Johnson v. Rogers

• Citation: 763 P.2d 771
• Decision Date: 25 August 1988
• Docket Number: No. 20622,20622
• Parties: Ray C. JOHNSON and Frances C. Johnson, Plaintiffs, Appellants, and Cross-Appellees, v. Donald ROGERS and Newspaper Agency Corporation, a Utah corporation, Defendants, Appellees, and Cross-Appellants.
• Court: Utah Supreme Court

Page 771

763 P.2d 771

Ray C. JOHNSON and Frances C. Johnson, Plaintiffs Appellants, and Cross-Appellees, v. Donald ROGERS and Newspaper Agency Corporation, a Utah corporation, Defendants, Appellees, and Cross-Appellants.

No. 20622.

Supreme Court of Utah.

Aug. 25, 1988.

Gordon L. Roberts and Julia C. Attwood, Salt Lake City, for Johnsons.

Edward J. McDonough and Lowell V. Smith, Salt Lake City, for Newspaper Agency Corp.

P. Keith Nelson, Salt Lake City, for Rogers.

DURHAM, Justice:

Plaintiffs sought compensatory damages for the wrongful death of their child, as well as for emotional distress to both plaintiffs and physical injury to plaintiff Ray Johnson. They also sought punitive damages against defendants. The punitive damages claim against defendant Newspaper Agency Corporation (NAC) was based on vicarious liability for Rogers' conduct as well as on NAC's own conduct. The trial court granted defendants' motions for summary judgment as to the claims for punitive damages, but denied defendants' motion on the issue of damages for Ray Johnson's emotional distress. Plaintiffs filed this interlocutory appeal, and defendants cross-appealed. We affirm the trial court's ruling as to the damages for emotional distress, but reverse on the issues relating to punitive damages.

On December 10, 1984, NAC moved for partial summary judgment on the issue of punitive damages. On March 22, 1985, NAC filed a motion seeking dismissal or partial summary judgment as to the claims for emotional distress. On March 25, 1985, the trial court issued its memorandum decision granting NAC's motion for summary judgment as to punitive damages, relying on this Court's decision in McFarland v. Skaggs Companies, Inc., 678 P.2d 298 (Utah 1984). Finding that there was no evidence of actual malice on the part of NAC, the court granted partial summary judgment against plaintiffs on their claims for punitive damages against NAC. The court also ruled that Utah does not recognize vicarious liability for punitive damages. On the basis of that ruling, defendant Rogers moved for partial summary judgment as to his liability for both punitive damages and emotional distress. Although granting partial summary judgment with respect to Rogers' liability for punitive damages, the court denied summary judgment on the father's emotional distress claim, holding that a parent who is in the "zone of danger" may recover for the trauma associated with seeing a child injured. The claim for emotional distress on the part of plaintiff Frances Johnson was denied, but that ruling is not appealed here.

I. Facts

At approximately 10:00 p.m. on April 16, 1982, plaintiff Ray Johnson and his eight-year-old son David were waiting for a "walk" signal before crossing a street in downtown Salt Lake City. A truck crossed the intersection and jumped the curb, killing David and injuring Ray. The truck was owned by NAC and operated by Donald Rogers. It is admitted that Rogers was driving under the influence of alcohol and that he negligently caused the injuries.

Rogers began working for NAC in May, 1980. Rogers' license had previously been revoked in Oregon after a conviction for driving under the influence; NAC failed to discover this fact. Rogers and other NAC employees sometimes reported to work intoxicated. Although NAC had written rules forbidding driving while intoxicated, it apparently did not enforce these rules. Rogers had been a heavy drinker for approximately six months to a year prior to the accident. Depositions of NAC employees indicate that the use of alcohol and marijuana was widespread and that no effort was made to curtail such use. These depositions also indicate that NAC vehicles were sometimes returned with beer cans in them, and on one occasion, an NAC supervisor who observed drivers smoking marijuana told the drivers to "do it on the road." Moreover, many deponents contended that these abuses were widely known and that NAC management either knew of these practices or could easily have found out about them.

II. Standard for the Imposition of Punitive Damages

The trial court held in this case that "evil intent," "actual malice," or "malice in fact" is required for the imposition of punitive damages. That holding misconstrues our case law; it was made in reliance on language in McFarland v. Skaggs Companies, Inc., 678 P.2d 298 (Utah 1984), in which this Court, after extensive consideration of specific policy concerns, established an "actual malice" standard for the imposition of punitive damages in false imprisonment cases. The opinion itself, as well as the law review article quoted extensively therein, focuses solely on the "ancient tort of false imprisonment [which creates] liability for wrongfully restraining another's freedom of movement" and concludes that an actual malice standard is necessary to balance the competing interests in shoplifting cases.

