Kelson v. Salt Lake County

• Decision Date: 12 December 1989
• Docket Number: No. 870106,870106
• Parties: Darrell KELSON, a personal representative of the Estate of Darin Kelson, deceased, Plaintiff and Appellant, v. SALT LAKE COUNTY, a political subdivision of the State of Utah; and Perry Buckner, in a representative capacity only, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1152

784 P.2d 1152

Darrell KELSON, a personal representative of the Estate of Darin Kelson, deceased, Plaintiff and Appellant, v. SALT LAKE COUNTY, a political subdivision of the State of Utah; and Perry Buckner, in a representative capacity only, Defendants and Appellees.

No. 870106.

Supreme Court of Utah.

Dec. 12, 1989.

Kathryn Collard, Steve Russell, Salt Lake City, for plaintiff and appellant.

David E. Yocum, Patricia J. Marlowe, Thomas L. Christensen, Salt Lake City, for defendants and appellees.

ZIMMERMAN, Justice:

Darrell Kelson appeals from a jury verdict denying him any recovery in a wrongful death action brought against Salt Lake County and Deputy Sheriff Perry Buckner. Kelson contends that the trial court erred by (i) instructing the jury that the negligence of Kelson's son, the decedent, should be compared with that of the defendants for purposes of determining liability and damages, (ii) ruling that the decedent's brothers and sisters did not qualify as "heirs" under Utah's wrongful death statute, section 78-11-7 of the Code, and could not therefore testify as to their losses, and (iii) admitting into evidence a stipulation as to the blood alcohol content of the decedent. We affirm.

Darin Kelson was killed during a high-speed chase when his motorcycle collided with a Salt Lake County Sheriff's car after that car had entered an intersection against a red light to block the path of Darin's motorcycle. Appellant Darrell Kelson, Darin's father, brought this wrongful death action pursuant to section 78-11-7 of the Code against Salt Lake County and Deputy Sheriff Perry Buckner, the officer driving the vehicle struck by decedent's motorcycle. At trial, the jury was instructed that it should compare the negligence of the defendants with that of Darin. The jury apportioned the fault twenty-five percent to the defendants and seventy-five percent to the decedent. Judgment was entered for the defendants because under the comparative negligence statute, section 78-27-37 of the Code, if a party is more than fifty percent negligent, he or she is denied recovery.

On appeal, Kelson attacks several of the trial court's legal rulings. We will describe each ruling and then discuss Kelson's challenges. First, we note the applicable standard of review: a trial court's legal conclusions are accorded no particular deference; we review them for correctness. E.g., City of West Jordan v. Utah State Retirement Bd., 767 P.2d 530, 532 (Utah 1988); Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985).

The trial court instructed the jury that under Utah's comparative negligence statute, section 78-27-37 of the Code, the negligence of the decedent was to be compared with the negligence of the defendants. If the decedent was found to be more than fifty percent negligent, all recovery was to be denied. See Utah Code Ann. § 78-27-37 (1973) (repealed 1986 and reenacted as § 78-27-38). Alternatively, the trial court ruled that even if the comparative negligence statute did not apply to the wrongful death action, the pre-1973 contributory negligence law would apply and operate to deny recovery if the decedent were negligent. Kelson argues that the negligence of the decedent should not impair a wrongful death plaintiff's ability to recover all his or her losses from a negligent defendant. He contends that Utah's comparative negligence statute is not applicable to wrongful death actions and that the pre-1973 contributory negligence law is also inapplicable.

Kelson's challenge requires consideration of the interrelationship between comparative negligence law and wrongful death law in Utah. Before 1973, when comparative negligence was established in Utah by statute, Utah dealt with blameworthy conduct of the tort victim via the common law: those shown to have been contributorily negligent were denied any recovery. Under this regime, a victim who was merely one percent negligent was entirely disqualified from recovering.

Prior to 1973, the right to recover for wrongful death was similarly constricted. Utah's wrongful death statute provided that a plaintiff could recover only if the death was "caused by the wrongful act or neglect of another." Utah Code Ann. § 78-11-7 (1986) (emphasis added). ¹ We construed this language to mean that a death was "caused" by the "wrongful" conduct of another only if the decedent was free of negligence. Any contributory negligence on the part of the decedent barred the heirs from recovering. See, e.g., Mingus v. Olsson, 114 Utah 505, 201 P.2d 495, 499 (1949); Van Wagoner v. Union Pacific R.R., 112 Utah 189, 186 P.2d 293, 303-04 (1947), modified on other grounds, 112 Utah 218, 189 P.2d 701 (1948); Helfrich v. Ogden City Ry., 7 Utah 186, 26 P. 295, 296 (1891).

