Jedrziewski v. Smith

2005 UT 85
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Ric Jedrziewski; Teresa Nos. 20040619
Jedrziewski; Chezlie 20040622
Jedrziewski; Sierra 20040623
Jedrziewski; Alexandra
Wand; and Vanessa Wand,
Plaintiffs and Appellees,
v.
Nick Glen Smith; Roger
Blain Evershed; Kurt Badger;
William Hyde; Lihati Hansen
Unga; Kyle Gates Durr; Jason
Johnson; Jason Moses; Joel
Iversen; Nick Ujifusa; and F I L E D
Does 5-20,
Defendants and Appellants. November 22, 2005
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Third District, Salt Lake
The Honorable William B. Bohling
No. 020906135
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Attorneys: Richard D. Burbidge, J. Ryan Mitchell, Jefferson W.
Gross, Salt Lake City, for plaintiffs
James S. Jardine, Justin T. Toth, Jacquelyn D.
Rogers, Salt Lake City, for defendant Smith
Steven A. Wuthrich, Montpelier, ID, for defendant
Evershed
David N. Mortensen, George L. Chingas, Jr., Provo,
for defendant Badger
Stephen J. Trayner, Robert W. Harrow, Salt Lake City,
for defendant Hyde
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1 At issue are the following statutory provisions of the
Utah Liability Reform Act.
1. Utah Code section 78-27-37 (2002), which, in relevant
part, reads:
(2) “Fault” means 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.
2. Utah Code section 78-27-38, which, in relevant part,
reads:
(3) No defendant is liable to any person
seeking recovery for any amount in excess of
the proportion of fault attributed to that
defendant under Section 78-27-39.
(4)(a) In determining the proportionate
fault attributable to each defendant, the
fact finder may, and when requested by a
party shall, consider the conduct of any
person who contributed to the alleged injury
regardless of whether the person is a person
immune from suit or a defendant in the action
and may allocate fault to each person seeking
recovery, to each defendant, and to any other
person whether joined as a party to the
action or not and whose identity is known or
unknown to the parties to the action . . . .
3. Utah Code section 78-27-39, which, in relevant part,
reads:
(1) The trial court may, and when
requested by any party shall, direct the
jury, if any, to find separate special
verdicts determining the total amount of
damages sustained and the percentage or
(continued...)
No. 20040619 2
NEHRING, Justice:
¶1 Defendant Nick Smith’s petition for interlocutory
review was granted to take up questions concerning the effect of
the apportionment scheme created by the Utah Liability Reform Act
(LRA)1 on the civil conspiracy cause of action and intentional

1 (...continued)
proportion of fault attributable to each
person seeking recovery, to each defendant,
and to any other person whether joined as a
party to the action or not . . . .
4. Utah Code section 78-27-40, which, in relevant part,
reads:
(1) Subject to Section 78-27-38, the
maximum amount for which a defendant may be
liable to any person seeking recovery is that
percentage or proportion of the damages
equivalent to the percentage or proportion of
fault attributed to that defendant.
(2) A defendant is not entitled to
contribution from any other person.
3 No. 20040619
tortfeasors.
FACTUAL AND PROCEDURAL HISTORY
¶2 The following facts are alleged by the Plaintiffs in
this civil action. During the fall of 2001, there were several
altercations between West and East High students at school
activities and private parties. Several of the West High
students formulated a plan to retaliate against the East High
students. After school on November 2, 2001, these West High
students held a meeting to plan and organize an attack. Later
that evening, approximately thirty West High students approached
the home of Ric Jedrziewski looking for East High students who
they believed were at a party at the Jedrziewski residence.
After being denied entry, some of the West High students broke
several windows at the residence. At this point, many students
began to flee to escape further incident. Some of the
individuals inside the residence, including the plaintiffs named
in this suit, began to pursue the students who were leaving.
During this pursuit, Alexandra Wand caught one of the students,
who struck her in the face and ran off. Ric Jedrziewski chased
the student down the street. As Mr. Jedrziewski caught up to the
student, several others returned to help their friend and
brutally beat Mr. Jedrziewski with baseball bats.
¶3 Plaintiffs filed an action against Defendants in which
they alleged causes of action for civil conspiracy, assault and
battery, intentional infliction of emotional distress, and
trespass to real property. One defendant, Nick Smith, filed a
Notice of Intent to Allocate Fault and a Motion for Judgment on
the Pleadings to resolve the issue of allocation of fault before
the case went to trial. The district court denied the motion,

