Feasel v. Tracker Marine , 2020 UT App 28 ( 2020 )

2020 UT App 28THE UTAH COURT OF APPEALS
CRAIG FEASEL,
Appellant,
v.
TRACKER MARINE LLC AND BRUNSWICK CORPORATION,
Appellees.
Opinion
No. 20180332-CA
Filed February 21, 2020
Second District Court, Morgan Department
The Honorable Noel S. Hyde
No. 140500037
Michael A. Worel and Richard Eric Shelton,
Attorneys for Appellant
Sarah E. Spencer, Nathan D. Alder, and Michael C.
McMullen, Attorneys for Appellee Tracker
Marine LLC
Elisabeth M. McOmber and Patrick X. Fowler,
Attorneys for Appellee Brunswick Corporation
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Craig Feasel appeals the district court’s decision granting
Tracker Marine LLC (Tracker) and Brunswick Corporation’s
(Brunswick) (collectively, Defendants) motion to strike Feasel’s
and another witness’s declarations and its grant of summary
judgment in favor of Defendants on Feasel’s failure-to-warn
claim. We reverse and remand for further proceedings.
Feasel v. Tracker Marine
BACKGROUND 1
¶2 In June 2012, Feasel went fishing in a small bass boat with
a friend, Martinez, on a reservoir in Morgan County, Utah.
Martinez was driving the boat, which was manufactured by
Tracker and equipped with an engine manufactured by
Brunswick. The boat struck an unknown object, and Feasel and
Martinez were ejected from the boat. Although the boat was
equipped with a kill-switch lanyard, 2 Martinez was not wearing
it at the time of the impact, and the boat continued to operate
under power after the two men were ejected. But rather than
move forward, away from the men, the boat turned into a tight
circle. Martinez was able to swim out of the boat’s path, but
Feasel was repeatedly struck and sliced by the boat’s propellers
as the boat continued to circle. Nearby boaters succeeded in
rescuing Feasel, who was flown to the hospital.
¶3 The boat’s user manuals included warnings regarding the
use and purpose of the kill-switch lanyard, the danger presented
by a spinning propeller blade, and the possibility that the
steering wheel may spin if released. Additionally, labels affixed
near the boat’s steering wheel warned users to wear the kill-
switch lanyard, to “[k]eep a firm and continuous grip on the
steering wheel,” to check that no one is in the water near the
boat when the engine is started, and that the rotating propeller
could cause injury. None of the warnings stated that wearing the
1. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).
2. When properly worn by the boat’s driver, a kill-switch
lanyard will shut off the boat’s engine if the driver is accidentally
ejected from the boat.
20180332-CA 2 2020 UT App 28Feasel v. Tracker Marine
kill-switch lanyard would prevent the boat from turning in
circles if the driver was ejected from the boat.
¶4 Feasel sued Defendants, 3 asserting strict liability and
negligence claims based on defective design and failure to warn,
as well as claims for breach of warranty. Following discovery,
Defendants moved for summary judgment on Feasel’s claims. 4
¶5 Feasel opposed the motion, asserting that genuine issues
of material fact precluded summary judgment. Feasel presented
evidence that the physical phenomenon whereby a driverless
boat begins circling—referred to colloquially as the circle of
death—is well-known in the boating industry but is not common
knowledge among “[o]rdinary boat users.” Although the kill-
switch lanyard is designed to shut off the motor if the driver is
accidentally ejected from the boat, so that it does not begin
turning in a circle of death, Defendants were aware that fewer
than fifty percent of boaters actually use the lanyard. A safety
manager for Brunswick opined that people do not wear the
lanyard because they do not understand its purpose. And a
compliance engineer for Tracker stated that Tracker was aware
that people do not wear the lanyard and had discussions about
how to encourage lanyard use but that “[t]he outcome of those
discussions was essentially the continuance of the information”
already contained in Tracker’s manual.
