Gressman v. State

This opinion is subject to revision before final
publication in the Pacific Reporter

2013 UT 63

IN THE

SUPREME COURT OF THE STATE OF UTAH
JED A. GRESSMAN,
Plaintiff and Appellee,
v.
STATE OF UTAH,
Defendant and Appellant.

No. 20110965
Filed October 18, 2013

Fourth District, Nephi Dep’t
The Honorable Steven L. Hansen
No. 090600014

Attorneys:
Douglas G. Mortensen, Salt Lake City, for appellee
John E. Swallow, Att’y Gen., Nancy L. Kemp, Patrick B. Nolan,
Asst. Att’ys Gen., Salt Lake City, for appellant

JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
and JUSTICE PARRISH joined.
JUSTICE LEE filed a dissent.

JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 The State appeals from the district court’s order posthumously
declaring Jed Gressman factually innocent of the crimes he was
convicted of in 1993 and awarding his widow financial assistance
payments under the Post-Conviction Remedies Act (PCRA). The
State argues the district court erred by (1) finding that
Mr. Gressman’s claims under the PCRA survived his death;
(2) determining Mr. Gressman to be factually innocent as a matter of
law based on the prior vacatur of his conviction; and (3) awarding
prejudgment interest on the financial assistance payments.
¶2 We find that Mr. Gressman’s PCRA claims did not abate upon
his death and that the district court properly substituted his widow
as the plaintiff in this suit. The district court erred, however, when
it found that the vacatur of Mr. Gressman’s conviction conclusively
 GRESSMAN v. STATE
Opinion of the Court

established his factual innocence, as defined by the PCRA. Finally,
we hold that the version of the PCRA relevant to this case does not
permit the district court to award prejudgment interest. We therefore
reverse for further proceedings consistent with this opinion.
BACKGROUND
¶3 Mr. Gressman was accused of rape and aggravated sexual
assault after he and his co-defendant, Troy Hancock, offered a
woman a ride in Mr. Hancock’s truck. The woman claimed that
during this ride, Mr. Gressman and Mr. Hancock began to fondle
her, over her protests, and that they ultimately forced her out of the
truck at a secluded location, where Mr. Gressman raped her, aided
by Mr. Hancock. At trial, the State presented the testimony of the
alleged victim and a DNA expert, who testified that DNA testing of
semen recovered from the alleged victim could not exclude
Mr. Gressman as the source of the semen.
¶4 Mr. Gressman was convicted of aggravated sexual assault and
sentenced to a term of five years to life. In 1996, after Mr. Gressman
had served thirty-nine months of that sentence, he and the Juab
County Attorney jointly moved the district court to dismiss all
charges against him based on newly-discovered evidence. Most
importantly, more advanced DNA testing established that semen
recovered from the victim did not come from Mr. Gressman.
Reasoning that this newly-discovered evidence would have
materially influenced the jury’s deliberations, the district court
vacated Mr. Gressman’s conviction and granted him a new trial. The
State chose not to file new charges against Mr. Gressman, and no
trial occurred.
¶5 In 2009, Mr. Gressman filed suit under the PCRA, seeking to
establish his factual innocence and obtain financial assistance
payments under that statute. Mr. Gressman died during the
pendency of the suit, so counsel moved to substitute his widow. The
State moved to dismiss, claiming that Mr. Gressman’s claims abated
upon his death. Ultimately, both sides moved for summary
judgment on Mr. Gressman’s factual innocence petition. The district
court, in a single order, granted the motion to substitute
Mr. Gressman’s widow, denied the State’s motion to dismiss, denied
the State’s motion for summary judgment, and granted
Mr. Gressman’s widow’s motion for summary judgment. This latter
decision was premised on the notion that Mr. Gressman’s factual
innocence had already been determined when his conviction was
vacated. After so ruling, the district court awarded Mr. Gressman’s

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widow PCRA assistance payments—including prejudgment interest.
The State appeals.
STANDARD OF REVIEW
¶6 The appellate briefing raises two issues of statutory
interpretation: (1) whether Mr. Gressman’s claims survive his death
and (2) whether the district court properly awarded prejudgment
interest on the assistance payments it awarded. Because the answer
to both of these questions turns upon our interpretation of the PCRA
and Utah’s survival statute, we afford no deference to the district
court. See Vorher v. Henriod, 2013 UT 10, ¶ 6, 297 P.3d 614 (The
interpretation of a statute is a legal question reviewed de novo.) We
likewise review de novo the district court’s summary adjudication
of Mr. Gressman’s factual innocence. See Gudmundson v. Del Ozone,
2010 UT 33, ¶ 10, 232 P.3d 1059 (“We review the district court’s
decision to grant summary judgment for correctness . . . .” (internal
quotation marks omitted)).
ANALYSIS
I. MR. GRESSMAN’S PCRA CLAIMS SURVIVED HIS DEATH
A. Mr. Gressman’s Claims Would Abate Under the Common Law
¶7 At common law, personal tort actions abate upon the death of
either the claimant or the tortfeasor, while tort claims for property
damage or conversion survive. Morrison v. Perry, 140 P.2d 772,
781–82 (Utah 1943); see Mason v. Union Pac. Ry. Co., 24 P. 796, 796
(Utah Terr. 1890) (“In the case of injuries to the person, whether by
assault, battery, false imprisonment, slander, or otherwise, if either
party who received or committed the injury die, no action can be
supported either by or against the executors, or other personal
representatives.” (internal quotation marks omitted)). The rationale
for this distinction is
that the reason for redressing purely personal wrongs
ceases to exist either when the person injured cannot be
benefited by a recovery or the person inflicting the
injury cannot be punished, whereas, since the property
or estate of the injured person passes to his personal
representatives, a cause of action for injury done to
these can achieve its purpose as well after the death of
the owner as before.
Barnes Coal Corp. v. Retail Coal Merchs. Ass’n, 128 F.2d 645, 649 (4th
Cir. 1942).

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Opinion of the Court

¶8 Mr. Gressman’s statutory claim for compensation upon a
show ing of factual innocence is not a claim for injury to property
that would survive a claimant’s death at common law. None of the
injuries associated with imprisonment of a factually innocent person
are in any way associated with the kinds of property claims that
survived a claimant’s death at common law. Such claims typically
involved damage to or destruction of tangible personal property. See,
e.g., Morrison, 140 P.2d at 782 (holding that an action for recovery of
damages to an automobile caused by a collision survived death).
¶9 A factual innocence claim, rather, is essentially a claim for
injury to the person, which abated at common law. The closest
analogues at common law appear to be claims for false
imprisonment and for malicious prosecution, both of which were
subject to abatement. See Mason, 24 P. at 796 (false imprisonment
does not survive death); State ex rel. Crow v. Weygandt, 162 N.E.2d
845, 848 (Ohio 1959) (“A cause of action for malicious prosecution
did not survive the death of its owner at common law.”) These
claims are comparable to a factual innocence claim in the nature of
the harm (false imprisonment) and the wrong (malicious
prosecution) they vindicate. And they were both personal claims
that abated at death under the common law.
¶10 Because Mr. Gressman’s claims would abate upon his
death under the common law, his suit may only survive under the
aegis of a statutory provision. We therefore examine whether the
PCRA or Utah’s general survival statute operate to preserve
Mr. Gressman’s claims.
B. The Relevant Version of the PCRA does not Provide for
the Survival of Mr. Gressman’s Claims
¶11 When a cause of action is created by statute, we look first
to that statute for an indication of survival or abatement. The
survivability of the factual innocence claim under the PCRA
implicates two subsidiary questions. First is which version of the
PCRA applies—the 2012 amendment, which speaks explicitly to
survivability,1 or the prior version of the statute, which does not.

