This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 85
IN THE
SUPREME COURT OF THE STATE OF UTAH
RICHARD BYLSMA and MELINDA BYLSMA,
Appellants,
v.
R.C. WILLEY, a Utah Corporation,
Appellee.
No. 20140484
Filed December 1, 2017
On Direct Appeal
Third District, West Jordan
The Honorable Barry G. Lawrence
No. 100414866
Attorneys:
Daniel F. Bertch, Kevin K. Robson, Salt Lake City,
for appellants
Jaryl L. Rencher, Clay W. Stucki, Benjamin Lusty, Salt Lake City,
for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
JUSTICE DURHAM and JUSTICE HIMONAS joined.
ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion, in which
JUSTICE PEARCE joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 This appeal requires us to consider whether the Liability
Reform Act (LRA), Utah Code sections 78B-5-817 through 823,
immunizes passive retailers from products liability claims in cases
where the manufacturer is a named party. Richard and Melinda
Bylsma asserted claims for strict products liability, breach of
warranty, and contract rescission against R.C. Willey. The district
BYLSMA v. R.C. WILLEY
Opinion of the Court
court dismissed the tort and warranty claims under the “passive
retailer” doctrine as articulated by our court of appeals in Sanns v.
Butterfield Ford.1 R.C. Willey then stipulated to liability on the
rescission claim and tendered payment of the purchase price. Both
parties sought an award of attorney fees, but the district court
denied their requests because it concluded that neither party had
prevailed.
¶ 2 We conclude that the LRA does not create immunity for
retailers, whether “passive” or not, and we therefore overrule our
court of appeals’ conclusion to the contrary in Sanns. In so doing, we
hold that the LRA does not upend our longstanding precedent that
retailers—just as distributors, wholesalers, manufacturers, and any
others in the chain of distribution—are strictly liable for breaching
their duty not to sell a dangerously defective product. To the
contrary, the LRA reveals the legislature’s intent to specifically
preserve our strict products liability doctrine. We thus harmonize
the relevant statutory language, avoid conflating the distinct legal
doctrines of strict products liability and negligence, and honor the
legislature’s intent to retain the essential tenets of our strict products
liability doctrine.
¶ 3 We accordingly reject the passive retailer doctrine and
reverse the district court’s dismissal of the Bylsmas’ claims against
R.C. Willey for strict products liability and breach of warranty. We
also vacate the district court’s decision declining to award attorney
fees to the Bylsmas, and we remand for proceedings consistent with
this opinion.
Background
¶ 4 Melinda Bylsma purchased a reclining chair with a foot-
massage attachment from R.C. Willey as a gift for her husband,
Richard Bylsma.2 Rather than delivering a soothing massage, the
unit crushed his right foot.
¶ 5 The Bylsmas brought suit against R.C. Willey and Human
Touch, the alleged manufacturer of the chair. They asserted three
claims against R.C. Willey. First, they claimed that the chair was
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1 2004 UT App 203, 94 P.3d 301.
2Because this is an appeal from a grant of a motion to dismiss, we
construe the facts in the light most favorable to the Bylsmas, the non-
moving parties. See Gildea v. Wells Fargo Bank, N.A., 2015 UT 11, ¶ 3,
347 P.3d 385.
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Opinion of the Court
“unreasonably dangerous” in light of the risk of injury it presented.
Second, they asserted a claim for breach of implied warranties of
merchantability and fitness for a particular purpose under the
Uniform Commercial Code (UCC). Finally, they sought rescission of
their contract and restitution of the purchase price.
¶ 6 After more than a year of litigation, R.C. Willey moved to
dismiss the Bylsmas’ tort and warranty claims on the basis of its
alleged immunity under the so-called “passive retailer” doctrine
recognized in Sanns v. Butterfield Ford.3 The Bylsmas opposed that
motion. They challenged the passive retailer doctrine as
incompatible with the Liability Reform Act (LRA), Utah Code
sections 78B-5-817 through 823, and as infringing their rights under
the Open Courts and Uniform Operation of Laws Clauses of the
Utah Constitution.
¶ 7 The district court granted R.C. Willey’s motion based on the
passive retailer doctrine, dismissing the Bylsmas’ tort and warranty
claims, leaving only the claim for rescission of the contract. R.C.
Willey then stipulated to liability on the rescission claim and
tendered payment of the purchase price.
¶ 8 Both R.C. Willey and the Bylsmas sought to recover attorney
fees under the terms of the security agreement entered into between
them. Although that agreement expressly authorized only “costs of
collection” incurred by R.C. Willey, the Bylsmas asserted a reciprocal
right to fees under Utah Code section 78B-5-826. R.C. Willey
opposed the Bylsmas’ motion and also filed a cross-motion seeking
an award of its own attorney fees. The district court denied the fee
requests because it found that neither the Bylsmas nor R.C. Willey
qualified as a “prevailing party.”
¶ 9 The Bylsmas filed a timely notice of appeal, claiming error
in the dismissal of their claims under the passive retailer doctrine
and in the district court‘s refusal to grant their request for attorney
fees. We have jurisdiction under Utah Code section 78A-3-102(3)(j).
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3 2004 UT App 203, 94 P.3d 301. Human Touch echoed an element
of R.C. Willey’s motion. It also claimed to be a passive seller and
filed a notice of intent to apportion fault to the alleged
manufacturers. The claims against Human Touch were resolved
under a settlement agreement, so Human Touch’s argument was not
addressed by the district court and is not before us on this appeal.
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Standard of Review
¶ 10 The Bylsmas raise two issues on appeal. The first is whether
the district court erred in dismissing their tort and warranty claims.
“We review a decision granting a motion to dismiss ‘for correctness,
granting no deference to the decision of the district court.’ In so
doing, we ‘accept the plaintiff’s description of the facts alleged in the
complaint to be true, but we need not accept extrinsic facts not
pleaded nor need we accept legal conclusions in contradiction to the
pleaded facts.’”4
¶ 11 The second issue is whether the district court erred in
denying the Bylsmas’ motion for attorney fees under the reciprocal
attorney fee statute, Utah Code section 78B-5-826. We review legal
questions regarding the availability of attorney fees for correctness.5
Where a statute or contract provides that attorney fees are to be
awarded to a “prevailing party,” we review a district court’s
determination of whether a party “prevailed” for an abuse of
discretion.6
Analysis
¶ 12 We begin by reversing the district court’s dismissal of the
Bylsmas’ strict products liability and breach of warranty claims. We
do so based on our rejection of the court of appeals’ conclusion in
Sanns v. Butterfield Ford7 and its progeny8 that “passive retailers” are
immunized from liability under the LRA in cases where the
manufacturer is named in the suit. We correct the Sanns court’s
misreading of the LRA by noting that, because the statute preserves
our strict products liability doctrine, retailers like R.C. Willey—along
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4 Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 13, 356 P.3d 1172
(citations omitted).
5A.K. & R. Whipple Plumbing & Heating v. Guy, 2004 UT 47, ¶ 6, 94
P.3d 270.
6 R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119.
7 2004 UT App 203, 94 P.3d 301.
8See McQuivey v. Fulmer Helmets, Inc., 2014 UT App 177, ¶ 8, 335
P.3d 361; Yirak v. Dan’s Super Mkts., Inc., 2008 UT App 210, ¶ 5, 188
P.3d 487.
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Opinion of the Court
with all others in a product’s chain of distribution—are strictly liable
for breaching their duty not to sell a dangerously defective product.9
¶ 13 We then provide guidance to the district court for how to
proceed with these claims on remand. In particular, we clarify that
the LRA’s requirement that the fact-finder apportion “fault,” which
includes strict liability, does not require apportionment of fault
among strictly liable defendants. Instead, the LRA requires that
strictly liable defendants who all breached the same duty (a duty not
to sell the same dangerously defective product) be treated as a single
unit for purposes of fault allocation. We clarify that, to avoid
conflating negligence and strict liability, the proper approach is one
of “relative causation” rather than “relative fault.”
¶ 14 Finally, we address the Bylsmas’ argument regarding
attorney fees. We vacate the district court’s decision not to award
attorney fees to the Bylsmas, first because our conclusion about the
viability of the Bylsmas’ tort and warranty claims necessarily
changes the “prevailing party” calculus, but more fundamentally
because we conclude that the district court erroneously considered
whether the Bylsmas prevailed on claims other than the claim that
was eligible for fee-shifting.
I. The District Court Erred in Dismissing the Bylsmas’ Tort and
Warranty Claims Against R.C. Willey Because the LRA Does Not
Create Immunity for Passive Retailers
¶ 15 This case presents our first opportunity to explain the
interaction between strict products liability10 and the LRA. We first
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9 The Bylsmas also argue that the LRA, if construed to create
passive retailer immunity, violates the Utah Constitution’s Open
Courts and Uniform Operation of Laws Clauses. Because we reject
such immunity, we do not reach these constitutional issues.
10 As noted above, the Bylsmas also assert a claim for breach of
two implied warranties under the UCC: the warranty of
merchantability and the warranty of fitness for a particular purpose.
See UTAH CODE § 70A-2-314(1) (“[A] warranty that the goods shall be
merchantable is implied in a contract for their sale if the seller is a
merchant with respect to goods of that kind.”); id. § 70A-2-315
(“Where the seller at the time of contracting has reason to know any
particular purpose for which the goods are required and that the
buyer is relying on the seller’s skill or judgment to select or furnish
suitable goods, there is unless excluded or modified under the next
(Continued)
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Opinion of the Court
discuss the LRA, concluding that both its text and context
demonstrate the legislature’s intent to retain the essential aspects of
our strict products liability doctrine. We then discuss the nature of
strict products liability, illuminating the key aspects of that doctrine
that must continue to exist if we are to honor the legislative intent to
retain it. With these principles in mind, we turn to an assessment of
R.C. Willey’s argument regarding passive retailer immunity,
concluding that the LRA forecloses any such immunity. Finally, we
provide guidance for the district court on remand by clarifying that
the LRA does not require that the fact-finder apportion fault among
strictly liable defendants who are liable for breaching the same duty.
Instead, the LRA requires that strictly liable defendants who have
breached the same duty be treated as a unit in the apportionment.
A. The Legislature Enacted the LRA to Eliminate Joint and Several
Liability, but It Did Not Intend to Eliminate Our
Strict Products Liability Doctrine
¶ 16 We first explain how the LRA demonstrates that the
legislature expressly intended to retain the key aspects of our strict
section an implied warranty that the goods shall be fit for such
purpose.”). The Bylsmas contend in their briefing that although
“[t]he warranty field of product liability overlaps, but is definitely
not coextensive with, tort liability,” “the same analysis” applies to
both tort and warranty claims insofar as the LRA does not create
immunity for passive retailers under either theory. See UTAH CODE
§ 78B-5-817(2) (defining “fault” to include “breach of express or
implied warranty of a product” as well as “strict liability” and
“products liability”). R.C. Willey has not argued that the Bylsmas’
breach of warranty claims should be analyzed differently from their
strict products liability claim for purposes of determining passive
retailer immunity. It, too, argues that the same analysis applies to
both claims, stating in its brief that “[p]roducts liability law treats
breach of warranty claims equivalently to tort claims.” There is
support in our cases for the proposition that “warranty” claims that
seek damages for personal injury are essentially strict liability claims.
See Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 14
(Utah 1990) (“The term ‘warranty’ has . . . been used . . . in tort law to
have a meaning that is synonymous with strict liability.”). We
therefore do not separately assess the Bylsmas’ warranty claims, but
we note that, in any event, the LRA does not create immunity for
passive retailers under either theory, making dismissal of these
claims improper.
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Opinion of the Court
products liability doctrine. We discern the legislature’s intent by
examining the history surrounding the LRA’s passage, analyzing the
statute’s text, and considering its relationship with related statutory
provisions.11
¶ 17 The LRA was expressly designed to eliminate joint and
several liability.12 Prior to the LRA, the Comparative Negligence Act
stated that “the relative degrees of fault of the joint tort-feasors shall
be considered in determining their prorata shares, solely for the
purpose of determining their rights of contribution among
themselves, each remaining severally liable to the injured person for
the whole injury as at common law.”13 This was specifically repealed
and replaced by the LRA—“An Act Relating to the Judicial Code;
Modifying Provisions Relating to Comparative Negligence;
Specifying Duties of Jurors and Judges; Abolishing Joint and Several
Liability and Rights of Contribution Among Defendants; and
Defining Certain Terms.”14 The LRA replaced joint and several
liability with the requirement that “[n]o defendant is liable to any
person seeking recovery for any amount in excess of the proportion
of fault attributed to that defendant.”15 The legislature could have
likewise ended strict products liability. Instead, it specifically chose
to retain this common law doctrine.16
¶ 18 The LRA defines “fault” as “any actionable breach of legal
duty, act, or omission proximately causing or contributing to injury
or damages” and expressly includes within its definition of “fault”
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11 See State v. Rasabout, 2015 UT 72, ¶ 10, 356 P.3d 1258.
12See Graves v. N. E. Servs., Inc., 2015 UT 28, ¶¶ 82–83, 345 P.3d
619 (Nehring, A.C.J., dissenting).
13 UTAH CODE ANN. § 78-27-40(2) (West 1973); see also Jensen v.
Intermountain Healthcare, Inc., 679 P.2d 903, 905–06 (Utah 1984).
Graves, 2015 UT 28, ¶ 83 (Nehring, A.C.J., dissenting) (emphasis
14
added) (emphasis omitted) (citation omitted).
15 UTAH CODE § 78B-5-818(3).
16 See id. § 78B-5-817(2); see also Jason R. Burt, Note, The Effects of
Judicial Immunization of Passive Sellers in Sanns v. Butterfield Ford and
a Proposal for the Shifting Nature of Fault, 2005 BYU L. REV. 477, 503
(2005) (“[N]o direct evidence indicates that the legislature ever
intended to eliminate strict liability even in cases when a passive
seller is found strictly liable.”).
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Opinion of the Court
the claims that can be asserted based on a defective product: strict
liability, breach of express or implied warranty, and products
liability.17 That same definition also includes the defenses against
such claims: “misuse, modification, or abuse of a product.”18 These
common law terms of art are used to define a statutory term—
“fault.” They are not themselves redefined or modified in any way
by the LRA, meaning that the legislature intended to incorporate and
preserve the claims and defenses of products liability as they were
understood.19 This conclusion is reinforced by another statutory
scheme, the Product Liability Act (PLA).
¶ 19 The PLA’s provisions presuppose the continued existence of
a common law products liability doctrine because, while it adds a
specific statute of limitation,20 a definition of “unreasonably
dangerous,”21 a description of what constitutes a defect,22 and
recognizes that a product liability action may be filed “against a
product manufacturer, wholesaler[,] or retailer,”23 it does not itself
create a products liability cause of action. Just like the LRA, the PLA
references our products liability doctrine without changing or
redefining any of the fundamental principles of that doctrine.24
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17 UTAH CODE § 78B-5-817(2).
18 Id.
19 Kelson v. Salt Lake Cty., 784 P.2d 1152, 1156 (Utah 1989)
(“[A]bsent express direction to the contrary, we presume that a term
of art used in a statute is to be given its usual legal definition.”); see
also UTAH CODE § 68-3-11 (“Words and phrases are to be construed
according to the context and the approved usage of the language;
but technical words and phrases, and such others as have acquired a
peculiar and appropriate meaning in law, or are defined by statute, are
to be construed according to such peculiar and appropriate meaning or
definition.” (emphases added)); Henry v. United States, 251 U.S. 393,
395 (1920) (“The law uses familiar legal expressions in their familiar
legal sense. . . .”).
20 UTAH CODE § 78B-6-706.
21 Id. § 78B-6-702.
22 Id. § 78B-6-703.
23 Id. § 78B-6-704.
24Although the PLA was originally enacted prior to the LRA, it
has been amended and reenacted several times since the passage of
(Continued)
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Opinion of the Court
These principles, which we describe below, have been specifically
left untouched by the legislature and form the basis for these two
statutory schemes. Nothing in the LRA or the PLA is either an
express or implicit repudiation of products liability. Indeed, as we
discuss below, both the LRA and the PLA are wholly consistent with
our traditional strict products liability doctrine.
¶ 20 Because we interpret the provisions of a statute in the
context of “the language of the act as a whole, the act’s operation,
and its purpose,”25 our approach to reconciling strict products
liability with the LRA must begin with our understanding of the
legislature’s clearly expressed intent to preserve strict products
liability as it was understood in our law. To understand how to
preserve the key aspects of our long-standing doctrine of strict
products liability, it is first necessary to understand our strict
products liability doctrine. We now turn to a discussion of how our
products liability doctrine came into existence and how it has
operated for the past several decades. We then interpret the LRA in
such a way as to preserve the fundamental aspects of that doctrine.
B. The Key Aspects of Strict Products Liability that the Legislature
Intended to Retain Through the Passage of the LRA
¶ 21 We now discuss the history of our strict products liability
doctrine in some detail in order to illustrate the essential aspects of
the doctrine. Strict products liability is a judicially created doctrine
that began to take root in Utah at least as early as 1953.26 In 1979, we
the LRA. Thus, the legislative intent expressed in the enactment of
the PLA—that the strict products liability doctrine should continue
to exist as we have articulated it in caselaw—is still relevant. See
Christensen v. Indus. Comm’n, 642 P.2d 755, 756 (Utah 1982) (“A well-
established canon of statutory construction provides that where a
legislature amends a portion of a statute but leaves other portions
unamended, or re-enacts them without change, the legislature is
presumed to have been satisfied with prior judicial constructions of
the unchanged portions of the statute and to have adopted them as
consistent with its own intent.”).
25 Rasabout, 2015 UT 72, ¶ 10.
26 See Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 156
(Utah 1979) (discussing the history of strict products liability and
citing Hooper v. Gen. Motors Corp., 260 P.2d 549 (Utah 1953) and Webb
v. Olin Mathieson Chem. Corp., 342 P.2d 1094 (Utah 1959)).
