This opinion is subject to revision before final

publication in the Pacific Reporter

2024 UT 32

IN THE

SUPREME COURT OF THE STATE OF UTAH

D.W., L.T., and J.G.,

Appellees,

v.

FPA SANDY MALL ASSOCIATES,

Appellant.

No. 20230196

Heard February 7, 2024

Filed August 8, 2024

On Appeal of Interlocutory Order

Third District, Salt Lake County

The Honorable Randall N. Skanchy

No. 220902143

Attorneys:

Michael W. Young, Andres Morelli, Salt Lake City, for appellees

Vincent J. Velardo, Salt Lake City, for appellant

JUSTICE POHLMAN authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE, 

JUSTICE PETERSEN, and JUSTICE HAGEN joined.

JUSTICE POHLMAN, opinion of the Court:

INTRODUCTION

¶1 In this interlocutory appeal, FPA Sandy Mall Associates 

(SMA) challenges the district court’s order denying its motion to 

dismiss a complaint asserting claims against it for premises liability 

and negligence. SMA owns a shopping center in which it allowed 

Hong Guang Lin, an unlicensed massage therapist, to offer 

massage therapy services to the public. Three customers—D.W., 

L.T., and J.G. (collectively, Plaintiffs)—filed suit against SMA and 
D.W. v. FPA SANDY MALL ASSOCIATES

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2

Lin after Lin allegedly sexually assaulted them during their 

massage appointments.

¶2 SMA moved to dismiss the claims against it for failure to 

state a claim upon which relief could be granted, arguing that 

because it had no legal duty to Plaintiffs, their claims against it 

necessarily failed. In response, Plaintiffs presented the district court 

with several iterations of the duty of care they were invoking. 

Additionally, at the district court’s behest, both sides addressed 

B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228, and applied its

five-factor analytical framework (Jeffs factors) for recognizing a

categorical duty of care.

¶3 The district court denied SMA’s motion, concluding “as a 

matter of law that SMA, as a landlord, owed a duty to Plaintiffs, as 

invitees.” The court explained that premises owners have a “duty 

to keep [their] premises safe for others” and that a “landlord has a 

duty to exercise reasonable care to ensure that the property was in 

a reasonably safe condition.” The court also assessed the Jeffs

factors and concluded that they favored recognizing those duties

in this case. And in discussing those factors, the court observed that 

“an unlicensed business . . . could foreseeably result in physical 

harm to a business invitee.”

¶4 We granted SMA’s petition for interlocutory appeal on 

two questions. First, SMA contends the district court erred in 

concluding that SMA, as a commercial landlord, has a duty to 

verify its tenant’s licensure status. Second, SMA contends that the 

court erred in concluding it was foreseeable that an unlicensed 

tenant operating a massage business could harm the public. We 

don’t reach the first question, and we agree, in part, on the second.

¶5 We don’t reach the question of whether a commercial 

landlord has a duty to verify its tenant’s licensure status, because 

the district court did not recognize a duty as framed and challenged 

by SMA. And, as for the foreseeability question, we strike the 

court’s Jeffs-based observations, including its observation on 

foreseeability. The Jeffs framework applies only when a party relies 

on a duty not previously recognized under Utah law. Because 

Plaintiffs had not advocated for the adoption of a new categorical 

duty in response to SMA’s motion to dismiss, it was unnecessary 

for the district court to conduct a Jeffs analysis and to opine on its 

factors.
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Opinion of the Court

3

BACKGROUND1

¶6 In 2016, Hong Guang Lin opened Foot Relax Center on 

property owned by SMA in the Sandy Village Shopping Center.

Although Lin lacked the training and licensing to provide massage 

therapy services in Utah, he began working as a massage therapist 

at the center.

¶7 In 2020, Plaintiffs each had an appointment with Lin for a 

foot massage, during which Lin sexually assaulted them. Together, 

Plaintiffs brought civil claims against SMA and Lin for damages

arising from the assaults. As relevant here, Plaintiffs sued SMA

under theories of premises liability and negligence. They allege that 

SMA retained control over the property on which Foot Relax 

Center was located and that SMA “was responsible for the safety 

of patrons as invitees during the period in which Lin carried out his 

sexual assaults on Plaintiffs.”

