Gardner v. SPX Corporation

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

Ginger Gardner, individually, and as ) OPINION
guardian of her minor child, S.L.G.; )
Heather Ann Gardner; and Joshua Lee ) Case No. 20090768‐CA
Gardner, )
)
Plaintiffs and Appellants, ) FILED
) (February 16, 2012)
v. )
) 2012 UT App 45
SPX Corporation; HOJ Engineering & )
Sales Co., Inc.; Schneider Electric )
Holding, Inc.; and Schneider Canada, )
Inc., )
)
Defendants and Appellees. )

‐‐‐‐‐

Third District, Salt Lake Department, 040922873
The Honorable Robert P. Faust
The Honorable Timothy R. Hanson

Attorneys: Robert G. Gilchrist and Jordan P. Kendell, Salt Lake City, for Appellants
Kenneth W. Yeates, E. Scott Savage, Kyle C. Thompson, Katherine E.
Venti, James T. Blanch, and Zack L. Winzeler, Salt Lake City; and
Joseph J. Joyce and Ryan J. Schriever, South Jordan, for Appellees

‐‐‐‐‐

Before Judges McHugh, Voros, and Davis.

VOROS, Associate Presiding Judge:

¶1 Appellant Ginger Gardner, with her children (collectively, Gardner), challenges
the trial court’s ruling dismissing her claims against Appellee Schneider Canada for
lack of personal jurisdiction. She also challenges a jury instruction on superseding
cause with respect to claims against Appellees SPX Corporation and HOJ Engineering &
Sales Co. We affirm.

BACKGROUND

¶2 In November 2002, Gardner’s husband, Aaron Gardner, was working as a
delivery driver for Sysco Intermountain Foods, Inc. While he was working at the
loading dock in Sysco’s West Jordan facility, a vertical dock leveler unexpectedly fell,
killing him.1

¶3 Gardner alleged that a component of the dock leveler, a control box, was
defective. The control box was designed by Schneider Canada, a Canadian company.
Square D Company, a Delaware corporation whose principal place of business is in
Illinois, has an ownership interest in Schneider Canada. However, Square D and
Schneider Canada are separate and distinct legal entities. Square D maintains an office
in Utah.

¶4 Schneider Canada designed and manufactured the control boxes in question
based on specifications provided by the Canadian division of a company called Serco.
Serco is the predecessor‐in‐interest of SPX. Schneider Canada sold hundreds of control
boxes in Canada to a company called Guillevin International, Inc. Guillevin sold the
control boxes in Canada to Serco’s Canadian division, which in turn sold the control
boxes to its affiliate, SPX, in the United States. Over the course of the business
relationship, SPX and/or Serco purchased “hundreds, if not thousands” of control boxes
from Schneider Canada or its distributor, Guillevin.

¶5 Schneider Canada knew that some of the control boxes it manufactured would
be installed in dock levelers destined for the United States market, but it did not know

1
The trial court entered findings of fact in support of its order dismissing
Gardner’s claims against Schneider Canada. Gardner does not challenge those factual
findings on appeal. We recite the facts accordingly.

20090768‐CA 2
the states in which the dock levelers would be installed. Specifically, no evidence
shows that Schneider Canada knew that any of its control boxes would be incorporated
into dock levelers used in Utah. Sysco purchased forty‐four such dock levelers. HOJ
installed the dock leveler containing the control box at the Sysco facility where
Gardner’s husband was killed.

¶6 Gardner sued SPX, alleging negligence, strict liability, failure to warn, and breach
of warranty. She sued HOJ, alleging negligence, failure to warn, and breach of
warranty. And she sued Schneider Canada, alleging negligence, strict liability, failure
to warn, and breach of warranty.