¶6 Feasel also relied on declarations he and Martinez
submitted to the court. Feasel’s declaration stated that he had
not heard of the circle of death before the accident and that if he
had known about it, he would have “insisted” that Martinez
3. Feasel also sued Martinez for negligence, but this claim was
voluntarily dismissed after the parties reached a settlement.
4. Although the district court granted summary judgment in
favor of Defendants on all Feasel’s claims, on appeal he
challenges only the court’s ruling on his failure-to-warn claim.
We therefore discuss only the facts relating to that issue.
20180332-CA 3 2020 UT App 28Feasel v. Tracker Marine
wear the lanyard and would not have ridden in any boat in
which the driver was not wearing a lanyard. Martinez’s
declaration stated that before the accident, he had read that
driverless boats can circle in stormy weather but that he did not
understand that this could happen in clear weather. He stated
that if he had known that the circle of death could occur in clear
weather, he would have worn the lanyard on the day of the
accident.
¶7 Finally, Feasel presented expert testimony indicating that
the circle of death presents a “different situation[]” from the
general danger a rotating propeller poses to people in the water
and that Defendants’ warnings were inadequate to convey the
specific danger presented by the circle of death. One of Feasel’s
experts crafted an alternate proposed warning specifically
explaining the circle of death and linking the risk of such a
danger to the need for boaters to always wear the kill-switch
lanyard. The expert opined that a more explicit warning similar
to the one he designed would result in people “more likely than
not” wearing the lanyards.
¶8 Prior to the hearing on the summary judgment motion,
Defendants moved to strike Feasel’s and Martinez’s declarations,
asserting that certain of their statements were inconsistent with
previous statements made in their depositions. The district court
agreed and struck those paragraphs in which Feasel and
Martinez expressed their lack of awareness of the circle-of-death
phenomenon and asserted that they would have acted
differently if they had been aware of the danger. The court then
granted Defendants’ motion for summary judgment. Specifically
with respect to the failure-to-warn issue, the district court
determined that Feasel could not establish his claim as a matter
of law because (1) Defendants provided warnings in the boat’s
user manuals and the labels on the boat, and Martinez was
aware of these warnings; (2) Defendants had no duty to warn
Feasel directly, as a passenger; (3) no warning Martinez could
have received would have made a difference to his heeding the
warning; and (4) the expert’s proposed alternative warning was
20180332-CA 4 2020 UT App 28Feasel v. Tracker Marine
too speculative to create a factual issue for the jury. Feasel now
appeals.
ISSUES AND STANDARDS OF REVIEW
¶9 Feasel first challenges the district court’s decision to strike
his and Martinez’s declarations on the ground that the
declarations were inconsistent with their earlier depositions.
“We review a district court’s decision on a motion to strike
affidavits submitted in support of or in opposition to a motion
for summary judgment for an abuse of discretion.” Mower v.
Simpson, 2017 UT App 23, ¶ 11, 392 P.3d 861 (quotation
simplified).
¶10 Feasel further asserts that he presented sufficient evidence
to preclude summary judgment on his inadequate warning claim
and that the court erred in granting summary judgment in
Defendants’ favor. “Because a district court’s ruling on summary
judgment is a question of law, we review it for correctness.”
Rupp v. Moffo, 2015 UT 71, ¶ 5, 358 P.3d 1060.
ANALYSIS
I. The District Court Exceeded Its Discretion in Striking
Martinez’s and Feasel’s Declarations.
¶11 Feasel first argues that the district court exceeded its
discretion by striking his and Martinez’s declarations on the
ground that certain statements in the declarations contradicted
their deposition testimony. “When a party takes a clear position
in a deposition, that is not modified on cross-examination, he
may not thereafter raise an issue of fact by his own affidavit
which contradicts his deposition, unless he can provide an
explanation of the discrepancy.” Magana v. Dave Roth Constr.,
2009 UT 45, ¶ 39 n.33, 215 P.3d 143 (quotation simplified).
Having reviewed Feasel’s and Martinez’s declarations, as well as
their depositions, we see no evidentiary basis for the district
20180332-CA 5 2020 UT App 28Feasel v. Tracker Marine
court’s determination that the statements made in the two men’s
declarations contradicted their deposition testimony.
