This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 30

IN THE

SUPREME COURT OF THE STATE OF UTAH

WADE HERLAND, Personal Representative 

of the estate of Neely Creager,

Appellant,

v.

TRAVIS IZATT,

Appellee.

No. 20120586

Filed January 30, 2015

Second District, Farmington

The Honorable Glen R. Dawson

No. 080700229

Attorneys:

Jack C. Helgesen, Kurt M. Helgesen, Clearfield, for appellant 

Paul M. Belnap, David E. Brown, Salt Lake City, for appellee 

CHIEF JUSTICE DURRANT authored the opinion for the Court, in which 

ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM, JUSTICE PARRISH,

and JUSTICE LEE joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 The right to bear arms is enshrined in both the United States 

and Utah Constitutions. But with that right comes responsibilities—a 

principle our Legislature has recognized by placing certain 

restrictions on gun ownership. These include restrictions on 

supplying firearms to minors and individuals who are incompetent 
HERLAND v. IZATT

Opinion of the Court

2

or impaired.

1 In this case we are asked to determine whether gun 

owners have a duty in tort to exercise reasonable care in supplying

their guns to intoxicated individuals. We conclude a gun owner does 

have such a duty. Supplying an intoxicated individual with a gun, 

just as supplying a car to such a person, creates a foreseeable risk of 

harm. But the fact that gun owners have such a duty does not mean 

that they will necessarily be liable for damages when those 

individuals injure themselves, because in most cases the intoxicated 

individual’s negligence will likely exceed that of the gun owner as a 

matter of comparative negligence. 

¶2 The central facts of this case are as follows: after a night of 

heavy drinking at a party, Neely Creager picked up a loaded 

handgun and shot herself in the head—a shooting that both parties 

agree for purposes of this appeal was accidental. Ms. Creager’s estate 

filed this negligence action against Travis Izatt, who was the host of 

the party and the owner of the handgun. Her estate premised the 

suit on multiple theories of liability, including general negligence, 

negligent entrustment, and premises liability. The district court 

granted summary judgment for Mr. Izatt, concluding that he owed 

no duty to Ms. Creager. We reverse and conclude that Mr. Izatt may

owe a duty to Ms. Creager, who at the time she obtained his gun was 

severely impaired and posed a risk to herself and to the rest of those 

attending the party. But this conclusion depends upon how the fact 

finder below resolves a key factual dispute about whether 

Ms. Creager gained access to the gun due to an affirmative act or an 

omission. We emphasize that our holding today concerns only the 

duty owed by Mr. Izatt to Ms. Creager; we do not decide questions of 

breach or proximate cause, such as whether Mr. Izatt did, in fact, 

exercise reasonable care. Nor do we decide the question of whether 

any fault on the part of Mr. Izatt exceeded the fault of Ms. Creager. 

For the resolution of these questions we remand for further 

proceedings consistent with this opinion.

1 For instance, the Legislature has made it illegal to encourage an 

intoxicated individual to carry a firearm. See UTAH CODE § 76-10-528 

(prohibiting the carrying of ―a dangerous weapon while under the 

influence of alcohol or a controlled substance‖); id. § 76-2-202 

(making it a crime to ―solicit[], request[], command[], encourage[], or 

intentionally aid[] another person . . . in conduct which constitutes 

an offense‖).
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Opinion of the Court

3

Background

¶3 On May 5, 2006, Mr. Izatt invited a few friends over to his 

home for a night of drinking and partying. Kimberly West, who was 

one of his friends, invited Ms. Creager, a thirty-year-old woman, to 

the party. Though Mr. Izatt may have met Ms. Creager on a few 

previous occasions, he had never spoken with her prior to the party. 

And unbeknownst to him, Ms. Creager was suffering from severe 

depression and was on a variety of medications. The party lasted for 

several hours, and the guests, including Ms. Creager, became 

intoxicated. In fact, Ms. Creager attained a blood alcohol content of 

0.25.

¶4 During the course of the evening, Ms. Creager gained 

possession of Mr. Izatt’s handgun.2 Precisely how she came into 

possession of the firearm is unclear, as Mr. Izatt gave different 

accounts to a 911 dispatcher, a police officer, and in his deposition. 

After calling 911, he initially told the dispatcher that Ms. Creager

―took a gun out of [his] cabinet, put it up to [her] temple and pulled 

the trigger.‖ But later during the same call, he stated that she ―took 

the handgun off of [his] counter‖ and suggested to the group that 

they play Russian roulette. Mr. Izatt said he cautioned her that the 

gun was not a revolver, so it would surely fire if the trigger were 

pulled. He also noted to the dispatcher that ―[his] handgun is kinda 

. . . always out.‖

¶5 When the police arrived on the scene, one of the officers 

questioned Mr. Izatt about the events. Mr. Izatt told the officer that 

while playing pool with Ms. Creager, he mentioned to her that he 

won a shotgun in a pool tournament. He then asked her if she 

wanted to see it. She answered yes, so the two went to his gun safe 

to view the shotgun. Once there, Mr. Izatt opened the safe and 

showed her his guns. There are conflicting versions of what 

happened next. Under one account, Ms. Creager picked up one of 

the handguns. Mr. Izatt warned her that the gun was loaded. 

Mr. Izatt then closed the gun safe, apparently without noticing that 

Ms. Creager did not put the handgun back in the safe. Mr. Izatt 

claimed he then left the area, heard a muffled gun shot, and turned 

around to see Ms. Creager lying on the floor.

2 Mr. Izatt owned the firearm legally and has possessed a Utah 

concealed weapons permit since 1998. He received gun training in 

the Army, through the California Police Academy, and through a 

Utah gun safety training course.
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Opinion of the Court

4

¶6 Mr. Izatt told a different story in his deposition. He stated 

that while he and Ms. Creager were viewing his guns in the safe, she 

asked if she could see his shotgun. He gave her the shotgun, and 

after holding it briefly, she gave it back to him. As he went to place 

the shotgun back in the safe, Ms. Creager grabbed the handgun from 

the safe. Mr. Izatt quickly took the handgun back from her, however, 

and he placed it back in the safe. Although he could not remember 

whether it was he or Ms. Creager who actually closed the safe, 

Mr. Izatt claims he ―heard the tumblers lock when [he] turned the 

lock.‖ According to him, Ms. Creager then regained access to the 

handgun without Mr. Izatt knowing, and then followed him out of 

the room. A few moments later, Mr. Izatt heard a gunshot.