1
The 2012 amendments, enacted after this case was filed in the
district court, provide that “[a] claim for determination of factual
innocence under this part is not extinguished upon the death of the
petitioner. The assistance payment provisions of Section 78B-9-405
may not apply, and financial payments may not be made, if the
finding of factual innocence occurs after the death of the petitioner.
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Second is the proper construction of the statute—whether it can be
read to provide for survivability or whether it preserves the
common-law rule of abatement.
1. The Preamendment Version of the PCRA Applies
¶12 The Utah Code articulates a general presumption against
retroactivity. UTAH CODE § 68-3-3. By statute, “‘a provision of the
Utah Code is not retroactive, unless the provision is expressly
declared to be retroactive.’” State v. Clark, 2011 UT 23, ¶ 11, 251 P.3d
829 (quoting UTAH CODE § 68-3-3). In this case, there is no expression
of retroactivity in the 2012 amendments, and no other basis for
applying the amended provisions exists. Accordingly, we find the
preamendment version of the statute controls.
¶13 Under our case law, “the parties’ substantive rights and
liabilities are determined by the law in place at the time when a
cause of action arises,” while their procedural rights and
responsibilities are governed by “the law in effect at the time of the
procedural act” at issue. Id. ¶¶ 12, 14 (internal quotation marks
omitted). Thus, if survivability is a matter of substance, then that
question is governed by the law in place when Mr. Gressman’s claim
arose. If it is a procedural matter, on the other hand, then subsequent
enactments (like the 2012 amendments) could be deemed to apply.
¶14 We view the 2012 amendments in question as clearly
substantive. The amended provisions foreclose postjudgment
interest for financial assistance payments and cut off such payments
altogether after the death of the defendant-petitioner. See UTAH
CODE §§ 78B-9-402(14), -405(8) (2012). They accordingly “enlarge,
eliminate, or destroy vested or contractual rights” and do not merely
dictate “the practice and procedure or the legal machinery by which
the substantive law is determined or made effective.” Brown & Root
Indus. Serv. v. Indus. Comm’n of Utah, 947 P.2d 671, 675 (Utah 1997)

1
(...continued)
In addition, any payments already being made under Section 78B-9-
405 shall cease upon the death of the petitioner.” UTAH CODE § 78B-
9-402(14) (2012). In 2013, after briefing and oral argument in this
appeal had been completed, the legislature amended the PCRA once
again. The 2013 amendment provides that a factual innocence claim
survives the death of a petitioner and that financial assistance
payments shall be remitted to a surviving spouse if the petitioner
was married at the time the petitioner was found guilty and
remained continuously married until the petitioner’s death. Id.
§ 78B-9-402(14) (2013).

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 GRESSMAN v. STATE
Opinion of the Court

(internal quotation marks omitted). We therefore hold that
Mr. Gressman’s petition is governed by the law in effect in 2008, not
by the 2012 amendments enacted during the pendency of this action.
¶15 In arguing the contrary, the State seeks to invoke a narrow
exception to the retroactivity ban for amendments that merely clarify
existing law, insisting that the bill introducing the amendments
announced that it “ma[de] clarifying amendments to factual
innocence provisions.” 2012 Utah Laws 896. We decline to invoke
this exception.
¶16 Though our case law has occasionally referred to
“amendments clarifying statutes” as an “exception” to the
retroactivity ban, see, e.g., Keegan v. State, 896 P.2d 618, 620 (Utah
1995), we have never applied them as such. Instead, our retroactivity
case law has invoked this “exception” only in connection with
statutory amendments that we have characterized as procedural.2

2
Due S., Inc. v. Dep’t of Alcoholic Beverage Control, 2008 UT 71, ¶ 14,
197 P.3d 82 (determining that an amendment affecting a standard of
review was retroactive because it was a clarification and because
“the standard of review is a matter of procedural, rather than
substantive, law” (internal quotation marks omitted)); Kilpatrick v.
Wiley, Rein & Fielding, 2001 UT 107, ¶ 59, 37 P.3d 1130 (applying an
amendment retroactively because the court considered the
amendments to be both a clarification and procedural because they
did not affect the plaintiffs’ “vested or contractual right[s]”); Evans
& Sutherland Computer Corp. v. Utah State Tax Comm’n, 953 P.2d 435,
440 (Utah 1997) (applying an amendment retroactively because it
was a “clarifying amendment . . . to a procedural statute”); State v.
Higgs, 656 P.2d 998, 1001–02 (Utah 1982) (holding that remedial
amendments that affect only procedure or practice applied
retroactively); McGuire v. Univ. of Utah Med. Ctr., 603 P.2d 786, 788
(Utah 1979) (relying on Foil v. Ballinger to hold that an amendment
to a procedural statute had retroactive effect); Foil v. Ballinger, 601
P.2d 144, 150–51 (Utah 1979) (determining that amendments to a
procedural statute are retroactive, particularly when “a remedial
statute [is] passed to clarify an earlier procedural enactment”); cf.
State v. Angilau, 2011 UT 3, ¶ 1 n.2, 245 P.3d 745 (noting that an
amendment applied retroactively after “both parties . . . stipulated
that [the] statutory issues are . . . moot”); Gohler v. Wood, 919 P.2d
561, 563 n.2 (Utah 1996) (applying a statute retroactively where the
parties all conceded that the statute was a clarification with
retroactive effect); Hamblin v. City of Clearfield, 795 P.2d 1133, 1136
(Utah 1990) (giving a statute “retroactive” effect where the analysis
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And when our cases discuss the “clarifying amendment exception,”
it is always in tandem with or as a counterpart to our analysis of the
above-noted distinction between substance and procedure. See Foil
v. Ballinger, 601 P.2d 144, 151 (Utah 1979) (“The principle [that
amendments to procedural statutes apply to accrued, pending and
future actions] applies with particular force to a remedial statute
passed to clarify an earlier procedural enactment.”).3 That limitation
is entirely appropriate. The governing statute, after all, makes no
express room for an exception for clarifying amendments per se. The
sole exception spelled out explicitly by statute requires an express
provision for retroactivity. See UTAH CODE § 68-3-3.
¶17 In any event, the 2012 amendments cannot be construed as
a mere clarification. “An amendment serves as a clarification when
it corrects a discrepancy or merely amplif[ies] . . . how the law
should have been understood prior to [the amendment].” Salt Lake
Cnty. v. Holliday Water Co., 2010 UT 45, ¶ 43, 234 P.3d 1105
(alterations in original) (internal quotation marks omitted). In past
cases, we have decided whether an amendment is a mere
clarification by asking whether it alters or explains language already
present in the original statute or whether the amendment added new
language or subsections that “did not exist in any form before the
amendments were made.” Id. ¶ 44. An amendment that does the
former is more likely clarifying in nature; one that does the latter is
not. See id.
¶18 The 2012 amendments concerning survivability fall in the
latter category. The amendments set up a bifurcated survival
scheme, wherein a basic claim for expungement survives a
claimant’s death, but claims for monetary assistance payments abate.

2
(...continued)
under the previous version of the statute was “the same as [the]
analysis under the . . . amendment”).
3
See Keegan, 896 P.2d at 620 (“[A]n exception exists for
amendments clarifying statutes, which are applied retroactively, so
long as they do not enlarge, eliminate, or destroy vested or
contractual rights.” (citations and internal quotation marks
omitted)); Rocky Mountain Thrift Stores, Inc. v. Salt Lake City Corp., 784
P.2d 459, 461–62 (Utah 1989) (alluding to the clarifying amendment
exception but stating that “[a] later statute or amendment should not
be applied in a retroactive manner to deprive a party of his rights or
impose greater liability upon him.” (internal quotation marks
omitted)).

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Opinion of the Court

See UTAH CODE § 78B-9-402(14) (2012). Nothing in the prior version
of the PCRA could possibly be construed as contemplating this
bifurcated system. The 2012 amendment establishes an entirely new
framework, not a clarification of an old one.
¶19 The preamble to the amendment, relied on heavily by the
State, is not to the contrary. Though the preamble describes the bill
as “mak[ing] clarifying amendments to factual innocence provi-
sions,” it goes on to specify the changes made, in a manner
differentiating clarifying changes from substantive ones. 2012 Utah
Laws 896. For instance, it states that the bill “clarifies the
requirement of a hearing if the state does not stipulate to factual
innocence” and “clarifies that all proceedings are governed by Utah
Rules of Civil procedure, Rule 65C.” Id. In describing the
amendments related to survivability, however, the preamble in no
way paints them as merely clarifying. Instead, it states that the bill
“disallows prejudgment interest on payments made to a person after
a finding of factual innocence” and “provides that assistance
payments on a claim of factual innocence are extinguished upon the
death of the petitioner.” Id. Thus, the preamble recognizes that some
of the amendments are clarifications and some are not—and places
the survivability provision in the latter category.
¶20 For these reasons, we determine that the 2012 amendments
discussing the survivability of factual innocence claims are not
retroactive.4 Rather, survivability for purposes of this case is
governed by the versions of the PCRA and Utah’s survival statute in
effect when Mr. Gressman’s claim arose. A cause of action arises
“when it becomes remediable in the courts,” which normally occurs
when “all elements of a cause of action come into being.” Davidson
Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 19 (Utah 1990).
This case is unusual, however, in that Mr. Gressman did not have a
remediable factual innocence claim until the legislature first created
the cause of action in 2008. See 2008 Utah Laws 2298–2300. Therefore,
Mr. Gressman’s claim did not arise until that time, and we look to

4
Mr. Gressman argues that the State is estopped from claiming
that the 2012 amendments are retroactive because it assured the
legislature that the amendments would not apply to Mr. Gressman’s
claim but would apply only to future cases. Because we determine
that the 2012 amendments are not retroactive, we decline to address
this argument. However, we do consider the State’s conduct in
arguing to this court that the amendment is retroactive, after
assuring the legislature that the amendment would not be
retroactive, to be troubling.