2 Justice Stewart correctly labeled his separate opinion,
“concurring in part, dissenting in part.” The importance of the
way the members of the Field court interpreted the relationship
between their separate opinions and the Field holding features
prominently in solving the riddle of Field.
3 We recognize that conceptual obstacles notwithstanding,
Justices Zimmerman and Russon determined that the LRA’s
definition of fault found in section 78-27-37 included
intentional torts. We believe that whether or not a majority of
(continued...)
No. 20040619 4
and Mr. Smith requested an interlocutory appeal to this court to
decide whether the LRA eliminated joint and several liability
with regard to intentional torts.
STANDARD OF REVIEW
¶4 The district court’s decision was a matter of law, so
we review for correctness. Utah Dep’t of Transp. v. G. Kay Inc.,
2003 UT 40, ¶ 5, 78 P.3d 612.
ANALYSIS
¶5 The central fact of this case, around which all of the
relevant legal issues orbit, is the status of all Defendants as
alleged intentional tortfeasors. This case does not present us
with the question of whether negligent tortfeasors may have their
fault compared to that of intentional tortfeasors. That was the
question that many people, but not the members of this court,
believed was answered in Field v. Boyer Co., 952 P.2d 1078 (Utah
1998). We will take up the riddle of Field later in this
opinion, but it is important to note at the outset that Field
involved negligent tortfeasors and this case does not. This
difference matters. How to apportion shared fault is the issue
at the heart of the LRA.
¶6 Dissatisfaction over the inherent unfairness of joint
and several liability was the force that animated the legislature
to codify the principle that the monetary exposure of a
tortfeasor should be limited to his degree of fault.
¶7 This was the point made by Justice Stewart in his Field
dissent2 when he observed that “the word ‘fault’ does not denote
intentional misconduct.” Id. at 1086. He added that comparing a
defendant’s negligence with an intentional tort “results in an
absurdity; it is a comparison of unlikes, of apples and
oranges.”3 Id. at 1088. If it is conceptually difficult to

3 (...continued)
this court ever has occasion to answer the question of whether
the LRA as currently formulated requires apportionment of fault
among intentional tortfeasors, the legislature has the authority
to so declare.
5 No. 20040619
describe how a fault-based apportionment scheme can assign fault
where at least one of the parties has engaged in conduct
typically associated with fault and one has engaged in
intentional conduct in which fault plays no part, that difficulty
is magnified considerably when one attempts to apportion fault
among a class comprised exclusively of intentional tortfeasors.
¶8 The members of a class of intentional tortfeasors who
would be eligible candidates to have their fault apportioned
among them are commonly known as co-conspirators. Their conduct
is actionable as a civil conspiracy. We find that it is unwieldy
and inappropriate to analyze the liability status of co-
conspirators using the LRA, a statute directed at correcting
inequities in the allocation of accountability for the payment of
damages among tortfeasors. We are similarly not satisfied that a
principled analysis may be based on the Field discussion of
whether the LRA’s definition of fault applies to intentional
tortfeasors. Instead, we will undertake our analysis within the
framework of civil conspiracy, testing whether the LRA and its
damages apportionment scheme modifies or eliminates this cause of
action.
I. THE LRA DOES NOT PREEMPT CIVIL CONSPIRACY
¶9 The district court and, to a lesser extent, the parties
treat this case as hinging upon the determination of whether the
LRA applies to intentional torts. However, the facts of this
case require us to approach it analytically from the standpoint
of civil conspiracy. The decision to look for a clarification of
the LRA’s position on the intentional/negligent dichotomy in
order to resolve the question presented is understandable, but
confuses the relationship between civil conspiracy and
intentional torts. Knowing, intentional acts are required to
form the foundation of a conspiracy. Lumping civil conspiracy
into the realm of intentional torts would serve to eliminate
civil conspiracy as a cause of action altogether, while the LRA
was not about eliminating causes of action but apportioning
liability. This distinction is crucial, as the following
analysis will illustrate.
¶10 Defendants Kurt Badger and William Hyde argue that the
LRA preempted the common law doctrine of civil conspiracy. They

