November 29, 2012
Strong & Hanni Obtain Pivotal Ruling
Sadé A. Turner and Andrew D. Day obtained a pivotal ruling on behalf of Strong & Hanni’s client, Avanty LLC in the case of Gvozden v. Avanty, et. al. The Third Judicial District Court ruled that Avanty LLC, as a potentially negligent tortfeasor, could apportion fault to known intentional tortfeasors, Nina Fetic, Dinka Fetic, and Nurudin Fetic pursuant to the Utah Liability Reform Act, Utah Code Ann. §78B-5-817, et seq.
The Gvozden case involves an individual who was physically assaulted while a customer at the Avanty Café by the other customers of the café. While at Avanty, Gvozden and the Fetics became engaged in a 15-20 minute long verbal altercation which escalated to a physical fight. There was some evidence that Avanty may have known that the physical altercation was going to occur before Ms. Gvozden arrived at the café on the day of the incident. Gvozden sued Avanty under various causes of action, all of which were dismissed except for a lone negligence cause of action against Avanty for the alleged breach of the duty to warn Gvozden of the potentially dangerous condition. Avanty filed a Third Party Complaint and a Cross Claim against the Fetics, all known intentional tortfeasors, sounding in apportionment of fault and indemnity for negligent, reckless and/or intentional acts of the Fetics.
In a seven page written opinion, the Court allowed Avanty as a negligent tortfeasor, to apportion fault to the Fetics, known negligent and intentional tortfeasors, interpreting and applying the federal court case of Cortez v. University Mall Shopping Center, 941 F.Supp. 1096 (D. Utah 1996) and the Utah Supreme Court Cases of Field v. Boyer, 952 P.2d 1078 (Utah 1996) and Jedrziewski v. Smith, 128 P.3d 1146 (Utah 2005). Significant distinguishing facts from either Cortez or Field were that the assailants were 1) known and 2) the Plaintiff may have had some degree of responsibility because she had the opportunity to leave Avanty when the situation became heated between herself and the Fetics, but failed to do so.