Board of County Commissioners of Teton County v. Bassett7/25/2000
se of the word "includes" is significant because "includes" generally signifies an intent to enlarge a statute's application, rather than limit it, and it implies the conclusion that there are other items includable, though not specifically enumerated. Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 4, 86 L.Ed. 65 (1941); Paramount Gen. Hosp. Co. v. National Medical Enterprises, Inc., 42 Cal.App.3d 496, 117 Cal.Rptr. 42, 47 (1974); Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1154 (Colo.App. 1998); Schwab v. Ariyoshi, 58 Haw. 25, 564 P.2d 135, 141 (1977); Janssen v. Janssen, 331 N.W.2d 752, 755-56 (Minn. 1983); Zorba Contractors, Inc. v. Housing Authority of City of Newark, 282 N.J.Super. 430, 660 A.2d 550, 551 (1995); Matter of Estate of Corwin, 106 N.M. 316, 742 P.2d 528, 529 (1987); North Carolina Turnpike Authority v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319, 327 (1965); Lucke v. Lucke, 300 N.W.2d 231, 234 (N.D. 1980); Bradshaw v. Joseph, 164 Vt. 154, 666 A.2d 1175, 1176 (1995).
Appellees insist this is not so because the words "reckless," "wanton," "culpable" or "intentional" were stricken from the definition of "fault" in Senate File No. 35 evincing clear intent that they were not included in the definition of "fault" as conduct "in any measure negligent." This argument reads more into the deletion than we think justified. It leaves unexplained the legislature's expansion of "negligence" to "fault" which includes conduct "in any measure negligent." It may be as reasonable to attribute the deletions to a belief that the deleted words are subsumed in the phrase "in any measure negligent" as it would be to attribute them to other motives.
As the language of the statute clearly is broad enough to encompass willful and wanton conduct, we must determine whether the legislature intended such inclusion. We begin with the proposition that when the legislature amends a statute, some change in the existing state of the law was intended and that the court should endeavor to make such amendment effective. Brown v. State, 590 P.2d 1312, 1314 (Wyo. 1979); DeHerrera v. Herrera, 565 P.2d 479, 483 (Wyo. 1977). Obviously, the amendment to the statute changed the law to compare strict and products liability with negligent conduct, but the changes go beyond that. Defining "fault" as broader than the conduct explicitly stated evidences an intention to compare all species of culpable conduct. We have a duty to effectuate this intent, and therefore, hold that willful conduct must be compared with negligence under Wyo. Stat. Ann § 1-1-109.
Application of Wyo. Stat. Ann § 1-1-109 in this case to include Ortega as an actor is also consistent with the other purpose of the statute, the elimination of joint and several liability. Subsection (e) provides that " ach defendant is liable only to the extent of that defendant's proportion of the total fault * * *." To leave an actor such as Ortega out of the apportionment calculation exposes the remaining appellants to the possibility that they will be held to answer for his misconduct. Such a result does act as an incentive to those with a duty to protect against intentional harm, and " number of courts therefore have concluded that persons who negligently fail to protect against the specific risk of an intentional tort should bear the risk that the intentional tortfeasor is insolvent." Restatement (Third) of Torts § 24 cmt. b at 164 (Proposed Final Draft (Revised) 3/22/99). The statutory elimination of joint and several liability, however, forecloses our consideration of the merits of such a policy. The legislature has clearly opted to relieve joint tortfeasors of liability beyond that for which they bear prop
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