FILED

United States Court of Appeals

Tenth Circuit

September 21, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL A. HENRIE,

Plaintiff - Appellant,

v.

NORTHROP GRUMMAN

CORPORATION, formerly known as

Northrop Corporation; NORTHROP

GRUMMAN SYSTEMS; NORTHROP

GRUMMAN INFORMATION

TECHNOLOGY, INC.,

Defendants - Appellees.

No. 06-4102

Appeal from the United States District Court

for the District of Utah

(D.C. No. 2:04-CV-296-PGC)

Douglas B. Cannon of Fabian & Clendenin, Salt Lake City, Utah, for Plaintiff -

Appellant.

Ryan M. Harris (J. Angus Edwards with him on the briefs) of Jones, Waldo,

Holbrook & McDonough Salt Lake City, Utah, for Defendants - Appellants.

Before O’BRIEN, BALDOCK and HOLMES, Circuit Judges.

O’BRIEN, Circuit Judge.
-2-

Michael Henrie severely injured his arm while working at Hill Air Force

Base (Hill Field) using an apparatus to hold large, heavy parts for painting. He

filed a products liability claim against Northrop Grumman Corporation (NGC),

the manufacturer of the apparatus. The district court granted summary judgment

in favor of NGC. Henrie appealed. We affirm.

I. Background

Henrie is an experienced professional civilian painter who had worked for

the military at Hill Field for twenty-three years. On July 19, 2001, while painting

B2 Stealth Bomber parts, Henrie injured his arm and shoulder using a device

known as a “glass fixture.” (R. Vol. I 318, 344-348). The glass fixture is the

largest of eleven different fixtures, each designed to hold a different part of the

aircraft during the application of paint or another coating. It is comprised of two

square frames, one which rotates within the other, somewhat like a gyroscope. 

The frames are attached to a wheeled base. The fixture is used as follows: The

workers place the inner frame of the fixture in a horizontal position. The frame

position is secured with two pins, one located on each side of the frame. Once

the aircraft part is loaded on the frame and clamped, two persons standing on the

wheel base to each side of the fixture remove the pins while several others hold

the frame and then move it to a vertical position. The pins are reinserted when

the frame (and the aircraft part) reach the vertical position. After completing

work on the part, the process is reversed. Two men pull the pins while several
 The parts may weigh many hundreds of pounds. 1

-3-

others hold the frame to prevent uncontrolled rotation of the heavily weighted end

of the part. The aircraft part is then packaged for shipping. 1

Prior to the accident, Henrie had been working in the B2 program for

approximately a year and a half. The painting department employed seven or

eight employees. Henrie’s first contact with the fixtures was at NGC’s California

B2 manufacturing plant located on the Pico Rivera Air Force Base (Pico). Henrie

and another painter were sent for thirty days of observation training in February

1999. In April or May 1999, he and two other employees were again sent to Pico

for six weeks of training. Finally, in late 1999, he returned to Pico for a month to

do production work. At Pico, the frame devices ran on monorails. The Air Force

requested Northrop Grumman to modify the frames to fit on a wheeled base for

use at Hill Field after Pico closed in early 2000. The devices were designed

solely for use by the painters at Hill Field.

Henrie testified he and a fellow worker established the frame procedure

after the fixtures arrived at Hill Field without instructions. See pp. 1-2 supra (use

of fixture). Henrie and the other painters used the various fixtures every day after

the equipment arrived at Hill Field up to the day of the accident. Four or five

months before the accident, the Air Force modified the glass fixture. Henrie and

his co-workers reported a swivel which allowed the aircraft part to rotate within

inner frame which caused them safety concerns. At their request, the swivel was
-4-

welded solid.

On July 19, 2001, Henrie’s supervisor assigned him and fellow employee,

Isaac Donohue, to unload the glass from the fixture and package it for shipping.

The two men went to each side of the fixture and stood on the base to release the

pins. Henrie then called out to others in the area for assistance in lowering the

part and frame to the horizontal position. As he looked over his shoulder, Henrie

saw “a bunch of people” standing behind him. (R. Vol. 1 at 328.) He mistakenly

assumed they were there to assist with the frame and yelled to Donohue to pull

the pin. Both men released the pins simultaneously. When Henrie turned to help

with the frame, the weighted side of the frame spun down and caught his arm. 

Donohue was knocked off the fixture base. Henrie fractured his elbow and

dislocated his shoulder, eventually requiring several surgeries.

