Kelson v. Salt Lake County, 870106

• Court: Supreme Court of Utah
• Writing for the Court: ZIMMERMAN; HALL, C.J., and DURHAM; HOWE; STEWART, J., concurs in the concurring opinion of HOWE
• Citation: 784 P.2d 1152
• 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.
• Docket Number: No. 870106,870106
• Decision Date: 12 December 1989

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.

Page 1153

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

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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.

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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...