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the 2008 versions of the PCRA and the survival statute to decide
whether Mr. Gressman’s factual innocence claim survives his death.
2. The Preamendment PCRA Does Not Provide for the Survival of
Mr. Gressman’s Claims
¶21 The applicable version of the PCRA does not speak to
survivability. As the State notes, the statute does contemplate a
claimant “who has been convicted of a felony offense” petitioning
the court “for a hearing to establish that the person is factually
innocent of the crime or crimes of which the person was convicted.”
See UTAH CODE § 78B-9-402(2)(a) (2008). And the statutory
remedies—financial assistance payments, expungement, an
innocence letter, and access to certain services and programs—are
aimed at the wrongfully convicted person. See id. § 78B-9-405(1)(a),
(6), (7) (2008). But those provisions answer only the threshold
question of who the primary claimant is; they say nothing of
significance on the secondary question of whether such claimant’s
interests survive death and may be asserted by a representative. On
its face, then, the PCRA seems not to speak to the question of
survivability.
¶22 The legislative history relied on by the district court is not
to the contrary. At most, that history indicates only that members of
the legislature generally analogized the PCRA’s compensation
scheme to “a workers compensation system” and suggested that it
was patterned after the 9/11 Victims Compensation Fund of 2001.
But that tells us nothing of consequence to the survivability of the
statutory factual innocence claim under the PCRA. The PCRA’s
compensation provisions may be analogous to workers
compensation and the 9/11 Victims Compensation Fund in some
respects, but they are distinguishable in another, more salient sense:
workers compensation statutes and the 9/11 fund expressly provide
for survivability, while the PCRA does not.5 Absent some specific
provision for survivability in the PCRA, we cannot rely on general
references to other claims that do survive death to import the same
principle into the PCRA. We accordingly find no basis in the

5
Compare UTAH CODE § 34A-2-106(1)(a) (“[T]he injured employee,
or in case of death, the employee’s dependents, may claim
compensation[.]”), and Final Report of the Special Master for the
September 11th Victim Compensation Fund of 2001, at 22–23,
available at www.justice.gov/final_report.pdf, with UTAH CODE
§ 78B-9-405 (2008).

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PCRA—or in its legislative history—to support a holding for
survivability.
C. Utah’s Survival Statute Preserves Mr. Gressman’s Claims
¶23 Because the PCRA does not address the survival of
Mr. Gressman’s claims, we examine Utah’s general survival statute
to determine whether it supplants the common law rule of
abatement in this case. We find that it does.
¶24 The common law rule of abatement of personal tort claims
has been modified to one extent or another by survival statutes,
which have been adopted by most states. PROSSER AND KEETON ON
THE LAW OF TORTS § 126 (W. Page Keeton et al. eds., 5th ed. 1984).
Utah’s survival statute provides that “[a] cause of action arising out
of personal injury to a person . . . does not abate upon the death of
the wrongdoer or the injured person.” UTAH CODE § 78B-3-107(1)(a).
In determining whether a statutory claim under the PCRA
constitutes a cause of action for “personal injury to a person,” we
look to analogous common law claims. See PROSSER AND KEETON ON
THE LAW OF TORTS, supra, § 126 (Federal statutory claims under
statutes without survival provisions “either survive or not according
to whether a similar action would survive under state law.”); Wallace
v. Kato, 549 U.S. 384, 387–89 (2007) (finding that the common law tort
of false imprisonment “provides the proper analogy” for
determining the accrual date of a statutory section 1983 cause of
action). As previously noted, the closest common law analogs to
Mr. Gressman’s statutory factual innocence claim are false
imprisonment and malicious prosecution. Supra ¶ 9.
¶25 Under the common law, both false imprisonment and the
malicious prosecution of a criminal action are categorized as torts
against the person (as opposed to torts against property) because
these torts infringe upon an individual’s personal liberty interests.6
The Restatement (Second) of Torts groups false imprisonment with
other personal torts, such as battery and the negligent infliction of
bodily harm, because false imprisonment similarly implicates an
invasion of the “interests of personality.” RESTATEMENT (SECOND) OF

6
In addition to personal torts and property torts, Utah recognizes
injury to reputation as a third category of tortious conduct. UTAH
CONST. art. I, § 11 (“All courts shall be open, and every person, for
an injury done to him in his person, property or reputation, shall
have remedy by due course of law . . . .”). We do not decide here
whether reputational torts, such as defamation, fall within the ambit
of Utah’s survival statute.

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T ORTS , Chapter 2, Introductory Note (1965); see also
PROSSER AND KEETON ON THE LAW OF TORTS, supra, § 11 (The tort of
false imprisonment “protects the personal interest in freedom from
restraint of movement.”); id. § 125A (categorizing false
imprisonment, along with battery and negligence, as a tort “affecting
the person,” rather than a tort “against real property”). Utah has also
long recognized false imprisonment as an “injur[y] to the person”
along with assault and battery. Mason, 24 P. at 796 (internal
quotation marks omitted). And although the malicious prosecution
of a civil suit is considered a property tort, the malicious prosecution
of a criminal action is similarly categorized as a personal injury tort.
Wild v. Rarig, 234 N.W.2d 775, 791–92 (Minn. 1975); Woodford v.
McDaniels, 81 S.E. 544, 546 (W. Va. 1914) (“An action for malicious
prosecution . . . is an action for a personal injury.”).
¶26 In accord with this long-standing division between
personal torts and property torts, other states have interpreted
statutory references to actions for “personal injury,” “injury to the
person,” or similar references to personal torts to include actions for
false imprisonment and malicious prosecution. Merimee v. Brumfield,
397 N.E.2d 315, 318 (Ind. Ct. App. 1979) (Interpreting the term
“personal injuries” in a survival statute, the Indiana Court of
Appeals held that “[t]here is considerable authority for the
proposition that the term ‘personal injuries’ is a broader, more
comprehensive and significant term than the term ‘bodily injury.’ It
includes malicious prosecution [and] false imprisonment.”); Rivera
v. Double A Transp., Inc., 727 A.2d 204, 207–08 (Conn. 1999) (A two-
year statute of limitations on actions “to recover damages for injury
to the person” applied to an action for false imprisonment because
“the term ‘injury,’ . . . under both the common and legal usage of the
term, includes harm to the mind as well as to the body.”); Morton v.
W. Union Tel. Co., 41 S.E. 484, 485 (N.C. 1902) (Interpreting the term
“injury to the person” in a survival statute, the North Carolina
Supreme Court held that “[p]ersonal injuries may be either bodily or
mental, but, whether one or the other, they infringe upon the rights
of the person, and not of property.”); Ex parte Holsonback, 182 So. 28,
29–30 (Ala. 1938) (malicious prosecution claim survives under a
statute providing for the survival of “all personal actions, except for
injuries to the reputation”); Fricke v. Geladaris, Inc., 533 A.2d 971, 971,
973 (N.J. Super. Ct. App. Div. 1987) (malicious prosecution claim
survives under a statute providing for the survival of an action for
any “trespass done to the person”).
¶27 In addition, the United States Supreme Court has held that
a statutory section 1983 action, which provides a remedy for

