FILED
United States Court of Appeals
Tenth Circuit
PU BL ISH
September 21, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court
TENTH CIRCUIT
M ICH AEL A . HENRIE,
Plaintiff - Appellant,
v. No. 06-4102
N O RTH RO P G RU M M A N
CORPO RATION, formerly known as
N orthrop C orporation; N O RTH ROP
G RU M M A N SY STEM S; N O RTHROP
G RU M M A N IN FO RM A TIO N
TECHNOLOGY, IN C.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Utah
(D .C . No. 2:04-CV-296-PGC)
Douglas B. Cannon of Fabian & Clendenin, Salt Lake City, Utah, for Plaintiff -
Appellant.
Ryan M . Harris (J. Angus Edwards with him on the briefs) of Jones, W aldo,
Holbrook & M cDonough Salt Lake City, Utah, for Defendants - Appellants.
Before O ’BR IEN , BA LD OC K and HO LM ES, Circuit Judges.
O’BRIEN, Circuit Judge.
M ichael Henrie severely injured his arm while working at Hill Air Force
B ase (H ill Field) using an apparatus to hold large, heavy parts for painting. He
filed a products liability claim against Northrop Grumman Corporation (NGC),
the manufacturer of the apparatus. The district court granted summary judgment
in favor of NGC. Henrie appealed. W e affirm.
I. Background
Henrie is an experienced professional civilian painter who had worked for
the military at Hill Field for twenty-three years. On July 19, 2001, while painting
B2 Stealth Bomber parts, Henrie injured his arm and shoulder using a device
known as a “glass fixture.” (R. Vol. I 318, 344-348). The glass fixture is the
largest of eleven different fixtures, each designed to hold a different part of the
aircraft during the application of paint or another coating. It is comprised of tw o
square frames, one which rotates within the other, somewhat like a gyroscope.
The frames are attached to a wheeled base. The fixture is used as follows: The
workers place the inner frame of the fixture in a horizontal position. The frame
position is secured with two pins, one located on each side of the frame. Once
the aircraft part is loaded on the frame and clamped, two persons standing on the
wheel base to each side of the fixture remove the pins w hile several others hold
the frame and then move it to a vertical position. The pins are reinserted when
the frame (and the aircraft part) reach the vertical position. After completing
work on the part, the process is reversed. Two men pull the pins while several
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others hold the frame to prevent uncontrolled rotation of the heavily weighted end
of the part. 1 The aircraft part is then packaged for shipping.
Prior to the accident, Henrie had been working in the B2 program for
approximately a year and a half. The painting department employed seven or
eight em ployees. Henrie’s first contact with the fixtures w as at NGC’s C alifornia
B2 manufacturing plant located on the Pico Rivera Air Force Base (Pico). Henrie
and another painter w ere sent for thirty days of observation training in February
1999. In April or M ay 1999, he and two other employees were again sent to Pico
for six weeks of training. Finally, in late 1999, he returned to Pico for a month to
do production work. At Pico, the frame devices ran on monorails. The Air Force
requested Northrop Grumman to modify the frames to fit on a wheeled base for
use at Hill Field after Pico closed in early 2000. The devices were designed
solely for use by the painters at Hill Field.
Henrie testified he and a fellow worker established the frame procedure
after the fixtures arrived at Hill Field without instructions. See pp. 1-2 supra (use
of fixture). Henrie and the other painters used the various fixtures every day after
the equipment arrived at Hill Field up to the day of the accident. Four or five
months before the accident, the Air Force modified the glass fixture. Henrie and
his co-w orkers reported a sw ivel which allowed the aircraft part to rotate within
inner frame w hich caused them safety concerns. At their request, the swivel was
1
The parts may weigh many hundreds of pounds.
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welded solid.
On July 19, 2001, Henrie’s supervisor assigned him and fellow employee,
Isaac Donohue, to unload the glass from the fixture and package it for shipping.
The two men went to each side of the fixture and stood on the base to release the
pins. Henrie then called out to others in the area for assistance in lowering the
part and frame to the horizontal position. As he looked over his shoulder, Henrie
saw “a bunch of people” standing behind him. (R. Vol. 1 at 328.) He mistakenly
assumed they were there to assist with the frame and yelled to Donohue to pull
the pin. Both men released the pins simultaneously. W hen Henrie turned to help
with the frame, the weighted side of the frame spun down and caught his arm.