 On June 13, 2003, Henrie filed his claim against NGC alleging (1) strict

product liability for the design and manufacture of an unreasonably dangerous

product, (2) negligent design, testing, manufacture and distribution, and (3)

breach of an implied warranty of merchantability and fitness. On January 14,

2005, NGC filed a Motion for Summary Judgment on all claims, contending the

device worked exactly as designed and was not unreasonably dangerous. The

district court deferred consideration of the motion until the completion of

discovery.

After discovery, NGC renewed its motion for summary judgment. In
 Dr. Bramberg proposed both the relocation of the rotation points to the 2

airplane part’s center of gravity and installing a worm gear box with a crank to

the side of the device. With these features, the worker must turn the crank

approximately twenty-five times to move the piece from the horizontal to a

vertical position. (R. Vol. II at 468.)

-5-

response, Henrie offered a report from his expert, Dr. Eberhard Bramberg,

opining the painting device was defective because it unnecessarily placed the

workers in the rotational path of the device and the hazard could have been easily

eliminated by placing the rotation points around the part’s center of gravity and/or

by installing a worm gear drive. In Bramberg’s opinion NGC also failed to 2

follow basic hazard analysis in the design and manufacture of the product.

 On April 24, 2006, the district court granted summary judgment in favor of

NGC. It determined, under Utah law, a plaintiff must meet both an objective and

subjective test to demonstrate the product was unreasonably dangerous, the first

element of a strict products liability claim. Relying on Brown v. Sears, Roebuck

& Co., the court determined the fixture was unreasonably dangerous under an

objective test. 328 F.3d 1274 (10th Cir. 2003). However, because Henrie’s

experience and training gave him knowledge of the precise danger that caused his

injury, the court concluded he could not show the product was unreasonably

dangerous to him. The district court then determined Henrie’s negligence and

implied warranty claims must fail for the same reason. It granted summary

judgment in favor of NGC on all claims.

On appeal, Henrie argues the district court incorrectly applied Utah law
-6-

because there was an economically reasonable alternative to prevent the design

defect, and therefore, his knowledge of the defect does not defeat his claim. As

his second issue, Henrie claims to have presented sufficient evidence to create a

material issue of fact as to whether NGC negligently failed to engage in a basic

hazard analysis.

II. Discussion

We review the district court's grant of summary judgment de novo,

construing all facts and reasonable inferences in the light most favorable to

Henrie. See Allen v. Minnstar, Inc, 8 F.3d 1470, 1476 (10th Cir. 1993) (internal

citations omitted). Summary judgment is proper only if the record shows “that

there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In diversity

cases our role is to ascertain and apply the proper state law, here that of Utah,

with the goal of insuring that the result obtained is the one that would have been

reached in the state courts. We review de novo the district court’s rulings with

respect to state law.” Allen, 8 F.3d at 1476 (citations omitted).

At issue here is the interpretation of Utah Code Ann. § 78-15-6, a part of

the Utah Products Liability Act. Normally, “the federal court must defer to the

most recent decisions of the state’s highest court.” Wankier v. Crown Equip.

Corp., 353 F.3d 862, 866 (10th Cir. 2003). However, “where no controlling state

decision exists, the federal court must attempt to predict what the state’s highest
-7-

court would do . . . . bound by ordinary principles of stare decisis.” Id. “Thus,

when a panel of this Court has rendered a decision interpreting state law, that

interpretation is binding on district courts in this circuit, and on subsequent panels

of this Court, unless an intervening decision of the state’s highest court has

resolved the issue.” Id.

A. Strict Products Liability

Henrie contends the district court erroneously applied Utah Code Ann.

§ 78-15-6, a part of the Utah Products Liability Act. This provision states in

relevant part:

 78-15-6. Defect or defective condition making product

unreasonably dangerous--Rebuttable presumption

In any action for damages for personal injury, death, or property

damage allegedly caused by a defect in a product:

(1) No product shall be considered to have a defect or to be in a

defective condition, unless at the time the product was sold by the

manufacturer or other initial seller, there was a defect or defective

condition in the product which made the product unreasonably

dangerous to the user or consumer.

(2) As used in this act, “unreasonably dangerous” means that the

product was dangerous to an extent beyond which would be

contemplated by the ordinary and prudent buyer, consumer or user of

that product in that community considering the product’s

characteristics, propensities, risks, dangers and uses together with

any actual knowledge, training, or experience possessed by that

particular buyer, user or consumer.

