Christiansen v. Harrison Western

2021 UT 65IN THE
SUPREME COURT OF THE STATE OF UTAH
DAVID CHRISTIANSEN as personal representative of THE ESTATE OF
KASEY CHRISTIANSEN,
DAVID CHRISTIANSEN, KAITLIN CHRISTIANSEN, and JOCALYN
CHRISTIANSEN as heirs of KASEY CHRISTIANSEN,
Appellants,
v.
HARRISON WESTERN CONSTRUCTION CORP.,
Appellee.
No. 20180569
Heard November 15, 2019
Filed November 4, 2021
On Appeal of Interlocutory Order
Third District, Salt Lake
The Honorable James D. Gardner
No. 170905685
Attorneys:
Judson D. Burton, Murray, for appellants
Brett N. Anderson, Scott R. Taylor, Salt Lake City, for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE authored a concurring opinion.
JUSTICE HIMONAS authored a concurring opinion, in which JUSTICE
PEARCE and JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
Opinion of the Court
Introduction
¶1 Kasey Christiansen was killed at work when the Caterpillar
mini-excavator he was operating rolled down the mountainside in
Little Cottonwood Canyon. Mr. Christiansen‘s Estate, father, and
daughters (―the Christiansen parties‖) sued his employer, Harrison
Western, for damages. But the district court dismissed their lawsuit
based on a provision of the Workers‘ Compensation Act that bars
employees from suing their employers over work-related injuries.
The Christiansen parties appeal this dismissal, arguing that a narrow
exception to the Act, which allows employees to sue over injuries
caused by an employer‘s intentional act, applies to
Mr. Christiansen‘s fatal injuries because they were the result of
Harrison Western‘s intentional act. Because the Christiansen parties
have failed to sufficiently plead that Harrison Western acted
intentionally, we affirm the district court‘s dismissal of their
complaint.
Background1
¶2 In 2016, the Utah Department of Transportation (―UDOT‖)
awarded Harrison Western a public contract to install a Blackjack
Gazex avalanche control system near Alta Ski Resort in Little
Cottonwood Canyon. According to UDOT, the project ―require[d]
special procedures relating to safety‖ based on the ―steep and
mountainous terrain at elevations from 9300 to 9800‖ feet. Based on
this steep terrain, UDOT believed that a ―walking excavator[],‖
which is a ―type of excavator with legs that hold to steep surfaces,‖
was ―the proper type of excavator for mountainous terrain.‖
¶3 Although Harrison Western ―knew that a walking excavator
was essential for the safe completion‖ of the project, and it had
―extensive experience‖ in ―high angle and alpine environments,‖
including experience using ―walking excavators,‖ it rented a
Caterpillar mini-excavator, rather than a walking excavator, to
complete the UDOT project.
_____________________________________________________________
1 In reviewing a district court‘s grant of a 12(b)(6) motion to
dismiss, ―we accept the factual allegations in the complaint as true
and consider them and all reasonable inferences to be drawn from
them in a light most favorable to the plaintiff.‖ Helf v. Chevron U.S.A.,
Inc. (Helf I), 2009 UT 11, ¶ 3, 203 P.3d 962 (citation omitted). We recite
the facts accordingly.
2
Cite as: 2021 UT 65Opinion of the Court
¶4 Harrison Western‘s superintendent of the project, Erik
Sowell, directed Mr. Christiansen to operate the mini-excavator on
the mountainside to ―dig a trench line for . . . gas lines‖ under the
Gazex machine. On multiple occasions while performing this work,
Mr. Christiansen ―slid down the mountain‖ in the mini-excavator.
Harrison Western was aware of these slide-offs, but took no
mitigation measures to prevent future slide-offs or rollovers. And
after one slide, Mr. Christiansen was ―told . . . to take the rest of the
day off.‖
¶5 On October 12, 2016, Mr. Christiansen was operating the
mini-excavator ―on an approximate 40-degree slope‖ when it rolled
down the mountain. He ―was ejected and sustained significant head
injuries and evisceration of his abdomen.‖ He died as a result of his
injuries.
¶6 The Christiansen parties brought claims against Harrison
Western for negligence, known or expected injury, and vicarious
liability. Harrison Western moved to dismiss, arguing that the
Workers‘ Compensation Act‘s exclusive remedy provision—which
prevents most tort suits against employers—barred the Christiansen
parties‘ claims.
¶7 In response, the Christiansen parties moved for leave to
amend and submitted to the district court a proposed Second
Amended Complaint in which they alleged that Harrison Western
intentionally injured Mr. Christiansen. In support of this allegation,
the Christiansen parties pointed to the following facts: (1) Harrison
Western had experience with similar projects on mountainous
terrain; (2) it was aware that a walking excavator was necessary
based on UDOT‘s bid summary; and (3) it failed to take additional
safety precautions after the excavator slid on prior occasions. The
Christiansen parties argued that these facts were sufficient to bring
Harrison Western‘s actions within the Act‘s intentional-injury
exception.
¶8 After considering the motion to dismiss and the
Christiansen parties‘ proposed Second Amended Complaint, the
district court dismissed their claims against Harrison Western,
concluding that the Christiansen parties had failed to allege that
Harrison Western had acted intentionally and that the proposed
changes to their complaint did not change this.
3
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
Opinion of the Court
¶9 We granted the Christiansen parties‘ petition for permission
to appeal this interlocutory order.2 We have jurisdiction under Utah
Code section 78A-3-102(3)(j).
Standard of Review
¶10 ―A rule 12(b)(6) motion to dismiss admits the facts alleged
in the complaint but challenges the plaintiff‘s right to relief based on
those facts.‖3 The grant or denial of a rule 12(b)(6) motion is a
question of law that we review for correctness, giving no deference
to the district court‘s determination.4 When a motion to amend a
pleading is denied because the amendment would be futile, we
review for correctness, giving no deference to the district court‘s
determination.5
Analysis
¶11 In dismissing the Christiansen parties‘ complaint and
denying their request to amend, the district court concluded that
their complaint failed to allege any set of facts supporting their claim
that Mr. Christiansen‘s fatal injuries were the result of an intentional
act, and that the additional facts in their proposed Second Amended
Complaint did not cure this defect. Even when we view the alleged
facts in the light most favorable to the Christiansen parties and
―indulge all reasonable inferences in [their] favor,‖ we conclude that
the facts and inferences are insufficient to support a claim that
Harrison Western intended Mr. Christiansen‘s injury.6 Accordingly,
the Workers‘ Compensation Act‘s exclusive remedy provision bars
the Christiansen parties‘ claims. As a result, we affirm the district
court‘s dismissal of their complaint.
¶12 In so doing, we consider the additional facts the
Christiansen parties presented in their proposed Second Amended
_____________________________________________________________
2The Christiansens also asserted claims against UDOT and Ahern
Rentals, Inc., the company that rented the mini-excavator to
Harrison Western for the UDOT project.
3 Helf v. Chevron, U.S.A., Inc. (Helf I), 2009 UT 11, ¶ 14, 203 P.3d
962 (citation omitted). See also UTAH R. CIV. P. 12(b)(6).
4 Id.
5 Haik v. Jones, 2018 UT 39, ¶ 16, 427 P.3d 1155.
6 Arrow Indus., Inc. v. Zions First Nat’l Bank, 767 P.2d 935, 936
(Utah 1988).
4
Cite as: 2021 UT 65Opinion of the Court
Complaint. Because we agree with the district court that these
additional facts do not cure the defect in the Christiansen parties‘
complaint, we conclude that their proposed amendment was futile.
Accordingly, we also affirm the district court‘s denial of the
Christiansen parties‘ request to amend.
I. The Christiansen Parties Fail to State a Claim Upon Which Relief
Can Be Granted Because We Cannot Reasonably Infer Harrison
Western Believed Mr. Christiansen‘s Fatal Injuries Were Virtually
Certain to Occur
¶13 The Christiansen parties argue that the district court erred in
applying the Workers‘ Compensation Act‘s exclusive remedy
provision to dismiss their complaint. Under the Act, employees are
barred from suing their employers for injuries stemming from
workplace accidents—except where the employer intended the
harm. This exception is called the intentional-injury exception. A
party‘s claim can fall within the intentional-injury exception where
the party pleads facts leading to a reasonable inference7 that the
employer was ―virtually certain‖ that the employee‘s injury would
occur.8 The Christiansen parties assert they pled sufficient
surrounding circumstances for us to reasonably infer that Harrison
Western believed Mr. Christiansen‘s injuries were virtually certain to
occur. We disagree. Because the Christiansen parties only allege facts
_____________________________________________________________
7 A 12(b)(6) motion to dismiss challenges the ―sufficiency of the
pleadings, not the underlying merits‖ of the claim. Am. West Bank
Members, L.C. v. State, 2014 UT 49, ¶ 15, 342 P.3d 224 (citation
omitted). When we ―review[] a dismissal under Rule 12(b)(6) . . . , we
accept the plaintiff‘s description of facts alleged in the complaint to
be true, but we need not . . . accept legal conclusions in contradiction
of the pleaded facts.‖ Id. ¶ 7 (citation omitted). We then look at the
applicable law to determine whether the facts alleged support the
claims for relief. See id. ¶ 15. A dismissal ―should be affirmed only if
it clearly appears that [the plaintiff] can prove no set of facts in
support of his claim.‖ Id. ¶ 7 (alteration in original) (citation
omitted). If there is ―any doubt about whether a [plaintiff‘s] claim
should be dismissed for lack of factual basis, the issue should be
resolved in favor of giving the party an opportunity to present its
proof.‖ Zisumbo v. Ogden Reg’l Med. Ctr., 2015 UT App 240, ¶ 9, 360
P.3d 758 (citation omitted).
