affirmed
part,
versed in
vacated in
and remand
Corp.
ed. Steiner
Retirement Plan v. John
(10th Cir.1994),
Higgins,
son &
Brown &
San
MeCutchen,
holding
Carpenter,
Doyle,
judgment
on the court’s
liam
Brown &
focuses
Francisco, CA,
Enersen,
not recover on its actuarial
and David A
could
San
Greenwood,
Cott,
against
un-
Bagley,
malpractice
claim
the defendants
Van
Cornwell
UT,
City,
comparative negligence statute
McCarthy, Salt Lake
with him on der Utah’s
brief),
compara-
plaintiffs negligence was
for Defendants-Counter-Claim-
because
Or-
tively greater than that of defendants.
ants-Appellees.
following summary
at The
stated the value of the Plan’s
der
liabilities
on Remand
the level
needed to
on the district court’s de-
of contributions
maintain
primarily
based
fact,
solvency.
following
made
findings
tailed
preceded
appeal.
first
trial which
bench
years
Over
there had been
discussions
Findings of
Unpublished
Fact and Conclu-
*3
representatives
between
and
of
defendants
24,
January
of
1992. Neither
of Law
sions
the
about the fact that
formula used
any
takes issue
of
party specifically
with
compute
lump
sum benefit
the
resulted
findings.
these
option.
being
valuable
a more
As mar-
rose,
ket
in val-
interest rates
difference
employee
an
retire-
Plaintiff established
greater.
options
ue of the two
became
De-
Plan)
(the
in 1958.
plan
The Plan is
ment
recomipended
specifically
fendants
in 1977
ERISA,
subject
Employee
Retirement
and 1978
restructure
the formu-
1974,
93-406,
Act of
Security
Pub.L.
Income
employ
fluctuating,
la to
in-
a
market-based
1001,
seq.,
§§
et
and is a “defined
U.S.C.
lump
benefit,
terest
sum
rate to calculate
plan” under
Internal Revenue
benefit
thereby
disparity
and
eliminate the
in the
of the Plan
is the
Code. The feature
which
options.
Kane,
of
Mr.
acting
value
the two
litigation
provision
this
is its
point
focal
of
plaintiff,
for
follow this
did not
advice.
employee
permitting
retiring
a
to receive all
single, lump
of
in a
his or her benefits
sum
Kane retired in 1984 and Kevin Steiner
payment
ordinary
replaced
July
plaintiffs
as an alternative
Kane on
Kane,
monthly payment
Although
of benefits.
chief financial officer. Unlike
Mr.
lump
provided
lump
Plan
that the
sum benefit was Steiner
not know that
did
sum
monthly
make
benefit
valuable than the
calculated so as to
it the actuarial
was more
equivalent
monthly payment
payment option.
option,
Order
Remand at
of
ApltApp.
in 1984 or
prior
plain-
fact
the case
at 80. Also
this was never
to 1986.
tiff
Instead,
developed
became aware that the Plan
for calculat-
would
the formula
31, 1985,
by
to be
ing
lump
amended
October
to com-
sum benefit
the amount
ply
Equity
Act
the Retirement
oth-
option being
and
in that
more valuable
resulted
er laws
regulations.
signifi-
and
The most
option,
monthly payment
than the
as is de-
cant change
governing
required
law
previous opin-
in our
scribed more detail
for the first time that
ion.
at 937. The formula was creat-
31 F.3d
Kane,
plaintiffs
single
was
by
calculating optional
ed Mr. F.J.
who
chief
a
formula for
until his
financial officer
retirement
benefits be selected and written into the
lump
payment
sum
Plan.
requirement
Kane knew that the
This was a new
in feder-
monthly payment
pension
than the
al
more valuable
law—that
the factors
used
option.
equivalence’
option-
‘actuarial
determine
of
al benefits should become fixed and be
Beginning
retained defen-
written into the Plan.
Higgins
actuary
dant Johnson
as the
for
¶ 24,
Finding
Aplt-App.
of Fact
Plan,
arrangement
an
which continued
regulations
new laws
a
included deadline
performed by
until 1988.
of the services
One
31, 1985, making
of October
all
conform-
prepare an annual actuari-
defendants was to
ing amendments to the Plan.
Plan,
al
as required
statement
for the
February
Each annual statement
ERISA.
included
Kevin Steiner met for
representatives
valuation of
Plan’s assets
liabilities
the first
time with
of John-
permissible
range
a calculation of the
son &
the Plan
Higgins to discuss
and the
employer contributions
to maintain
which would have to
needed
amendments
be made.
solvency
historically
meeting
Although
of the Plan.
