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
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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

widow PCRA assistance payments—including prejudgment interest.

The State appeals.

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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).

¶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

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Opinion of the Court

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.

In addition, any payments already being made under Section 78B-9-

405 shall cease upon the death of the petitioner.” UTAH CODE § 78B9-402(14) (2012). In 2013, after briefing and oral argument in this

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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)

(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.

1

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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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Opinion of the Court

¶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

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

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

under the previous version of the statute was “the same as [the]

analysis under the . . . amendment”).

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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.

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

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

as “mak[ing] clarifying amendments to factual innocence provisions,” 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

the 2008 versions of the PCRA and the survival statute to decide

whether Mr. Gressman’s factual innocence claim survives his death.

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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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

PCRA—or in its legislative history—to support a holding for

survivability.

5Compare 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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Opinion of the Court

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

TORTS, 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

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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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 twoyear 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

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.

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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)

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.

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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

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

7

 (...continued)

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

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

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).

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¶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 sometimes 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.

8Cf. 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 convicted; 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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GRESSMAN v. STATE

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 convicted.” 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.”).

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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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Opinion of the Court

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.

21
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 fullflowered 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 [] personal injury

to the person or death[] caused by the wrongful act or

negligence of another [] do not abate upon the death of

the wrongdoer or the injured person []. The injured

person or the personal representatives or heirs [] 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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JUSTICE LEE, dissenting

wrongdoer for special and general damages[], 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 workproduct. 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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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 wideranging terms in the law. SeeBLACK’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