¶7 Before trial, Schneider Canada filed a motion to dismiss for lack of personal
jurisdiction. Gardner and SPX both opposed the motion. The trial court granted
Schneider Canada’s motion to dismiss, ruling that (1) Schneider Canada was “not
conducting substantial and continuous local activity in the State of Utah sufficient to
meet the requirements for . . . general jurisdiction”; (2) Schneider Canada “does not
have minimum contacts with Utah such that the maintenance of the suit against it does
not offend traditional notions of fair play and substantial justice”; (3) Schneider
Canada’s having manufactured the control box in Canada and sold it to a Canadian
distributor for installation in a dock leveler manufactured in Canada “is not activity
sufficient to show that Schneider Canada purposefully availed itself of conducting
business in the State of Utah”; (4) “[m]ere awareness by Schneider Canada that some of
its control boxes would be placed in dock levelers sold and used in the United States is
not sufficient to confer jurisdiction over Schneider Canada in the State of Utah”; (5)
Schneider Canada’s having placed the control box into the stream of commerce is not
sufficient to confer jurisdiction over Schneider Canada in Utah; and (6) “Schneider
Canada’s relationship with Square D Company does not establish jurisdiction over
Schneider Canada.”

¶8 The case proceeded to trial against SPX and HOJ. The jury returned a special
verdict in which it determined that SPX was not negligent in the design of the control
box, that SPX did not manufacture and sell a product containing a design defect that
made the product unreasonably dangerous, and that HOJ was not negligent. As
instructed on the special verdict form, the jury left undecided questions of proximate
cause and allocation of fault.

20090768‐CA 3
 ISSUES AND STANDARDS OF REVIEW

¶9 Gardner advances two claims of error on appeal. First, she contends that the trial
court erred in dismissing her claims against Schneider Canada for lack of personal
jurisdiction. “Trial courts ‘may determine jurisdiction on affidavits alone, permit
discovery, or hold an evidentiary hearing.’” Phone Directories Co., v. Henderson, 2000 UT
64, ¶ 2, 8 P.3d 256 (quoting Anderson v. American Soc’y of Plastic & Reconstructive
Surgeons, 807 P.2d 825, 827 (Utah 1990)). Where, as here, the trial court determines
personal jurisdiction on documentary evidence alone, we review its ruling for
correctness. See id. (citing Arguello v. Industrial Woodworking Machine Co., 838 P.2d 1120,
1121 (Utah 1992)).

¶10 In addition, Gardner contends that the trial court erred in instructing the jury on
superseding cause. Challenges to jury instructions are reviewed for correctness.
Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 22, 221 P.3d 256.

ANALYSIS

I. Personal Jurisdiction

¶11 Gardner contends that the trial court erred in dismissing her claims against
Schneider Canada for lack of personal jurisdiction. She argues that Schneider Canada
knew that the majority of SPX’s dock levelers were sold to the U.S. market, and that in
fact “there was a regular and anticipated flow of products from the manufacturer
(Schneider Canada) to the seller (SPX) to the retail user, (Sysco) in Utah.” She also
argues that, as “part of a large global conglomerate that consistently markets and sells
its products throughout the United States and Utah,” Schneider Canada “should have
reasonably anticipated being haled into court in Utah.” Schneider Canada’s response is
two‐fold. First, it argues that the trial court properly dismissed the claims for lack of
personal jurisdiction. Second, it argues that Gardner’s claims against Schneider Canada
were rendered moot by the jury’s verdict in favor of SPX and HOJ.

¶12 “The authority of the state to hale a nonresident into a state court hinges on the
ability to establish personal jurisdiction.” Pohl, Inc. of Am. v. Webelhuth, 2008 UT 89, ¶ 9,
201 P.3d 944. “There are two categories of personal jurisdiction: specific jurisdiction
and general jurisdiction.” Id. “General personal jurisdiction permits a court to exercise

20090768‐CA 4
power over a defendant without regard to the subject of the claim asserted and is
dependent on a showing that the defendant conducted substantial and continuous local
activity in the forum state.” Id. (citation and internal quotation marks omitted).
Gardner does not claim that Schneider Canada is subject to general jurisdiction in Utah.