8 Helf v. Chevron, U.S.A., Inc. (Helf I), 2009 UT 11, ¶ 43, 203 P.3d
962.
5
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
Opinion of the Court
that, at most, would support a conclusion that Harrison Western
acted with willful negligence, not intentionally, they fail to allege
sufficient facts to bring their claims within the intentional-injury
exception of the Act. As a result, we affirm dismissal.
¶14 In determining whether the Christiansen parties‘ complaint
contains sufficient facts to fall within the Act‘s intentional-injury
exception, we must first consider the purpose and language of the
Act.9 This is because the language of the Act, and our case law
interpreting that language, sheds light on the narrow nature of the
exception‘s scope.
¶15 The Workers‘ Compensation Act is a comprehensive
administrative scheme that provides the exclusive remedy for
accidental workplace injuries.10 Its ―primary objective‖ is to ―remove
industrial negligence, in all its forms, from the concept of the law of
tort.‖11 To accomplish this objective, employers are relieved under
the Act‘s exclusive remedy provision of civil liability for an
employee‘s workplace injuries:
The right to recover compensation pursuant to this
chapter for injuries sustained by an employee, whether
resulting in death or not, is the exclusive remedy
against the employer . . . and the liabilities of the
employer imposed by this chapter is in place of any
and all other civil liability whatsoever, at common law
or otherwise, to the employee . . . on account of any
accident or injury or death, in any way contracted,
sustained, aggravated, or incurred by the employee in
the course of or because of or arising out of the
employee‘s employment, and an action at law may not
be maintained against an employer . . . based upon any
accident, injury, or death of an employee.12
In exchange for their ability to sue employers for civil damages,
injured employees receive a ―simple, adequate, and speedy‖ remedy
_____________________________________________________________
9Whipple v. American Fork Irrigation Co., 910 P.2d 1218, 1220 (Utah
1996) (explaining that in reviewing a dismissal under rule 12(b)(6)
we must ―first examine the applicable law‖).
10 Helf I, 2009 UT 11, ¶¶ 16–17.
11 Id. ¶ 17 (citation omitted).
12 UTAH CODE § 34A-2-105(1).
6
Cite as: 2021 UT 65Opinion of the Court
without the burden of showing the employer‘s fault.13 In other
words, in exchange for receiving a no-fault recovery under the
workers‘ compensation system, employees may not sue their
employers for on-the-job injuries.
¶16 But the Act does not protect employers from liability for
injuries resulting from the employer‘s intentional act.14 In Bryan v.
Utah International, we held that the Act did not prohibit the
employee‘s claim for damages, because a supervisor ―intentionally
caused a large cable to hit [an] employee.‖15 In so doing, we
reasoned that the exclusive remedy provision does ―not insulate an
employer from liability‖16 for a ―wrongful act‖ that is ―not only done
knowingly, but with the knowledge that it was wrongful to do it.‖17
We have subsequently referred to this exception as the
intentional-injury exception.18
¶17 But it is not always clear that an employer acted
intentionally to injure an employee. In Helf v. Chevron U.S.A., Inc., we
recognized that, unlike the alleged battery in Bryan, some ―injury-
producing activities‖ are not ―clearly intentional.‖19 Because an
employer‘s intent is not always clear, we explained that an
employee‘s injury can fall within the intentional-injury exception
when the employee can show that the employer ―knew or expected
that injury would occur as a consequence of his [or her] actions
. . . .‖20
¶18 So, after our decision in Helf, an employee can successfully
invoke the intentional-injury exception at the pleading stage in one
of two ways. First, the employee can allege ―that the actor desired
the consequences of his [or her] actions.‖21 Second, the employee can
allege, by pleading facts suggesting that the employer believed the
_____________________________________________________________
13 Helf I, 2009 UT 11, ¶ 16 (citation omitted).
14 Bryan v. Utah Int’l, 533 P.2d 892, 894 (Utah 1975).
15 Helf I, 2009 UT 11, ¶ 18 (citing Bryan, 533 P.2d at 892).
16 Id. ¶ 32 (citing Bryan, 533 P.2d at 894).
17 Bryan, 533 P.2d at 894.
18 Helf I, 2009 UT 11, ¶ 18.
19 Id. ¶ 31.
20 Id. ¶ 26.
21 Id. ¶ 43.
7
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
Opinion of the Court
employee‘s injury was ―virtually certain to result,‖ that the employer
―knew or expected that injury would occur as a consequence of his
[or her] actions.‖22 Because, in the absence of an admission of guilt,
an employer‘s subjective belief ―can only be inferred from the
surrounding circumstances,‖ an employee must assert sufficient
facts to support a reasonable inference that the employer knew the
injury was virtually certain to occur.23
¶19 In order to assert sufficient ―surrounding circumstances‖
that the employer believed injury was virtually certain to occur, an
employee must plead more than an assertion that the employer
knew there was some risk of injury. In other words, the employee
must do more than assert that ―some injury was substantially certain
to occur at some time.‖24 Provisions in the Act make this clear.
¶20 The Act explicitly covers injuries caused by an employer‘s
willful conduct. That is, willful conduct alone is not sufficient to
invoke the intentional-injury exception of the Act. For example, in
subsection 34A-2-301(2), the Act imposes a fifteen percent penalty on
employers who cause an injury through their ―willful failure‖ to
comply with ―the law,‖ ―a rule of the commission,‖ ―any lawful
order of the commission,‖ or ―the employer‘s own written
workplace safety program.‖ And subsection 34A-2-301(1) specifically
provides that it is unlawful for employers to ―knowingly‖ permit
employees to work in unsafe environments as a result of their failure
to ―provide and use safety devices and safeguards,‖ ―adopt and use
methods and processes reasonably adequate to render the
employment and place of employment safe,‖ or ―to do every other
thing reasonably necessary to protect the life, health, and safety of
the employer‘s employees.‖ Because the Act covers an employer‘s
willful conduct—conduct that rises above ordinary negligence, but
short of intentional conduct25—it is clear that, to escape the scope of
_____________________________________________________________
22 Id. ¶¶ 26, 43.
23 Helf v. Chevron U.S.A., Inc. (Helf II), 2015 UT 81, ¶ 47, 361 P.3d
63; see also Selvage v. J.J. Johnson & Assocs., 910 P.2d 1252, 1262 n.9
(Utah Ct. App. 1996) (―[I]ntent can rarely be established directly, and
therefore circumstantial evidence must be examined as to the
circumstances surrounding the transactions in question.‖).
24 Helf I, 2009 UT 11, ¶ 43.
Bryan, 533 P.2d at 894 (citing Park Utah Mining Co. v. Indus.
25
Comm’n, 220 P. 389, 390 (Utah 1923)).
8
Cite as: 2021 UT 65Opinion of the Court
the Act by invoking the intentional-injury exception, an employee
must allege facts from which it can reasonably be inferred that the
employer‘s conduct rose beyond gross negligence or willful conduct.
¶21 This means that to satisfy the ―virtually certain‖ standard,
an employee must allege ―[m]ore than [the employer‘s] knowledge
or appreciation of risk‖26 or that the employer knew ―some injury
was substantially certain to occur at some time.‖27 Instead, the facts
must support a reasonable inference that the employer believed
injury was virtually certain to occur.28 Our case law provides
examples of how this virtually certain standard can be met.
¶22 We have held that injury is virtually certain to occur when
an employer directs an employee to perform a specific task with the
knowledge or expectation that ―the assigned task will injure the
particular employee that undertakes it.‖29 And we have imputed this
mental state to an employer who is aware that an assigned task has
previously caused injury under the same circumstances and then
failed to take any measures to create a different outcome.30 Our past
applications of the ―virtually certain‖ standard suggest that injury is
virtually certain when, based on the alleged facts, it would be
unreasonable to believe an employer who claims she did not know
that the employee‘s injury would be the consequence of her action.
_____________________________________________________________
26 Helf I, 2009 UT 11, ¶ 41.
27 Id. ¶ 43.
28 Id.
29 Id. (emphases added). The nature of the assigned task and
circumstances surrounding a past injury must be of such a nature
that the employer would have expected an injury to the specific
employee when she assigned the task on the particular occasion at
issue. It is insufficient that there is a mere probability of injury (even
a recklessly high one) because of similar injuries in the past. See id.
¶ 41 (explaining that our case law ―maintains the distinction
between intent and probability by focusing on whether the actor
knew or expected that injury would occur to a particular employee
performing a specific task in determining whether an injury was
intentional. It does not focus on whether an injury was substantially
certain to occur to an unknown employee at some future time—an
inquiry driven by probability, not intent.‖).