¶7 In any case, Ms. Creager shot herself in the head, in what the 

medical examiner described as a contact-range wound that left ―a 

visible muzzle imprint abrasion.‖ The shot killed her. Ms. Creager’s 

estate has argued that she shot herself accidentally, and for purposes 

of this appeal, Mr. Izatt does not dispute this point. 

¶8 The police did not bring criminal charges against Mr. Izatt, 

but Ms. Creager’s estate filed a wrongful death action against him in 

April 2008, alleging that he was negligent in ―allowing her to have 

access to his loaded handgun when she was severely intoxicated.‖ 

Mr. Izatt filed a Motion for Summary Judgment on November 30, 

2011, arguing that he did not owe any legal duty to Ms. Creager. The 

district court granted summary judgment in favor of Mr. Izatt, 

holding that he did not owe Ms. Creager any legal duty.

Ms. Creager’s estate timely appealed. We have jurisdiction pursuant 

to Utah Code section 78A-3-102(3)(j).

Standard of Review

¶9 ―The determination of whether a legal duty exists . . . is a 

purely legal question‖3 that requires ―an examination of the legal 

relationships between the parties.‖4 And we review ―a [lower] 

court’s legal conclusions and ultimate grant or denial of summary 

judgment for correctness and view[] the facts and all reasonable 

inferences drawn therefrom in the light most favorable to the 

nonmoving party.‖5 Summary judgment is only appropriate if there 

3 Yazd v. Woodside Homes Corp., 2006 UT 47, ¶ 14, 143 P.3d 283. 

4 Reighard v. Yates, 2012 UT 45, ¶ 9, 285 P.3d 1168 (internal 

quotation marks omitted). 

5 Jones & Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 9, 284 P.3d 630 

(first alteration in original) (internal quotation marks omitted). 
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Opinion of the Court

5

are no genuine issues of material fact and the moving party is 

entitled to judgment as a matter of law.6

Analysis

¶10 As we explain further below, the district court erred in 

concluding that Mr. Izatt did not owe Ms. Creager a duty of care

under any of the factual scenarios advanced by the parties. Recently, 

in B.R. ex rel. Jeffs v. West, we identified five key factors that inform 

our analysis of whether a duty of care exists.7 Four of these factors 

support imposition of a duty on Mr. Izatt in this case, and there was 

a dispute of material fact regarding the fifth. In framing the 

applicable duty, we conclude that gun owners have a duty to 

exercise reasonable care in supplying their guns to others—such as 

children and incompetent or impaired individuals—whom they 

know, or should know, are likely to use the gun in a manner that 

creates a foreseeable risk of injury to themselves or third parties.

¶11 We stress that our analysis is confined to the establishment 

of a duty of care in this general category of cases. We make no ruling 

today concerning any potential breach of duty or causation, as these 

are fact-sensitive issues to be resolved on remand. In fact, those who 

are inebriated and seek to sue another for injuries brought on by 

their own actions may find it difficult to ultimately prevail in a 

negligence action, for to do so they must establish under Utah’s 

comparative negligence framework that the negligence of the gun 

owner was greater than their own. 

I. Duty of Care

¶12 We begin by reiterating the baseline principle we stated in 

Beach v. University of Utah—that ―a party does not [ordinarily] have 

an affirmative duty to care for another.‖8 We adopted this principle 

from section 314 of the Restatement (Second) of Torts, which states: 

―The fact that the actor realizes or should realize that action on his 

part is necessary for another’s aid or protection does not of itself 

impose upon him a duty to take such action.‖ And comment c to 

section 314 adds that this rule ―is applicable irrespective of the 

gravity of the danger to which the other is subjected and the 

insignificance of the trouble, effort, or expense of giving him aid or 

protection.‖

6 UTAH R. CIV. P. 56(c). 

7 2012 UT 11, ¶¶ 5–9, 275 P.3d 228. 

8 726 P.2d 413, 415 (Utah 1986). 
HERLAND v. IZATT

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6

¶13 But action may be necessary where there is an affirmative 

duty to aid or protect the endangered individual.9 In B.R. ex rel. Jeffs 

v. West, we identified five relevant factors that guide our assessment 

of whether a duty exists.10 These include

(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.11

In listing these factors, we noted that ―[n]ot every factor is created 

equal . . . . [S]ome factors are featured heavily in certain types of 

cases, while other factors play a less important, or different, role.‖12

For instance, in Jeffs, we were asked to address the question of 

whether healthcare providers have a duty to nonpatients to exercise 

reasonable care when prescribing medication to patients.13 In that 

context, the second factor—the legal relationship of the parties—

played no role because there is no ―special relationship or physicianpatient relationship‖ between a healthcare provider and a 

nonpatient.14 Despite this fact, we concluded that healthcare 

providers did owe such a duty because each of the other four factors 

weighed in favor of holding so.15 We engage in this same analytical 

exercise in this case and conclude that four factors support imposing 

a duty, and the remaining factor also supports imposing a duty

depending on how the fact finder resolves a key factual dispute on 

remand. We discuss each factor in turn.

A. Foreseeability

¶14 Because the likelihood of injury is high when a gun owner 

supplies a gun to an incompetent or impaired individual, the 

foreseeability factor weighs in favor of imposing a duty in this case. 

9 See RESTATEMENT (SECOND) OF TORTS § 314A (1965). 

10 2012 UT 11, ¶ 5, 275 P.3d 228.

