Rodriguez v. Kroger , 422 P.3d 815 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 25IN THE
SUPREME COURT OF THE STATE OF UTAH
GLORIA RODRIGUEZ,
Appellant,
v.
THE KROGER COMPANY and J&I MAINTENANCE,
Appellees.
No. 20161012
Filed June 12, 2018
On Direct Appeal
Third District, West Jordan
The Honorable Judge L. Douglas Hogan
No. 130400905
Attorneys:
Daniel F. Bertch, Kevin K. Robson, Salt Lake City, for appellant
Lloyd R. Jones, Salt Lake City, for appellees
JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Gloria Rodriguez arrived at a Smith’s grocery store shortly
after it opened at 6:00 a.m. to purchase her breakfast. As she walked
toward aisle 13, she slipped on a puddle of soapy water. Rodriguez
fell, injuring her head, neck, and shoulders. Rodriguez sued The
Kroger Company and Smith’s Food & Drugs Centers, Inc.
(collectively, Smith’s), the janitorial company Smith’s contracted
with to clean the floors, and the independent contractor the janitorial
company hired todo the work. Rodriguez settled with the
independent contractor before trial. At trial, a jury apportioned 5
percent of the fault to Smith’s, none of the fault to the janitorial
RODRIGUEZ v. KROGER
Opinion of the Court
company, 75 percent of the fault to the independent contractor, and
20 percent of the fault to Rodriguez herself. After trial, Rodriguez
argued that Smith’s and the janitorial company were liable for the
independent contractor’s share of the damages. The district court
disagreed and entered judgment based on the jury’s allocation of
fault. The district court also awarded Rodriguez 5 percent of her
costs. Rodriguez appealed.
¶2 Rodriguez challenges the district court’s final judgment.
Rodriguez contends that because Smith’s was charged with a
nondelegable duty to keep its premises safe, the court should have
required Smith’s to pay damages for the independent contractor’s
negligence in addition to its own. Rodriguez also claims that the
nondelegable duty doctrine mandated that the district court enter
judgment against the janitorial company for the damages flowing
from the independent contractor’s negligence.
¶3 We conclude that Smith’s is liable for the damages the
independent contractor caused. But because Rodriguez did not
demonstrate that the janitorial company also assumed Smith’s
nondelegable duty, we conclude that the district court did not err by
refusing to enter judgment against the janitorial company for the
independent contractor’s negligence. Additionally, we conclude that
costs need not be allocated in proportion to a party’s fault under the
Liability Reform Act, and remand for a redetermination of costs.
Accordingly, we reverse the decision of the district court in part,
affirm in part, and remand. 1
BACKGROUND
¶4 Smith’s contracted with J&I Maintenance to clean its floors.
In turn, J&I contracted with Benigno Galeno to perform the cleaning
services. 2 While cleaning the store one night, Galeno left a puddle of
water at the end of aisle 13.
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1 Smith’s and the janitorial company moved for summary
disposition arguing that the “grounds for review are so insubstantial
as not to merit further proceedings and consideration by the
appellate court.” See UTAH R. APP. P. 10(a)(2)(A). As we hope the
following pages demonstrate, we disagree.
2 “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” USA Power,
LLC v. PacifiCorp, 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (citation omitted).
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Cite as: 2018 UT 25Opinion of the Court
¶5 Shortly after the store opened, Rodriguez arrived at a
Smith’s grocery store to purchase her breakfast. Rodriguez walked
through the front doors and headed for aisle 13. Rodriguez
“suddenly and unexpectedly slipped on a puddle of water . . . .”
Rodriguez fell, injuring her head, neck, and shoulders.