The very real problem of shoplifting pits two important considerations against each other--the right of the merchant to protect his inventory and the right of the citizen to be free from unwarranted detention and accusation....

[B]y sanctioning unrestricted punitive damages for a good faith mistake, the Terry [v. Z.C.M.I., 605 P.2d 314 (Utah 1979) ] court tipped the balance too far in favor of the patron and against the merchant.... [The actual malice rule] protects the interests of both merchant and patron without opening the door to unwarranted punitive damage recoveries.

McFarland v. Skaggs Companies, Inc., 678 P.2d at 304 (quoting Note, False Imprisonment--Punitive Damages May Be Awarded As A Matter of Law, 1980 Utah L.Rev. 694, 699-700 (1980)).

McFarland departed from the Terry "malice in law" standard only for false imprisonment cases and only because of carefully detailed policy reasons related to that tort. Since McFarland, this Court has explicitly articulated a broader standard for the imposition of punitive damages in at least two cases: Atkin Wright & Miles v. Mountain States Telephone, 709 P.2d 330 (Utah 1985) (intentional interference with prospective economic relations), and Synergetics v. Marathon Ranching Co., 701 P.2d 1106 (Utah 1985) (fraud, misrepresentation, and deceit). We stated: "Punitive damages, among other things, punish conduct which manifests a knowing or reckless indifference toward, and disregard of, the rights of others." Synergetics, 701 P.2d at 1112-13 (citations omitted). "Before punitive damages may be awarded, the plaintiff must prove conduct that is willful and malicious ... or that manifests a knowing and reckless disregard toward the rights of others." Atkin Wright & Miles, 709 P.2d at 337 (citations omitted). In both of those cases, we cited with approval identical or similar language from cases decided prior to McFarland: Behrens v. Raleigh Hills Hospital, Inc., 675 P.2d 1179 (Utah 1983) (cited in Synergetics ); Branch v. Western Petroleum, Inc., 657 P.2d 267 (Utah 1982); First Security Bank v. J.B.J. Feedyards, Inc., 653 P.2d 591 (Utah 1982) (cited in Synergetics and Atkin Wright & Miles ); Terry v. Z.C.M.I., 605 P.2d 314 (Utah 1979) (cited in Atkin Wright & Miles ). The citation of the Terry standard in Atkin Wright & Miles is significant because it conclusively demonstrates that McFarland overruled the use of the Terry standard only for false imprisonment cases, contrary to the argument made in this case by the defendants.

The standard for punitive damages in non-false imprisonment cases is thus clear: they may be imposed for conduct that is willful and malicious or that manifests a knowing and reckless indifference and disregard toward the rights of others. Defendants argue that mere driving under the influence of alcohol is insufficient to support a finding of knowing and reckless indifference and disregard for the rights and safety of others, and Rogers further argues that punitive damages are inappropriate here because he was convicted and sentenced for criminal violations stemming from the same acts.

The overwhelming majority of jurisdictions which have considered the issue have ruled that punitive damages are available in drunk driving cases. ¹

One who willfully consumes alcoholic beverages to the point of intoxication knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard for the safety of others.

....

The allowance of punitive damages in such cases may well be appropriate because of another reason, namely to deter similar future conduct.... [T]he applicable principle was well expressed in a recent Oregon case....

[T]he fact of common knowledge that the drinking driver is the cause of so many of the more serious automobile accidents is strong evidence in itself to support the need for all possible means of deterring persons from driving automobiles after drinking, including exposure to awards of punitive damages in the event of accidents.

Taylor v. Superior Court of Los Angeles County, 24 Cal.3d 890, 897, 598 P.2d 854, 857, 157 Cal.Rptr. 693, 697 (1979) (quoting Harrell v. Ames, 265 Or. 183, 190, 508 P.2d 211, 214-15 (1973)).

Assessing punitive damages in cases such as this is not inappropriate or inconsistent with the deterrence function of damages. See Peterson v. Superior Court of Ventura County, 31 Cal.3d 147, 154-62, 642 P.2d 1305, 1308-13, 181 Cal.Rptr. 784, 787-92 (1982); Soria v. Sierra Pac. Airlines, 111 Idaho 594, 610, 726 P.2d 706, 722 (1986); Sebastian v. Wood, 246 Iowa 94, 100, 66 N.W.2d 841, 844 (1954); Dorn v. Wilmarth, 254 Or. 236, 239-40, 458 P.2d 942, 944 (1969); Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 S.Cal.L.Rev. 1 (1982); Schwartz, Deterrence and Punishment in the Common Law of Punitive Damages: A Comment, 56 S.Cal.L.Rev. 133 (1982). Given their deterrence value, punitive damages are not prohibited where a tort-feasor...