Donohue was knocked off the fixture base. Henrie fractured his elbow and
dislocated his shoulder, eventually requiring several surgeries.
On June 13, 2003, Henrie filed his claim against NGC alleging (1) strict
product liability for the design and manufacture of an unreasonably dangerous
product, (2) negligent design, testing, manufacture and distribution, and (3)
breach of an implied warranty of merchantability and fitness. On January 14,
2005, NGC filed a M otion for Summary Judgment on all claims, contending the
device worked exactly as designed and was not unreasonably dangerous. The
district court deferred consideration of the motion until the completion of
discovery.
After discovery, NGC renew ed its motion for sum mary judgment. In
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response, Henrie offered a report from his expert, Dr. Eberhard Bramberg,
opining the painting device was defective because it unnecessarily placed the
workers in the rotational path of the device and the hazard could have been easily
eliminated by placing the rotation points around the part’s center of gravity and/or
by installing a worm gear drive. 2 In Bramberg’s opinion NGC also failed to
follow basic hazard analysis in the design and manufacture of the product.
On April 24, 2006, the district court granted summary judgment in favor of
NGC. It determined, under Utah law, a plaintiff must meet both an objective and
subjective test to demonstrate the product was unreasonably dangerous, the first
element of a strict products liability claim. Relying on Brown v. Sears, Roebuck
& Co., the court determined the fixture was unreasonably dangerous under an
objective test. 328 F.3d 1274 (10th Cir. 2003). However, because H enrie’s
experience and training gave him knowledge of the precise danger that caused his
injury, the court concluded he could not show the product was unreasonably
dangerous to him. The district court then determined Henrie’s negligence and
implied warranty claims must fail for the same reason. It granted summary
judgment in favor of N GC on all claims.
On appeal, Henrie argues the district court incorrectly applied Utah law
2
Dr. Bramberg proposed both the relocation of the rotation points to the
airplane part’s center of gravity and installing a worm gear box with a crank to
the side of the device. W ith these features, the worker must turn the crank
approximately twenty-five times to move the piece from the horizontal to a
vertical position. (R. Vol. II at 468.)
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because there was an economically reasonable alternative to prevent the design
defect, and therefore, his know ledge of the defect does not defeat his claim. A s
his second issue, Henrie claims to have presented sufficient evidence to create a
material issue of fact as to whether NGC negligently failed to engage in a basic
hazard analysis.
II. Discussion
W e review the district court's grant of summary judgment de novo,
construing all facts and reasonable inferences in the light most favorable to
Henrie. See Allen v. M innstar, Inc, 8 F.3d 1470, 1476 (10th Cir. 1993) (internal
citations omitted). Summary judgment is proper only if the record shows “that
there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law .” Fed. R. Civ. P. 56(c). “In diversity
cases our role is to ascertain and apply the proper state law, here that of Utah,
with the goal of insuring that the result obtained is the one that would have been
reached in the state courts. We review de novo the district court’s rulings w ith
respect to state law.” Allen, 8 F.3d at 1476 (citations omitted).
At issue here is the interpretation of Utah Code Ann. § 78-15-6, a part of
the Utah Products Liability Act. Normally, “the federal court must defer to the
most recent decisions of the state’s highest court.” Wankier v. Crown Equip.
Corp., 353 F.3d 862, 866 (10th Cir. 2003). However, “w here no controlling state
decision exists, the federal court must attempt to predict what the state’s highest
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court would do . . . . bound by ordinary principles of stare decisis.” Id. “Thus,
when a panel of this Court has rendered a decision interpreting state law, that
interpretation is binding on district courts in this circuit, and on subsequent panels
of this Court, unless an intervening decision of the state’s highest court has
resolved the issue.” Id.
A. Strict Products Liability
Henrie contends the district court erroneously applied Utah Code Ann.
§ 78-15-6, a part of the Utah Products Liability Act. This provision states in
relevant part:
78-15-6. Defect or defective condition m aking product
unreasonably dangerous--Rebuttable presum ption
In any action for damages for personal injury, death, or property
damage allegedly caused by a defect in a product:
(1) No product shall be considered to have a defect or to be in a
defective condition, unless at the time the product was sold by the
manufacturer or other initial seller, there was a defect or defective
condition in the product which made the product unreasonably
dangerous to the user or consumer.