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Opinion of the Court
formally adopted section 402A of the Restatement (Second) of Torts,
which states:
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or
to his property is subject to liability for physical
harm thereby caused to the ultimate user or
consumer, or to his property, if
(a) the seller is engaged in the business of selling
such a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the
condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the
preparation and sale of his product, and
(b) the user or consumer has not bought the product
from or entered into any contractual relation
with the seller.27
¶ 22 We adopted this doctrine to advance several compelling
policy goals. “The liability was created judicially because of the
economic and social need for the protection of consumers in an
increasingly complex and mechanized society, and because of the
limitations in the negligence and warranty remedies.”28 The doctrine
operated to ensure “that the costs of injuries resulting from defective
products are borne by the manufacturer that put such products on
the market rather than by the injured persons who are powerless to
protect themselves.”29
¶ 23 There are three key aspects of our strict products liability
doctrine that work together to achieve its goals. First, it imposes
liability for harm caused by defective products without any regard
to the culpability of the defendants, relieving the plaintiff of any
requirement to demonstrate negligence. Second, it imposes this
liability on every “seller” of the product—manufacturers,
wholesalers, retailers, and any other party involved in the product’s
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27 Id. (quoting RESTATEMENT (SECOND) OF TORTS § 402A (AM. LAW
INST. 1965)).
28 Id. at 157 (citation omitted).
29 Id. (citation omitted).
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Opinion of the Court
chain of distribution—in order to ensure that a plaintiff will have a
meaningful remedy. Third, it permits an “innocent” non-
manufacturer (one who sold the product and was therefore held
strictly liable) to recover its losses from the manufacturer by way of
indemnity. The interplay between these three factors ensured both
that the injured plaintiff would obtain a full recovery and that the
costs were ultimately borne by those parties who “are in a position
to absorb the loss by distributing it as a cost of doing business.” 30 We
next discuss each of these aspects in greater detail to demonstrate
how our reading of the LRA is necessary to preserve these key
aspects of our products liability doctrine.
1. Strict products liability eliminates any need for the plaintiff to
demonstrate negligence in order to recover
¶ 24 The doctrine of products liability emerged “because of the
limitations in the negligence and warranty remedies.”31 Indeed,
“[t]he strict liability doctrine achieves its goals by ‘reliev[ing] an
injured plaintiff of many of the onerous evidentiary burdens
inherent in a negligence cause of action.’”32 These burdens were
described by the Supreme Court of New Mexico:
It is often difficult, or even impossible, to prove
negligence on the part of the manufacturer or supplier.
True, res ipsa loquitur often comes to the aid of the
injured party. But it is normally regarded as a form of
circumstantial evidence, and this means that there
must be a logical inference of negligence which is
sufficiently strong to let the case go to the jury. This is
often not present, and strict liability eliminates the
need of the proof.33
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30 Azzarello v. Black Bros. Co., 391 A.2d 1020, 1023 (Pa. 1978),
overruled on other grounds by Tincher v. Omega Flex, Inc., 104 A.3d 328
(Pa. 2014).
31 Ernest W. Hahn, 601 P.2d at 157 (citation omitted).
32 Anderson v. Owens-Corning Fiberglas Corp., 810 P.2d 549, 552
(Cal. 1991) (second alteration in original) (citation omitted).
33 Brooks v. Beech Aircraft Corp., 902 P.2d 54, 57–58 (N.M. 1995)
(quoting John W. Wade, On the Nature of Strict Tort Liability for
Products, 44 MISS. L.J. 825, 826 (1973)).
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Opinion of the Court
“An injured person . . . is not ordinarily in a position to refute . . .
evidence [of due care] or identify the cause of the defect, for he can
hardly be familiar with the manufacturing process as the
manufacturer himself is.”34 Thus, as product liability developed over
time, “the traditional elements of negligence[] were stripped from
the remedy, and a new tort emerged which extended liability for
defective product design and manufacture beyond negligence but
short of absolute liability.”35
¶ 25 Accordingly, in adopting section 402A of the Restatement,
we deliberately created a cause of action based in neither contract
nor negligence, but rather strict liability. Strict liability is, by
definition, “liability without fault” or, in other words, liability
without “blameworthiness in a moral sense.”36 “[C]ulpable conduct
is not at issue in strict liability, only causation.”37 Strict liability “does
not depend on proof of negligence or intent to do harm but . . . is
based instead on a duty to compensate the harms proximately caused
by the activity or behavior subject to the liability rule.”38
¶ 26 In the context of strict products liability, we impose on a
seller of a defective product the duty to compensate the harms
resulting from the use of that product. The liability is “strict”
because a seller of a defective product is liable even if “the seller has
exercised all possible care in the preparation and sale of his
product.”39 The seller’s duty is not to sell a defective product—there
is no analysis of due care or preventative measures. There is no room
in a strict liability regime for the consideration of culpability—
indeed, to do so would not only destroy what makes strict liability
“strict,” but also, in the context of products liability, undermine the
very purposes of the doctrine. This aspect of our strict products
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34Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436, 441 (Cal.
1944) (Traynor, J., concurring).
35 Ernest W. Hahn, 601 P.2d at 157 (citation omitted).
36Id. at 156 (citation omitted); see also Liability, BLACK’S LAW
DICTIONARY (10th ed. 2014) (stating that strict liability is “[a]lso
termed liability without fault”).
37 Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1304 (Utah 1981).
38Liability, BLACK’S LAW DICTIONARY (10th ed. 2014) (emphasis
added).
39Ernest W. Hahn, 601 P.2d at 156 (quoting RESTATEMENT
(SECOND) OF TORTS § 402A(2)(a) (AM. LAW INST. 1965)).
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Opinion of the Court
liability doctrine goes hand-in-hand with the second—that liability is
imposed on all sellers within a product’s chain of distribution.
2. Strict products liability imposes the same liability on each party
involved in a product’s chain of distribution
¶ 27 Products liability imposes liability on anyone “who sells any
product in a defective condition unreasonably dangerous to the user
or consumer or to his property” so long as “the seller is engaged in
the business of selling such a product.”40 This includes “any
manufacturer” and “any wholesale or retail dealer or distributor.”41
Thus, so-called passive retailers and wholesalers are liable to the
exact same extent as the manufacturer. The reason for including all
sellers of a product within the ambit of strict products liability is
two-fold: first, it ensures that the injured plaintiff has a party from
whom she can recover and, second, it protects future consumers by
incentivizing manufacturers to create safe products and retailers to
deal with responsible manufacturers.
¶ 28 The imposition of strict liability on all sellers ensures that an
injured plaintiff is “provided with an alternative remedy in the event
that the manufacturer is insolvent, out of business, or so remote that
it is either impossible to obtain jurisdiction or unduly burdensome to
bring suit.”42 By holding each seller of a defective product equally
and strictly liable, a plaintiff is guaranteed that at least one party—
most likely the local retailer—will be known to the plaintiff,
amenable to suit, and likely solvent at the time of judgment. 43 To
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40 Id. (citation omitted).
41 RESTATEMENT (SECOND) OF TORTS § 402A cmt. f (AM. LAW INST.
1965); see also RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 1 cmt. e
(AM. LAW INST. 1998) (“The rule stated in this Section provides that
all commercial sellers and distributors of products, including
nonmanufacturing sellers and distributors such as wholesalers and
retailers, are subject to liability for selling products that are defective.
Liability attaches even when such nonmanufacturing sellers or
distributors do not themselves render the products defective and
regardless of whether they are in a position to prevent defects from
occurring.”).
42 Brooks, 902 P.2d at 58.
43 See William L. Prosser, The Assault upon the Citadel (Strict
Liability to the Consumer), 69 YALE L.J. 1099, 1116–17 (1960) (“There
are other sellers than the manufacturer of the product. It will pass
(Continued)
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Opinion of the Court
allow retailers to avoid liability, regardless of the manufacturers’
solvency, could foreclose any recovery at all and allow retailers to
benefit from the sale of a defective product without bearing any of
the associated cost. Strict products liability was specifically designed
to ensure that an injured plaintiff’s recovery was not based on or
otherwise limited by whether one particular entity in a product’s
chain of distribution, such as a foreign manufacturer, would be
solvent and amenable to suit. Accordingly, the doctrine permits
recovery for injuries caused by defective products against the local
retailer, importer, or wholesaler to the same extent as against the
manufacturer.
¶ 29 The second policy goal served by the imposition of liability
on all sellers of a product is to create incentives that protect future
consumers. As the Wisconsin Supreme Court stated, “one of the
primary policies underlying products liability law is to encourage
manufacturers to produce safer products.”44 Products liability does
this by imposing on manufacturers the burden of paying for the
injuries caused by their defective products. But this incentive scheme
falls apart when the manufacturer cannot be held liable.45
through the hands of a whole line of other dealers, and the plaintiff
may have good reason to sue any or all of them. The manufacturer is
often beyond the jurisdiction. He may even, in some cases, be
unknown. . . . [Or] he may turn out, in these days of chain stores and
large supply houses, to be a small concern, operating on a
shoestring, and financially the least responsible person in the whole
chain of distribution. If the plaintiff is to recover at all, he must often
look to the wholesaler, the jobber, and the retailer.” (footnotes
omitted)).
44Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727, 744 (Wis.
2001).
45 See, e.g., Stephanie Glynn, Comment, Toxic Toys and Dangerous
Drywall: Holding Foreign Manufacturers Liable for Defective Products—
The Fund Concept, 26 EMORY INT’L L. REV. 317, 326–27 (2012) (“Quality
control issues that accompany Chinese-made products are passed
along to U.S. consumers, along with the cheap prices. . . . Judge
Richard Posner’s accident reduction theory suggests actors will
forego preventative measures when the cost of accidents, and
therefore the cost of liability, is less than the cost of prevention.
Chinese manufacturers can evade economic and legal liability;
therefore, they have no financial incentive to install preventative
measures. As a result, the price of their goods fails to account for
(Continued)
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Accordingly, we hold passive sellers as liable as the manufacturers
in order to incentivize the sellers “to select reputable and responsible
manufacturers who generally design and construct safe products
and who generally accept financial responsibility for injuries caused
by their defective products.”46 Thus, we ensure “that the costs of
injuries resulting from defective products are borne by the [sellers]
that put such products on the market rather than by the injured
persons who are powerless to protect themselves.”47
¶ 30 Ultimately, when we adopted the doctrine of strict products
liability, we also decided that retailers and manufacturers “should
absorb the inevitable losses which must result in a complex
civilization from the use of their products, because they are in the
better position to do so, and through their prices to pass such losses
on to the community at large.”48 We enacted this policy by creating a
strict liability regime that imposes liability on each party within a
product’s chain of distribution without requiring proof of any
wrongful or negligent conduct. By so doing, we have also made non-
manufacturers a conduit through which liability flows to the
manufacturer, as discussed below.
3. Strict products liability employs implied indemnity to allocate the
burden of loss as between defendants
¶ 31 Courts have recognized the potential “inequity of requiring
a retailer or distributor to bear the cost of injury created by a
manufacturer”49 and have held that, at least as between a
manufacturer and retailer, “the obligation ought to be discharged by
products liability risks.” (footnotes omitted)); George L. Priest,
Lawyers, Liability, and Law Reform: Effects on American Economic
Growth and Trade Competitiveness, 71 DENV. U. L. REV. 115, 147 (1993)
(“To the extent that foreign manufacturers can discount the
collectibility of U.S. products liability judgments, however, their
prices can be set commensurately lower. If they do not face equal
prospects of punitive damages levies, then they need not invest in
excessive levels of safety, as must U.S. manufacturers.”).
46 Brooks, 902 P.2d at 58.
47 Ernest W. Hahn, 601 P.2d at 157 (citation omitted).
48 Prosser, supra note 43, at 1120.
49 Durden v. Hydro Flame Corp., 983 P.2d 943, 946 (Mont. 1999).
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the more culpable party.”50 In order to alleviate this potential
inequity while still providing injured parties with a viable remedy,
we have adopted the doctrine of implied indemnity.
¶ 32 Implied indemnity is a doctrine applying in a limited
number of scenarios that shifts the entire burden of a plaintiff’s loss
from a non-culpable party to a culpable party.51 This is the only place
where culpability factors into the products liability equation at all—
on the back end, after the plaintiff has fully recovered. A right to
implied indemnity “is based on a theory of quasi-contract or contract
implied in law”52 and flows from “the relationship between the
parties.”53 It applies in principal/agent54 and strict products liability
situations,55 where principles of vicarious liability impose on a non-
culpable party the liability incurred by a culpable one. 56 In the
context of strict products liability, “[t]hrough the equitable concept
of implied indemnity, the retailer-indemnitee is prevented from
_____________________________________________________________
50 Hanover Ltd. v. Cessna Aircraft Co., 758 P.2d 443, 445 (Utah Ct.
App. 1988) (citing Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214,
218 (Utah 1984)).
51 See id.
52Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 19
(Utah 1990).
53 Hanover, 758 P.2d at 446.
54 Culmer v. Wilson, 44 P. 833, 836 (Utah 1896) (“[T]he law will
imply an indemnity to such agent who believed as his principal did,
and who acted in good faith, and was innocent of any wrongful
intent or purpose, for any damages he was made to pay on account
of such act done in pursuance of his principal’s direction, within the
scope of his instructions and employment.”).
55 See, e.g., Davidson Lumber, 794 P.2d at 12.
56 See, e.g., Nelson ex rel. Hirschfeld v. Corp. of Presiding Bishop of the
Church of Jesus Christ of Latter-Day Saints, 935 P.2d 512, 513 (Utah
1997) (stating that an employer’s vicarious liability “‘arises not as a
result of actual negligence by the employer,’ but because the
employer reaps the benefits of the employee’s acts and may more
easily spread the costs of accidents” (citation omitted));
RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIAB. § 13 cmt. a
(AM. LAW INST. 2000) (“Retailers and other nonmanufacturer sellers
of products may be held strictly liable for a defect attributable to the
manufacturer, in effect imposing vicarious liability on the retailer.”).
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being held derivatively or vicariously liable for the wrongful act of
the manufacturer-indemnitor” because the retailer can pass its loss
along to the manufacturer.57
¶ 33 Accordingly, our strict products liability doctrine allows
“strict liability against ‘downstream’ parties (without proof of fault)
in order to allow them to act as a conduit to pass liability ‘upstream’
to the manufacturer.”58 And this “‘upstream’ indemnification fosters
the policy behind strict products liability by placing final
responsibility for injuries caused by a defective product upon the
entity initially responsible for placing that product into the stream of
commerce.”59 Indeed, our doctrine has embraced the notion that “in
the absence of imposition of liability on the ‘upstream’
manufacturer, the manufacturer would have little economic
incentive to remove a defective product from the market.”60 Thus,
whereas the purpose of products liability generally is to shift the
burden of loss from an injured party to the sellers of a defective
product as a collective whole, the purpose of implied indemnity is to
shift the burden from an individual passive retailer—who bears no
fault in the usual sense of the word—onto the party responsible for
the defect, the manufacturer.61
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57 Hanover, 758 P.2d at 446.
58 Durden, 983 P.2d at 946.
59 Id. (citation omitted).
60 Id. (“[Although] the retailer or distributor could always refuse
to order that product in the future, . . . the economic effect on the
manufacturer of the loss of these few sales would be extremely
limited and have little impact. . . . [W]ithout indemnification, the
retailer or distributor might also suffer financial disaster merely
because it unknowingly sold a defective product. Indemnity shifts
full responsibilities for injury to the manufacturer and provides an
incentive to the manufacturer to withdraw or correct the defective
product.”).
61 See Hanover, 758 P.2d at 446. Of course, as discussed above,
there may be times where the manufacturer is not amenable to any
kind of suit, including one for indemnity, because it is beyond the
court’s jurisdiction, unknown, or insolvent. In these cases, we have a
choice of imposing the burden of loss on the injured plaintiff or the
“passive” retailer. And as discussed above, we have chosen to
(Continued)
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¶ 34 There is a crucial distinction between the liability involved
in a products liability claim and that in an implied indemnity claim.
As discussed, a products liability claim can be asserted by a plaintiff
against any of the sellers of a particular defective product, and the
plaintiff is not required to show culpability on the part of any of the
defendants. An implied indemnity claim, on the other hand, permits
a seller of a product who was held strictly liable to recover its loss
from a more culpable seller—typically the manufacturer.62 An
implied indemnity claim, which has nothing to do with either the
plaintiff’s claim or her recovery, is the only context in which the
culpability of a seller of a defective product enters into the strict
liability picture. Thus, all sellers of a defective product are equally
and strictly liable vis-à-vis the plaintiff—liability without fault—but
are liable vis-à-vis other sellers “based upon their respective
culpability”63—fault-based liability.
¶ 35 These three aspects of our products liability doctrine—
liability without fault, imposed equally upon all sellers of a product,
with recourse available for a passive retailer to shift the burden of
loss onto a manufacturer—are the long-established foundational
tenets of our products liability doctrine. Together, they honor the
overarching purposes of products liability: to protect consumers and
shift the risk of loss onto those best equipped to bear it. We next turn
to interpreting the LRA in a way that respects the legislative intent to
preserve this doctrine.
C. The Passive Retailer Doctrine Cannot Stand Because It Is Inconsistent
with the LRA and Our Strict Products Liability Doctrine
¶ 36 We first articulate R.C. Willey’s argument that the LRA
should be read to create passive retailer immunity from products
liability claims. We then articulate the similar reasoning employed
impose that burden on retailers in order to incentivize them to work
with responsible manufacturers.
