concurring in the result and dissenting:
T 20 The trial judge in this case held that, as a matter of law, (1) "Croft did not give Golsan express or implied consent or permission to operate the waverunners so as to impose liability against Croft under {[the statute)," and (2) "[the statute] does not go far enough to cover a third party such as Mr. Golsan is in this matter." The lead opinion rejects the trial court's first ruling, determining that whether Croft gave Golsan express or implied permission is a jury question and not properly one of law. I do not disagree with that assessment, but cannot join in the lead opinion's failure to analyze the statute. The trial judge's holding that section 73-18, 18 does not extend owner liability to a see-nario involving a subpermittee such as Gol-san was a legal determination of the meaning of the statute, which I believe this court must review before remanding.
121 Absent a holding from this court on the scope of the statute (a question of first impression in Utah), the trial judge on remand will be unable to provide the trial jury with correct instructions on the law. The jury's choices will include at least the following options:
1. to find that Croft did give Golsan implied or express permission to operate the Waverunners, and is therefore subject to owner's liability under the statute; OR
2. to find that Croft did not give Golsan implied permission, but that he did give Vandee Bearden express or implied consent for Bearden's "kids," including his minor stepson Cody, to use the Waverunners, and
a. such permission was limited to the direct permittee (Cody) under the statute, and not to the sub-permittee (Golsan), thereby precluding liability; OR
b. such permission extended as a matter of law under the statute to the sub-permittee (Golsan), whose use was authorized by the direct permit-tees (Vandee and Cody), thereby permitting liability; OR
3. to find that Croft did not give Golsan or Vandee Bearden any kind of permission for anyone other than Vandee himself to operate the Waverunners, and the statute does not extend owner lability to any sub-permittees, including Cody and Golsan, resulting in no lability. ©
T22 In other words, under any factual scenario except the first, the jury will have to be instructed on the effect of the statute before it will be able to determine whether Croft has any liability. Therefore, I disagree with the lead opinion's conclusion that our construction of the statute would be premature at this time; we should undertake that task before remand.