Feasel v. Tracker Marine

2021 UT 47IN THE
SUPREME COURT OF THE STATE OF UTAH
CRAIG FEASEL,
Respondent,
v.
TRACKER MARINE LLC AND BRUNSWICK CORPORATION,
Petitioners.
No. 20200327
Heard May 12, 2021
Filed August 12, 2021
On Certiorari to the Utah Court of Appeals
Second District, Morgan County
The Honorable Noelle S. Hyde
No. 140500037
Attorneys:1
Michael A. Worel, Paul M. Simmons,
Salt Lake City, for respondent
Sarah Elizabeth Spencer, Nathan D. Alder, Salt Lake City, Michael C.
McMullen, Kansas City, MO, for petitioner Tracker Marine, LLC
Patrick X. Fowler, Elizabeth M. McOmber, Salt Lake City, for
petitioner Brunswick Corp.
CHIEF JUSTICE DURRANT authored the opinion of the Court in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Boat passenger Craig Feasel sustained critical injuries when
repeatedly struck by a boat propeller after he and the driver, Monty
1 Douglas B. Cannon, Salt Lake City, for amici Utah Association
for Justice and American Association for Justice.
FEASEL v. TRACKER MARINE
Opinion of the Court
Martinez, were ejected into the water. Because Mr. Martinez was not
wearing the stop switch lanyard at the time of the ejection, the
unmanned boat remained under power. The boat ran in a
continuous circle, trapping and striking Mr. Feasel repeatedly. Mr.
Feasel claims Tracker Marine LLC, the boat manufacturer, and
Brunswick Corporation, the engine manufacturer (Tracker and
Brunswick) are liable for his injuries because they failed to
adequately warn the driver of the danger associated with failure to
wear the lanyard. He also claims they failed in their duty to warn
boat passengers of the danger.
¶2 The district court granted summary judgment in favor of
Tracker and Brunswick on both issues. On Mr. Feasel‘s claim that the
warnings were inadequate, the court found that there were
numerous warnings and that any additional warnings would not
have changed Mr. Martinez‘s behavior because he was aware of the
warnings but did not heed them. The court‘s findings were based in
part on the exclusion of portions of Mr. Martinez‘s sworn
declaration, in which he clarifies that he was not aware the boat
could spin in calm weather. On appeal, the court of appeals held that
the district court erred in excluding these portions of the
declaration.2 The court of appeals then concluded that the warnings
were not adequate as a matter of law under the adequacy standard
we adopted in House v. Armour of America, Inc.3 because the warnings
failed to specifically warn of the circling danger. We take this
opportunity to modify the House factors, adding a standard dictating
the specificity required for a warning to be adequate. We remand to
the district court for further proceedings to consider the adequacy of
the warnings in light of the now-admitted sworn statements and
under the modified standard.
¶3 On whether Tracker and Brunswick had a duty to warn
passengers, we clarify that, as a matter of law, a boat manufacturer
or supplier owes a duty to adequately warn passengers of the
dangers. And we adopt the standard of reasonableness to determine
whether these warnings must be issued directly to the passenger or
2We did not grant certiorari on the court of appeals‘ holding that
the district court erred in excluding the sworn statements. So the
court of appeals‘ decision on this matter is a final determination.
3 House v. Armour of Am., Inc. (House II), 929 P.2d 340, 346 (Utah
1996).
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whether a manufacturer or supplier may rely on an intermediary to
convey the warnings.4 We remand to the district court for further
proceedings consistent with our clarification of the law and the
reasonableness standard we adopt.
Background
¶4 Mr. Martinez owned a bass fishing boat manufactured by
Tracker and equipped with an outboard engine manufactured by
Brunswick. As in many boats, the fishing boat contained a lanyard
safety device designed to be worn by the driver while operating the
boat. The lanyard functioned to disable the engine if detached from
the boat. One end of the corded lanyard attached to an interior wall
of the boat adjacent to the throttle in the driver‘s area. The other end
was designed to clip onto the driver‘s wrist or belt loop. If a driver is
thrown overboard while not wearing the lanyard, the boat will
continue at the same speed employed at the time of the driver‘s
ejection.
