Jensen v. Intermountain Health Care, Inc.

• Decision Date: 15 February 1984
• Docket Number: No. 17980,17980
• Citation: 679 P.2d 903
• Parties: Shirley J. JENSEN and Paul B. Jensen, Plaintiffs and Appellants, v. INTERMOUNTAIN HEALTH CARE, INC., Defendant and Respondent.
• Court: Utah Supreme Court

Page 903

679 P.2d 903

Shirley J. JENSEN and Paul B. Jensen, Plaintiffs and Appellants, v. INTERMOUNTAIN HEALTH CARE, INC., Defendant and Respondent.

No. 17980.

Supreme Court of Utah.

Feb. 15, 1984.

James R. Hasenyager, Ogden, for plaintiffs and appellants.

Allen M. Swan, Salt Lake City, for defendant and respondent.

STEWART, Justice.

This is an appeal from the dismissal of a medical malpractice action in which the plaintiffs' decedent Dale Jensen died as a result of negligence on the part of an emergency room physician and the hospital. The plaintiffs settled with the defendant doctor and went to trial against the hospital. The jury returned a special verdict, finding plaintiffs' decedent 46 percent negligent in causing his own death; Intermountain Health Care, Inc., 36 percent negligent and the doctor, 18 percent negligent. Judgment was entered in favor of plaintiff Shirley J. Jensen and against the defendant hospital. The trial court then set aside the original award and entered a judgment of no cause of action. We reverse.

The issue in this case is one of first impression. It is whether the Utah Comparative Negligence Act requires the negligence of each defendant in a multi-defendant case to be compared individually against the negligence of the plaintiff or whether the total negligence of all the defendants should be compared to that of the plaintiff to determine whether a particular defendant is liable. Under the latter approach, or the "unit" rule, the negligence of all defendants is taken together in making the comparison; under the "Wisconsin" rule, the negligence of each defendant is compared against the plaintiff's negligence to determine whether a particular defendant is liable.

Thus, under the "unit" rule, the plaintiffs' decedent's 46 percent negligence in this case is compared with the combined 54 percent negligence of the defendants, and the plaintiffs would therefore be entitled to recover against the defendant. Under the "Wisconsin" rule, which was applied by the trial court, the negligence attributed to plaintiffs is greater than that of Intermountain's negligence by itself, and plaintiffs would not recover.

Intermountain Health Care argues that the trial court's ruling is correct on the ground that Utah intended to adopt the "Wisconsin" rule. The first section of the Utah Comparative Negligence Act, U.C.A., 1953, § 78-27-37 constitutes the whole of the one-section Wisconsin Act. Contrary to the Wisconsin statutory scheme, the Utah Act is a comprehensive, seven-section statutory scheme that deals with joint and several liability of multiple tortfeasors and the use of special verdicts for determining relative degrees of fault. The Utah Act must therefore be construed in light of, and to harmonize with, those additional sections.

I.

When construed as a whole, the Utah Comparative Negligence Act indicates that the legislative intent was not to adopt the Wisconsin rule of comparative liability. Unless the whole Utah Act is considered together, the result would be to misconstrue not only Section 1, but also other sections of the Act. Thus, adoption of the Wisconsin rule would nullify in part critical parts of the Utah Act and would produce results unfair to both plaintiffs and defendants.

Even the Wisconsin Supreme Court has become disenchanted with the fairness of its own rule. It has stated: "The majority of the court has become convinced that comparing the negligence of the individual plaintiff to that of the individual tortfeasor--rather than comparing the negligence of the individual plaintiff to that of the combined negligence of the several tortfeasors who have collectively contributed to plaintiff's injuries--leads to harsh and unfair results...." May v. Skelley Oil Co., 83 Wis.2d 30, 264 N.W.2d 574, 578 (1978). And the Arkansas Supreme Court, in rejecting the Wisconsin rule, has characterized that rule as being "demonstrably unjust." Walton v. Tull, 234 Ark. 882, 892-93, 356 S.W.2d 20, 26 (1962).