Mr.
told at this
Steiner was
benefits,
most
chosen the
report-
retirees had
more valuable
value
accrued
the amount
distribution,
lump
statements,
sum
ed on
annual financial
defendants continued
year
assumption
prepare
each
the valuation of the was
on the
that all
calculated
assumption
retiring
monthly
Plan
employees
retirees would
would choose
monthly payments.
payment
Mr.
Consequent-
choose the
form of distribution.
Steiner
ly,
if it
substantially
the Plan valuations
under-
asked
would make a difference if instead
lump
option,
were to be done on the as-
elect the
sum
was some
the calculation
$9
sumption
greater
that all retirees would elect the million
than the value of accrued
lump
He was told that this would have
assumption
sum.
benefits estimated on the
requested
employees
Mr.
retiring
to be calculated.
Steiner
choose
receive
done,
monthly
payments.1
this calculation be
After
received
More than once after this
agreed
report
Higgins,
to do so.
from Johnson &
the Plan
February meeting,
up
Mr.
followed
adoption
was amended
of a new for-
request, eventually asking
rough
benefit,
for a
lump
on his
mula to calculate the
sum
one
“ballpark”
estimate of liabilities based on which for the first time was calculated to
assumption
employees
option
that all
would make the
sum
the actuarial
Finding
Fact
equivalent
monthly
elect to take the
sum.
of the alternative
distri-
*4
¶ 28, Aplt.App. at 66.
bution.
If the amendment had been made
31, 1985,
before October
or at least before
provide plaintiff any
Defendants failed
regulations
January
new
went into effect in
information or
calculations in re-
1986, the amendment could have been made
sponse
requests prior to the
to these
critical
applicable
employees.
to all
As the district
31,1985.
Instead,
Id.
defen-
date of October
however,
found,
court
prepared amendments to the Plan
dants
regulations
due to
in effect after October
compliance
which sufficed to achieve
with the
31, 1985,
plan
the 1986 amendment to the
law,
requirements
controlling
new
of the
applied only
prospective
to the
calculation
by incorporating
did so
the old formula for
of benefits. Mr. Steiner indicated at trial
lump
options
sum
into the Plan document.
that if
the re-
[defendants] had submitted
advising plaintiff,
so without
Defendants did
report
31,
quested
prior
new
to October
specifically requested,
magni-
as
about the
1985,
adopted
Steiner would have
a Plan
tude of the
in the value of the
difference
that
retroactively
would have
altered the
monthly
lump sum distribution versus the
plan
lump
retirement
such that
the
sum
payment option. Defendants did not advise
equivalent
would
rendered the actuarial
be
plaintiff
corresponding
funding
of the
under
annuity
of the
for all retirees after
benefit
inception
having
of the Plan since its
due to
31,1985.
October
funding
assump-
on the
set
levels
unrealistic'
tion that all retirees
elect to receive
would
4, Aplt.App.
Order on Remand at
at 81.
monthly payments. Defendants did not in-
found,
judge
following
district
the
The
that,
plaintiff
although
form
there was a dif-
preceded
appeal,
bench trial which
the first
matter,
opinion
ference of
on the
there was a
that
should have known that
possibility
lump
sum formula could plaintiff
change
“might want to make a
changed
being incorporated
into
before
practice
continuing
long time
the differen-
document,
significant resulting
the Plan
with
options.”
in value of the
tial
benefit
opinion
savings.
Id. at 67-68. This court’s
judge further found that defendants’ failure
prior appeal
herein found that Steiner
provide
requested
information
changed
Layered
in fact could have
“the
“amounted to conduct below the standard
lump
equivalent
Formula to make the
sum
industry
care
constituted
annuity,
and that J & H breached its
Finding
part
of J. H.”
of Fact
&
duty by failing
provide
this information
¶31, Aplt.App.
primary
at 68. Plaintiffs
31,1985.”
October
In are concerned in this March defendants submitted the which we negligence providing such in not calculations which Kevin Steiner had re- based on which, it is quested requested 13 months before. Defendants’ esti- information claimed, the value of for would have enabled mate of accrued benefits lump employees calculating formula for assuming retiring its amend $14,564,243.00 assumption judge finding would be 1. The district made this of fact: election $5,046,536.00 annuity using instead of early defendants informed Steiner assumption. provided election calculations that the value of ¶ ApltApp. using Finding at 68. accrued of Fact benefits sum prior to the critical date of Octo- there was insufficient evidence of Steiner’s sum benefit delay making alleged litigation the amended formula intentional so ber many employees, more laches applicable to that defense failed. Id. savings resulting substantial
Steiner.