62 Despite this being the usual case, there may be instances where
a manufacturer seeks indemnity from a retailer. See RESTATEMENT
(THIRD) OF TORTS: PROD. LIAB. § 2 cmt. c (AM. LAW INST. 1998) (“When
the manufacturer delegates some aspect of manufacture, such as
final assembly or inspection, to a subsequent seller, the manufacturer
may be subject to liability under rules of vicarious liability for a
defect that was introduced into the product after it left the hands of
the manufacturer.”).
63 Hanover, 758 P.2d at 445.
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by the court of appeals in Sanns v. Butterfield Ford.64 We also set forth
the argument advanced by the concurrence. We then describe how
these arguments ultimately fail and, in particular, the ways each fails
to preserve the essential aspects of our strict products liability
doctrine.
¶ 37 The Bylsmas assert a claim against R.C. Willey for strict
products liability,65 alleging that the chair sold by R.C. Willey
contained an “unreasonably dangerous” defective condition that
was present upon its sale and that caused them damages.66 R.C.
Willey asserts that this claim must be dismissed because the LRA
creates immunity for passive retailers in cases where the
manufacturer is also named in the suit. We first describe the passive
retailer doctrine, which is largely driven by our court of appeals’
decision in Sanns. We then explain why this doctrine conflicts with
the core elements of our strict products liability doctrine, and so is
incompatible with the legislature’s intent to retain that doctrine.
¶ 38 We start with the statutory text that drives R.C. Willey’s
passive retailer argument. As discussed above, the LRA sets “the
maximum amount for which a defendant may be liable to any
person seeking recovery” at “that percentage or proportion of the
damages equivalent to the percentage or proportion of fault
attributed to that defendant,”67 and it provides that “[n]o defendant
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64 2004 UT App 203, 94 P.3d 301.
65 As discussed above, the Bylsmas also assert a breach of
warranty claim, where they assert that R.C. Willey breached two
implied warranties under the UCC. See supra ¶ 15 n.10. We note that
the interpretation of the LRA discussed above forecloses the
possibility of passive retailer immunity for breach of warranty
claims. But because the parties have not presented arguments about
how, if at all, the allocation of fault would differ as between the strict
liability and breach of warranty claims in this case, we do not
address that question here.
66 See Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 2003 UT 43, ¶ 16,
79 P.3d 922 (describing the element of strict products liability as (1)
“a defect or defective condition of the product made it unreasonably
dangerous, (2) that defect was present at the time of the product’s
sale, and (3) that the defective condition was the cause of the
plaintiff’s injuries”).
67 UTAH CODE § 78B-5-820(1).
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is liable to any person seeking recovery for any amount in excess of
the proportion of fault attributed to that defendant.”68
¶ 39 R.C. Willey argues that these provisions mandate passive
retailer immunity. Because a passive retailer had a common law
right of indemnity against the manufacturer, as discussed above,
R.C. Willey asserts that the equitable “percentage or proportion of
fault” to be attributed to such a passive retailer under Utah Code
section 78B-5-820(1) must always be zero. And because no defendant
may be liable “for any amount in excess of the proportion of fault
attributed to that defendant,”69 the LRA (in R.C. Willey‘s view)
effectively codifies a principle of immunity for passive retailers.
¶ 40 R.C. Willey supports this argument by contending that the
LRA expressly forecloses an action for implied indemnity by the
retailer against the manufacturer. It first cites Utah Code section 78B-
5-820(2), which provides that “[a] defendant is not entitled to
contribution from any other person.” It also relies on Utah Code
section 78B-5-823, which states that “[n]othing in Sections 78B-5-817
through 78B-5-822” of the Act “affects or impairs any right to
indemnity or contribution arising from statute, contract, or
agreement.” Together, in R.C. Willey‘s view, these provisions
combine to “establish[] a scheme by which subsequent lawsuits to
fairly distribute liability among joint tortfeasors” are prohibited.
¶ 41 This argument asks us to read the statute’s reference to
“contribution” as encompassing all subsequent claims for equitable
distribution of liability—including implied indemnity. R.C. Willey
claims that the distinction between “contribution” and “indemnity”
“faded” over time in the case law, citing National Service Industries v.
B.W. Norton Manufacturing Co.70 And it accordingly urges us to read
the LRA’s prohibition of claims for “contribution” to encompass
“claims for implied indemnity and common law contribution.” It
also views that approach as reinforced by Utah Code section 78B-5-
823 because that provision preserves only rights of “indemnity or
contribution arising from statute, contract, or agreement,”71 so R.C.
Willey views it as prohibiting (by negative implication) any rights of
indemnity or contribution arising in the common law.
_____________________________________________________________
68 Id. § 78B-5-818(3).
69 Id.
70 937 P.2d 551, 555 (Utah Ct. App. 1997).
71 UTAH CODE § 78B-5-823 (emphasis added).
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¶ 42 R.C. Willey further argues that if the retailer lacks the ability
to protect itself in a separate action for implied indemnity, it will
inevitably be left with liability in excess of its proportionate share.
Thus, R.C. Willey insists that passive retailer immunity is essential to
preserving the core elements of the LRA. It claims that such
immunity is the only way to preserve the legislative prohibition on a
defendant being liable for any amount exceeding its equitable
proportion of fault.
¶ 43 The Sanns decision followed a similar line of analysis. There,
the court of appeals asserted that the purpose of the LRA was to
“attempt to ensure that parties are not held unfairly liable to an
extent greater than their degree of fault.”72 And, citing an opinion of
this court invoking legislative history, the court of appeals also
suggested that the Act was aimed at “basic fairness,” or, in other
words, at assuring that a “defendant ought to be on the hook only
for its own percentage of damages, but ought not be the guarantor
for everyone else’s damages.”73
¶ 44 For this reason, the Sanns court interpreted the LRA to
foreclose product liability for a mere passive retailer in a suit in
which the manufacturer is named. It based that decision on two core
elements of the LRA: (a) the proviso that no tortfeasor is liable for
any amount in excess of the proportion of fault attributed to that
defendant; and (b) the purported elimination of the right to assert a
common law claim for contribution or implied indemnity.74
¶ 45 Because, in the Sanns court’s view, “[t]he strict liability
‘fault‘ . . . , if any, lies with the manufacturer” and not the passive
retailer, the passive retailer doctrine is necessary to protect the
retailer from being saddled “with some or all of the fault actually
belonging” to the manufacturer.75 Thus, in a case in which both the
manufacturer and a passive retailer are named as defendants, the
Sanns court held that the latter is entitled to dismissal on immunity
grounds. “[A]s long as [the manufacturer] is present in the suit,” in
other words, the Sanns court held that there was “no reason to
_____________________________________________________________
72 Sanns, 2004 UT App 203, ¶ 19 (citation omitted).
73Id. (quoting Sullivan v. Scoular Grain Co., 853 P.2d 877, 880 (Utah
1993)).
74 See id. ¶ 21.
75 Id.
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require” the passive retailer “to incur the time and expense of
defending” against a product liability suit.76
¶ 46 The concurrence in this case makes a different argument for
interpreting these same provisions of the LRA, but its approach, too,
fails to maintain the essential aspects of our strict products liability
doctrine. The concurrence agrees that the LRA forecloses passive
retailer immunity, but the approach it advocates would essentially
create a more expansive form of retailer immunity. The concurrence
argues that each entity in a product’s chain of distribution must be
apportioned a separate amount of “fault.” Under this view, the fact-
finder must apportion fault among equally strictly liable
defendants—multiple defendants who all breached the same duty
not to sell a dangerously defective product. Like R.C. Willey and the
Sanns court, the concurrence also reads the LRA to foreclose actions
for implied indemnity.
¶ 47 We reject these approaches as being incompatible with the
legislature’s express retention in the LRA of our strict products
liability doctrine. As discussed above, there are three central
interrelated principles that make up our strict products liability
doctrine: (1) the liability involved is strict and not based on culpable
conduct; (2) from the point of view of the plaintiff, this liability is
imposed equally on each party within a product’s chain of
distribution; and (3) non-culpable sellers of a defective product may
seek indemnity from the manufacturer. These are the doctrines that
were specifically preserved and incorporated into both the LRA and
the PLA.
¶ 48 Despite this legislative intent to retain the strict products
liability doctrine, the passive retailer doctrine and the concurrence’s
version of passive retailer immunity eviscerate each one of its
essential elements: they conflate strict liability with negligence,
importing notions of culpability that are not only foreign to a strict
liability regime, but are also conceptually incompatible with any
definition of strict liability. The passive retailer doctrine
distinguishes between “passive” and “active” sellers of products, but
doing so is incompatible with our adoption of section 402A of the
Restatement (Second) of Torts and its equal imposition of strict
liability on all sellers of a defective product. Finally, these arguments
rely on an incorrect premise: each equates the doctrines of
contribution and implied indemnity, failing to recognize the
_____________________________________________________________
76 Id.
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distinction between both the bases and applications of each doctrine,
and accordingly concludes that they have both been foreclosed by
the LRA.
1. The passive retailer doctrine incorporates considerations of
culpability into a strict liability doctrine
¶ 49 As discussed above, when we adopted section 402A of the
Restatement (Second) of Torts, which sets forth the doctrine of strict
products liability, we adopted its strict liability regime for products
liability claims.77 Because strict liability is, by definition, “liability
without fault,”78 “culpable conduct is not at issue in strict liability,
only causation.”79 Having adopted section 402A, we impose liability
on sellers even if “the seller has exercised all possible care in the
preparation and sale of his product.”80 The seller’s duty is not to sell
a defective product—any sale of a defective product breaches this
duty, regardless of the care taken by the seller. There is no
understanding of strict products liability that makes liability turn on
the culpability of a retailer or manufacturer. And yet, this is exactly
what the passive retailer doctrine does.
¶ 50 In creating the passive retailer doctrine, the Sanns court
purported to recognize the difference between strict liability and
negligence,81 but its analysis reveals that it failed to apply the
distinction. The court reasoned that, because “[the passive retailer]
did not participate in the design, manufacture, engineering, testing,
or assembly” of the product, “[t]he strict liability ‘fault’ . . . , if any,
lies with the manufacturer, not with . . . the passive retailer.”82 The
_____________________________________________________________
77See Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 156–57
(Utah 1979).
78 Id. at 156 (citation omitted).
79 Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1304 (Utah 1981).
80 RESTATEMENT (SECOND) OF TORTS § 402A(2)(a) (AM. LAW INST.
1965).
81 See Sanns, 2004 UT App 203, ¶ 14 n.5 (“The use of strict liability
in this statutory definition should be viewed only as a cause of action
subject to the [LRA], rather than changing the traditional use of the
term fault to somehow include strict liability, a liability concept that
is unconcerned with fault in the usual sense of culpability.”
(emphasis added)).
82 Id. ¶ 21.
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court then concluded that because the LRA “eliminated all aspects of
joint and several liability, . . . strict liability cannot be apportioned
to . . . a passive seller[ ] and also to” a manufacturer.83
¶ 51 But this analysis mixes negligence and strict liability by
implicitly assuming that “fault” under the LRA—a term that
incorporates but does not redefine strict products liability—
necessarily depends on culpability. No provision of the LRA,
however, requires an analysis of culpability instead of strict liability.
“Fault” under the LRA encompasses a number of different legal
duties, from a duty of due care (negligence)84 to a duty “to refrain
from committing intentional torts.”85 The only “fault” at issue in
strict products liability cases—the only “actionable breach of [a] legal
duty”86—is a breach of the duty not to sell a defective product. There
is no culpability involved, no duty of care that must be evaluated. A
seller of a product breaches its duty by selling a defective product,
not by failing to take action to prevent either the defect or the sale of
the product in the first place.87 The inclusion of strict liability within
the definition of “fault” in the LRA does not mean that strict liability
claims must turn on principles of negligence, as the Sanns court
implicitly concluded. Instead, the Sanns court was correct when it
noted that the legislature’s “use of strict liability in this statutory
definition should be viewed only as a cause of action subject to the
[LRA], rather than changing the traditional use of the term fault to
somehow include strict liability, a liability concept that is
unconcerned with fault in the usual sense of culpability.”88
¶ 52 It is vitally important to recognize that the LRA does not
redefine the doctrine of strict products liability. Instead, it includes
within its definition of “fault” the breach of a legal duty. This is
completely consistent with strict products liability, which the statute
_____________________________________________________________
83 Id.
84 See UTAH CODE § 78B-5-817(2) (including within the definition
of “fault” “negligence in all its degrees”).
85 Graves v. N.E. Servs., Inc., 2015 UT 28, ¶ 50, 345 P.3d 619.
86 UTAH CODE § 78B-5-817(2).
87 See Ernest W. Hahn, 601 P.2d at 156 (holding that strict products
liability applies even though “the seller has exercised all possible
care in the preparation and sale of his product” (quoting
RESTATEMENT (SECOND) OF TORTS § 402A(2)(a) (AM. LAW INST. 1965))).
88 Sanns, 2004 UT App 203, ¶ 14 n.5 (emphasis added).
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specifically preserves. The duty at issue in strict products liability
cases is the duty not to sell a defective product. Thus “fault” under
the LRA does not mean only breach of the duty of due care—
negligence—but also includes non-negligent breaches of a duty—
such as the duty not to sell a defective product, which is a duty
shared by all sellers of products.
¶ 53 Accordingly, the Sanns court’s reasoning redefined strict
products liability without legislative direction or intent and failed to
recognize that there is no distinction between the conduct of retailers
and manufacturers that subjects them to liability, thus contradicting
our prior opinions on this topic89 as well as the LRA itself. The
essential conduct—the “fault”—is whether an unreasonably
dangerous product was sold, and this inquiry does not turn on
whether a party could have acted to prevent the injury. There is no
distinction between retailers’ and manufacturers’ conduct as it is the
same conduct—selling a product.
¶ 54 The problem with the Sanns court’s approach is that the
LRA specifically preserves strict products liability. Yet stripped of its
imposition of “strict” liability—liability without fault, based on a
breach of a legal duty not to sell a defective product—it is no longer
the doctrine of strict products liability. Strict products liability is
designed to relieve the plaintiff of any requirement to show
negligence in order to recover. The Sanns court turned this principle
on its head, concluding that, in cases where the manufacturer is
present in the suit, any retailer who did not take part in the “design,
manufacture, engineering, testing, or assembly” of the product
cannot be said to have “fault.” This result is wholly at odds with the
principle that “the liability of nonmanufacturing sellers in the
distributive chain is strict. It is no defense that they acted reasonably and
did not discover a defect in the product, be it from manufacturing,
design, or failure to warn.”90 Ultimately, it appears that the Sanns
court read the LRA’s statement that “[n]o defendant is liable to any
person seeking recovery for any amount in excess of the proportion
_____________________________________________________________
89See Ernest W. Hahn, 601 P.2d at 156; see also Graves, 2015 UT 28,
¶ 62 (holding that the LRA “shifted the focus from apportionment of
comparative negligence to the task of ‘assigning the relative
responsibility’ based on ‘relative fault and relative causation.’”
(emphasis added) (citation omitted)).
90 RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 1 cmt. a (AM. LAW
INST. 1998) (emphasis added).
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of fault attributed to that defendant” as expressing the legislative
intent to fundamentally redefine strict products liability.91 We
disagree.
2. The passive retailer doctrine relieves non-manufacturer sellers of
their liability to plaintiffs
¶ 55 In adopting section 402A, we elected to impose on all sellers
of a product—retailers, wholesalers, distributors, and
manufacturers—an equally shared liability. This aspect of products
liability “protect[s] the ultimate consumer”92 by ensuring that at least
one party will be amenable to suit and likely solvent. It acts “as a
deterrent and a method of allocating the risk of loss among those
best equipped to deal with it.”93 These principles have been
completely undermined by the Sanns court’s approach.
¶ 56 The Sanns court concluded that the “[t]he strict liability
‘fault’ . . . , if any, lies with the manufacturer, not with . . . the passive
retailer.”94 But this distinction between “passive” retailers and
“active” manufacturers directly contradicts our adoption of section
_____________________________________________________________
91 The concurrence’s proposed approach suffers from the same
defect. By requiring apportionment among equally strictly liable
defendants, the concurrence’s approach would necessarily import
considerations of culpability into a strict products liability claim,
which, for reasons we have explained, is incompatible with the very
essence of such a claim. The concurrence uses the example of a duty
to warn claim—another strict liability action that applies to both
retailers and manufacturers—as an example of a time when a retailer
may bear “at least some proportion of fault.” Infra ¶ 127. The
concurrence states that “[a] factfinder could easily conclude that a
retailer is in as good or a better a position to warn.” Infra ¶ 127. In so
doing, the concurrence is necessarily suggesting that what is at issue
in these “strict” liability cases is, in fact, culpable conduct—who
should have acted to prevent the harm. But the concurrence does not
explain why the LRA should be interpreted as redefining strict
products liability in a way that departs from our long-standing
approach, which makes culpability irrelevant in a strict products
liability claim.
92 Ernest W. Hahn, 601 P.2d at 157 (citation omitted).
93Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 2003 UT 43, ¶ 32, 79
P.3d 922.
94 2004 UT App 203, ¶ 21.
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402A and the legislature’s preservation of products liability in the
LRA.95 The restatement does not distinguish between retailers and
manufacturers at all: it applies liability equally to any “seller” of a
product, as discussed above.96 Our legislature has likewise
recognized that a products liability claim can be asserted against “a
product manufacturer, wholesaler[,] or retailer.”97 By holding each
party equally responsible for its conduct in selling a defective
product, the plaintiff is protected because among all of the parties
included within a product’s chain of distribution, at least one—most
often the local retailer—will be amenable to suit and likely solvent.98
¶ 57 The Sanns court concluded that a passive retailer should be
dismissed from a products liability action so long as the
manufacturer “is named in the suit.”99 But allowing a retailer to be
immediately dismissed is irreconcilable with our adoption of section
402A and with the LRA’s express direction that our strict products
liability doctrine be preserved. Adopting this immunity would have
three results: first, we would effectively overrule our adoption of the
Restatement, which imposes equal liability on anyone “who sells any
product in a defective condition” so long as “the seller is engaged in
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95 Indeed, as one commentator noted, Sanns’s “logic can succeed
only if strict liability no longer connotes an absolute duty and
instead equates to culpability[,] . . . [which requires an] implicit[]
reject[ion] [of] the doctrines of Section 402A in cases involving a
passive seller and a manufacturer.” Burt, supra note 16, at 505–06.