No. 20040619 6
claim that the LRA and civil conspiracy are in “irreconcilable
conflict” because the LRA applies to intentional torts. They
feel that the application of the LRA to intentional torts would
swallow up civil conspiracy by forbidding the holding of co-
conspirators jointly and severally liable for the results of the
conspiracy. By making this argument, they misconstrue the nature
of civil conspiracy. In a conspiracy that results in tort
liability, the cause of action for which the co-conspirators are
ultimately held liable is not the tort resulting in the harm, but
for the conspiracy that led to the harm. These are separate and
distinct causes of action, and the LRA does not, nor could it
constitutionally, reach the domain of civil conspiracy.
¶11 Utah courts have continuously recognized the validity
of civil conspiracy claims. See, e.g., DOIT, Inc. v. Touche,
Ross & Co., 926 P.2d 835 (Utah 1996) (analyzing the use of a
civil conspiracy claim to establish higher damages than
previously claimed); Alta Indus. Ltd. v. Hurst, 846 P.2d 1282,
1290 n.17 (Utah 1993) (stating that civil conspiracy claims can
be established using the five factors established in Israel Pagan
Estate v. Cannon, 746 P.2d 785, 790 (Utah Ct. App. 1987)). Utah
courts have decided civil conspiracy claims after the amendments
made by the legislature to the LRA, illustrating their belief
that civil conspiracy has not been preempted. See, e.g.,
Patterson v. Am. Fork City, 2003 UT 7, 67 P.3d 466; Waddoups v.
Amalgamated Sugar Co., 2002 UT 69, 54 P.3d 1054; Tanner v.
Carter, 2001 UT 18, 20 P.3d 332; Coroles v. Sabey, 2003 UT App
339, 79 P.3d 974; Peterson v. Delta Air Lines, 2002 UT App 56, 42
P.3d 1253.
¶12 In urging us to apply the LRA to intentional torts,
Defendants claim that a three-justice plurality in Field v. Boyer
Co., 952 P.2d 1078 (Utah 1998), already so held. Using reasoning
that depends entirely on the accuracy of their interpretation of
Field for its success, Defendants argue that legislative inaction
following Field indicates that the legislature was satisfied with
the Field holding and that Field actually found that the LRA
applies to intentional torts. They support this position by
citing Christensen v. Industrial Commission of Utah, 642 P.2d
755, 756 (Utah 1982), in which this court held that “where a
legislature amends a portion of a statute but leaves other
portions unamended, or re-enacts them without change, the
legislature is presumed to have been satisfied with prior
judicial constructions of the unchanged portions of the statute
and to have adopted them as consistent with its own intent.”
¶13 Legislative inaction, however, did not endorse the
application of the LRA to intentional torts because Defendants

7 No. 20040619
have misread Field, as will be discussed shortly. However,
unlike Field, these civil conspiracy decisions that were reached
after amendment of the LRA would be an appropriate situation in
which to consider Christensen. These multiple opinions create a
situation wholly unlike Field, as there is clear-cut action by
the court that has been continuously reviewed and applied by the
court, and the legislature has not spoken on the issue.
¶14 Despite numerous holdings ratifying the vitality of
civil conspiracy which the legislature has not addressed while
amending other portions of the LRA, Defendants argue that the LRA
preempts the common law claim of civil conspiracy. The first
step in analyzing whether a common law claim is preempted by an
act is determining that there was a valid claim at common law.
Miller v. United States, 2004 UT 96, ¶ 19, 104 P.3d 1202. If
that can be established, then the courts look at legislative
intent to determine whether the act preempts existing common law.
Gottling v. P.R. Inc., 2002 UT 95, ¶ 8, 61 P.3d 989 (“Whether
legislation is intended to blanket a particular field--and
thereby preempt existing or developing common law--is obviously a
question of legislative intent.”). Utah applies a two-tiered
analysis in determining legislative intent for preemption
purposes. When the language in a statute lacks explicit intent
to preempt common law doctrine, courts consider whether the
statute’s “structure and purpose” reveal an implicit preemptive
intent. Id. This can be done in two ways: (i) the statute’s
regulatory scheme is so pervasive that the common law doctrine
can no longer function, or (ii) the statute is in “irreconcilable
conflict” with the common law. Id. Defendants argue that the
second test applies because the common law cause of action of
civil conspiracy is in irreconcilable conflict with the LRA.
¶15 We find that the LRA does not preempt civil conspiracy
because even if the LRA applies to intentional torts, such a
determination would not implicate conspiracy due to its nature as
a cause of action distinguishable, independent, and unrelated to
tort law.
¶16 Even if the legislature intended the LRA to preempt the
common law doctrine of civil conspiracy, such a statute would
raise grave constitutional concerns under the open courts
doctrine of article I, section 12 of the Utah Constitution. We
held in Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670
(Utah 1985), that a statute that eliminates a common law cause of
action is unconstitutional unless one of two conditions is met:
First, section 11 is satisfied if the law
provides an injured person an effective and