II
held, however,
originally
court
The district
A
any damages
not suffered
had
negligence. The
of defendants’
as a result
argues
Plaintiff Steiner
the district
held,
appeal
the first
to this
judge
before
holding
erred
Steiner’s own
court,
change in the formula could
any
pre-1985
comparatively
employees whose benefits
affected
not have
greater
actuary,
than that of its
defendant J
already
because the old formula
accrued
H, barring
recovering
Steiner from
for J &
Plan
custom and
had become
negligence.
Aplt.
H’s
Order on Remand at
appeal,
In the first
we reversed
practice.
App.
points
at 85. The
cited four
according
ruling
and held
by plaintiff: plaintiff
had been
§
language
1054(g)(2),
of 29 U.S.C.
explicit
aware at times before 1985 that
benefit,
optional
lump sum is an
form of
sum benefit was more valuable than the
may
impermissi-
be said to
and that Steiner
*5
monthly payment option; plaintiff
itself
“only
bly
benefits
if it were to
reduce accrued
Kane)
(through Mr.
had created the formula
31
at 940
eliminate the
sum.”
F.3d
disparity;
which
caused
defendants had
could,
(emphasis
original).
in
Thus Steiner
disparity
representatives
discussed the
with
advice,
timely
with
actuarial information and
and,
plaintiff
in 1977 and
had recom-
arguably
savings by
substantial
have
made
altering
adopt
the formula to
a mar-
mended
changes in the formula. We remanded
such
ket-based interest rate factor to calculate the
to
for the district court
consider causation
sum,
followed;
advice
was not
and
alleged damages from defendant J & H’s
plaintiff had
to follow
declined
defendants’
negligence, and other defenses to the
advice to have the 1984 Plan amendment
claim,
judge
originally
gence
which
by independent
legal
reviewed
counsel.
Id.
unnecessary to
found it
decide.
Plaintiff Steiner maintains that
in
remand, the trial court received addi-
On
findings absolving
actuary,
these
its
defen
argument,
tional briefs and heard oral
but no
H,
liability,
judge
dant J & of
the trial
failed
presented.
judge
was
further evidence
The
perceive
proper
profes
to
standard of
findings
made
on the ultimate issues of com-
principle
by
sional care. The basic
relied on
causation,
parative negligence and
based on
professional holding
Steiner is that a
himself
underlying
after
facts found
the bench
patients
out to serve clients or
is liable for
judge
trial. The
found that
negligent performance
his
of duties under
damages
neg-
its
was not entitled to
because
may
taken and
not be relieved of such liabili
defendants,
ligence
barring
that of
exceeded
ty by
patients’
his clients’ or
actions in caus
recovery
comparative negli-
Utah’s
under
ing
getting
very
in
or
involved
conditions
statute,
§
Utah Code Ann.
78-27-38
professional
employed
which the
was
(1996).
holding,
pre-
so
cited
remedy.
undertook to treat or
Otherwise
Steiner,
by plaintiff
1985 actions
which he
professional
responsi
would not be held
negligence that contribut-
found to have been
performing
very
ble for
duties he as
injury.
The
further
ed to Steiner’s
agree
sumed. We
with
Steiner on
by
negligence
Steiner itself
found that such
principle.
this
comparatively greater
than
its
was
that of
H,
actuary,
principle applies logically
profes
in
defendant J &
its contribution
to
services,
injury
performing accounting
in
suffered when the Plan was not
sionals
Beck,
properly adjusted
barring
therefore
v.