¶8 More specifically, the premises liability claim alleges that 

SMA “owed a duty to invitees to act reasonably with regard to the 

safety of invitees, to discover whether any third party was 

committing or was likely to commit harmful acts against invitees, 

and to give warnings adequate to enable invitees to avoid such acts

or otherwise to protect invitees from the consequences of such 

acts.” As for the negligence claim, Plaintiffs assert that SMA “owed 

a duty to Plaintiffs to use reasonable care in [its] dealings with 

patrons and invitees of the property.”

¶9 SMA moved to dismiss Plaintiffs’ claims against it under 

rule 12(b)(6) of the Utah Rules of Civil Procedure. SMA argued that 

because it had turned over possession of the property to Lin in 

2016, and because a landlord is not responsible for its tenant’s torts,

it was not liable for Lin’s torts committed four years later. 

According to SMA, its “duty to business invitees of Mr. Lin’s leased 

property ended upon transfer of the property,” and it was entitled 

to be dismissed from the lawsuit because it “owed no independent 

duty to Plaintiffs.”

¶10 In opposing the motion to dismiss, Plaintiffs countered

that SMA “had a duty to verify the licensure of Mr. Lin to perform 

massages when he signed the lease of the property” given that it 

__________________________________________________________

1 Because this case is before us on appeal of the denial of a 

motion to dismiss, we take the factual allegations in the complaint 

as true. Mower v. Baird, 2018 UT 29, ¶ 5, 422 P.3d 837.
D.W. v. FPA SANDY MALL ASSOCIATES

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4

“is foreseeable that an unlicensed, untrained massage therapist—

performing massages on the general public—endangers the safety 

of the patrons.” According to Plaintiffs, SMA’s failure to verify

Lin’s licensure amounted to a breach of its duty to discover and 

remedy unsafe conditions and to ensure the premises were

reasonably safe. In support, Plaintiffs relied on several Utah cases 

discussing premises liability. For example, they cited Rodriguez v. 

Kroger Co., 2018 UT 25, ¶¶ 14–15, 422 P.3d 815, which quotes section 

344 of the Restatement (Second) of Torts. They also cited Darrington 

v. Wade, 812 P.2d 452, 458–59 (Utah Ct. App. 1991), which applied 

section 17.2 of the Restatement (Second) of Property.

¶11 The district court held a hearing on the motion, during 

which it asked the parties to address the potential applicability of 

B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228. The court 

instructed the parties to review Jeffs and then simultaneously 

submit a few pages indicating “whether or not [Jeffs] is the 

operative body of law.” But the court cautioned, “Jeffs may be 

entirely inapplicable in this case.”

¶12 Both sides complied with the request. In Plaintiffs’

supplemental filing, they stated that Jeffs “is indeed informative 

and controlling regarding the duty SMA owed to third 

parties/invitees as a landlord and property owner.” Plaintiffs then 

applied the five Jeffs factors and argued that they weigh in favor of 

recognizing established duties of care between landowners and 

invitees. SMA, in turn, used the Jeffs factors to analyze “the issues 

and facts” of this case. SMA applied each factor to Plaintiffs’ claims 

and argued that all five factors favored SMA.

¶13 The district court concluded “as a matter of law that SMA, 

as a landlord, owed a duty to Plaintiffs, as invitees.” It cited 

Rodriguez for the proposition that premises owners have a “duty to 

keep [their] premises safe for others,” and it stated that “a landlord 

has a duty to exercise reasonable care to ensure that the property 

was in a reasonably safe condition.” The court also assessed the Jeffs

factors and determined that they “militate against granting SMA’s 

Motion to Dismiss.”

¶14 SMA sought permission from this court to appeal the 

district court’s interlocutory order denying SMA’s motion to 

dismiss. SMA asserted that it was important for this court to resolve 

whether landlords “must verify professional licensing or be subject 

to liability for torts of their tenants.” Plaintiffs opposed 

interlocutory review, arguing that the case was just about “the 
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Opinion of the Court

5

conclusion that SMA, as a landlord, owed a duty of care to 

Plaintiffs, as invitees—applying routine and well-settled Utah 

law.” We granted SMA’s petition for interlocutory review and 

retained the case.

ISSUES AND STANDARD OF REVIEW

¶15 SMA challenges the district court’s denial of its motion to 

dismiss, identifying two issues for review:

• Whether the district court erred in determining that SMA, as 

a landlord, had a duty to verify the professional licensure of its 

tenant; and

• Whether the district court erred in determining that it was 

foreseeable that a tenant who was operating a massage 

establishment without a massage therapy license would cause 

harm to members of the public.