¶5 Without a driver, running boats have a tendency to turn
sharply to the right. This turning causes the boat to continuously
circle tightly in the water. To those in the industry, this phenomenon
is called the ―circle of death‖ because the boat can trap the ejected
driver or passenger in its circle, causing the propeller to repeatedly
strike and cause serious injury or death to those trapped.
¶6 On the day in question, only Mr. Feasel and Mr. Martinez
occupied the fishing boat. Mr. Martinez operated the boat but was
not wearing the lanyard. When the boat struck an unknown object in
the water, both men were ejected. Mr. Martinez swam to safety, but
Mr. Feasel became trapped in the boat‘s circular pattern and was
struck at least three times by the propeller, sustaining serious
injuries.
¶7 Mr. Feasel brought suit against Tracker and Brunswick for
failure to adequately warn of the dangers associated with not
wearing the lanyard.5 Tracker and Brunswick argued that the
warnings they provided were standard in the industry. They offered
4 Cf. In re Adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382(discussing that mixed questions are those ―involving application of
a legal standard to a set of facts unique to a particular case‖).
5Mr. Feasel also brought negligence claims against Mr. Martinez,
which are not relevant here.
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FEASEL v. TRACKER MARINE
Opinion of the Court
the notices placed in the boat as well as in each company‘s owner‘s
manual as evidence that the warnings were adequate.
¶8 Tracker‘s manual contained a description of the lanyard and
a warning label indicating that the lanyard should be tested, used,
and replaced if not functioning. The warning itself did not expressly
state what harm may arise, but a separate section of the manual
stated that the presence of a colored warning label was an indication
that failure to abide by the warning may result in serious bodily
injury or death.
¶9 Several checklists of things to do before operating the boat
also mentioned the lanyard. But the lanyard was not mentioned in
the passenger-safety discussion, the emergency procedures section,
or the person overboard subsection. The manual did not include any
information concerning the boat‘s tendency to turn in a tight circle if
running unmanned.
¶10 Brunswick‘s manual also included information about the
lanyard‘s use. In a safety information discussion, the manual
explained that the purpose of the stop switch lanyard was to stop the
engine if the driver fell overboard or moved too far away from the
operator‘s position. The manual stated that ejection was more
common in some boats (like bass boats) and listed several poor
operating practices that also contributed to accidental ejection. The
manual noted that when the stop switch activated, the boat ―will
continue to coast for some distance depending on the velocity and
degree of any turn at shut down. However, the boat will not
complete a full circle.‖ It further stated that ―while the boat is
coasting, it can cause injury to anyone in the boat‘s path as seriously
as the boat would under power.‖ It then ―strongly recommended‖
that the passengers be instructed on the procedures in case of
emergency such as when ―the operator is accidentally ejected.‖
¶11 Two warning labels appeared at the end of the discussion.
One addressed the danger that could result from inadvertently
activating the stop switch and the other addressed the need to wear
the lanyard. ―If the operator falls out of the boat, stop the engine
immediately to reduce the possibility of serious injury or death from
being struck by the boat. Always properly connect the operator to
the stop switch using a lanyard.‖
¶12 The boat itself also contained several warning labels and
notices for various dangers. A red warning sign was located on the
rear of the boat and listed the danger of carbon monoxide poisoning.
Several other notices were placed near the throttle in the driver‘s
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area. Some of these notices also had a colored warning label, but
none with the warning label mentioned the lanyard or the danger
associated with not wearing it. But one red warning label stated,
―Rotating propeller may cause serious injury or death. Do not
approach or use ladder when engine is running.‖
¶13 Only one notice on the boat mentioned the lanyard, a black
and white placard with a checklist of things the driver should do
before starting the engine. The placard was affixed near the throttle
and contained no warning label but advised checking to ensure that
the ―[l]anyard stop switch‖ was ―operational and securely fastened.‖
¶14 Each side presented expert testimony. Feasel‘s expert
testified that the warnings were inadequate, and he presented an
illustrated sample of what he considered an adequate warning.