¶12 The district court struck the following statements from
Feasel’s declaration:
5. Before the Accident, I did not know about the
Circle of Death.
....
7. Before the Accident, the Circle of Death was not
a danger that I contemplated for boating.
8. Before the Accident, I did not have any
experience or training about the Circle of Death.
9. If I had known about the Circle of Death,
I would have insisted that the operator of the
boat use a kill-switch lanyard while operating the
boat.
10. If I had known about the Circle of Death, I
would have not ridden in any bass boat in which
the operator is not using the kill-switch lanyard.
¶13 In his deposition, Feasel testified as follows:
Q. Where did you first hear that phrase, the circle
of death?
A. After my accident, when I got home and I
started looking at accident statistics, injuries, the
boating industry reports, coast guard, those kinds
of things, because I was curious as all get out.
....
Q. And based on your knowledge of how the kill
switch works when the lanyard is attached, as far
20180332-CA 6 2020 UT App 28Feasel v. Tracker Marine
as you know, if Mr. Martinez had simply attached
the lanyard to his person, the kill switch would
have stopped the motor when he was ejected; true?
A. True.
Q. And if the kill switch immediately stops the
motor, then the boat is not going to circle and
strike you; true?
A. True.
Q. When you operate your Skeeter boat, before this
accident with Mr. Martinez, you were certainly
well aware that you were responsible for safe
operation, including attaching the lanyard, the kill
switch lanyard?
A. Yes.
....
. . . . I’ve just never, ever fathomed the violent
potential of circle of death situation in a boat.
Q. But you would agree with me, would you not,
that you knew that a rotating propeller, a boat at
full throttle with a rotating propeller, that propeller
could cause injury if you came in contact with it?
A. I think that’s pretty much common sense, yes, I
do agree with you.
Q. And you knew that prior to the accident;
correct?
A. Yes.
¶14 Defendants assert that these statements indicate that
Feasel
20180332-CA 7 2020 UT App 28Feasel v. Tracker Marine
was aware of the dangers of a rotating
propeller and [a driverless] boat, he was aware
of the danger of being hit by a propeller when in
the water, he knew that a boat driver always
needed to wear the stop switch lanyard, and he
knew that if the stop switch is worn and stops the
motor, the boat will not circle and strike an ejected
occupant.
They maintain that the stricken portions of Feasel’s declaration
contradicted representations made during his deposition.
But Feasel’s declaration did not state that he was unaware of
the general dangers posed by a propeller; rather, he stated
that he was unaware that a driverless boat would begin
turning in a circle of death, returning to strike the
ejected occupants. This is not inconsistent with his deposition
statement that he did not learn of the circle-of-death
phenomenon until after the accident. And although Feasel
acknowledged that he knew the function of a kill switch, that
a lanyard should be worn for safe operation of a boat, and that
he would not have been struck by the circling boat if Martinez
had worn the kill-switch lanyard, he never stated that he knew
prior to the accident that a driverless boat was prone to circling
or that the kill switch was intended to prevent the specific
danger of an ejected driver or passengers being struck by a
circling boat.
¶15 As to Martinez’s declaration, the district court struck
the following statements:
3. Prior to the Accident, I had read that boats
could spin in a circle when people were thrown
from the boat in stormy weather.
4. Because of this danger in stormy weather, I
wore the kill-switch lanyard when I drove the boat
in stormy weather.
20180332-CA 8 2020 UT App 28Feasel v. Tracker Marine
5. Prior to the Accident, I did not know that people
would be thrown from a boat and the boat would
spin with no one in them in clear weather.
....
9. Prior to the Accident, I did not know that when
all people in a boat are thrown out of the boat it
can continue to circle in clear weather.