¶6 Rodriguez sued Smith’s, J&I, and Galeno. Before trial,
Rodriguez settled with Galeno. 3 Shortly before the case went to the
jury, the parties agreed to this jury instruction:
The parties have stipulated that J&I Maintenance, Inc.
was the independent contractor of [Smith’s] to, among
other things, clean its floors. The parties have also
stipulated that [Benigno Galeno] . . . was the
independent contractor of J&I Maintenance, Inc. to
clean [Smith’s] floors. Usually, [Smith’s] would not be
liable for the negligence of an independent contractor.
However, [Smith’s] has a nondelegable duty to keep its
premises reasonably safe for invitees, and the law
imposes liability for physical harm caused by a breach
of the nondelegable duty to keep its premises
reasonably safe for invitees even though [Smith’s] may
have contracted with others who performed the work
which caused the injury.
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3 Neither party addresses the impact that this settlement may
have had on the litigation between Rodriguez, Smith’s, and J&I. In
M.J. v. Wisan, 2016 UT 13, 371 P.3d 21, we held that a principal’s
pass-along liability is governed by the Joint Obligations Act (JOA).
Id. ¶¶ 33–35. Under the JOA, an “obligee’s release or discharge of
one or more of several obligors, or of one or more of joint or of joint
and several obligors, does not discharge co-obligors against whom
the obligee in writing and as part of the same transaction as the
release or discharge expressly reserves his rights . . . .” UTAH CODE
§ 15-4-4. In other words, the JOA requires a claim against a principal
to be expressly reserved in order for it to be preserved. In Wisan, we
explained that this is because “the agent’s acts are the only thread
connecting the principal to the plaintiff. Once that thread is severed
(by a release), there is no longer any basis for the principal’s liability
(unless it is expressly reserved).” 2016 UT 13, ¶ 38. We acknowledge
our examination of vicarious liability under the JOA in Wisan, but
because neither party raised this issue below or on appeal, we will
not explore its potential impact here.
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Opinion of the Court
The jury allocated 5 percent of the fault to Smith’s, none to J&I, 75
percent to Galeno, and 20 percent to Rodriguez.
¶7 Rodriguez filed a proposed judgment and argued that
because Smith’s owed a nondelegable duty to keep its store
reasonably safe for its customers, the court should enter judgment
against Smith’s for 80 percent of Rodriguez’s damages: 5 percent
attributable to the fault allocated to Smith’s and 75 percent
attributable to the fault allocated to Galeno. Additionally, Rodriguez
argued that because J&I and Galeno assumed Smith’s nondelegable
duty, the court should enter judgment against J&I for 75 percent of
Rodriguez’s damages, attributable to 75 percent of the fault allocated
to Galeno.
¶8 Smith’s and J&I opposed Rodriguez’s proposed judgment.
They argued that such a rejiggering of liability would run afoul of
Utah’s Liability Reform Act (LRA). Smith’s and J&I reasoned that
under the LRA, no defendant can be liable to any person seeking
recovery for any amount in excess of the proportion of fault
attributed to that defendant, and that Rodriguez’s proposed
judgment would do precisely that. (Citing UTAH CODE
§ 78B-5-818(3)).
¶9 The district court agreed with Smith’s and J&I’s reading of
the LRA. The court entered judgment against Smith’s for 5 percent of
Rodriguez’s damages. The court also awarded Rodriguez 5 percent
of her costs. Rodriguez appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Rodriguez raises two issues on appeal. First, Rodriguez
contends that the district court erred by declining to enter judgment
against Smith’s and J&I for the portion of damages Galeno’s
negligence caused. 4 Rodriguez argues that under the nondelegable
duty doctrine, both Smith’s and J&I are liable for the 75 percent of
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4 We are hindered in our review by an incomplete record.
Rodriguez filed a certificate verifying that “no transcript is necessary
as the case was decided on briefs after judgment.” But the order and
its accompanying briefs provide only a glimpse of what occurred
below. Transcripts of pre and posttrial hearings, as well as those of
the jury trial can be valuable resources to understand the district
court’s decision. A complete record aids our review bigly and at
times our opinion reflects our lack of visibility into what happened
below.
