S.H. By and Through Robinson v. Bistryski
| Decision Date | 10 September 1996 |
| Docket Number | No. 950170,950170 |
| Citation | 923 P.2d 1376 |
| Parties | S.H., a minor, By and Through her guardian ad litem and mother, Ramona ROBINSON, Plaintiff and Appellant, v. Joseph (J.R.) BISTRYSKI, Defendant and Appellee. |
| Court | Utah Supreme Court |
Lewis R. Hansen, Salt Lake City, for plaintiff and appellant.
John R. Lund, Julianne Blanch, Salt Lake City, for defendant and appellee.
S.H., a minor, by and through her mother Ramona Robinson, appeals from a jury verdict and judgment finding Robinson 88% at fault and Joseph Bistryski 12% at fault for the injuries suffered by S.H. as a result of her encounter with Bistryski's dog. The jury apportioned fault between Bistryski, who was strictly liable for the injury committed by his dog pursuant to section 18-1-1 of the Utah Code, and Robinson. We affirm in part, reverse in part, and remand for a new trial.
In July 1992, S.H., then three years old, was visiting her aunt's residence in Duchesne, Utah, when Joseph Bistryski's dog, Cavik, bit her. Bistryski lives across the street from S.H.'s aunt, and Cavik was chained to a car in Bistryski's driveway at the time of the incident.
This case was brought on behalf of S.H. by and through her mother and guardian ad litem Ramona Robinson, hereinafter referred to as plaintiff. Plaintiff filed a complaint against Bistryski for damages arising out of her injuries, alleging strict liability under section 18-1-1 of the Utah Code and negligence. Bistryski asserted in his answer:
The Defendant's liability, if any, is limited to that percentage or proportion of the damages proven by plaintiff which is equivalent to the percentage or proportion of fault, as defined in Utah Code Ann. § 78-27-37(2), attributed to this defendant. Utah Code Ann. § 78-27-40. In this regard, defendant is informed and believes that the persons having control and custody of the minor at the time of the alleged incident may have fault for failing to proper [sic] supervise her activities and care for her.
On the morning of trial, a hearing was held to determine whether comparative fault principles [E]ven though the [dog bite] statute provides for strict liability, I am going to say that there are defenses that are still available to that. There has to be. Because under any conceivable set of facts in a dog bite case provided for strict liability, my understanding of that is it just gets away from the necessity of having to ... get around the prior bite rule. Nobody has to show it's a vicious dog or that he's bitten before. All it does is say you are on it with both guns if your dog bites somebody. But it still seems to me, though, and this is my ruling, that the defenses of assumption of risk, comparative negligence, and all those defenses still ought to be applied to it.
should apply to the strict liability "dog bite" statute. Apparently to preclude the application of comparative fault, plaintiff moved to strike the negligence cause of action from her complaint and proceed only on the strict liability cause of action. The trial court permitted her to do so. However, the trial court ruled that comparative fault was also applicable to the strict liability dog bite statute, stating:
As a result of the trial court's ruling, the special verdict form included a question regarding the fault, if any, of Robinson, as well as a question asking the jury to proportion fault between Robinson and Bistryski.
During the trial, plaintiff attempted to cross-examine a witness regarding a prior biting incident involving Bistryski's dog. Bistryski objected on the ground that this evidence was irrelevant to the dog owner's strict liability. The trial court sustained the objection and instructed the jury to disregard the question. Counsel for plaintiff continued with a new line of questioning.
During closing arguments, Bistryski's counsel argued to the jury that on the basis of the testimony presented, it was apparent that Robinson negligently supervised S.H. He urged the jury to consider Robinson's negligence in apportioning fault between Robinson and Bistryski for the injury sustained by S.H.