Brunswick‘s product safety manager also testified. He stated that
some boaters, because they do not understand the danger of not
wearing the lanyard, do not wear it. The manager also testified that
an explicit warning of the circle of death would likely result in more
operators using the lanyard.
¶15 Mr. Martinez provided a sworn declaration in which he
stated that he wore the lanyard in bad weather because he was
aware the boat could spin under such conditions. But he stated that
he was unaware the boat could spin in calm weather. The district
court found that these statements contradicted Mr. Martinez‘s earlier
statements in his deposition testimony and so excluded the
statements from the declaration.
¶16 The district court granted summary judgment in favor of
Tracker and Brunswick, concluding there were many warnings of
the danger and that, because Mr. Martinez was aware of the
warnings, any additional warnings would not have changed his
behavior. The court also held that Tracker and Brunswick did not
owe a duty to warn him of the danger arising from the driver‘s
failure to wear the lanyard. The court of appeals held that the district
court erred in excluding the declaratory statements and reversed on
both issues.6 Tracker and Brunswick filed a petition for certiorari,
6 The district court also excluded portions of the sworn
statements from Mr. Feasel and Gary Polson, an expert witness for
Mr. Feasel. The court of appeals held that the district court erred in
excluding Mr. Feasel‘s sworn statements but did not address the
exclusion of Mr. Polson‘s statements.
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FEASEL v. TRACKER MARINE
Opinion of the Court
which we granted with respect to the two issues. We have
jurisdiction under Utah Code section 78A-3-102(3)(a).
Standard of Review
¶17 ―[W]e review the decision of the court of appeals for
correctness, ‗giving no deference to its conclusions of law.‘‖7 And we
―review the facts in a light most favorable to the party against whom
summary judgment was granted.‖8
¶18 As to the duty to warn passengers, whether a duty exists is a
question of law we review for correctness.9
Analysis
¶19 Tracker and Brunswick first contend that the court of
appeals erred in reversing the district court‘s grant of summary
judgment. They argue the court of appeals too strictly interpreted the
specificity needed under the adequacy standard we adopted in
House v. Armour of America, Inc.10 Because the House standard lacks
guidance on what level of specificity an adequate warning requires,
we modify the third prong to include a specificity standard.11
Further, because the district court granted summary judgment in
favor of Tracker and Brunswick based in part on its exclusion of Mr.
Martinez‘s sworn statements, which exclusion the court of appeals
concluded was error, we remand to the district court so that it might
consider the adequacy of the warnings in light of the admitted
assertions and under the revised House standard as modified in our
opinion.
¶20 Second, Tracker and Brunswick argue that the court of
appeals erred in reversing the district court‘s holding that they had
7 Rutherford v. Talisker Canyons Fin., Co., LLC, 2019 UT 27, ¶ 14,
445 P.3d 474 (citing State v. Harker, 2010 UT 56, ¶ 8, 240 P.3d 780).
8 Heslop v. Bear River Mut. Ins. Co., 2017 UT 5, ¶ 15, 390 P.3d 314(citation omitted).
9 See B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 23, 275 P.3d 228.
10House v. Armour of Am., Inc. (House II), 929 P.2d 340, 346 (Utah
1996) (adopting the standard articulated by the court of appeals in
House v. Armour of Am., Inc. (House I), 886 P.2d 542, 550 (Utah Ct.
App. 1994), aff'd, 929 P.2d 340 (Utah 1996)).
11 House I, 886 P.2d at 551.
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no duty to warn Mr. Feasel of the danger.12 In its reversal of the
district court, the court of appeals held that Tracker and Brunswick
had a duty to directly warn Mr. Feasel.13 We agree in part and
disagree in part with the court of appeals. We clarify that under Utah
law, a manufacturer or supplier has a duty to warn the ultimate user.