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the fault allocated to Galeno. “The question of whether a duty exists
is a question of law. . . . [R]esolution of this issue begins with an
examination of the legal relationships between the parties, followed
by an analysis of the duties created by these relationships.” Yazd v.
Woodside Homes Corp., 2006 UT 47, ¶ 15, 143 P.3d 283 (citation
omitted). Smith’s and J&I argue that the LRA prevents the court
from shifting Galeno’s portion of the damages to them. “The
application of the LRA in apportioning fault is a legal question of
statutory construction, which we review for correctness.” Bishop v.
GenTec Inc., 2002 UT 36, ¶ 8, 48 P.3d 218.
¶11 Second, Rodriguez contends that the trial court erred when
it awarded her only 5 percent of her costs. “A trial court’s decision to
award the prevailing party its costs is reviewed under an abuse of
discretion standard.” Coleman ex rel. Schefski v. Stevens, 2000 UT 98,
¶ 10, 17 P.3d 1122. However, whether the district court applied the
appropriate standard to determine those costs presents a legal
question that we review for correctness. Lyon v. Burton, 2000 UT 55,
¶ 76, 5 P.3d 616 (holding that when the reasons for the trial court’s
decisions to award costs involve legal determinations, we review the
court’s decision for correctness); cf. Penunuri v. Sundance Partners,
Ltd., 2017 UT 54, ¶ 15, --- P.3d --- (“[T]he proper standard to apply
when determining whether to award deposition costs is a legal
question that we review for correctness.”).
ANALYSIS
I. Vicarious Liability of Smith’s and J&I
¶12 Rodriguez contends that the district court erred by entering
judgment against Smith’s for 5 percent of her damages. Rodriguez
argues that under the nondelegable duty doctrine, both Smith’s and
J&I should also be liable for Galeno’s portion of the damages.
Smith’s and J&I counter that the LRA precludes entry of a judgment
exceeding the proportion of fault attributed to a defendant at trial.
The questions presented require an examination of the nondelegable
duty doctrine and the LRA.
A. The Nondelegable Duty Doctrine
¶13 Generally, “the employer of an independent contractor is
not liable for physical harm caused to another by an act or omission
of the contractor or his servants.” Magana v. Dave Roth Constr., 2009
UT 45, ¶ 22, 215 P.3d 143 (citation omitted). “This general rule
recognizes that one who hires an independent contractor and does
not participate in or control the manner in which the contractor’s
work is performed owes no duty of care concerning the safety of the
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Opinion of the Court
manner or method of performance implemented.” Id. (citation
omitted).
¶14 The nondelegable duty doctrine provides an exception to
this general rule. The owner of a premises has a nondelegable duty
to keep her premises reasonably safe for business invitees. See
Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991) (“Owners
of land must . . . exercise due care and prudence for the safety of
business invitees.”). Because the landowner may not relieve herself
of the duty, she is liable for an independent contractor’s negligence
as if it were her own. Sullivan v. Utah Gas Serv. Co., 353 P.2d 465, 466–
67 (Utah 1960). As our court of appeals has noted, a “nondelegable
duty means that an employer of an independent contractor, by
assigning work consequent to a duty, is not relieved from liability
arising from the delegated duties negligently performed.” Price v.
Smith’s Food & Drug Ctrs., Inc., 2011 UT App 66, ¶ 26, 252 P.3d 365(internal quotation marks omitted) (quoting 41 AM. JUR. 2D
Independent Contractors § 43 (2005)).
¶15 The nondelegable duty doctrine stems from principles of
premises liability:
A possessor of land who holds it open to the public
for entry for his business purposes is subject to liability
to members of the public while they are upon the land
for such a purpose, for physical harm caused by the
accidental, negligent, or intentionally harmful acts of
third persons . . . and by the failure of the possessor to
exercise reasonable care to (a) discover that such acts
are being done or are likely to be done, or (b) give a
warning adequate to enable the visitors to avoid the
harm, or otherwise protect them against it.
