Recent Utah Tort Developments
| Date | 01 January 1990 |
| Publication year | 1990 |
| Pages | 13 |
Donald N. Zillman Peggy Gentles, J.
INTRODUCTION
1988-89 was a "tort rich" year for the Utah appellate courts. This article will summarize some of the most prominent cases. A full review of cases and statutory revisions appears in the 1989 update of Utah Tort Law which is available from the University of Utah College of Law.[1] This article reports cases decided through October 10, 1989.[2] The format will follow the classifications used in Utah Tort Law. Readers are cautioned that citations to Utah Advance Reports are subject to modification prior to final publication.
INTENTIONAL TORTS
The Utah Supreme Court addressed the issue of culpability for drunk driving accidents in Johnson v. Rogers.[3] In this case, Johnson was standing at a corner in downtown Salt Lake City when he and his son were struck by a truck driven by Rogers when it jumped the curb.[4] Johnson was injured and his son was killed in the accident. Rogers was driving under the influence of alcohol.[5]
The Court discussed whether Johnson could recover punitive damages. In doing so, the Court addressed the culpability for drunken driving. Justice Durham refused to hold that all drunk driving was per se knowingly reckless and exhibiting a high degree of disregard for the safety of others. Instead, such a level of culpability must be proven at trial.[6]
A Utah Court of Appeals case discussed the malicious prosecution action. In Arnica Insurance v. Schettler, [7] the court examined the required nexus between the defendant's actions and the criminal prosecution. To prove that defendant instituted criminal proceedings against the plaintiff, the defendant must have been "actively instrumental in putting the law in force."[8]
The final notable intentional tort case this year is more interesting for its facts than for the law of the case. Boisjoly v. Morton Thiokol [9] involved a suit by a Thiokol engineer for severe emotional distress due to the tragic launching of the space shuttle Challenger. Plaintiff, among other engineers, had expressed concern about launching the shuttle in cold weather. The Court rejected plaintiff's claims finding that any claim that Thiokol had recommended launch to hurt plaintiff was "ridiculous."[10]
THE NEGLIGENCE ACTION
The Utah Supreme Court adopted two new negligence causes of action: negligent infliction of emotional distress and wrongful pregnancy. The first of these was announced in the Johnson case discussed in the intentional torts section. The Court unanimously held that a cause of action for negligent infliction of emotional distress to a plaintiff within the zone of danger did exist in Utah. However, the Court was split 4-1 on the standard for determining who can recover.[11] The majority held that the "zone of danger" rule from the Restatement (Second) of Torts, Sect. 313, applied. The "zone of danger" doctrine allows liability for negligent infliction of emotional distress if the actor:
(a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of third person and (b) from facts known to him, should have realized that the distress, if it were caused, might result in illness or bodily harm.[12]
Further, the Restatement allows recovery for distress from viewing injury to a third person due to the defendant's conduct only if "the negligence of the actor has otherwise created risk of bodily harm to the [person seeking to recover]."[13] The majority viewed the "zone of danger" theory as being the best balance between the interest of potential plaintiffs and the interest of establishing a predictable rule for the courts and public. Until the courts gained more experience in the cause of action, the majority felt it wise to take "the more conservative approach."[14] Justice Durham felt that the "zone of danger" rule was a "rigid and inequitable limitation" that unjustifiably predicated recovery on close physical proximity.[15] Instead, she favored the so-called Dillon rule, first articulated by the California Supreme Court in Dillon v. Legg.[16] Under this rule, three factors should be considered to evaluate foreseeability: 1) plaintiff's proximity to the scene of the accident; 2) whether the plaintiff s distress was a result of witnessing the accident; and 3) if plaintiff was closely related to the victim.[17]
In another significant decision, C.S. v. Nielson, [18] the Court adopted the wrongful pregnancy cause of action. The case addressed two questions of law certified from the federal district court. Essentially, the questions addressed the existence of the cause of action in Utah and the measure of damages if remedy were available. The facts were relatively straightforward. The defendant Dr. Nielson performed a sterilization operation on plaintiff. Plaintiff claimed that Nielson did not inform her that the procedure was not infallible and that alternative procedures were available. Subsequent to the operation, plaintiff became pregnant and delivered a healthy baby. Plaintiff sought damages including medical expenses for the pregnancy and birth, the expenses of having a hysterectomy performed following the birth, emotional distress due to the pregnancy and birth, pain and suffering, and the cost of rearing an unplanned child.