96See RESTATEMENT (SECOND) OF TORTS § 402A(1) (AM. LAW INST.
1965); RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 1 cmt. e (AM.
LAW INST. 1998) (“[A]ll commercial sellers and distributors of
products, including nonmanufacturing sellers and distributors, such
as wholesalers and retailers, are subject to liability for selling
products that are defective.”).
97 See UTAH CODE § 78B-6-704.
98 See Ernest W. Hahn, 601 P.2d at 157 (“The liability was created
judicially because of the economic and social need for the protection
of consumers in an increasingly complex and mechanized society,
and because of the limitations in the negligence and warranty
remedies.” (citation omitted)).
99 2004 UT App 203, ¶ 22.
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the business of selling such a product.”100 Second, it would shift the
cost of the injury resulting from defective products from retailers
and manufacturers—those that we have long recognized as being
best equipped to absorb such costs by creating safer products,
contracting with more responsible parties, and spreading the loss to
the public at large—onto injured parties in cases where the
manufacturer is incapable of satisfying a judgment. If a retailer is
dismissed from a suit on the grounds of “immunity,” then the
plaintiff cannot recover the “alternative remedy” provided by strict
products liability “in the event that the manufacturer is insolvent.”101
Third, we would greatly weaken the incentive scheme created by
products liability. With a passive retailer doctrine in place, retailers
would have significantly diminished incentive to work with
responsible, solvent manufacturers who produce safe products
because, so long as they choose a manufacturer who is capable of
being “named in the suit,” the retailers would be entitled to be
dismissed from any product liability claims. We cannot accept these
results where the legislature has specifically retained our strict
products liability doctrine in the LRA.
¶ 58 Ultimately, not only is there no basis in the substantive law
of product liability in tort to categorically exempt passive retailers
from responsibility, there is no basis in the substantive law of
products liability to limit passive retailers’ responsibility at all.
Under the substantive law of products liability, retailers and
manufactures have an equal, indivisible share of “fault”—the breach
of the duty not to sell a defective product.102 And there is no support
for the notion that the legislature, by way of a broadly worded
provision requiring the allocation of a broadly defined
understanding of “fault” intended to redefine strict products liability
in such a drastic way. The legislature defined “fault” in a way that is
wholly consistent with our products liability doctrine. We see no
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100See supra note 41; RESTATEMENT (SECOND) OF TORTS § 402A(1)
(AM. LAW INST. 1965).
101 Brooks v. Beech Aircraft Corp., 902 P.2d 54, 58. (N.M. 1995).
102See RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIAB. § 26
cmt. g (AM. LAW INST. 2000) (“Damages are indivisible, and thus the
injury is indivisible, when all legally culpable conduct of the plaintiff
and every tortious act of the defendants and other relevant persons
caused all the damages.”).
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basis for relying on such a definition to so substantially modify the
key tenets of strict products liability.
3. The Sanns court conflated contribution with implied indemnity
and foreclosed both
¶ 59 R.C. Willey’s argument, like our court of appeals’ decision
in Sanns and the concurrence in this case, is largely driven by the
mistaken conclusion that the LRA foreclosed actions for implied
indemnity. We now explain why it did no such thing.
¶ 60 The Sanns court held that implied indemnity actions have
been foreclosed by the LRA.103 It is true that the LRA requires a
unitary determination of comparative fault, encompassing not just
parties to the suit but any individual who can be identified and for
whom there is a “factual and legal basis to allocate fault.”104 This
means there is to be a single, unitary proceeding for allocating
comparative fault. But implied indemnity actions do not reallocate
comparative fault. To conclude that implied indemnity actions
reallocate fault is to conflate implied indemnity with contribution.
Because of this conflation, the Sanns court held that implied
indemnity actions are foreclosed by the LRA.
¶ 61 The two relevant statutory provisions dealing with
contribution and implied indemnity under the LRA are sections 78B-
5-820(2) and 78B-5-823. Section 820(2) states that “[a] defendant is
not entitled to contribution from any other person.” The second
statutory provision, section 78B-5-823, provides that the LRA does
not “affect[] or impair[] any right to indemnity or contribution
arising from statute, contract, or agreement.” Suits for indemnity are
different than suits for common law contribution because indemnity
actions do not reallocate comparative fault. Thus, the LRA requires a
single, unitary proceeding for allocating comparative fault but does
not prohibit separate suits for indemnity.
¶ 62 Conflating implied indemnity with contribution caused the
Sanns court to assume that an action for implied indemnity is a
reallocation of fault—dividing damages between defendants. The
Sanns court relied on an earlier court of appeals case that had
concluded that implied indemnity and contribution are simply
_____________________________________________________________
103 Sanns, 2004 UT App 203, ¶ 20 (“[I]t is clear that fault can no
longer be apportioned to one defendant with the idea that it may
later seek indemnification or contribution from another.”).
104 UTAH CODE § 78B-5-818(4)(a).
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“alternative labels” for the same cause of action.105 But our caselaw
shows that we have maintained a clear distinction between these
doctrines.
¶ 63 “‘[I]ndemnity’ involve[s] full reimbursement whereas
‘contribution’ involve[s] splitting the damages among the joint
tortfeasors.”106 Contribution was the mechanism by which a
defendant who paid an obligation for which he was only partially
responsible under the doctrine of joint and several liability recovered
the amount paid beyond his personal responsibility. This doctrine
did reallocate fault between tortfeasors, each of whom was factually
liable for only a portion of damages. Implied indemnity, on the other
hand, has never applied to joint and several liability. Instead, it
applied only to strict products liability claims107 and principal/agent
situations108—situations in which a defendant paid an obligation it
was legally obligated to pay in full because of the defendant’s
relationship to a third party.109 Contrary to the concurrence’s
suggestion,110 an implied indemnity suit does not reallocate fault, for
_____________________________________________________________
105Nat’l Serv. Indus., Inc. v. B.W. Norton Mfg. Co., 937 P.2d 551, 555
(Utah Ct. App. 1997).
106Id. at 554 (emphasis added); see also RESTATEMENT (SECOND) OF
TORTS § 886B cmt. a (AM. LAW INST. 1979) (“A suit for indemnity is
brought to recover the total amount of the payment by the plaintiff,
on the ground that the plaintiff’s conduct was not as blameworthy as
the defendant’s . . . .”).
107 See, e.g., Davidson Lumber Sales, Inc. v. Bonneville Inc., 794 P.2d
11, 12 (Utah 1990).
108See Culmer v. Wilson, 44 P. 833, 836 (Utah 1896) (holding that
the “law will imply an indemnity” to an agent who acts on the
instructions of his principal “for any damages [the agent] was made
to pay on account of such acts,” if the agent acted in good faith and
without wrongful intent or purpose).
109See Hanover, Ltd. v. Cessna Aircraft Co., 758 P.2d 443, 446 (Utah
Ct. App. 1988) (stating that an implied indemnity suit is “based upon
the relationship between the parties” and implied indemnity
prevents “the retailer-indemnitee . . . from being held derivatively or
vicariously liable for the wrongful act of the manufacturer-
indemnitor”).
110 The concurrence, like the Sanns court, conflates contribution
and indemnity. The concurrence quotes Black’s Law Dictionary for the
definition of “contribution” that includes a “tortfeasor’s right to
(Continued)
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the paying party was legally responsible for the full amount of
payment;111 instead, indemnity is “granted in . . . factual situation[s]
in which, as between the parties themselves, it is just and fair that the
indemnitor should bear the total responsibility, rather than leave it on
the indemnitee or to divide it proportionately between the parties by
contribution.112 In strict products liability actions, this means that
“passive suppliers, distributors, and retailers may be entitled to
indemnification from the manufacturer of a defective product for
any judgment they are required to pay a purchaser.”113
collect from joint tortfeasors when, and to the extent that, the
tortfeasor has paid more than his or her proportionate share to the
injured party, the shares being determined as percentages of causal
fault.” Infra ¶ 133 n.182. But this definition illustrates that
contribution is distinct from indemnity, the latter of which does not
involve an assessment of the “proportionate share” of “causal fault”;
rather, indemnity operates independently of any allocation of causal
fault. The relevant Black’s Law definition of “indemnity” is “[t]he
right of a party who is secondarily liable to recover from the party
who is primarily liable for reimbursement of expenditures paid to a
third party for injuries resulting from a violation of a common-law
duty.” Indemnity, BLACK’S LAW DICTIONARY (10th ed. 2014). Black’s
Law also contains a definition of “implied indemnity,” which
specifically recognizes that this type of indemnity is “based on the
parties’ relationship.” Id. These definitions highlight the distinction
between indemnity and contribution. Indemnity involves one party’s
obligation to reimburse another based on the relationship between
the parties, and not—as in the case of contribution—based on an
allocation of fault.
111See RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIAB. § 13
(AM. LAW INST. 2000) (“A person whose liability is imputed based on
the tortious acts of another is liable for the entire share of
comparative responsibility assigned to the other . . . .”).
112RESTATEMENT (SECOND) OF TORTS § 886B cmt. c (AM. LAW INST.
1979) (emphases added).
113 Hanover, 758 P.2d at 445–46. It bears repeating that, in a strict
products liability action, each defendant who breaches the duty not
to sell a defective product is strictly liable—its breach of this duty
cannot be subdivided as a factual or legal matter, because there are
no degrees of selling a product. See supra ¶ 58; infra ¶ 71. The basis
for indemnification in this context then is not that a manufacturer is
(Continued)
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¶ 64 The LRA specifically bars a defendant from recovering
contribution, which is consistent with the fact that contribution was
an artifact of the old comparative negligence regime where a party
could bring a subsequent action seeking to allocate fault to another
party. But indemnity is an altogether different matter. A right to
implied indemnity exists independent of any assessment of fault,
and is instead based on the relationship of the parties.114 It therefore
makes perfect sense that the LRA contains no provision barring an
action for implied indemnity. The legislature decided to expressly
prohibit contribution, and it could have done the same for
indemnity, but it chose to foreclose only contribution. The fact that
the legislature could have, but did not, foreclose indemnity is
significant. Instead of assuming, as the concurrence does,115 that the
responsible for some portion of the fault allocated to a distributor or
retailer. Instead, the upstream parties’ responsibility to indemnify
those downstream arises from the nature of the relationship between
the parties in the distribution chain, and not from an apportionment
of fault.
114 See supra ¶ 63 & n.109.
115 The concurrence argues that the negative implication of Utah
Code section 78B-5-823’s preservation of rights to “indemnity or
contribution arising from statute, contract, or agreement” is that
indemnity rights arising from the common law are foreclosed. This
argument is unpersuasive. The concurrence fails to recognize that
the LRA expressly precludes only a right to contribution. See UTAH
CODE § 78B-5-820(2) (“A defendant is not entitled to contribution
from any other person.”) Nothing in the statutory scheme expressly
precludes a right of indemnity. Utah Code section 78B-5-823
buttresses this conclusion where it refers to “indemnity or
contribution.” The legislature’s use of both terms in this section
signals that it recognizes that the two terms refer to distinct legal
doctrines and demonstrates that it knows how to refer to both when
it so intends. Id. § 78B-5-823 (“Nothing in [the LRA] affects or
impairs any right to indemnity or contribution arising from statute,
contract, or agreement.”) The concurrence concludes that the
legislature, in using only the word “contribution” in section 820(2),
intended to foreclose actions for both indemnity and contribution.
But this conclusion violates well-recognized canons of statutory
interpretation: “[w]e presume that the legislature used each word
advisedly,” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000
(alteration in original) (citation omitted), and that a difference in
word choice is to be assigned a difference in meaning, see 2A
(Continued)
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legislature simply misspoke when it barred only contribution, but
not indemnity, we presume that the omission of a prohibition
against indemnity from the LRA was purposeful.116 Giving effect to
the statutory text, we recognize that the legislature is cognizant of
the distinction between indemnity and contribution, and chose to
foreclose only the latter. This choice is consistent with the legislative
intent we have discussed above: to preserve strict products liability,
not eliminate it. And the decision to omit a prohibition against
indemnity is completely consistent with other provisions of the LRA
because, as discussed above, indemnity does not involve a
reallocation of fault.
¶ 65 Accordingly, the Sanns court’s approach was fundamentally
flawed. By conflating negligence with strict liability and contribution
with implied indemnity, it in large measure reduced the
“downstream” liability of non-manufacturers, effectively shielded
retailers from liability, and flatly prohibited any “upstream”
indemnity. As discussed above, the legislature intended to preserve
our strict products liability doctrine as it was understood. The Sanns
court did not. The passive retailer doctrine is inconsistent with the
LRA’s explicit retention of strict products liability.
¶ 66 In sum, the LRA does not immunize passive retailers from
suit. Like every entity that breaches its duty not to sell a dangerously
defective product, a passive retailer has “fault,” as the LRA uses that
term. This does not end our analysis, however, because we note the
novel issue that is sure to be presented by this case on remand:
whether a fact-finder can apportion fault among strictly liable
defendants who are equally strictly liable under the same legal
theory. We now turn to providing an answer to that question that
SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 46:6 (7th
ed.) (“Different words used in . . . a similar[] statute are assigned
different meanings whenever possible.”). Construing “contribution”
to mean “contribution or indemnity,” where the legislature
elsewhere has referred to “indemnity or contribution,” violates these
canons. So there is little support for the argument that the LRA
“appears to eliminate common law claims for both ‘contribution’
and ‘indemnity.’” Infra ¶ 133 n.182. Rather, for the reasons we
discuss, the most natural reading of these two provisions is that the
LRA forecloses only contribution and not indemnity.
116Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d
984 (We “seek to give effect to omissions in statutory language by
presuming all omissions to be purposeful.” (citation omitted)).
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honors and retains the essential aspects of our strict products
liability doctrine.
D. The LRA Does Not Require that Fault Be Allocated Among Strictly
Liable Defendants; Instead, It Requires They Be Treated as a Single Unit
Vis-à-Vis the Plaintiff
¶ 67 On remand, the district court will confront a novel question
that has not been addressed by appellate courts in Utah: how to
handle the apportionment required by the LRA while honoring the
legislature’s intent to preserve our strict products liability doctrine.
We provide guidance to the district court on remand so that it might
avoid an improper application of the LRA’s text in this context. As
discussed above, the history of our strict products liability doctrine
and the text and context of the LRA indicate that the legislature
intended to preserve strict liability in enacting the LRA. Having
demonstrated the legislature’s intent to retain strict liability, we now
explain how to achieve the legislative mandate that “fault” be
apportioned in cases where multiple defendants are liable on the
same strict liability theory. We reject an interpretation of the LRA
that would require the fact-finder to allocate fault among strictly
liable tortfeasors who are strictly liable under the same theory for the
same harm. Such an approach would eviscerate our strict products
liability doctrine by returning to concepts of negligence in
determining which one of multiple strictly liable tortfeasors is at
“fault” for the injury. But we must explain how, then, a fact-finder is
to apportion “fault” when that term includes strict liability, products
liability, and breach of warranty. We reconcile this language by
adopting a “relative causation” approach applied by our sister courts
in similar circumstances. This allows us to do justice to the LRA’s
text without eviscerating strict products liability doctrine’s core
tenets.
¶ 68 With these principles in mind, we begin with our
conclusion, discussed above, that the legislature did not intend to
abrogate the fundamental, substantive aspects of products liability.
This conclusion requires that we address what the legislature did
intend by including strict products liability within the scope of the
LRA. Thus, although it is clear the LRA’s allocation of “fault” cannot
be based on culpability, there must still be some allocation of “fault”
that includes strict products liability.
¶ 69 Accordingly, we have an ambiguity in the statute: it calls
for apportionment of “fault” to each defendant, yet it does not alter
the basic premise that the liability involved is strict liability—liability
without fault. And there is no conceptual way of dividing strict
liability—something that by definition cannot be divided—that does
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not involve transforming it into a form of negligence. In resolving
this ambiguity, the text of the LRA guides our approach.
¶ 70 The LRA requires the fact-finder to “allocate the percentage
or proportion of fault attributable to each person seeking recovery, to
each defendant, to any person immune from suit, and to any other
person identified . . . for whom there is a factual and legal basis to
allocate fault.”117 Because any division of fault between strictly liable
parties is either completely arbitrary or incorporates notions of
negligence—neither of which is acceptable as a matter of legislative
intent or under basic principles of law—there is simply no “factual
or legal basis to allocate fault” between strictly liable parties who are
liable under the same theory and for the same conduct.118
¶ 71 There is no factual basis to apportion strict products liability
among strictly liable defendants because doing so requires the fact-
finder to look for evidence of culpability, which is impermissible
under a strict liability claim. The only “fault” at issue in strict
products liability cases is the breach of the duty not to sell a defective
product. Such “fault” is not based in notions of culpability or
wrongdoing and is equally attributable to each seller of a product—
from a manufacturer to a local retailer. There is also no legal basis to
apportion strict products liability, for strict products liability is a
binary question—did a party sell a defective product? If yes, then it
is strictly liable. There is no legal principle found in our strict
products liability doctrine that permits strict liability “fault” to be
divided among multiple parties who are each liable for the same
act.119 Instead, the LRA requires us to apply comparative fault
_____________________________________________________________
117 UTAH CODE § 78B-5-818(4)(a).
118Id. Although as a grammatical matter the statutory phrase “for
whom there is a legal and factual basis to allocate fault” applies only
to phrase “any other person identified”—non-parties to whom fault
will be allocated—as a legal matter, fault can never be allocated to a
party without a factual and legal basis for that allocation.
