Norton v. MacFarlane

818 P.2d 8, 169 Utah Adv. Rep. 12, 1991 Utah LEXIS 86, 1991 WL 176181
CourtUtah Supreme Court
DecidedSeptember 12, 1991
Docket880248
StatusPublished
Cited by40 cases

This text of 818 P.2d 8 (Norton v. MacFarlane) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norton v. MacFarlane, 818 P.2d 8, 169 Utah Adv. Rep. 12, 1991 Utah LEXIS 86, 1991 WL 176181 (Utah 1991).

Opinions

STEWART, Justice:

This is an interlocutory appeal from the trial court’s order denying defendant’s motion to dismiss plaintiff’s tort actions for alienation of affections and criminal conversation. On this appeal, we are again urged to abolish the tort of alienation of affections as well as the tort of criminal conversation.

Plaintiff Norton’s complaint alleges that he and his wife, Sherry Norton, had three children during their marriage and that they lived happily and contentedly together until the summer of 1985. The complaint alleges that at that time defendant Macfar-lane, a physician, developed an improper and undue influence over Sherry Norton and that he induced her by means of that influence to abandon and leave her husband, home, and children. The complaint further alleges that Macfarlane knew that Sherry Norton was plaintiff’s wife and that he nonetheless committed adulterous acts with her. Defendant filed a motion under Rule 12(b)(6) of the Utah Rules of Civil Procedure to dismiss both of plaintiff’s claims for failure to state a claim upon which relief can be granted. The trial court denied the motion, and we granted a petition for interlocutory appeal.

I. THE TORT OF ALIENATION OF AFFECTIONS

We again revisit the issue of whether marital consortium interests should be protected by the tort of alienation of affections. We affirmed the continued viability of that action in Nelson v. Jacobsen, 669 P.2d 1207 (Utah 1983). Defendant’s argument in this case is that abolition of the tort is required by our subsequent decision in Hackford v. Utah Power & Light Co., 740 P.2d 1281 (Utah 1987), and by the Legislature’s adoption in 1987 of irreconcilable differences as a ground for divorce. See Utah Code Ann. § 30-3-l(3)(h) (1989). Defendant also asserts that the tort should be abolished for a number of other reasons and that Utah' should join what he asserts is the “mainstream of American legal opin[10]*10ion” by abolishing the tort of alienation of affections.

In Nelson, a divided court sustained the viability of the tort of alienation of affections and rejected almost all the arguments defendant asserts here for abolishing that tort. We need not traverse again the same ground that was covered in Nelson. Defendant does, however, raise a few new arguments in contending that the tort of alienation of affections should be abolished. We address only those issues and rely on Nelson as an adequate answer to defendant’s remaining arguments.

First, defendant argues that the Court should reassess the holding in Nelson in light of our intervening opinion in Hackford v. Utah Power & Light Co., 740 P.2d 1281 (Utah 1987), which, again by a divided court, held that a spouse has no independent action against a tort-feasor for loss of consortium arising from a physical injury caused to the other spouse by the tort-feasor.1 Defendant insists that because Hackford denied protection to the consortium interests of a spouse while Nelson protected the consortium interests of a spouse, those cases are inconsistent and cannot logically coexist. Defendant fails, however, to recognize significant differences between those two cases.

Hackford did not address the issue whether the intentional tort of alienation of affections should be abolished. The issue in Hackford was whether one spouse had an independent cause of action for damages for loss of the other spouse’s consortium because of a physical injury negligently inflicted on the other spouse by a third party. The Court held that the Married Woman’s Act of 1898, which states in part that “[tjhere shall be no right of recovery by the husband on account of personal injury or wrong to his wife,” Utah Code Ann. § 30-2-4 (1989), barred a nonphysically injured spouse from suing on an independent cause of action for loss of consortium as a result of physical injury to the other spouse. See Hackford, 740 P.2d at 1288. Justice Zimmerman wrote the lead opinion in Hackford. Justice Howe wrote an opinion concurring in the result, which was joined by Chief Justice Hall. Justice Durham wrote a dissenting opinion, concurred in by the author of this opinion. A common rationale relied on by both Justices Zimmerman and Howe was that the Married Woman’s Act and the doctrine of stare decisis precluded recognition of a cause of action for loss of consortium caused by the negligent conduct of a third party. Justice Howe also explicitly stated that the cause of action asserted in Hackford was derived from the primary, personal injury caused the other spouse, and therefore was distinguishable from a direct cause of action for loss of consortium by a tort-feasor’s alienation of the affections of one spouse for the other. 740 P.2d at 1287. Hackford does not, therefore, stand for the proposition that consortium is an interest undeserving of judicial protection.2 Justice [11]*11Durham’s dissent argued that consortium was indeed a valid, protectible interest, and that injury to consortium interests gave a nonphysically injured spouse an independent cause of action for that loss. She contended that neither the Married Woman’s Act nor the doctrine of stare decisis precluded such an action.3

Defendant’s argument that Hackford and Nelson are in irreconcilable conflict is correct only insofar as the result is concerned. They are not inconsistent in principle, however, because both support the proposition that the interests included in the term consortium are legitimate interests deserving of legal protection. Because the Court’s refusal in Hackford to recognize a nonphysically injured spouse’s cause of action for a loss of consortium arising from a physical injury to the other spouse was based on statutory construction and stare decisis, that case did not undermine this Court’s ruling in Nelson. Nor does Hackford have any force in persuading us that the common-law cause of action at issue here should be abolished.

Furthermore, even if we were to reverse Nelson and abolish the tort of alienation of affections to achieve consistency of result with Hackford, we still would not bring consistency of result to Utah law in the sense that defendant thinks appropriate. The Utah Constitution provides civil damages for injuries to the consortium interests of familial love, companionship, services, and society that arise in wrongful death actions. Article XVI, section 5 of the Utah Constitution provides a cause of action for wrongful death and states that “the amount recoverable shall not be subject to any statutory limitation....” Several Utah cases hold that injury inflicted on family relationships is a recoverable damage item in a wrongful death case under this provision. In Evans v. Oregon Short Line Railroad, 37 Utah 431, 108 P. 638 (1910), an action for the wrongful death of a spouse, this Court defined the consortium-type damages that are recoverable in such an action:

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Bluebook (online)
818 P.2d 8, 169 Utah Adv. Rep. 12, 1991 Utah LEXIS 86, 1991 WL 176181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norton-v-macfarlane-utah-1991.