RESTATEMENT (SECOND) OF TORTS § 344 (AM. LAW. INST. 1965); see also
Dwiggins, 811 P.2d at 183 (holding that the duty arising under
section 344 exists in Utah). This rule “applies to the acts of
independent contractors . . . who are employed or permitted to carry
on activities upon the land.” RESTATEMENT (SECOND) OF TORTS § 344
cmt. c. “The very essence of the nondelegable duty doctrine . . . is
that the property owner is fully liable to a plaintiff who has been
injured as a result of a breach of a nondelegable duty regardless of
whether the property owner is actually at fault or the degree of
fault.” Smith v. Town of Greenwich, 899 A.2d 563, 583 (Conn. 2006).
¶16 Smith’s and J&I argue that the nondelegable duty doctrine is
a form of respondeat superior liability, and that Utah’s LRA displaced
respondeat superior liability. Nondelegable duties create a form of
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vicarious liability. 41 AM. JUR. 2D Independent Contractors § 43 (2d ed.
2018). But the nondelegable duty doctrine is not synonymous with
the doctrine of respondeat superior. Rather, “[t]he doctrine of
nondelegable duty is parallel to that of respondeat superior as both are
forms of vicarious liability; both have the aim of ensuring that the
employer is responsible to innocent third parties for the negligent
acts of its agents.” Id.
¶17 Under the LRA, “[n]o defendant is liable to any person
seeking recovery for any amount in excess of the proportion of fault
attributed to that defendant under Section 78B-5-819.” UTAH CODE
§ 78B-5-818(3). Smith’s and J&I argue that the LRA “assures that one
party[] . . . is not liable for the breach of another party’s duty.”
Smith’s and J&I also argue that this concept comports with the
principles behind the LRA: “basic fairness” and ensuring that “one
particular defendant is ‘not the guarantor of everyone else’s
damages.’” (Citation omitted).
¶18 “[T]he LRA applies when liability is based on fault—even if
that fault is connected to or arises out of the conduct of another
individual.” M.J. v. Wisan, 2016 UT 13, ¶ 35, 371 P.3d 21. In Wisan, we
concluded that “[a] respondeat superior claim escapes the coverage of
the LRA because it does not depend on any showing of ‘fault’ by the
party subject to such liability.” Id. ¶ 36. “LRA fault is an ‘actionable
breach of legal duty’ or an ‘act’ or ‘omission proximately causing or
contributing to injury or damages sustained by a person seeking
recovery.’” Id. (citation omitted).
¶19 “[R]espondeat superior liability involves no act, omission, or
breach of a duty by the defendant. It involves only a relationship
(between a principal and an agent) and an act or breach by a third
party (of an agent within the scope of agency).” Id. And, “[t]he only
fault that must be established to sustain respondeat superior liability is
the fault of the primary tortfeasor—the agent. The principal’s
liability is not based on fault.” Id. ¶ 37. Rather, respondeat superior
liability “is pure pass-along liability.” Id.
¶20 Wisan’s logic applies equally to the nondelegable duty
doctrine. Similar to the doctrine of respondeat superior, the
nondelegable duty doctrine “is a form of vicarious liability because it
is not based on the personal fault of the landowner . . . .” 41 AM. JUR.
2D Independent Contractors § 43. Under the nondelegable duty
doctrine, a property owner may be held liable for the negligence of
an independent contractor although the owner has exercised
reasonable care in all endeavors. Id. And similar to respondeat
superior, liability under the nondelegable duty doctrine “involves no
act, omission, or breach of a duty by the defendant.” See Wisan, 2016
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Opinion of the Court
UT 13, ¶ 36 (emphasis omitted). The only fault that must be
established to sustain liability under the nondelegable duty doctrine
is the fault of the independent contractor. See id. ¶ 37. And because
liability under the nondelegable duty doctrine is also “pure
pass-along liability,” a claim under the nondelegable duty doctrine
“escapes the coverage of the LRA . . . .” See id. ¶¶ 36–37.