689 n.r.e.) care, attorneys, logically as in McLister al applies ref standard which d 2 Lawrence, P.C., actuaries, applied Epstein v. & P.2d and was McLister Fullmer, (Colo.App.1996)3. principle attorneys, recognized Under and as we There, giving compara of a McLister held which involved accountants. as a error, stating ruling, rejected tive instruction Utah we the notion of absolv- persuasively ing responsibility the accountant for dam- age theory caused his client on a of com-
Although comparative negligence is a parative contributory negligence by the legal malpractice to a claim of defense client, holding: Olsen, Colorado, Scognamillo see (Colo.App.1990), Allowing the client’s al- P.2d 1357 such a illu- defense render leged negligence sory must relate to the the notion that an accountant liable alleged by negligent to have been caused the attor- performance of his duties. ney’s negligence hereby adopt and must relate to the the rule enunciated attorney’s representation.... Shapiro courts, Surety National and articulated Hawkins and Menzel
Here, however,
in-
the court based the
contributory
struction on
failure
obtain
client is
a defense where it has con-
compensation
workers’
insurance
per-
tributed to the accountant’s failure to
Although
may
first instance.
the evidence
report
form the contract
the truth.
been relevant to the issue of causa-
tion,
agree
that this con-
Grain,
(quoting
at 1398
F.2d
Lincoln
duct cannot serve as the basis for a com-
Coopers Lybrand,
Inc. v.
216 Neb.
parative negligence instruction.
(1984)).
300, 307
N.W.2d
Defendants knew that
was unin- We held
in Fullmer that
further
they agreed
represent him.
sured when
Allowing
a comparative negligence
either
*6
Plaintiffs failure to obtain workers’ com-
contributory
negligence defense would
pensation insurance was therefore neither
illusory
tend to “render
the notion that an
with,
causally
contemporaneous
nor
linked
negligent per-
accountant is liable for the
negligence
handling
in
to defendants’
his
duties,”
formance of his
which is a result
Thus,
giving
case.
of the instruction
Grain,
rejected by Lincoln
345 N.W.2d at
Smith,
2 R.
was error. See
Mallen & J.
reasoning
307....
The basic
was stated
(1996).
Legal Malpractice § 20.2
in
Surety Corporation
Lyb-
National
v.
attorneys
rely
To allow the
563;
rand, 9 N.Y.S.2d at
see no
“[W]e
preceding
negligence of the client
the at-
reason to hold that the accountant is not
torney’s engagement
equivalent
would be
employer
Neg-
liable to his
in such cases.
allowing
physician
a
to defend a claim
ligence
employer
of the
is a defense
malpractice
negligence
based on the
of
when it has
to the accountant’s
contributed
sought
patient
having
in not
treatment
perform
contract
failure to
his
and to re-
sooner.
port the truth.”
P.2d at
934
involved the (1996); Corp. Capital Mortgage v. Coo- clients. pers Lybrand, Mich.App. 142 369 we should here are convinced We (1985). N.W.2d 922 We find these cases parameter professional of observe the same part, unpersuasive. the most anal- For their H, actuary, J & as we responsibility for ysis essentially premised noting is on professional accountant did for the similar under, Surety National was decided Fullmer: avoid, sought the harsh rule contributo- that the more 'persuaded are [W]e funda- ry negligence, concluding that under modern is that the accountant principle mental statutes, comparative negligence holding duty under- absolved not he should unnecessary Surety permit National reasonably relying one by him to taken to recover when its has plaintiff’s negligence his audit unless rejected relatively slight. ra- been We auditor’s misstatement contributed Fullmer, tionale F.2d at 1398-99. Our reports. in his analysis is not based on the above differences added). (emphasis F.2d at comparative contributory between specific injury al- focuses on B specific leged duties argu- J now to defendant & H’s We turn undertaken the defendants. are con- escape liability seeking to under ments vinced either a that under professional malpractice principle discussed regime, contributory negligence the acts of above. circumstances, getting the client in into the professional remedy, he employs which argu we note that one At the outset may liability to avoid for the be asserted firmly H has ment J & been of defendant professional’s subsequent negligence. own rejected controlling Supreme Court Therefore, rejecting the cases National Russell, Regina College decision Salve Surety unpersuasive. are 1217,113 L.Ed.2d 190 S.Ct. U.S. (1991), parties here have not rec which the & H argues principle J further that ognized. H cites earlier decisions of this J & Fullmer, applied to accountants National great court deference is and contends Grain, Surety, eases, Lincoln and other owed of the federal district to the view apply should not to actuaries. The *7 here with Utah law. Brief of who is familiar presented any convincing is without rationale Appellees That at 18-19. notion of deference defending supporting authorities the no- expertise of the is the local district that subject tion actuaries should not be Regina clearly wrong College since Salve principle. persuaded same not the We are decided, our consideration of the Utah and by J & It has been H’s contention. noted law us must novo. questions before be de malpractice that general “[t]he law of has College firmly Regina Salve instructed us applied been in a manner to actuaries similar responsible appellate that obligation “the of professions.” that of other William D. of principles cooperative a review and the Noel-Chretien, Hager Emerg- Paul The and judicial underlying require Erie federalism ing Malpractice, Law Actuarial 31 Drake of review appeals the state-law courts of (1982). actuary Law Review of district courts de novo.” determinations public holds out to the as a special- himself at 1225. Id. 111 S.Ct. at expert, employment ized and he undertakes perform primary argu professional of defendants’ his services
One
application
principle
professionals—
of
of
same
other
against
the
manner as the
ments
accountants,
Surety
progeny, including
lawyers, physicians
its
for ex-
National
Fullmer,
ample.
