Short answer: In Graves v. North Eastern Services, the Utah Supreme Court decided three things that still shape injury cases against businesses: an employer can owe a direct duty to protect the public from an employee’s intentional harm, a jury does not need an expert to judge ordinary hiring and supervision decisions, and a jury may assign a share of fault to the person who committed an intentional wrong, such as an assault.
That last holding matters most when a business is sued for failing to prevent a crime. The business can ask the jury to put part of the blame, sometimes a large part, on the criminal. Graves is the reason Utah law allows it.
The Facts
The decision is Graves v. North Eastern Services, Inc., 2015 UT 28, filed January 30, 2015.
North Eastern Services (NES) provided in-home care for adults with disabilities, including in a duplex in a Logan housing complex. According to the record, the front door was often left open in summer, staff kept a small pool outside, and neighborhood children were sometimes invited in for candy or to watch television.
A young girl, identified as A.R., was invited in and was sexually assaulted by an NES employee. He later pleaded guilty and was sent to prison. Evidence showed he had recently been fired from a similar job for sexually abusive conduct, that the NES interviewer apparently never asked about his prior employment and had not been trained to, and that the supervising employee on duty had no training on keeping children safe in NES homes.
The girl’s parents sued NES for negligent hiring, training and supervision. They dismissed their claim against the employee himself. NES then filed a notice asking the jury to allocate fault to him anyway.
Holding One: A Direct Duty to Protect the Public
Utah law generally does not require one person to control another person’s conduct. The exception is a “special relationship.” NES argued it had none with A.R., and that the assault was far outside the employee’s job, so it could not be responsible.
The court separated two ideas. Whether an act is within the “scope of employment” controls vicarious liability, meaning an employer answering for an employee’s conduct. The claim here was direct liability for the employer’s own negligence in hiring, training and supervising.
On that question, the court adopted section 317 of the Restatement (Second) of Torts. Under it, an employer must use reasonable care to control an employee acting outside the job, to prevent intentional harm to others, when:
- the employee is on premises the employer possesses, or that the employee can enter only because of the job, or is using the employer’s property; and
- the employer knows or has reason to know it can control the employee, and knows or should know it needs to.
The court stressed the limits. This “makes no employer an insurer,” and it does not reach “every employer who runs a business that ever has children present.” But NES, the court said, had gone “out of its way to encourage the involvement of neighbors,” so the need for control was plain.
Holding Two: No Expert Needed on Ordinary Hiring Decisions
NES also argued the family could not win without an expert to explain the standard of care. The court disagreed. It held that “the question of what a reasonable person would do in performing background checks in hiring and in training and supervising employees is one permissibly resolved on the basis of the knowledge and experience of lay persons.”
That point is still being applied. In Gallegos v. Brewski’s, 2026 UT App 120, decided in August 2026, a patron sued a bar after a bouncer forcibly removed him. Relying on Graves, the Utah Court of Appeals reversed a ruling that had dismissed his negligent hiring, training and supervision claim for lack of expert testimony.
Holding Three: Fault Can Be Assigned to the Attacker
The final question was whether a jury may put a percentage of fault on someone who acted intentionally. Utah’s comparative fault law tells the fact finder to allocate fault to each party and to other people properly identified (Utah Code 78B-5-818). It defines “fault” as “any actionable breach of legal duty, act, or omission proximately causing or contributing to injury or damages” (Utah Code 78B-5-817).
The trial court had refused to let NES allocate fault to its former employee. The Supreme Court reversed. Because “there is no tenable notion of ‘act’ that does not extend to an intentional tort,” intentional wrongs count as fault that can be allocated. The court described this as settling a question Utah justices had split on years earlier in Field v. Boyer Co. (1998).
The vote was 3 to 2. The dissent argued that comparing a business’s carelessness with a deliberate crime makes little sense and weakens the duty to prevent that crime. The majority acknowledged “some sympathy” for that concern, said the statute’s text controlled, and invited the legislature to revisit the issue. The definition of “fault” in 78B-5-817 has not been amended since 2008, and we found no later change to the statute that overrides the decision.
Why This Matters in a Real Case
In Utah, each defendant pays only the share of damages matching its percentage of fault, and defendants cannot seek contribution from one another (Utah Code 78B-5-820). So every percentage point the jury places on an attacker is a point the business does not pay. An attacker may have little money and no insurance that covers a deliberate crime, which can make that share hard to collect.
Graves did not say the attacker’s share must be large. The court wrote that where a defendant “failed to avail itself of numerous opportunities” to prevent an assault, “a factfinder could easily apportion ample responsibility to the defendant’s acts of negligence.” It pointed to cases from other states where juries placed substantial shares of fault on the negligent defendant, in some cases more than on the attacker.
That makes the evidence about the business central: what it knew about the risk, what warnings it ignored, and what it could have done. We explain the kinds of proof that matter in negligent security claims in Utah, and how percentages work in recovering when fault is shared.
Procedure and Limits
Two practical rules come with the holding:
- The defense has to give notice. Fault cannot be allocated to someone who is not a party unless a party timely files a description of the factual and legal basis for it, no later than 90 days before trial (Utah Code 78B-5-821(4)). NES did that here.
- Blaming the victim is a different matter. In a footnote, the court said it “may well be impossible” to apportion fault to the victim of an intentional attack for failing to protect herself, and suggested such an argument might be rejected as absurd.
The court also limited its reading of “fault” to tort claims, not contract or statutory duties. And the duty holding depends on the section 317 elements. A business whose workers never deal with the public may not have reason to know it needs to control them.
Talk to a Utah Injury Attorney
When a business, landlord or care provider failed to prevent an attack, the case turns on what the business knew and when. We handle these cases on a one-third contingency fee, and the firm advances case costs, which are repaid from the recovery.
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