¶21 The Connecticut Supreme Court faced a similar issue in
Smith v. Town of Greenwich. 899 A.2d at 578–84. After a woman
slipped and fell on the sidewalk adjacent to a business and sued the
property owner, the property owner sought to attribute liability to
the independent contractor responsible for snow removal. Id. at 567,
579. The independent contractor argued that the nondelegable duty
doctrine and the relationship between property owners and
independent contractors preclude claims against contractors for
breaches of nondelegable duties. Id. at 580.
¶22 Like Utah, Connecticut abolished joint and several liability
by statute. Id. at 582. The Connecticut statute provides:
In a negligence action to recover damages resulting
from personal injury . . . if the damages are determined
to be proximately caused by the negligence of more
than one party, each party against whom recovery is
allowed shall be liable to the claimant only for such
party’s proportionate share of the recoverable
. . . damages . . . .
CONN. GEN. STAT. § 52-572h(c). This provision “replaced the
common-law rule of joint and several liability with a system of
apportioned liability that holds each defendant liable for only his or
her proportionate share of damages.” Smith, 899 A.2d at 582 (citation
omitted). Connecticut law also recognizes the nondelegable duty
doctrine. Id. at 580. The court explained that it “view[s] the
nondelegable duty doctrine as involving a form of vicarious liability,
pursuant to which the party with the duty may[ be] vicariously
liable for the conduct of its independent contractor . . . .” Id. at 581
(omission in original) (citation omitted).
¶23 The court considered whether the Connecticut
apportionment statute conflicted with the nondelegable duty
doctrine and concluded that although “the apportionment statute
was intended to make a defendant’s liability to the plaintiff
proportionate to the defendant’s degree of fault,” liability under the
nondelegable duty doctrine does not involve apportionment of fault.
Id. at 583. Rather, under the nondelegable duty doctrine “the
property owner is fully liable to a plaintiff who has been injured as a
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result of a breach of a nondelegable duty regardless of whether the
property owner actually is at fault or the degree of fault.” Id. The
court held that the apportionment statute “proceeds on the premise
that . . . defendants, between or among any of whom liability is
apportioned, are at least potentially liable in differing proportions. It
does not apply, therefore, to a case of vicarious liability of one
defendant for the conduct of another.” Id. at 582. Although the Smith
court examined the nondelegable duty doctrine in the context of a
claim between a property owner and its independent contractor, we
find its reasoning persuasive here.
¶24 Apportioning fault under Utah Code section 78B-5-819 is a
separate inquiry from the vicarious liability of one defendant for the
conduct of another. And although here the jury apportioned some
fault to Smith’s, the inquiry of whether or not Smith’s is liable for the
tortious acts of an independent contractor under a theory of
vicarious liability is an inquiry outside the LRA’s reach.
¶25 Smith’s argues that in Bishop v. GenTec Inc., 2002 UT 36, 48
P.3d 218, we recognized that the LRA preempts the doctrine of the
respondeat superior. 5 In Bishop, we held, in the context of the
reallocation of the fault initially assigned to an immune employer, id.
¶ 5, that “[a]pplication of the common law doctrine of respondeat
superior to determine fault allocation in this case would undermine
the legislature’s objectives in enacting the LRA,” id. ¶ 11 (emphasis
added). However, the factual scenario in Bishop is distinguishable
from the instant case. Bishop dealt with an employer-defendant
seeking to use respondeat superior to tag the deceased employee, via a
reallocation of fault, with the portion of the fault that had been
allocated to the immune employer. 6 Id. ¶¶ 5, 9, 12–13. We rejected
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5 It bears noting that although Smith’s and J&I do their darndest
to distinguish Wisan, that case completely forecloses their argument.
