A Plaintiff's Lawyer Picks the 10 Best and 10 Worst Changes in Utah Tort Law
| Jurisdiction | Utah,United States |
| Citation | Vol. 9 No. 7 Pg. 21 |
| Pages | 21 |
| Publication year | 1996 |
August, 1996
By David E. West
After 39 years of law practice, it is interesting to pause and quietly look back at the dramatic changes that have taken place in the law in such a short (or long) period of time. The legal world is no longer the same place. Monumental changes have taken place that in the beginning one would have thought impossible — some good and some bad. Inspired by the David Letterman show and the popularity of "Top 10" lists, the author has come up with his own 10 best and 10 worst changes that have taken place in Utah law. Readers should be warned that this practitioner has been a plaintiff's lawyer. The picks obviously do not represent the opinion of the defense bar (nor anyone else for that matter). So with that explanation, here are the 10 best and 10 worst changes that have taken place.
THE 10 BEST CHANGES
1. Enactment of Governmental Immunity Act.
This important act easily makes the top of the list. Prior to 1965, the only place an injured victim could seek redress was the legislature[1] . Relief was a matter of discretion, not right. The archaic doctrine of sovereign immunity was firmly entrenched into the common law. After many years of criticism, Utah finally succumbed to the pressures of legal scholars everywhere, and passed the Governmental Immunity Act[2] thereby offering relief to victims of the Government's torts.
2. Abolishment of Contributory Negligence Defense/Comparative Negligence Act.
Contributory negligence was a heinous and unfair defense that thrived in Utah and left scores of victims uncompensated. Grossly negligent defendants were relieved of responsibility to plaintiffs who contributed to their accidents only minimally. The passage of the Utah Comparative Negligence Act in 1973 represented a monumental change in the law.[3]
3. Strict Products Liability.
Strict products liability did not arrive in Utah until 1979 with the case of Ernest W. Hahn, Inc. vs. Armco Steel Company[4]. Prior to Hahn, plaintiffs seeking compensation for injuries caused by defective and unsafe products were faced with the nearly impossible task of proving negligence or breach of warranty (with its various restrictions of privity, notice, etc.). Hahn adopted Restatement of Torts, §402A, which makes manufacturers and sellers strictly liable for defective and unreasonably dangerous products, which is now the law everywhere.
4. Unconstitutionality of Guest Statute.
It wasn't until 1984 that the Utah courts determined that occupants of automobiles do not, by reason of their status as passengers, breed collusive lawsuits. The determination of unconstitutionality in Malan vs. Lewis[5] was a giant step forward in providing relief to a large class of accident victims who, until that time, had no remedy for damages or death inflicted upon them by another party's negligence.
5. Abolishment of Locality Rule.
The door opener to medical malpractice suits in Utah was Swan vs. Lamb in 1978.[6] Until then, the "conspiracy of silence" among local doctors was very real. This vanished when the court recognized that medical standards in Utah are no different than in other communities, thereby making it possible to obtain experts and prove, where justified, that a doctor is actually capable of violating the standard of care.
6. Erosion of Inter-Family Immunity Concepts.
This has been a gradual process beginning with torts against children[7], and later extending to intentional acts between spouses[8], wrongful death actions[9], and negligent actions where insurance is involved[10] . The final straw - outright abolition of all immunity - is still to come, but I the faithful are now confident that it is only a matter of bringing the right case.[11]
7. Trend Toward ADR.
As litigation has become more costly and more complex the trend toward mediation and arbitration has had tremendous impact upon the legal profession. The ADR processes now in place makes it much easier to cut to the core of the issues and resolve most disputes in a fair and speedy manner. ADR is gaining in popularity and clearly appears to be the wave of the future. One has to wonder why it took us so long to accept and embrace these simple concepts, and let' s also hope that we don't ruin ADR by incorporating the same old litigation procedures.
8. Unconstitutionality of Statutes of Repose.
What could be more unfair than having a claim, otherwise fully meritorious, outlawed before the cause of action even arose? A classic example is a claim arising from a defective product which is barred before the injury happens. The Utah Supreme Court finally recognized this injustice in 1985 and constitutionally struck down long standing statutes of repose.[12] This was another victory for innocent accident victims.
9. Workplace Liability.
Third party actions, and...
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