11 Id. (internal quotation marks omitted). 

12 Id. 

13 Id. ¶ 6.

14 Id. ¶ 19.

15 Id. ¶¶ 7, 20.
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Opinion of the Court

7

In framing the appropriate inquiry for this factor, we noted in Jeffs

that

foreseeability in [our] duty analysis is evaluated at a 

broad, categorical level. . . . [It] does not question the 

specifics of the alleged tortious conduct such as the 

specific mechanism of the harm. It instead relates to the 

general relationship between the alleged tortfeasor and 

the victim and the general foreseeability of harm.16

By instead analyzing foreseeability in a ―case-specific and factintensive‖ manner, the parties in Jeffs had ―conflate[d] the kind of 

foreseeability relevant to the duty analysis with the foreseeability 

inquiries significant to matters of breach and proximate cause.‖17 We 

thus clarified that ―[t]he appropriate foreseeability question for duty 

analysis is whether a category of cases includes individual cases in 

which the likelihood of some type of harm is sufficiently high that a 

reasonable person could anticipate a general risk of injury to 

others.‖18

¶15 In this case, foreseeability weighs in favor of imposing a 

duty when properly framed. The relevant category of cases here 

consists of gun owners who are negligent in supplying their guns to 

others who then injure themselves or third parties.19 And the 

16 Id. ¶ 25 (internal quotation marks omitted).

17 Id. ¶¶ 24, 28; see also Andrew J. McClurg, Armed and Dangerous: 

Tort Liability for the Negligent Storage of Firearms, 32 CONN. L. REV. 

1189, 1237–41 (2000) (describing multiple cases in which, in the 

author’s view, courts approached the foreseeability analysis much 

too narrowly and thus precluded recovery in cases involving 

firearms).

18 Jeffs, 2012 UT 11, ¶ 27. 

19 This category of cases is described in more general terms in 

section 390 of the Restatement (Second) of Torts, which states,

One who supplies directly or through a third person a 

chattel for the use of another whom the supplier knows 

or has reason to know to be likely because of his youth, 

inexperience, or otherwise, to use it in a manner 

involving unreasonable risk of physical harm to 

himself and others whom the supplier should expect to 

share in or be endangered by its use, is subject to 

liability for physical harm resulting to them.

Continued
HERLAND v. IZATT

Opinion of the Court

8

foreseeability question is ―whether there are circumstances within 

[this] category in which [such individuals] could foresee injury.‖20 

We believe there are such circumstances, as myriad cases we discuss 

below have already established. 

¶16 As owners of dangerous weapons (particularly handgun 

owners) are well aware, supplying others with such weapons may 

create a foreseeable risk of harm. For instance, where a firearm is 

given to an intoxicated individual, the risk of harm to others is 

clearly foreseeable.21

¶17 ―Because the class of cases [therefore] includes some in 

which a risk of injury to third parties is reasonably foreseeable . . . , 

the foreseeability factor weighs in favor of imposing a duty‖22 on 

individuals who supply incompetent or impaired individuals with a 

gun. It is not necessary, as Mr. Izatt contends, that he must have 

been able to foresee the specific sequence of harm in this case. 

Whether Ms. Creager’s possession and use of the gun was a 

foreseeable consequence of Mr. Izatt’s actions, and whether 

Ms. Creager’s use of medications contributed to the injury, are 

 

And particularly instructive to this case is comment c to section 

390, which adds that 

[i]f . . . the person to whom the chattel is supplied is 

one of a class which is legally recognized as so 

incompetent as to prevent them from being responsible 

for their actions, the supplier may be liable for harm 

suffered by him, as when a loaded gun is entrusted to a 

child of tender years. So too, if the supplier knows that 

the condition of the person to whom the chattel is 

supplied is such as to make him incapable of exercising 

the care which it is reasonable to expect of a normal 

sober adult, the supplier may be liable for harm 

sustained by the incompetent although such person 

deals with it in a way which may render him liable to 

third persons who are also injured.

20 Jeffs, 2012 UT 11, ¶ 27.

21 See Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1207 (Fla. 1997) 

(―Not surprisingly, this Court also has recognized that the high 

degree of risk inherent in the use of a dangerous instrument 

escalates when such an instrument is used by a person who is 

intoxicated and unable to exercise caution.‖). 

22 Jeffs, 2012 UT 11, ¶ 28. 
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Opinion of the Court

9

questions of proximate cause. Likewise, in our assessment of duty 

we do not decide whether Mr. Izatt did in fact exercise reasonable 

care or whether he should have foreseen the danger posed by his 

conduct. These are questions that go to Mr. Izatt’s breach of duty. 

We decide duty as a matter of law, and as to foreseeability, failing to 

exercise reasonable care in supplying a gun to incompetent or 

impaired individuals creates a foreseeable risk of harm. Accordingly, 

this factor weighs in favor of establishing a duty.

¶18 Recognizing this category of cases as giving rise to a duty 

does not, however, provide blanket protection to every individual 

who becomes voluntarily intoxicated, as we have enunciated in 

several previous cases.

23 But there are circumstances in which the 

alleged tortfeasor assumes a duty of care to protect others, including 

from the actions of someone who is voluntarily intoxicated. The 

Restatement (Second) of Torts provides an example: 

A, who makes a business of letting out boats for hire, 

rents his boat to B and C, who are obviously so 

intoxicated as to make it likely that they will 

mismanage the boat so as to capsize it or to collide with 

other boats. B and C by their drunken mismanagement 

collide with the boat of D, upsetting both boats. B, C, 

and D are drowned. A is subject to liability to the 

estates of B, C, and D under the death statute, although 

the estates of B and C may also be liable for the death 

of D.24

Although this is an example of liability imposed on a business 

supplier, the principle applies equally ―to anyone who supplies a 

chattel for the use of another. It applies to sellers, lessors, donors or 

lenders, and to all kinds of bailors, irrespective of whether the 

bailment is gratuitous or for a consideration.‖25 In fact, courts have 

23 Horton v. Royal Order of the Sun, 821 P.2d 1167, 1169 (Utah 1991) 

(holding that under Utah’s Dramshop Act a furnisher of alcohol is 

liable only for injuries of third parties and not the intoxicated 

individual); Beach v. Univ. of Utah, 726 P.2d 413, 415 (Utah 1986) 

(―[O]ne has no duty to look after the safety of another who has 

become voluntarily intoxicated and thus limited his ability to protect 

himself.‖ (internal quotation marks omitted)).