119 We need not, and do not, decide here whether the LRA
requires apportionment of damages among strictly liable defendants
in contexts other than products liability. Other situations may arise,
as the concurrence points out, where multiple defendants are each
strictly liable for the same harm. See infra ¶ 124 n.173 (discussing Red
Flame Inc. v. Martinez, 2000 UT 22, 996 P.2d 540). The concurrence
relies on Red Flame for the proposition that we “implicitly accepted
(Continued)
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principles based on the “relative responsibility” of each party by
comparing “relative fault and relative causation.”120
¶ 72 “Fault” under the LRA incorporates almost every claim that
can “proximately caus[e] or contribut[e] to injury or damages.”121
Thus, the LRA’s definition of fault expressly asks a fact-finder to
look to “relative causation” in making its allocation of “fault.” We
recently reaffirmed this interpretation of the LRA in Graves v. North
Eastern Services, Inc.122 In that case, we reemphasized that LRA
“shifted the focus from apportionment of comparative negligence to the
task of ‘assigning the relative responsibility’ based on ‘relative fault
and relative causation.’”123 The LRA did not redefine strict products
liability into a negligence-based tort. Instead, the text makes clear
that the LRA was intended to ensure that comparative fault
principles would apply when comparing the strict liability of
the argument that comparative fault principles would apply even
among strictly liable defendants.” The concurrence correctly notes
that the lead opinion in that case “repudiated a decision that had
previously held that comparative fault principles did not apply
between two establishments serving alcohol under the Dramshop
Act.” Infra ¶ 124 n.173. But that sheds no light on the problem we
face here—how to interpret the LRA’s interaction with strict products
liability, which the legislature expressly sought to retain. Because
Red Flame did not assess strict products liability under the LRA, it
does not control our decision here. As we have explained, in a claim
for strict products liability, the various entities in the chain of
distribution have sold the same dangerously defective product to the
same plaintiff, and there is thus no factual or legal basis to apportion
fault between these entities. Whether the same holds true in other
strict liability contexts is a question we need not decide here.
120 Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1304 (Utah 1981).
121 UTAH CODE § 78B-5-817(2) (stating that “‘[f]ault’ means any
actionable breach of legal duty, act, or omission,” and includes
“negligence in all its degrees, comparative negligence, assumption of
risk, strict liability, breach of express or implied warranty of a
product, products liability, and misuse, modification, or abuse of a
product”).
122 2015 UT 28, 345 P.3d 619.
123 Id. ¶ 62 (emphasis added) (citation omitted).
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defendants against the negligence of plaintiffs.124 This is why the
LRA includes within its definition of “fault” both the claims a
plaintiff can assert—strict liability, products liability, and breach of
warranty—as well as the defenses a strictly liable defendant can
raise—misuse, modification, or abuse of a product.125 These can and
should be compared when determining a plaintiff’s recovery. But the
LRA was never intended to accomplish a legal impossibility—the
allocation and division of strict products liability between multiple
parties who are each strictly liable under the same theory for
engaging in the same conduct. Instead, we must apply principles of
relative causation in allocating “fault” among such parties. This
approach is confirmed by the relevant legislative history and our
own caselaw on this point.126
_____________________________________________________________
124 Indeed, this is exactly what we have done in prior cases
applying the LRA to strict liability claims. See Red Flame, 2000 UT 22,
¶¶ 2, 10–12 (applying comparative fault principles to compare the
strict liability of a dramshop against the negligence of another
defendant); S.H. ex rel. Robinson v. Bistryski, 923 P.2d 1376, 1380–82
(Utah 1996) (applying comparative fault principles to compare the
strict liability of a dog owner for a dog bite to the negligence of a
plaintiff).
125 This conclusion is supported by the Product Liability Act. The
PLA specifically states that “fault” for purposes of the LRA “shall
include an alteration or modification of the product.” UTAH CODE
§ 78B-6-705. Because the PLA is entirely focused on products
liability, this suggests that the legislature’s concern was comparing
the fault of a negligent plaintiff against the strict liability of any
seller.
126 See World Peace Movement of Am. v. Newspaper Agency Corp., 879
P.2d 253, 259 (Utah 1994) (holding that when the plain language of a
statute is ambiguous and fails to resolve an issue, “we seek guidance
from the legislative history and relevant policy considerations”). The
concurrence argues that our reliance on legislative history is
improper. Infra ¶ 105. We agree with the concurrence that “when
statutory language is plain” there is no need to delve into legislative
history. Infra ¶ 105. But we disagree that the LRA is as “plain” as the
concurrence finds it. As we have noted, the text of the LRA leaves us
with an ambiguity, see supra ¶ 69, and we accordingly look to
legislative history as a valuable tool for gaining insight into resolving
(Continued)
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¶ 73 When we adopted the products liability doctrine in 1979 in
Ernest W. Hahn, Inc. v. Armco Steel Co.,127 we held that there were two
defenses to a strict products liability claim: misuse of the product
and knowledge of the defect.128 We specifically declined to address,
however, “whether comparative principles should apply in strict
products liability cases.”129 That issue was taken up in Mulherin v.
Ingersoll-Rand Co.130
¶ 74 The jury in Mulherin had found that there were “concurrent
proximate causes of the injury: the defective condition of the
[product] manufactured by defendant and plaintiff’s misuse of the
[product].”131 We stated that “[b]oth parties can therefore be said to
be at fault in contributing to plaintiff’s injuries,” and held that
“fault” in this context “connotes responsibility,” not negligence.132
We ultimately held that “both faults should be considered by the
trier of fact in determining the relative burden each should bear for
the injury they have caused.”133 In so doing, we noted that “[t]here
may be semantic difficulties in comparing strict liability and
negligence,” but stated “that judges and juries will have no difficulty
assigning the relative responsibility each is to bear for a particular
injury” for “the ultimate issues in such comparisons are relative fault
and relative causation.”134
¶ 75 Soon after Mulherin was decided, the legislature adopted the
LRA. The legislative history surrounding the LRA’s adoption is clear
that it was never intended to subvert or alter the substantive law of
strict products liability. Senator Lyle Hillyard specifically asked
about the inclusion of strict products liability within the LRA’s
definition of fault. He was concerned because, consonant with the
longstanding understanding of strict liability described above, “if
that ambiguity in a way that best represents the expressed intent of
the legislature.
127 601 P.2d 152, 156 (Utah 1979).
128 See id. at 158.
129 Id. at 158–59 (footnote omitted).
130 628 P.2d 1301 (Utah 1981).
131 Id. at 1303.
132 Id. at 1303 & n.7.
133 Id. at 1303.
134 Id. at 1304 (emphases added).
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there’s strict liability found, it’s generally found, period, and you’re
not 10 percent or 20 percent or 50 percent at fault. . . . You’re not
even talking about percent, of 10 percent, 20 percent, or 50 percent.
You’re talking about totally different concepts.”135 Senator Hillyard
was concerned that we had already begun to undercut our strict
products liability doctrine in Mulherin by allowing the negligence of
a party to be compared against the strict liability of another party.136
He was further concerned that the legislature was conflating
negligence with strict liability by way of the LRA’s broad definition
of “fault.”
¶ 76 Assistant Attorney General Steve Sorenson’s response to
this concern was that the bill was not going to “change the
substantive law of strict liability or breach of warranty at all.”137
Instead, “[w]hat it says is, if you have multiple defendants, one of
whom is guilty of negligence, one of whom is guilty of strict liability, the
jury, in apportioning fault, apportions fault between those parties
regardless of the theory on which the party is liable.”138 In explaining
the bill’s effect, Mr. Sorenson stated that this issue—the comparing
of “fault” between a party liable under negligence and a party liable
under strict liability—was an issue that we as a court had struggled
with in our decision in Mulherin.139 The LRA was intended as a
“clarification” that our decision in Mulherin was correct—that we can
and should compare the “fault” of “different defendants, guilty on
different theories of liability.”140
¶ 77 Thus, the legislative history of the LRA confirms two
conclusions that are clear from the text of the Act: first, the LRA did
not “change the substantive law of strict liability or breach of
_____________________________________________________________
135 Utah Senate Floor Debates, S.B. 64, 46th Leg., 1986 Gen. Sess.
(Feb. 12, 1986) [hereinafter Debate] (statement of Sen. Lyle Hillyard).
136See id. (stating that absolute strict liability has “been clouded
by the recent Supreme Court decision [Mulherin] on what damages
you may recover”).
137Id. at 18 (statement of Assistant Attorney General Steve
Sorenson).
138 Id. at 18–19 (emphasis added).
139 Id. at 19.
140 Id. (emphasis added).
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Opinion of the Court
warranty at all.”141 This intent was made evident through the
legislature’s specific preservation of products liability, as discussed
above. At that time, the substantive law of strict products liability
was (and still remains) that the doctrine “imposes liability in tort
without proof of negligence upon ‘one who sells any product in a
defective condition unreasonably dangerous to the user or
consumer.’”142 Thus, whatever allocation is required under the LRA,
it must leave intact the substantive law of strict products liability.
¶ 78 Second, the LRA codified the principles found in Mulherin—
that we can compare the “fault” of a strictly liable party against the
“fault” of a negligent one.143 In fact, we expressly held that such was
the case in Graves v. North Eastern Services, Inc., where we recognized
that “[t]he 1986 Act [the LRA] adopted the essential principles of the
Mulherin court’s analysis. . . . [I]t shifted the focus from
apportionment of comparative negligence to the task of ‘assigning
the relative responsibility’ based on ‘relative fault and relative
causation.’”144 Thus, we can and must compare the relative causation
of strictly liable parties against the relative fault of the plaintiff or
other defendants.
¶ 79 Indeed, the only way to preserve both the substantive law of
strict products liability—a doctrine distinct from negligence—as well
as its policies and purposes—to protect and fully compensate injured
plaintiffs—is to limit the LRA’s apportionment of fault in strict
products liability cases to the scenarios contemplated by the
legislature when the LRA was enacted. As discussed above, the
legislature was concerned with comparing the “fault” of strictly
liable parties (the breach of the duty not to sell a defective product)
against the negligence of others, usually the plaintiff. 145 We cannot,
_____________________________________________________________
141 Id. at 18.
142 Mulherin, 628 P.2d at 1302 (emphasis added) (citation omitted).
143 See Debate, at 18–19 (“What it says is, if you have multiple
defendants, one of whom is guilty of negligence, one of whom is guilty of
strict liability, the jury, in apportioning fault, apportions fault
between those two parties regardless of the theory on which the
party is liable.” (emphasis added) (statement of Assistant Attorney
General Steve Sorenson)).
144 Graves, 2015 UT 28, ¶ 62 (citation omitted).
145See Debate, at 19 (stating that the LRA requires a comparison
of fault between “different defendants, guilty on different theories of
(Continued)
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Opinion of the Court
consonant with the text and history of the LRA as well as the
doctrine and purposes of strict products liability, interpret the LRA
to require the fact-finder to apportion fault among strictly liable
parties. Indeed, we cannot divide strict products liability between
strictly liable sellers of a defective product at all.
¶ 80 To reconcile the text of the LRA requiring apportionment
with its explicit retention of strict products liability, we adopt the
same approach that the Texas Supreme Court adopted in Duncan v.
Cessna Aircraft Co.:
Many courts and commentators have labeled this type
of loss allocation system comparative fault. We choose
comparative causation instead because it is conceptually
accurate in cases based on strict liability and breach of
warranty theories in which the defendant’s “fault,” in
the traditional sense of culpability, is not at issue. The
trier of fact is to compare the harm caused by the defective
product with the harm caused by the negligence of the other
defendants, any settling tortfeasors and the plaintiff. The
fault or conduct of the products defendant is not at
issue.146
¶ 81 Under this approach, the jury must make two
determinations in resolving a strict products liability claim: first, the
jury must determine whether the defendants are at “fault”—whether
they breached their duty not to sell a defective product—and should
be held strictly liable. In other words, the jury must first determine
that the plaintiff has proven the elements of strict products liability—
the product was defective, it caused some part of the plaintiff’s
liability.” (emphasis added) (statement of Assistant Attorney General
Steve Sorenson)).
146665 S.W.2d 414, 427 (Tex. 1984) (last emphasis added) (footnote
omitted). Although the Texas court’s approach was not based on a
statute similar to the LRA, this does not change the persuasive
authority of its approach. The court was “fashioning a common law
comparative apportionment system for strict products liability
cases” in recognition of “the impact of major legislative innovations”
such as the adoption of a comparative negligence statute. Id. (citation
omitted). Thus, the Texas court was applying the principles of a
statutorily mandated comparative negligence analysis to strict
products liability—the exact thing that the legislature has required
that we do under the LRA.
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Opinion of the Court
injuries, it was sold by the defendant, and the defendant is in the
business of selling such products. Then, after it has made that
determination, the jury must allocate the “fault” in the case by
determining the proportion of the injury caused by the defective
product and the proportion of the injury caused by the plaintiff’s
“misuse, modification, or abuse of [the] product.”147 In this way, we
honor the LRA’s requirement to allocate “relative fault and relative
causation.”148 Importantly, there is no separate comparison or
allocation of strict liability “fault” as between the identically strictly
liable defendants. The relative culpability of the defendants does not
factor into the jury’s allocation at all.
¶ 82 Once the jury has performed this allocation, whichever
party is present in the suit that has been found to be strictly liable for
selling the defective product must pay an amount equal to the
proportion of the injury found to be caused by the defective
product—in other words, the proportion of the injury caused by the
strictly liable defendants’ collective breach of their duty not to sell a
defective product.149 That party would then have the right to assert
_____________________________________________________________
147 UTAH CODE § 78B-5-817(2). The usual products liability case
will compare the causation of the plaintiff’s actions against the
defective product. This does not mean that there cannot be cases
where the strict liability of a seller of a product must be compared
with the negligence of a third-party or even its own negligence. Such
a case may be where a seller of a product also installs the product in
the plaintiff’s home, permitting the plaintiff to assert both a strict
products liability claim—the product was defective when sold—and
a negligence claim—the product was negligently installed. The same
type of analysis would apply: the fact-finder must first determine
whether the parties breached their legal duties—whether the seller
breached its duty not to sell a defective product and whether it also
breached its separate duty of due care—and is thus responsible for
the injuries under the asserted causes of action. Then the fact-finder
must apportion the amount of injury that was caused by each
breach. The seller would have an implied indemnity claim for the
amount that it paid under the strict products liability claim.
148 Graves, 2015 UT 28, ¶ 62 (citation omitted).
149See RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIAB., § 7,
cmt. j (AM. LAW INST. 2000) (“When a party is liable solely on the
basis of another person’s tortious conduct, there is no direct
responsibility to assign to the party to whom liability is imputed. In
that situation, the party who committed the tortious acts or
(Continued)
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Opinion of the Court
an indemnification claim against the manufacturer or other entities
responsible for the defect in the product either as a cross-claim or a
third-party claim in the original action or, if it so elects, in a separate
proceeding altogether. And if there are multiple strictly liable
parties, the plaintiff can recover from any of them, leaving the
ultimate burden of payment to be fought out between the retailers,
wholesalers, and manufacturer.
¶ 83 Under this approach, the principles of both the LRA and
strict products liability are satisfied. No party has been required to
pay more than its share of fault (the breach of the duty not to sell a
defective product)—there is no return of joint and several liability—
for, as discussed above, each party within a product’s chain of
distribution is fully liable for any injuries resulting from the
product.150 “Plaintiffs will continue to be relieved of proving that the
manufacturer or distributor was negligent in the production, design,
or dissemination of the article in question. Defendant’s liability for
injuries caused by a defective product remains strict. As a result, the
omissions and the party to whom liability is imputed are treated as a
single unit for the assignment of responsibility. For example, an
employer who is vicariously liable for the negligence of an employee
and the employee are treated as a single entity. Similarly, an innocent
retailer and a manufacturer of a defective product are treated as a single
entity.” (emphasis added)). Because the various entities in the supply
chain will be treated as a single unit for purposes of fault allocation,
the concurrence is incorrect to suggest that “cumulative fault will
necessarily exceed 100 percent.” Infra ¶ 114. The concurrence is also
wrong to suggest that “every seller in the supply chain will be 100
percent liable.” Infra ¶ 114. That statement fails to account for the
apportionment of fault between the chain of distribution, as a unit,
and others for whom there is a factual and legal basis to apportion
fault, for example, the injured plaintiff and others who may have
had a hand in bringing about the injury.
150 See RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIAB. § 13
(AM. LAW INST. 2000) (“A person whose liability is imputed based on
the tortious acts of another is liable for the entire share of
comparative responsibility assigned to the other . . . .”); id. § 13 cmt. a
(“In a number of contexts, the responsibility of one actor is legally
imputed to another, and vicarious liability is imposed. . . . Retailers
and other nonmanufacturer sellers of products may be held strictly
liable for a defect attributable to the manufacturer, in effect imposing
vicarious liability on the retailer.”).
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Opinion of the Court
product supplier’s incentive to eliminate or to reduce product
hazards should remain intact.”151 And “[c]omparative causation
does not affect the right of a retailer or other member of the
marketing chain to receive indemnity from the manufacturer of the
defective product when the retailer or other member of the
marketing chain is merely a conduit for the defective product and is
not independently culpable.”152 By focusing on relative causation,
we avoid conflating principles of negligence with strict liability. And
products liability—with all of its attendant policies and purposes—
survives intact, as intended by the legislature.