10. If I had known at the time of the Accident that
in clear weather a boat could spin when all people
were thrown from the boat, I would have worn the
engine-stop-switch lanyard.
....
12. Since the Accident, I now wear the kill-switch
lanyard when I drive the boat, irrespective of the
weather conditions, because I now know that a
boat can continue to spin even without people in
the boat.
¶16 In his deposition, Martinez testified as follows:
Q. So you also knew that if you were to fall out or
be ejected, that that kill switch could save your life
if you wore the lanyard?
A. Correct.
Q. And that could happen in a couple of ways. You
know the boat would keep running if you didn’t
wear the lanyard and you were thrown out, and so
you might not be able to get back to the boat; right?
A. Correct.
Q. So you knew that there was a risk of drowning
if you didn’t wear that lanyard; right?
20180332-CA 9 2020 UT App 28Feasel v. Tracker Marine
A. Correct.
Q. You also knew that if you didn’t wear that
lanyard and you were thrown out, that the boat
would keep going. It might strike a person in the
water; right? That’s a risk?
A. I would say yes.
Q. Right. You knew that before this accident, didn’t
you?
A. I would say I was aware of that, yes.
....
Q. And if for some reason the boat does a circle,
then you could be the person that gets hit by the
boat; right?
A. Right.
Q. That’s obvious, too, isn’t it?
A. Yes.
Q. And you knew that before this accident; right?
A. I will say yes.
Q. No one had to tell you that, you knew that;
right?
A. I read about it before. I just didn’t think it was
going to happen to me.
Q. You knew it could happen but you didn’t think
it would happen?
A. Right.
20180332-CA 10 2020 UT App 28Feasel v. Tracker Marine
Q. I guess you thought it might happen if you were
in stormy weather, though, that’s why you wore
the lanyard.
A. Correct.
....
Q. [In your answer to Interrogatory No. 2,] you
say, “The lanyard was used in stormy weather.”
Did I read that correctly?
A. Yes.
Q. Are you referring to the kill switch or the stop
switch lanyard on the throttle control?
A. Yes.
Q. Why would you use the lanyard in stormy
weather?
A. Because it’s spooky out at—it’s really—when
you get bad weather, the waves get really high.
And if it’s stormy around here, and windy, it can
be pretty scary.
Q. So you were anticipating, because of the waves,
that you wanted to wear the lanyard in case you hit
a big wave?
A. Correct.
Q. Is that the only time you used the lanyard on
your boat before this accident, was in stormy
weather?
A. Yes.
....
20180332-CA 11 2020 UT App 28Feasel v. Tracker Marine
Q. You didn’t need Tracker Marine to invent some
other gadget, you didn’t need some additional
warning, you knew, as the operator of the boat,
that you had to take responsibility for safe
operation, which included wearing the lanyard,
true?
A. I don’t know about all the first statements that
you’re talking about creating or making a better
product, but if I would have been wearing the
lanyard, yes, the accident would not have
happened.
Q. And you knew that before the accident?
A. Yes.
Q. So you didn’t need any other warning or
gadget, you just needed to wear the lanyard to
prevent this accident; right?
A. Right.
¶17 As with Feasel’s declaration, nothing in Martinez’s
declaration contradicts his deposition testimony. In his
deposition, Martinez stated that he knew that “if for some
reason” the boat circles, it can return to hit the people who had
been ejected from the boat, but he did not state that he was
aware that a boat could circle in clear weather, and in fact, he
emphasized that he believed it was necessary to wear the
lanyard primarily in stormy weather. And as with Feasel,
Martinez’s acknowledgment that the accident would not have
happened if he had worn the lanyard does not demonstrate that
he was aware of the specific circle-of-death phenomenon. His
declaration merely “clarifies[] and expands his deposition
testimony” regarding his beliefs about the relative dangers of
stormy and clear weather rather than contradicting it. Cf. Uintah
Basin Med. Center v. Hardy, 2005 UT App 92, ¶ 14 n.1, 110 P.3d
168.