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individuals wrongfully imprisoned or prosecuted under the color of
law, is best defined as a personal injury tort claim for the purpose of
selecting the appropriate statute of limitations.
Wilson v. Garcia, 471 U.S. 261, 277–78 (1985), superseded by statute,
Judicial Improvements Act of 1990, Pub. L. No. 101–650, 104 Stat.
5114, as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,
377–78 (2004). The Court reasoned that because a section 1983 action
provides a remedy for the violation of rights “guaranteed to the
person[,] [i]n the broad sense, every cause of action under
§ 1983 which is well-founded results from personal injuries.” Id. at
278 (internal quotation marks omitted).
¶28 Because common law analogs to a factual innocence claim
under the PCRA are commonly included in the definition of actions
for “personal injury” or “injury to the person” under survival
statutes, and because a similar federal statutory claim has been
defined as a personal injury action for the purposes of statutes of
limitations, Mr. Gressman’s statutory claim survives because it is an
action for “personal injury to a person.” See UTAH CODE § 78B-3-
107(1)(a).
¶29 The dissent reaches a contrary conclusion, reasoning that
the phrase “personal injury to a person” could be read broadly to
include all actions that are personal in nature or narrowly to include
only bodily injury claims. Infra ¶ 59. The dissent prefers the narrow
interpretation, concluding that the addition of the phrase “to a
person” to the term “personal injury” connotes “physical harm to a
claimant’s ‘person.’”7 Infra ¶ 61. Thus, while the dissent concedes

7
The dissent notes that Black’s Law Dictionary acknowledges
both a narrow and a broad definition of “personal injury,” defining
the term as both (1) “In a negligence action, any harm caused to the
person, such as a broken bone, a cut, or a bruise” and (2) “Any
invasion of a personal right, including mental suffering and false
imprisonment.” BLACK’S LAW DICTIONARY 857 (9th ed. 2009); see infra
¶ 59 n.1, n.2. But the narrow definition is confined to negligence
actions, while Utah’s survival statute includes both intentional torts
and negligence, indicating that the broader definition would be more
appropriate here. Moreover, the edition of Black’s Law Dictionary
that was current when Utah first adopted the term “personal injury”
in its survival statute clarified that the broader definition of
“personal injury” generally applied to statutes: “[Personal injury] is
chiefly used in this connection [defined narrowly] with actions of
tort for negligence . . . . But the term is also used (usually in statutes)
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that Mr. Gressman’s claim is for “personal injury,” it concludes that
this claim is not for “personal injury to a person.” Infra ¶ 57. We
disagree for two principal reasons.
¶30 First, the history and context of the adoption of the current
version of the survival statute demonstrates that the legislature did
not intend that the statute be confined to actions for physical injury.
Prior to 1991, Utah’s general survival statute provided for the
survival of actions “arising out of physical injury to the person.”
UTAH CODE § 78-11-12 (1987) (emphasis added). In 1991, the
legislature changed the word “physical” to “personal” so that the
statute provided for the survival of actions “arising out of personal
injury to the person.” 1991 Utah Laws 401 (emphasis added). The
dissent argues that this change was of no consequence and that the
legislature merely changed a statute that clearly provided for the
survival of only physical injury claims to a less clear iteration of the
same principle. Infra ¶ 66. But this reading nullifies the legislature’s
amendment and improperly assumes this substantive change was an
idle act. See 73 AM. JUR. 2D Statutes § 214 n.3 (2012) (“An amendment
to a statute making a material change bespeaks a legislative intent to
change the meaning of the statute.”).
¶31 In light of the well-established principle that a statutory
reference to “personal injury” claims includes all personal torts (as
opposed to property torts), the legislature’s 1991 amendment
evidences an intent to expand the types of actions that would
survive. See supra ¶¶ 26. Moreover, statutes of limitations for
personal injury claims are widely recognized to include all personal
tort claims—not just claims involving physical injury—further
demonstrating the legislature’s intent to expand the scope of the
survival statute. See 51 AM. JUR. 2D Limitation of Actions § 123 (2011)
(“A claim which is personal injury in nature, for purposes of [a
statute of limitations for personal injuries], need not involve a direct

7
(...continued)
in a much wider sense, and as including any injury which is an
invasion of personal rights [such as] malicious prosecution [and]
false imprisonment . . . .” BLACK’S LAW DICTIONARY 786 (6th ed.
1990); see also Martin v. Derenbecker, 40 So. 849, 851 (La. 1906) (“It
might, perhaps, be argued that the application of the words
‘personal injuries,’ as used in the statute, should be confined to cases
of physical injury to the person of the wife; but we take those words
to be used in their commonly accepted sense, and, thus used, as
meaning any injuries which are personal to the wife, and as
including injuries to feelings . . . .”).

13
 GRESSMAN v. STATE
Opinion of the Court

physical injury, and may encompass a broad range of infringements
of personal rights.” (footnote omitted)); 54 C.J.S. Limitations of Actions
§ 97 (2005) [renumbered as § 116 in the electronic version] (“Statutes
limiting actions for injuries done to the person include actions for
injuries done to the individual, as distinguished from injuries done
to his or her property,” and govern “various particular actions, such
as actions for infliction of mental or emotional distress” and
“violation of civil rights.” (footnote omitted)) And in the context of
insurance contracts, the term “personal injury” also includes more
than just physical injury, encompassing injuries caused by false
arrest and civil rights violations. 46 C.J.S. Insurance § 1368 (2007)
(“The term ‘personal injury’ is broader and more comprehensive
than the term ‘bodily injury’ and is synonymous with ‘injury to
person.’” (footnote omitted)); Benjamin v. Amica Mut. Ins. Co., 2006
UT 37, ¶¶ 32–33, 140 P.3d 1210 (personal injury insurance policy
covered liability for false imprisonment); Vargas v. Hudson Cnty. Bd.
of Elections, 949 F.2d 665, 672 (3d Cir. 1991) (personal injury
insurance policy covered liability for civil rights violations).
¶32 Indeed, the legislature’s definition of the term “personal
injury” in a contemporary statute indicates that it intended to alter
the meaning of the survival statute when it changed “physical
injury” to “personal injury.” At the time the legislature amended the
survival statute, Utah’s governmental immunity statute defined the
phrase “personal injury” to mean “an injury of any kind other than
property damage,” demonstrating that the legislature recognized
that “personal injury” referred to all personal torts as opposed to
property torts. UTAH CODE § 63-30-2(6) (1989).
¶33 Second, we disagree with the dissent’s conclusion that the
phrase “to a person” indicates the legislature intended to limit the
application of the survival statute to physical injury claims. Both a
claim for false imprisonment and a claim for negligent infliction of
a physical injury seek redress for harm done “to a person.” Thus,
this phrase does nothing to distinguish one from the other. If
anything, the repetition of the root word “person” in the phrase
“personal injury to a person” emphasizes the inclusion of all
personal tort claims in the survival statute. Indeed, the most
common statutory phrases used to reference personal tort claims are
“personal injury” and “injury to the person.” See supra ¶ 26. The 1991
amendment to the survival statute simply conflated these two
phrases to create the term “personal injury to the person.” 1991 Utah
Laws 401. A subsequent 2008 amendment changing the article “the”
to the article “a,” such that the statute now reads “personal injury to
a person,” was deemed by the legislature to be merely stylistic and

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did not change the statute’s double reference to personal torts. 2008
Utah Laws 396; UTAH CODE ANN. § 78B-3-107, Amendment Notes
(2012) (stating the 2008 amendments were stylistic).
¶34 The essence of the dissent’s reading of the phrase “to a
person” is that “[t]he noun ‘person’ indicates a natural body.” Infra,
¶ 61 (internal quotation marks omitted). Thus, the dissent interprets
the survival statute to provide for the survival of claims for
“personal injury to a person’s body.” But the law recognizes that a
person is more than a physical conglomeration of tissue and bones
that may be cut, bruised, or broken:
In law the word ‘person’ does not simply mean the
physical body, for, if it did, it would apply equally to a
corpse. It means a living person, composed of body and
soul. . . . The mind is no less a part of the person than
the body, and the sufferings of the former are some-
times more acute and lasting than those of the latter.
Morton, 41 S.E. at 485 (internal quotation marks omitted).8
Additionally, the Supreme Court has emphasized that the rights
secured by the U.S. Constitution are guaranteed to persons:
[T]he Fourteenth Amendment . . . unequivocally
recognizes the equal status of every “person” subject to
the jurisdiction of any of the several States. The
Constitution’s command is that all “persons” shall be
accorded the full privileges of citizenship;
no person shall be deprived of life, liberty, or property
without due process of law or be denied the equal
protection of the laws. A violation of that command is
an injury to the individual rights of the person.
Wilson, 471 U.S. at 277. In sum, the inherent, unalienable rights
recognized by the U.S. Constitution are also fundamental to the
meaning of what it is to be a person. Taken as a whole, therefore, the
definition of “person” is broader than an individual’s natural body
and is necessarily coextensive with the “interests of personality”
vindicated by personal tort law. See RESTATEMENT (SECOND) OF
TORTS, Chapter 2, Introductory Note (1965).
¶35 We therefore conclude that Mr. Gressman’s claims
survived his death and the district court properly substituted his
widow into the lawsuit.