recognized
already
these cases
re
the
is that
have been
We
jected
principle
liability
number of courts.
and the limitation on the
by a
Defendants
cite,
alia,
Nursery
contributory
comparative negligence
Halla
v. Baumanm-
de-
inter
(Minn.1990);
Co.,
expressed
fense for
reasons
in Full-
Furrie &
454 N.W.2d
sound
mer,
applied
us as
Hospital Ass’n v. Price Wa-
which is now
Scioto Memorial
loss,
prevented
H
of Utah law. Defendant J &
could have
the
much like the
the rubric
in
authority
Ferguson.
Fiberglass
client
persuasive
that Utah is
Western
presents no
road,
not
limiting
analysis
pro-
inconsistent with our
of the
go
another
prepared to
down
responsibility.
fessional’s
persons employing
actuaries
the relief
professional
to under the
mal-
are entitled
analogy
An
to the facts of the instant case
practice rules.
may
helpful. Suppose
had
attorneys regarding
legal
consulted
the
re-
Ferguson,
in
Our decision
F.D.I.C.
quirements
employee
plan
for its
(10th
retirement
Cir.1991), is not to the con-
F.2d 404
under ERISA and the Internal Revenue
case,
trary.
In that
the Ghent’s
Suppose
Code.
further that the
failing
perform
tasks it had
consisted of
negligently
up
plan originally
set
without
itself,
perform
in
specifically undertaken to
following legal
beyond
advice. We think it
connection with the transactions on which
attorneys
that if the
undertook to
attorney
perform
defendant
undertook
law,
bring
plan
compliance
into
with the
tasks,
drafting
other discrete
such as
docu-
but failed to do so due to failure to exercise
Ferguson
ments.
Ill if, that revision been effected October 31,1985. A reject Accordingly, argu- defendants’ proceed We now to consider alternative urged by injury. grounds for affirmance defendants. ment that has suffered no *9 that, plaintiff, point according judge’s Although 5. the district court found that the district Kane, always through officers such as had findings, specifically agreed defendants to make lump benefit was more valu- known sum to do so within a calculations failed monthly retiring employee able to than the reasonable time. find, payout, judge installment did not nothing findings suggests, plain- in his either that agreed pretrial parties 6. In the order the that magnitude tiff knew the cumulative of the differ- 31, 1985, after October the formula could not ence for the Plan as a whole or that any changed have been to have retroactive effect. ability by to estimate the cumulative effect Order, M,¶ Aplt. App. at 46. Pretrial event, any actuarial methods. the material
693 anyone retiring B after October 31. 31 F.3d at arguments ad- advance two Defendants prudent We conclude that the course is to First, defendants con- to causation. dressed injury leave this issue causation of for the finding that court’s tend that the district judge to district address the first instance predominant negligence was the plaintiffs remand, along on with his determination of injury implied finding is an that cause of the damages. injury, conduct did not cause the defendants’ finding that this cannot be overturned C clearly erroneous. The district court unless negligence “that H’s was at least a found J & plaintiffs Defendants contend that change partial cause of Steiner’s failure to by They claim be should barred laches. Aplt.App. formula in the Plan.” the actuarial plaintiff deliberately delayed filing claim that However, further found at 82. died, allegedly suit until after Mr. Kane had negligence own was the domi- that “Steiner’s testimony because knew that Kane’s Id. nant cause.” concerning knowledge his about the value of option sum would have been dam legal analysis, this record and our we On aging plaintiffs case. The defense fails as finding that that the district court’s hold precedent, a matter of law. Under Utah “predomi- plaintiffs negligence own was the laches, govern limitations but not the timeli injury as nant cause” of its must be set aside DOIT, ness of an action at law like this. Inc. an clearly erroneous. This was based on Touche, Co., v. 926 Ross & P.2d law, erroneously per- erroneous view of the (Utah 1996) Mack, (citing United States pre-1985 acts to serve as mitting Steiner’s 480, 489, 813, 818, U.S. S.Ct. L.Ed. comparative negligence. As grounds of (1935)). rejected a DOIT laches notion discussed, negligent acts identified involving under circumstances the death of by improperly the district were deter- dispersal one witness and of others —circum the basis for the mined like those relied on H here. stances J & negligence defense because those acts did not injury have been alleged “relate to the D [professional’s] caused ” McLister, 934