20180332-CA 12 2020 UT App 28Feasel v. Tracker Marine
¶18 While the jury might ultimately question the credibility of
Feasel’s claim that he was unaware of the circle-of-death
phenomenon or Martinez’s claim that he believed it occurs only
in times of bad weather, the depositions and declarations are not
inconsistent. The district court therefore exceeded its discretion
in striking them.
II. Material Disputed Facts Precluded Summary Judgment on
Feasel’s Inadequate Warning Claim.
¶19 We next turn to the question of whether the district court
correctly granted summary judgment to Defendants on Feasel’s
inadequate warning claim. “[U]nder Utah law, a manufacturer
may be held strictly liable for any physical harm caused by its
failure to provide adequate warnings regarding the use of its
product.” House v. Armour of Am., Inc. (House II), 929 P.2d 340,
343 (Utah 1996). To establish his inadequate warning claim,
Feasel is required to prove (1) that Defendants had a duty to
warn, (2) that the warning was inadequate, (3) that the
inadequate warning made the product unreasonably dangerous,
and (4) that the lack of an adequate warning caused the injury.
See id. at 343, 346.
A. Adequacy of the Warnings
¶20 The first ground on which the district court relied in
granting summary judgment on Feasel’s inadequate warning
claim was its determination that warnings were provided to boat
drivers in the boat manuals and on labels affixed near the boat’s
steering wheel and that Martinez testified that he read and
understood the warnings. But Feasel does not dispute that
Defendants provided warnings in the boat manuals and on
labels on the boat or that both Feasel and Martinez understood
them as they were presented. Rather, he disputes that those
warnings were adequate to warn of the danger posed by the
circle-of-death phenomenon. Feasel asserts that Defendants had
a duty to provide a specific warning regarding the risk of the
circle of death and that the existing warnings exhorting users to
20180332-CA 13 2020 UT App 28Feasel v. Tracker Marine
wear the kill-switch lanyard were inadequate because they did
not mention the circle of death. 5 The adequacy of a warning
ordinarily “presents a question of fact, to be resolved by the trier
of fact.” House v. Armour of Am., Inc. (House I), 886 P.2d 542, 551
(Utah Ct. App. 1994), aff’d, 929 P.2d 340 (Utah 1996).
¶21 Defendants maintain that the district court correctly
rejected Feasel’s inadequate warning arguments as a matter of
law because (1) the danger was open and obvious such that a
warning was not required as a matter of law; (2) Martinez’s and
Feasel’s actual knowledge, training, and experience precluded a
finding that the lack of warnings made the boat unreasonably
dangerous; and (3) the warnings were adequate as a matter of
law. We address each argument in turn.
¶22 Defendants’ assertion that “a reasonable consumer would
‘generally know’ and ‘recognize’ that the boat propeller could
strike and seriously injure or kill them if they were ejected,”
(citing House II, 929 P.2d at 343 (quotation simplified)), ignores
the basis of Feasel’s claim—that consumers were unlikely to
know that a driverless boat would spin into a circle of death.
Even if we accept the idea that consumers are generally aware
that they may be injured by a propeller if ejected from a boat, the
danger of incurring multiple propeller wounds from a circling
boat is more specific. No information was presented to the
district court to show that consumers generally are aware of the
propensity of boats without a driver to circle, and indeed, Feasel
presented evidence to the contrary. Based upon the evidence
presented to the district court, the particular danger at issue
here—the circling boat—was not so open and obvious that
5. The manuals included warnings that “[t]he steering torque of
the engine can cause the steering wheel to spin if released,
resulting in serious damage to the boat or serious injury or death
to dislodged occupants,” but this warning was not included in
the warning explaining the purpose of the lanyard or on the
labels affixed to the boat.