“[W]e review the district court’s denial of a motion to dismiss for 

correctness, granting no deference to the district court’s ruling.” 

St. Jeor v. Kerr Corp., 2015 UT 49, ¶ 6, 353 P.3d 137 (cleaned up).

ANALYSIS

I. SMA INCORRECTLY FRAMES THE DISTRICT COURT’S DUTY DECISION

¶16 SMA contends that the district court erred in denying

SMA’s motion to dismiss on the basis that it, as a commercial 

landlord, had “a duty to verify [the] professional licensure” of its 

tenant, Lin. In response, Plaintiffs counter that the court’s ruling on 

the duty question was not what SMA describes. Plaintiffs explain 

that the district court denied SMA’s motion “because under Utah 

law SMA owed a categorical duty of care to third parties/invitees 

(including Plaintiffs) as a commercial landlord and property

owner.” Plaintiffs argue that in framing the issue for our review, 

SMA improperly conflates issues of breach and proximate cause 

with the issue of duty.2

¶17 We conclude that Plaintiffs are correct that the first issue 

SMA presents is not properly before us. SMA petitioned for 

interlocutory review of the district court’s denial of its motion to 

__________________________________________________________

2 To succeed on a negligence claim, a plaintiff must prove that 

“(1) defendant owed plaintiff a duty of care, (2) defendant 

breached that duty, and that (3) the breach was the proximate cause 

of (4) plaintiff’s injuries or damages.” B.R. ex rel. Jeffs v. West, 2012 

UT 11, ¶ 5 n.2, 275 P.3d 228.
D.W. v. FPA SANDY MALL ASSOCIATES

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dismiss, arguing that the court erred in concluding that “SMA, as a 

landlord, had a duty to verify whether the tenant had a professional 

license.” We granted SMA’s petition based on its framing of the 

court’s ruling, and SMA maintains that framing now. But the 

district court did not recognize the duty SMA claims it did. That is, 

the court did not conclude that commercial landlords owe invitees 

a categorical duty to verify the licensure of the landlord’s tenants.

¶18 Instead, the district court concluded that SMA, as a 

landlord, owed duties to Plaintiffs, as invitees, “to keep [its] 

premises safe for others” and “to exercise reasonable care to ensure 

that the property was in a reasonably safe condition.” These duties

appear to be rooted in section 344 of the Restatement (Second) of 

Torts and section 17.2 of the Restatement (Second) of Property.

Section 344 states:

A possessor of land who holds it open to the public 

for entry for his business purposes is subject to 

liability to members of the public while they are upon 

the land for such a purpose, for physical harm caused 

by the accidental, negligent, or intentionally harmful 

acts of third persons . . . , and by the failure of the 

possessor to exercise reasonable care to (a) discover 

that such acts are being done or are likely to be done, 

or (b) give a warning adequate to enable the visitors 

to avoid the harm, or otherwise to protect them 

against it.

RESTATEMENT (SECOND) OF TORTS § 344 (AM. L. INST. 1965).3 And 

section 17.2 states,

A landlord who leases property for a purpose 

involving the admission of the public is subject to 

liability for physical harm caused to persons who 

enter the leased property for that purpose by a 

condition of the leased property existing when the 

tenant takes possession, if the landlord: (1) knows or 

by the exercise of reasonable care could discover that 

__________________________________________________________

3 This duty appearsto be rooted in section 344 because the district 

court did not expressly refer to section 344. Instead, in support of 

its conclusion that an owner of a premises has a duty to keep its

premises safe for others, the court cited our decision in Rodriguez v. 

Kroger Co., 2018 UT 25, 422 P.3d 815. The Rodriguez court, in turn, 

cited section 344 of the Restatement (Second) of Torts. Id. ¶ 15.
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7

the condition involves an unreasonable risk of harm 

to those persons; (2) has reason to expect that the 

tenant will admit them before the leased property is 

put in safe condition for their reception; and (3) fails 

to exercise reasonable care to discover or to remedy 

the condition, or otherwise to protect those persons 

against it.