24 RESTATEMENT (SECOND) OF TORTS § 390, cmt c, illus. 7 (1965). 

25 Id. cmt. a. 
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Opinion of the Court

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imposed liability on individuals for allowing the use of guns by 

those who are incompetent or impaired by way of intoxication26 or 

their age.27

¶19 And although we have not yet recognized such a duty in 

Utah, our prior caselaw has affirmed the foreseeable nature of 

similar conduct. In Wilcox v. Wunderlich, we discussed the doctrine of 

negligent entrustment in a case involving minors who killed a young 

child while operating a vehicle.28 And although we held in that case 

that the parent was not liable because the car was owned by the 

minor children, and thus the car could not be entrusted to them, we 

affirmed the viability of a negligence action where

an owner having control of the car [e]ntrusts it to a 

minor under the prescribed age, who by ordinance or 

statute is forbidden to drive a car, or to one who is 

known to be inexperienced or infirm, or otherwise 

under disability, and for such reason either not legally 

qualified or able to properly drive a car, and the parent 

or owner could or ought to anticipate that so 

[e]ntrusting the car to be driven on a public street likely 

would result in injury to others.29

In his dissent, Justice Cherry also analogized the entrustment of 

vehicles to the entrustment of firearms and stated that ―[l]oaded 

firearms are dangerous, if not properly handled. And one is careless 

who [e]ntrusts a loaded gun to a 12 year old child; he should first 

26 See, e.g., Howard Bros. of Phenix City, Inc. v. Penley, 492 So. 2d 

965, 966, 968–69 (Miss. 1986) (imposing a duty on a retailer who 

provided a pistol and ammunition to a nineteen-year-old man who 

was under the influence of alcohol and drugs); Bernethy v. Walt 

Failor’s, Inc., 653 P.2d 280, 283 (Wash. 1982) (―The basis for our 

imposing this general duty is that one should not furnish a 

dangerous instrumentality such as a gun to an incompetent. Most of 

the case law relates to gun sales to children or entrusting an 

automobile to an intoxicated person. The principle of section 390 [of 

the Restatement (Second) of Torts], however, applies equally well to 

one who is incompetent due to intoxication.‖ (citation omitted)). 

27 E.g., Masone v. Gianotti, 54 A.D.2d 269, 274–75 (N.Y. App. Div. 

1976) (imposing liability on parents for providing their twelve-yearold child with a BB gun and ammunition). 

28 272 P. 207, 216 (Utah 1928). 

29 Id.
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Opinion of the Court

11

draw the charge. Therefore, if it goes off in the hands of such child, 

inflicting harm on another, he must answer for the wrong.‖30

¶20 In sum, the foreseeability factor weighs in favor of 

establishing a duty, since supplying an incompetent or impaired 

individual with a gun creates a foreseeable risk of harm.

B. Public Policy

¶21 Ms. Creager’s estate argues that Utah public policy favors 

imposing a duty on individuals who supply incompetent or 

impaired individuals with a gun. We agree.

¶22 To begin, Mr. Izatt’s central contention is that the statutory 

scheme favors unrestricted gun possession in one’s own home. In 

support of this argument, he cites two Utah statutes. First, he cites 

Utah Code section 76-10-500, which exclusively reserves to the State 

the right to regulate firearms—it prevents ―local authorities or state 

entities‖31 from restricting others from ―owning, possessing, 

purchasing, selling, transferring, transporting, or keeping any 

firearm at his place of residence, property, business, or in any vehicle 

lawfully in his possession or lawfully under his control.‖32 Second, 

he cites Utah Code section 76-10-511, which makes the possession of 

a loaded firearm permissible ―(1) at the person's place of residence, 

including any temporary residence or camp; or (2) on the person's 

real property.‖ While it is certainly true that the Legislature has 

reserved the right to regulate firearms and has made it legal to 

possess a loaded firearm in one’s own home, it has also imposed 

certain restrictions on firearm use and ownership. 

¶23 We conclude that the Legislature has expressed two 

important public policy points through the passage of various 

statutes: first, that firearms are not to be provided to individuals who 

are likely to harm others, including minors and persons that are 

violent, mentally ill, or impaired; second, that firearms cannot be 

carried under every circumstance, even if the gun owner has a 

concealed weapons permit. As discussed below, the Utah Legislature 

30 Id. at 221 (Cherry, J., dissenting) (internal quotation marks 

omitted). 

31 UTAH CODE § 76-10-500(2). 

32 Id. § 76-10-500(1)(a). 
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Opinion of the Court

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has expressed these policies by restricting (1) who may possess 

firearms, and (2) how firearms may be carried.33

¶24 First, the code restricts who may possess firearms. For 

instance, it is a crime to ―sell, transfer, or otherwise dispose of any 

firearm‖ to restricted persons, such as felons, mentally ill persons, 

and those using illegal substances.34 It is also a crime for parents or 

guardians to allow a minor to handle a firearm unless there is 

parental consent and supervision.35 And even if there is parental 

consent and supervision, it is still a crime to provide a minor with a 

firearm if the minor is violent.36 Moreover, minors under age 

eighteen are categorically prohibited from possessing handguns.37

Finally, the code treats the possession of firearms by minors so 

restrictively that parents have an affirmative duty to remove the 

firearms from their minors’ possession when they are aware that the 

firearms are possessed unlawfully.38

¶25 Second, the code restricts how firearms may be carried. For 

instance, it is a crime to carry a firearm while intoxicated—whether 

the owner of the weapon is inside or outside of the home.39 This 

section also provides that ―[i]t is not a defense to prosecution under 

this section that the person . . . has a valid permit to carry a 

concealed firearm.‖40 Mr. Izatt argues that with respect to firearms, 

this section applies only outside the home, since possession of a 

firearm inside of a home is expressly permitted by another code 

33 We note that some of these restrictions apply not just to guns, 

but to dangerous weapons generally. The Utah Code defines 

―[d]angerous weapon‖ as ―(i) a firearm; or (ii) an object that in the 

manner of its use or intended use is capable of causing death or 

serious bodily injury.‖ Id. § 76-10-501(6)(a). But since this case 

concerns only the duty of care owed by gun owners, we limit our 

discussion to firearms.