Despite the language in subsection (2) of the statute, Henrie argued his

knowledge of the defect does not bar his claim if he can show the defect could be
-8-

economically and practically eliminated. Relying on Brown v. Sears, the district

court disagreed. 

In Brown, the plaintiff alleged a riding lawnmower was unreasonably

dangerous in the absence of an automatic blade shut-down when the mower was

operated in reverse. Brown, 328 F.3d at 1277. The plaintiff sought recovery

under theories of strict liability and negligence. Addressing strict liability, we

noted, “[t]he law governing strict products liability in Utah has two sources: the

common law and a statute, Utah Code Ann. § 78-15-6. Although some reported

opinions refer to both sources, the Utah courts have devoted virtually no attention

to examining the interrelationship between the statute and the common law.” Id.

at 1278. In our review of the statute we stated:

Section 78-15-6(2) states that to be “unreasonably dangerous,” a

product must be more dangerous than “contemplated by the ordinary

and prudent” person, “considering the product’s characteristics,

propensities, risk, dangers and uses together with any actual

knowledge, training, or experience possessed by that particular

buyer, user or consumer.” . . . The words “together with” do not

signal that the items considered together are alternatives. . . . [W]e

must read “together with” as conveying cumulation. Under

subsection (2) a product is “unreasonably dangerous” if its actual

dangers exceed its perceived dangers. The words “together with”

indicate that there are two components to the product’s perceived

dangers: (1) an ordinary person's understanding of the product,

“together with” (2) the understanding possessed by the particular

person.

Id. at 1282. We concluded § 78-15-6(2) imposes “an objective consumer

expectations test” supplemented by “a subjective test based on the individual

knowledge, training, and experience of the particular buyer, user, consumer, or,
-9-

possibly, victim.” Id. Because “individual information regarding the product

would ordinarily increase the particular person’s appreciation of the product’s

danger,” the subjective test “increases the extent of the perceived danger beyond

that contemplated by the ordinary and prudent person.” Id.

Applying these principles to Henrie’s strict liability claim, the district court

determined the painting device failed the objective test (it was unreasonably

dangerous to the ordinary user). However, given Henrie’s extensive training on

and knowledge of the fixtures, the glass fixture was not unreasonably dangerous

under the subjective test. Henrie now argues Brown does not apply, and if it

does, it should be overruled. 

To demonstrate Brown is in conflict with Utah law, Henrie relies primarily

on House v. Armour of America, Inc., 886 P.2d 542, 548 (Utah Ct. App. 1994)

(House I) where the Utah Court of Appeals held “the presence of an ‘open and

obvious’ danger is merely one factor for the trier of fact to consider when

assessing the liability of the defendant in a strict liability case -- it does not

operate as a complete bar to the injured party's recovery.” In House v. Armour of

America, Inc, 929 P.2d 340 (Utah 1996) (House II) the Utah Supreme Court

clarified this holding, concluding the obviousness of an inherent danger in a

product can act as a complete bar to a products liability action if the danger

cannot be economically alleviated. Id. at 344. Henrie also points to Mulherin v.

Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981), where the Utah Supreme Court
 The parties fully briefed both the objective and subjective tests to the 3

district court.

-10-

announced that the comparative fault principles enunciated in Utah Code Ann. §

78-27-38 applied with equal force in strict product liability actions. He maintains

the application of comparative fault combined with his evidence of a safer design

indicates the Utah courts would not bar his claim even though he knew of the

fixture’s danger. 

Contrary to Henrie’s contentions, however, none of these decisions negate

the need for a plaintiff to meet the statutory definition of an “unreasonably

dangerous” product to succeed on a strict liability claim. While we agree with the

ultimate conclusion of the district court that Henrie failed to show a necessary

element of his claim, the district court did not need to reach the subjective test.3

See Gomes v. Wood, 451 F.3d 1122, 1133-34 (10th Cir.) (“This Court may affirm

the district court on any ground adequately supported by the record so long as the

parties have had a fair opportunity to address that ground.”), cert. denied, 127

S.Ct. 676 (2006). Henrie failed to demonstrate a defective product under the

objective consumer test, the first part of Utah’s two-part test. 