8
Cf. RENÉ DESCARTES, PRINCIPIA PHILOSOPHIÆ pt. I, § 7 (1644) (“ego
cogito, ergo sum” [I think, therefore I am]).

15
 GRESSMAN v. STATE
Opinion of the Court

II. THE 1996 VACATUR OF MR. GRESSMAN’S CONVICTION
DID NOT CONCLUSIVELY ESTABLISH
HIS FACTUAL INNOCENCE
A. The District Court Erred in Granting Summary Judgment
on the Issue of Mr. Gressman’s Factual Innocence
¶36 The district court granted summary judgment in favor of
Mr. Gressman’s widow based upon its finding that the 1996 vacatur
of his aggravated sexual assault conviction was effectively a
determination that Mr. Gressman was factually innocent. In essence,
the district court ruled that the 1996 order vacating Mr. Gressman’s
conviction collaterally estopped the State from contesting his claim
of innocence. We hold that the district court erred because the 1996
order did not conclusively establish Mr. Gressman’s factual -
innocence, as defined by the PCRA.
¶37 “The doctrine of res judicata embraces two distinct
theories: claim preclusion and issue preclusion.” Buckner v. Kennard,
2004 UT 78, ¶ 12, 99 P.3d 842. “Issue preclusion, which is also known
as collateral estoppel, prevents parties or their privies from
relitigating facts and issues in the second suit that were fully
litigated in the first suit.” Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 28,
194 P.3d 956 (internal quotation marks omitted). Issue preclusion
applies only if four elements are satisfied:
(i) the party against whom issue preclusion is asserted
was a party to or in privity with a party to the prior
adjudication; (ii) the issue decided in the prior
adjudication was identical to the one presented in the
instant action; (iii) the issue in the first action was
completely, fully, and fairly litigated; and (iv) the first
suit resulted in a final judgment on the merits.
Moss v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42, ¶ 23, 285
P.3d 1157 (internal quotation marks omitted).
¶38 The second element of issue preclusion is not met here
because the issue decided by the 1996 order—whether to vacate Mr.
Gressman’s conviction and grant a new trial based upon newly
discovered evidence—is not identical to the issue presented in the
instant action under the PCRA—whether Mr. Gressman is factually
innocent of aggravated sexual assault. See Jensen ex rel. Jensen v.
Cunningham, 2011 UT 17, ¶ 49, 250 P.3d 465 (The final adjudication
of a federal constitutional claim did not collaterally estop a plaintiff
from making a similar claim under the Utah constitution because the
legal standards governing these claims are not identical.).

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Opinion of the Court

¶39 In order to obtain relief under the PCRA based upon a
claim of factual innocence, a petitioner bears the burden of proving
by clear and convincing evidence that the petitioner did not
(a) engage in the conduct for which the person was
convicted;
(b) engage in conduct relating to any lesser included
offenses of the crime for which the person was con-
victed; or
(c) commit any other felony arising out of or reasonably
connected to the facts supporting the indictment or
information upon which the person was convicted.
UTAH CODE § 78B-9-401.5(2); id. § 78B-9-404(1)(b).9 In other words,
a petitioner seeking a factual innocence determination may not
merely attack the sufficiency of the evidence supporting his
conviction or attempt to overturn an adjudication of guilt on
technical grounds; the petitioner must affirmatively prove innocence
of both the crime for which the petitioner was convicted and any
related criminal conduct by clear and convincing evidence.
¶40 The district court that vacated Mr. Gressman’s conviction
in 1996 did not apply the PCRA’s factual innocence standard, which
was not established by the legislature until 2008. See 2008 Utah Laws
2298–2301. Instead, the court cited Utah Rules of Civil Procedure
rules 59(a)(4) (grounds for granting a new trial based upon newly
discovered evidence) and 60(b) (grounds for granting relief from a
judgment or order, including for newly discovered evidence) as the
basis for its order vacating Mr. Gressman’s conviction and granting
him a new trial. In order to grant a new trial under either rule
59(a)(4) or rule 60(b), any newly discovered evidence “must be of
sufficient substance that there is reasonable likelihood that with it
there would have been a different result.”10 In re S.R., 735 P.2d 53, 58

9
Because these provisions of the PCRA have not been materially
altered since Mr. Gressman’s claim arose in 2008, we cite the current
version of the statute in this section of the opinion.
10
This civil standard for granting a new trial is different from the
standard for vacating a criminal conviction due to newly discovered
evidence under the PCRA. The PCRA provides that a conviction
may be vacated or modified only if “viewed with all the other
evidence, the newly discovered material evidence demonstrates that
no reasonable trier of fact could have found the petitioner guilty of
(continued...)

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Opinion of the Court

(Utah 1987) (applying rule 59(a)(4)); accord Kettner v. Snow, 375 P.2d
28, 30 (Utah 1962) (applying the same standard to rule 60(b)). The
district court applied this standard when it ruled that Mr. Gressman
was entitled to a new trial because he had produced “newly
discovered evidence which is material” and “such evidence would
have [had] a material and persuasive power and influence on the
jury in considering the guilt of the Defendant[].”
¶41 The district court’s 1996 finding that a new trial was
warranted is not equivalent to a finding of factual innocence because
these two findings involve very different legal standards and resolve
different issues. The grant of a new trial under the civil standard
applied by the district court in 1996 requires only a finding of a
reasonable likelihood that the defendant could have obtained a
different result at trial if the newly discovered evidence had been
available, while a factual innocence claim requires a convicted
individual to affirmatively prove innocence by clear and convincing
evidence. In other words, the former is finding that the State might
not have carried its burden to prove guilt beyond a reasonable
doubt, whereas the latter is a finding that the convicted individual
actually carried the burden of proving innocence by clear and
convincing evidence. Because the question of whether to grant a new
trial necessarily evaluates the State’s burden to prove guilt, while the
question of whether an individual is factually innocent involves the
convicted individual’s burden to prove innocence, the issue resolved
in the 1996 vacatur proceeding is not identical to the question of
factual innocence at issue in the present action.11

10
(...continued)
the offense or subject to the sentence received.” UTAH CODE § 78B-9-
104(1)(e)(iv); see also id. § 78-35a-104(1)(e)(iv) (1996) (The same
standard applied when the PCRA was first enacted in 1996.). The
PCRA, however, did not control the proceedings that led to the
vacatur of Mr. Gressman’s conviction because the act did not go into
effect until several weeks after the district court vacated the
conviction. See id. § 78B-9-103. And for the purposes of collateral
estoppel, we must evaluate the legal standard the court actually
applied in the prior proceeding—not the legal standard that would
currently apply or even the legal standard the court should have
applied.
11
The current version of the PCRA clarifies that the vacatur of a
conviction based on newly discovered evidence is not equivalent to
a finding of factual innocence and that the two claims must be
(continued...)

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Opinion of the Court

¶42 Moreover, the relief granted by the district court in 1996—a
new trial to determine Mr. Gressman’s guilt or innocence on the
aggravated sexual assault charge—would be inconsistent with a
finding of factual innocence. Indeed, the district court judge that
vacated Mr. Gressman’s conviction confirmed that he did not find
Mr. Gressman to be innocent by commenting during the hearing
that “I suppose none of us will ever really know if they
[Mr. Gressman and his codefendant] are absolutely innocent of this.”
¶43 Because the issue resolved by the district court in 1996
when it vacated Mr. Gressman’s conviction and ordered a new trial
is not identical to the issue before the court in the current action
under the PCRA, the district court erred by finding that the 1996
order conclusively established Mr. Gressman’s factual innocence.
B. We Do Not Find Alternative Grounds for
Affirming Summary Judgment
¶44 Mr. Gressman’s widow raises several alternative
arguments for affirming the grant of summary judgment in her
favor. We find none to be meritorious.
¶45 First, Mr. Gressman’s widow argues that we should not
review the district court’s application of collateral estoppel because
the State did not preserve the issue by arguing against the preclusive
effect of the 1996 vacatur order. This assertion is incorrect. At the
summary judgment hearing, the State argued that the 1996 vacatur
“is not a finding of factual innocence, and that is not a finding that
the defendant did not commit the crime for which he was con-
victed.” See Warne v. Warne, 2012 UT 13, ¶ 19, 275 P.3d 238 (issue
raised during a summary judgment hearing was preserved).
Moreover, the argument advanced by Mr. Gressman’s widow
misapprehends the preservation rule. Issues must be preserved, not
arguments for or against a particular ruling on an issue raised
below. See UTAH R. APP. P. 24(a)(5)(A). “An issue is preserved for
appeal when it has been presented to the district court in such a way

11
(...continued)
litigated separately. See UTAH CODE § 78B-9-104(3) (providing that
a factual innocence petition may not be filed as part of a petition for
postconviction relief to vacate a sentence based on newly discovered
evidence); id. § 78B-9-402(5) (“A person who has already obtained
postconviction relief that vacated or reversed the person’s conviction
or sentence may also file a petition [for determination of factual
innocence] . . . if no retrial or appeal regarding this offense is
pending.”).

