Adams v. Krueger

• Citation: 124 Idaho 97,856 P.2d 887
• Decision Date: 03 September 1991
• Docket Number: No. 18472,18472
• Parties: DiAnn ADAMS and Patrick Adams, husband and wife, Plaintiffs-Respondents-Cross Appellants, v. Philip M. KRUEGER, M.D., Defendant-Appellant-Cross Respondent, and Leila Parker, Nurse Practitioner, Defendant-Cross Respondent.
• Court: Court of Appeals of Idaho

Page 887

856 P.2d 887

124 Idaho 97

DiAnn ADAMS and Patrick Adams, husband and wife, Plaintiffs-Respondents-Cross Appellants, v. Philip M. KRUEGER, M.D., Defendant-Appellant-Cross Respondent, and Leila Parker, Nurse Practitioner, Defendant-Cross Respondent.

No. 18472.

Court of Appeals of Idaho.

Sept. 3, 1991.

Quane, Smith, Howard & Hull, Boise, for defendant-appellant-cross respondent. Richard Stubbs argued.

Wilson & Carnahan, Boise, for plaintiffs-respondents-cross appellants. Debrha J. Carnahan argued.

WALTERS, Chief Judge.

This case involves the construction of Idaho's comparative negligence law as applied to co-defendants standing in an employer-employee relationship. The central question on appeal is whether the negligence of an employee is imputed to the employer when applying the provisions of Idaho's comparative negligence law, I.C. § 6-801. We also discuss the trial court's discretionary authority to deny a party its costs. For the reasons explained below, we affirm both the judgment awarding damages to the plaintiffs and the order denying their costs.

FACTS

On March 27, 1986, DiAnn Adams went to Dr. Krueger's office for the purpose of diagnosis and treatment of various complaints, including cramps, headaches, discomfort of menses, and lesions that appeared on her perineum during her menses. Dr. Krueger was unable to see DiAnn, and DiAnn was examined by Krueger's nurse-practitioner, Leila Parker. Parker diagnosed DiAnn as having genital herpes and counseled her on the causes of the virus and on the prevention and treatment of future outbreaks. Dr. Krueger later prescribed acyclovir, an ointment used for symptomatic relief of herpetic lesions. The symptoms continued, however, and in November of 1986, DiAnn consulted another doctor who correctly diagnosed her condition as a severe yeast infection.

Subsequently, DiAnn and her husband, Patrick, filed a complaint against Krueger and Parker alleging that Parker's misdiagnosis and treatment of DiAnn's condition, and Krueger's failure either to examine DiAnn or to review her diagnosis and treatment plan, breached the applicable standards of health care. DiAnn claimed damages for the physical and mental pain and suffering caused her, and for all out-of-pocket expenses reasonably incurred which were attributable to the defendants' conduct. Patrick sought recovery for the loss of the society, companionship, and conjugal relationship with his wife. The plaintiffs additionally asserted a claim for punitive damages. In answer to these allegations, Krueger and Parker ¹ argued that DiAnn's own negligence caused or contributed to At the conclusion of the evidence, the court instructed the jury on the applicable law and submitted a special verdict form requiring the jury to indicate its findings with respect to the actual negligence attributable to any of the parties, and to determine the total damages sustained by the Adamses. The court also gave Seppi ² instruction, informing the jury that the plaintiffs would recover nothing if it found DiAnn more than fifty percent negligent, but that the plaintiffs would recover from one or both defendants if it determined that DiAnn's negligence "is less than 50% and the total of the Defendants' negligence is more that 50%." As indicated by the answers to special interrogatories in the verdict form, the jury found nurse Parker forty-one percent negligent, Dr. Krueger ten percent negligent, and DiAnn Adams forty-nine percent negligent. The jury further found that DiAnn and Patrick Adams had sustained damages in amounts of $28,000 and $2,000, respectively.

[124 Idaho 99] her injury. They also admitted that nurse Parker was Dr. Krueger's employee and at all relevant times had acted within the scope of her employment.

The district court imputed Parker's negligence to Krueger under the doctrine of respondeat superior and determined Krueger to be a total of fifty-one percent negligent. The court also imputed DiAnn Adams' negligence to her husband, Patrick, thus reducing his recovery of damages by forty-nine percent. The court then entered a judgment against Dr. Krueger, awarding DiAnn and Patrick Adams fifty-one percent of their damages, and dismissing the Adamses' claims against Parker. Finally, the court decided that neither party was the "prevailing party" in the action and declined to award costs to the Adamses.