And we adopt the standard as one of ―reasonableness in the
circumstances‖ for determining whether that warning must be
issued directly or whether the duty may be satisfied by warning an
intermediary.14 Because the district court erred in concluding that no
duty was owed, we remand to the district court for further
proceedings consistent with our clarification of the law and the
reasonableness standard we adopt.
I. The District Court Should Consider the Adequacy of the
Warnings in Light of the Sworn Statements
¶21 Tracker and Brunswick first argue that the warnings they
provided were adequate as a matter of law and that the court of
appeals erred in reversing the district court‘s grant of summary
judgment. But the district court granted summary judgment in favor
of Tracker and Brunswick based in part on the exclusion of Mr.
Martinez‘s sworn statements. And the court of appeals held that
exclusion was error. So we remand to the district court for
application of the standard we set forth herein in light of the sworn
statements.
¶22 Under 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.‖15 Moreover, ―a
manufacturer who knows or should know of a risk associated with
12 Feasel v. Tracker Marine LLC, 2020 UT App 28, ¶¶ 30-31, 460
P.3d 145.
13 Id.14 RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2 cmt. i (AM. L.
INST. 1998).
15 House v. Armour of Am., Inc. (House II), 929 P.2d 340, 343 (Utah
1996); see RESTATEMENT (SECOND) OF TORTS § 402A cmt. j (AM. L. INST.
1965).
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FEASEL v. TRACKER MARINE
Opinion of the Court
its product may be directly liable to the user if it fails to warn
adequately of the danger.‖16
¶23 We adopted the standard for determining the adequacy of
a warning in House v. Armour of America, Inc,17 affirming the court of
appeals‘ holding that a warning is adequate only if it ―completely
disclose[s] all the risks involved, as well as the extent of those
risks.‖18 The warning 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.‖19
¶24 While the adequacy of a warning is generally a matter for
the jury,20 a court may grant summary judgment on the issue if the
moving party shows ―that there is no genuine dispute as to any
material fact‖ and that it ―is entitled to judgment as a matter of
law.‖21 In other words, summary judgment is appropriate only when
―reasonable minds could reach only one result taking all disputed
facts and inferences in a light most favorable to‖ the non-moving
party.22
¶25 The district court noted that there were ―numerous
warnings‖ regarding the danger at issue and held that the warnings
appeared to be sufficient. But it did not fully examine the House
adequacy factors, concluding additional warnings would not have
made a difference because Mr. Martinez was ―aware of the
warnings‖ but ―did not heed‖ them. So the court awarded summary
judgment in favor of Tracker and Brunswick in part on the grounds
that ―other warnings would not have changed [Mr. Martinez‘s]
behavior in this case.‖
16House v. Armour of Am., Inc. (House I), 886 P.2d 542, 547 (Utah
Ct. App. 1994), aff’d, 929 P.2d 340.
17 House II, 929 P.2d at 346.
18 House I, 886 P.2d at 551.
19 Id. (citation omitted).
20 See House II, 929 P.2d at 347.
21 UTAH R. CIV. P. 56(a).
22 House I, 886 P.2d at 551.
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¶26 The district court relied on Mr. Martinez‘s deposition
statements to find that he was aware of the dangers but excluded his
sworn statements that he was unaware the boat could circle in calm
weather. The court of appeals concluded that the district court‘s
exclusion of the sworn statements was error. And because the
weather was calm on the day in question, the court of appeals held it
could not conclude, as a matter of law, that Mr. Martinez was aware
of the dangers.