¶13 “[S]pecific personal jurisdiction gives a court power over a defendant only with
respect to claims arising out of the particular activities of the defendant in the forum
state and only if the defendant has certain minimum local contacts.” Id. ¶ 10
(alternation in original) (citation and internal quotation marks omitted). Determining
specific jurisdiction involves a two‐part inquiry: “First, do [the plaintiff’s] claims arise
from one of the activities listed in the statute? And second, are defendant’s contacts
with this forum sufficient to satisfy the due process clause of the fourteenth amendment
if the trial court exercises jurisdiction?” Anderson, 807 P.2d at 826. “If [the long‐arm
statute] does not permit jurisdiction, then the inquiry is ended; if it does, then the
question is whether the statute’s reach comports with due process.” Arguello, 838 P.2d at
1122 (Utah 1992).

¶14 The Utah long‐arm statute provides that a nonresident may become subject to
the jurisdiction of Utah courts by transacting business or causing injury within the state:

[A]ny person . . . whether or not a citizen or resident of this
state, who, in person or through an agent, does any of the
following enumerated acts is subject to the jurisdiction of the
courts of this state as to any claim arising out of or related to:
(1) the transaction of any business within this state;
[or]
(3) the causing of any injury within this state whether
tortious or by breach of warranty.

Utah Code Ann. § 78B‐3‐205 (2008).2 Here, the trial court ruled that “the facts in this
case indicate that Schneider Canada’s actions may fulfill one or some” of the

2
The section was renumbered without substantial amendment in 2008. See Utah
Code Ann. § 78B‐3‐205 amend. notes (2008). At the time of trial it appeared at Utah
Code section 78‐27‐24. See Utah Code Ann. § 78‐27‐24 (1998). We cite to the most
current version for the convenience of the reader.

20090768‐CA 5
requirements of the long‐arm statute. Schneider Canada cursorily challenges this ruling
on the ground that the jury ultimately found that the dock leveler did not contain a
design defect that made it unreasonably dangerous. The premise of this argument is
that, where long‐arm jurisdiction depends on a defendant having caused an injury
within this state, a verdict of no cause of action nullifies jurisdiction. Schneider Canada
offers no support for this premise, and we question it. See MFS Series Trust III v.
Grainger, 2004 UT 61, ¶ 21, 96 P.3d 927 (“‘Liability and jurisdiction are independent.
Liability depends on the relationship between the plaintiff and the defendants and
between the individual defendants; jurisdiction depends only upon each defendant’s
relationship with the forum.’” (quoting Sher v. Johnson, 911 F.2d 1357, 1365 (9th Cir.
1990))).

¶15 In any event, courts often go directly to the due process prong of the analysis:

[W]e often assume the application of the statute—and go
straight to the due process issue—because our legislature
has directed us to construe it ‘so as to assert jurisdiction over
nonresident defendants to the fullest extent permitted by the
due process clause of the Fourteenth Amendment to the
United States Constitution’ . . . .”

Anderson v. American Soc’y of Plastic and Reconstructive Surgeons, 807 P.2d 825, 827 (Utah
1990) (quoting Utah Code Ann. § 78‐27‐22 (1987)). We follow this course here, and so
proceed to the next step in the analysis.

¶16 “Federal due process requires that in order to subject a defendant to specific
personal jurisdiction, there must be ‘certain minimum contacts with [the forum] such
that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice.’” Pohl, Inc. of America v. Webelhuth, 2008 UT 89, ¶ 23, 201 P.3d 944
(quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). As a general rule,
the exercise of jurisdiction is lawful where the defendant “purposefully avails itself of
the privilege of conducting activities within the forum State, thus invoking the benefits
and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958); accord Parry v.
Ernst Home Cntr. Corp., 779 P.2d 659, 665 (Utah 1989). The contacts between the
defendant and the forum state must be such that the defendant “should reasonably
anticipate being haled into court there.” World–Wide Volkswagen v. Woodson, 444 U.S.
286, 297 (1980); accord MFS Series Trust III, 2004 UT 61 at ¶ 10.

