explaining how the court had established an "actual malice" standard applicable to "shoplifting cases" involving the common-law tort of false imprisonment based upon "extensive consideration of specific policy concerns" and ''balancling of] ... competing interests"
How later courts described this case
- explaining how the court had established an "actual malice" standard applicable to "shoplifting cases" involving the common-law tort of false imprisonment based upon "extensive consideration of specific policy concerns" and ''balancling of] ... competing interests"
- reversing summary judgment on the issue of punitive damages when plaintiff presented evidence that trucking company defendant failed to learn of defendant driver’s previous conviction or that drivers were driving on suspending licenses while employed, continued to allow drivers to drink and use drugs before and during work, and neglected to supervise its employees in various aspects
- recognizing cause of action for negligent infliction of emotional distress and enunciating standards for employer’s vicarious liability to third party for punitive damages awarded against negligent employee
- recognizing serious concerns about the zone of danger rule, but concluding that it strikes a “fair balance”
Written by the judges who cited it.
The opinion
ZIMMERMAN, Justice
(concurring in part):
My view of this case differs somewhat from that of Justice Durham. Since this is a case of first impression in this Court on an issue that is almost certain to come before trial courts frequently, I write separately to express my distinct views and to provide the trial courts, as well as the bar, with additional guidance. 1
My first point of concern pertains to the claim for punitive damages against the driver of the van, defendant Rogers, which is addressed in Part II of Justice Durham’s opinion. I agree that punitive damages may be recovered from drunk drivers so long as the appropriate standard of fault is met. I further agree with Justice Durham that the appropriate standard of fault for the imposition of punitive damages against a drunk driver is knowing and reckless disregard for the rights of others. I think it important to emphasize that not every case involving intoxicated driving presents a jury question on punitive damages. See Miskin v. Carter, 761 P.2d 1378 , (Utah 1988). However, I agree that on balance, there is sufficient evidence to go to the jury on the question of whether Rogers’ conduct satisfied the “knowing and reckless” standard. The way he operated the NAC truck, combined with his high level of intoxication at the time of the accident, the excessive drinking that occurred immediately before the accident, and his history of drinking and operating a motor vehicle, all provide sufficient evidence from which a jury could find that punitive damages are warranted. See Mis-kin. Therefore, I join Justice Durham in reversing the trial court’s grant of partial summary judgment on the question of Rogers’ liability for punitive damages.
My second area of concern relates to the claim for punitive damages against Rogers’ employer, defendant NAC, which is addressed in Part III of Justice Durham’s opinion. I agree that an employer may be liable for punitive damages as a result of a tortious act of an employee, but only so long as that liability is premised on the conduct of the employer, and I join Justice Durham in concluding that the appropriate standard for determining that liability is set forth in section 909 of the Restatement (Second) of Torts (1979). Applying that standard to this case, Justice Durham would hold that the question of NAC’s liability should go to the jury. I do not agree that we can determine from the record before us whether there is sufficient *785 evidence to go to the jury on this question. In arguing for the imposition of punitive damages against NAC, the Johnsons seriously rely only on the test set forth in section 909(b) of the Restatement, which requires proof that “the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him [or her].” A careful examination of Justice Durham’s opinion reveals that while the evidence there summarized is certainly sufficient to raise the question of whether NAC was generally careless in how it supervised its employees, none of the evidence regarding the facts known to NAC is directed to the question of whether NAC was “reckless in employing or retaining” Rogers. For that reason, I am not con-' vinced that the evidence is sufficient to go to the jury on the question of punitive damages as to NAC.
In granting a summary judgment for NAC, the trial court operated on the assumption that NAC could not, under any circumstances, be held liable for punitive damages. Therefore, it did not have occasion to closely scrutinize the facts to see whether, viewed in a light most favorable to the plaintiff, they could satisfy section 909(b)’s requirements. Now that we have corrected the trial court’s misimpression as to the law and have set out the appropriate standard for determining NAC’s possible liability, the matter should be remanded to the trial court to permit the parties to properly present the issue and the trial court to determine whether the evidence is sufficient to go to the jury.
My final concern is with the issue addressed in Part IV of Justice Durham’s opinion, the existence of and rules for implementing a cause of action for negligent infliction of emotional distress. I agree that this cause of action does exist in Utah, as the trial court held. However, I depart from Justice Durham with regard to the legal standard by which such a cause of action is to be defined in Utah. Her opinion surveys the law of other states — a helpful exercise — but it declines to choose from among the various possible rules because all seem satisfied in this case. If we were to do no more, courts and counsel would be left entirely without satisfactory guidance in dealing with all cases but the present one. We cannot permit every claim for negligent infliction of emotional distress to go to a jury under such varying standards as each trial judge may choose. We have a practical obligation to articulate understandable standards and to impose workable limits for use in the Utah courts. In the exercise of that function, I think it best to adopt as the test for determining liability for the negligent infliction of emotional distress the standards set forth in section 313 of the Restatement (Second) of Torts (1965), as explained in the comments accompanying that section.
I recognize that some of the limitations inherent in the “zone of danger” rule of section 313 are hard to justify on a purely theoretical basis. Indeed, I have serious concerns about the theoretical rationality of any limits that can be imposed on liability for negligent infliction of emotional distress. Cf. Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1286 (Utah 1987) (declining to recognize a loss-o&consortium cause of action, in part because of the difficulty of defining rational limiting principles). However, section 313’s limitations seem to strike a fair balance between the interests those injured have in recovering damages and the interests of the courts and the public in predictable rules. At some future date, we may determine that there is merit in some of the other approaches surveyed in Justice Durham’s opinion. However, until we have had experience with the cause of action, I conclude that it is best to take the more conservative approach and adopt the Restatement rule as written.
For the foregoing reasons, I join in remanding to the trial court for further proceedings consistent with the opinion of Justice Durham and with this opinion, where it varies from Justice Durham’s.
HALL, C.J., HOWE, Associate C.J., and STEWART, J., concur in the concurring opinion of ZIMMERMAN, J.
. Because three other Justices have joined in this opinion, it represents the views of a majority of this Court on the issues it addresses.