We recognize that when the Legislature adopts a statute from another state, the presumption is that the Legislature is familiar with that state's judicial interpretations of that statute and intends to adopt them also. 73 Am.Jur.2d Statutes § 333 at 46 (1974). However, that canon of statutory construction is not a hard and fast principle; it is subject to a number of exceptions, several of which are directly applicable in the instant case. In the first place, it is not applicable where there have been material changes made in the second statute. Copper Queen Consolidated Mining Co. v. Territorial Board of Equalization, 206 U.S. 474, 27 S.Ct. 695, 51 L.Ed. 1143 (1907); Stutsman County v. Wallace, 142 U.S. 293, 12 S.Ct. 227, 35 L.Ed. 1018 (1892); White v. White, 196 Ark. 29, 116 S.W.2d 616 (1938); McNary v. State, 128 Ohio St. 497, 191 N.E. 733 (1934). See also 73 Am.Jur.2d Statutes § 334 at 477 (1974). Secondly, the above-stated rule of statutory construction is subject to the exception that if the borrowed statute is "given a different setting in the adopting state" the construction placed upon the statute in the originating state need not be followed. Id. at 478; State v. Reed, 39 N.M. 44, 39 P.2d 1005 (1934); 102 A.L.R. 995 (1936).

Furthermore, the canon of construction referred to is not applicable where the courts of the adopting state are clearly of the opinion that the foreign construction is erroneous. Whitney v. Fox, 166 U.S. 637, 17 S.Ct. 713, 41 L.Ed. 1145 (1897); 73 Am.Jur.2d, supra, at 478. In addition, "the interpretation of an adopted statute by decisions of dates subsequent to that of the adoption cannot have been adopted by the statute. The adoption is accordingly not presumed to carry such construction, which is not binding upon the courts of the adopting state." 73 Am.Jur.2d Statutes § 335 at 478 (1974), and cases cited. ¹

In any event, this Court has indicated a healthy and deserved skepticism about giving too much credence to the various canons of statutory construction. In Salt Lake City v. Salt Lake County, Utah, 568 P.2d 738 (1977), the Court stated that rules of construction may be useful when applied in appropriate instances, "[b]ut helpful as rules of construction often are, they are useful guides but poor masters; and they should not be regarded as having any such rigidity as to have the force of law, or distort an otherwise natural meaning or intent. Their only legitimate function is to assist in ascertaining the true intent and purpose of the statute." Id. at 741.

II.

The Utah Comparative Negligence Act, U.C.A., 1953, § 78-27-37, et seq., was passed in 1973. 1973 Utah Laws, ch. 209. Chapter 209 adds six additional sections to the Wisconsin provision. The Utah Act provides in full text:

UTAH COMPARATIVE NEGLIGENCE ACT

Section 1. Actions based on negligence or gross negligence--Contributory negligence.

Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence or gross negligence resulting in death or in injury to person or property if such negligence was not as great as the negligence or gross negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. As used in this act, "contributory negligence" includes "assumption of the risk."

Section 2. Powers of the court.

The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining (1) the total amount of damages suffered and (2) the percentage of negligence attributable to each party; and the court shall then reduce the amount of the damages in proportion to the amount of negligence attributable to the person seeking recovery.

Section 3. Right of contribution among joint tortfeasors.

(1) The right of contribution shall exist among joint tortfeasors, but a joint tortfeasor shall not be entitled to a money judgment for contribution until he has, by payment, discharged the common liability or more than his pro rata share thereof.

Section 4. Contribution among joint tortfeasors.

(1) A joint tortfeasor who enters into a settlement with the injured person shall not be entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by that settlement.

(2) When there is a disproportion of fault among joint tortfeasors to an extent that it would render inequitable an equal distribution by contribution among them of their common liability, the relative degrees of fault of the joint tortfeasors shall be considered in determining their pro rata shares, solely for the purpose of determining their rights of contribution among themselves, each remaining severally liable to the injured person for the whole injury as at common law.

(3) As used in this section, "joint tortfeasor" means one of two or more persons, jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.

Section 5. Exemptions.

Nothing in this act shall affect:

(1) The common law liability of the several joint tortfeasors to have judgment recovered, and payment made, from them individually by the injured person for the whole injury. However, the recovery of a judgment by the injured person against one joint tortfeasor does not discharge the other joint tortfeasors.

(2) Any right of indemnity which may exist under present law.

(3) Any right to contribution or indemnity arising from contract or agreement.

Section 6. Release of one or more joint tortfeasors.

A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors, unless the release so provides, but reduces the claim against the other tortfeasors by the greater of: (1) The amount of the consideration paid for that...