20090768‐CA 6
¶17 However, “minimum requirements inherent in the concept of ‘fair play and
substantial justice’ may defeat the reasonableness of jurisdiction even if the defendant
has purposefully engaged in forum activities.” Burger King Corp. v. Rudzewicz, 471 U.S.
462, 477–78 (1985) (quoting World‐Wide Volkswagen Corp., 444 U.S. at 292); accord Pohl,
2008 UT 89, ¶ 23 n.35. Moreover, “‘[t]he unique burdens placed upon one who must
defend oneself in a foreign legal system should have significant weight in assessing the
reasonableness of stretching the long arm of personal jurisdiction over national
borders.’” Parry, 779 P.2d at 662 (quoting Asahi Metal Industry Co. v. Superior Court, 480
U.S. 102, 114 (1987)).

¶18 “Hence if the sale of a product of a manufacturer or distributor . . . is not simply
an isolated occurrence, but arises from the efforts of the manufacturer or distributor to
serve[,] directly or indirectly, the market for its product in other States, it is not
unreasonable to subject it to suit in one of those States if its allegedly defective
merchandise has there been the source of injury to its owner or to others.” World‐Wide
Volkswagen Corp., 444 U.S. at 297; accord Arguello v. Industrial Woodworking Machine Co.,
838 P.2d 1120, 1124 (Utah 1992). “Put simply, the defendant must have taken deliberate
steps to serve the forum state market with the product that is the subject of the suit
before being susceptible to jurisdiction in that state.” Arguello, 838 P.2d at 1124.

¶19 The most instructive Utah case is Parry v. Ernst Home Center Corp., 779 P.2d 659
(Utah 1989). In Parry, the plaintiff was injured in Utah while splitting logs with a maul
manufactured by Hirota Tekko K.K., a Japanese manufacturer. See id. at 660. Hirota
had sold the maul to Okada Hardware in Japan for export to the United States. See id.
Our supreme court upheld a dismissal for lack of personal jurisdiction over the
Japanese defendants. See id. at 661–68.

¶20 Several factors worked against jurisdiction. “Hirota and Okada had not taken
active steps to sell [their] product in Utah.” Id. at 666. “They were informed of
potential sales to the western United States, but they neither came to Utah nor sent sales
representatives to Utah to facilitate the marketing and purchase of their product.” Id.
“Further, the record d[id] not provide the number or percentage of mauls manufactured
which were actually sold in Utah.” Id. Finally, the Japanese defendants had not
advertised in Utah. Id. In short, the record did not show “special designing for Utah’s
market, advertising in Utah, establishing channels for providing regular advice to
customers in Utah, or marketing the product through a distributor who has agreed to
act as a sales agent in Utah.” Id. Thus, even “an intentional and knowing distribution

20090768‐CA 7
of the product in the western United States is not necessarily sufficient to satisfy the
‘minimum contacts’ requirement.” Id. at 667.

¶21 The United States Supreme Court recently addressed this issue in J. McIntyre
Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780 (2011).3 The J. McIntyre case involved a
products‐liability suit filed by a plaintiff who seriously injured his hand while using a
scrap metal machine manufactured by J. McIntyre. See id. The accident occurred in
New Jersey, but the machine was manufactured in England by an English firm. That
firm neither marketed goods in New Jersey nor shipped them there. Id. at 2786.
J. McIntyre’s machines were sold in the United States by an independent distributor,
who took some of the machines on consignment. J. McIntyre officials attended annual
conventions to advertise its machines, but had attended no conventions in New Jersey.
No more than four—and possibly as few as one—of its machines ended up in New
Jersey. Id.