20180332-CA 14 2020 UT App 28Feasel v. Tracker Marine
Defendants had no duty to warn as a matter of law. See House II,
929 P.2d at 343 (explaining that an open and obvious danger is
one that is “generally known and recognized” (quoting
Restatement (Second) of Torts § 402A cmt. j (Am. Law Inst.
1965))); see also infra ¶ 26.
¶23 Defendants further assert that Feasel cannot establish that
the absence of adequate warnings made the boat unreasonably
dangerous, because Martinez and Feasel had extensive
knowledge, training, and experience with respect to boating.
Under Utah law, whether a product is “unreasonably
dangerous” must be considered in light of the “actual
knowledge, training, or experience possessed by that particular
buyer, user, or consumer.” Utah Code Ann. § 78B-6-702
(LexisNexis 2018). Defendants assert that “[i]t is undisputed that
Martinez and Feasel had actual knowledge, training and
experience regarding the reasons why operators must wear the
lanyard and the hazards of not doing so.” But Feasel stated in his
declaration that he was unaware of the circle-of-death
phenomenon until after the accident, and Martinez stated in his
declaration that he believed boats would circle only in bad
weather. Thus, there exists a dispute of material fact as to
whether Feasel and Martinez, who were seasoned boaters, had
actual knowledge of the specific hazard at issue in this case.
¶24 Finally, Defendants assert that the warnings provided
were adequate as a matter of law. An adequate warning “must
completely disclose all the risks involved, as well as the extent of
those risks”; specifically, it must “(1) be designed so it can
reasonably be expected to catch the attention of the consumer;
(2) be comprehensible and give a fair indication of the specific
risks involved with the product; and (3) be of an intensity
justified by the magnitude of the risk.” House I, 886 P.2d at 551(quotation simplified). Defendants argue that the warnings they
provided in their manuals and on their boats were adequate
because the warnings “explain the ability of the lanyard to stop
the boat from circling in the water.” But the warnings do not
explicitly link the admonition to wear the lanyard with the
danger of a driverless boat turning in a tight circle.
20180332-CA 15 2020 UT App 28Feasel v. Tracker Marine
¶25 The manual contains a number of warning boxes, set
apart from the main text and labeled with the all-caps word
WARNING and a symbol of an exclamation point set inside a
triangle. Several of these warnings explain that the lanyard’s
purpose is to turn off the engine in the case of accidental ejection.
However, none of these warnings explain the danger presented
by the boat turning back toward ejected passengers and circling
over them. One line in each of Tracker’s and Brunswick’s
manuals states, “While activation of the lanyard stop switch will
stop the engine immediately, a boat will continue to coast for
some distance depending upon the velocity and degree of any
turn at shut down. However, the boat will not complete a full
circle.” This information is included in the main text of the
manual rather than in one of the labeled warning boxes, and the
danger presented by the boat continuing to circle is not
articulated. A warning box in a different part of the manual
directs users to keep a hand on the steering wheel at all times
because “[t]he steering torque of the engine can cause the
steering wheel to spin if released, resulting in . . . serious injury
or death to dislodged occupants.” But this warning is linked
specifically to the need for the driver to keep at least one hand
on the steering wheel, not the need to wear the lanyard. Further
warnings instruct users about the dangers of the propellers and
advise users to shut off the motor if anyone is in the water or if
the driver falls out. One warning label affixed to the right of the
steering wheel instructs users to ensure that the lanyard is
“operational and securely fastened” before starting the engine,
and a separate label nearby warns that a “[r]otating propeller
may cause serious injury or death.” None of the affixed labels
refer to the possibility that a driverless boat may spin in a tight
circle while under power.
¶26 Given that none of the warnings provided here
specifically warn that the failure to wear a lanyard may result in
a circle-of-death situation, Defendants have not demonstrated
that, as a matter of law, the warnings were adequate. Rather, we
think this is a question for the jury. A jury may well conclude
that the warnings, read together, were adequate, but without
20180332-CA 16 2020 UT App 28Feasel v. Tracker Marine
more explicit warnings, this issue should not have been resolved
as a matter of law. Cf. Groesbeck v. Bumbo Int’l Trust, 718 F. App’x
604, 618 (10th Cir. 2017) (holding that multiple clear and
prominent on-product warnings directing consumers not to use
a baby seat on elevated surfaces and specifically warning that
babies can fall out of the seat were adequate as a matter of law).