34 Id. § 76-10-503(8)(a). 

35 Id. §§ 76-10-509(1)–(2), -509.4, -509.5. 

36 Id. § 76-10-509.6. 

37 Id. § 76-10-509.4(1).

38 Id. § 76-10-509.7.

39 Id. § 76-10-528(1). 

40 Id. § 76-10-528(2)(b).
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Opinion of the Court

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section.41 We disagree because his argument strains the reading of 

these statutes. Specifically, the section of the code permitting 

possession of firearms ―at [a] person’s place of residence‖ restricts 

this right ―as otherwise prescribed in this part.‖42 And as already 

noted, one of the ―part[s]‖ imposing such a restriction is where the 

person is intoxicated.43 So although a person may possess a firearm 

―at the person’s place of residence,‖ that right is limited in that the 

person may not ―carr[y] [the firearm] while under the influence of 

alcohol or a controlled substance.‖44

¶26 By extension, the Utah Code also makes it illegal to 

encourage other intoxicated individuals to carry firearms. Section 76-

2-202 states that ―[e]very person, acting with the mental state 

required for the commission of an offense who directly commits the 

offense, who solicits, requests, commands, encourages, or 

intentionally aids another person to engage in conduct which 

constitutes an offense shall be criminally liable as a party for such 

conduct.‖ Ms. Creager argues that this section makes it a crime to 

encourage another to violate section 76-10-528; in other words, that it 

makes it a crime to encourage or aid others to carry a firearm while 

intoxicated. Mr. Izatt makes no argument to rebut this contention.

And indeed, section 76-2-202 does criminalize such behavior where 

the person encouraging the intoxicated individual to carry a firearm 

has the same mental state required under the statute and the person 

aiding the intoxicated individual did something more than maintain 

a ―passive presence.‖45 Under these two statutes it is illegal, when 

the specified elements are shown, to encourage an intoxicated 

individual to carry a firearm.

¶27 And unless the owner of the weapon has a concealed 

weapons permit,46 the Utah Code also makes it a crime to carry an 

41 See id. § 76-10-511 (―Except for persons described in Section 76-

10-503 and 18 U.S.C. Sec. 922(g) and as otherwise prescribed in this 

part, a person may have a loaded firearm: (1) at the person’s place of 

residence, including any temporary residence or camp; or (2) on the 

person’s real property.‖).

42 Id.

43 Id. § 76-10-528.

44 Id.

45 State ex rel. V.T., 2000 UT App 189, ¶ 16, 5 P.3d 1234.

46 UTAH CODE § 76-10-523(2). 
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Opinion of the Court

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un-encased firearm ―in or on a place other than the person’s 

residence, property, [or] vehicle.‖47 Furthermore, even if the owner 

has a permit to carry a firearm, it cannot be carried into protected 

areas such as schools48 and airports,49 and it may not be carried into 

churches, private residences, and other properties when notice is 

given to the owner of the firearm.50

¶28 In sum, the Legislature has made it clear that firearms are 

not to be supplied to incompetent or impaired individuals, and it has 

also restricted how a firearm may be carried. To further these 

policies, the Legislature has also made the criminal penalties 

applicable to firearms violations more severe than other dangerous 

weapons violations.51

¶29 With this public policy background in mind, we are asked to 

decide whether it favors imposing a duty of care. We have held that 

a duty of care exists when an owner entrusts a vehicle to an 

incompetent individual, such as a minor.52 But that duty arose from 

47 Id. § 76-10-504(1). 

48 Id. § 76-10-505.5.

49 Id. § 76-10-529.

50 Id. § 76-10-530. 

51 Compare id. § 76-10-504(1) (making it a class B misdemeanor to 

carry a concealed dangerous weapon), with id. § 76-10-504(2)–(3) 

(making it either a class A misdemeanor or second degree felony to 

carry a concealed firearm or an unlawfully possessed short-barreled 

shotgun or rifle). See also id. § 76-10-503(2) (providing differing 

penalties depending on whether the weapon is a ―firearm‖ or ―any 

dangerous weapon other than a firearm.‖) 

52 Lowder v. Holley, 233 P.2d 350, 353 (Utah 1951) (―The obvious 

intent of the legislature [in passing the motor-vehicle owner liability 

statute] was to protect innocent third parties from the negligence of 

minors to whom cars are furnished or who are permitted by the 

owners of the cars to drive them, by holding the owners responsible 

therefor. In most instances actual permission by the owner to the 

minor to drive the car is impossible of direct proof. It is, of course, in 

the interest of the owner after an accident to deny such permission. It 

is not necessary, therefore, in order for a plaintiff to establish a case 

against an owner of a car to prove that express consent to drive the 

car was given to the minor. It may be implied from past conduct.‖). 

But see Rollins v. Petersen, 813 P.2d 1156, 1164 (Utah 1991) (―[M]ere 

Continued
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Opinion of the Court

15

Utah statutes, and here we are asked to impose a duty as a matter of 

Utah common law. Utah public policy also supports imposition of a 

duty as a matter of Utah common law. As we stated in Mugleston v. 

Glaittli, an automobile may ―be regarded as [a dangerous 

instrumentality] in the hands of an incompetent driver, and an 

owner therof who knowingly entrusts its operation to such a driver 

is liable, even in the absence of statute, for the proximate consequences 

of its operation in such hands.‖53 Furthermore, a duty arises as a 

matter of common law where the owner should know about the 

entrustee’s incompetence: ―If [a parent] ha[s] reason to believe that 

his son [is] a careless driver, from observation of his habits, or 

otherwise, it would be his duty to deny the son the use of the car.‖54

¶30 This principle extends outside of the automobile context, as 

evidenced by the Legislature’s efforts to restrict the possession and 

use of firearms by those who are incompetent or incapable of 

handling such weapons responsibly. And beyond the framework of 

the statutes themselves, we believe that it is sound public policy to 

impose a duty here. As we discuss further below, the dangers posed 

by firearms are great and the costs of requiring their owners to 

exercise reasonable care in supplying impaired or incompetent 

individuals with them are relatively small.55

¶31 As a final matter, we note that third parties, as well as the 

entrustees themselves (first parties) may recover under the theory of 

negligent entrustment, though there is a jurisdictional split on this 

point given the social policies pulling in either direction.56 In Utah, 

 

ownership of an automobile does not render the owner liable for 

the negligent actions of the driver.‖). 