¶22 The appeal produced three opinions: a plurality opinion representing the views
of four justices, a concurring opinion representing the views of two justices, and a
dissenting opinion representing the views of three justices. The Court splintered on the
question of whether, in products liability cases, and especially products liability cases
involving foreign defendants, the United States is more properly regarded as “a single
market,” id. at 2801 (Ginsburg, J., dissenting), or fifty separate markets, each subject to a
different “sovereign authority,” id. at 2788 (plurality opinion).

¶23 The plurality concluded that jurisdiction over J. McIntyre in the state courts of
New Jersey was incompatible with principles of due process. They advocated a
“forum‐by‐forum, or sovereign‐by‐sovereign,” approach. Id. at 2789. The plurality
would have jettisoned “the stream‐of‐commerce metaphor” in favor of a rule more
sharply focused on a defendant’s having manifested an intent to invoke or benefit from
the protection of the forum state’s laws. See id. at 2791. The plurality opinion

3
We commend counsel for Schneider Canada for bringing this case to our
attention after oral argument pursuant to rule 24(j) of the Utah Rules of Appellate
Procedure. See Utah R. App. P. 24(j) (“When pertinent and significant authorities come
to the attention of a party after that party’s brief has been filed, or after oral argument
but before decision, a party may promptly advise the clerk of the appellate court, by
letter setting forth the citations.”).

20090768‐CA 8
emphasized the “purposefully avails” language of Hansen v. Denckla, 357 U.S. 235, 253
(1985). See J. McIntyre, 131 S.Ct. at 2785, 2787–88, 2790 (plurality opinion). Thus, the
plurality stated, “The principal inquiry in cases of this sort is whether the defendant’s
activities manifest an intention to submit to the power of a sovereign.” Id. at 2788.
Under its analysis, the facts of the case “may reveal an intent to serve the U.S. market,
but they do not show that J. McIntyre purposefully availed itself of the New Jersey
market.” Id. at 2790. Accordingly, they concluded that New Jersey could not
constitutionally exert jurisdiction over J. McIntyre. See id. at 2791.

¶24 In the view of the two concurring justices, the case was readily decided under
existing precedent. See id. at 2791 (Breyer, J., concurring in the judgment). They agreed
that personal jurisdiction in a products liability case is not established merely by
showing that the defendant “knows or reasonably should know that its products are
distributed through a nation‐wide distribution system that might lead to those products
being sold in any of the fifty states.” Id. at 2793 (citation and internal quotation marks
omitted). The facts of J. McIntyre showed no regular flow or regular course of sales in
New Jersey; no special state‐related design, advertising, advice, or marketing; and no
specific effort to sell in New Jersey. See id. at 2792. Hence, the concurring justices, like
the plurality, found no jurisdiction. See id. at 2791.

¶25 Three dissenters would have sustained personal jurisdiction based on a “single
market” analysis. J. McIntyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780, 2801 (2011)
(Ginsburg, J., dissenting). They saw the case as typical of modern international
commerce: “A foreign‐country manufacturer engages a U.S. company to promote and
distribute the manufacturer’s products, not in any particular State, but anywhere and
everywhere in the United States the distributor can attract purchasers. The product
proves defective and injures a user in the State where the user lives or works.” Id. at
2799. In their view, “McIntyre UK, by engaging McIntyre America to promote and sell
its machines in the United States, ‘purposefully availed itself’ of the United States
market nationwide, not a market in a single State or a discrete collection of States.” Id.
at 2801. “Like most foreign manufacturers,” they reasoned, J. McIntyre “was concerned
not with the prospect of suit in State X as opposed to State Y, but rather with its
subjection to suit anywhere in the United States.” Id. Hence, the dissent concluded that
jurisdiction was proper. See id. at 2804.