RESTATEMENT (SECOND) OF PROPERTY:LANDLORD AND TENANT § 17.2 

(AM. L. INST. 1977).4 These are established duties under Utah law, 

not a new categorical duty to verify a tenant’s licensure status. See 

Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991) (citing 

Restatement (Second) of Torts section 344 in recognition of a duty 

“to protect . . . customers from criminal acts by third parties”); see 

also Rodriguez v. Kroger Co., 2018 UT 25, ¶ 15, 422 P.3d 815 (citing 

section 344); Darrington v. Wade, 812 P.2d 452, 458 (Utah Ct. App. 

1991) (applying Restatement (Second) of Property section 17.2).

¶19 But SMA did not seek permission to appeal the district 

court’s actual ruling, nor does it argue that the court erred in 

concluding that SMA owed Plaintiffs a duty “to keep [its] premises 

safe for others” or “to exercise reasonable care to ensure that the 

property was in a reasonably safe condition.” Thus, the correctness 

of the court’s ruling that SMA owed Plaintiffs these duties is not 

properly before us, and we express no opinion on whether the 

allegations in Plaintiffs’ complaint implicate the duties of care 

identified by the district court. Likewise, we express no opinion on 

whether commercial landlords owe a categorical duty to invitees to 

verify their tenants’ professional licensure, because the district 

court recognized no such duty. And because we do not reach these 

questions, we leave the court’s order undisturbed on the question 

of duty.

II. THE DISTRICT COURT ERRED IN APPLYING JEFFS AND REACHING 

QUESTIONS OF FORESEEABILITY

¶20 SMA also contends that the district court erred in 

determining that it was foreseeable that a tenant who was 

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4 This duty appears to be rooted in section 17.2 because even 

though the district court did not expressly refer to it, Plaintiffs’ 

opposition memorandum invoked section 17.2 and referenced

similar articulations of that duty in Utah caselaw. Although this 

court has not adopted section 17.2, our court of appeals has. See 

Darrington v. Wade, 812 P.2d 452, 458 (Utah Ct. App. 1991).
D.W. v. FPA SANDY MALL ASSOCIATES

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8

operating a massage establishment without a massage therapy 

license would cause harm to members of the public. Specifically, 

SMA argues that the court erred when, in deciding the motion to 

dismiss, it “applied the incorrect foreseeability analysis to the 

alleged facts.” The court opined on the issue of foreseeability as 

part of its analysis of the Jeffs factors. See B.R. ex rel. Jeffs v. West, 

2012 UT 11, ¶ 5, 275 P.3d 228. Because the district court erred in 

applying the Jeffs factors to resolve SMA’s motion to dismiss, we 

strike the portions of its decision applying those factors, including 

its observations on foreseeability.

¶21 The present case illuminates some confusion surrounding 

Jeffs’s utility. Indeed, the district court wondered whether Jeffs was 

“the operative body of law that [it] should be looking at,” while 

also expressing concern that “Jeffs may be entirely inapplicable in 

this case.” We take this opportunity to clarify for litigants and the 

courts that a Jeffs analysis is necessary only when a party seeks to 

establish a previously unrecognized duty for a category of cases.

¶22 In Jeffs, we articulated “a framework for the establishment 

of a duty of care in the law of torts.” Nixon v. Clay, 2019 UT 32, ¶ 13, 

449 P.3d 11; see also Mower v. Baird, 2018 UT 29, ¶ 4, 422 P.3d 837 

(stating that Jeffs established “the framework for analyzing whether 

a traditional duty exists”). That framework consists of five factors 

relevant to determining, on a categorical basis, whether a 

defendant owes a duty to a plaintiff. See Jeffs, 2012 UT 11, ¶¶ 5, 23. 

Those factors are: “(1) whether the defendant’s allegedly tortious 

conduct consists of an affirmative act or merely an omission; (2) the 

legal relationship of the parties; (3) the foreseeability or likelihood 

of injury; (4) public policy as to which party can best bear the loss 

occasioned by the injury; and (5) other general policy 

considerations.”5 Id. ¶ 5 (cleaned up).

¶23 We have previously emphasized that these factors are to 

“be analyzed at a broad, categorical level for a class of defendants 

rather than a factually intense inquiry decided on a case-by-case 

basis.” Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 29, 356 P.3d 1172

(cleaned up). We now emphasize that Jeffs and its progeny apply to 

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5 We originally described these factors as either “plus” or 

“minus” factors. Jeffs, 2012 UT 11, ¶ 5 (cleaned up). We have since 

discarded that distinction and have emphasized that the factors 

will play different roles depending on the case. See Boynton v. 

