Graves v. North Eastern Services, Inc., 2015 UT 28 (30 January 2015) decided an issue that has been bouncing around since the “Liability Reform Act” of 1986 became law.

Can a defendant ask a jury to compare its own fault for negligence with that of an intentional tortfeasor, or even a criminal? The answer, according to the 3-2 decision in Graves, is “Yes.”

A minor, A.R. (a neighbor girl), was sexually assaulted in a group home for disabled individuals owned and operated by NES. The assailant was defendants’ employee, Cooper. He had a history of sexual abusive conduct in a prior job, yet plaintiffs claimed that no references were checked by NES before hiring him, nor was any training given to Cooper’s supervisors on preventing sexual abuse. Cooper eventually plead guilty to aggravated sexual abuse of a child and is serving a fifteen-to-life sentence. The girl’s parents sued NES for damages to A.R. arising out negligence in the retention and supervision of Cooper.

Defendants moved for summary judgment on the grounds that they owed no duty of care to A.R., that plaintiffs needed an expert to establish the standard of care, and that in any event they were entitled to apportion liability to Cooper. The trial judge, Thomas Willmore in Logan, denied the motion for summary on all grounds. The Supreme Court granted defendants’ petition for interlocutory appeal.

The Court, in opinion authored by Justice Lee, affirmed the denial of the MSJ on duty, affirmed the denial of the MSJ on the need for an expert, but reversed the trial court on apportionment for Cooper’s sexual assault, holding that the “fault” to be apportioned under the Liability Reform Act, U.C.A. 
section 78B-5-818, et seq., is not limited to negligence, but also includes intentional torts.

Duty of care

The court reemphasized its “paradigm” for analyzing questions of duty in tort originally set forth in B.R. ex rel. Jeffs v West, 2012 UT 11, 275 P.3d 228. There is a core distinction between misfeasance (active misconduct) and nonfeasance (omissions). Everyone has a duty of due care in the performance of affirmative acts, but for our omissions we only have a duty where there is a “special legal relationship.”  So the key question is whether the plaintiff’s harm was caused by an affirmative act of the defendant or, rather, by an act of a third party that the defendant failed to prevent. In the first case, a tort law duty is the general rule. In the latter, the general rule is that there is no duty, as a person generally has no duty to control the conduct of others.    

NES framed the case is one involving nonfeasance – in not supervising, training, and performing background checks on Cooper. And because the assault was outside the scope of his employment, it bore no responsibility for his acts. On the other hand, plaintiffs framed NES’s responsibility as arising out of its affirmative acts, such as inviting neighborhood children to the residential facility with a playground and TV. Alternatively, they claimed that this case does involve a special relationship under Restatement (Second) of Torts section 317. Section 317 essentially provides that an employer has a duty to control an employee– even one acting outside the scope of employment–if the employee is on the employer’s premises and the employer knows that he can and should “control” the employee.

The Supreme Court accepted NES’s position that this was a case of nonfeasance and not misfeasance. The core complaint was not performing an employment background check on Cooper, and in not training and supervising him. it is true that NES would not generally be vicariously liable for the sexual abuse of Cooper. However, the question here is one of direct liability, not derivative: whether NES could be liable for harm to a guest resulting from negligence in hiring, training, or supervision of its employees.

The Court accepted plaintiff’s claim that a “special relationship” existed under section 317.  This, as stated, requires that employer has the ability to control the employee and that it knows or should know of the necessity for doing so. In this case, it was more than foreseeable that NES’s workers would come into contact with the public, including children like A. R. Because NES affirmatively went out of its way to encourage the involvement of neighbors in the goings-on at its residential facility, it had a duty to protect them from its employees.

Need for Expert Testimony

NES also asserted that expert testimony was necessary to prove the standard of care. Generally, standard of care is a matter for a lay jury to determine. But experts are required in medical malpractice claims, or in other matters implicating scientific issues beyond the capacity of the ordinary juror. In this case, the court saw no basis for for requiring expert testimony on the standard of care for performing background checks in hiring, training, and supervising employees. “The matters at issue appear to us to sound and common sense, not science or other subjects of expertise.”

Allocation of Cooper’s intentional fault

The hotly-disputed part of the opinion (3-2, with Nehring and Durham dissenting) concerned the courts holding that Cooper’s intentional torts/crimes could be allocated and compared to the fault of NES. Assuming Cooper to be judgment proof, any percentage allocated to him would be of course deducted from the total award to the plaintiffs, as joint and several liability no longer exists.

To date, there has been no definitive word on whether intentional torts should be compared with negligent ones. See, 
Field v. Boyer, 952 P.2d 1078 (Utah 1998), decided on other grounds but with a plurality opinion stating that intentional torts should be compared.

The majority took a literal and broad interpretation of the 1986 “Liability Reform Act,”  to find that intentional torts should be included in the allocation of fault, although it recognized there is some room for doubt about the Legislature’s intentions. 

“Fault” under 78B-5-817(2) includes 
“any actionable breach of legal duty, act, or omission proximately causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all its degrees, comparative negligence, assumption of risk, strict liability, breach of express or implied warranty of a product, products liability, and misuse, modification, or abuse of a product.”

The Court read this as meaning any breach of duty, act, or omission counts as fault so long as it is proximately connected to injury. The abscence in the definition of fault of any reference to intentional torts is of no consequence, because of the word “including,” meant the definition was only a partial list.

The Court was also not impressed witht he fact that the title of the section in the statute is “Comparative Negligence.” The text controls, not the title. Nor does the legislative history– which indicates an intention to amend only a comparative negligence law.  There is also a lengthy discussion of the public policy issues, pro and con, for allocating intentional torts, but I will leave that for the reader to review on their own.

A dissent by A.C.J. Nehring, joined by Justice Durham, suggests the majority is mireading the entire statute, as it was merely an updrade of the 1973 Comparative Negligence Act, designed to eliminate the evils of common-law contributury nelgigence, that intentional torts had never been compared to negligent ones, and that there was no indication that the legislature intended to do so.  All it wanted to do was to use the word “fault” to include such things as strict liability and product liability, which do not cleanly fall within the term “negligence.” Citing Prosser, “[c]ontributory negligence has never been considered a good defense to an intentional tort such as battery.”


This is a complex and lengthy decision deserving a full read. In the case at hand, it means that NES can ask the jury to allocate fault on Cooper– whatever percentage is assessed on him will be deducted from the parent’s award against NES. One wonders if there will be legislative action on the part of the trial bar to attempt to correct the consequences of the Graves opinion.