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

2

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 footmassage 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 

_____________________________________________________________

1 2004 UT App 203, 94 P.3d 301.

2 Because 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 nonmoving parties. See Gildea v. Wells Fargo Bank, N.A., 2015 UT 11, ¶ 3, 

347 P.3d 385.
Cite as: 2017 UT 85

Opinion of the Court 

3

“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).

_____________________________________________________________

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.
BYLSMA v. R.C. WILLEY

Opinion of the Court

4

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 

_____________________________________________________________

4 Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 13, 356 P.3d 1172 

(citations omitted).

5 A.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.

8 See 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.
Cite as: 2017 UT 85

Opinion of the Court 

5

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 

_____________________________________________________________

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)
BYLSMA v. R.C. WILLEY

Opinion of the Court

6

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.
Cite as: 2017 UT 85

Opinion of the Court 

7

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” 

_____________________________________________________________

11 See State v. Rasabout, 2015 UT 72, ¶ 10, 356 P.3d 1258.

12 See 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).

14 Graves, 2015 UT 28, ¶ 83 (Nehring, A.C.J., dissenting) (emphasis 

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.”).
BYLSMA v. R.C. WILLEY

Opinion of the Court

8

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

_____________________________________________________________

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.

24 Although the PLA was originally enacted prior to the LRA, it 

has been amended and reenacted several times since the passage of 

(Continued)
Cite as: 2017 UT 85

Opinion of the Court 

9

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 wellestablished 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)).
BYLSMA v. R.C. WILLEY

Opinion of the Court

10

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 

_____________________________________________________________

27 Id. (quoting RESTATEMENT (SECOND) OF TORTS § 402A (AM. LAW 

INST. 1965)).

28 Id. at 157 (citation omitted).

29 Id. (citation omitted).
Cite as: 2017 UT 85

Opinion of the Court 

11

chain of distribution—in order to ensure that a plaintiff will have a 

meaningful remedy. Third, it permits an “innocent” nonmanufacturer (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

_____________________________________________________________

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)).
BYLSMA v. R.C. WILLEY

Opinion of the Court

12

“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

_____________________________________________________________

34 Escola 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).

36 Id. 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).

38 Liability, BLACK’S LAW DICTIONARY (10th ed. 2014) (emphasis 

added).

39 Ernest W. Hahn, 601 P.2d at 156 (quoting RESTATEMENT 

(SECOND) OF TORTS § 402A(2)(a) (AM. LAW INST. 1965)).
Cite as: 2017 UT 85

Opinion of the Court 

13

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 

_____________________________________________________________

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)
BYLSMA v. R.C. WILLEY

Opinion of the Court

14

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)).

44 Green 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)
Cite as: 2017 UT 85

Opinion of the Court 

15

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 nonmanufacturers 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).
BYLSMA v. R.C. WILLEY

Opinion of the Court

16

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 nonculpable 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.

52 Davidson 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.”).
Cite as: 2017 UT 85

Opinion of the Court 

17

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

_____________________________________________________________

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)
BYLSMA v. R.C. WILLEY

Opinion of the Court

18

¶ 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.
Cite as: 2017 UT 85

Opinion of the Court 

19

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 

_____________________________________________________________

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).
BYLSMA v. R.C. WILLEY

Opinion of the Court

20

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 78B5-820(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).
Cite as: 2017 UT 85

Opinion of the Court 

21

¶ 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).

73 Id. (quoting Sullivan v. Scoular Grain Co., 853 P.2d 877, 880 (Utah 

1993)).

74 See id. ¶ 21.

75 Id.
BYLSMA v. R.C. WILLEY

Opinion of the Court

22

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 factfinder 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.
Cite as: 2017 UT 85

Opinion of the Court 

23

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 

_____________________________________________________________

77 See 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.
BYLSMA v. R.C. WILLEY

Opinion of the Court

24

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).
Cite as: 2017 UT 85

Opinion of the Court 

25

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 

_____________________________________________________________

89 See 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).
BYLSMA v. R.C. WILLEY

Opinion of the Court

26

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).

93 Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 2003 UT 43, ¶ 32, 79 

P.3d 922.

94 2004 UT App 203, ¶ 21.
Cite as: 2017 UT 85

Opinion of the Court 

27

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 

_____________________________________________________________

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.

96 See 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.
BYLSMA v. R.C. WILLEY

Opinion of the Court

28

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 

_____________________________________________________________

100 See 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).

102 See 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.”).
Cite as: 2017 UT 85

Opinion of the Court 

29

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 78B5-820(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). 
BYLSMA v. R.C. WILLEY

Opinion of the Court

30

“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 

_____________________________________________________________

105 Nat’l Serv. Indus., Inc. v. B.W. Norton Mfg. Co., 937 P.2d 551, 555 

(Utah Ct. App. 1997).

106 Id. 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).

108 See 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).

109 See 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 manufacturerindemnitor”). 

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)
Cite as: 2017 UT 85

Opinion of the Court 

31

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.

111 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 . . . .”).