II. We Vacate the District Court’s Decision Declining to Award the
Bylsmas Attorney Fees
¶ 84 The Bylsmas’ request for attorney fees is based on a
provision in a sales agreement with R.C. Willey and the terms of
Utah Code section 78B-5-826. The security agreement provides that
R.C. Willey is entitled to recover attorney fees if it is “required to
instigate legal action or take other means to collect amounts” owed
to it. This action was, of course, not initiated by R.C. Willey, but by
the Bylsmas. But the Bylsmas nonetheless claim a right to recover
fees under the agreement through the reciprocal attorney fee
provision of the Utah Code. That provision states that a court may
award attorney fees to “either party that prevails in a civil action
based upon” a written contract if the terms of the agreement “allow
at least one party to recover attorney fees.”153
¶ 85 “This provision consists of a conditional if/then statement:
(a) If the provisions of a written contract allow at least one party to
recover attorney fees in a civil action based upon the contract, (b)
then a court may award attorney fees to either party that prevails.”154
We have interpreted the statute to call for a hypothetical analysis of
the case as it would have proceeded if successfully advanced by the
party with an explicit right to fees under the contract.155 If a contract
would have allowed “one party to recover fees” in the
“hypothetical” circumstance in which that party sued successfully
_____________________________________________________________
151 Duncan, 665 S.W.2d at 428 (citations omitted).
152 Id. at 432.
153 UTAH CODE § 78B-5-826.
154 Hooban v. Unicity Int’l, Inc., 2012 UT 40, ¶ 12, 285 P.3d 766.
155 See id. ¶ 29.
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Opinion of the Court
under its terms, then the statute dictates the other party’s right to
request a fee award when it sues and succeeds.156
¶ 86 The district court concluded that it had the discretion to
award fees to the Bylsmas under this standard. But it ultimately
declined to exercise that discretion because it found that the Bylsmas
were not, on balance, a prevailing party. In reaching that conclusion
the district court weighed the claim on which the Bylsmas had
prevailed (the rescission claim) against those on which they had not
(the product liability and warranty claims). Because the court
deemed the latter claims more substantial, it found that the Bylsmas
could not be viewed as “prevailing” in this action. And it declined to
award fees on that basis.
¶ 87 A key premise of the district court’s analysis is undermined
by our reversal of the decision dismissing the Bylsmas’ claims
against R.C. Willey. Because R.C. Willey can no longer be thought of
as a prevailing party on the product liability and warranty claims,
there is no longer a basis for the decision to deny the Bylsmas their
fees even on the face of the district court’s opinion. That is enough to
sustain a decision vacating the district court’s analysis of the
attorney fee issue, and we do so.
¶ 88 But we also acknowledge that the questions presented on
the Bylsmas’ request for attorney fees could arise in further
proceedings on remand. And so we identify some further grounds
for disagreement with the district court’s decision.
¶ 89 As a threshold matter, we agree with the district court’s
determination that it had discretion to award the Bylsmas their fees
under Utah Code section 78B-5-826. We reach that conclusion by
applying the standard set forth in our Hooban v. Unicity International,
Inc. decision. Under Hooban the question is whether the sales
agreement would have allowed R.C. Willey to prevail in the
“hypothetical” circumstance in which it sued successfully under its
terms.157 If so, the statute dictates the Bylsmas’ right to request fees
when they sue and succeed.158 In this case R.C. Willey‘s hypothetical
suit is one seeking collection from the Bylsmas. That is the logical
counterpart to a suit by the Bylsmas asserting that they had no
obligation to pay under a contract they sought to rescind. And
_____________________________________________________________
156 Id.
157 2012 UT 40, ¶ 29.
158 Id.
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Opinion of the Court
because R.C. Willey would have been entitled to fees if it had
prevailed in a collection action, the Bylsmas have a statutory right to
seek fees under Utah Code section 78B-5-826 because they succeeded
on their claim for rescission.
¶ 90 The district court correctly reached this threshold
conclusion. But it nonetheless declined to exercise its discretion to
award fees on the basis of its determination that the Bylsmas were
not, on balance, the prevailing party in this litigation. That analysis
would make sense in the classic case in which the basis for a fee
award—a statute or a contract—encompasses all of the various
claims at issue in the case.159 In that kind of case the court is
necessarily required to make a global, net assessment of which party
ultimately prevailed. And in so doing the court would consider, as
the district court did here, the range of factors identified in our
cases.160
¶ 91 But this case is different. Here the court was not confronted
with a litany of claims all covered by the same fee-shifting provision.
It was faced with a single claim covered by a single fee-shifting
_____________________________________________________________
159 See, e.g., A.K. & R. Whipple Plumbing & Heating v. Guy, 2004 UT
47, ¶¶ 31–32, 94 P.3d 270 (affirming a district court determination
that neither party prevailed, under a statute allowing for attorney
fees in actions to enforce a lien, when one party prevailed on its lien
claims and the other party successfully recovered a substantial offset
for negligent work).
160 See R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119
(identifying factors of relevance to the determination of which party
prevailed). A similar analysis would apply to the determination of
which party prevailed for purposes of awarding costs under rule
54(d) of the Utah Rules of Civil Procedure. Because that provision
applies globally to an entire suit and not to individual claims, it calls
for the court to make an overarching assessment of which party
came out on top in the overall litigation. See UTAH R. CIV. P. 54(d)
(providing for an award of costs to the “prevailing party” in the
litigation). And in making that determination the court would
consider, as the district court did here, the factors set forth in R.T.
Nielson Co., 2002 UT 11, ¶ 25. For that reason we find no error in the
district court’s assessment of costs in this case under rule 54(d). But
we nonetheless reverse its decision as premature in light of our
reversal of the dismissal of the Bylsmas’ product liability and
warranty claims.
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Opinion of the Court
clause. Only the rescission claim is even arguably subject to fee-
shifting; the product liability and warranty claims are subject to the
usual “American rule” requiring each side to pay its own fees. So in
this case the only question for fee-shifting purposes is whether the
Byslmas were entitled to a fee award as the prevailing party on the
rescission claim under Utah Code section 78B-5-826. For reasons
noted above, the Bylsmas qualified as a prevailing party under the
statute. And so they should have been eligible for a fee award
regardless of whether they lost or won on their other claims.
¶ 92 In these circumstances, it was error for the district court to
consider claims not covered by Utah Code section 78B-5-826 in
deciding whether the Bylsmas prevailed on their rescission claim.
Those other claims are beside the point under a statute entitling the
Bylsmas to recover the fees incurred in advancing their rescission
claim. Where the Bylsmas prevailed on their rescission claim and
have a statutory right to recover fees incurred in pursuit of that
claim, it matters not whether they prevailed on other claims not
subject to fee-shifting.
¶ 93 Where one claim is covered by a fee-shifting provision and
others are not, the court’s role is simply to parse the fees incurred on
the covered claim from fees incurred on claims not subject to fee-
shifting.161 Once the covered fees are parsed out, the court should
award all reasonable fees to the party entitled to recover them. It
should not deny them outright on the ground that the prevailing
party lost on other claims.
Conclusion
¶ 94 “The public interest in human life, health and safety
demands the maximum possible protection that the law can give
against dangerous defects in products which consumers must buy,
and against which they are helpless to protect themselves; and it
justifies the imposition, upon all suppliers of such products, of full
responsibility for the harm they cause, even though the supplier has
not been negligent.”162 This is the reason why this court, thirty-seven
_____________________________________________________________
161See Eggett v. Wasatch Energy Corp., 2004 UT 28, ¶ 36, 94 P.3d 193
(requiring prevailing party to “apportion or separate out the
recoverable fees from the nonrecoverable ones”).
162 William L. Prosser, The Assault upon the Citadel (Strict Liability
to the Consumer), 69 YALE L.J. 1099, 1122 (1960).
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BYLSMA v. R.C. WILLEY
Lee, A.C.J., concurring in part and concurring in the judgment
years ago, adopted the doctrine of products liability. We retain this
doctrine, as the legislature specifically required in the LRA, and
specify the proper method for allocation of fault under that act. Our
decision today retains the doctrine’s essential elements—liability
without fault, imposed equally on any entity that sells a defective
product, with recourse for non-negligent sellers to claim indemnity.
In the context of strict products liability, the LRA requires allocation
of fault based on relative causation, not culpability. This type of
allocation honors the legislature’s retention of strict products liability
in the act.
¶ 95 Accordingly, we reverse the dismissal of the Bylsmas’
product liability and warranty claims and remand for further
proceedings consistent with this opinion. We also clarify the
standards that apply to a fee request like that submitted by the
Bylsmas.
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
¶ 96 In this case we consider the effect of the Liability Reform Act
(LRA), UTAH CODE §§ 78B-5-817 through 823, on the law of strict
products liability. A key question presented is whether the act
confers immunity from liability on a “passive retailer” of
merchandise manufactured by others. The majority answers that
question in the negative. See supra ¶ 2. It abrogates the so-called
“passive retailer” doctrine adopted by the court of appeals in Sanns
v. Butterfield Ford, 2004 UT App 203, 94 P.3d 301. And it reverses the
district court’s decision granting defendant R.C. Willey’s motion to
dismiss the tort and warranty claims at issue here under the
authority of that doctrine.
¶ 97 I agree with this much of the majority’s analysis. I concur in
the decision to overrule the passive retailer doctrine adopted in
Sanns, as I find it incompatible with the governing terms of the LRA.
And I likewise concur in the court’s decision to award the plaintiffs
their attorney fees on their claim for rescission. See supra ¶¶ 84–93.
¶ 98 I write separately, however, because I cannot agree with the
standards for apportionment of fault announced by the majority
today. I find no room in the LRA, for example, for the notion of a
strict products liability scheme in which “each seller of a defective
product [is] equally and strictly liable,” supra ¶ 28, and in which “an
‘innocent’ non-manufacturer” may “recover its losses from the
manufacturer by way of indemnity,” supra ¶ 23. Admittedly, those
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Lee, A.C.J., concurring in part and concurring in the judgment
are tenets of the common law doctrine of strict products liability. But
in Utah that scheme has been altered by the LRA—by the statute’s
requirement of apportionment of “fault,” which encompasses not
just “any actionable breach of legal duty” but also “products
liability,” “strict liability,” and “breach of express or implied
warranty of a product.” UTAH CODE § 78B-5-817(2).
¶ 99 I find these and other key provisions of the LRA to
override the principles of products liability set forth in the majority
opinion. Thus, I would reject the passive retailer doctrine without
embracing the principles of joint and several liability set forth by the
court. Instead I would give effect to the LRA as written—in a manner
requiring apportionment of strict products liability “fault” for any
and all parties available for apportionment under the statute,
resulting in a judgment foreclosing separate claims for indemnity.
¶ 100 The standards set forth in the majority opinion may well
align with sound policy in this important field. I can also see valid
policy grounds for a doctrine of immunity for merely “passive”
retailers like R.C. Willey. But here we have no license to make good
policy. The legislature has announced the governing policy for tort
cases like this one in the clear terms of the LRA. And we are bound
to implement those terms. Any bid for amendment of those terms
should be directed to the legislature.
I
¶ 101 The LRA seems to me to foreclose the joint and several
liability scheme adopted by the majority. It does so, in my view, by
providing that “the maximum amount for which a defendant may be
liable to any person seeking recovery is that percentage or
proportion of the damages equivalent to the percentage or
proportion of fault attributed to that defendant.” UTAH CODE § 78B-
5-820(1). And it reinforces that premise with the proviso that “[n]o
defendant is liable to any person seeking recovery for any amount in
excess of the proportion of fault attributed to that defendant.” Id.
§ 78B-5-818(3).
¶ 102 The statutory mechanism for effecting these provisions is
in the requirement of apportionment of comparative “fault.” Under
Utah Code section 78B-5-819(1), the factfinder is directed to
“determin[e] the total amount of damages sustained and the
percentage or proportion of fault attributable to each person seeking
recovery, to each defendant, to any person immune from suit, and to
any other person identified under Subsection 78B-5-821(4) for whom
49
BYLSMA v. R.C. WILLEY
Lee, A.C.J., concurring in part and concurring in the judgment
there is a factual and legal basis to allocate fault.”163 That section
further provides guidance on how to handle immune parties. Id.
§ 78B-5-819(2). And it expressly limits the “cumulative fault” of all
parties and relevant nonparties to 100 percent. Id. Subsection 821(4),
in turn, prescribes a procedure for identifying unnamed parties to
whom fault may be allocated. It states that “[f]ault may not be
allocated to a non-party unless a party timely files a description of
the factual and legal basis on which fault can be allocated and
information identifying the non-party, to the extent known or
reasonably available to the party, including name, address,
telephone number and employer.” Id. § 78B-5-821(4).
¶ 103 The majority seeks to avoid the effect of these provisions
by insisting that strict products liability does not implicate any
degree of relative “fault.” Supra ¶ 34. It notes that common law
products liability was “strict,” imposing joint and several liability on
any seller in the supply chain of an unreasonably dangerous
product, and thus protecting the interests of any who are injured by
such product. Supra ¶ 33. And because the LRA incorporates terms
of art from the law of products liability, the court concludes that the
legislature intended to “preserve “the claims and defenses of
products liability as they were understood” at the time the LRA was
enacted. Supra ¶ 18; see also supra ¶ 15 (asserting that there are “key
aspects of [the strict products liability] doctrine that must continue to
exist if we are to honor the legislative intent to retain it”).
¶ 104 The majority seeks to support these conclusions by
invoking testimony presented by an assistant attorney general in the
legislative proceedings leading to the enactment of the LRA. See
supra ¶ 76 (citing Utah Senate Floor Debate, S.B. 64, 46th Leg., Gen.
_____________________________________________________________
163 The majority insists that this provision can be read to treat “the
supply chain” in a products liability case “as a single unit for
purposes of fault allocation.” Supra ¶ 82 n.149. But that construction
is incompatible with the statutory text. The LRA requires that fault
be attributed “to each defendant.” UTAH CODE § 78B-5-819(1). And
there are no exceptions to this mandate—certainly nothing that
suggests that multiple defendants may be lumped together in certain
circumstances (as where they are part of the same supply chain).
Thus, the majority’s approach reads “substantive terms into the text
that are not already there”—an approach foreclosed by our canons of
construction. See Arredondo v. Avis Rent A Car Sys., Inc., 2001 UT 29,
¶ 12, 24 P.3d 928 (citation omitted).
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Lee, A.C.J., concurring in part and concurring in the judgment
Sess., (Feb. 12, 1986)). It notes that Assistant Attorney General Steve
Sorenson stated, during the floor debate, that the LRA would not
“change the substantive law of strict liability.” Supra ¶ 76. And from
that statement the majority infers that “whatever allocation is
required under the LRA, it must leave intact the substantive law of
strict products liability.” Supra ¶ 77.
¶ 105 I cannot endorse the majority’s form of intentionalism.164
This court has frequently stated that the statutory text is the first and
_____________________________________________________________
164 I have elsewhere characterized my approach to statutory
interpretation as rooted in “textualism”—in the notion that our role
is not so much to read the legislature’s mind in search of its “intent,”
but to find the meaning of the language it votes into law (the “text”).
State v. Rasabout, 2015 UT 72, ¶ 124, 356 P.3d 1258 (Lee, A.C.J.,
concurring in part and concurring in the judgment) (“In my opinions
on statutory interpretation, I tend to speak of our role in interpreting
the text of the statute, as that is what was voted on and signed into
law by the legislature and the governor. This is a basic premise of
textualism.”). Typically I have nonetheless joined opinions of my
colleagues couching their statutory analysis in the language of
intentionalism. I do so because I often find little or no difference
between an intentionalist and a textualist approach to statutory
interpretation. That holds true where the legislature’s intent is
derived from a careful construction of a statute’s plain language, as
is often the case. See id. A principal vice of intentionalism appears,
however, when a court abandons that important premise. If a court
finds legislative intent beyond the four corners of a statute it runs a
big risk of substituting its own will for that of the legislature. See
State v. Clark, 2011 UT 23, ¶ 17, 251 P.3d 829 (“Any suppositions
about what the legislature may have intended cannot properly
override what it actually did.”); see also Laurence H. Tribe, Comment,
in ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS
AND THE LAW 66 (1997) (“[I]t is the text’s meaning, and not the
content of anyone’s expectations or intentions, that binds us as
law.”); Frank H. Easterbrook, Text, History, and Structure in Statutory
Interpretation, 17 HARV. J.L. & PUB. POL’Y 61, 69 (1994) (“Imaginative
reconstruction, asking how an expired Congress would have
answered a question had the subject been presented, extends the
term beyond the constitutional limit—and is of course fantasy
anyway, since we can imagine any answer we want when we are
inventing both question and answer.”). This is one of several reasons
why I prefer to frame the judicial inquiry in textualist terms. This
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best evidence of legislative intent. See, e.g., Anderson v. Bell, 2010 UT
47, ¶ 9, 234 P.3d 1147 (internal quotation marks omitted) (“It is
axiomatic that the best evidence of legislative intent is the plain
language of the statute itself.”)); Berube v. Fashion Ctr., Ltd., 771 P.2d
1033, 1038 (Utah 1989) (“[T]he best indication of legislative intent is
the statute’s plain language.”). Equally often we say that the text is
controlling—and forecloses other sources of meaning—where it is
clear or unambiguous. See, e.g., St. Jeor v. Kerr Corp., 2015 UT 49, ¶ 12,
353 P.3d 137 (“[W]here the text of the rule is clear and unambiguous,
our inquiry ends, and we need not resort to additional methods of
interpretation.”); Allred v. Saunders, 2014 UT 43, ¶ 18, 342 P.3d 204
(“Though it is sometimes appropriate to consider legislative history
when interpreting statutes, we will not do so when a statute is . . .
unambiguous.”). That means that legislative history is out of bounds
when statutory language is plain. See Hooban v. Unicity Int’l, Inc.,
2012 UT 40, ¶ 17, 285 P.3d 766 (“Where the statute’s language marks
its reach in clear and unambiguous terms, it is our role to enforce a
legislative purpose that matches those terms, not to supplant it with
a narrower or broader one that we might infer from the legislative
history.”).165
case is a good example of why—and how the framing of the inquiry
might make a difference. See John F. Manning, What Divides
Textualists from Purposivists?, 106 COLUM. L. REV. 70, 73 (2006); Caleb
Nelson, What Is Textualism?, 91 VA. L. REV. 347 (2005).