The district court determined the fixture was unreasonably dangerous under

the objective consumer test solely on Henrie’s evidence of a safer and economical

alternative design. Although this evidence is an essential part of his claim, by

itself it is not enough. For example, in Brown, the plaintiff’s production of an
 Utah adopted Restatement (Second) of Torts § 402A in Ernest W. Hahn, 4

Inc., v. Armco Steel Co., 601 P.2d 152, 156-58 (Utah 1979).

-11-

expert report proposing a safer design could not save his strict liability claim in

the absence of a product defect. See Brown, 328 F.3d at 1279, 1282-83. In

addition to a safer alternative design, Henrie must show “the product was

dangerous to an extent beyond which would be contemplated by the ordinary and

prudent buyer, consumer or user of that product in that community.” Utah Code

Ann. § 78-15-6(2). This sentence is more fully explained in comment g, 

Restatement (Second) Torts § 402A, which considers a defective condition to be 4

present “only where the product is, at the time it leaves the seller's hands, in a

condition not contemplated by the ultimate consumer, which will be unreasonably

dangerous to him.” Further, comment I states, “Unreasonably dangerous” means

“dangerous to an extent beyond that which would be contemplated by the ordinary

consumer who purchases it, with the ordinary knowledge common to the

community as to its characteristics.” 

In House II, the Utah Supreme Court recognized the “sophisticated user”

may be the “community” for which a product is designed. There, the defendant

argued a police officer could not bring a products liability claim against the

manufacturer of body armor because the police officer was part of a highly

trained community. The court stated:

As the court of appeals noted, defendants need not show that Lt.

House actually knew about the danger but that the “community” to
-12-

which Lt. House belongs “generally knows” about the danger . . . . 

In other words, to sustain a conclusion that no duty was owed to the

user because of his professional status, the court must “find the

record evidence to be undisputed that the user actually knew of the

danger or that, based on the user's special expertise and the

circumstances of the transaction, the supplier reasonably could have

believed that he knew of the danger.”

House, 929 P.2d at 345 (citations omitted); see also Gaines-Tabb v. ICI

Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir. 1998) (applying Oklahoma

law) (The consumer was a farmer and there was no indication the ammonium

nitrate was less safe than expected by farmers.); Lamer v. McKee Indus., Inc.,

721 P.2d 611 (Alaska 1986) (The ordinary consumer was the professional garage

door repairman and a number of experienced repairmen testified product failure

was a surprise.); Rojas v. Lindsay Mfg. Co., 701 P.2d 210 (Idaho 1985) (The

ordinary user with ordinary knowledge common to the community would be, for

purposes of this case, a farmer or a qualified maintenance person.). Here, Henrie

and the other painters were similarly members of a small, professional group of

painters well-acquainted with the equipment at issue here.

The uncontradicted evidence reveals NGC manufactured and designed

eleven fixtures specifically for use by the professional painters at Hill Field. The

record reveals no other use or contemplated use for the equipment. All the

painters regularly used the equipment and Henrie does not argue the other

painters working at Hill Field were not fully aware, as he was, of the danger if the

pins were pulled without sufficient manpower to control the aircraft part’s
 To the extent our decision in Beacham v. Lee-Norse, 714 F.2d 1010 (10th 5

Cir. 1983), applies to Henrie’s argument, the instant facts distinguish this case. 

In Beacham, we considered whether subjective evidence, including the plaintiff’s

training and experience, was relevant to show the product was not unreasonably

dangerous. Id. at 1015-16. Noting Utah’s statutory definition of unreasonably

dangerous, we stated:

The statutory definition only lists factors to be considered in

determining whether a product is unreasonably dangerous. Where a

user encounters the defect involuntarily because a safety device was

not provided, evidence of his actual knowledge, training, or

experience is of only limited value: We have difficulty seeing how

the knowledge of the dangerousness can alleviate the dangerous

condition inasmuch as the performance by plaintiff of his assigned

tasks subjected him to injury regardless of the care exercised.

Id. (emphasis added) (internal quotation and citation omitted). Here, prior

requests leading to modification of the fixtures demonstrate Henrie did not have

to work with his equipment in an “as is” condition. In addition, Henrie

contributed to the creation of the procedures for working with the fixtures. Thus,

unlike Beacham, Henrie cannot show his work with the fixture in its condition at

the time of the accident was involuntary.