¶26 We now consider the case at bar in light of these authorities. Gardner argues that
Schneider Canada and SPX had a long‐standing relationship, that “Schneider Canada

20090768‐CA 9
knew that the majority of SPX’s vertical dock levelers were sold and installed
throughout the United States, and [that] Schneider Canada had made at least one sales
presentation at SPX’s offices in Dallas, Texas.” In addition, she argues that the sale of
this particular control box was not an isolated occurrence, but part of a marketing
program by SPX (though not Schneider Canada) for sale of machinery in, among other
states, Utah. However, Gardner does not contend that the record demonstrates that
Schneider Canada took deliberate steps to serve the Utah market or even that it knew
that a control box it manufactured would end up in Utah.

¶27 We conclude that, under the foregoing authorities, Schneider Canada lacks the
requisite minimum contacts with the State of Utah. Schneider Canada is located and
operates in Canada; it maintains no offices, owns no property, and has no employees in
Utah. Schneider Canada manufactured the control box in question in Canada and sold
it in Canada to a Canadian distributor. Like the Japanese defendants in Parry and the
English defendant in J. McIntyre, Schneider Canada did not purposefully avail itself of
the Utah market. It did not take active steps to sell its products in Utah. Although it
was aware of potential sales in the United States, it neither advertised in Utah nor sent
sales representatives to Utah. In short, as in Parry, the record does not show “special
designing for Utah’s market, advertising in Utah, establishing channels for providing
regular advice to customers in Utah, or marketing the product through a distributor
who has agreed to act as a sales agent in Utah.” Parry v. Ernst Home Center Corp., 779
P.2d 659, 666 (Utah 1989). And although this was not as isolated a sale as occurred in J.
McIntyre, the record here does not show “special state‐related design, advertising,
advice, marketing, or . . . specific effort by the [Canadian] Manufacturer to sell in
[Utah].” See J. McIntyre Machinery, Ltd., 131 S.Ct. at 2792 (Breyer, J., concurring).

¶28 In addition, Schneider Canada’s “knowledge of the mere possibility that its
product might be taken into a region of the country in which Utah is located is not
sufficient” to subject it to Utah’s jurisdiction. See Parry, 779 P.2d at 667 (quoting Fidelity
& Casualty Co. of N.Y. v. Philadelphia Resins Corp., 766 F.2d 440, 447 (10th Cir. 1985)).
Finally, unlike J. McIntyre, Schneider Canada “was a component‐part manufacturer
with ‘little control over the final destination of its products once they were delivered
into the stream of commerce.’” See J. McIntyre, 131 S. Ct. at 2803 (Ginsburg, J.,
dissenting) (quoting A. Uberti & C. v. Leonardo, 892 P.2d 1354, 1361 (Ariz. 1995)).

¶29 Because we conclude that, under controlling precedent, Schneider Canada lacked
minimum contacts with the State of Utah, we need not examine whether principles of

20090768‐CA 10
“‘fair play and substantial justice’ . . . defeat the reasonableness of jurisdiction even if
the defendant has purposefully engaged in forum activities.” See Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 477–78 (1985); accord Pohl Inc., of Am. v. Webelhuth, 2008 UT 89,
¶ 23 n.35, 201 P.3d 944. Nor need we evaluate “[t]he unique burdens placed upon one
who must defend oneself in a foreign legal system . . .” Parry, 779 P.2d at 662 (quoting
Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 114 (1987)).4

¶30 Finally, Schneider Canada’s argument that the jurisdictional question was
rendered moot by the jury’s verdict is itself rendered moot by our decision on the
question of jurisdiction.

II. Superseding Cause

¶31 In her second claim of error, Gardner challenges jury instruction No. 48, which
instructed the jury on superseding cause.