Kennecott Utah Copper, LLC, 2021 UT 67, ¶ 20, 500 P.3d 847.
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Opinion of the Court

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help courts determine whether a previously unrecognized duty 

exists; the Jeffs framework does not apply when a plaintiff invokes 

a categorical duty already recognized under Utah law. See Boynton 

v. Kennecott Utah Copper, LLC, 2021 UT 67, ¶ 18, 500 P.3d 847

(explaining that the Jeffs factors are relevant to the determination of 

whether to “creat[e] a legal duty”); Nixon, 2019 UT 32, ¶ 13 

(explaining that the Jeffs factors provide a framework “for the 

establishment of a duty of care” (emphasis added)). In other words, 

we agree with our court of appeals’ explanation that when Utah 

appellate courts “have already held” that the duty invoked by the 

plaintiff exists, “the existence of the duty in question has already 

been established,” and a district court therefore need not engage 

“in a Jeffs analysis at all.” Davis v. Wal-Mart Stores Inc., 2022 UT App 

87, ¶ 15, 514 P.3d 1209.

¶24 Here, the district court—unsure whether the Jeffs 

framework applied—asked the parties to weigh in on the question. 

But the Jeffs analysis was unnecessary and unhelpful because 

Plaintiffs had invoked categorical duties already recognized under 

Utah law. That is, because Plaintiffs cited Utah law recognizing 

duties under section 344 of the Restatement (Second) of Torts and 

section 17.2 of the Restatement (Second) of Property, see supra ¶ 10, 

Plaintiffs were not asking the court to recognize a new categorical 

duty in this case.6

¶25 Thus, the court’s analysis should have been limited to 

considering whether SMA owed Plaintiffs the already recognized 

duties they identified and whether the case, based on the 

allegations in Plaintiffs’ complaint, fell “within the ambit of the 

duty of care.” See Boynton, 2021 UT 67, ¶ 24 (explaining that, after 

the court determines a duty of care exists for a category of cases, 

the court next decides whether the case at hand “falls within the 

ambit of [that] duty of care”). Because the court’s analysis of the 

Jeffs factors was unnecessary, we strike its observations based on 

those factors, including its case-specific observation that a jury 

could conclude that an unlicensed “massage therapy establishment 

. . . could foreseeably result in physical harm to a business invitee.” 

__________________________________________________________

6 To the extent a plaintiff seeks to impose a previously 

unrecognized duty, that plaintiff must advocate for it under Jeffs 

and propose an articulation of the duty “in relatively clear, 

categorical, bright-line rules of law applicable to a general class of 

cases.” Scott, 2015 UT 64, ¶ 31 (cleaned up).
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We emphasize that we strike these observations without prejudice 

and without expressing any view on their merits.7

CONCLUSION

¶26 In this interlocutory appeal, SMA first challenges the 

district court’s determination that SMA, as a landlord, had a duty 

to verify the professional licensure of its tenant. We do not reach 

that issue because the court did not recognize this duty as framed 

by SMA. We likewise express no opinion on the correctness of the 

court’s conclusion that SMA owed Plaintiffs duties to keep its 

premises safe and to exercise reasonable care to ensure its property 

was in a reasonably safe condition. SMA did not receive permission 

to appeal this interlocutory ruling, and it has not challenged it on 

appeal. Thus, we leave the court’s ruling on the duty question 

undisturbed.

¶27 SMA also challenges the district court’s determination, as 

part of its analysis of the Jeffs factors, that it was foreseeable that a 

tenant operating a massage establishment without proper licensing 

would cause harm to the public. We strike the court’s analysis of 

the Jeffs factors, including its observations on foreseeability,

because it was unnecessary for the court to apply the Jeffs

framework to resolve SMA’s motion to dismiss. In so doing, we 

clarify that the Jeffs framework applies when litigants seek 

recognition of a new categorical tort duty and not when, as here, 

Plaintiffs rely on duties previously recognized under Utah law.

¶28 We remand this case to the district court for further 

proceedings consistent with these instructions.

__________________________________________________________

7 The district court issued a memorandum decision and an order 

prepared by counsel, both covering the same substantive ground.

In the court’s memorandum decision, we strike the four paragraphs 

of analysis on record pages 80–81 applying the Jeffs factors. In the 

court’s order, we strike the four paragraphs on record pages 175–

76 doing the same.