19
 GRESSMAN v. STATE
Opinion of the Court

that the court has an opportunity to rule on [it].” Patterson v.
Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (alteration in original)
(internal quotation marks omitted). Thus, even if the State had not
argued against the application of collateral estoppel, the issue was
preserved when Mr. Gressman’s widow presented the issue to the
district court by arguing for the preclusive effect of the 1996 vacatur,
thereby giving the district court an opportunity to rule on the issue.
A party may not raise an issue and induce the district court to rule
upon it, and then argue the issue is not preserved in order to
insulate the ruling from appellate review.
¶46 Mr. Gressman’s widow also argues we should not consider
the State’s appeal from the district court’s grant of summary
judgment because the State failed to marshal the record evidence in
support of the “district court’s factual innocence finding.” See UTAH
R. APP. P. 24(a)(9) (“A party challenging a fact finding must first
marshal all record evidence that supports the challenged finding.”).
But because a district court does not make findings of fact when
granting a motion for summary judgment—finding only the absence
of disputes regarding material facts—the marshalling requirement
has no application here. See UTAH R. CIV. P. 56(c) (summary
judgment appropriate only if there is “no genuine issue as to any
material fact and . . . the moving party is entitled to a judgment as a
matter of law”).
¶47 Finally, Mr. Gressman’s widow argues that even if the
district court erred by basing its grant of summary judgment on the
preclusive effect of the 1996 vacatur order, we may affirm on the
alternative ground that the State produced no admissible evidence
that would create a dispute of material fact regarding his factual
innocence. We decline to affirm on this alternative ground because
the record evidence before the district court demonstrated disputes
of material fact that would preclude summary judgment.
¶48 Mr. Gressman’s widow supported her motion for
summary judgment on the factual innocence claim with
(1) Mr. Gressman’s verified petition for postconviction relief, in
which he asserts in general terms that he is factually innocent,
(2) Mr. Gressman’s parole hearing transcript in which he
consistently maintained his innocence despite the fact that his
denials of culpability could negatively affect his chances of being
paroled, and (3) a DNA test report confirming that semen recovered
from vaginal swabs performed on the alleged victim did not come
from Mr. Gressman. The State supported its opposition to summary
judgment with (1) the record of Mr. Gressman’s criminal trial,

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including the alleged victim’s testimony that Mr. Gressman
physically assaulted, fondled, and raped her; (2) the transcript of
Mr. Gressman’s parole hearing in which the alleged victim
contradicted Mr. Gressman’s assertions of innocence and again
stated that he had fondled and raped her; and (3) an affidavit
prepared for the factual innocence proceedings and signed by the
alleged victim that once again affirmed her testimony that
Mr. Gressman physically assaulted, fondled, and raped her and
explained that the alleged victim was not sure whether
Mr. Gressman had ejaculated during the alleged sexual assault and
that the semen recovered from the vaginal swab must have come
from prior sexual intercourse with her husband.
¶49 Because the district court found that the alleged victim’s
affidavit also contained inadmissible statements that were
argumentative or were not based upon personal knowledge, the
court struck the affidavit in its entirety. Mr. Gressman’s widow
argues that the State’s opposition to her summary judgment motion
is based entirely upon the affidavit and that without it, the district
court must accept Mr. Gressman’s sworn statement of factual
innocence. But the PCRA requires the district court to consider “the
record of the original criminal case and . . . any postconviction
proceedings in the case” in making a factual innocence
determination. UTAH CODE § 78B-9-404(3). The district court,
therefore, must consider the alleged victim’s trial testimony and
parole hearing statements, which contradict Mr. Gressman’s
assertions of factual innocence. Since the record reveals that
Mr. Gressman’s factual innocence of aggravated sexual assault or
any related criminal conduct is disputed, we may not affirm the
district court’s grant of summary judgment on the alternative
grounds suggested by Mr. Gressman’s widow.
III. PREJUDGMENT INTEREST MAY NOT BE ADDED TO
ANY AWARD OF FINANCIAL ASSISTANCE
PAYMENTS UNDER THE PCRA
¶50 Because we reverse summary judgment in favor of
Mr. Gressman’s widow, we also reverse the award of PCRA
assistance payments and prejudgment interest on those payments,
mooting the State’s argument that prejudgment interest may not be
awarded. But since we reverse for further proceedings and it is
possible that the issue of prejudgment interest may arise in this case
again, we address the State’s argument in order to provide guidance
to the district court.

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 GRESSMAN v. STATE
JUSTICE LEE, dissenting

¶51 The version of the PCRA that was in effect when
Mr. Gressman’s factual innocence claim arose provides for
assistance payments to an individual determined to be factually
innocent in the amount of “the monetary equivalent of the average
annual nonagricultural payroll wage in Utah . . . at the time of the
petitioner’s release from prison” for the amount of time the
petitioner was incarcerated. UTAH CODE § 78B-9-405(1)(a) (2008).
This version of the PCRA does not provide for an award of
prejudgment interest on this amount.12
¶52 We have previously held that prejudgment interest may
not be awarded where a “statute fixes a penalty or determines the
damages to be allowed.” Fell v. Union Pac. Ry. Co., 88 P. 1003, 1006
(Utah 1907). Thus, where a statute fixes the damages to be awarded,
the statutory amount is deemed to be the full compensation allowed
by the legislature, and prejudgment interest may not be added
unless provided for in the statute. Indeed, the relevant version of the
PCRA confirms that the legislature did not contemplate
compensation in addition to the amount specifically provided by the
statute: “Payments pursuant to this part constitute a full and
conclusive resolution of the petitioner’s claims on the specific issue
of factual innocence.” UTAH CODE § 78B-9-405(8) (2008).
¶53 Therefore, if assistance payments are ultimately awarded
in this case, we hold that prejudgment interest may not be awarded.
CONCLUSION
¶54 We find that Mr. Gressman’s factual innocence claim
survived his death and that the district court properly substituted
his widow into the case. But the district court erred by granting
summary judgment in favor of Mr. Gressman’s widow and
awarding prejudgment interest on the statutory financial assistance
payments. We accordingly reverse for further proceedings
consistent with this opinion.

JUSTICE LEE, dissenting:
¶55 I agree with the court’s construction of the Post-Conviction
Remedies Act, and concur in its determination that Gressman’s
claims are not subject to survival under that statute. I respectfully
12
The current version of the PCRA specifically provides that
district courts may not award prejudgment interest. UTAH CODE §
78B-9-405(8). But as we explained above, the version of the PCRA
that was in effect when Mr. Gressman’s factual innocence claim
arose controls this case. See supra ¶ 20.