¶27 The court of appeals then analyzed, under the House
factors, whether Tracker and Brunswick fulfilled their duty to
adequately warn as a matter of law. It reversed the district court,
concluding that summary judgment was precluded because ―none of
the warnings provided here specifically warn that the failure to wear
a lanyard may result in a circle-of-death situation.‖23 Tracker and
Brunswick argue the court of appeals applied the adequate warning
standard too strictly because warnings cannot warn of every
potential danger and the warnings they issued ―adequately describe
the function, purpose, and importance of the lanyard and why the
operator must wear it.‖
¶28 This case presents our first opportunity to apply the
adequacy standard since we adopted it in House. And it presents the
difficult and nuanced question of how specific a warning must be to
fulfill the specificity prong of the test. 24 We recognize that if
warnings become overly broad or overly inclusive, their force is
diminished. But at the same time, the standard requires the warnings
to ―give a fair indication of the specific risks involved.‖25 In order to
balance these concerns, we hold that the degree of specificity
required is determined by the magnitude of the risk, just as the
degree of intensity is determined. So we revise the third prong of the
23 Feasel v. Tracker Marine LLC, 2020 UT App 28 ¶ 26, 460 P.3d 145.
24 See RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2 cmt. i (AM.
L. INST. 1998) (―Product warnings and instructions can rarely
communicate all potentially relevant information, and the ability of a
plaintiff to imagine a hypothetical better warning in the aftermath of
an accident does not establish that the warning actually
accompanying the product was inadequate.‖).
25 House I, 886 P.2d at 551 (citation omitted).
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FEASEL v. TRACKER MARINE
Opinion of the Court
House standard to require that adequate warnings be of an intensity
and at a level of specificity ―justified by the magnitude of the risk.‖26
¶29 Because the district court did not examine the specificity
required in the warnings, we remand to the district court for further
proceedings to consider the adequacy of the warnings in light of the
admitted declarations and under the revised House standard.
II. A Manufacturer or Supplier Owes a Duty to Warn the Ultimate
User
¶30 Tracker and Brunswick next argue the court of appeals
erred in reversing the district court and holding that their duty to
warn extends to directly warning passengers of the boat‘s dangers.
We agree in part and disagree in part with the court of appeals. We
clarify that a manufacturer or supplier has a duty to warn the
ultimate user.27 But whether the manufacturer or supplier must warn
the ultimate user directly or whether this duty may be satisfied by
warning an intermediary depends on the circumstances. We adopt
the standard of ―reasonableness in the circumstances‖ for
determining when the ultimate user must be warned directly.28
Because we clarify the law on this point and adopt the
reasonableness standard, we remand to the district court for further
proceedings consistent with our clarification.29
¶31 Whether a duty is owed is determined ―as a matter of law
and on a categorical basis for a given class of tort claims.‖ 30 In other
words, we do not determine duty based on a set of facts in a given
case but rely on categorical rules of law ―applicable to a general class
of cases.‖31 So in this case, whether Tracker and Brunswick owed a
26 Id. (citation omitted).
27See RESTATEMENT (SECOND) OF TORTS § 402A cmt. h (AM. L. INST.
1965).
28 RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2 cmt. i (AM. L.
INST. 1998).
29 When we clarify the law, ―we may remand for further
proceedings‖ so that the record may be developed ―in light of the
newly articulated rule. Park v. Stanford, 2011 UT 41, ¶ 33, 258 P.3d
566.
30 B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 23, 275 P.3d 228.
31 Id. (citation omitted).
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duty to warn Mr. Feasel does not turn on the personal
understanding Mr. Martinez may have had of the dangers associated
with not wearing the safety lanyard. Rather, we consider generally
whether a boat manufacturer or supplier owes a duty to adequately
warn passengers about the vessel‘s dangers.32
¶32 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.‖33 Moreover, ―a manufacturer who knows or
should know of a risk associated with its product may be directly
liable to the user if it fails to warn adequately of the danger.‖34 A
user includes ―those who are passively enjoying the benefit of the
product, as in the case of passengers in automobiles or airplanes.‖35
―[I]t is not necessary that the ultimate user or consumer have
acquired the product directly from the seller‖ or ―that the consumer
have purchased the product at all. He may be a member of the
family of the final purchaser . . . or a guest at his table . . . .‖36
¶33 Both parties agree that a boat passenger qualifies as an
ultimate user. We conclude that because a manufacturer has a duty
to warn the ultimate user and because a boat passenger is such user,
a boat manufacturer or supplier owes a duty to adequately warn
boat passengers of dangers associated with the vessel.