(2) As used in this act, “unreasonably dangerous” means that the
product was dangerous to an extent beyond which would be
contemplated by the ordinary and prudent buyer, consumer or user of
that product in that community considering the product’s
characteristics, propensities, risks, dangers and uses together w ith
any actual knowledge, training, or experience possessed by that
particular buyer, user or consumer.
Despite the language in subsection (2) of the statute, H enrie argued his
knowledge of the defect does not bar his claim if he can show the defect could be
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economically and practically eliminated. Relying on Brown v. Sears, the district
court disagreed.
In Brown, the plaintiff alleged a riding law nmower was unreasonably
dangerous in the absence of an automatic blade shut-down when the mow er was
operated in reverse. Brown, 328 F.3d at 1277. The plaintiff sought recovery
under theories of strict liability and negligence. Addressing strict liability, we
noted, “[t]he law governing strict products liability in Utah has two sources: the
comm on law and a statute, Utah Code Ann. § 78-15-6. Although some reported
opinions refer to both sources, the Utah courts have devoted virtually no attention
to examining the interrelationship between the statute and the common law.” Id.
at 1278. In our review of the statute we stated:
Section 78-15-6(2) states that to be “unreasonably dangerous,” a
product must be more dangerous than “contemplated by the ordinary
and prudent” person, “considering the product’s characteristics,
propensities, risk, dangers and uses together with any actual
knowledge, training, or experience possessed by that particular
buyer, user or consumer.” . . . The words “together with” do not
signal that the items considered together are alternatives. . . . [W ]e
must read “together with” as conveying cumulation. Under
subsection (2) a product is “unreasonably dangerous” if its actual
dangers exceed its perceived dangers. The words “together with”
indicate that there are two components to the product’s perceived
dangers: (1) an ordinary person's understanding of the product,
“together with” (2) the understanding possessed by the particular
person.
Id. at 1282. W e concluded § 78-15-6(2) imposes “an objective consumer
expectations test” supplemented by “a subjective test based on the individual
knowledge, training, and experience of the particular buyer, user, consumer, or,
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possibly, victim.” Id. Because “individual information regarding the product
would ordinarily increase the particular person’s appreciation of the product’s
danger,” the subjective test “increases the extent of the perceived danger beyond
that contemplated by the ordinary and prudent person.” Id.
Applying these principles to Henrie’s strict liability claim, the district court
determined the painting device failed the objective test (it was unreasonably
dangerous to the ordinary user). However, given Henrie’s extensive training on
and knowledge of the fixtures, the glass fixture was not unreasonably dangerous
under the subjective test. Henrie now argues Brown does not apply, and if it
does, it should be overruled.
To demonstrate Brown is in conflict w ith Utah law , Henrie relies primarily
on House v. Armour of America, Inc., 886 P.2d 542, 548 (Utah Ct. App. 1994)
(House I) where the Utah Court of Appeals held “the presence of an ‘open and
obvious’ danger is merely one factor for the trier of fact to consider when
assessing the liability of the defendant in a strict liability case -- it does not
operate as a complete bar to the injured party's recovery.” In House v. Armour of
America, Inc, 929 P.2d 340 (Utah 1996) (House II) the U tah Supreme Court
clarified this holding, concluding the obviousness of an inherent danger in a
product can act as a complete bar to a products liability action if the danger
cannot be economically alleviated. Id. at 344. Henrie also points to M ulherin v.
Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981), where the U tah Supreme Court
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announced that the comparative fault principles enunciated in Utah Code Ann. §
78-27-38 applied with equal force in strict product liability actions. He maintains
the application of comparative fault combined with his evidence of a safer design
indicates the Utah courts would not bar his claim even though he knew of the
fixture’s danger.
Contrary to Henrie’s contentions, however, none of these decisions negate
the need for a plaintiff to meet the statutory definition of an “unreasonably
dangerous” product to succeed on a strict liability claim. W hile we agree with the
ultimate conclusion of the district court that Henrie failed to show a necessary
elem ent of his claim, the district court did not need to reach the subjective test. 3
See Gomes v. Wood, 451 F.3d 1122, 1133-34 (10th Cir.) (“This Court may affirm
the district court on any ground adequately supported by the record so long as the
parties have had a fair opportunity to address that ground.”), cert. denied, 127
S.Ct. 676 (2006). Henrie failed to demonstrate a defective product under the
objective consumer test, the first part of Utah’s tw o-part test.
