Field v. Boyer Co., L.C.

• Decision Date: 03 March 1998
• Docket Number: No. 960437,960437
• Citation: 952 P.2d 1078
• Parties: 338 Utah Adv. Rep. 10 Lois FIELD, Plaintiff and Appellant, v. The BOYER COMPANY, L.C., a Utah limited liability company; The Boyer Company of Idaho, Inc., a Utah corporation; Mervyn's, a California corporation; James McGuire, Security Manager, Brickyard Plaza; Jefrey B. Hatch; Wilda Gene Hatch; Diane G. Orr; and John Does A through K, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1078

952 P.2d 1078

338 Utah Adv. Rep. 10

Lois FIELD, Plaintiff and Appellant, v. The BOYER COMPANY, L.C., a Utah limited liability company The Boyer Company of Idaho, Inc., a Utah corporation Mervyn's, a California corporation; James McGuire, Security Manager, Brickyard Plaza; Jefrey B. Hatch; Wilda Gene Hatch; Diane G. Orr; and John Does A through K, Defendants and Appellees.

No. 960437.

Supreme Court of Utah.

March 3, 1998.

Kathryn P. Collard, Salt Lake City, for Plaintiff and Appellant.

Paul S. Felt, Terry M. Plant, Bradley R. Helsten, Salt Lake City, for Defendants and Appellees.

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 Mervyn'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 case, 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...