A. The Standard for Determining Whether a Manufacturer or Supplier
May Satisfy Its Duty to Warn the Ultimate User by Warning an
Intermediary Is One of Reasonableness in the Circumstances
¶34 Tracker and Brunswick next argue that they satisfied any
duty to warn the ultimate user (the passenger) in this case by
warning the purchaser and relying on the purchaser to relay the
warnings to the passengers. Although we do not examine whether
Tracker and Brunswick satisfied their duty to warn passengers in
32 See id.33House v. Armour of Am., Inc. (House II), 929 P.2d 340, 343 (Utah
1996) (citations omitted); See RESTATEMENT (SECOND) OF TORTS
§ 402A.
34House v. Armour of Am., Inc. (House I), 886 P.2d 542, 547 (Utah
Ct. App. 1994), aff'd, 929 P.2d 340 (Utah 1996); see RESTATEMENT
(THIRD) OF TORTS: PRODS. LIAB. § 2 (AM. L. INST. 1998).
35 RESTATEMENT (SECOND) OF TORTS § 402A cmt. l.
36 Id.
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FEASEL v. TRACKER MARINE
Opinion of the Court
this case, we make clear that in some instances fulfilling the duty to
warn the ultimate user does not require a direct warning. Under
some circumstances, a manufacturer or supplier may satisfy its duty
to warn the ultimate user by warning an intermediary.
¶35 Section 388 of the Second Restatement of Torts and section
2(c) of the Third Restatement of Torts address the supplier‘s duty to
issue adequate warnings for products that are ―often supplied for
the use of others‖ through intermediaries.37 We have previously
adopted section 388, and this case gives us the opportunity to now
adopt section 2(c) of the Third Restatement of Torts as well, subject
to interpretation in accordance with Utah‘s established law.38
¶36 Section 388 and section 2 recognize that there are
circumstances under which it may be unnecessary or nearly
impossible for a manufacturer or supplier to directly warn the
ultimate user.39 Because of this ―[t]here is no general rule as to
whether one supplying a product for the use of others through an
intermediary‖ must warn the ultimate product user directly or ―may
rely on the intermediary to relay warnings.‖40
37 RESTATEMENT (SECOND) OF TORTS § 388 cmt. n (AM. L. INST.
1965); see also RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2(c).
38 Section 2, comment (i) of the Third Restatement of Torts
characterizes the issue of whether a manufacturer fulfills its duty to
warn the ultimate user by warning an intermediary as a question of
whether the supplier owes a ―duty to warn the ultimate product user
directly.‖ RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2 cmt. i. But
because this determination is fact-specific, and because under Utah
law duty is established for general classes and not on a case-by-case
basis, see B.R. ex rel. Jeffs, 2012 UT 11, ¶ 23, this determination is best
viewed as an inquiry into whether a supplier may fulfill its duty to
warn the ultimate user by warning the intermediary or whether the
circumstances require a direct warning. Although we note this
difference, it does not affect the application of the factors we adopt
from Section 2(c) comment i. See RESTATEMENT (THIRD) OF TORTS:
PRODS. LIAB. § 2 cmt. i.
39RESTATEMENT (SECOND) OF TORTS § 388 cmt. n; RESTATEMENT
(THIRD) OF TORTS: PRODS. LIAB. § 2 cmt. i.