¶27 Because the question of whether the warnings here were
adequate should have been left to the fact-finder, the district
court erred in granting summary judgment on this basis.
B. Causation
¶28 The district court next determined that Feasel could not
establish causation because Martinez stated in his deposition
that “any other warning that he may have received would not
have made any difference” to his heeding that warning.
However, this does not appear to be an accurate characterization
of Martinez’s testimony. Although Martinez stated that he
should have worn the lanyard, even in the absence of additional
or more explicit warnings, he never stated that an additional
warning would not have made a difference. And in his
declaration, which we have determined to be admissible, he
explicitly declared, “If I had known at the time of the Accident
that in clear weather a boat could spin when all people were
thrown from the boat, I would have worn the engine-stop-switch
lanyard,” and, “Since the Accident, I now wear the kill-switch
lanyard when I drive the boat, irrespective of the weather
conditions, because I now know that a boat can continue to spin
even without people in the boat.” This evidence is sufficient to
put the question of causation in the hands of the jury, and
therefore the district court erred in ruling on the issue of
causation as a matter of law.
III. Additional Issues
¶29 Feasel raises two additional issues on appeal that are not
essential to our determination. Nevertheless, because these
20180332-CA 17 2020 UT App 28Feasel v. Tracker Marine
matters may be relevant on remand, we address them briefly
here.
A. Duty to Passengers
¶30 During oral argument on the motion for summary
judgment, Defendants asserted, for the first time, that the duty to
warn does not extend to passengers. 6 When it became clear that
this was a question the district court was considering, Feasel
requested the opportunity to brief it further, which the court
denied. The court then concluded that Defendants had no duty
to warn Feasel directly as a passenger and relied on this
conclusion in its summary judgment ruling.
¶31 Utah has adopted section 402A of the Second Restatement
of Torts with respect to strict products liability. See Bylsma v. R.C.
Willey, 2017 UT 85, ¶ 21, 416 P.3d 595. The comments to section
402A define “user” as including “those who are passively
enjoying the benefit of the product, as in the case of passengers
in automobiles or airplanes.” Restatement (Second) of Torts
§ 402A cmt. l (Am. Law Inst. 1965). Likely due to the lack of
briefing, the district court did not analyze this provision or
explain why it believed the provision would not apply in this
6. The district court also observed that Feasel’s assertion that
Defendants had a duty to warn him directly was a new theory
not raised in his complaint, which alleged only that Defendants
had “fail[ed] to adequately warn boat operators.” Feasel appears
to be using this alternate theory to guard against the possibility
that the jury might find that Martinez had actual knowledge of
the dangers presented by the circle of death. See supra ¶ 23. On
appeal, we address only the court’s legal conclusion that the
duty to warn does not extend to passengers. The possibility that
Feasel may be precluded from pursuing his theory for
procedural or other reasons is a matter for the court to address
on remand.
20180332-CA 18 2020 UT App 28Feasel v. Tracker Marine
case. 7 Defendants have pointed us to no case law that would
preclude applying this definition of “user” in the failure-to-warn
context.8 Thus, the district court erred on this point.
7. The district court cited the example of other occupants of the
reservoir who might be in danger from a driverless boat,
pointing out that it would be impossible to provide warnings to
such individuals. But a passenger clearly has a greater ability to
ensure his own safety than a person in the water who has no
connection to a boat or its driver. A boat passenger who receives
an adequate warning has the ability to encourage the driver to
follow safety instructions or to elect not to ride in the boat if the
driver does not do so.