The district court determined the fixture was unreasonably dangerous under
the objective consumer test solely on Henrie’s evidence of a safer and economical
alternative design. Although this evidence is an essential part of his claim, by
itself it is not enough. For example, in Brown, the plaintiff’s production of an
3
The parties fully briefed both the objective and subjective tests to the
district court.
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expert report proposing a safer design could not save his strict liability claim in
the absence of a product defect. See Brown, 328 F.3d at 1279, 1282-83. In
addition to a safer alternative design, Henrie must show “the product was
dangerous to an extent beyond which would be contemplated by the ordinary and
prudent buyer, consumer or user of that product in that community.” Utah Code
Ann. § 78-15-6(2). This sentence is more fully explained in comment g,
Restatement (Second) Torts § 402A, 4 which considers a defective condition to be
present “only where the product is, at the time it leaves the seller's hands, in a
condition not contemplated by the ultimate consumer, which will be unreasonably
dangerous to him.” Further, comment I states, “Unreasonably dangerous” means
“dangerous to an extent beyond that which w ould be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge common to the
comm unity as to its characteristics.”
In House II, the U tah Supreme Court recognized the “sophisticated user”
may be the “community” for which a product is designed. There, the defendant
argued a police officer could not bring a products liability claim against the
manufacturer of body armor because the police officer w as part of a highly
trained community. The court stated:
As the court of appeals noted, defendants need not show that Lt.
House actually knew about the danger but that the “community” to
4
Utah adopted Restatement (Second) of Torts § 402A in Ernest W. Hahn,
Inc., v. Armco Steel Co., 601 P.2d 152, 156-58 (Utah 1979).
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which Lt. House belongs “generally knows” about the danger . . . .
In other words, to sustain a conclusion that no duty was owed to the
user because of his professional status, the court must “find the
record evidence to be undisputed that the user actually knew of the
danger or that, based on the user's special expertise and the
circumstances of the transaction, the supplier reasonably could have
believed that he knew of the danger.”
House, 929 P.2d at 345 (citations omitted); see also Gaines-Tabb v. ICI
Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir. 1998) (applying Oklahoma
law) (The consumer was a farmer and there was no indication the ammonium
nitrate was less safe than expected by farmers.); Lam er v. M cKee Indus., Inc.,
721 P.2d 611 (Alaska 1986) (The ordinary consumer was the professional garage
door repairman and a number of experienced repairmen testified product failure
was a surprise.); Rojas v. Lindsay M fg. Co., 701 P.2d 210 (Idaho 1985) (The
ordinary user with ordinary knowledge common to the community would be, for
purposes of this case, a farmer or a qualified maintenance person.). Here, Henrie
and the other painters were similarly members of a small, professional group of
painters well-acquainted with the equipment at issue here.
The uncontradicted evidence reveals NGC manufactured and designed
eleven fixtures specifically for use by the professional painters at Hill Field. The
record reveals no other use or contemplated use for the equipment. All the
painters regularly used the equipment and Henrie does not argue the other
painters working at Hill Field were not fully aware, as he was, of the danger if the
pins w ere pulled without sufficient manpower to control the aircraft part’s
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descent. Indeed, there had been no other incidents where a part “spun out of
control” nor were any injuries caused by the fixtures when used in the normal
manner, despite their daily use, until the date of Henrie’s injury. Thus, there was
no defect beyond what this unique community of users, the B2 Stealth Bomber
painters, contemplated. Because Henrie did not establish the fixture was an
unreasonably dangerous product under the objective test, there was no need for
the district court to apply the supplemental inquiry. 5
As his final argument, Henrie claims Utah’s policy supporting its strict
liability statutes requires us to ignore the statutory definition of unreasonably
5
To the extent our decision in Beacham v. Lee-Norse, 714 F.2d 1010 (10th
Cir. 1983), applies to Henrie’s argument, the instant facts distinguish this case.
In Beacham, we considered whether subjective evidence, including the plaintiff’s
training and experience, was relevant to show the product was not unreasonably
dangerous. Id. at 1015-16. Noting Utah’s statutory definition of unreasonably
dangerous, we stated:
The statutory definition only lists factors to be considered in
determining whether a product is unreasonably dangerous. W here a
user encounters the defect involuntarily because a safety device was
not provided, evidence of his actual knowledge, training, or
experience is of only limited value: W e have difficulty seeing how
the knowledge of the dangerousness can alleviate the dangerous
condition inasmuch as the performance by plaintiff of his assigned
tasks subjected him to injury regardless of the care exercised.