40 RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2 cmt. i.
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¶37 Rather, the question of whether a duty to warn the ultimate
user is satisfied by warning the intermediary is one that must be
answered based on ―reasonableness in the circumstances.‖ 41 Among
the factors to consider when determining reasonableness are ―the
gravity of the risks posed by the product, the likelihood that the
intermediary will convey the information to the ultimate user, and
the feasibility and effectiveness of giving a warning directly to the
user.‖42 In other words, although dangerous products ―are often
supplied for the use of others,‖ providing warnings only to the
purchaser is not always sufficient ―to relieve the supplier from
liability.‖43 The supplier‘s burden to warn the ultimate user increases
with the gravity of the risk and the ease with which such warnings
may be issued. ―Where the danger involved in the ignorant use of
[the product] is great and such means of disclosure are practicable
and not unduly burdensome, it may well be that the supplier should
be required to adopt them.‖44
1. The Learned Intermediary Rule
¶38 Tracker and Brunswick rely upon the learned intermediary
rule to argue that they satisfied any duty to warn the passenger by
adequately warning the purchaser and then relying on the purchaser
to warn the passenger.45 We have previously recognized the learned
intermediary rule in narrow circumstances only.46 We remove the
41 Id.42 Id.43 RESTATEMENT (SECOND) OF TORTS § 388 cmt. n.
44 Id.
45 The learned intermediary is sometimes called the
―sophisticated intermediary‖ or ―sophisticated purchaser,‖ which
makes ―[t]erminology in this area of law . . . notoriously confusing.‖
Webb v. Special Elec. Co., 370 P.3d 1022, 1027 & n.1 (Cal. 2016). We
note that Tracker and Brunswick refer to it as the ―sophisticated
intermediary.‖ But we retain ―learned intermediary‖ as adopted in
our previous line of cases. See Schaerrer v. Stewart’s Plaza Pharmacy,
Inc., 2003 UT 43, 79 P.3d 922.
46 See Schaerrer, 2003 UT 43, ¶¶ 19-22. In Schaerrer, we recognized
the learned intermediary rule with respect to the duty of pharmacists
and drug manufacturers to warn patients—the ultimate users—of
drug risks. See id. ¶¶ 20–22. Under this rule, a pharmacist or drug
manufacturer needs to provide adequate warnings only to
(continued . . .)
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Opinion of the Court
limitation and expand the rule, consistent with the Restatement
provisions discussed above, and hold that on remand the district
court should consider the applicability of the rule to the facts of the
present case.
¶39 The learned intermediary rule applies in cases where the
intermediary is a sophisticated party or a party with a full range of
knowledge ―equal to that of the supplier.‖47 It applies ―only if a
manufacturer provided adequate warnings to the intermediary‖48
―or sells to a sufficiently sophisticated buyer and reasonably relies
on the buyer to warn end users about the harm. Reasonable reliance
depends on all attendant circumstances and is typically a question of
fact for the jury.‖49 The rule weighs the considerations from section
388 and section 2(c) in determining whether a manufacturer has
fulfilled its duty to warn the ultimate user by adequately warning
the learned intermediary.50
¶40 For example, in Webb v. Special Electric Co. the California
Supreme Court recognized that ―[a]lthough all sellers in a product's
distribution chain have a duty to warn about known hazards, they
may in some cases discharge that duty by relying on others to warn
downstream users‖51 because ―circumstances may make it extremely
difficult, or impossible, for a . . . supplier to provide warnings
directly to the consumers of finished products.‖52
physicians. Id. ¶¶ 20, 22. The pharmacist or drug manufacturer may
then rely on the physicians to convey the warnings to the patient. We
recognized this principle because, given their expertise, relationship
with the patient and understanding of the patient‘s needs, the
physicians were in a better position to warn their patients. Id. ¶ 20.
47 Gray v. Badger Mining Corp., 676 N.W.2d 268, 277–78 (Minn.
2004).
48 Webb, 370 P.3d at 1035 (citation omitted).
49 Id. at 1029.
50 See RESTATEMENT (SECOND) OF TORTS § 388; RESTATEMENT
(THIRD) OF TORTS: PRODS. LIAB. § 2 cmt. i.
51 370 P.3d 1022, 1027 (2016).