No. 20040619 8
reasonable alternative remedy by due course
of law for vindication of his constitutional
interest. The benefit provided by the
substitute must be substantially equal in
value or other benefit to the remedy
abrogated in providing essentially comparable
substantive protection to one’s person,
property, or reputation, although the form of
the substitute remedy may be different.
Second, if there is no substitute or
alternative remedy provided, abrogation of
the remedy or cause of action may be
justified only if there is a clear social or
economic evil to be eliminated and the
elimination of an existing legal remedy is
not an arbitrary or unreasonable means for
achieving the objective.
Id. at 679 (citations omitted). Our decision that the LRA did
not intend to preempt civil conspiracy means that we need not
take up a detailed analysis of the applicability of section 11 at
this time. However, we do note that it would constitute a
significant barrier to any attempt to eliminate civil conspiracy
as a cause of action in the future.
II. THE SOLUTION TO THE RIDDLE OF FIELD v. BOYER
¶17 All sides in this controversy claim Field v. Boyer Co.,
952 P.2d 1078 (Utah 1998), as their friend. Defendants see the
case as congenial to their cause because to them it is about that
portion of Justice Zimmerman’s lead opinion that concludes that
intentional tortfeasors are within the grasp of the LRA’s broad
definition of fault and therefore subject to its apportionment
scheme. Plaintiffs are equally content with the case because
they stand by the view that Chief Justice Zimmerman’s opinion
concerning the scope of the LRA was his own and not the court’s.
Moreover, Plaintiffs take comfort in Justice Stewart’s strong
explication of the view that intentional torts occupy a different
realm than actions that are covered by the LRA.
¶18 We find that despite its fractured appearance, Field
can be easily reassembled to provide a conclusive picture of this
court’s position on the applicability of the LRA to settings
where there are both intentional and negligent tortfeasors.
¶19 Chief Justice Zimmerman made two points in his opinion.
First, he concluded that the LRA does not permit fault to be

9 No. 20040619
apportioned to unnamed, non-immune persons. Next, he interpreted
the LRA to require apportionment of fault to intentional
tortfeasors.
¶20 Justice Howe concurred in the result. His vote
inevitably raises the question, “what result?” The most direct
result of Field was to deny the shopping mall defendants the
opportunity to shift any of their potential fault to the unnamed
person who raped the plaintiff in the mall parking lot. For the
purposes of reaching this result, it mattered not at all that the
unnamed person was an intentional tortfeasor. Unnamed persons
were outside the LRA irrespective of the nature of their tortious
conduct. In short, Justice Howe added a vote to Justice
Zimmerman’s first point.
¶21 As noted earlier, Justice Stewart wrote a concurring
and dissenting opinion. Justice Durham joined him. Justices
Stewart and Durham added third and fourth votes to that portion
of Chief Justice Zimmerman’s opinion that left unnamed
tortfeasors free of the LRA. They dissented from his conclusion
that the LRA covered intentional torts.
¶22 Justice Russon wrote separately and styled his opinion
simply as a dissent. He expressed his views, however, on both of
the issues addressed by Chief Justice Zimmerman. He agreed with
the Chief Justice’s position that the LRA was applicable to
intentional torts, but parted ways with him on the issue of
whether the LRA apportioned fault to unnamed persons. Justice
Russon’s characterization of his opinion as a dissent clearly
discloses that his agreement with the Chief Justice on the
subject of intentional torts did not implicate the outcome of
Field and was dictum. In any event, it would be unprecedented to
count a vote cast in an unqualified dissent as a vote for any
proposition advanced in the lead opinion.
¶23 In summary, Chief Justice Zimmerman’s belief that the
LRA applies to intentional torts garnered two votes if it is to
be construed as essential to the result: his own and Justice
Howe’s. It also received two votes if it is to be construed as
dictum: that of the Chief Justice and Justice Russon. Thus the
solution to the riddle of Field is that whether the LRA applies
to intentional torts remains an open question.
¶24 We are mindful of Defendants’ assertion that the
legislature has deemed it unnecessary to amend the LRA to make
explicit the application of its fault apportionment scheme to
intentional tortfeasors when negligent tortfeasors are also
present. Although, as we have explained, this is not the

No. 20040619 10
circumstance that we confront here, and our analysis is therefore
focused elsewhere, we today clarify that the intentional
tortfeasor question remains an open one so that the legislature
may, if it elects, answer it.
CONCLUSION
¶25 The Utah Liability Reform Act does not preempt the
common law civil conspiracy cause of action. Because such a
conclusion is dispositive of the question raised on this
interlocutory appeal, we do not address the question of whether
the LRA applies to intentional tortfeasors, instead leaving that
question to be determined by the legislature or this court when
such a determination is necessary for the disposition of a case
at hand.
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¶26 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Judge Page concur in Justice Nehring’s opinion.
¶27 Having disqualified himself, Associate Chief Justice
Wilkins does not participate herein; District Judge Rodney S.
Page sat.
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