Id. (emphasis added) (internal quotation and citation omitted). Here, prior
requests leading to modification of the fixtures demonstrate Henrie did not have
to work with his equipment in an “as is” condition. In addition, Henrie
contributed to the creation of the procedures for working with the fixtures. Thus,
unlike Beacham, Henrie cannot show his work with the fixture in its condition at
the time of the accident was involuntary.
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dangerous in the presence of an economical alternative design. See Berry v.
Beech Aircraft, 717 P.2d 670, 673 (Utah 1985) (“[T]he effect of strict liability has
no doubt been to encourage safer manufacturing practices and product designs,
thereby reducing the incidence of death and injury.”). According to Henrie, if the
statutory definition bars his claim, manufacturers in Utah would be encouraged to
offer obviously dangerous products rather than safer products. In addition, a
manufacturer could avoid liability no matter how poorly the product is designed
so long as the danger is obvious. To prove his point he posits several extreme
examples. 6 W hile we question the marketability of some of his hypothetical
products, his argument should be directed elsewhere. The U tah legislature chose
to define the term “unreasonably dangerous” for the purpose of products liability
in Utah. As the Utah Supreme Court has observed, it is the Utah legislature who
must “change and modify the law that governs relations between individuals as
society evolves and conditions require.” Berry, 717 P.2d at 676. It is not our role
to rewrite the Utah statute. The glass fixture was not “dangerous to an extent
beyond which w ould be contemplated by the ordinary and prudent buyer,
consumer or user in that community.” Utah Code Ann. § 78-15-6(2).
B. Negligence Claim
6
Henrie argues, “under the district court’s decision, . . . [k]nives can be
stuck in dashboards[,] [s]eatbelts removed from cars[,] [e]lectrical wiring can be
left exposed [and] [t]oys may be made w ith razor sharp edges.” (Appellant’s Br.
at 24.)
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The district court parsed Henrie’s design negligence claim into two
separate allegations: N GC was negligent in failing to 1) “install a safety
mechanism” and 2) conduct a hazard analysis when designing the fixture. (Dist.
C ourt O rder at 15.) A s to the first allegation, the district court concluded NGC
did not owe a duty to refrain from marketing a non-defective product when a safer
model is available, relying on the U tah Supreme Court’s holding is Slisze v.
Stanley-Bostitch, 979 P.2d 317, 321 (Utah 1999). The court determined Henrie’s
second allegation must fail because his only evidence of NGC’s failure to conduct
a hazard analysis was his expert’s conclusion to that effect based solely on
observation of the fixture. Henrie argues the district court was w rong on both
counts.
In Slisze, the plaintiff was injured when a co-worker, using a “contact trip
nailer” 7 tried to “toe-nail” two boards and the nail ricocheted into the plaintiff’s
head. He brought a claim based on strict liability as well as negligence. During
the trial, the court admitted OSHA standards to show compliance with
“government standards,” creating a rebuttable presumption of non-defectiveness
7
A ‘contact-trip’ model “allows its operator to discharge nails regardless of
whether the operator first pulls the gun's trigger or depresses the nailer's nose
contact element, as long as both are used. The ‘sequential-trip’ model, on the
other hand, also manufactured and sold by Stanley, requires that the nose contact
element be depressed first and the trigger pulled second for the nail to be
discharged. The ‘sequential-trip’ mechanism makes it more difficult for nails to
be discharged unintentionally and is generally considered to be safer.” Id. at 318-
19.
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under Utah Code Ann. § 78-15-6(3). W hile the Utah Supreme Court recognized a
plaintiff may jointly bring a strict liability and negligence claim, it found Slisze
had failed to establish any duty, a necessary predicate in a negligence claim.
Slisze, 979 P.2d at 319-20. The court concluded “[T]here is no duty to make a
safe [product] safer” and no duty to warn because the alleged danger of the nailer
was open and obvious.” Id. at 320.
Henrie argues Slisze is inapplicable because the focus of his claim is on
N G C’s conduct and know ledge, not the characteristics of the product. He
maintains Bramberg’s evidence established a standard of care requiring a
manufacturer to conduct a hazard analysis to enable the manufacturer to
“eliminate the danger; guard against the danger; and warn against the danger.”