30 Id.¶¶ 44–46.
9
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
Opinion of the Court
¶23 The facts underlying our decision in Helf I provide an
example of surrounding circumstances in which it would be
unreasonable to believe an employer who claimed he or she did not
know an employee‘s injury was virtually certain to occur. In that
case, Ms. Helf alleged that her employer had instructed another
employee to neutralize the toxicity of caustic sludge through a
process the employer ―knew or should have known‖ ―would create
noxious, dangerous, and harmful vapors.‖31 When the neutralization
process was first initiated, a chemical reaction with the caustic
sludge ―released a noxious purple cloud‖ containing a number of
―toxic chemical compounds.‖32 This cloud drifted across the
employer‘s premises, ―setting off alarms and causing several of [the
employer‘s] employees, some of whom were hundreds of yards from
the [neutralization site], to fall ill and be sent home.‖33
¶24 In the aftermath of this incident, the employer did not ―take
any safety measures.‖34 Instead, the employer ―decided to resume
the process later in the evening after a shift change and under cover
of night.‖35 When Ms. Helf reported to work later that night, her
night-shift supervisor directed her to re-initiate the neutralization
process.36 When Ms. Helf did so, it ―produced the same predictable
and violent reaction that occurred earlier that day.‖37 As a result,
Ms. Helf suffered acute and permanent neurological damage.38 We
concluded that the facts surrounding Ms. Helf‘s injury were
sufficient to reasonably infer that her employer believed injury was
virtually certain to occur.39
¶25 In so concluding, we focused on three factual circumstances
alleged in Ms. Helf‘s complaint, which, when viewed in the light
most favorable to her, demonstrated her employer believed injury
_____________________________________________________________
31 Id. ¶ 7.
32 Id. ¶ 8.
33 Id.
34 Id.
35 Id.
36 Id. ¶ 44.
37 Id. ¶ 10.
38 Id. ¶¶ 10–11, 44.
39 Id. ¶ 44.
10
Cite as: 2021 UT 65Opinion of the Court
was virtually certain to occur.40 First, Ms. Helf‘s employer was aware
that the neutralization process was extremely dangerous because it
had previously created a ―violent reaction[]‖ on a prior occasion in a
different setting.41 Second, another employee engaged in the same
neutralization process earlier in the day, which resulted in the same
noxious purple cloud.42 This noxious cloud set off safety alarms and
caused employees hundreds of yards away to ―fall ill and be sent
home.‖43 And third, we noted that after the earlier neutralization,
Ms. Helf‘s employer failed to take any additional safety measures or
inform her of the prior violent reaction that caused injury to others.44
¶26 Based on these factual circumstances, we held that Ms. Helf
properly pled the intentional-injury exception because the ―alleged
facts . . . could convince a reasonable jury that her injuries were the
expected result of re-initiating the neutralization process.‖45 We note
that our decision in Helf I hinged heavily on the recent history of prior
injury: just a few hours earlier, injuries were actually sustained when
a different employee initiated a neutralization process the employer
knew to be dangerous. With full knowledge that the dangerous
process could in fact cause injury, the employer waited until
nightfall and ordered Ms. Helf, an unsuspecting employee, to
perform the same dangerous task under the same dangerous
conditions, an order which ―produced the same predictable and
violent reaction that occurred earlier that day.‖46 So under Helf I,
where an employer knows that a specific task previously caused
injury to occur, assigns the same task to another employee, and then
fails to make any changes that would create a different outcome, we
can reasonably infer that the employer believed injury was virtually
certain to occur. The allegations in the Christiansen parties‘
complaint do not rise to this level.
¶27 The Christiansen parties identify two surrounding
circumstances that they allege support a reasonable inference that
_____________________________________________________________
40 Id. ¶¶ 44–46.
41 Id. ¶ 45.
42 Id. ¶ 44.
43 Id.
44 Id.
45 Id. ¶ 46.
46 Id. ¶ 10.
11
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
Opinion of the Court
Harrison Western believed injury was virtually certain to occur.
First, they allege that Harrison Western knew a walking excavator,
rather than a mini-excavator, was necessary to safely complete
Mr. Christiansen‘s assigned project. Second, they allege that before
the rollover, the mini-excavator slid down the mountain on multiple
occasions—a fact of which Harrison Western was aware. We
conclude that neither of these factual circumstances reasonably
implies that Harrison Western believed injury was virtually certain
to occur. As a result, the Christiansen parties fail to state a claim, and
the district court did not err in granting Harrison Western‘s motion
to dismiss.
A. Harrison Western’s Failure to Rent a Walking Excavator Does Not
Support a Reasonable Inference That It Intended Mr. Christiansen’s Fatal
Injuries
¶28 The Christiansen parties allege that Harrison Western
believed injury was virtually certain to occur because it knew that a
walking excavator, and not a mini-excavator, was necessary to safely
complete Mr. Christiansen‘s assigned project. For support, the
Christiansen parties point to UDOT‘s bid summary, which informed
all bidders, including Harrison Western, that ―special procedures
relating to safety‖ were required based on the ―steep and
mountainous terrain.‖ UDOT‘s bid summary further anticipated the
need for a ―walking excavator‖ for ―digging the road and trenches
for the [G]azex avalanche control units.‖ The Christiansen parties
further allege that Harrison Western represented it had ―specialized
expertise‖ based on its prior success in ―performing construction in
high angle and alpine environment‖ with ―walking excavators,‖ and
was awarded the UDOT contract, in part, based on these
representations. But Harrison Western‘s knowledge that a walking
excavator, rather than a mini-excavator, was the proper equipment
for the project and, consequently would increase safety, does not
support the conclusion that Harrison Western believed injury was
virtually certain to occur when it directed Mr. Christiansen to
operate the mini-excavator.
¶29 As we have explained, in order to adequately plead the
intentional-injury exception, it is not enough that an employee allege
that an employer knew or appreciated risk.47 And an allegation that
an employer has subjected its employees to an unsafe work
_____________________________________________________________
47 See id. ¶ 41.
12
Cite as: 2021 UT 65Opinion of the Court
environment because the employer failed to ―provide . . . safety
devices‖ is nothing more than such an allegation.48
¶30 In fact, Harrison Western‘s alleged conduct seems akin to
―willful failure‖ explicitly addressed by section 34A-2-301 of the Act.
That section penalizes employers for ―requir[ing] or knowingly
permit[ting]‖ employees to work in an unsafe work environment or
for failing ―to provide [appropriate] safety devices and
safeguards.‖49 So even though UDOT‘s bid summary and Harrison
Western‘s previous experience suggest that Mr. Christiansen was
working in an unsafe environment and that the walking excavator
would have been safer, Harrison Western‘s conduct, as pled by the
Christiansen parties, constitutes, at most, willful conduct that is
covered by the Act.
¶31 In sum, the Christiansen parties‘ allegations regarding
Harrison Western‘s failure to provide a safer working environment
and safer equipment do not support a reasonable inference that
Harrison Western believed Mr. Christiansen‘s injuries were virtually
certain to occur. Instead, they suggest merely that Harrison Western
knew or appreciated the risks surrounding Mr. Christiansen‘s work.
In other words, the alleged facts suggest, at most, that Harrison
Western‘s failures were the type of willful conduct explicitly covered
by the Act. Accordingly, these allegations are insufficient to trigger
the intentional–injury exception to the Act.
B. The History of Prior Slides Does Not Create a Reasonable Inference That
Harrison Western Intended Mr. Christiansen’s Fatal Injuries
¶32 The Christiansen parties also allege that Harrison Western
believed injury was virtually certain to occur because
Mr. Christiansen previously ―slid down the mountain on multiple
occasions.‖ But this fact does not support the requisite reasonable
inference because the prior slides did not result in injury and there is
no alleged connection between the prior slides and the fatal rolling
incident.
¶33 When employees seek to avail themselves of the
intentional-injury exception, they must allege a direct connection
between the prior incidents and the injury-producing incident that
_____________________________________________________________
48 UTAH CODE § 34A-2-301(1)(c).
49 Id. § 34A-2-301(1)(b)–(c).
13
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
Opinion of the Court
rises above a mere probability of injury.50 This is because where an
employee alleges he or she was injured while engaged in a task that
had previously caused a substantially similar injury in a
substantially similar manner, and that the employer failed to take
any measures to avoid the second injury, then a fact-finder could
reasonably infer that the employer knew the second injury was
virtually certain to occur.51 For example, in Helf I, we could directly
connect the prior injury to Ms. Helf‘s injury: after the initial
neutralization caused injury, the employer directed Ms. Helf to
re-initiate the neutralization process in the same manner and under
the same conditions.52 And so we could reasonably infer that her
employer expected the same result—an injurious occurrence.53
¶34 But where an employee alleges only that he or she was
injured while engaged in a task that had previously led to incidents
that came close to causing an injury, or otherwise indicate there was
a risk of injury, the employee has suggested only that injury was
probable, not virtually certain.54 The Christiansen parties‘ allegations
regarding previous slides fall into this category.
¶35 The Christiansen parties allege that Mr. Christiansen
previously ―slid down the mountain on multiple occasions‖ when he
operated the mini-excavator on the mountainside and that after one
of these slides, Eric Sowell, the Harrison Western project supervisor,
sent Mr. Christiansen home. They also allege that, despite the
previous slides, Harrison Western failed to mitigate the danger of
_____________________________________________________________
50 See Helf I, 2009 UT 11, ¶¶ 40–41, 44–46. Intent may not ―be
imputed where a high probability of injury exists because the
employer knew that harm was substantially likely to occur sometime
to some employee.‖ Id. ¶ 40. To do so ―would unravel the structure
of the [Workers‘ Compensation] Act‖ as ―[a]lmost every form of
employment bears some risk of injury.‖ Id.
51 Id. ¶¶ 44–46.
52 Id.
53 Id.
54 See id. ¶ 41 (stating that an injury is intentional if it is ―a matter
of when [the injury] would happen (a certainty),‖ and not ―a question
of if it would [happen] (a probability)‖ (alterations in original)
(citation omitted)).