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JUSTICE LEE, dissenting

disagree with its construction of the general survival statute,
however. I read that provision, Utah Code section 78B-3-107(1)(a),
to apply only to claims for “personal injury to a person” in the sense
of physical injury to a plaintiff’s body. That is the only construction
that ascribes independent meaning to the qualifying language, “to
a person.” It is accordingly the one I would attribute to the
legislature. And since Gressman’s claim is not of that nature, I
would conclude that the claim abated on his death.
¶56 I agree that false imprisonment and malicious prosecution
are “the closest common law analogs” to Gressman’s statutory
factual innocence claim. Supra ¶ 24. And I acknowledge that those
claims “are categorized as torts against the person (as opposed to
torts against property)” at common law. Supra ¶ 25. But that is not
the question before us. The scope of our general survival statute is
not dictated by the treatment of these common law claims under the
law of other states, or in federal caselaw on the appropriate
limitations period for § 1983 claims. See supra ¶¶ 26–28 (noting that
such claims are categorized as personal injury claims in various state
decisions and in federal cases analyzing the applicable limitations
period for claims under 42 U.S.C. § 1983).
¶57 The scope of our statute, rather, is dictated by its
terms—which provide for survival not for “personal injury” claims,
or for claims for injury “to the person,” but for “[a] cause of action
arising out of personal injury to a person, or death caused by the
wrongful act or negligence of another.” UTAH CODE § 78B-3-
107(1)(a). And that language, read holistically and not subdivided
artificially, should properly be read to modify or limit the range of
“personal injury” claims subject to survival.
¶58 The majority seeks to parse the component terms of the
statute—“personal injury” and “to a person”—and to piece them
together additively in a manner depriving the terms of independent
meaning. It reasons as follows: “Because common law analogs to a
factual innocence claim under the PCRA are commonly included in
the definition of actions for ‘personal injury’ or ‘injury to the person’
under survival statutes, and because a similar federal statutory claim
has been defined as a personal injury action for the purposes of
statutes of limitations, Mr. Gressman’s statutory claim survives
because it is an action for ‘personal injury to a person.’” Supra ¶ 28
(emphasis added). But the court’s conclusion does not follow from
its premises. The cited “common law analogs” may well be defined
in various states as “actions for personal injury” and in others as
actions involving “injury to the person.” See supra ¶ 26. But it does

23
 GRESSMAN v. STATE
JUSTICE LEE, dissenting

not at all follow that such common law claims are actions “arising
out of personal injury to a person” under our statute. That is the full-
flowered statutory phrase—a phrase not implicated in any of the
cases cited by the majority—and the meaning of that phrase cannot
properly be equated with its individual component parts. See State
v. Canton, 2013 UT 44, ¶ 25, 308 P.3d 517 (explaining the need to
move “beyond the component terms” of a statute to consider the
“full [statutory] phrase in its entirety” (citing FCC v. AT&T, Inc., __
U.S. __, 131 S.Ct. 1177, 1183 (2011) (noting that “two words together
may assume a more particular meaning than those words in
isolation”))).
¶59 For me the key to interpreting the statute is the time-worn
canon of independent meaning, or its corollary presumption against
surplusage. See Rapela v. Green (In re Estate of Kampros), 2012 UT 57,
¶ 19, 289 P.3d 428 (noting our presumption that the legislature uses
“each word advisedly” and against a construction rendering any
part “inoperative or superfluous, void or insignificant”). By
themselves, the individual references to “personal injury” or injury
“to a person” could be construed in either a narrow or broad sense.
See Allred v. Solaray, Inc., 971 F. Supp. 1394, 1397 (D. Utah 1997).
These terms could be understood to be limited to physical harm or
injury to a person (as by a cut, bruise, or broken bone),1 or they

1
See BLACK’S LAW DICTIONARY 857 (9th ed. 2009) (defining
“personal injury” as “[i]n a negligence action, any harm caused to a
person, such as a broken bone, a cut, or a bruise; bodily injury”); see
also 1 AM. JUR. 2D Abatement, Survival, & Revival § 71 (“[T]he words
‘damage to the person’ may not extend to torts affecting only
feelings or reputation, such as breach of promise, slander, or
malicious prosecution, but include only actions resulting from
damage of a physical character.”).
The majority dismisses this definition on the ground that it is
somehow “confined to negligence actions, while Utah’s survival
statute includes both intentional torts and negligence.” Supra ¶ 29,
n.7. That is not the sense of the above-cited definitions as I
understand them. The Black’s definition merely indicates that the
definition typically is applicable in a negligence action; it does not
foreclose the possibility of this sense of the term in strict liability.
And as the Am. Jur. cite suggests, courts and commentators have
adopted this notion outside the context of negligence.

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JUSTICE LEE, dissenting

could be read more broadly to encompass all injuries that are
“personal” in nature (as opposed to harm to property).2
¶60 But in the context of the full statutory phrase, the narrow
reading is the better one. Our statute does not speak in the broad
terms of the common law; it does not provide for survival, for
example, of all tort claims for harms in the nature of “personal
injury.” Instead it adds to that phraseology by avoiding abatement
for claims arising from “personal injury to a person.” UTAH CODE
§ 78B-3-107(1)(a) (emphasis added). The addition seems purposeful,
particularly as compared to the common-law formulation. And the
addition must be understood to add something.
¶61 In context, we should read the meaningful addition (“to a
person”) as narrowing. We should read it, in other words, as
focusing the sub-class of claims saved from common-law abatement
to those involving physical harm to a claimant’s “person.” See Allred,
971 F. Supp. at 1398 (concluding, in interpreting this provision, that
“[t]he noun ‘person’ indicates a natural body . . . and the injuries
contemplated are injuries to that body”).
¶62 The majority rejects this conclusion in light of the “history
and context of the adoption of the current version of the survival
statute.” Supra ¶ 30. It notes that before the current language was
adopted in 1991, the statute “provided for the survival of actions
‘arising out of physical injury to the person.’” Supra ¶ 30 (quoting
UTAH CODE § 78-11-12 (1987)) (emphasis in original). And because
the court views the 1991 amendment as “substantive” and
“‘material,’” it divines an “intent” by the legislature to “expand the
types of actions that would survive” to extend beyond “physical
injury.” Supra ¶¶ 30–31. Citing AM. JUR. 2D Statutes § 214, n.3 (2012),
the court concludes that “‘[a]n amendment to a statute making a
material change bespeaks a legislative intent to change the meaning
of the statute.’” Supra ¶ 30.
¶63 That conclusion is tautologically true but analytically
unhelpful. It is hard to argue with the proposition that a “material
change bespeaks a legislative intent to change the meaning of the
statute.” Id. But that proposition begs the key question, which is

2
See BLACK’S LAW DICTIONARY 857 (9th ed. 2009) (defining
“personal injury” as “[a]ny invasion of a personal right, including
mental suffering and false imprisonment”); UTAH CODE § 63G-7-
102(6) (stating that “Personal Injury” for purposes of Utah’s
Government Immunity Act “means an injury of any kind other than
property damage”).

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 GRESSMAN v. STATE
JUSTICE LEE, dissenting

whether the change under review is in fact material. Some legislative
amendments are not. Some are aimed only at clarification, or at
stylistic or semantic refinement. See, e.g., Rahofy v. Steadman, 2012 UT
70, ¶ 12 n.12, 289 P.3d 534 (“stylistic changes” made in legislative
amendments had “no substantive effect on our analysis”). And those
kinds of changes are deemed not to “bespeak a legislative intent to
change the meaning of the statute.” See AM. JUR. 2D Statutes § 214, n.3
(2012) (noting a caveat for a “clarifying” amendment). So the
question is whether the 1991 amendment was a material one or a
mere clarification.
¶64 I view it in the latter sense. And my conclusion is no mere
assumption. Supra ¶ 30 (challenging my approach as “nullif[ying]
the legislature’s amendment” and “improperly assum[ing] this
substantive change was an idle act”). It is based on the terms and
context of the 1991 amendment. That amendment’s title is telling. It
is “AN ACT RELATING TO JUDICIAL ACTIONS; AMENDING
THE DEFINITION OF HEIR AND A REFERENCE TO INJURY AS
APPLICABLE TO RECOVERY IN WRONGFUL DEATH ACTIONS;
AND MAKING TECHNICAL CORRECTIONS.” 1991 UTAH LAWS
401. Thus, the amendment expressly encompassed changes the
legislature specifically flagged as “technical corrections.” And the
change in question—replacing “physical injury” with “personal
injury”—falls clearly in that category, as it has nothing to do with
the other amendments (to provisions other than the survival
statute3) designated as more material.
¶65 Moreover, the full range of changes made to the survival
statute in 1991 are, on their face, obviously technical (non-material)
alterations. The changes in question were these:
(1)(a) Causes of action arising out of [physical] personal
injury to the person or death[,] caused by the wrongful
act or negligence of another [, shall] do not abate upon
the death of the wrongdoer or the injured person [, and
the]. The injured person or the personal representatives
or heirs [one meeting death, as above stated, shall] the
person who died have a cause of action against the

3
The provisions altered by the 1991 amendment included not just
the survival statute but also substantial amendments to the
definition of “heir” under UTAH CODE § 78-11-6.5. 1991 UTAH LAWS
401 (also amending, among other things, the general definition of
“heir” as it applied to the rights of an heir or personal representative
to sue and be sued and to successive actions on the same contract).