8. Defendants have misinterpreted the cases they cite. For
example, they represented the holding in Marshall v. Ford Motor
Co., 446 F.2d 712 (10th Cir. 1971), as follows: “The Tenth Circuit
. . . conclud[ed] that the driver, not the manufacturer, had the
obligation to warn passengers of relevant hazards arising from
seatbelt nonuse. Where the driver was adequately warned, such
that she knew about the need for passengers to wear seatbelts,
no separate or independent duty to warn extended to
passengers.” In reality, the plaintiff’s failure-to-warn argument
was rejected in that case because “the function of seat belts is a
matter of common knowledge.” Id. at 715. The court went on to
point to the fact in that case that the driver had repeatedly
warned her passengers to wear seatbelts. Id. Thus, the Marshall
court did not hold that the duty to warn does not generally
extend to passengers. In citing Stevens v. Cessna Aircraft Co., 115
Cal. App. 3d 431 (Ct. App. 1981), Defendants accurately
represent the court’s holding that an aircraft manufacturer was
not required to warn passengers about aircraft weight
limitations, but they neglect to acknowledge that the court
explicitly distinguished airplane passengers from other types of
passengers due to the fact that airplane passengers “necessarily
depend[] upon the skill and judgment of the pilot.” Id. at 434. In
(continued…)
20180332-CA 19 2020 UT App 28Feasel v. Tracker Marine
B. Expert Testimony
¶32 Feasel also takes issue with the district court’s
determination that his expert’s testimony was too speculative to
support a finding of causation. Feasel analyzes this issue under
rule 702 of the Utah Rules of Evidence and challenges the court’s
decision to “exclude” the expert testimony without motion or
briefing. The district court did not actually go so far as to
exclude the testimony, primarily because its summary judgment
ruling obviated the need for a trial. We are therefore not in a
position to review the admissibility of the expert testimony.
¶33 However, we do believe that the court’s finding regarding
the sufficiency of the expert testimony was premature and
possibly based on erroneous information. This issue was raised
for the first time at the summary judgment hearing and was not
fully briefed by the parties. Further, Feasel alleges that counsel
for Defendants made a number of representations regarding the
expert’s testimony that were not entirely accurate and on which
the district court may have relied in assessing Feasel’s expert’s
reliability.
¶34 In screening out unreliable expert testimony, district
courts “must be careful not to displace the province of the
factfinder to weigh the evidence.” State v. Jones, 2015 UT 19, ¶ 26,
345 P.3d 1195. Rule 702 “requires only a basic foundational
showing of indicia of reliability for the testimony to be
admissible, not that the opinion is indisputably correct.” Majors
v. Owens, 2015 UT App 306, ¶ 12, 365 P.3d 165 (quoting Utah R.
Evid. 702 advisory committee’s note). In the event that
Defendants seek to exclude Feasel’s expert at trial, the court
should entertain full briefing on the matter and thoroughly
(…continued)
short, the cases cited by Defendants do not support their
position that the duty to warn does not extend to passengers in a
small boat.
20180332-CA 20 2020 UT App 28Feasel v. Tracker Marine
examine the expert’s proposed testimony before reaching a
decision on admissibility.
CONCLUSION
¶35 The district court exceeded its discretion in striking
Martinez’s and Feasel’s declarations on the ground that they
contradicted earlier deposition testimony. Because their
declarations did not conflict with their deposition testimony,
there was no basis on which to strike them. Further, the district
court erred in granting summary judgment in favor of
Defendants, because genuine issues of material fact remain,
specifically with respect to the adequacy of the warnings,
whether Martinez and Feasel had actual knowledge of the
specific danger that would result from not wearing the kill-
switch lanyard, and whether the failure to warn caused Feasel’s
injuries. Accordingly, we reverse the district court’s grant of
Defendant’s motion to strike and motion for summary judgment
with respect to Feasel’s failure-to-warn claim and remand for
further proceedings consistent with this opinion.
20180332-CA 21 2020 UT App 28