14
Cite as: 2021 UT 65Opinion of the Court
future slide-offs or rolls because it failed to provide the proper
equipment to safely complete the project.
¶36 On appeal, the Christiansen parties equate their allegation of
a history of slides to the history of prior injury in Helf I. But these
facts are not equivalent: in Helf I, the key fact was the history of prior
injury, not the history of a prior risk of injury.55 A task that carries
some risk of injury, but has never resulted in injury, cannot be
virtually certain to cause injury without additional factual support.
And here, Mr. Christiansen used the mini-excavator on multiple
occasions without incident or injury. So while we can reasonably
infer that a history of prior slides meant there was a risk of injury,
without more, we cannot infer that injury was virtually certain.
¶37 We further conclude that the fact that the excavator had
previously slid down the hill does not mean that Mr. Christiansen‘s
rollover injury was virtually certain to occur. The Christiansen
parties argue that the history of slides would allow a fact-finder to
reasonably infer that the mini-excavator would one day roll. So,
according to them, because the prior slides show that the excavator
was more likely to roll, and an injury is virtually certain to occur
when an excavator rolls, a fact-finder could reasonably infer that
Harrison Western believed injury was virtually certain to occur
when it directed Mr. Christiansen to continue excavation the day he
was killed. But this argument falls short.
¶38 The fact that Mr. Christiansen used the excavator on
multiple occasions without injury, and without the excavator rolling
over, strongly supports the conclusion that Harrison Western did not
believe Mr. Christiansen‘s rollover injury was virtually certain. After
multiple slides that did not cause injury, Harrison Western directed
Mr. Christiansen to operate the excavator in the same manner and
under the same conditions. Although on this final occasion, the
excavator rolled, which resulted in Mr. Christiansen‘s fatal injuries,
this was a very different result than what had occurred with the
prior slides. Based on these facts, a fact-finder could not reasonably
infer that Harrison Western believed the excavator was virtually
certain to cause Mr. Christiansen‘s injuries.
¶39 In sum, the facts alleged in the Christiansen parties‘
complaint do not reasonably imply that Harrison Western believed
Mr. Christiansen‘s injuries were virtually certain to occur. In other
words, Harrison Western‘s failure to rent the proper equipment and
_____________________________________________________________
55 See id. ¶ 44.
15
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
Opinion of the Court
its knowledge of the excavator‘s previous slides suggest that, at
most, Harrison Western was grossly negligent but did not act
intentionally. As a result, the district court did not err in granting
Harrison‘s Western‘s 12(b)(6) motion.
II. The Christiansen Parties‘ Proposed Second Amended Complaint
Is Futile Because It Fails to Withstand Harrison Western‘s Motion to
Dismiss
¶40 The Christiansen parties also argue the district court erred
in denying their motion to amend. They argue they properly pled
the intentional-injury exception in their proposed Second Amended
Complaint, and so their request to amend was not futile. Because the
allegations in the proposed Second Amended Complaint do not
meet the intentional-injury exception, and thus do not withstand
Harrison Western‘s 12(b)(6) motion to dismiss, we disagree. As a
result, we affirm.
¶41 When a plaintiff requests leave to amend its complaint, ―the
court should freely give permission when justice requires.‖56 But
justice ―does not require that leave be given ‗if doing so would be
futile.‘‖57 A motion to amend is ―futile if the proposed amendment
would not withstand a motion to dismiss . . . .‖58
¶42 In their proposed Second Amended Complaint, the
Christiansen parties include a number of facts that were not included
in their first complaint. They argue these facts support their
conclusion that the intentional-injury exception applies. First, they
provided details of the contract between UDOT and Harrison
Western, including UDOT‘s anticipation that a walking excavator
was needed based on the project‘s steep terrain. Second, they added
that Harrison Western knew a walking excavator was needed based
on its extensive experience with similar projects. And third, they
alleged that Harrison Western failed to take additional safety
precautions after the excavator slid on prior occasions.
¶43 We conclude that, even when these additional factual details
are considered, the allegations in their complaint were insufficient to
withstand a motion to dismiss. Accordingly, the Christiansen
_____________________________________________________________
56 UTAH R. CIV. P. 15(a)(2).
57 Jensen v. IHC Hosps., Inc., 2003 UT 51, ¶ 139, 82 P.3d 1076(citation omitted).
58 Id. (citation omitted).
16
Cite as: 2021 UT 65Opinion of the Court
parties‘ proposed Second Amended Complaint was futile.59 As a
result, we affirm the district court‘s denial of the Christiansen
parties‘ motion to amend.
Conclusion
¶44 We hold that the Christiansen parties fail, in their original
complaint, to allege sufficient facts to support a reasonable inference
that Harrison Western believed Mr. Christiansen‘s fatal injuries were
virtually certain to occur. As a result, their claims do not fall within
the intentional-injury exception to the Workers‘ Compensation Act.
Their claims are therefore barred by the Act and the district court‘s
dismissal of their complaint was proper. We also hold that the
Christiansen parties‘ proposed amendment to their complaint was
futile because, even when the additional factual allegations in the
amended complaint are considered, they do not support application
of the exception. For this reason, the Christiansen parties‘ request for
leave to amend was futile, and the district court did not err in
denying it. Accordingly, we affirm the district court on both points.
_____________________________________________________________
59 See id.
17CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
LEE, A.C.J., concurring
ASSOCIATE CHIEF JUSTICE LEE, concurring:
¶45 The Workers‘ Compensation Act has long provided that an
administrative action under the statute is the ―exclusive remedy‖ for
any ―injuries sustained . . . on account of any accident or injury or
death, in any way contracted, sustained, aggravated, or incurred by
the employee in the course of or because of or arising out of the
employee‘s employment.‖ UTAH CODE § 34A-2-105(1). This remedy
is exclusive even ―when injury is caused by the willful failure of an
employer to comply with . . . the law.‖ Id. § 34A-2-301(2)(a). A
showing of willfulness increases the employee‘s statutory
compensation by 15 percent; it does not remove the case from the
workers‘ compensation regime. Id.
¶46 Notwithstanding these provisions, this court long ago
adopted an intentional-injury exception to the exclusive remedy
provision of the Workers‘ Compensation Act. See Bryan v. Utah Int’l,
533 P.2d 892 (Utah 1975). In the Bryan case, the majority held that the
Workers‘ Compensation Act does not insulate an employer from
liability for a ―wrongful act‖ that is ―not only done knowingly,‖ but
―intentionally‖ in the sense of being done ―with the knowledge that
it was wrongful to do it.‖ Id. at 894 (citations omitted). The Bryan
majority thus suggested the existence of a distinction between
―intentional‖ and ―willful‖ conduct—asserting that ―[t]he definition
of the word ‗intentional‘ is more compact than is that of the word
‗willful,‘‖ and concluding that a tort claim remains open to an
employee who can establish that an employer has acted
intentionally. Id.
¶47 The Bryan majority position was challenged in a dissent. The
dissent highlighted the broad, ―all inclusive‖ terms of the statute‘s
exclusive remedy provision—a provision making a workers‘
compensation action the sole remedy for all claims for ―any accident
or [any] injury‖ sustained in the course of employment. See id. at 895(Crockett, J., dissenting) (alteration in original) (quoting UTAH CODE
§ 35-1-60). And it suggested that this ―mandate‖ should be followed
notwithstanding any ―moral‖ objections the court might have. Id.
¶48 Our subsequent case law has applied, explained, and
narrowed the intentional-injury exception established in Bryan. We
have held that a common-law tort claim is available only for conduct
―beyond gross negligence or willful conduct‖—conduct that is
―intentional‖ in the sense that the employer not only knew of a risk
of harm to an employee but either ―desired‖ the imposition of such
harm or believed that it was ―virtually certain‖ to occur. Supra
¶¶ 17–20 (citing cases). This ―virtually certain‖ standard is at issue in
18
Cite as: 2021 UT 65LEE, A.C.J., concurring
this case. And the majority adds important clarity to the standard in
our case law, explaining that it is not enough for an employer to
have ―‗knowledge or appreciation of risk‘‖ in the workplace in
general. Supra ¶ 21. Instead, the employer must have the knowledge
or expectation of a ―history of prior injury, not the history of a prior
risk of injury.‖ See supra ¶ 36. ―A task that carries some risk of injury,
but has never resulted in injury, cannot be virtually certain to cause
injury without additional factual support.‖ Supra ¶ 36.
¶49 This is an important clarification. It is crucial to maintaining
a distinction between ―intentional injury‖ under our cases and
―grossly negligent‖ or ―willful‖ conduct, which are expressly
covered by the Workers‘ Compensation Act.
¶50 I concur in the court‘s opinion in full. I do so despite my
conclusion that the dissent in the Bryan case ―had the better of the
argument‖ under the statute as a matter of first-impression. Helf v.
Chevron U.S.A. Inc., 2015 UT 81, ¶ 92 n.1, 361 P.3d 63 (Lee, A.C.J.,
dissenting). This has been and is still my view. But I concur fully in
the majority opinion on the basis of the doctrine of stare decisis.
¶51 The ―rule of law‖ would be impossible without a doctrine of
stare decisis. State v. Wilder, 2018 UT 17, ¶ 19, 420 P.3d 1064. Our
courts would be pressed ―almost to the breaking point if every past
decision could be reopened in every case.‖ BENJAMIN N. CARDOZO,
THE NATURE OF THE JUDICIAL PROCESS 149 (1921). For that reason, our
case law has long endorsed a presumption of deference to past
precedent. See Eldridge v. Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553.
