An Answer to the Intentional Tortfeasor Question

After years of defending product liability and other tort cases in Nevada, I find Utah’s allocation of fault system refreshing. In Nevada, product liability defendants and some other tort defendants are subject to joint and several liability. Utah product liability defendants, in contrast, are responsible only for their percentage of fault as determined by Utah Code section 78B-5-819. Nevada courts may not reduce a judgment to account for the plaintiff’s proportion of fault in product liability cases, while Utah courts may.

Nevada allows many joint and several liability defendants to assert concurrent or subsequent contribution and indemnity actions, and Utah requires any claim to determine proportion of fault be brought in the original case. The one exception to Nevada’s contribution and indemnity rule bars an intentional tortfeasor from pursuing a contribution and indemnity claim against any other tortfeasor. Utah’s treatment of intentional tortfeasors remained a discussed but open question until earlier this year. In Graves v. North Eastern Services, Inc., 2015 UT 28, ¶ 18, 345 P.3d 619, the Utah Supreme Court addressed this unanswered question and concluded that intentional tort defendants may allocate fault.


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Graves is not the first time the Utah Supreme Court has discussed allocation of fault and intentional torts. In Field v. Boyer Co., 952 P.2d 1078, 1080 (Utah 1998), former Chief Justice Zimmerman, in a plurality opinion, concluded that intentional torts were included in the comparative fault scheme because “an intentional tort such as a battery is an act that proximately causes or contributes to injury or damage.” Chief Justice Zimmerman’s statement was called into question, however, in Jedrziewski v. Smith, 2005 UT 85. Justice Nehring explained that Chief Justice Zimmerman’s conclusion was not endorsed by the court’s majority in Field. Accordingly, Justice Nehring clarified “that the intentional tortfeasor question remains an open one so that the legislature may, if it elects, answer it.”

Some 10 years later, Justice Lee, writing for the court’s majority in Graves, also invited the legislature to address the “intentional tortfeasor question.” Despite doing so, the majority agreed with Justice Zimmerman’s interpretation of the Liability Reform Act. Interpreting the Liability Reform Act’s definition of fault, the court observed that the definition “was broad and categorical” so that “it extends to ‘any actionable breach of legal duty…’” The court explained “[a] ny breach of duty, act, or omission counts as fault so long as it is proximately connected to injury or damages.” Because “no tenable notion of [any] ‘act’” could exclude an intentional tort, the court concluded intentional torts could be used to reduce the fault of negligent defendants.

Having come to this conclusion, Justice Lee went on to refute several counterarguments. He explained that the statute was sufficiently clear that the ejusdem generis canon of construction was inapplicable, meaning the list of examples found in Utah Code section 78B–5–817(2) did not alter the meaning of fault. Relying on the conclusion that the statute was clear, the court also rejected the argument that the title of the section 78B-5-818 restricted the unambiguous, express terms of the statute. The majority, likewise, eschewed efforts to rely on legislative intent that, in their view, overrode the text of the Liability Reform Act.


Dram Shop Experts

Perhaps hoping the legislature will take up the intentional tortfeasor question, the majority addressed several policy concerns that they were “preempted” from considering “[i]n the face of a detailed statutory scheme like the Liability Reform Act.” First, they acknowledged the current text of the Liability Reform Act may “dampen incentives of a defendant who has a duty to undertake due care in preventing acts of intentional misconduct.” That potential disincentive, however, was not as strong as thought by some, including former Justice Stewart, largely because juries were up to the task of allocating fault between negligent and intentional tortfeasors. The majority concluded that a jury was capable of recognizing and weighing how negligence can foster or result in an intentional tort. The majority also explained that refusing to “apportion liability for intentional torts would raise linedrawing problems of a different sort.” The point being that intentional torts are frequently just a slight increment on the sliding scale of torts from reckless behavior that is subject to apportionment. There is little reason then to allow apportionment up through recklessness, but then exclude intentional torts from the apportionment system.

The majority concluded its discussion of the Liability Reform Act much like it started – by inviting the legislature to revisit the intentional tort question. The legislature has ignored the Supreme Court’s invitation to address what was an open question for nearly 10 years. Perhaps the Supreme Court’s answer will prompt the legislature to chime in on this and related issues. Until then and regardless of how you weigh the policy considerations, Utah courts are to apportion fault in cases involving negligence, gross negligence, recklessness, strict and product liability and intentional torts. Paul Shakespear 


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