Acculog, Inc. v. Peterson

• Decision Date: 01 May 1984
• Docket Number: No. 18133,18133
• Parties: ACCULOG, INC., a Colorado corporation, Robert Pfister and Kenton Shaw, co-partners d/b/a Acculog Field Services, Plaintiffs and Appellants, v. Keith PETERSON, d/b/a Peterson Ford, Defendant and Respondent.
• Court: Utah Supreme Court

Page 728

692 P.2d 728

ACCULOG, INC., a Colorado corporation, Robert Pfister and Kenton Shaw, co-partners d/b/a Acculog Field Services, Plaintiffs and Appellants, v. Keith PETERSON, d/b/a Peterson Ford, Defendant and Respondent.

No. 18133.

Supreme Court of Utah.

May 1, 1984.

Paul W. Mortensen, Harry E. Snow, Moab, for plaintiffs and appellants.

Nelson E. Hayes, Salt Lake City, for defendant and respondent.

HOWE, Justice:

Plaintiffs Acculog appeal from a judgment of "no cause of action" which was entered after a jury returned a special verdict. Acculog's 1977 four-wheel-drive Ford E250 Quadravan, estimated at a value of $7,000, caught fire and was destroyed later in the same day that defendant Peterson Ford had installed a new fuel filter to correct At trial, Peterson Ford moved for a directed verdict in its favor at the end of Acculog's case on the issue of lost profits. The motion was based on the ground that plaintiffs had failed to prove the loss of any profits under binding contracts. The motion was granted on that ground and on the further ground added by the court that there was no evidence before the jury what the amount of the profits would have been.

overheating in the engine. Also destroyed in the fire was Acculog's geological equipment consisting of a Mount Sopris bore-hole logging unit mounted on the vehicle and stipulated to have a value of $41,687.95. Acculog claimed that the destruction of the van and equipment resulted in a loss of profits estimated by it at over $33,000. On the day of the fire Acculog did not carry a fire extinguisher in its van.

At the end of the trial Acculog excepted to a special verdict form on the ground that there was no evidence to support submitting the question of comparative and contributory negligence to the jury. Acculog also asked the trial court to instruct Peterson Ford not to argue to the jury that the absence of a fire extinguisher constituted negligence on its part as any such negligence was not relevant to causation of the fire. The court noted that it had difficulty with that issue as it seemed to be a question of mitigation of damages. However, the amount of damages had been stipulated to by the parties and the court determined that it could not therefore instruct on mitigation. Plaintiffs' request was denied by the court with a comment that the jury "would be looking at [the absence of a fire extinguisher] from the standpoint of it being maybe just another one of the elements that ended up in causing the fire." That argument was made by the defense to the jury.

The special verdict contained five interrogatories:

1. Was the defendant negligent in the manner of servicing plaintiffs' van on June 28, 1979?

2. If your answer to Question No. 1 is "yes," then answer the following question: Was such negligence a proximate cause of the fire and damage sustained by plaintiffs on said date?

3. Was [sic] the plaintiffs negligent at the time of the fire in question on June 28, 1979?

If your answer to Question No. 3 is "yes," then answer the following question:

4. Was such negligence a proximate cause of the fire and damage sustained by plaintiffs on said date?

5. If you have answered all the previous questions "yes," then and only then, are you to answer this question:

Taking the combined negligence that caused the damage as one hundred percent (100%), what percentage of that negligence was atributable [sic] to the plaintiffs and what percentage was attributable to the defendant?

(a) Percentage attributable to defendant?

(b) Percentage attributable to plaintiffs?

TOTAL 100%

During deliberation the jury delivered a note to the trial court that they could not answer questions 2 and 4 as "they appear to be two-part questions that we cannot answer with a singular answer." The trial court responded "you must answer either yes or no to each of the questions referred to above. Consult the instructions. I cannot help you further." Questions Nos. 1 through 4 were answered in the affirmative. Question No. 5 attributed 14 percent negligence to the defendant and 86 percent negligence to the plaintiffs. ¹

Acculog's points on appeal can be reduced to two major issues: (1) Was it error for the trial court to refuse to direct a verdict in favor of Acculog on the issue of plaintiffs' comparative negligence? (2) Was it error for the trial court to direct a verdict in favor of Peterson Ford on the issue of loss of profits?

