Field v. Boyer Co., LC

952 P.2d 1078, 338 Utah Adv. Rep. 10, 1998 Utah LEXIS 11, 1998 WL 86064

• Court: Utah Supreme Court
• Decided: March 3, 1998
• Docket: 960437
• Status: Published

Opinions

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 section 78-2-2(3)(j) of-the Utah Code. The trial court ruled as follows: (i) Utah’s comparative fault provision, section 78-27-38 of the Code, requires the comparison of negligent and intentional conduct in apportioning fault; and (ii) fault could be apportioned to the unknown assailant even though the assailant was not named as a party defendant. We affirm in part and reverse in part.

We begin with a brief review of the facts before turning to the standard of review and our analysis. In September of 1994, Field was an employee of Mervyn’s, located in Brickyard Plaza in Salt Lake City. Brickyard Plaza is owned and operated by the Brickyard defendants. On the evening of September 7,1994, Field left the Mervyn’s store and went to her vehicle in the employee parking lot. She then walked across the lot to an area southeast of the store. As she passed some stairs on the southeast side of the Mervyn’s store, she was assaulted from behind, a rope was wrapped around her neck, and she lost consciousness. While she was unconscious, Field was physically and sexually assaulted.

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 Mer-vyn’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 section 78-27-38 of the Code. Field opposed the motion, but the trial court granted the motion and certified its ruling as a final judgment under rule 54(b) of the Utah Rules of Civil Procedure. The parties, having determined that the trial court’s judgment may not have been validly certified under rule 54(b), jointly, sought leave to have the appeal considered as an interlocutory appeal under rule 5(a) of the Utah Rules of Appellate Procedure. We granted this request and subsequently granted the interlocutory appeal.

As to the standard of review, the trial court’s determination that section 78-27-38 should apply to apportion fault. to Field’s unknown assailant is a question of statutory construction, a purely legal conclusion, which we review for correctness. See State v. Pena, 869 P.2d 932, 936 (Utah 1994).

Moving .to our analysis, section 78-27-38 of the Code provides in part:

(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.” Utah Code Ann. § 78-27-37(1). Further, 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, 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.

Id. § 78-27-37(2).

The Brickyard defendants argue that they 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 section 78-27-37(2)’s definition of “fault” encompasses both negligent'and intentional conduct. We look to the statute’s plain language as the best evidence of legislative intent. See Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877, 879 (Utah 1993) (citing Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 906 (Utah 1984)). When reduced to its essentials, the statute’s definition of “fault” includes “any ... act ... proximately causing or contributing to injury or damages.” Utah Code Ann. § 78-27-37(2). Clearly an intentional tort such as battery is an act that proximately causes or contributes to injury or damage. Thus, we conclude that the legislature included intentional acts in its comparative fault scheme.

The issue of whether section 78-27-38 allows a comparison of fault between a party defendant and a nonparty, unknown assailant is more complex. A close parsing of the statute is necessary before we can determine to whom fault may be allocated. Beginning with subsection (3), the guiding principle of this statute is that “[n]o defendant is liable ... for any amount in excess of the proportion of fault attributed to that defendant under Section 78-27-39.” Id. § 78-27-38(3). To implement this principle, the legislature enacted subsection (4)(a) of 78-27-38, which applies when a court is “determining the proportionate fault attributable to each defendant.” Id. § 78-27-38(4)(a). Subsection (4)(a) provides that the court may, or when requested by a party shall, “consider the conduct of any person who contributed to the alleged injury.” Id. This broad phrase, which would appear to include all persons, whether or not a party, is followed, however, by a phrase providing that the court “may allocate fault to each person seeking recovery, to each defendant, and to any person immune from suit who contributed to the alleged injury.” Id. Thus these two portions of subsection (4)(a) seem to conflict, one providing that the court may “consider” the fault of any person, and the other providing that the court may “allocate” fault only to plaintiffs, defendants, and persons immune from suit.²

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 Statutes §§ 254, 255 (1974)). In this ease, 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 section 78-27-38(3) 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.” Utah Code Ann. § 78-27-38(3) (emphasis added). The Brickyard defendants paraphrase this section as • embodying the- principle that no person should be held liable for more than his or her proportionate share of fault. They argue that this principle requires a comparison that includes Field’s unknown assailant. Such a paraphrasing, however, distorts the statutory language. The statute’s mandate, as embodied in subsection (3), is that no defendant be liable for more than the portion of fault attributed to him or her under the statutory scheme. Specifically, section 78-27-39, which is referenced in subsection (3), provides the mechanism for attributing fault only to plaintiffs, defendants, and persons immune from suit. It does not contemplate allocations of fault to nonparty tortfeasors. Thus, our reading of the statute does not violate subsection (3)’s mandate.

Further, we find the Brickyard defendants’ reading of subsection (3)’s generally phrased mandate to be inconsistent with more-detailed provisions of the statute. The Brickyard defendants posit that the statute requires that no defendant shall ever be held liable for more than his or her proportionate share of fault. The statute itself, however, does contemplate a situation where defendants will be held liable for more than their share of fault. Section 78-27-39(2) sets forth the procedure for attributing fault to persons immune from suit. If the initial attribution of fault to all immune persons is less than 40%, “the trial court shall reduce that percentage or proportion of fault to zero and reallocate that percentage or proportion of fault to the other parties in proportion to the percentage or proportion of fault initially attributed to each party.” Id. § 78-27-39(2)(a). Thus, in some instances the statutory scheme itself holds defendants liable for some percentage of fault initially attributable to a person immune from suit. Our refusal to allow the attribution of fault to Field’s unknown assailant thus comports with the overall statutory scheme.

We also note that the statute provides a mechanism whereby those such as 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.” Id. § 78-27-41(1). Although the legislature did not make such joinder mandatory, this section, interpreted in the light of section 78-27-37’s language allowing attribution to plaintiffs, defendants, and persons immune from suit, certainly 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 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, however, 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 Utah Code Ann. §§ 78-27-38(4)(a), -39(2). Further, our decision in Sullivan hinged on the mandate that “no defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributable to that defendant.”- Id. § 78-27-38 (Supp.1993) (emphasis added). We reasoned that this mandate required attribution of fault to an immune employer to avoid holding the defendant in that case liable for more than “the proportion of fault attributable to that defendant.” Sullivan; 853 P.2d at 879. That statutory language, however, has since been modified so that no defendant may be held liable for fault in excess of the “fault attributed to that defendant under Subsection 78-27-39.” Utah Code Ann. § 78-27-38(3) (emphasis added). Because subsection 78-27-39 clearly allows for attribution only to plaintiffs, defendants, and immune persons, our reading of the statute to disallow attribution of fault to Field’s unknown assailant cannot violate subsection (3)’s mandate. Thus, our reading of the statute does not conflict with our holding in Sullivan.

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.

1 . The defendants are numerous. For purposes of this case, however, defendants' arguments are identical. For ease of reference, all defendants except Mervyn’s will be referred to collectively as "the Brickyard defendants.”

2 . We note that in S.H. v. Bistryski, 923 P.2d 1376 (Utah 1996), this court held that the comparative fault provisions of sections 78-27-37 and -38 applied to Utah’s strict liability dog bite statute, section 18-1-1, and we allowed the trial court in that case to attribute fault to the nonparty mother of a minor who had been bitten by a dog. Bistryski, 923 P.2d at 1382. In so holding, this court relied on the "any person” of 78-27-38(4)(a), not upon the language of the second part of subsection (4)(a). That language, allowing the court to attribute fault only to plaintiffs, defendants, and immune persons, upon which we rely today, was not brought to our attention and was not considered in Bistryski.