52 Id. at 1033.
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¶41 The court cited Persons v. Salomon North America, Inc.,53
where a skier sued a manufacturer of ski bindings after the bindings
failed to release properly during a fall.54 Aware that the bindings
were not compatible with certain boots, the manufacturer had
warned the ski rental facility of the issue and ―instructed the facility
how to recognize and treat incompatible boots.‖55 But the
manufacturer did not warn skiers directly.56 The court noted that
when there is ―no effective way to convey a product warning to the
ultimate consumer, the manufacturer should be permitted to rely on
downstream suppliers to provide the warning.‖57 Additionally, ―the
binding manufacturer's reliance was reasonable because the rental
shop ‗had an independent duty to exercise reasonable care in
supplying this equipment and was itself subject to strict liability for
failure to warn its customers of the dangerous propensities of articles
it rented.‘‖58 The manufacturer had therefore satisfied its duty to
warn.59
¶42 It may be reasonable to rely on the learned intermediary
where there is a high likelihood that the intermediary will convey
the information to the ultimate user. Reasonable reliance on the
intermediary to convey the warnings often arises in situations where
the employer is the intermediary and employees are the ultimate
users. For example, in Davis v. Avondale Industries, Inc., a welding
employee sued a manufacturer for failure to warn her of the dangers
from breathing in the fumes emitted by its brazing rods.60 The Fifth
Circuit recognized that because of the special duties an employer has
to its employees, ―[m]any courts hold that the supplier of a product
to an employer‖ satisfies any duty to warn the purchaser's
employees ―by warning their employer.‖61 The court also noted that
53 217 Cal.App.3d 168 (Ct. App. 1990).
54 Id. at 1034; see Persons, 217 Cal.App.3d at 168.
55 Webb, 370 P.3d at 1034.
56 Id.
57Id. (citing Persons, 217 Ca.App.3d at 178); see RESTATEMENT
(SECOND) OF TORTS § 388 cmt. n.
58 Webb, 370 P.3d at 1034 (citing Persons, 217 Cal.App.3d at 178).
59 Id.
60 975 F.2d 169, 171 (5th Cir. 1992).
61 See id. at 173–74.
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FEASEL v. TRACKER MARINE
Opinion of the Court
the manufacturer had reason to believe that the employer was in a
better position than the manufacturer to warn its employees.62 The
court further stated that if the supplier could show that the employer
knew of the dangers associated with the brazing rod, the supplier
could satisfy its duty to warn as a matter of law.63
¶43 In sum, we clarify that a boat manufacturer or supplier has
a duty to adequately warn passengers of the boat‘s latent dangers
and whether this duty has been satisfied by warning an intermediary
is governed by a reasonableness standard. We also expand our
recognition of the learned intermediary rule as expressed in section
388 of the Second Restatement and section 2 of the Third
Restatement of Torts.64
CONCLUSION
¶44 With respect to the question of whether Tracker and
Brunswick issued adequate warnings, we modify the third prong of
the House standard for determining the adequacy of a warning as
follows: the warning must be of an intensity and at a level of specificity
justified by the magnitude of the risk.65 Because the district court
granted summary judgement on the warnings based in part on the
exclusion of sworn statements, which exclusion the court of appeals
found to be error, we remand to the district court for further
proceedings consistent with our opinion to consider the adequacy of
the warnings in light of the admitted sworn statements and the
modified adequacy standard.
¶45 With respect to the question of whether Tracker and
Brunswick owed a duty to directly warn passengers of the dangers
associated with failure to wear the lanyard, we clarify that, as a
matter of law, a manufacturer or supplier owes a duty to warn the
ultimate user. In determining whether these warnings must be
issued directly or whether this duty may be satisfied by warning an
62 See id.63See id. at 173–74. The court ultimately reversed and remanded
for a new trial so the court could provide the manufacturer‘s
requested jury instruction consistent with these concepts. See id at
174–75.
64 RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 2(c).
65See 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).
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intermediary, we adopt the standard of reasonableness in the
circumstances. And we expand the learned intermediary rule
consistent with the applicable restatement provisions. We remand to
the district court for further proceedings consistent with our
clarification of the law and adoption of the reasonableness standard.
17