-13-

descent. Indeed, there had been no other incidents where a part “spun out of

control” nor were any injuries caused by the fixtures when used in the normal

manner, despite their daily use, until the date of Henrie’s injury. Thus, there was

no defect beyond what this unique community of users, the B2 Stealth Bomber

painters, contemplated. Because Henrie did not establish the fixture was an

unreasonably dangerous product under the objective test, there was no need for

the district court to apply the supplemental inquiry.5

As his final argument, Henrie claims Utah’s policy supporting its strict

liability statutes requires us to ignore the statutory definition of unreasonably
 Henrie argues, “under the district court’s decision, . . . [k]nives can be 6

stuck in dashboards[,] [s]eatbelts removed from cars[,] [e]lectrical wiring can be

left exposed [and] [t]oys may be made with razor sharp edges.” (Appellant’s Br.

at 24.)

-14-

dangerous in the presence of an economical alternative design. See Berry v.

Beech Aircraft, 717 P.2d 670, 673 (Utah 1985) (“[T]he effect of strict liability has

no doubt been to encourage safer manufacturing practices and product designs,

thereby reducing the incidence of death and injury.”). According to Henrie, if the

statutory definition bars his claim, manufacturers in Utah would be encouraged to

offer obviously dangerous products rather than safer products. In addition, a

manufacturer could avoid liability no matter how poorly the product is designed

so long as the danger is obvious. To prove his point he posits several extreme

examples. While we question the marketability of some of his hypothetical 6

products, his argument should be directed elsewhere. The Utah legislature chose

to define the term “unreasonably dangerous” for the purpose of products liability

in Utah. As the Utah Supreme Court has observed, it is the Utah legislature who

must “change and modify the law that governs relations between individuals as

society evolves and conditions require.” Berry, 717 P.2d at 676. It is not our role

to rewrite the Utah statute. The glass fixture was not “dangerous to an extent

beyond which would be contemplated by the ordinary and prudent buyer,

consumer or user in that community.” Utah Code Ann. § 78-15-6(2). 

B. Negligence Claim 
 A ‘contact-trip’ model “allows its operator to discharge nails regardless of 7

whether the operator first pulls the gun's trigger or depresses the nailer's nose

contact element, as long as both are used. The ‘sequential-trip’ model, on the

other hand, also manufactured and sold by Stanley, requires that the nose contact

element be depressed first and the trigger pulled second for the nail to be

discharged. The ‘sequential-trip’ mechanism makes it more difficult for nails to

be discharged unintentionally and is generally considered to be safer.” Id. at 318-

19.

-15-

The district court parsed Henrie’s design negligence claim into two

separate allegations: NGC was negligent in failing to 1) “install a safety

mechanism” and 2) conduct a hazard analysis when designing the fixture. (Dist.

Court Order at 15.) As to the first allegation, the district court concluded NGC

did not owe a duty to refrain from marketing a non-defective product when a safer

model is available, relying on the Utah Supreme Court’s holding is Slisze v.

Stanley-Bostitch, 979 P.2d 317, 321 (Utah 1999). The court determined Henrie’s

second allegation must fail because his only evidence of NGC’s failure to conduct

a hazard analysis was his expert’s conclusion to that effect based solely on

observation of the fixture. Henrie argues the district court was wrong on both

counts.

In Slisze, the plaintiff was injured when a co-worker, using a “contact trip

nailer” tried to “toe-nail” two boards and the nail ricocheted into the plaintiff’s 7

head. He brought a claim based on strict liability as well as negligence. During

the trial, the court admitted OSHA standards to show compliance with

“government standards,” creating a rebuttable presumption of non-defectiveness
-16-

under Utah Code Ann. § 78-15-6(3). While the Utah Supreme Court recognized a

plaintiff may jointly bring a strict liability and negligence claim, it found Slisze

had failed to establish any duty, a necessary predicate in a negligence claim. 

Slisze, 979 P.2d at 319-20. The court concluded “[T]here is no duty to make a

safe [product] safer” and no duty to warn because the alleged danger of the nailer

was open and obvious.” Id. at 320.

Henrie argues Slisze is inapplicable because the focus of his claim is on

NGC’s conduct and knowledge, not the characteristics of the product. He

maintains Bramberg’s evidence established a standard of care requiring a

manufacturer to conduct a hazard analysis to enable the manufacturer to

“eliminate the danger; guard against the danger; and warn against the danger.” 