¶32 At trial, Gardner opposed the instruction on the ground that Utah’s comparative
negligence scheme has displaced the doctrine of superseding cause, and that there was
no evidence of intentional conduct on the part of Sysco. However, Gardner submitted a
proposed jury instruction on superseding cause in the event the trial court decided to
instruct the jury on that issue. Gardner’s proposed jury instruction tracked CV210, the
superseding cause instruction found in the Model Utah Jury Instructions. CV210
includes two variants: alternative A requires that the intervening act be intentional;
alternative B requires only that the intervening act be negligent. Gardner’s proposed
instruction incorporated alternative A.

4
Gardner also contends that, in looking at whether exerting jurisdiction over
Schneider Canada would offend traditional notions of fair play and substantial justice,
we should consider that Schneider Canada is a member of a “global conglomerate”
whose activities reach well into Utah. However, every case cited by Gardner in support
of this argument involved corporations “that are essentially alter egos of each other,”
and Gardner acknowledges that she is not asserting an alter ego theory here. For this
reason, and because we find the requisite minimum contacts lacking in any event, we
do not address this argument further.

20090768‐CA 11
¶33 The trial court gave the following instruction, which tracks Model Utah Jury
Instruction CV210, alternative A—and thus Gardner’s conditionally proposed
instruction—in all material respects:

Defendants claim that [they are] not liable for the Plaintiffs’
harm because of the later fault of another party. To avoid
liability for the harm, Defendants must prove all of the
following:

(1) that the other party’s conduct occurred after
Defendants’ conduct;
(2) that a reasonable person would consider the other
party’s conduct extraordinary;
(3) that Defendants could not foresee that the other
party would act in an intentional manner; and
(4) that the harm resulting from the other party’s
conduct was different from the kind of harm that could have
been reasonably expected from Defendants’ conduct.

¶34 On appeal, Gardner contends that Utah’s comparative negligence statute,
enacted in 1986, supplanted the doctrine of superseding cause. See Utah Code Ann.
§ 78‐27‐38 (1986). She argues that, under our comparative negligence regime, the jury
should have been required to “compare and allocate the fault (i.e., negligence) of SPX,
HOJ, and Sysco,” and should not have been allowed to view “Sysco’s fault [as] a
potential superseding cause wiping out SPX’s and HOJ’s fault.” SPX and HOJ respond
that (1) the doctrine of superseding cause remains the law in Utah, (2) any issue with
respect to the challenged jury instruction is moot because the jury found that these
defendants were not negligent, (3) any error in the jury instruction was invited, and (4)
any error in the jury instruction was not prejudicial.

¶35 To begin with, we are skeptical of Gardner’s claim that the comparative
negligence statute supplanted the doctrine of superseding cause. Notwithstanding the
enactment of the comparative negligence statute in 1986, Utah courts routinely refer to
and apply the doctrine in negligence cases. See, e.g., Hess v. Canberra Development Co.,
LC, 2011 UT 22, ¶ 4, 254 P.3d 161 (“[B]ecause intervening and superseding causes are

20090768‐CA 12
not a defense to intentional torts, we hold that the district court did not err when it
declined to give the jury the Developers’ proposed instruction.”); Magana v. Dave Roth
Constr., 2009 UT 45, ¶ 27, 215 P.3d 143 (“An event is the legal or proximate cause of the
plaintiff’s injury when the event in natural and continuous sequence, (unbroken by an
efficient intervening cause), produces the injury and without which the result would
not have occurred.” (internal quotation marks omitted)); McCorvey v. Utah State Dept. of
Transp., 868 P.2d 41, 45 (Utah 1993) (“In this case, the jury was properly instructed on
the issue of superseding cause[.]”); Steffensen v. Smith’s Mgmt Corp., 820 P.2d 482, 488
(Utah Ct. App. 1991) (“A superseding cause, sufficient to become the proximate cause
of the final result and relieve defendant of liability for his original negligence, arises
only when an intervening force was unforeseeable and may be described with the
benefit of hindsight, as extraordinary.” (citation omitted)).5