gence .... P.2d Finally, argue judg- ment should be affirmed because contributo- Defendants also assert ry negligence, comparative negligence, prove negligence failed to defendants’ control. Under the traditional com- should injury. argument caused the This is basical contributory negligence, mon law doctrine sufficiency ly an attack on the of the evi course, plain- any fault on the specifically Defendants do not take dence. injury recov- tiff which led to the would bar findings, any issue with of the district court’s ery, if fault were much even defendants’ essence, urge, but instead greater. proved that it have acted to never would their Defendants base injury, performed avoid the had defendants wording comparative negligence stat- undertaking provide requested their which was in effect in Utah from its ute timely in a actuarial information and advice enactment in 1973until after the events was at a substantial fashion. There least That on which claim is based. showing by disputing factual defen part: provided, pertinent statute position point. prior opin dants’ Our re- Contributory negligence shall not bar ion noted that Mr. Steiner testified at trial person covery by any in an action or his requested that if H had J & submitted 31, 1985, representative damages legal then to recover calculations before October gross negligence result- adopted a new formula Steiner would have person proper- retroactively ing affected retir in death or that would have ty, great was not as sum if such ees’ benefits such *10 gross negligence of the annuity for equal have been to the benefit (See recovery injury. sought, pellant whom Steiner had suffered no against person IIIA, damages part allowed shall be dimin- IIIA any part supra.) opin- but proportion to the amount of 13, 1998, January ished ion as filed on we stated person to the re- negligence attributable appellees they had failed to show that covering. this issue in the had raised district court. 1986) wrong. Appellees (repealed § This was had cited their 78-27-38 Ann. Utah Code added). emphasized portion showing From the brief to the of the record (emphasis argue that the statute language, defendants the issue had raised below. Ac- been action, apply in which dam- to this petition does cordingly, grant rehearing we for injury only. ages sought for economic are part, and we have revised IIIA. We have removed erroneous statement no Utah case con- Defendants have cited particular language on which the issue not been shown to have been struing the made no substantive they rely, raised below and instead have addressed the brief, argument reply in its response to this issue on its merits. only remarking “merits respects petition In all other for re- suggested response.” Defendants’ con- no hearing is denied. The clerk is directed to language appears statutory struction append opinion this order to the revised filed
plausible, that we need not conclude today published along and to cause it to be scope repealed of this statute determine the opinion. with that analysis it is immaterial because under our contributory negli- whether
gence principles apply. As we have ex-
plained, of none of the instances
by plaintiff which weré identified the dis-
trict could have contributed
injury plaintiff seeks to for which recover. apply if con-
Accordingly, even we were tributory negligence, compara- rather than SWANSON, child, By Annie a minor negligence, our result would be the tive Through parents friends, her and next same. Lucy Swanson, Dennis SWANSON Conclusion Plaintiffs-Appellants, Accordingly, we REVERSE the district findings rejecting judgment court’s GUTHRIE INDEPENDENT SCHOOL malpractice against claim Steiner’s I-L; Scheihing, DISTRICT Melvin NO. REMAND for a defendants and determina- President; Kinney, Karl 1st Presi- Vice tion, opinion, of causation consistent with dent; DAVIS, President; RICK 2nd Vice damages, any, if and the Hugh Plagg, Member; Fowler, Evans G. claim, by plaintiff on that sustained Member; Hudson, Member; Robert Jan- entry judgment and for in accordance with Pierson, Member; Bowman, na Don Su- judgment those in fa- determinations. perintendent; Haney, Principal, J.E. De- vor of defendants on their counterclaim for fendants-Appellees. fees appealed was not and is not disturbed. No. 96-6354.
ORDER PETITION ON FOR REHEARING Appeals, United States Court Tenth Circuit.
March defendants-appellees’ On consideration of Jan. timely petition rehearing, the court has opinion determined that the filed herein on 13,1998,
January respect. was in error one brief,
In their argued as an alter- plaintiff/ap-
native basis for affirmance that