concurring:
I concur but write to briefly refute the assertion made in the dissenting opinion that the LRA supersedes the provisions of the Joint Obligations Act (JOA) with respect to tort liability. The LRA abolished only the joint and several liability of “defendants” and made each “defendant” severally liable for his own negligence. “Defendant” is defined in section 78-27-37 as “any person not immune from suit who is claimed to be liable because of fault to any person seeking recovery.” Both the majority and dissenting opinions correctly observe that an employer is not a “defendant” because it is free from fault. But the LRA does not abolish, or even address, joint and several liability in other contexts such as in respondeat superior.
Under the principle of respondeat superi- or, the employer and its employee are jointly and severally liable for the negligent torts of the employee in the course of employment. This well-established rule was not disturbed by the enactment of the LRA. The reach of the LRA was only to abolish the joint and several liability of “defendants.” Thus the dissenting opinion sweeps too broadly when it announces that the LRA completely removed joint and several liability “from Utah’s tort scheme” and rendered the JOA “wholly inapplicable insofar as it purports to relate to tort liability.” It is true that the LRA abolished the joint and several liability of “defendants,” but that does not affect an employer who, being only vicariously liable, is not a “defendant.” There is nothing in the LRA which alters the traditional notions of employer-employee liability, including the principle of respondeat superior.
However, if the dissenting opinion is correct that the LRA completely removed joint and several liability “from Utah’s tort scheme,” an employer is then severally liable because the negligence of the employee is imputed to it. Under section 15-4-4 of the JOA, the release of one several obligor does not discharge a co-obligor against whom rights are reserved in writing.