53 258 P.2d 438, 439 (Utah 1953) (emphasis added).

54 Reid v. Owens, 69 P.2d 265, 265–66 (Utah 1937) (recognizing a 

duty in a wrongful death negligence action not premised on Utah’s 

motor-vehicle owner liability statute). 

55 Infra ¶ 39. 

56 Some jurisdictions have concluded that public policy favors 

first-party recovery for voluntary intoxicated individuals in 

negligent entrustment cases involving automobiles, reasoning as 

follows:

We recognize that voluntary intoxication is socially 

undesirable conduct and that individual responsibility 

to refrain from such conduct should be promoted. 

Continued
HERLAND v. IZATT

Opinion of the Court

16

third-party recovery has long been permitted under the theory of 

negligent entrustment.57 As to recovery for the entrustees 

themselves, we note that the Utah Dramshop Act prevents first-party 

recovery against the furnisher of the alcohol.58 That said, nothing in 

our statutes, and nothing in our caselaw, prevents first-party 

recovery against one who supplies a gun, even though recovery 

 

These considerations, however, cannot be permitted to 

obscure the fact that a vehicle owner who has the right 

and ability to control the use of the vehicle and takes 

no action to prevent the continued use of the vehicle by 

a borrower who the owner knows is likely to operate 

the vehicle while intoxicated is also engaged in morally 

reprehensible behavior that should be discouraged. 

Comparative negligence provides the appropriate 

framework for examining any negligence on the part of 

the individual who drives after consuming alcoholic 

beverages.

Casebolt v. Cowan, 829 P.2d 352, 362 (Colo. 1992). Other jurisdictions 

disagree and conclude that public policy disfavors recovery for 

voluntarily intoxicated adults in these scenarios:

[D]enying those who drive another’s vehicle while 

intoxicated the ability to be compensated by the 

entrustor properly distributes the incentive to control 

irresponsible drinking between the entrustor and the 

entrustee . . . .

Bailey v. State Farm Mut. Auto. Ins. Co., 881 N.E.2d 996, 1003 (Ind. Ct. 

App. 2008) (internal quotation marks omitted) (citing Kayce H. 

McCall, Note, Lydia v. Horton: You No Longer Have To Protect Me From 

Myself, 55 S.C. L. REV. 681, 694 (2004)). In South Carolina, like in 

Utah, first-party recovery is not permitted by intoxicated individuals 

against tavern owners under its Dramshop Act. And in its Lydia v. 

Horton decision, the South Carolina Supreme Court extended this 

principle to the negligent entrustment context, concluding that firstparty recovery was also barred by identical public-policy principles. 

583 S.E.2d 750, 753–54 (S.C. 2003).

57 E.g., Wilcox v. Wunderlich, 272 P. 207, 210, 213–14 (Utah 1928).

58 Horton v. Royal Order of the Sun, 821 P.2d 1167, 1169 (Utah 1991) 

(―There is no indication that the legislature intended to extend strict 

dramshop liability to the consumers of alcohol . . . .‖). 
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Opinion of the Court

17

against one who furnishes alcohol is not permitted.59 Indeed, many 

states have permitted first-party recovery under the theory of 

negligent entrustment.60 We likewise conclude that nothing bars 

first-party recovery in a case such as the one at hand.

¶32 Despite this conclusion, we note that intoxicated individuals 

will likely find it difficult to recover for injuries that are caused, at 

least in part, by their own intoxication. Utah’s comparative fault rule 

bars recovery where the plaintiff is fifty percent or more at fault.61

Indeed, some states have concluded that the comparative fault rule 

completely bars first-party recovery as a matter of law because in 

their reasoning an intoxicated plaintiff will never be less than fifty 

59 See Ward Miller, Annotation, Negligent Entrustment: Bailor’s 

Liability to Bailee Injured Through His Own Negligence or Incompetence, 

12 A.L.R.4th 1062 (1982) (compiling cases) (―Courts have held that a 

bailor is liable to a bailee under the doctrine of negligent entrustment 

if the bailee is injured through his or her own negligence or 

incompetence and the bailor knew or should have known that the 

bailee was likely to injure himself or herself because of inexperience 

or inability in using the object of the bailment.‖). 

60 Gorday v. Faris, 523 So. 2d 1215, 1219 (Fla. Dist. Ct. App. 1988) 

(permitting recovery for intoxicated driver against the bailor of the 

vehicle); Greenwood v. Gardner, 366 P.2d 780, 780–82 (Kan. 1961) 

(permitting a ten-year-old who was injured as a result of an 

automobile collision to recover for his injuries against his 

grandfather, who loaned the ten-year-old his automobile); Shepherd

v. Barber, 174 N.W.2d 163, 163–64 (Mich. Ct. App. 1969) (allowing a 

nineteen-year-old, who was incompetent to drive, to recover in a 

wrongful death action where the bailor lent the nineteen-year-old a 

truck). But see McDermott v. Hambright, 238 So. 2d 876, 877 (Ala. 1970) 

(barring recovery for bailee of vehicle, noting that ―[t]he Alabama 

cases and the cases of other states have applied this doctrine only 

where a third person was injured by the negligent driving of the 

incompetent.‖ (internal quotation marks omitted)).

61 UTAH CODE § 78B-5-818(2) (―A person seeking recovery may 

recover from any defendant or group of defendants whose fault, 

combined with the fault of persons immune from suit and 

nonparties to whom fault is allocated, exceeds the fault of the person 

seeking recovery prior to any reallocation of fault made under 

Subsection 78B-5-819(2).‖).
HERLAND v. IZATT

Opinion of the Court

18

percent at fault for injuries he or she causes.62 But we do not agree 

with this reasoning, since it is not our prerogative to carve out 

exceptions to the comparative negligence regime established by the 

Utah Legislature. And a number of states are in agreement with this 

approach as well.63

62 See Bailey, 881 N.E.2d at 1003 (―Indiana does not recognize a 

first-party cause of action for negligent entrustment of a motor 

vehicle to a voluntarily intoxicated adult.‖); Lydia, 583 S.E.2d at 752 

(―We believe that this state’s modified comparative negligence 

system also bars an intoxicated adult’s recovery on a first party 

negligent entrustment cause of action. We cannot imagine how one 

could be more than fifty percent negligent in loaning his car to an 

intoxicated adult who subsequently injured himself.‖); see also Mark 

S. Cohen, Annotation, Proof of Negligent Sale, Entrustment, or Storage 

of Firearm, 37 AM. JUR. PROOF OF FACTS 3d 1, § 28 (1996) (discussing 

the comparative fault rule in the negligent entrustment context); 

Ward Miller, Annotation, Negligent Entrustment: Bailor’s Liability to 

Bailee Injured Through His Own Negligence or Incompetence, 12 A.L.R. 