¶52 The presumption, of course, is rebuttable. No one views our
precedent as cemented permanently in place. The key question thus
goes to the standards for rebutting the presumption of deference to
our past decisions.
¶53 Our case law has identified ―two broad factors‖ that we
apply to ―distinguish between weighty precedents and less weighty
ones: (1) the persuasiveness of the authority and reasoning on which
the precedent was originally based, and (2) how firmly the precedent
has become established in the law since it was handed down.‖
Eldridge, 2015 UT 21, ¶ 22. These factors are a good starting place for
the stare decisis inquiry. But they leave open some key points of
indeterminacy—in the way the factors are defined and in how they
interact with each other.
¶54 This is a gap in our doctrine as it now stands. In an
appropriate case, we should fill the gap by clarifying these points.
Until we do so, we will not be fully fulfilling the aspirations of a
―law of precedent‖—a statement of a set of rules that restrain
19
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
LEE, A.C.J., concurring
―judicial discretion‖ and ―promote[] public confidence in the
judiciary.‖ Wilder, 2018 UT 17, ¶ 19. And we will leave ourselves
open to the concern that we may be shaping the factors in one way
when we wish to preserve our precedent and in another when we
decide to overrule it.
¶55 My colleagues have challenged my approach to stare decisis
in a few recent cases. They have asserted that I have been too
―willing‖ to ―uproot‖ our precedent60 and suggested that my
approach ―doesn‘t respect‖ the doctrine of stare decisis.61 I disagree
with these critiques. Yet I concede that my own writing to date has
left some aspects of my position on the stare decisis standard
unstated.
¶56 I write separately here to state my view more clearly. I first
highlight some elements of our Utah standards of stare decisis that
are as yet unresolved. Second, I identify some historical material that
could help clarify and refine our doctrine in a manner that can better
restrain our judicial discretion going forward. Third, I close by
explaining how my decision to defer to our Bryan line of cases flows
directly from the historical standards that are most firmly rooted in
historical practice.
I
¶57 Our case law has identified ―two broad factors‖ that guide
our judgment in distinguishing the ―weighty‖ precedents worthy of
substantial deference from the ―less weighty‖ ones more susceptible
to overruling: (1) the ―persuasiveness‖ of a prior decision and (2)
―how firmly‖ it ―has become established in [our] law.‖ Eldridge v.
Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553. These are important
starting points that align with standards prescribed by the United
States Supreme Court and other bodies.62 But in our court, as
_____________________________________________________________
60 Blanke v. Utah Bd. Pardons & Parole, 2020 UT 39, ¶ 11 n.6, 467
P.3d 850.
61 Neese v. Utah Bd. Pardons & Parole, 2017 UT 89, ¶ 57, 416 P.3d
663; see also State v. Rowan, 2017 UT 88, ¶¶ 25–26, 416 P.3d 566(contending that I ―disagree[]‖ with the idea that we should ―pay it
forward‖ by giving ―appropriate respect for past courts‖).
62 See, e.g., Ramos v. Louisiana, 140 S. Ct. 1390, 1414–16 (2020)
(Kavanaugh, J., concurring in part) (explaining that Supreme Court
precedent requires a ―special justification‖ to overrule a
constitutional precedent, which typically entails considering whether
20
Cite as: 2021 UT 65LEE, A.C.J., concurring
elsewhere, these starting points leave open some gaps—imprecision
in the content of the two factors, and indeterminacy in the interplay
between them.63
¶58 We have long said that we start by looking to the
―persuasiveness‖ of a prior decision but have not been clear on what
we mean by that. Sometimes we treat this factor as an inquiry into
whether our past cases reached results that we view as correct in
light of our own contemporary analysis.64 In other cases, we seem to
the prior decision was ―egregiously wrong,‖ has ―caused significant
negative jurisprudential or real-world consequences,‖ and whether
―overruling the prior decision [would] unduly upset reliance
interests‖); BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT
39 (2016) (―When an en banc court decides whether to depart from or
overrule en banc precedent, it considers the same factors weighed by
the Supreme Court.‖); Morrow v. Balaski, 719 F.3d 160, 180 (3d Cir.
2013) (Smith, J., concurring) (identifying as factors followed by at
least nine other circuits the consideration of whether a precedent is
―clearly wrong‖ and whether it has ―generated . . . serious reliance
interests‖).
63 Our standards of stare decisis may not be susceptible to a level
of ―algorithm[ic]‖ precision. See infra ¶ 84. But we can and should
address inconsistencies in our doctrine, just as we can define the
elements of our test with greater precision, and explain more
precisely how the ―factors‖ in our test interact with each other. On
the latter point, we can ultimately conclude that the ―values‖ at stake
are simply too ―incommensurate‖ to be reduced to a rule-like
standard. Infra ¶ 86 (quoting Jill E. Fisch, The Implications of Transition
Theory for Stare Decisis, 13 J. CONTEMP. LEGAL ISSUES 93, 107–08
(2003)). To date, however, our court has not done that. It has
articulated a two-factor ―test‖ that seems to be rule-like but reserves
significant discretion through points of imprecision. This is the
concern I am addressing—the gap that I seek to fill through an
historical lens.
64 See, e.g., Mitchell v. Roberts, 2020 UT 34, ¶¶ 24, 26, 469 P.3d 901(noting that our cases had ―sent mixed signals,‖ but also explaining
that statements corresponding with our holding were ―entitled to
respect as a matter of stare decisis‖ in part because ―we [were]
persuaded that these statements . . . [were] consistent with the
original understanding of our state constitution‖ based on our
analysis); id. ¶ 26 (calling cases that ―suggest[ed]
otherwise . . . unpersuasive departures from the original meaning of
21
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
LEE, A.C.J., concurring
suggest that the inquiry is more concerned with whether the prior
opinion took a hard look at the question in reaching its decision.65
¶59 A similar imprecision appears in our analysis of the second
factor identified in our cases—as to ―how firmly the precedent has
become established in the law since it was handed down.‖ Eldridge,
2015 UT 21, ¶ 22. On this factor, we have noted that myriad
―considerations‖ can come into play, ―including the age of the
precedent, how well it has worked in practice, its consistency with
other legal principles, and the extent to which people‘s reliance on
the precedent would create injustice or hardship if it were
overturned.‖ Id. We have identified a broad range of ―reliance‖
interests and ―hardship[s]‖ of relevance to this inquiry, but stopped
short of specifying the nature of the relevant reliance interests or
clarifying the relative weight to be given to any such interests.66 And
our state charter‖); Taylorsville City v. Mitchell, 2020 UT 26, ¶ 34, 466
P.3d 148 (explaining that a prior decision was ―in line with our
analysis today‖ and was therefore ―persuasive[]‖ (citation and
internal quotation marks omitted); State v. Sanders, 2019 UT 25, ¶ 38,
445 P.3d 453 (referencing persuasiveness as an inquiry into whether
―we would decide a case differently if we were writing on a tabula
rasa‖); State v. Wilder, 2018 UT 17, ¶ 20–24, 420 P.3d 1064 (overruling
two past cases because those decisions ―[sat] on cracked legal
footings‖ because they ignored and ―effectively supplant[ed]‖ an
on-point statute and relied on a constitutional concern grounded in a
misunderstanding of the constitutional law).
65 See Sanders, 2019 UT 25, ¶ 37 (explaining that a prior case did
―not inspire much respect‖ because it had not analyzed the text of a
relevant statute or looked at on-point statutory definitions); State v.
Guard, 2015 UT 96, ¶ 48, 371 P.3d 1 (explaining that a rule repeatedly
applied by this court was unpersuasive because it made its initial
appearance ―in dicta and [we had] failed to subsequently analyze it
in a meaningful way‖).
66 See Taylorsville, 2020 UT 26, ¶ 35 (identifying institutional
reliance within the government as a worthy consideration in the stare
decisis analysis); State v. Robertson, 2017 UT 27, ¶ 37, 438 P.3d 491(identifying ―contractual, property, or similar vested rights‖ as
reliance interests that should be considered); id. ¶ 36 (suggesting that
―wide[] accept[ance]‖ of a precedent as evidenced by provisions in
―mortgages and trust deeds‖ would be significant evidence of
reliance (citation and internal quotation marks omitted)); id. ¶ 34(suggesting that judicial reliance may also form part of the inquiry
22
Cite as: 2021 UT 65LEE, A.C.J., concurring
we have not indicated whether our standard requires reliance in the
form of concrete ordering of a person‘s legal affairs (such as by
writing a contract or will) or whether widespread acceptance of our
past statements as ―the law‖ might be sufficient.
¶60 We have also stopped short of indicating how the two
Eldridge factors are supposed to interact with each other. And we
have compounded this problem by sometimes introducing a third
factor. See State v. Robertson, 2017 UT 27, ¶ 30, 438 P.3d 491 (―We
consider at least three factors when deciding whether to overrule a
prior interpretation of a statute‖: the two factors listed in Eldridge
―and the strength of the arguments for changing that interpretation.‖
(emphasis added)). The third factor mentioned in the Robertson case
is a malleable one. It asks whether there are ―policy arguments‖ or
―practical factors‖ that tell us whether ―more good than harm will
come by departing from precedent.‖67 Id. ¶ 38 (citations and internal
quotation marks omitted).
¶61 These are all concerns for a doctrine that seeks to cabin
judicial discretion and promote decisionmaking by the rule of law.