(Appellant’s Br. at 32.) NGC’s engineer acknowledged NGC had not conducted
any hazard analysis in designing and building the device. According to
Bramberg, had it done so, NGC would have identified its painting device as
inherently unstable and would have been able to eliminate that danger both easily
and economically. Henrie reasons that because Utah’s strict liability statutes do
not affect common law negligence claims, the “open and obvious” character of
the defect should not bar his negligence claim. It should merely be a factor for
consideration “when determining the comparative fault of both parties.” House,
886 P.2d at 548; see also M isener v. Gen. M otors, 924 F. Supp. 130, 131-32 (D.
Utah 1996) (citing Dansie v. Anderson Lum ber Co., 878 P.2d 1155, 1159 (Utah
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Ct. App. 1994) (claims for negligence are not governed by the Products Liability
Act).
“It is clear that in negligence cases, a designer has a ‘duty to design its
product so as to eliminate any unreasonable risk of foreseeable injury.’” Hunt v.
EST Eng’g, Inc., 808 P.2d 1137, 1139 (U tah App. 1991) (emphasis added).
Restatement (Second) of Torts § 398 (1965), cited in Hunt, provides:
A manufacturer of a chattel made under a plan or design which
makes it dangerous for the uses for which it is manufactured is
subject to liability to others whom he should expect to use the chattel
or to be endangered by its probable use for physical harm caused by
his failure to exercise reasonable care in the adoption of a safe plan
or design.
Id. Henrie correctly notes NGC admitted it did not conduct a hazard analysis, an
admission the district court failed to recognize. But that does not change the
outcome.
The Utah courts have spoken to the duty of a manufacturer in a negligence
claim. In Slisze, the court applied the Utah test for determining whether a duty
exists for the purposes of negligence claim. Slisze, 979 P.2d at 320 (applying the
test in AMS Salt Indus., Inc. v. M agnesium Corp. of Am., 942 P.2d 315 (Utah
1997)). 8 The court was “not persuaded that it is necessary or wise to recognize a
8
The Supreme Court reached this conclusion after weighing the factors set
out in AM S. Slisze, 979 P.2d at 320. In AM S, the Utah Supreme Court set out the
following factors to consider when imposing a duty sufficient to sustain a claim
of negligence:
W hether the law imposes a duty does not depend upon foreseeability
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duty requiring manufacturers to discontinue manufacturing less safe but
non-defective products” because there had been “no showing that the likelihood
of injury would be reduced enough to outweigh the costs and burdens of
discontinuation.” Id. W hile Henrie recognizes Utah has determined “there is no
duty [in a negligence claim] to make a safe product safer,” his argument relies on
the premise that the definition found in Utah’s strict products liability statute
cannot be transferred to a negligence action for the purpose of determining
whether a product is safe. However, that was precisely the method employed in
M ather v. Caterpillar Tractor Corporation, 533 P.2d 717, 719 (Ariz. Ct. App.
1975), cited with approval in Slisze. In M ather, the Arizona Court of Appeals
stated when “the underlying theories as to both negligence and strict liability were
the same, to-wit, defective design . . . In both instances appellant had to prove
that the [product] was in a defective condition and unreasonably dangerous.” Id.
Utah has defined defective condition and unreasonably dangerous for general
purposes in its objective test for strict liability. 9 The overlap between an
alone. The likelihood of injury, the magnitude of the burden of
guarding against it and the consequences of placing that burden upon
defendant, must also be taken into account. A duty may also be
found on the basis of reasonable mutual reliance, voluntary conduct
which increases the risk of harm, and general policy considerations.
AM S, 942 P.2d at 321 (internal citations and quotations omitted).
9
W e recognize the district court applied the second, individualized prong
to determine the product was not unreasonably dangerous and Henrie’s argument
on appeal addresses the issues associated with the application of the subjective
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unreasonably safe design and a negligent design has been recognized by other
courts as well. See Golonka v. Gen. M otors Corp., 65 P.3d 956, 964 (Ariz. Ct.
App. 2003) (“By finding GM not at fault for strict liability design defect, the jury
necessarily concluded that it would have been reasonable for a manufacturer to
have placed GM 's transmission into the stream of commerce.”). A s a result,
because there is no duty to make a safe product safer and because the fixture was
not defective under the consumer expectation test in § 78-15-6, the district court
correctly granted summary judgment in favor of NGC.
AFFIRM ED.
prong to a negligence claim. However, we need not reach the second subjective
analysis in this case and do not express an opinion whether a different result
would obtain under the subjective test.
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