See Wisan, 2016 UT 13, ¶ 36 (“A respondeat superior claim escapes the
coverage of the LRA because it does not depend on any showing of
‘fault’ by the party subject to such liability.”). Although we could
end our analysis with that citation to Wisan, we see value in
distinguishing Bishop to ensure that future application of that case is
limited to the factual scenario it presented.
6 Utah Code section 78B-5-819(2)(a) currently provides:
If the combined percentage or proportion of fault
attributed to all persons immune from suit is less than
40%, the trial court shall reduce that percentage or
(continued . . .)
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Opinion of the Court
this attempt, and hinted that the peculiarity of the fact pattern
dictated the holding. See id. ¶ 12. Indeed, we examined the factors
that led to the 1994 amendment to the LRA by which the legislature
“balanced the factors for and against reallocation of fault and found
that reallocation between the plaintiff and the defendant was a better
policy than forcing the plaintiff to bear the full burden of the
immune party’s fault.” Id. This led us to conclude that “the history of
the allocation and reallocation provisions of the LRA reveals a
legislative intent to override the operation of respondeat superior in
this situation.” Id. (emphasis added).
¶26 Here, of course, we are not faced with the reallocation of the
fault assigned to an immune employer. Rather, Rodriguez is a
customer arguing that Smith’s had a duty to keep its store safe and
that it was not permitted to delegate that duty away. In this
circumstance, Bishop’s reasoning does not apply, but Wisan’s does.
As we explained in Wisan, the LRA can coexist, at least in some
circumstances, with the nondelegable duty doctrine. And this is one
of those circumstances.
B. Smith’s Liability
¶27 Rodriguez argues that because the duty to keep the store
safe for customers was nondelegable, the district court erred in
failing to enter judgment against Smith’s for the damages stemming
from Galeno’s negligence. Under the principles discussed above,
supra ¶¶ 13–14, Smith’s had a nondelegable duty to keep its premises
reasonably safe for customers, and is therefore liable for the creation
of an unsafe condition by an independent contractor. 7 See Sullivan,
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proportion of fault to zero and reallocate that
percentage or proportion of fault to the other
parties . . . for whom there is a factual and legal basis to
allocate fault in proportion to the percentage or
proportion of fault initially attributed to each by the
fact finder.
7Smith’s appears to argue that because it did not directly hire
Galeno, Smith’s cannot be liable for his negligence. Smith’s does not
provide any legal support for this contention. A party that fails to
devote adequate attention to an issue is almost certainly going to fail
to meet its burden of persuasion. Bank of Am. v. Adamson, 2017 UT 2,
¶¶ 12–13, 391 P.3d 196. “A party must cite the legal authority on
which its argument is based and then provide reasoned analysis of
(continued . . .)
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353 P.2d at 466–67 (holding that the owner of the premises has a
nondelegable duty to keep the premises reasonably safe for business
invitees and is, therefore, liable for an independent contractor’s
negligence as if it were its own).
¶28 At trial, the jury allocated 75 percent of the fault to Galeno,
the independent contractor J&I hired to perform the overnight
cleaning work. “A nondelegable duty means that an employer of an
independent contractor, by assigning work consequent to a duty, is
not relieved from liability arising from the delegated duties
negligently performed.” Price, 2011 UT App 66, ¶ 26 (internal
quotation marks omitted) (quoting 41 AM. JUR. 2D Independent
Contractors § 43 (2005)). At trial, the parties stipulated that Galeno
“was the independent contractor of J&I Maintenance, Inc. to clean
Smith’s . . . floors.” And because Galeno performed his duties
negligently, Smith’s is liable for the damages arising out of Galeno’s
negligence in addition to its own. Accordingly, we reverse the
district court’s judgment. Because Smith’s is liable for the portion of
the damages arising out of Galeno’s negligence, we remand with
instructions to enter judgment against Smith’s for 80 percent of
Rodriguez’s damages.
