Johnson v. Rogers
763 P.2d 771, 90 Utah Adv. Rep. 3, 1988 Utah LEXIS 81 (1988)
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Rule of Law:
In Utah, punitive damages may be awarded against a drunk driver whose conduct manifests a knowing and reckless disregard for the rights of others. An employer is vicariously liable for such damages only if the employer was complicit in the employee's act under the Restatement (Second) of Torts § 909, and a bystander may recover for negligent infliction of emotional distress only if they were within the physical "zone of danger."
Facts:
- Newspaper Agency Corporation (NAC) hired Donald Rogers as a driver in May 1980.
- NAC failed to discover that Rogers' driver's license had previously been revoked in Oregon for a DUI conviction.
- NAC had written rules against employees driving while intoxicated but did not enforce them.
- NAC management was aware or should have been aware of widespread alcohol and marijuana use by employees on the job, and a supervisor once told drivers to "do it on the road."
- On the evening of April 16, 1982, before his shift, Rogers consumed approximately seven mixed drinks and a large tequila drink.
- While on duty for NAC, Rogers drove his truck with a blood alcohol level later measured at .18 percent.
- At approximately 10:00 p.m., Ray Johnson and his eight-year-old son, David, were standing on a downtown Salt Lake City street corner waiting for a walk signal.
- Rogers drove the NAC truck across an intersection, jumped the curb, and struck David, killing him, and physically injured Ray Johnson.
Procedural Posture:
- Ray and Frances Johnson sued Donald Rogers and Newspaper Agency Corporation (NAC) in a Utah trial court for wrongful death, emotional distress, and punitive damages.
- The trial court granted defendants' motions for summary judgment on the issue of punitive damages, holding Utah law required 'actual malice' and did not permit vicarious liability for such damages.
- The trial court also ruled on defendants' motions regarding emotional distress, denying summary judgment for Ray Johnson's claim because he was in the 'zone of danger,' but granting it as to Frances Johnson's claim.
- Plaintiffs filed an interlocutory appeal to the Utah Supreme Court challenging the dismissal of their punitive damages claims.
- Defendants filed a cross-appeal challenging the trial court's decision to allow Ray Johnson's claim for negligent infliction of emotional distress to proceed.
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Issue:
Under Utah law, 1) are punitive damages available against an intoxicated driver whose conduct manifests a knowing and reckless disregard for the safety of others; 2) is an employer vicariously liable for punitive damages based on an employee's tortious acts only if the employer was complicit; and 3) may a bystander recover for negligent infliction of emotional distress only if they were within the physical zone of danger?
Opinions:
Majority - Durham, Justice
Yes, Yes, and Yes (under a broad foreseeability test). Punitive damages may be imposed for conduct that manifests a knowing and reckless indifference and disregard toward the rights of others, and driving while severely intoxicated can meet this standard. The court adopts the Restatement (Second) of Torts § 909 'complicity rule' for holding an employer vicariously liable for punitive damages, which requires some fault on the employer's part, such as recklessness in employing an unfit agent. Finally, Utah should recognize a cause of action for negligent infliction of emotional distress (NIED) for bystanders, and while the plaintiff here meets the requirements of the impact rule, zone-of-danger rule, and the more liberal Dillon foreseeability test, the Dillon test is the most analytically sound approach.
Concurring - Zimmerman, Justice (Controlling Majority)
Yes, Yes, and Yes (but only under the 'zone of danger' test). The concurring opinion, representing the majority of the court, agrees that punitive damages are available against a drunk driver who acts with knowing and reckless disregard and that the facts here are sufficient to present the issue to a jury. It also agrees that the Restatement § 909 'complicity rule' is the correct standard for employer vicarious liability for punitive damages. However, it explicitly rejects the lead opinion's ambiguity on NIED and formally adopts the more conservative 'zone-of-danger' rule from the Restatement (Second) of Torts § 313, requiring a bystander plaintiff to have been at unreasonable risk of bodily harm themselves to provide a clear and predictable standard for lower courts.
Analysis:
This case establishes three significant tort law principles in Utah. It clarifies that the standard for punitive damages in negligence cases is 'knowing and reckless disregard,' not the higher 'actual malice' standard reserved for torts like false imprisonment. It adopts the conservative 'complicity' rule for vicarious punitive liability, shielding employers from automatic liability for an employee's outrageous acts unless the employer is also at fault. Most critically, while recognizing the tort of negligent infliction of emotional distress for bystanders, the court's majority strictly limited it to the 'zone of danger' test, rejecting the broader, more plaintiff-friendly foreseeability standard adopted in other jurisdictions like California.