165 Even if I found ambiguity in the text I still would not find
room for resort to the sort of legislative history presented here. This
really isn’t even legislative history—in the sense of some material
evidencing legislators’ intentions. Here we have only an indication of
the intentions of an attorney working for another branch of
government. And we have every reason to be suspicious of the
probative value of the statement in question. See Oral Argument
(acknowledging that statements in legislative history were planted
by interest groups seeking to prospectively sway future judicial
interpretations of the LRA in their favor); John F.
Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV.
673, 688 (1997) (“[T]o the degree that judges are perceived as
grasping at any fragment of legislative history for insights into
congressional intent, to that degree will legislators be encouraged to
salt the legislative record with unilateral interpretations of statutory
provisions they were unable to persuade their colleagues to accept.”
(Continued)
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¶ 106 And here, at least in my view, the LRA could hardly be
plainer. The statute includes a broad notion of “fault.” By statute
“[f]ault” encompasses “any actionable breach of legal duty, act, or
omission proximately causing or contributing to injury or damages
sustained by a person seeking recovery.” Utah Code § 78B-5-817(2).
And the statutory definition expressly encompasses not just
“negligence in all its degrees” but also “products liability,” “strict
liability,” and “breach of express or implied warranty of a product.”
Id. Under the LRA, then, the factfinder is required to apportion the
relative “fault” of various sellers in the supply chain of an
unreasonably dangerous product. Id. § 78B-5-819(1). Such
apportionment must extend even to a nonparty (for whom there is a
factual and legal basis to impose liability). Id. And the total
“cumulative fault” for all sellers must not exceed 100 percent. Id.
§ 78B-5-819(2)(a).166
¶ 107 The LRA also forecloses equitable claims for contribution
and indemnity. See id. § 78B-5-820(2) (“A defendant is not entitled to
contribution from any other person.”); id. § 78B-5-823 (preserving
only indemnity and contribution “arising from statute, contract, or
agreement”). Thus, the LRA envisions a single proceeding in which
“fault” is apportioned among all parties and all others as to whom
there is a factual and legal basis for apportionment. And the only
way to accomplish that feat is to apportion relative fault among
various sellers in the supply chain—as expressly required by statute.
¶ 108 This LRA notion of fault, concededly, is not in line with
the common law conception of strict products liability. The majority
has the common law doctrine of products liability exactly right. At
common law, strict products liability “imposes liability for harm
(quoting Int’l Bhd. of Elec. Workers, Local Union No. 474 v. NLRB, 814
F.2d 697, 717 (D.C. Cir. 1987) (Buckley, J., concurring))).
166 The majority says that this approach “create[s] a more
expansive form of retailer immunity.” Supra ¶ 46. But the
apportionment of fault among several defendants does not render
any of them immune. Immunity is an “exemption from a duty,
liability, or service of process.” BLACK’S LAW DICTIONARY 817 (9th ed.
2009). And my approach does not exempt any strict liability
defendants from any duty or liability. It simply limits the amount of
damages they pay according to their portion of ultimate fault. The
degree of any limit, moreover, is a function of the statutory mandate,
which we are in no position to second-guess.
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caused by defective products without any regard to the culpability of
the defendants.” Supra ¶ 23. It “imposes this liability on every ‘seller’
of the product . . . in order to ensure that a plaintiff will have a
meaningful remedy.” Supra ¶ 23. And “it permits an ‘innocent’ non-
manufacturer . . . to recover its losses from the manufacturer by way
of indemnity.” Supra ¶ 23.
¶ 109 But these are the principles of joint and several liability.167
And they are not compatible with the clear language voted into law
by our legislature. See supra ¶ 17 (conceding that “[t]he LRA was
expressly designed to eliminate joint and several liability”).
¶ 110 I concede that “there is no room” in the common law
“strict liability regime for the consideration of culpability.” Supra
¶ 26. But that is not the fault regime adopted by the legislature in the
LRA. The LRA made “a choice between fully compensating the
plaintiff and proportionally assessing damages to the defendant.”
Red Flame, Inc., v. Martinez, 2000 UT 22, ¶¶ 18, 20, 996 P.2d 540
(Durham, A.C.J., dissenting) (citation omitted) (refusing to extend
the LRA to apportionment of strict liability under the Dramshop
Liability Act, but asserting that “the penal and regulatory purposes
of the Dramshop Act will be frustrated by permitting application of
the comparative fault principles of the Liability Reform Act”). And
we are in no position to second-guess that judgment. See id. ¶ 10
(lead opinion of Russon, J., joined by Zimmerman, J.) (concluding
that the LRA requires apportionment of strict liability among parties
liable under the Dramshop Liability Act); id. ¶ 14 (Howe, C.J.,
concurring) (concluding that the LRA overrides the Dramshop Act,
abolishes joint and several liability, and requires apportionment;
conceding that the legislature may not have “intended” that result,
but finding himself “constrained by the language” of the LRA).
¶ 111 It may well be good policy to go a different route. If I were
a member of the legislature I might well vote for an amendment to
the LRA allowing a plaintiff to choose only one seller in the supply
chain—perhaps most often the retailer—who is “known to the
_____________________________________________________________
167See BLACK’S LAW DICTIONARY 997 (9th ed. 2009) (defining “joint
and several liability” as “[l]iability that may be apportioned either
among two or more parties or to only one or a few select members of the
group, at the adversary’s discretion. Thus, each liable party is
individually responsible for the entire obligation, but a paying party
may have a right of contribution and indemnity from nonpaying
parties.” (emphasis added)).
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plaintiff, amenable to suit, and likely solvent at the time of
judgment.” Supra ¶ 28. And I might well prefer to leave it to a future
indemnity lawsuit to allow the retailer to seek recourse against a
manufacturer or other sellers in the supply chain. But I find no room
for this regime in our statute.
¶ 112 The LRA provides no exception for the apportionment of
fault in strict liability cases. It specifically lists strict liability and
products liability as forms of “fault” that must be apportioned by the
factfinder. UTAH CODE § 78B-5-817; see also S.H. ex rel. Robinson v.
Bistryski, 923 P.2d 1376, 1380 (Utah 1996) (“By including ‘strict
liability’ in the definition of fault, the legislature clearly intended
comparative fault principles to be applied to strict liability
claims . . . .”).
¶ 113 Thus, I find no ambiguity in the LRA on the question
whether to apportion fault among various sellers in the supply chain
of an unreasonably dangerous product. And for that reason I find no
room to insist that the legislature must have intended to preserve the
common law regime embraced by the majority.
¶ 114 The majority’s approach runs directly contrary to the
statute. Under the majority’s scheme cumulative fault will
necessarily exceed 100 percent whenever there are multiple
defendants who are strictly liable or whenever a lone strictly liable
defendant properly brings nonparties within the allocation. In fact,
each and every seller in the supply chain will be 100 percent liable.
That means that relative fault may be multiples of 100 percent under
the majority’s framework. That is not the law enacted by the
legislature. We should follow the terms of the LRA even if we find it
difficult to do so, or troubling as a matter of wise policy. See Graves v.
N.E. Servs., Inc., 2015 UT 28, ¶ 70, 345 P.3d 619 (“In the face of a
detailed statutory scheme like the Liability Reform Act, our role as
policymaker is preempted. We are relegated to the function of agent
of the legislature—of interpreting the policy judgment that it
reached, and not of imposing our own will through the exercise of
our limited judicial power.”).
II
¶ 115 The above-cited provisions of the LRA provide a
straightforward basis for rejecting the so-called passive retailer
doctrine. That doctrine confers blanket immunity on a purely
passive retailer in a suit in which the manufacturer is named as a
party. See Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 15, 94 P.3d
301 (limiting passive retailer immunity to cases in which the
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manufacturer is named as a party). But such immunity cannot stand
under the terms of the LRA and the tenets of strict products liability
embraced in our case law (and not foreclosed by this statute).
A
¶ 116 Under the LRA a passive retailer’s comparative fault
cannot turn on the presence of the manufacturer as a party to the
suit. The factfinder’s obligation to allocate comparative fault, as
noted, extends not only to parties but also to identified non-parties
“for whom there is a factual and legal basis to allocate fault.” UTAH
CODE § 78B-5-819(1). A manufacturer will always be one to whom
there is a “factual and legal basis to allocate fault” under the law of
strict products liability. So the manufacturer’s presence as a party
cannot be what triggers the premise of the passive retailer doctrine—
that 100 percent of the fault will always be allocated to the
manufacturer.
¶ 117 Such an allocation is available whether or not the
manufacturer is named as a party. By statute, fault is allocated even
to non-parties so long as they are identified under Utah Code section
78B-5-821(4).
¶ 118 So a key premise of the Sanns immunity doctrine fails as a
matter of law. A passive retailer’s immunity, if any, cannot depend
on the presence of the manufacturer as a defendant in the suit. It
must depend on the proposition that a passive retailer could never
be deemed at fault to any degree in a case in which the manufacturer
could be identified and considered by the factfinder.
B
¶ 119 The law of strict products liability is likewise incompatible
with passive retailer immunity. Retailers—even passive ones—have
duties to consumers that run independently of the duties of
manufacturers.168 That follows from a core premise of the law of
_____________________________________________________________
168 See Reese v. Mercury Marine Div. of Brunswick Corp., 793 F.2d
1416, 1420 (5th Cir. 1986) (concluding that because “a product
manufacturer and a [retailer] owe independent duties to warn
consumers regarding a product ‘defect,’” a retailer’s failure to warn
is not a defense to the manufacturer’s failure to warn); RESTATEMENT
(THIRD) OF TORTS: PROD. LIAB. § 1 cmt. e (AM. LAW INST. 1998)
(“Liability attaches even when such nonmanufacturing sellers or
distributors do not themselves render the products defective and
(Continued)
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strict products liability—that everyone in the supply chain is in a
better position than the consumer to protect against and warn of the
risks of unreasonably dangerous products.169 And if even passive
retailers have independent duties to consumers injured by
unreasonably dangerous products, then it follows that they may
retain some element of fault for the injuries incurred by their
customers.170
¶ 120 This conclusion is reinforced by a line of cases in place at
the time of the legislature’s adoption of the LRA in 1986. In this line
of cases, a number of courts held that the “dividing line” between
“active” and “passive” tortious conduct in the law of implied
indemnity had been “blurred” or erased by the advent of
comparative fault. See Pachowitz v. Milwaukee & Suburban Transp.
Corp., 202 N.W.2d 268, 271–72 (Wis. 1972) (holding that the common
law distinction had been replaced by comparative fault). In other
words, these courts held that “the active-passive dichotomy of tort
indemnity actions did not survive the statutory adoption of
comparative negligence.” Ellis v. Union Pac. R.R. Co., 643 P.2d 158,
163 (Kan. 1982). And they repudiated the active-passive distinction
in the law of implied indemnity in favor of a nuanced, case-by-case
attribution of fault based on principles of comparative negligence.
¶ 121 This approach prevailed in a wide range of tort cases.
Some of these cases involved strict products liability.171 In this field
regardless of whether they are in a position to prevent defects from
occurring.”).
169 See O’Neil v. Crane Co., 266 P.3d 987, 999 (Cal. 2012) (noting
that strict products liability extends to all entities in the chain of
distribution who are “responsible for placing an injury-producing
product into the stream of commerce” (citation omitted));
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 1 cmt. e (AM. LAW INST.
1998) (“[A]ll commercial sellers and distributors of products,
including nonmanufacturing sellers and distributors such as
wholesalers and retailers, are subject to liability for selling products
that are defective.”).
170 See Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 673
(Utah 1985) (explaining that strict products liability is “premised on
the proposition that the cost of injuries . . . should be considered a
cost of doing business”).
See, e.g., Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 367–68
171
(Minn. 1977) (rejecting the traditional doctrine of “passive” or
(Continued)
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the courts rejected the notion of a hard distinction between active
and passive conduct as “artificial”—and as insufficiently nuanced to
account for the nuance and complexity of products liability
litigation. Casey v. Westinghouse Elevator Co., 651 F. Supp. 258, 262
(S.D. Ill. 1986).
¶ 122 Yet the repudiation of the active-passive distinction in the
law of implied indemnity was not limited to products liability suits.
It extended to other circumstances involving a primary, “active”
tortfeasor and a secondary tortfeasor with a duty to take action to
avoid or mitigate the effects of the primary tortfeasor’s acts. One
example involves dangerous conditions on land. Under a common
law regime of joint and several liability, the party maintaining the
dangerous condition was deemed the “active” tortfeasor. See Auto.
Underwriters Corp. v. Harrelson, 409 N.W.2d 688, 690–91 (Iowa 1987).
A party with a duty to discover and remedy that condition was also
liable as a “passive” tortfeasor. Id. But the “passively negligent”
party had a right to “recover in full from one actively negligent any
judgment or settlement paid by the passively negligent party based
on principles of equity.” Id. This regime was also deemed foreclosed
by the advent of comparative negligence. See Am. Tr. & Sav. Bank v.
U.S. Fid. & Guar. Co., 439 N.W.2d 188, 190 (Iowa 1989). Courts held
that “the doctrine of indemnity based upon active-passive
negligence does not fit within [a] statutory network of comparative
fault.” Id. And they accordingly abandoned the black-and-white rule
apportioning all fault to the active tortfeasor in a suit for implied
indemnity, concluding instead that the law of comparative
negligence required a nuanced apportionment of relative fault
between both tortfeasors.172
“secondary” liability in the negligence, strict liability, and implied
warranty contexts); Mo. Pac. R.R. Co. v. Whitehead & Kales Co., 566
S.W.2d 466, 470 (Mo. 1978) (concluding that it was illogical for a
party with “passive” fault to be held harmless “no matter how great
the proportion of fault may have been of the passive tortfeasor” and
leaving allocation of fault to the jury).
172 See VICTOR E. SCHWARTZ ET AL., PROSSER, WADE AND
SCHWARTZ’S TORTS: CASES AND MATERIALS 387 (10th ed. 2000)
(explaining that “[w]ith the development of comparative
responsibility principles, this form of indemnity has been curtailed
in many states”); Pachowitz v. Milwaukee & Suburban Transp. Corp.,
202 N.W.2d 268, 271–72 (Wis. 1972) (noting that “the dividing line”
between passive and active liability “is blurred” and concluding that
(Continued)
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¶ 123 Our legislature enacted the LRA against the backdrop of
the above cases. And I would read the statute to effectively embrace
the principle that these cases espouse. In my view the LRA does so
by abandoning the premise of a hard distinction between active and
passive tortfeasors and replacing it with a mechanism for a nuanced,
case-by-case attribution of relative fault for anyone who causes or
contributes to an injury by any “act,” “omission,” or “breach of legal
duty.” Utah Code § 78B-5-817(2).
¶ 124 We have effectively so concluded in a series of cases
concerning allocation of fault in strict liability cases. In S.H. ex rel.
Robinson v. Bistryski, 923 P.2d 1376, 1383 (Utah 1996), for example, we
concluded that comparative fault principles should apply to [] strict
liability under the LRA. And we found that a “plaintiff’s recovery
was subject to the application of comparative fault” and could be
reduced due to the plaintiff’s negligence. Id. at 1380. This was also
the conclusion that we reached in Mulherin v. Ingersoll-Rand Co., 628
P.2d 1301, 1303 (Utah 1981), as to products liability cases.173
only comparative fault principles could lead to “an equitable and fair
result . . . . . in all cases” (citation omitted)); Ellis v. Union Pac. R.R.
Co., 643 P.2d 158, 163 (Kan. 1982) (emphasizing that “the active-
passive dichotomy of tort indemnity actions did not survive the
statutory adoption of comparative negligence”); Am. Nat. Bank & Tr.
Co. v. Columbus-Cuneo-Cabrini Med. Ctr., 609 N.E.2d 285, 288 (Ill.
1992) (concluding that in light of adoption of pure comparative
negligence, the “reason to support implied indemnity based on tort
principles of relative blameworthiness has ceased to exist”).
173 The majority correctly notes that these cases involved a
comparison between the fault of a strictly liable defendant and a
negligent plaintiff. See supra ¶ 72 & n.124. But we have strongly
implied that these same principles would apply in determining fault
among defendants. In Red Flame, Inc. v. Martinez, 2000 UT 22, 996
P.2d 540, we concluded that comparative fault principles applied
when determining an establishment’s fault for dispensing alcohol
under the Dramshop Liability Act. And we expressly rejected the
argument that “strict liability cannot be included in comparative
fault calculations.” 2000 UT 22, ¶ 11 (lead opinion Russon, J., joined
by Zimmerman, J.); see also id. ¶ 14 (Howe, C.J., concurring)
(concluding that the LRA overrides the Dramshop Act, abolishes
joint and several liability, and requires apportionment). In so doing,
we repudiated a decision that had previously held that comparative
fault principles did not apply between two establishments serving
(Continued)
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¶ 125 Our recent decision in Graves v. North Eastern Services, Inc.,
2015 UT 28, 345 P.3d 619, points in the same direction. In Graves we
held that the LRA requirement of comparative allocation of fault
extended to intentionally tortious acts. In so doing, we
acknowledged the inherent difficulty of the factfinder’s task of
allocating relative fault to both a primary intentional tortfeasor and
to a passively negligent one (an employer who failed to prevent the
intentional tort). Specifically, we conceded that intentionally tortious
conduct is “categorically different”—and inherently more
blameworthy—than a negligent failure to prevent it. Id. ¶ 71 (citation
omitted). Yet we also explained that a “factfinder could easily
apportion” responsibility to passive acts of negligence representing a
“clear chance of preventing” an intentional tort. Id. And we
interpreted the LRA to leave to the factfinder the relative
apportionment of fault between an active, intentional tortfeasor and
a person who passively failed to prevent such misconduct despite
the sensitive, nuanced nature of that task. Id.