C. J&I’s Liability
¶29 Rodriguez next contends that “[b]ecause J&I stipulated that
it contracted with Galeno to perform [the] nondelegable duty of
Smith’s, it is liable for Galeno’s 75% fault.” Rodriguez argues that
Jury Instruction 19 embodies that stipulation. Rodriguez claims that
the instruction “stated that J&I Maintenance had assumed Smith’s
duty, and that it also would be liable for any fault of Galeno.”
¶30 Jury Instruction 19 provides:
The parties have stipulated that J&I Maintenance,
Inc. was the independent contractor of [Smith’s] to,
among other things, clean its floors. The parties have
also stipulated that [Benigno Galeno] . . . was the
independent contractor of J&I Maintenance, Inc. to
clean [Smith’s] floors. Usually, [Smith’s] would not be
liable for the negligence of an independent contractor.
However, [Smith’s] has a nondelegable duty to keep its
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how that authority should apply in the particular case . . . .” Id. ¶ 13.
Smith’s has failed to do so, and has therefore failed to carry its
burden of persuasion on appeal.
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Opinion of the Court
premises reasonably safe for invitees, and the law
imposes liability for physical harm caused by a breach
of the nondelegable duty to keep its premises
reasonably safe for invitees even though [Smith’s] may
have contracted with others who performed the work
which caused the injury.
Instruction 19 states that J&I was the independent contractor of
Smith’s to clean its floors. The instruction also states that Smith’s had
a nondelegable duty to “keep its premises reasonably safe for
invitees . . . .”
¶31 Instruction 19 does not recite that J&I assumed Smith’s duty,
nor does it provide that J&I would be liable for any fault of
Galeno. The entirety of Rodriguez’s argument rests on the premise
that J&I stipulated to an assumption of the nondelegable duty, and
therefore agreed to assume Galeno’s liability. 8 But Jury Instruction
19 does not evidence any such stipulation. 9 And Rodriguez has not
provided an alternative argument in support of her contention that
J&I assumed Smith’s nondelegable duty.10 Accordingly, we affirm
the judgment of the district court as to J&I’s liability.
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8 In her reply brief and again at oral argument, Rodriguez argued
that J&I may have assumed the nondelegable duty under section 43
of the Restatement (Third) of Torts: Liability for Physical and Emotional
Harm. Issues not raised in an opening brief are waived. Allen v. Friel,
2008 UT 56, ¶¶ 7–8, 194 P.3d 903. And we do not address issues
raised for the first time during oral argument. Porenta v. Porenta, 2017
UT 78, ¶ 33, 416 P.3d 487. The only theory of liability set forth in
Rodriguez’s opening brief forwards the argument that J&I stipulated
that it had assumed Smith’s duty, and that it also would be liable for
any fault of Galeno. And as we have stated, Jury Instruction 19 does
not provide evidence of that stipulation.
9 A more complete record might have helped us understand why
Rodriguez believed the parties had stipulated to something the jury
instruction does not reflect. What was before us on appeal—mainly
the jury instruction—does not permit us to conclude that the parties
had entered into the stipulation Rodriguez describes.
10 To the extent that Rodriguez may be arguing that by
contracting to clean Smith’s floors, J&I agreed to share Smith’s
nondelegable duty to keep its premises reasonably safe for invitees,
Rodriguez has provided no support for this contention. Utah Rule of
(continued . . .)
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II. Allocation of Costs
¶32 Finally, Rodriguez contends that the district court erred in
reducing her costs award to an amount representing 5 percent of the
taxed costs. Rodriguez argues that “[w]hile the trial court did not
elaborate on its decision, it seems evident that the trial court treated
taxed costs in the same manner as ‘damages’ under Utah Code
section 78B-5-820.” 11
¶33 The costs our rules contemplate include expenses
authorized by statute and certain fees that are paid to the court and
witnesses. Frampton v. Wilson, 605 P.2d 771, 774 (Utah 1980).