COMPARATIVE NEGLIGENCE

Utah's comparative negligence statute, U.C.A., 1953, § 78-27-37, provides that the contributory negligence of a person shall not bar the recovery of damages "for negligence ... resulting in death or injury to person or property, if such negligence was not as great as the negligence ... of the person against whom recovery is sought ...." The question posed therefore is whether plaintiffs' alleged negligence, their failure to carry a fire extinguisher in the van, caused "injury" to their own property, and whether a jury instruction on plaintiffs' negligence was proper under the circumstances of this case.

The ultimate facts in a comparative negligence case embrace only negligence, causation and the percentages of negligence attributed to plaintiff and defendant. Marcus v. Cortese, 98 N.M. 414, 649 P.2d 482 (App.1982). A plaintiff cannot be held to be contributorily negligent unless his negligence is causally connected to the plaintiff's injury. Boeke v. International Paint Co. (Cal.), Inc., 27 Wash.App. 611, 620 P.2d 103 (1980); Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980). From its inception comparative negligence law has been so construed that once the combined negligence of plaintiff and defendant in causing the injury to the plaintiff is established, it is within the province of the trier of fact to apportion fault or causation. Brown v. Haertel, 210 Wis. 345, 244 N.W. 630 (1932). In other words, where plaintiff's negligent conduct was a contributing factor in causing the injury, comparative negligence becomes a defense for the defendant.

Here there was no evidence presented at trial that Acculog in any way caused the fire. The jury found that Peterson Ford had negligently serviced the van and that its negligence was a proximate cause of the fire and damage sustained by Acculog. (Interrogatories 1 and 2.) The jury also found Acculog to have been negligent in causing the fire and damage. (Interrogatories 3 and 4.) When faced with apportioning negligence, the jury was asked to take the combined negligence that caused the damage and apportion it between the two parties. (Interrogatory 5.) Testimony at the trial made it clear that Acculog could have prevented the spread of the fire from the engine of the van to the logging equipment had a fire extinguisher been available, but that should not have been the question presented to the jury. We are not concerned in comparative negligence law with the cause of the damage, but with the cause of the injury instead.

The term "injury" is sometimes used in the sense of "damage," as including the harm or loss for which compensation is sought, and has been defined as damage resulting from an unlawful act; but in strict legal significance, there is, properly speaking, a material distinction between the two terms, in that injury means something done against the right of the party, producing damage, whereas damage is the harm, detriment, or loss sustained by reason of the injury.

Clark v. Cassetty, 71 N.M. 89, 376 P.2d 37 (1962).

The special verdict form in the case under review combined in interrogatories 2 and 4 injury and damage as one element of the tort. The jury was confused and requested clarification. The confusion was compounded when in interrogatory 5 an apportionment was requested on cause of damage. In Kelley v. Capital Motors, 204 S.C. 304, 28 S.E.2d 836 (1944), a case inversely apposite here, plaintiff sued defendant for loss of his car in a fire originating outside defendant's premises. Defendant moved for a directed verdict on the ground that his failure to have a sprinkler system and fire extinguishers on the premises bore no causal connection to the destruction of plaintiff's car. The trial court denied the motion and defendant appealed. Finding no causal connection between defendant's negligence and plaintiff's loss, the appeals court stated:

On the issue of proximate cause, we are of the opinion that the only reasonable inference warranted by the record is that Likewise in the case under review, the proximate, direct and immediate cause of the loss of Acculog's van and equipment was a fire which broke out in the engine through no fault of Acculog's and spread to the logging unit. Peterson Ford did not have the defense of plaintiffs' comparative negligence. The trial court expressed the opinion that there might be a question of mitigation of damages, but that issue is not before us and we decline to address it.

the proximate, direct and immediate cause of the loss of [plaintiff's] automobile was a fire which broke out and commenced on premises over which [defendant] had no control, and which ... spread to [defendant's] sales room and repair garage.

We hold that the trial court committed prejudicial error in submitting to the jury the question of plaintiffs' comparative negligence.

LOSS OF PROFITS

On motion of the defendant, the trial court directed a verdict against plaintiffs on the issue of lost profits because they did not produce evidence that they had entered into any binding contracts which they were unable to perform when they lost their van and equipment. The court also based its ruling on the ground that on the evidence then before the court, the jury could not have concluded what the profit on any job would have been. Defendant's motion for a directed verdict was supported by its argument that lost profits could not be based upon an understanding between Acculog and Amoco (one of its customers) that did not rise to the level of a legally...