¶ 126 This framework is incompatible with the theory that
comparative fault applies only between plaintiffs and defendants in
strict liability cases. A “passive” retailer is in a position comparable
to that of the employer in Graves. Its role is “categorically different”
from that of the antecedent actor whose act might be understood as
more active. Yet our law still holds the passive actor liable for acts,
omissions, or breaches of legal duty resulting in harm. And the LRA
alcohol under the Dramshop Act. Thus, we implicitly accepted the
argument that comparative fault principles would apply even
among strictly liable defendants.
The majority notes that Red Flame is not a “strict products
liability” claim. Supra ¶ 71 n.119. And it accordingly contends that
this case “does not control our decision here.” Supra ¶ 71 n.119. But
that is a distinction without a difference. I see no basis in the
statutory text for treating strict liability cases any differently than
products liability cases. The only reference to products liability in the
statutory scheme is in the same provision that addresses strict
liability. Both terms are included only in the definition of the term
“fault,” which is to be apportioned “to each defendant.” See UTAH
CODE § 78B-5-817(2); id. § 78B-5-819. Red Flame followed this mandate
for strict liability fault. There is no reason not to follow the same
statutory mandate for products liability fault here. See supra ¶ 102
n.163.
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leaves it to the factfinder to sort out the relative fault to be allocated
to each party.
¶ 127 In cases both predating and postdating the LRA, retailers
have at least sometimes been left with a portion of liability for harms
caused by the dangerous products they sold—even in cases in which
the manufacturer is also on the hook.174 A straightforward example
involves a breach by a retailer of the duty to warn: A factfinder could
easily conclude that a retailer is in as good or better a position to
warn a consumer of a product’s risks than the manufacturer. 175 In
_____________________________________________________________
174 See Casey v. Westinghouse Elevator Co., 651 F. Supp. 258, 262
(S.D. Ill. 1986) (concluding that application of comparative fault
principles between a manufacturer and a third party was “not
contrary to the policies behind strict liability” (citation omitted));
Promaulayko v. Johns Manville Sales Corp., 562 A.2d 202, 207 (N.J. 1989)
(noting that “a set of facts might arise in which the party at the end
of the distributive chain will be a better risk-bearer than a party
higher in the chain”); Durabla Mfg. Co. v. Goodyear Tire & Rubber Co.,
992 F. Supp. 657, 660 (S.D.N.Y. 1998) (refusing to grant indemnity to
the passive distributor of products made with asbestos because
“there is nothing passive about the role of a distributor of a defective
or hazardous product” and therefore the distributor may be held at
fault); Chandler v. Nw. Eng’g Co., 444 N.Y.S.2d 398, 404–05 (N.Y. Sup.
Ct. 1981) (holding that it “cannot say that, as a matter of law” that a
“jury erred in assessing” a seller’s “liability at 10%” because the
liability was based on the seller’s “position in the chain of
distribution” rather than purely based on its vicarious relationship
with the manufacturer).
175 See House v. Armour of Am., Inc., 929 P.2d 340 (Utah 1996)
(laying out the basic framework of failure to warn liability in Utah);
Grundberg v. Upjohn Co., 813 P.2d 89, 95 (Utah 1991) (holding that
failure to warn claims were still viable against a drug manufacturer
even where the manufacturer was “immune” from a design defect
claim because drugs were “unavoidably dangerous” in design); see
also Beshada v. Johns-Manville Prods. Corp., 447 A.2d 539, 545 (N.J.
1982) (noting that strict liability failure to warn claims are based in
the presumption that “a warning could make [a product] safer at
virtually no added cost and without limiting its utility”); Porrazzo v.
Bumble Bee Foods, LLC, 822 F. Supp. 2d 406, 419 (S.D.N.Y. 2011)
(holding that “an injured plaintiff in a strict liability failure to warn
case may recover from both manufacturers and retail sellers of the
product”); Liriano v. Hobart Corp., 700 N.E.2d 303, 309 (N.Y. 1998)
(Continued)
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that event the passive retailer could be on the hook for at least some
proportion of fault in a products liability action.176
¶ 128 The principle that a passive retailer may be held liable for
breach of an express warranty is even more firmly established.
Implied indemnity, in other words, was never available to a retailer
who breached an express warranty.177 And claims for breach of
(“Failure-to-warn liability is intensely fact-specific, including but not
limited to such issues as feasibility and difficulty of issuing warnings
in the circumstances . . . .”).
176 I acknowledge a contrary line of cases. In a few jurisdictions
the courts retained passive immunity in the products liability arena
despite their abolition of the distinction between passive and active
fault in other contexts. See, e.g., Angelus Assocs. Corp. v. Neonex Leisure
Prods., Inc., 167 Cal. App. 3d 532 (1985), abrogated in part by Far W.
Financial Corp. v. D & S Co., 46 Cal. 3d 796, 805 (1988); Rogers v.
Dorchester Assocs., 300 N.E.2d 403 (N.Y. 1973), abrogated in part
by Medina v. Milt Holdings, 131 A.D.3d 121, 127 (2015). But these
courts based this decision on a premise that cannot stand under the
LRA—the notion that a passive retailer’s liability is purely vicarious
in nature. See Angelus Assocs., 167 Cal. App. 3d at 541–42 (concluding
that because a passive retailer “is neither a wrongdoer not a
tortfeasor” comparative fault could not apply); Rogers, 300 N.E.2d at
409–10 (holding that the “rule of apportionment” did not apply to
passive parties because they “are only vicariously liable”). That
premise cannot hold as a matter of Utah law. As noted above and
reinforced in our recent decision in Graves, the LRA’s notion of
“fault” encompasses all acts, omissions, and breaches of duty that
proximately cause injury. See Graves, 2015 UT 28, ¶ 49; UTAH CODE
§ 78B-5-817(2). Because a retailer’s liability is based on such “fault”
(on the sale of an unreasonably dangerous product or the failure to
warn of its dangers), and not on the retailer’s mere relationship with
the manufacturer, see M.J. v. Wisan, 2016 UT 13, ¶¶ 38–39, 371 P.3d 21
(acknowledging that liability based purely on a relationship falls
outside the LRA), the retailer cannot escape liability under the
premise of the above cases.
177 See, e.g., Cent. Motor Parts Corp. v. E.I. duPont deNemours & Co.,
596 A.2d 759, 762 (N.J. Super. Ct. App. Div. 1991) (“Costs incurred
by a retailer in defense of its own active negligence or independent
warranties are not recoverable . . . .”); In re Consol. Vista Hills
Retaining Wall Litig., 893 P.2d 438, 443 (N.M. 1995) (noting that
“[a]ctive conduct ‘is found if an indemnitee . . . has failed to perform
(Continued)
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express warranty have been preserved even in states that have
adopted the doctrine of passive retailer immunity.178
¶ 129 As in Graves, it may perhaps be said that the
manufacturer’s acts or omissions are “categorically different”—and
even inherently more blameworthy—than those of the passive
retailer. 2015 UT 28, ¶ 71. But under our law a “factfinder could
easily apportion” responsibility to even the passive acts of a
retailer.179 Id. And the LRA accordingly leaves the relative
apportionment of fault between the two tortfeasors to the factfinder.
III
¶ 130 To the above extent I agree with the majority’s ultimate
conclusion that the LRA abrogates passive retailer immunity. But
that is because I think it is at least possible that a factfinder, in an
appropriate case, could attribute fault to a passive retailer. It is not,
a precise duty which the indemnitee had agreed to perform’”
(citation omitted)).
178 See, e.g., Transcon. Ins. Co. v. Briggs Equip. Tr., 321 S.W.3d 685,
702 (Tex. App. 2010) (refusing to grant summary judgment because a
genuine dispute of fact existed as to whether the employee of the
passive retailer had made an “express factual representation” which
the plaintiff had relied on); Thomas E. Moore, Inc. v. CVN Cos. Inc.,
C.A. No. 89C-JN-7, 1992 WL 302232, at *1 (Del. Super. Ct. Oct. 5,
1992) (noting that immunity was “unavailable to the defendant if
express warranties are made and then breached”); Carter v. Brighton
Ford, Inc., 251 P.3d 1179, 1183 (Colo. App. 2010) (concluding that
because “the concepts of warranty and product liability dealt with
two separate theories of harm[,]” Colorado’s passive retailer
immunity act did not apply to warranty claims).
179 This point is emphasized by the availability of apportionment
of relative fault to a consumer. As with the passive retailer, it may
perhaps be said that the consumer’s fault, if any, pales in comparison
to the responsibility of the manufacturer in selling an unreasonably
dangerous product. But our law leaves open the possibility of
allocation of fault to the consumer. See UTAH CODE § 78B-5-818(4)(a)
(requiring the factfinder to allocate relative fault to, among others,
the “person seeking recovery”); id. § 78B-6-705 (providing that “[f]or
purposes of Section 78B-5-818, fault shall include an alteration or
modification of the product”). With that in mind, it would be
anomalous to categorically exclude the possibility of allocation of
any fault to the passive retailer.
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Lee, A.C.J., concurring in part and concurring in the judgment
as the majority asserts, because the LRA has preserved the joint and
several liability scheme often associated with strict liability. See supra
¶ 47. And I would interpret the LRA to leave the question of fault to
the factfinder—even in strict liability cases—in a manner that is
inconsistent with the notion of blanket immunity for a passive
retailer. For these and other reasons, I disagree with the majority’s
position that a passive retailer may initiate a separate suit against the
manufacturer under the law of implied indemnity.
¶ 131 As noted, I believe the foundation of the LRA is the
requirement of a single suit in which every person who could be
charged with fault is considered in a unitary proceeding aimed at
global attribution of comparative fault. Because that unitary
determination of comparative fault encompasses not just parties to
the suit but any individual who can be identified and for whom
there is a “factual and legal basis to allocate fault,” UTAH CODE
§ 78B-5-819(1), the LRA forecloses the need for satellite suits aimed
at equitable reallocation of such fault.180
¶ 132 This is not unique to the LRA. It is the implicit effect of a
legal regime that calls for a comparative allocation of fault in a single
legal proceeding. “In a state following comparative contribution, or
contribution according to the comparative fault of the parties,
contribution may tend to merge with indemnity,” and “[t]he
eventual outcome is likely to be a single remedy based on
comparative fault.” RESTATEMENT (SECOND) OF TORTS § 886A cmt. l
(AM. LAW INST. 1979); see also W. PAGE KEETON ET AL., PROSSER AND
KEETON ON THE LAW OF TORTS § 51, at 343 (5th ed. 1984) (noting that
any “rule that gives one tortious actor a right of indemnity from
another tortious actor[] may be held inapplicable after the principle
of comparative fault has been adopted”).181
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180 See 3 OWEN & DAVIS ON PRODUCTS LIABILITY § 23:15 (4th ed.
2017) (noting that “indemnity is not necessary as a means of fairly
allocating responsibility for product related injuries” in jurisdictions
that allow apportionment of responsibility).
181See also Nat’l Serv. Indus., Inc. v. B.W. Norton Mfg. Co., 937 P.2d
551, 554–55 (Utah Ct. App. 1997) (reaching the same conclusion
under the LRA; citing the RESTATEMENT (SECOND) OF TORTS and
PROSSER AND KEETON ON THE LAW OF TORTS); Casey v. Westinghouse
Elevator Co., 651 F. Supp. 258, 262 (S.D. Ill. 1986) (concluding that
adoption of proportionate liability obviated the need for separate
actions for implied indemnity); RESTATEMENT (THIRD) OF TORTS:
(Continued)
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Lee, A.C.J., concurring in part and concurring in the judgment
¶ 133 The LRA includes two provisions, moreover, that refer
expressly to the law of contribution and indemnity. See UTAH CODE
§ 78B-5-820(2) (“A defendant is not entitled to contribution from any
other person.”); id. § 78B-5-823 (“Nothing in Sections 78B-5-817
through 78B-5-822 affects or impairs any right to indemnity or
contribution arising from statute, contract, or agreement.”). I read
these provisions as reinforcing the key premise of the Act—that
comparative fault is to be allocated in a single, unitary proceeding
under the LRA, and not in separate suits for contribution or
indemnity.182
¶ 134 The point of the first-cited provision is straightforward.
Independent actions sounding in the law of “contribution” are
expressly foreclosed. UTAH CODE § 78B-5-820(2). That makes good
sense in light of the above. The rights of contribution and indemnity
were aimed at allowing a single tortfeasor subject to joint and several
liability for a joint tort to seek proportionate compensation from a
fellow tortfeasor.183 And the LRA obviates the need for any such
subsequent suit by requiring the comparative proportion of liability
for each joint tortfeasor to be allocated in a single suit. Section 78B-5-
820(2) thus makes explicit what is already implicit elsewhere in the
LRA. Actions for any contribution are foreclosed because they are
APPORTIONMENT LIAB. § 22 cmt. e (AM. LAW INST. 2000) (noting that
indemnity is “inconsistent with the goals of comparative
responsibility”).
182 The relevant Black’s Law definition of “contribution” includes
a “tortfeasor’s right to collect from joint tortfeasors when—and to the
extent that—the tortfeasor has paid more than his or her
proportionate share to the injured party, the shares being determined as
percentages of causal fault.” BLACK’S LAW DICTIONARY 378 (9th ed.
2009) (emphases added). And our common law indemnity doctrine
functions only to allow a joint tortfeasor full reimbursement when
another joint tortfeasor is wholly at causal fault for a third-party’s
injury. See supra ¶ 63. So the elimination of the right to seek
contribution appears to eliminate common law claims for both
“contribution” and “indemnity.”
183 See RESTATEMENT (SECOND) OF TORTS § 886B cmt. a (AM. LAW
INST. 1979) (“A suit for contribution is brought for the recovery of a
proportionate part of the sum paid by the plaintiff, on the ground
that the parties were both guilty of negligence and should share the
cost; the parties being equally guilty . . . .”).
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BYLSMA v. R.C. WILLEY
Lee, A.C.J., concurring in part and concurring in the judgment
unnecessary under a regime in which comparative fault is allocated
globally in a unitary statutory proceeding.
¶ 135 The second-cited provision, Utah Code section 78B-5-823,
is a bit less clear. It provides that “any right to indemnity or
contribution arising from statute, contract, or agreement” is not
foreclosed by the LRA. UTAH CODE § 78B-5-823 (emphasis added).
The italicized terms are significant. They provide the grounds for
reconciling section 823 with section 820(2): Although a common law
right of contribution or indemnity is foreclosed by statute, a right of
indemnity or contribution “arising from statute, contract, or
agreement” is not. Id.
¶ 136 The distinction is premised on a key difference between
the common law action for contribution on one hand and statutory
or contract-based principles of indemnity or contribution on the
other. The former, as noted above, is premised on a principle of
comparative fault. A single tortfeasor held jointly and severally
liable for 100 percent of a plaintiff’s damages could seek
proportionate contribution from a second joint tortfeasor in an action
for common law contribution. And the premise of such an action
was a concern for the inequity or arbitrariness of a single tortfeasor
being fully liable for harm that was only partially caused by his
action.184 This sort of action, as explained above, is foreclosed by the
LRA.
¶ 137 But statutory and contract-based actions are different.
They are generally premised on something other than an equitable
assessment of the parties’ proportionate or comparative fault.185 A
manufacturer, for example, could enter into a contract with a retailer
in which the latter agrees to accept any responsibility assigned in a
tort suit to the manufacturer. And if the manufacturer is deemed 90
percent at fault in a products liability suit advanced by a consumer,
the LRA would not foreclose a subsequent suit for contractual
_____________________________________________________________
184 See Kennedy v. Camp, 102 A.2d 595, 600 (N.J. 1954) (explaining
that contribution is based on the premise that “no one ought to profit
by another man’s loss; where he himself has incurred a like
responsibility”).
185See Camp, Dresser & McKee, Inc. v. Paul N. Howard Co., 853 So.
2d 1072, 1077 (Fla. Dist. Ct. App. 2003) (noting that “contractual
indemnity is not concerned with ‘special relationships’ or vicarious,
constructive, derivative or technical liability; it is concerned with the
express terms of the agreement to indemnify”).
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Lee, A.C.J., concurring in part and concurring in the judgment
indemnity or contribution by the manufacturer against the retailer.186
Such a suit, after all, would be purely contract-based. And because it
would not be premised simply on reallocating comparative fault
between the manufacturer and the retailer—but instead on
vindicating the manufacturer’s contractual rights—the suit would be
consistent with the LRA’s requirement of a single, unitary
proceeding for allocating comparative fault.
¶ 138 I would interpret the LRA to embrace this exception to the
general prohibition on independent suits for common law
contribution or implied indemnity. The general rule is that separate
suits are barred to the extent they are premised on common law
principles of equitable allocation of comparative fault. But an
exception applies to actions under a statute or contract that are not
based on a simple reallocation of fault.
IV
¶ 139 For the above reasons I would reverse the decision
granting R.C. Willey’s motion to dismiss and vacate the denial of the
fee request submitted by the Bylsmas. In so doing I would reject the
passive retailer doctrine and overrule the court of appeals’ decision
in Sanns v. Butterfield Ford, 2004 UT App 203, 94 P.3d 301. But I
would do so based on the scheme established by the LRA and not on
preempted principles of the common law of strict products liability.
And I accordingly would hold that the LRA eliminates common law
indemnity and contribution actions.
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186 By statute, a contractual provision requiring a purchaser of a
product to indemnify a manufacturer is “void and unenforceable” in
certain circumstances. UTAH CODE § 78B-6-707. That implies that
contractual indemnification clauses are presumptively valid as
between a manufacturer and anyone other than “a purchaser or end
user.” See also Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶¶ 8–9,
284 P.3d 616 (citation omitted) (narrowly construing the application
of this provision).
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