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 Cite as: 2013 UT 63
JUSTICE LEE, dissenting

wrongdoer for special and general damages[. However,
if], subject to Subsection (1)(b).
1991 UTAH LAWS 401. Thus, the only other changes to this provision
were to delete a comma; to replace “shall” with “do”; to break the
provision into separate sentences and sub-sections; and to replace
“one meeting death, as above stated” with “the person who died.”
¶66 None of these changes can conceivably be deemed to
“bespeak[] a legislative intent to change the meaning of the statute.”
Supra ¶ 30. For me this confirms what is already apparent in the title
of the amendment—that the changes to the survival statute (one of
several provisions being altered by the 1991 amendment) are mere
“technical corrections,” not material alterations.4
¶67 I therefore see no basis for reading the 1991 amendment to
the survival statute to “evidence[] an intent to expand the types of
actions that would survive” a claimant’s death. Supra ¶ 31. The
definition of “personal injury” in the government immunity act,
cited by the majority, supra ¶ 32 (citing UTAH CODE § 63-30-2(6)
(1989)), seems quite unhelpful. As noted above, the quoted term
may carry different meanings in different contexts, and in any event
the operative term in the survival statute is not “personal injury” but
“personal injury to a person,” UTAH CODE § 78B-3-107(1)(a). That
phrase cannot properly be interpreted to invoke a definition of a
different phrase in a different statute. And the definition of that
different phrase in that different statute cannot reasonably be
deemed to “indicate[] that [the legislature] intended to alter the

4
The cases cited in the Am. Jur. reference cited by the majority,
People v. Mohammed, 162 Cal. App. 4th 920, 932 (6th Dist. 2008);
Bigelow Group, Inc. v. Rickert, 877 N.E.2d 1171 (Ill. App. Ct. 2007), are
distinguishable. See AM. JUR. 2D Statutes § 214, n.3 (2012) (citing these
cases for the proposition that a “material change bespeaks a
legislative intent to change the meaning of the statute”). They
involved statutory amendments that are so obviously substantive
and material that no one could conceivably read them as making
mere technical corrections or stylistic changes. See Mohammed, 162
Cal. App. 4th at 932 (statute amended to add new requirement that
a defendant released from custody on his own recognizance must
file a signed release agreement); Bigelow Group, 877 N.E.2d at 1175
(tax statute amended from “the collector shall receive taxes on part
of any property . . .”, to “the collector may receive taxes on part of
any property . . .”).

27
 GRESSMAN v. STATE
JUSTICE LEE, dissenting

meaning of the survival statute when it changed ‘physical injury’ to
‘personal injury.’” Supra ¶ 32.
¶68 The majority’s only other ground for its construction is the
assertion that, “[i]f anything, the repetition of the root word ‘person’
in the phrase ‘personal injury to a person’” emphasizes a legislative
intent to include “all personal tort claims in the survival statute.”
Supra ¶ 33. But that is just a rejection of the canon of independent
meaning, cloaked in the court’s assurance as to the legislature’s real
intent. That is insufficient. We should give the operative canon—the
presumption against surplusage—its usual effect. The presumption
is certainly rebuttable, but the rebuttal must be found in something
more than the court’s take-our-word-for-it assurance of legislative
intent.
¶69 A multi-member, bi-partisan body of legislators has no
discoverable intent—except to enact the terms of its legislative work-
product. Legislators work collaboratively—sometimes
combatively—toward a statute representing a majority of votes and,
inevitably, a compromise. We cannot possibly discern the body’s
collective intent in arriving at that compromise. There is no such
thing.5 Instead, the reality reflects a range of intentions among a
patchwork of legislative factions—of those who preferred a stronger
bill, of others who wanted a weaker one (or none at all), and perhaps
of some who had a different goal altogether (through logrolling) or
even no sense of the matter at all (due to apathy).
¶70 We ignore the nuances of this process when we claim to
know the real intentions of the legislature. And we upset the

5
See ROBERT E. KEETON, KEETON ON JUDGING IN THE AMERICAN
LEGAL SYSTEM 207, 210–11 (1999) (“[L]egislative intent . . . is a legal
fiction. Only a natural person can have a state of mind such as intent.
No legal entity such as a legislature can have an “intent” in a strictly
factual sense.”); Charles Fried, Sonnet LXV and the “Black Ink” of the
Framers’ Intention, 100 HARV. L. REV. 751, 759 (1987) (“[W]ords and
text are chosen to embody intentions and thus replace inquiries into
subjective mental states. In short, the text is the intention of the
authors or of the framers.”) (emphasis in original); JOHN CHIPMAN
GRAY, THE NATURE AND SOURCES OF THE LAW 170 (2d ed. 1921)
(“[T]he psychic transference of the thought of an artificial body must
stagger the most advanced of ghost hunters”).

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 Cite as: 2013 UT 63
JUSTICE LEE, dissenting

compromise inherent in legislation when we attribute an intention to
do something other than to enact the text of a statute.6
¶71 I see no basis for an inference of the legislature’s intent to
include “all personal tort claims in the survival statute.” Supra ¶ 33.
The only intent that I have the capacity to discern is in the text of the
statute. And that text appears to me to provide for survival of only
a subset of “personal injury” claims—of those involving injury “to
a person” in the sense of physical injury.
¶72 Only that reading gives effect to each term of the statute.
The court’s broader construction focuses myopically on “personal
injury” without regard to the qualifying phrase “to a
person”—openly “conflat[ing] these two phrases.” Supra ¶ 33. Thus,
it is the majority’s reading that would “nullif[y]” and render “idle”
the legislature’s pronouncement. See supra ¶ 30. The legislature did
not amend the statute simply to save “personal injury” actions; it
amended it to save actions arising out of “personal injury to a
person.” I would reject the majority’s construction and embrace
mine on the ground that only mine preserves independent meaning
for both clauses.7
¶73 I would accordingly affirm the dismissal of Gressman’s
PCRA claim. That claim is not for physical injury to a person. It is a
claim for “personal injury” (not injury to property), but not for

6
See Frank H. Easterbrook, What Does Legislative History Tell Us?,
66 CHI.-KENT L. REV. 441, 446–47 (1990) (“Statutes are drafted by
multiple persons, often with conflicting objectives. There will not be
a single objective, and discretionary interpretation favors some
members of the winning coalition over others.”); Frank H.
Easterbrook, Text, History, and Structure in Statutory Interpretation, 17
HARV. J.L. & PUB. POL’Y 61, 68 (1994) (“Peer inside the heads of
legislators and you will find a hodgepodge.”).
7
My approach is also in line with our precedent. Although we
have not previously interpreted the statutory language, we have
applied it with some regularity, and I am aware of no case where
this court has employed the statute to save any claims except those
involving physical injury to a person. See Meads v. Dibblee, 350 P.2d
853, 854, 857–58 (Utah 1960) (involving claims arising from the death
of a woman injured in a car accident); In re Estate of Leigh, 313 P.2d
455, 455, 458 (Utah 1957) (involving claims of physical injury
stemming from a car accident); Fretz v. Anderson (Fretz I), 300 P.2d
642, 645, 650–51 (Utah 1956) (same), overruled on other grounds by
Fretz v. Anderson (Fretz II), 308 P.2d 948 (Utah 1957).

29
 GRESSMAN v. STATE
JUSTICE LEE, dissenting

“personal injury to a person,” as it does not seek compensation for
any physical harm to a claimant’s body.8 I would therefore hold that
Gressman’s claim abated on his death, and affirm on that ground.
____________

8
I recognize, of course, that in some contexts “the law recognizes
that a person is more than a physical conglomeration of tissue and
bones.” Supra ¶ 34. But that is hardly the universal legal sense of this
term. The notion of “person” is among the broadest, most wide-
ranging terms in the law. See BLACK’S LAW DICTIONARY 1257–58 (9th
ed. 2009) (providing no less than 30 definitions and legal terms of art
applicable to the word “person”). Surely the court does not mean to
exclude the possibility that injury “to a person” may sometimes
mean physical injury to a person’s body. It does at least sometimes.
See Allred, 971 F. Supp. at 1398; see also supra n.1. So it is analytically
unhelpful to identify counter-examples of extra-corporal notions of
“person” in the law.

30