The trial court instructed the jury that if the fault of two or more persons combine to produce an injury, they must share liability in proportion to their individual fault. The jury was instructed as to the strict liability of a dog owner for injuries caused by the dog regardless of the owner's negligence and was also instructed as to the elements of negligence and proximate cause as may or may not pertain to Robinson. The trial judge also prepared a special verdict form containing questions to be answered by the jury in regards to both Bistryski and Robinson. The jury returned the special verdict form as follows:
1. Did Mr. Bistryski's dog commit injuries to [S.H.]?
2. Was Ramona Robinson at fault as alleged by defendant?
3. If you have answered the preceding question yes, was that fault a proximate cause of injuries to [S.H.]?
4. Considering the fault, if any, that you have found on Mr. Bistryski, and the fault, if any, that you have found on Ramona Robinson to total 100 per cent, what percentage of the fault is attributable to:
A. Mr. Bistryski: 12%
B. Mrs. Robinson: 88%
5. State the amount that you find will fairly and reasonably compensate [S.H.] for the injuries she has sustained:
A. Special Damages: $468.00
B. General Damages: $0
(Emphasis denotes jury responses.) 1
Thus, the jury found that Bistryski's dog indeed injured S.H. but also found that Robinson was at fault and that her fault was a In appealing from the jury verdict and judgment, plaintiff raises two issues: (1) whether the comparative fault provisions of Utah's Liability Reform Act apply to section 18-1-1 of the Utah Code, the strict liability dog bite statute, and if so, (2) whether a plaintiff may present evidence of negligence on the part of a strictly liable dog owner for purposes of apportioning fault.
proximate cause of her daughter's injuries. The jury apportioned 12% fault to Bistryski and 88% fault to Robinson. Special damages in the amount of $468 were assessed. The trial court subsequently entered judgment in favor of S.H. for $56.16, which represented 12% of the $468 damage award.
Plaintiff argues on appeal that the trial court erred in applying comparative fault principles to section 18-1-1 because comparative fault does not apply to strict liability statutes. If comparative fault does apply, however, plaintiff argues that the trial court erred in preventing her from offering evidence of the dog's disposition to establish the degree of the dog owner's negligence for comparative purposes. Finally, plaintiff argues that S.H., a child under the age of seven at the time of her injury, was legally incapable of committing negligence under Utah law.
Bistryski argues, on the other hand, that comparative fault may be applied to strict liability cases on the basis of the explicit language of the Liability Reform Act and Utah case law. He also argues that the trial court properly excluded evidence of the dog's disposition because the plain language of the dog bite statute renders evidence of prior bites immaterial. Finally, Bistryski argues that the victim's age at the time of injury is irrelevant to this case because the jury was not asked to consider S.H.'s fault but rather that of her mother.
The applicability of the comparative fault provisions of the Liability Reform Act to section 18-1-1 of the Utah Code requires an interpretation of the relevant statutory provisions. Such a determination raises a question of law which we review for correctness. Ong Int'l (U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 455 (Utah 1993). Whether a plaintiff may, in such a case, present evidence of negligence of a strictly liable dog owner on the issue of damages is also a question of law which we review nondeferentially for correctness. Id. However, a trial court's "rulings regarding admissibility will not be overturned 'unless it clearly appears that the lower court was in error.' " Whitehead v. American Motors Sales Corp., 801 P.2d 920, 923 (Utah 1990) (quoting State v. Gray, 717 P.2d 1313, 1316 (Utah 1986)).
We first address whether the comparative fault provisions of Utah's Liability Reform Act, sections 78-27-37 and -38 of the Utah Code, apply to Utah's dog bite statute, section 18-1-1 of the Utah Code. 2 In interpreting these provisions, we are guided by the principle that a statute is generally construed according to its plain language. Nelson v. Salt Lake County, 905 P.2d 872, 875 (Utah 1995); Schurtz v. B.M.W. of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991). Only if we find ambiguity in the statute's plain language need we turn to other methods of statutory interpretation. World Peace Movement v. Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994).
Section 18-1-1 of the Utah Code establishes that dog owners are strictly liable for Every person owning or keeping a dog shall be liable in damages for injury committed by such dog, and it shall not be necessary in any action brought therefor to allege or prove that such dog was of a vicious or mischievous disposition or that the owner or keeper thereof knew that it was vicious or mischievous....
injuries committed by their dogs. This section provides in relevant part:
The dog bite statute simply provides that the owner of a dog shall be liable in damages for injury committed by the dog. It does not, however, state that the owner shall be liable for all damages. While the owner is liable, other parties may also be liable or may have proximately contributed to the injury.
Utah's Liability Reform Act specifies that a defendant's liability for damages be limited to the proportion of fault attributed to that defendant:
No defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributed to that defendant....
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