¶36 Of course, the continued viability of the doctrine of superseding cause does not
mean that jury instruction No. 48 was a correct statement of that doctrine. But even if
the jury instruction was flawed—a question on which we express no opinion—we agree
with SPX and HOJ that Gardner has not demonstrated that any such flaw was
prejudicial. Errors in jury instructions “‘require reversal only if confidence in the jury’s
verdict is undermined.’” Hess, 2011 UT 22, ¶ 38 (quoting Tingey v. Christensen, 1999 UT
68, ¶ 16, 987 P.2d 588). Here, the jury returned a special verdict form stating that
neither SPX nor HOJ was negligent. Consequently, the jury had no need to decide
whether the defendants’ negligence proximately caused the death of Aaron Gardner or
to apportion fault among SPX, HOJ, Sysco, and Aaron Gardner himself. Gardner does
not explain how an error in a jury instruction involving superseding cause could have
affected a verdict where the jury found no negligence.

¶37 Gardner’s opening brief states, “Unfortunately the parties cannot determine why
the jury did not assess fault to SPX and HOJ.” Yet the special verdict form is explicit on
this point. Question No. 11 dealt with the apportionment of fault among SPX, HOJ,
Sysco, and Aaron Gardner. It instructed the jury that, if they answered Questions No.
1 and No. 3 “no,” then they should not assign any fault to SPX. Questions No. 1 and

5
Gardner’s opening brief cites one pre‐1986 Utah case; cases from Connecticut,
New Mexico, and Kentucky; and two law review articles, but—inexplicably—none of
these Utah cases.

20090768‐CA 13
No. 3 asked whether SPX had acted negligently; the jury answered those questions
“no”; hence the jury assigned no fault to SPX. Question No. 11 further instructed the
jury that, if they answered Question No. 5 “no,” then they should not assign any fault to
HOJ. Question No. 5 asked whether HOJ had acted negligently; the jury answered that
question “no”; hence the jury assigned no fault to HOJ. Thus, the jury did not assess
fault to SPX and HOJ because, having found those defendants not negligent, the special
verdict forbade them to do so.

¶38 Gardner’s reply brief states, “Given the weight of the evidence showing that the
leveler was faulty, and the jury’s determination that the defendants were not liable, the
trial court’s error created a sufficiently high likelihood that the outcome would have
been different had the jury instruction 48 not been given.” Again, pursuant to the
instructions in the special verdict form, once the jury concluded that SPX and HOJ were
not negligent, their deliberations were complete. They had no occasion to consider
proximate cause, superseding cause, or allocation of fault. As our supreme court stated
in Hanks v. Christensen, 11 UT 2d 8, 354 P.2d 564 (Utah 1960), “There being no
negligence upon which to predicate liability, the question of the extent of proximate
causation of damage is not here confronted.” Id. at 13.

¶39 In short, the jury’s finding that SPX and HOJ were not negligent breaks any
causal connection between the challenged jury instruction and the verdict of no cause of
action. Consequently, whatever errors may or may not have crept into instruction No.
48, they do not undermine our confidence in the jury’s verdict.

CONCLUSION

¶40 Schneider Canada, the Canadian manufacturer of a component part of the dock
leveler in question, had insufficient contacts with the State of Utah to support personal
jurisdiction under the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. Under controlling precedent, the facts of record fall short of
demonstrating that Schneider Canada purposefully availed itself of the Utah market or
the Utah judicial system.

¶41 With respect to the jury instruction on superseding cause, we conclude that
Gardner has failed to show how any possible error in that instruction could have

20090768‐CA 14
affected the jury’s verdict. Having found that SPX and HOJ were not negligent, the jury
never confronted the questions of causation and relative fault.

¶42 Affirmed.

____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge

‐‐‐‐‐

¶43 WE CONCUR:

____________________________________
Carolyn B. McHugh,
Presiding Judge

____________________________________
James Z. Davis, Judge

20090768‐CA 15