“Damages” on the other hand are “the estimated money equivalent
for detriment or injury sustained.” Aris Vision Inst., Inc. v. Wasatch
Prop. Mgmt., Inc., 2006 UT 45, ¶ 16, 143 P.3d 278 (citation omitted);
see also Damages, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Money
claimed by, or ordered to be paid to, a person as compensation for
loss or injury . . . .”). Further, “[d]amages are based on fault [and] are
generally limited only by the findings and conscience of the jury.”
Aris Vision Inst., 2006 UT 45, ¶ 16 (alterations in original) (citation
omitted).
¶34 In other words, costs are distinct from damages. Costs arise
out of litigation and are not dependent on fault. Damages, in the
context of this dispute, relate to a party’s injury and depend on a
party’s fault for detriment or injury sustained.
¶35 This distinction becomes important because Utah Code
section 78B-5-820(1) provides that “the maximum amount for which
_____________________________________________________________
Appellate Procedure 24(a)(8) requires an appellant’s brief to
“explain, with reasoned analysis supported by citations to legal
authority and the record, why the party should prevail on appeal.”
An issue is inadequately briefed if “the argument ‘merely contains
bald citations to authority [without] development of that authority
and reasoned analysis based on that authority.’” Adamson, 2017 UT 2,
¶ 11 (alteration in original) (citation omitted). “[A]n appellant who
fails to adequately brief an issue ‘will almost certainly fail to carry its
burden of persuasion on appeal.’” Id. ¶ 12 (citation omitted).
Rodriguez does not cite to the record to support her contention, nor
does she cite to any legal authority. Rodriguez’s briefing cannot meet
her burden of persuasion on this issue. See id.
This is another one of those instances where a better record
11
would have been handy.
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RODRIGUEZ v. KROGER
Opinion of the Court
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.” (Emphasis
added). By its plain language, this provision does not require the
court to award costs to a prevailing party in proportion equivalent to
the percentage or proportion of fault attributed to the defendant.
¶36 It appears from the district court’s award of 5 percent of
Rodriguez’s costs that the district court believed that it needed to
allocate costs in accordance with the jury’s allocation of fault.
Although the LRA does not dictate the manner in which a court
divvies up costs, a district court may, in the exercise of its discretion,
allocate costs in parallel with the jury’s allocation of fault. But it is
not required to do so. Because we remand so the district court can
adjust its award with respect to Smith’s, and because that adjustment
could impact the district court’s cost allocation, we vacate the award
of costs to permit the court to revisit the question. And we do so
with the reminder that the LRA does not dictate the answer to that
question.
CONCLUSION
¶37 Smith’s had a nondelegable duty to keep its premises
reasonably safe for invitees. A jury concluded that Galeno’s
negligence created an unreasonably unsafe condition when he left a
puddle of water at the end of aisle 13. Because Smith’s cannot
delegate its duty to keep its premises safe, it is liable for the damages
arising from Galeno’s negligence. Accordingly, the district court
erred in entering judgment against Smith’s for 5 percent of
Rodriguez’s damages. We remand with instructions to enter
judgment against Smith’s for 80 percent of Rodriguez’s damages to
account for Smith’s own negligence and the negligence of Galeno.
Because Jury Instruction 19 does not provide evidence of a
stipulation that J&I assumed the nondelegable duty, and because
Rodriguez develops no other argument on this point, we conclude
that the district court correctly entered judgment in favor of J&I. We
clarify that costs and damages are not the same thing, and
accordingly, costs need not be allocated in proportion to a party’s
degree of fault under the LRA. We remand for a redetermination of
Rodriguez’s costs in light of this clarification. J&I requests an award
of costs pursuant to Utah Rule of Appellate Procedure 34. Because
J&I prevailed on appeal, we grant its request and award costs. See
UTAH R. APP. P. 34(a). We deny Smith’s similar request.
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