4th 1062 (1982) (―However, although holding that a bailee, who 

alleges that it was negligence for a bailor to entrust him or her with a 

certain object, has stated a valid cause of action, courts have 

indicated a willingness to allow traditional defenses of contributory 

negligence or assumption of the risk to bar recovery in some cases.‖).

63 See, e.g., Blake v. Moore, 208 Cal. Rptr. 703, 707 (Ct. App. 1984) 

(―[The plaintiff] is entitled to a comparative fault trial. This should 

result in a weighing of [the] defendant’s fault in entrusting his car to 

[the] plaintiff with knowledge of the intoxication, and the fault of 

[the] plaintiff in drinking and then driving.‖); Casebolt, 829 P.2d at

361 (―Consideration of the relevant policy factors persuades us that 

entrustment of an automobile to one who is likely to operate it under 

the influence of intoxicating liquor soon after obtaining possession of 

the vehicle presents an unreasonable risk of physical harm to the 

entrustee and others.‖); id. at 362 (―Comparative negligence provides 

the appropriate framework for examining any negligence on the part 

of the individual who drives after consuming alcoholic beverages.‖); 

Gorday v. Faris, 523 So. 2d 1215, 1218 (Fla. Dist. Ct. App. 1988) 

(agreeing with a case which held ―that an adult drunken driver who 

injures himself is entitled to a comparative fault trial predicated on 

the theory of negligent entrustment‖); King v. Petefish, 541 N.E.2d 

847, 852 (Ill. App. Ct. 1989) (―We find section 390 of the Restatement 

is appropriately applied to negligent entrustment cases of the type 

before us and hold, by that authority, a suit brought by an injured 

Continued
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Opinion of the Court

19

¶33 In sum, Utah public policy supports imposing a duty on gun 

owners to exercise reasonable care in supplying their guns to 

others—such as children and incompetent or impaired individuals—

whom they know, or should know, are likely to use the gun in a 

manner that creates a foreseeable risk of injury to themselves or third 

parties. And although there are competing social policies that favor 

and disfavor first-party recovery by an intoxicated individual, 

nothing bars first-party recovery as a matter of law. As a result, 

Ms. Creager’s estate may argue for recovery, but the estate must 

overcome the high hurdle of comparative negligence in order to 

prevail, as would any plaintiff whose injury occurs while he or she is 

voluntarily intoxicated.

C. Acts vs. Omissions

¶34 Next, we look to the tortious conduct at issue to assess 

whether it constituted an act or omission.

64 This distinction ―makes a 

critical difference‖ because a duty of care usually only arises in the 

case of affirmative acts (sometimes termed ―misfeasance‖), or where 

an individual’s ―active misconduct work[ed] positive injury to 

others.‖65 By contrast, an omission (sometimes termed 

―nonfeasance‖), or ―a failure to take positive steps to benefit others, 

or to protect them from harm not created by any wrongful act of the 

defendant . . . generally implicates a duty only in cases of special 

legal relationships.‖66

 

entrustee against his entrustor is a viable cause of action in a 

comparative negligence jurisdiction.‖).

64 Jeffs, 2012 UT 11, ¶¶ 5, 7. 

65 Id. ¶ 7 (internal quotation marks omitted). 

66 Id. (internal quotation marks omitted). We note that the 

nomenclature here has caused some confusion. Indeed, in Jeffs, we 

used the terms ―acts and omissions‖ as well as ―misfeasance and 

nonfeasance.‖ 2012 UT 11, ¶ 7. Both sets of terms are clear enough in 

most cases. But the term ―omission‖ can be somewhat misleading 

because, as we recently explained in Cope v. Utah Valley State College, 

―[a]ctive misfeasance . . . is not confined to situations where an 

affirmative act directly causes harm to the plaintiff.‖ 2014 UT 53, 

¶ 35. In other words, in some cases an ―omission‖ may give rise to a 

duty even where there is no special relationship. This is because 

―omission‖ may well be understood in some contexts as failing to do 

what one is obligated to do. A pure omission, or passive inaction, on 

Continued
HERLAND v. IZATT

Opinion of the Court

20

¶35 Modern negligence law is built upon this important 

distinction between acts and omissions, which Justice Cardozo 

famously described in H.R. Moch Co. v. Rensselaer Water Co.:

A time-honored formula often phrases the distinction 

as one between misfeasance and nonfeasance. 

Incomplete the formula is, and so at times misleading. 

Given a relation involving in its existence a duty of care 

irrespective of a contract, a tort may result as well 

from acts of omission as of commission in the 

fulfillment of the duty thus recognized by law. What 

we need to know is not so much the conduct to be 

avoided when the relation and its attendant duty are 

established as existing. What we need to know is the 

conduct that engenders the relation. It is here that the 

formula, however incomplete, has its value and 

significance. If conduct has gone forward to such a 

stage that [inaction] would commonly result, not 

negatively merely in withholding a benefit, but 

positively or actively in working an injury, there exists 

a relation out of which arises a duty to go forward. . . .

The query always is whether the putative wrongdoer 

has advanced to such a point as to have launched a 

force or instrument of harm, or has stopped where 

inaction is at most a refusal to become an instrument 

for good.67

This distinction is key, since a duty will arise only where an alleged 

tortfeasor’s conduct ―has gone forward to such a stage that [inaction]

would commonly result‖ in an injury.68 Stated differently, an alleged 

tortfeasor’s conduct must have created a situation where harm will 

commonly or foreseeably result, such that his inaction would permit 

the already advancing, foreseeable harm to work its course. In cases 

where a gun owner has supplied another with a gun, the question 

 

the other hand, is more divorced from the concept of duty and may 

better describe the ―nonfeasance‖ or ―bystander‖ scenario 

envisioned by the Restatement (Second) of Torts, which permits ―one 

human being, seeing a fellow man in dire peril, . . . [to] sit on the 

dock, smoke his cigar, and watch the other drown.‖ RESTATEMENT 

(SECOND) OF TORTS § 314 cmt. c (1965).