(Appellant’s Br. at 32.) NGC’s engineer acknowledged NGC had not conducted

any hazard analysis in designing and building the device. According to

Bramberg, had it done so, NGC would have identified its painting device as

inherently unstable and would have been able to eliminate that danger both easily

and economically. Henrie reasons that because Utah’s strict liability statutes do

not affect common law negligence claims, the “open and obvious” character of

the defect should not bar his negligence claim. It should merely be a factor for

consideration “when determining the comparative fault of both parties.” House,

886 P.2d at 548; see also Misener v. Gen. Motors, 924 F. Supp. 130, 131-32 (D.

Utah 1996) (citing Dansie v. Anderson Lumber Co., 878 P.2d 1155, 1159 (Utah
 The Supreme Court reached this conclusion after weighing the factors set 8

out in AMS. Slisze, 979 P.2d at 320. In AMS, the Utah Supreme Court set out the

following factors to consider when imposing a duty sufficient to sustain a claim

of negligence: 

Whether the law imposes a duty does not depend upon foreseeability

-17-

Ct. App. 1994) (claims for negligence are not governed by the Products Liability

Act).

“It is clear that in negligence cases, a designer has a ‘duty to design its

product so as to eliminate any unreasonable risk of foreseeable injury.’” Hunt v.

EST Eng’g, Inc., 808 P.2d 1137, 1139 (Utah App. 1991) (emphasis added). 

Restatement (Second) of Torts § 398 (1965), cited in Hunt, provides:

A manufacturer of a chattel made under a plan or design which

makes it dangerous for the uses for which it is manufactured is

subject to liability to others whom he should expect to use the chattel

or to be endangered by its probable use for physical harm caused by

his failure to exercise reasonable care in the adoption of a safe plan

or design.

Id. Henrie correctly notes NGC admitted it did not conduct a hazard analysis, an

admission the district court failed to recognize. But that does not change the

outcome. 

The Utah courts have spoken to the duty of a manufacturer in a negligence

claim. In Slisze, the court applied the Utah test for determining whether a duty

exists for the purposes of negligence claim. Slisze, 979 P.2d at 320 (applying the

test in AMS Salt Indus., Inc. v. Magnesium Corp. of Am., 942 P.2d 315 (Utah

1997)). The court was “not persuaded that it is necessary or wise to recognize a 8
alone. The likelihood of injury, the magnitude of the burden of

guarding against it and the consequences of placing that burden upon

defendant, must also be taken into account. A duty may also be

found on the basis of reasonable mutual reliance, voluntary conduct

which increases the risk of harm, and general policy considerations.

AMS, 942 P.2d at 321 (internal citations and quotations omitted). 

 We recognize the district court applied the second, individualized prong 9

to determine the product was not unreasonably dangerous and Henrie’s argument

on appeal addresses the issues associated with the application of the subjective

-18-

duty requiring manufacturers to discontinue manufacturing less safe but

non-defective products” because there had been “no showing that the likelihood

of injury would be reduced enough to outweigh the costs and burdens of

discontinuation.” Id. While Henrie recognizes Utah has determined “there is no

duty [in a negligence claim] to make a safe product safer,” his argument relies on

the premise that the definition found in Utah’s strict products liability statute

cannot be transferred to a negligence action for the purpose of determining

whether a product is safe. However, that was precisely the method employed in

Mather v. Caterpillar Tractor Corporation, 533 P.2d 717, 719 (Ariz. Ct. App.

1975), cited with approval in Slisze. In Mather, the Arizona Court of Appeals

stated when “the underlying theories as to both negligence and strict liability were

the same, to-wit, defective design . . . In both instances appellant had to prove

that the [product] was in a defective condition and unreasonably dangerous.” Id. 

Utah has defined defective condition and unreasonably dangerous for general

purposes in its objective test for strict liability. The overlap between an

9
prong to a negligence claim. However, we need not reach the second subjective

analysis in this case and do not express an opinion whether a different result

would obtain under the subjective test. 

-19-

unreasonably safe design and a negligent design has been recognized by other

courts as well. See Golonka v. Gen. Motors Corp., 65 P.3d 956, 964 (Ariz. Ct.

App. 2003) (“By finding GM not at fault for strict liability design defect, the jury

necessarily concluded that it would have been reasonable for a manufacturer to

have placed GM's transmission into the stream of commerce.”). As a result,

because there is no duty to make a safe product safer and because the fixture was

not defective under the consumer expectation test in § 78-15-6, the district court

correctly granted summary judgment in favor of NGC.

AFFIRMED.