On appeal, Krueger maintains that the judgment against him should be reversed because the district court erroneously added nurse Parker's negligence to his when the court applied the comparative negligence provisions of the statute. In their cross-appeal the Adamses submit that, if the district court erred in aggregating the defendants' negligence, then it necessarily erred when it misinformed the jury as to the consequences of their findings, and the case should be remanded for a new trial with appropriate jury instructions. Additionally, the Adamses challenge the district court's order disallowing their costs.

STANDARD OF REVIEW

We first consider whether it was proper for the district court to impute the negligence of nurse Parker to Krueger in applying Idaho's comparative negligence provisions, I.C. § 6-801. Preliminarily, we note that the cause of action giving rise to this appeal accrued in 1986, pre-dating the amended statute presently in effect. ³ Consequently, we must decide this case under the former version of the statute--the original act--which was applicable at the time the cause arose. See I.C. § 6-801 (1986 Supp.). We will look to the subsequent amendments only insofar as they indicate a clarification, strengthening, or change in the intent of the original law. See State ex rel. Wright v. Headrick, 65 Idaho 148, 139 P.2d 761 (1943). Because the construction and application of a legislative act present pure questions of law, we exercise free review.

1. I.C. § 6-801

Idaho's comparative negligence law applies to all negligence actions where there is negligence attributable to the person seeking to recover. See Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321 (1989). The applicable statute provides as follows:

Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence or gross negligence Idaho Code § 6-801 (1986 Supp.). ⁴ Under the statute, a plaintiff found to be more than forty-nine percent negligent is barred from any recovery. Seppi, 99 Idaho at 188, 579 P.2d at 686. Moreover, the Idaho Supreme Court has interpreted the statute to embrace the "individual" or "Wisconsin" rule of comparison, ⁵ whereby the percentage of the plaintiff's negligence is compared to the percentage of negligence apportioned each individual defendant, in determining whether a plaintiff may recover from a given defendant. Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980). In holding that the statute requires this one-on-one comparison of negligence, the Court expressly rejected the contrary "unit" rule of comparison, which would allow a plaintiff to recover from any negligent defendant so long as the plaintiff's negligence is less than the combined negligence of all the defendants. Id. Thus, in those cases in which the negligence of codefendants is merely concurrent, our Supreme Court consistently has held that each tortfeasor's negligence is compared separately. See Odenwalt, 102 Idaho at 5, 624 P.2d at 387; Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988). The question presented in this case, however, is whether an employee's negligence is imputed to the employer in applying the comparison provisions of the statute.

[124 Idaho 100] 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.

2. Vicarious Liability

We turn, then, to Krueger's contention that he is not responsible for Parker's negligence. Krueger acknowledges that, as an employer, he is vicariously liable for the torts of his employees. He submits, however, that such liability attaches only if the employee is determined legally liable for damages. Because Parker is not liable to the Adamses, he continues, he cannot be held vicariously liable for her negligent acts.

We would readily accept Krueger's argument if the relationship between himself and nurse Parker was that of an insurer to its insured. It is not. Krueger and Parker stand in relation as master and servant, whereby the negligent acts of the servant, or employee, are imputed to the master, or employer, under the doctrine of respondeat superior. Smith v. Thompson, 103 Idaho 909, 655 P.2d 116 (Ct.App.1982). See PROSSER AND KEETON ON TORTS § 72, at 516 (5th ed. 1984). See also Ross, 114 Idaho at 832, 761 P.2d at 1184 (citing 58 AM.JUR.2D Negligence § 458 (1971)). The historical and economic genesis of the doctrine of respondeat superior, or vicarious liability, lies in the fact that the tort is brought about in the course of an undertaking for the benefit of the master, and that the master possesses the right to control the servant's course of conduct as well as the result to be accomplished through such conduct. See Mathauser v. Hellyer, 98 Idaho 235, 560 P.2d 1325 (1977); Whalen v. Zinn, 60 Idaho 722, 96 P.2d 434 (1939); State ex rel. Dept. of Labor and Indus. Services v. Hill, 118 Idaho 278, 796 P.2d 155 (Ct.App.1990). See also RESTATEMENT (SECOND) OF AGENCY §§ 216 and 219 comment a (1958). Because the "employment" is a factor causing the tort, the law regards the business as a unit and deals with the act of any member of it as the act and responsibility of its principal, the employer. ⁶

The enactment of our comparative negligence law has not changed the basic principle of vicarious liability. While the quantum of causal negligence attributable to a party is...