These goals suggest the need to clarify the content of the Eldridge
factors and explain how the factors interact. Our pursuit of
because ―[u]ltimately, we are concerned with whether overruling
our precedent would upend broad swaths of the legal landscape‖);
Eldridge v. Johndrow, 2015 UT 21, ¶ 35–36, 345 P.3d 553 (explaining
only that people ―ought not . . . have‖ ―their legal rights . . . as
defined by judicial precedent‖ ―swept away by judicial fiat‖ after
―having conducted their affairs in reliance on such rights‖ (citations
omitted)); Guard, 2015 UT 96, ¶ 60 (noting that ―the State‘s [reliance]
interests are certainly important‖ but explaining that ―they are not
the type of public reliance interests we traditionally protect most
strongly‖); Scott v. Universal Sales, Inc., 2015 UT 64, ¶¶ 23, 32, 356
P.3d 1172 (overruling a case that limited potential liability for
―correctional facilities and health care providers that regularly house
dangerous individuals‖ for the actions of those in their custody
―despite the reliance interests of hospitals and correctional facilities‖
without specifically identifying how those entities had relied on our
prior decision).
67 Eldridge uses the language of ―more good than
harm . . . com[ing] by departing from precedent,‖ but it does not
state this as an independent factor. 2015 UT 21, ¶ 64. Nor does
Eldridge suggest that we should consider ―policy arguments‖ or
―practical factors‖ as the Robertson case does.
23
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
LEE, A.C.J., concurring
predictability by the rule of law also cuts against the declaration in
Robertson that there is a third factor that reserves discretion on
whether ―more good than harm‖ will come from overruling, as that
seems to be an assertion that we retain the unfettered prerogative of
deciding how we treat our precedent.
II
¶62 In the paragraphs below I first present some historical
material of relevance to the above-noted points of imprecision in our
Eldridge line of cases. I then outline how I would refine our law of
stare decisis by adopting at least some of the deeply rooted elements
of the historical doctrine of stare decisis. Finally, I highlight some
important upsides of providing greater clarity in our doctrine of stare
decisis—upsides that in my view outweigh some admitted
downsides.
A
¶63 History can inform and refine our approach to the doctrine
of stare decisis on all three of the points of imprecision in our case
law.
1
¶64 Historically, the threshold stare decisis inquiry centered on
whether a prior decision was ―demonstrably erroneous‖—
objectively wrong in the sense of being a clear departure from the
ordinary meaning of a governing statute or constitutional provision.
Where a past decision was not demonstrably erroneous, courts were
bound by it. But a decision shown to be not just wrong but
demonstrably so was more open to reconsideration.
¶65 Two key concepts informed the historical inquiry into
whether an alleged error in a past decision was demonstrable: (1) the
degree of indeterminacy of many written laws and (2) the resulting
need to resolve ambiguous language. Courts and legal theorists
recognized that a certain level of ambiguity or vagueness in written
laws was unavoidable in light of the inherent indeterminacy of
language.68 And they ―believed that precedents would operate‖
_____________________________________________________________
68 As James Madison put it in Federalist 37, the ―cloudy medium‖
of legal text often involved ―a certain degree of obscurity‖ because
―[a]ll new laws . . . are . . . more or less obscure.‖ THE FEDERALIST NO.
37 (James Madison). In light of this indeterminacy, Madison and
others recognized that ―difficulties and differences of opinion might
24
Cite as: 2021 UT 65LEE, A.C.J., concurring
within the ―range of indeterminacy‖ in written laws to resolve points
of ambiguity and vagueness.69
¶66 The upshot was that not all precedents were afforded the
same weight. ―[W]hen the early interpreters of a statute or
constitutional provision that was obscure or ‗controverted‘ gave it a
permissible construction, they helped to ‗settle its meaning‘‖ and
bound ―subsequent interpreters . . . even if [the subsequent
interpreters] would have adopted a different [construction] as an
original matter.‖70 But if ―subsequent interpreters remained
convinced that a prior construction went beyond the range of
indeterminacy, they did not have to treat it as a valid gloss on the
law.‖71
¶67 This framework was ―remarkably widespread‖72 and
reigned throughout the nineteenth century, including during the
framing of our Utah Constitution.73 This court and its territorial
occasionally arise[] in expounding terms and phrases‖ with
―doubtful or contested meanings.‖ See William Baude, Constitutional
Liquidation, 71 STAN. L. REV. 1, 14 (2019) (citations and internal
quotation marks omitted).
69 Caleb Nelson, Stare Decisis and Demonstrably Erroneous
Precedents, 87 VA. L. REV. 1, 11 (2001).
70 Id. at 13 (citation omitted).
71 Id. at 14.
72 Id. at 18–19.
73 The assumption that past erroneous decisions should
ordinarily be corrected by later courts ―can [be] trace[d] . . . from the
1780s through the Civil War and beyond.‖ Id. at 16. See, e.g.,
Trebilcock v. Wilson, 79 U.S. 687, 692 (1871) (overruling a decision that
had ―overlooked the third clause‖ of an applicable statute); Lemp v.
Hastings, 4 Greene 448, 449–50 (Iowa 1854) (explaining that
precedent ―should not be overruled[] unless it is palpably wrong‖);
Nelson, supra note 69, at 15 n.46 (quoting Breedlove v. Turner, 9 Mart.
(o.s.) 353, 366–67 (La. 1821)) (explaining that past decisions were
binding ―unless we are clearly, and beyond doubt, satisfied that they
are contrary to law or the constitution‖); Bush v. Bradley, 4 Day 298,
309–10 (Conn. 1810) (N. Smith, J., concurring) (―On a doubtful point,
I should consider myself bound by [the prior case]; but as the statute,
in my judgment, is perfectly plain, I am constrained to say that its
obligations are paramount to any precedent, however respectable.‖);
H. Campbell Black, The Principle of Stare Decisis, 25 THE AM. L. REG.
25
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
LEE, A.C.J., concurring
antecedent both embraced this framework.74 And the framework
remained widely popular for some time after our state‘s founding.75
2
¶68 In historical doctrine, ―[j]udges frequently indicated that if
past decisions had established ‗rules of property‘—if titles had
passed in reliance on them or if people had otherwise conducted
transactions in accordance with them—the resulting reliance
interests could provide a reason to adhere to the decisions even if
they were now deemed erroneous.‖76 This is a form of what is
sometimes referred to as ―specific reliance.‖77 To this day, the law of
745, 745 (1886) (explaining that ―judges [were] bound to follow
[precedent] . . . unless it [could] be shown that the law was
misunderstood or misapplied‖); J.C. WELLS, A TREATISE ON THE
DOCTRINES OF RES ADJUDICATA AND STARE DECISIS 579 (1879) (Courts
―do not violate [stare decisis] when [they] declare that a [past
decision] in opposition to all previous legislation . . . is open to
correction.‖) (citation and internal quotation marks omitted)).
74 Whittemore v. Cope, 40 P. 256, 259 (Utah 1895) (―[S]tare decisis
ought to be invoked . . . when there [wa]s nothing manifestly
erroneous in the [past] decision.‖); Kimball v. City of Grantsville, 57 P.
1, 8–9 (Utah 1899) (explaining that a ―series of decisions settling a
question of law‖ would merit strong deference except when we
found a ―clear manifestation of error,‖ or ―where it [wa]s manifest
that the law ha[d] been erroneously decided‖).
75 See, e.g., THOMAS M. COOLEY, A TREATISE ON THE
CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE
POWER OF THE STATES OF THE AMERICAN UNION 70 (7th ed. 1903)
(returning to the theme of ―[t]he deficiencies of human language‖
when teeing up its discussion of interpretation, construction, and
stare decisis and saying ―these circumstances‖ together gave
―interpretation and construction great prominence in the . . . law‖).
76 Nelson, supra note 69, at 20 (footnote omitted); see also Marine
Ins. Co. of Alexandria v. Tucker, 7 U.S. (3 Cranch) 357, 388 (1806) (per
Washington, J.) (―[I]n questions which respect the rights of property,
it is better to adhere to principles once fixed . . . than to unsettle the
law[] in order to render it more consistent with the dictates of sound
reason.‖).
77See Randy J. Kozel, Stare Decisis as Judicial Doctrine, 67 WASH. &
LEE L. REV. 411, 452–64 (2010) (identifying this and three other
categories of reliance interests discussed in the case law).
26
Cite as: 2021 UT 65LEE, A.C.J., concurring
stare decisis gives this kind of reliance special weight. Courts
routinely hold that ―precedent that creates a rule of property—a
widely relied-on legal principle established by a judicial decision or
series of decisions relating to title to real, personal, or intellectual
property—is generally treated as inviolable.‖ BRYAN A. GARNER ET
AL., THE LAW OF JUDICIAL PRECEDENT 421 (2016).
¶69 Over time, the law of stare decisis sometimes has been
extended to encompass other categories of reliance interests—
interests that include ―governmental reliance,‖ meaning ―reliance by
Congress, the executive branch, or another governmental unit‖;
―doctrinal reliance,‖ meaning ―reliance by the judiciary itself that
arises when many cases depend upon a foundational precedent;‖
and ―societal reliance,‖ which has reference to ―the effect of the
precedent on shaping societal perceptions.‖78 But these sorts of
interests are not consistently credited in the case law.79 And they are
more difficult to define or to weigh in any consistent fashion.80
3
¶70 In historical practice, courts seem to have mediated the
tension between the prerogative of overruling demonstrably
erroneous precedents and the concern for reliance interests through
something of a sliding scale.81 On one side of the scale, courts
_____________________________________________________________
78 Alexander Lazaro Mills, Note, Reliance by Whom? The False
Promise of Societal Reliance in Stare Decisis Analysis, 92 N.Y.U. L. REV.
