concurring and dissenting:
125 I agree with the majority that the certified question put to us invites us to venture beyond the scope of our authority, and that our holding is appropriately limited to the nature of liability under our state Dramshop Act. I also agree with the majority that the Utah Dramshop Act is a strict liability statute. In my view, however, our analysis should stop there.
I 26 The federal district court certified the following question: "Whether a federal government employee, who ordinarily would be immune from suit in cases of strict lability, may be liable under Utah's Dramshop Act if the Plaintiffs establish negligence." (Emphasis added.) Our determination that Utah's Dramshop Act is a strict liability statute is responsive to that question. We go too. far when we address the questions of whether Utah recognizes a common law negligence claim for the commercial sale of liquor to an intoxicated person and whether the Dram-shop Act preempts this potential claim of common law negligence. While responding to those questions might well assist the federal district court with respect to the case before it, I think it imprudent to venture beyond the question actually certified to us.
T27 It has been the consistent practice of this court to decline to address issues that are not presented or fairly included in the question or questions that we have accepted for review. Though it may, of necessity, leave certain legal questions unanswered, this practice is not without principled support. For instance, addressing only the question presented, whether it be a certified question from a federal court or a question presented in a petition for certiorari, provides notice to the parties of the issues that will be considered and promotes efficiency by allowing the parties to narrowly tailor their arguments to address only those issues.
Were we routinely to entertain questions not presented[,] ... much of this efficiency would vanish, as parties who feared an inability to prevail on the question presented would be encouraged to fill their limited briefing space and argument time with discussion of issues other than the one on which [review] was granted.
Yee v. City of Escondido, 508 U.S. 519, 536, 112 S.Ct. 1522, 118 L.Ed.2d 158 (1992) (addressing the policies underlying Supreme Court rule 14.1(a), which governs the United States Supreme Court's review of petitions for certiorari). In addition, the framing of the question aids us in determining whether the issue is of such legal importance that we should grant review in the first place. See id.
128 By confining our review to the question presented, we also avoid addressing issues that the certifying court may have concluded were not appropriate for certification. The majority's approach could potentially embolden future litigants to "recast" a certified question, either broadening or narrowing the scope of the inquiry to the detriment of the certifying court, which may have wished to control the breadth of the issue certified.
129 In my view, we set a bad precedent when we use the opportunity presented by a certified question to address significant issues of law not included within the certified question. Instead, we should carefully confine our response to the certified question presented by the federal court. In this case, we have been asked by the federal court to resolve the question of whether Utah's Dramshop Act is a strict liability statute. We have responded in the affirmative. The issues regarding whether there is a common law dramshop cause of action, the nature of that cause of action, and the question of whether it is preempted by our Dramshop Act are questions not properly embraced by the question certified. Accordingly, I would refrain from answering them.
130 Justice WILKINS concurs in Justice DURRANT's concurring and dissenting opinion.