In answering the federal district court's first question, the Court found that a cause of action existed. In doing so, Chief Justice Hall distinguished a claim for wrongful pregnancy from wrongful birth and wrongful life actions. Wrongful pregnancy is an action by parents to recover damages due to the birth of a healthy, but not desired, child. Wrongful birth or life refers to an action by parents or the child claiming that but for the doctor's negligence the child, born impaired, would have been aborted or would have never been conceived.[19]
The majority refused to apply Utah's Right to Life statute[20] to bar plaintiff's action. The statute's language "[a] cause of action shall not arise. . . based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted"[21] was not applicable to this situation. The plain language of the statute addressed the wrongful life and wrongful birth action only. "Clearly, '[a] person's decision not to conceive a child and to undergo surgical sterilization should not be confused with one's decision to abort a child already conceived.' " [22] Dr. Nielson's view, according to Chief Justice Hall, would ignore the principal that the pregnancy, not the birth, gives rise to the cause of action. Further, to not establish a cause of action would immunize a physician from any liability in similar situations.[23]
Justice Howe was the sole dissenter on the first question. He felt that recognition of a wrongful pregnancy action was contrary to public policy because it "denigrates human life and awards damages for the birth of a healthy child."[24] Plaintiff could be afforded relief for the medical costs associated with the unsuccessful surgery in a contract action. However, pain and suffering would never be recoverable.[25]
The measure of damages was much more controversial. The four justices agreed that the following damages could be recovered: any medical and hospital expenses resulting from the negligence; pain and suffering; wages lost by mother and/or father; and punitive damages, if applicable.[26] The majority also refused to require that parents mitigate damages by aborting or placing the child for adoption.[27]
The justices in the majority differed, however, on the recovery of the ordinary costs of raising the child. Justices Durham and Zimmerman in separate opinions favored the adoption of the "Benefits Rule." This view allows the recovery of a portion of the child-rearing costs. The child-rearing costs, however, are reduced by any pecuniary or non-pecuniary benefits which accrue to the parents as a result of rearing a healthy child.[28] Justice Durham felt that the "Benefits Rule" was more responsive to the highly individualized circumstances which would arise in wrongful pregnancy cases.[29] The presence of a child could have profoundly different effects depending upon differing economic, emotional and physical attributes of the family unit.[30] "Recovery for child-rearing costs where a negligently performed sterilization has a substantial negative impact on the family is in the interest of 'greater justice.' " [31] Justice Zimmerman viewed Justice Durham as not allowing for the child-rearing costs to be offset by the intangible benefits of raising a child. He disagreed, favoring "the unadulterated 'benefits rule' for measuring damages which most closely approximates the general damages rule that if the tortfeasor has conferred benefits as well as detriments on the plaintiff, the benefits and detriments must be netted out in any award."[32]
The Chief Justice and Justice Stewart felt that the "Limited Damages View" which was applied in a majority of jurisdictions should govern. While allowing the other types of damages mentioned above, this view does not allow recovery of child-rearing costs.[33] Chief Justice Hall cited many of the reasons that other courts have used to justify the "Limited Damages View." Among them were the speculative nature of child-rearing damages, the potential that the plaintiff would suffer a windfall at the defendant's expense, and the difficulty of establishing the amount of damages at an early time in the child's life.[34]
Two other negligence cases are worth noting. First, the Utah Court of Appeals refused to apply state and federal OSHA standards to establish a standard of care owed a member of the public. Since the plaintiff was not employed by the establishment, he was not in the class intended to be protected by...
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