2094, 2102–04 (2017) (citations and internal quotation marks
omitted).
79 See Michael Stokes Paulsen, Does the Supreme Court's Current
Doctrine of Stare Decisis Require Adherence to the Supreme Court's
Current Doctrine of Stare Decisis?, 86 N.C. L. REV. 1165, 1182 (2008)
(noting that the United States Supreme Court ―sometimes accords
social reliance significant weight and sometimes it does not‖).
80 Most any precedent can be said to shape our ―doctrine‖ or
―perceptions‖ of our ―society‖ to some degree. And that leaves
nearly unlimited discretion to decide whether or not a body of
precedent should be preserved or set aside.
81 See WELLS, supra note 73, at 543, 545 (speaking of a balance of a
―duty in a court to adhere to decisions which have become a rule of
property,‖ especially ―in regard to the purchase or sale of real
estate,‖ and the need for a court to correct a decision that is found to
be ―unbearably wrong‖).
27
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
LEE, A.C.J., concurring
considered the degree to which a prior decision was ―demonstrably
erroneous‖—just how ―unfounded in law‖ and ―unreasonable‖ its
attempt to interpret a statute or constitutional provision had been.82
The further a decision departed from the mandate of a written law,
the more weight courts would place on the scale in favor of
overruling that decision. On the other side of the scale, courts
considered the extent to which ―the point‖ established in a case had
―become a rule of property, so that titles have been acquired in
reliance upon it, and vested rights [would] be disturbed by any
change.‖83 The more extensive the reliance at stake, the stronger the
argument against overruling would become.84 Early Utah case law is
again in accord.85
B
¶71 I would refine our law of stare decisis by adopting at least
some of the elements of the historical framework outlined above. At
a minimum, I would clarify (1) that our inquiry into the
―persuasiveness‖ of our precedent should turn on whether a past
decision is ―demonstrably erroneous,‖86 (2) that a precedent that
sustains ―specific reliance‖ interests merits strong deference, and (3)
that the foregoing considerations are balanced on a sliding scale in
_____________________________________________________________
82 COOLEY, supra note 75, at 86.
83 Id.
84 Even with respect to rules of property, ―sometimes decisions
are so wrongly decided—and the cost of continuing to enforce the
established rule so great—that courts may jettison them.‖ BRYAN A.
GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 431 (2016).
85 Though it did not discuss a specific framework for weighing
reliance interests, the Kimball case referred not only to the
prerogative of overruling a precedent ―where it is manifest that the
law has been erroneously decided,‖ but also to the need to protect
―material property rights or business rules . . . established
thereunder.‖ Kimball, 57 P. at 8.
86 I am not suggesting that all judges will ―agree‖ in our
assessment of whether ―a precedent is demonstrably erroneous.‖
Infra ¶ 88. I am simply proposing that we resolve a point of
imprecision in our case law, by articulating a standard for judging the
―persuasiveness‖ of a past decision.
28
Cite as: 2021 UT 65LEE, A.C.J., concurring
which the showing of demonstrable error must be stronger where
the reliance interests at stake are greater.
¶72 These considerations are deeply embedded in the historical
case law outlined above—including in our Utah cases. And they can
advance the interests of transparency and constraint on our
discretion without eliminating elements of discretion that are
necessary or inevitable.
¶73 I leave for a future date the question of how to handle a
number of other problems highlighted in my historical discussion
above. I stop short of addressing, for example, the question of how to
more precisely define categories of reliance interests
(―governmental,‖ ―doctrinal,‖ and ―societal‖ reliance), and the
question of how those reliance interests should be accounted for in
weighing the factors under Eldridge. These and other questions are
less clearly established in the historical case law. And they are not
implicated by my decision in this case. So I leave them for another
day.
C
¶74 I am not suggesting that the historical approach to stare
decisis is required as a matter of our constitutional judicial power.87
Nor am I asserting that the historical formulation eliminates all
discretion from the stare decisis analysis. Even under the clarification
that I propose, judges will still differ on whether a precedent is
―demonstrably erroneous,‖ on how much weight to give to certain
―reliance interests,‖ and on how the ―sliding scale‖ analysis plays
out in a given case. That said, I think history is often a good guide
when we encounter points of imprecision in our law. And I think the
historical formulation can reduce the degrees of freedom available to
a court even if it doesn‘t eliminate discretion altogether—an
important upside to the clarification that I have in mind.
_____________________________________________________________
87 The standards I set forth here are also necessarily tentative. In a
future case, I welcome further briefing and argument about how this
court and I can further define a transparent and discretion-limiting
law of precedent. Until that day arrives, I am stating here the
principles that have informed and will guide my approach to stare
decisis. This may constrain my vote on whether to uphold or
overturn precedent in future cases. But that is, or should be, the
point of a law of precedent.
29
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
LEE, A.C.J., concurring
¶75 The clarification that I have in mind admittedly gives rise to
downsides. If and when we move to increase the clarity of the
content and operation of our standard of stare decisis, we will be
detracting from the flexibility of the doctrine and limiting the
discretion afforded to the judges who apply it.
¶76 Reasonable minds can differ on whether the upsides of
clarification outweigh the downsides. The ―rules versus standards‖
debate has long raged throughout our law.88 And I can see the
argument for a more standard-like law of stare decisis.
¶77 That said, I am inclined to see more upside than downside
in clarification of our law in this field. The doctrine of stare decisis is
aimed at enhancing the stability of our law and inspiring confidence
in the impartiality of the judiciary—by ensuring that our law does
not duck and swerve with changes in judicial personnel.89 And our
doctrine will fall short of those ideals if we fail to clarify the points of
imprecision that I have highlighted.
III
¶78 In Bryan and its progeny, this court has identified and filled
in an ambiguity in the Workers‘ Compensation Act‘s use of the word
―willful.‖ The question is whether the legislature left open the
possibility of tort recovery for ―intentional‖ acts or omissions despite
its indication that ―willful‖ conduct is covered exclusively under the
Act. See UTAH CODE § 34A-2-301(2). The Bryan majority highlighted a
point of ambiguity in asserting that the statute does not ―deal
directly with intentional acts.‖ Bryan v. Utah Int’l, 533 P.2d 892, 894
(Utah 1975). And it stated that the term ―‗intentional‘ is more
compact than is that of the word ‗willful‘‖ and held that an
―intentional‖ act falls outside the statute because it applies to an ―act
_____________________________________________________________
88 See State v. Rushton, 2017 UT 21, ¶ 71, 395 P.3d 92 (Lee, A.C.J.,
concurring) (noting that ―[a] totality-of-the-circumstances test is a
tempting response to a complex legal problem‖ and ―may have a
place in the law—in a field, for example, where precision is
untenable (or unimportant) and flexibility is at a premium,‖ while
also explaining that ―[t]he flipside of flexibility is unpredictability‖);
id. ¶ 71 n.11 (citing a ―rich literature on the virtues and vices of
objective rules and subjective standards‖).
89See BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT
415 (2016) (―[S]tare decisis dictates that a precedent shouldn‘t be
overruled simply because new judges populate the court.‖).
30
Cite as: 2021 UT 65LEE, A.C.J., concurring
[that] was not only done knowingly, but with the knowledge that it
was wrongful to do it.‖ Id.
¶79 I have stated previously that the dissent in Bryan ―seems to
have had the better of the argument.‖ Helf v. Chevron U.S.A. Inc.,
2015 UT 81, ¶ 92 n.1, 361 P.3d 63 (Lee, A.C.J., dissenting). That is still
my view. But I nonetheless vote to uphold the Bryan line of cases
despite the fact that I would have dissented from the Bryan decision
if the question had been presented to me in the first instance. My
decision in this case flows directly from the historical clarifications
outlined above. First, the Bryan line of cases is not a ―demonstrably
erroneous‖ departure from the law but a plausible resolution of a
point of ambiguity in our law. Second, our holdings in these cases
sustains substantial elements of ―specific reliance.‖ The Bryan line of
decisions establishes a ―square and straightforward‖ standard (made
even more so by the important opinion handed down today) that has
given rise to ―substantial reliance interests on the part of employees
and employers.‖ Id. ¶ 92.
¶80 These are sufficient grounds for deference to the Bryan line
of decisions under the points of clarification to our Eldridge factors
outlined above. I concur in the majority opinion on this basis.
31
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
HIMONAS, J., concurring
JUSTICE HIMONAS, concurring:
¶81 I concur fully with the Chief Justice‘s well-reasoned opinion.
I write separately only to respond to the Associate Chief Justice‘s
concurring opinion. I disagree both with his substantive view of our
stare decisis doctrine and with the way he expresses that view today.
I begin with an overview of this court‘s established stare decisis
framework and then explain why his suggestions are unnecessary
and detrimental.
¶82 ―Stare decisis is a cornerstone of Anglo–American
jurisprudence because it is crucial to the predictability of the law and
the fairness of adjudication. Because stare decisis is so important to
the predictability and fairness of a common law system, we do not
overrule our precedents lightly.‖ Eldridge v. Johndrow, 2015 UT 21,
¶ 21, 345 P.3d 553 (citations omitted) (internal quotation marks
omitted). To further the goals of predictability and fairness, this
court has over time developed many principles guiding when to
overrule and when to respect precedent.