67 159 N.E. 896, 898 (N.Y. 1928) (citations omitted). 

68 Id. 
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Opinion of the Court

21

could be framed as ―whether the putative wrongdoer has advanced 

to such a point as to have launched a force or instrument of harm,‖69

meaning whether he has placed others in harm’s way by supplying

an impaired or incompetent individual with a gun.

¶36 Here, Ms. Creager’s estate has conceded that no special 

relationship existed.70 Consequently, in order to prevail her estate 

must establish that a duty existed as the result of an affirmative act.

So to survive summary judgment, Ms. Creager needed to establish, 

at a minimum, a dispute of fact about whether Mr. Izatt’s conduct 

was an affirmative act.71 The district court focused on this question 

and determined that because there was no dispute that Ms. Creager’s 

―possession [of the gun] was voluntary,‖ Mr. Izatt’s conduct was 

―nonfeasance or [an] omission and failure to act.‖ And thus, ―[u]nder 

any of the proffered scenarios under which Ms. Creager gained 

possession of the firearm,‖ Mr. Izatt did not owe a duty. We see the 

matter differently.

¶37 The evidence submitted at summary judgment establishes a 

factual dispute about the nature of Mr. Izatt’s conduct. The parties 

agree that Ms. Creager had a blood alcohol level of 0.25 and that 

Mr. Izatt ―unlocked his gun safe and allowed [her] to handle his . . . 

handgun[,] which he knew to be loaded.‖ But they submitted 

conflicting evidence about what happened next. The estate provided 

depositions from investigators stating that Mr. Izatt then left the 

room without retrieving the handgun, leaving Ms. Creager alone 

with the weapon. Mr. Izatt’s deposition testimony diverges 

significantly from the estate’s account—he claims he told 

Ms. Creager that the gun was loaded, urged her to be careful, and 

took the gun away from her and locked it in his safe. But somehow

Ms. Creager took the gun out of the safe after Mr. Izatt walked away. 

There is also a third possibility—some evidence in the record 

suggests that Ms. Creager found the gun on Mr. Izatt’s counter 

because, as Mr. Izatt told a 911 operator, the gun ―is kind[] of always 

out.‖ 

69 Id. 

70 This concession is consistent with our opinion in Gilger v. 

Hernandez, in which we held that ―no special relationship exists 

between a host and a guest that imposes on a social host a duty 

either to control one guest or to protect another when one threatens 

to injure the other.‖ 2000 UT 23, ¶ 17, 997 P.2d 305. 

71 See UTAH R. CIV. P. 56(c).
HERLAND v. IZATT

Opinion of the Court

22

¶38 We conclude that under at least some of these scenarios, the

alleged conduct constitutes an affirmative act, or misfeasance, 

because the tortfeasor (Mr. Izatt) by affirmative act supplied a gun to 

an impaired individual (Ms. Creager), and thereby created a 

situation where harm would commonly or foreseeably result. In so 

doing, we clarify that in cases involving use of a gun, such as this 

one, the affirmative act giving rise to a duty may be (1) directly 

supplying or handing a gun to another, (2) placing the gun within 

reach of another, or (3) consenting (either explicitly or implicitly) to 

the use of the gun by another. We of course do not decide whether 

the specific factual scenarios alleged by the parties fit any of these 

categories. That is a decision for the fact finder below. While there 

was some consistency in the parties’ descriptions of Mr. Izatt’s 

preliminary actions, there was clearly a dispute of fact about

whether Mr. Izatt allowed Ms. Creager to handle the gun or whether 

he locked it in the safe to prevent her from accessing it. Placing a gun 

within reach of an intoxicated individual by leaving it on a counter 

top or opening a safe and consenting to his or her use of a weapon 

certainly constitutes an overt act, not an omission. Accordingly, the 

district court erred in characterizing the conduct under each possible 

scenario as nonfeasance and concluding that no duty existed as a 

matter of law. Depending on the decision of the fact finder below, 

this factor may or may not weigh in favor of imposing a duty.

D. Best Suited to Prevent Injury

¶39 The final factor we review is the ―public policy as to which 

party can best bear the loss occasioned by the injury.‖72 In doing so, 

we do not consider the relative ―depth of [the parties’] pockets.‖73

Rather, we assess ―whether the defendant is best situated to take 

reasonable precautions to avoid injury.‖74 Where firearms and 

impaired individuals are at issue, ―[t]he risk and seriousness of 

injury that might result from [impaired individuals] taking a firearm, 

and thus the costs associated with not recognizing a duty in these 

circumstances, are high.‖75 Because the burden on gun owners to 

properly restrict access to their firearms is relatively slight, and given 

the high risk of injury that may potentially result, this factor favors 

imposition of a duty. 

72 Jeffs, 2012 UT 11, ¶ 5 (internal quotation marks omitted).

73 Id. ¶ 29.

74 Id. ¶ 30. 

75 Jupin v. Kask, 849 N.E.2d 829, 838 (Mass. 2006).
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Opinion of the Court

23

Conclusion

¶40 This case involves important questions of first impression 

for this court regarding the duties owed by gun owners. Although 

the United States Constitution, as well as Utah’s Constitution and 

statutes, clearly protect the right to own firearms, this right is not 

unrestricted. The Legislature has in multiple ways acted to prevent 

access to guns by restricted persons, minors, and those who are 

intoxicated. Given the minor burden imposed and the great risk 

where such weapons are supplied to these groups, we affirm that 

gun owners have a duty to exercise reasonable care in supplying 

their guns to others—such as children and incompetent or impaired 

individuals—whom they know, or should know, are likely to use the 

gun in a manner that creates a foreseeable risk of injury to 

themselves or third parties. Accordingly, we reverse the district 

court’s determination that Mr. Izatt owed no duty of care and 

remand for further proceedings consistent with this opinion.