112 RESTATEMENT (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)
BYLSMA v. R.C. WILLEY

Opinion of the Court

32

¶ 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)
Cite as: 2017 UT 85

Opinion of the Court 

33

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.

116 Penunuri 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)).
BYLSMA v. R.C. WILLEY

Opinion of the Court

34

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 
Cite as: 2017 UT 85

Opinion of the Court 

35

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 factfinder 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).

118 Id. 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)
BYLSMA v. R.C. WILLEY

Opinion of the Court

36

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).
Cite as: 2017 UT 85

Opinion of the Court 

37

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)
BYLSMA v. R.C. WILLEY

Opinion of the Court

38

¶ 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).
Cite as: 2017 UT 85

Opinion of the Court 

39

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).

136 See id. (stating that absolute strict liability has “been clouded 

by the recent Supreme Court decision [Mulherin] on what damages 

you may recover”).

137 Id. at 18 (statement of Assistant Attorney General Steve 

Sorenson).

138 Id. at 18–19 (emphasis added).

139 Id. at 19.

140 Id. (emphasis added).
BYLSMA v. R.C. WILLEY

Opinion of the Court

40

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).

145 See Debate, at 19 (stating that the LRA requires a comparison 

of fault between “different defendants, guilty on different theories of 

(Continued)
Cite as: 2017 UT 85

Opinion of the Court 

41

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)).

146 665 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.
BYLSMA v. R.C. WILLEY

Opinion of the Court

42

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).

149 See 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)
Cite as: 2017 UT 85

Opinion of the Court 

43

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.”).
BYLSMA v. R.C. WILLEY

Opinion of the Court

44

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.
Cite as: 2017 UT 85

Opinion of the Court 

45

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.
BYLSMA v. R.C. WILLEY

Opinion of the Court

46

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.
Cite as: 2017 UT 85

Opinion of the Court 

47

clause. Only the rescission claim is even arguably subject to feeshifting; 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 feeshifting.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 

_____________________________________________________________

161 See 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).
BYLSMA v. R.C. WILLEY

Lee, A.C.J., concurring in part and concurring in the judgment

48

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
Cite as: 2017 UT 85

Lee, A.C.J., concurring in part and concurring in the judgment

49

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 § 78B5-820(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 
BYLSMA v. R.C. WILLEY

Lee, A.C.J., concurring in part and concurring in the judgment 

50

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 

_____________________________________________________________

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).
Cite as: 2017 UT 85

Lee, A.C.J., concurring in part and concurring in the judgment

51

supra ¶ 76 (citing Utah Senate Floor Debate, S.B. 64, 46th Leg., Gen. 

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 

(Continued)
BYLSMA v. R.C. WILLEY

Lee, A.C.J., concurring in part and concurring in the judgment 

52

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

 

why I prefer to frame the judicial inquiry in textualist terms. This 

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)
Cite as: 2017 UT 85

Lee, A.C.J., concurring in part and concurring in the judgment

53

¶ 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.
BYLSMA v. R.C. WILLEY

Lee, A.C.J., concurring in part and concurring in the judgment 

54

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’ nonmanufacturer . . . 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 

_____________________________________________________________

167 See 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)).
Cite as: 2017 UT 85

Lee, A.C.J., concurring in part and concurring in the judgment

55

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 
BYLSMA v. R.C. WILLEY

Lee, A.C.J., concurring in part and concurring in the judgment 

56

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)
Cite as: 2017 UT 85

Lee, A.C.J., concurring in part and concurring in the judgment

57

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”).

171 See, e.g., Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362, 367–68 

(Minn. 1977) (rejecting the traditional doctrine of “passive” or 

(Continued)
BYLSMA v. R.C. WILLEY

Lee, A.C.J., concurring in part and concurring in the judgment 

58

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)
Cite as: 2017 UT 85

Lee, A.C.J., concurring in part and concurring in the judgment

59

¶ 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 activepassive 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)
BYLSMA v. R.C. WILLEY

Lee, A.C.J., concurring in part and concurring in the judgment 

60

¶ 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.
Cite as: 2017 UT 85

Lee, A.C.J., concurring in part and concurring in the judgment

61

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)
BYLSMA v. R.C. WILLEY

Lee, A.C.J., concurring in part and concurring in the judgment 

62

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)
Cite as: 2017 UT 85

Lee, A.C.J., concurring in part and concurring in the judgment

63

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.
BYLSMA v. R.C. WILLEY

Lee, A.C.J., concurring in part and concurring in the judgment 

64

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

_____________________________________________________________

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). 

181 See 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)
Cite as: 2017 UT 85

Lee, A.C.J., concurring in part and concurring in the judgment

65

¶ 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 . . . .”).
BYLSMA v. R.C. WILLEY

Lee, A.C.J., concurring in part and concurring in the judgment 

66

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”).

185 See 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”).
Cite as: 2017 UT 85

Lee, A.C.J., concurring in part and concurring in the judgment

67

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. 

_____________________________________________________________

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).