¶83 Relatively recently, we distilled these established stare
decisis principles into ―two broad factors.‖ Id. ¶ 22. We consider:
―(1) the persuasiveness of the authority and reasoning on which the
precedent was originally based, and (2) how firmly the precedent
has become established in the law since it was handed down.‖ Id. We
have explained that the first factor is contextual; our persuasiveness
analysis necessarily depends on the relevant source of law.90 ―The
_____________________________________________________________
90 For example, ―[i]n the context of statutory interpretation, [it]
means we consider whether the prior interpretation is []reasonable
given the statutory framework in existence at that time.‖ Rutherford
v. Talisker Canyons Fin., Co., 2019 UT 27, ¶ 28, 445 P.3d 474 (third
alteration in original) (citation omitted) (internal quotation marks
omitted); see also State v. Sanders, 2019 UT 25, ¶ 37, 445 P.3d 453(explaining that a precedential decision did ―not inspire much
respect‖ because, in analyzing a firearm possession statute, ―we
never referenced [the statute‘s] text, parsed the Utah Criminal
Code‘s general definition of ‗possess,‘ or analyzed whether the plain
language left room for an affirmative defense‖ (citation omitted)).
And in the common-law context, we have considered (again, for
example) whether a decision ―rests on a firm legal footing‖ based on
how well the decision characterized the rationale of previous cases
and the weight of authority behind that rationale. C.R. England v.
Swift Transp. Co., 2019 UT 8, ¶¶ 29–31, 437 P.3d 343.
32
Cite as: 2021 UT 65HIMONAS, J., concurring
second factor encompasses a variety of considerations, including the
age of the precedent, how well it has worked in practice, its
consistency with other legal principles, and the extent to which
people‘s reliance on the precedent would create injustice or hardship
if it were overturned.‖ Id.
¶84 Still, I recognize that stating our doctrine of stare decisis is
the easy part. Applying the doctrine is the hard part—the hard work
we expect appellate judges to do. Balancing the factors is a ―difficult,
slippery, and intimidating inquir[y].‖ Randy J. Kozel, Stare Decisis as
Judicial Doctrine, 67 WASH. & LEE L. REV. 411, 466 (2010). And
application of the doctrine ―will always remain part art and part
science. We should not expect it to become the stuff of algorithm.‖ Id.A decision to overrule precedent is rarely taken lightly or
approached rashly. Past decisions form the foundation of our
jurisprudence. An imprecise or poorly considered attempt to
renovate that foundation can have profound and unseen impacts on
the integrity of our case law. See, e.g., John Paul Stevens, The Life Span
of a Judge-Made Rule, 58 N.Y.U. L. REV. 1, 4 (1983) (―The framework
for most Court opinions is created by previously decided cases.‖).
¶85 Nevertheless, this court has embraced the hard work and
consistently applied Eldridge without significant trouble. See, e.g.,
Rutherford v. Talisker Canyons Fin., Co., 2019 UT 27, ¶¶ 31–74, 445 P.3d
474 (going through persuasiveness in depth, before turning to our
―firmly established‖ factors and analyzing them); State v. Sanders,
2019 UT 25, ¶ 38, 445 P.3d 453 (noting the interplay between the
Eldridge factors); id. ¶¶ 36–42 (analyzing the Eldridge factors); C.R.
England v. Swift Transp. Co., 2019 UT 8, ¶¶ 28–39, 437 P.3d 343(analyzing the Eldridge factors in the same order and in some depth).
These decisions present different depths of analysis because they
reflect different problems—problems with the precedent at issue,
problems due to different levels of briefing, or problems stemming
from disagreement between members of this court.
¶86 The Eldridge framework is not algorithmic by design. It
necessarily balances the competing goals of predictability and
flexibility. See Am. Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 205
(1990) (Scalia, J., concurring) (―[T]he doctrine of stare decisis is a
flexible command.‖); Jill E. Fisch, The Implications of Transition Theory
for Stare Decisis, 13 J. CONTEMP. LEGAL ISSUES 93, 107-08 (2003) (―How
does one weigh the adverse impact posed by a bad or erroneous
decision against the systemic harm created by too-frequent
overruling? The Court is being asked to weigh competing yet
incommensurate values—the value of an identified legal
33
CHRISTIANSEN v. HARRISON WESTERN CONSTR. CORP.
HIMONAS, J., concurring
improvement against the process values sacrificed by overruling.‖
(citation omitted)).
¶87 But the Associate Chief Justice thinks this existing
framework insufficient. He aspires to create a ―law of precedent‖
that will ―cabin judicial discretion and promote decisionmaking by
the rule of law.‖ Supra ¶¶ 54, 61. In his view, we have never
explained how the Eldridge factors are defined or interact with each
other. Supra ¶ 53. He thus seeks to ―fill the gap‖ in our existing stare
decisis doctrine, supra ¶ 54, by suggesting how we may provide
clarification in a future case.
¶88 I take issue with his suggestions for two main reasons. First,
he looks to history and concludes that precedent should be
overruled if it is ―demonstrably erroneous.‖ Supra ¶ 71. The
problem, of course, is that this proposal assumes we can all agree a
precedent is demonstrably erroneous. Agreeing on demonstrable
error is not easy for any court. As one scholar pointed out about the
United States Supreme Court, ―cases are legion in which the Justices
who comprise the majority and the Justices in dissent each appear to
view the contrary position as not just wrong, but manifestly wrong.‖
Kozel, supra ¶ 84, at 419. We should not expect this court to fare any
better. Ultimately, this clarification provides none.
¶89 Second, the Associate Chief Justice effectively suggests that
the only type of reliance we should consider under the second
Eldridge factor is ―specific reliance‖: reliance based on rules of
property.91 Supra ¶¶ 68–69. This would strip from consideration the
various types of reliance interests that have historically informed our
stare decisis analysis—in particular, societal reliance.
_____________________________________________________________
91 The Associate Chief Justice qualifies his position by ―leav[ing]
for a future date‖ how societal reliance ―should be accounted for in‖
our stare decisis analysis. Supra ¶ 73. Yet he simultaneously claims
that ―[m]ost any precedent can be said to shape our ‗doctrine‘ or
‗perceptions‘ of our ‗society‘ to some degree[,] [a]nd that leaves
nearly unlimited discretion to decide whether or not‖ to keep or
discard precedent. Supra ¶ 69, n.80. He also cites concerns with
societal reliance, supra ¶ 69, and legal scholarship dismissive of its
role in the stare decisis inquiry. Supra ¶ 69, n.78. These statements
leave little room for consideration of any reliance interests other than
―specific reliance‖ interests.
34
Cite as: 2021 UT 65HIMONAS, J., concurring
¶90 Societal reliance lies at the heart of stare decisis and
originated with Justice Brandeis‘s statement that ―in most matters it
is more important that the applicable rule of law be settled than that
it be settled right.‖ Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406
(1932) (Brandeis, J., dissenting); see Emery G. Lee III, Overruling
Rhetoric: The Court's New Approach to Stare Decisis in Constitutional
Cases, 33 U. TOL. L. REV. 581, 617 (2002) (―This ‗better-settled-than-
right‘ argument clearly rests on an understanding of reliance.‖). It
provides predictability and stability, and avoids ―injustice or
hardship‖ caused when rights are ―swept away by judicial fiat.‖
Eldridge, 2015 UT 21, ¶ 35 (citation omitted).
¶91 When we address reliance, we routinely consider the effect
of overruling precedent on various stakeholders and the public at
large. See, e.g., Rutherford, 2019 UT 27, ¶ 68 (analyzing reliance on our
precedents by different groups of individuals and at different levels);
Rueda v. Utah Lab. Comm’n, 2017 UT 58, ¶ 66, 423 P.3d 1175 (Opinion
by Himonas, J.) (explaining that ―we consider whether overturning
the [precedent] now would create injustice or hardship in the realm of
workers‘ compensation‖ and pointing out that ―people have relied‖
on the precedent in question (emphasis added)); id. ¶ 193 (Opinion
by Lee, A.C.J.) (describing reliance by ―litigant[s]‖ and ―lawyer[s] in
this field‖). Although examining societal reliance ―can be a complex
and daunting concept,‖ it ―is a necessary component of any stare
decisis jurisprudence that aims to be complete,‖ Kozel, supra ¶ 84, at
460 (italics omitted), and it has a ―rightful role . . . in stare
decisis debates.‖ Id. at 462 (italics omitted). Indeed, many legal
commentators observe that invocation of societal reliance reasoning
gives a court more ―legitimacy‖ in its stare decisis analysis. See, e.g.,
William S. Consovoy, The Rehnquist Court and the End of Constitutional
Stare Decisis: Casey, Dickerson and the Consequences of Pragmatic
Adjudication, 2002 UTAH L. REV. 53, 54–55 (2002); Tom Hardy, Has
Mighty Casey Struck Out?: Societal Reliance and the Supreme Court’s
Modern Stare Decisis Analysis, 34 HASTINGS CONST. L.Q. 591, 603
(2007); Lee, supra ¶ 90, at 582–87.
¶92 Again, two main goals of the doctrine of stare decisis are
predictability and fairness. See Eldridge, 2015 UT 21, ¶ 21. Perhaps the
suggestion to consider only ―specific reliance‖ would lead to more
predictable outcomes for litigants lobbying this court to overturn
precedent; perhaps not. But it most certainly would come at the price
of decreased predictability and fairness for all other stakeholders
who, knowingly or not, have come to rely on a stable body of
relevant law.
35