The rationale for this construction of the statute was well stated in Van Wagoner v. Union Pacific R.R. There we said:

[W]rongful is used [in the statute] in the sense of wrongful as against the deceased, and does not include those situations where the deceased either solely or proximately contributes negligently to his [or her] own death.... [The statute] grants to the heirs ... a right to proceed against the wrongdoer subject to the defenses available against the deceased, had he [or she] lived and prosecuted the suit.

112 Utah at 209, 186 P.2d at 303-04. The term "wrongful," then, was to be read as a legal conclusion that the decedent could have recovered against the defendant under the then-prevailing tort law.

In 1973, the legislature abolished the common law contributory negligence defense and made comparative negligence the governing tort principle. That law provided in pertinent part:

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 injury to person or property, if such negligence was not as great as the negligence or gross negligence as 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.

Utah Code Ann. § 78-27-37 (emphasis added). Thus, if an injured party was less than fifty percent negligent, he or she could recover, but the damages would be reduced in proportion to the injured party's negligence. Section 78-27-37 also addressed recovery if the injured party was killed, precipitating a wrongful death action, by providing that "[c]ontributory negligence shall not bar recovery in an action ... to recover damages for negligence or gross negligence resulting in death." Id. The question before us is the impact of this 1973 statute on a wrongful death action, a question that this Court has not previously addressed.

Kelson contends that the last-quoted language of section 78-27-37 abrogates the defense of contributory negligence in all wrongful death actions and the language first quoted in the preceding paragraph limits the weighing of proportional negligence of the parties in cases where the "person recovering" is the party responsible for his or her own injury. Of course, in a wrongful death action the "person recovering" is not always one of the parties involved in the tort. Therefore, Kelson argues, the net effect of the 1973 changes is to overrule our pre-1973 case law construing the term "wrongful" in the wrongful death statute and to free a wrongful death plaintiff from the imputation of any negligent conduct of the decedent. The net result is to permit recovery of all damages suffered if the tort-feasor can be shown to have been at all negligent.

We reject this construction of the 1973 law and its impact on wrongful death actions. The wrongful death statute was not altered in 1973. Its wording remains today substantially as it has been since before statehood. If the 1973 legislature had intended to change the meaning of the term "wrongful" in the wrongful death statute, as Kelson suggests, it is reasonable to assume that it would have amended the wrongful death statute and not relied upon ambiguous language in the comparative negligence statute to disavow our decision in Van Wagoner and its antecedents. The statement in the comparative negligence act that contributory negligence "shall not bar" a wrongful death recovery can most simply be read as an effort to ensure that the Van Wagoner approach to the term "wrongful," as opposed to the result in that case, would continue to be followed. Specifically, that the term "wrongful" would not be interpreted as entombing the common law concept of contributory negligence within the law of wrongful death, but would continue to be read as referring to the current legal standard for determining when a tort victim is barred from recovery by reason of his or her negligent conduct. And after the passage of the comparative negligence legislation, that wrongfulness standard was whether the victim, had he or she survived, would have been barred from recovery in whole or in part under the provisions of section 78-27-37. Under the post-1973 law, as under the pre-1973 law, the wrongful death plaintiff was, in effect, to have imputed to him or her any negligence of the decedent. As the Van Wagoner Court said, the heirs have "a right to proceed against the wrongdoer subject to the defenses available against the deceased, had he [or she] lived and prosecuted the suit." 112 Utah at 209, 186 P.2d at 303-04. For these reasons, we reject the interpretation of the comparative negligence statute argued for by Kelson.

The second trial court ruling Kelson challenges is the determination that decedent's brothers and sisters could not recover their losses because they were not the decedent's "heirs," as that term is used in the Utah Uniform Probate Code. The wrongful death statute states that claims may be asserted only by or on behalf of the decedent's "heirs." See Utah Code Ann. § 78-11-7, supra note 1. The term "heirs" is not defined in the...