The Effects of Judicial Immunization of Passive Sellers in Sanns v. Butterfield Ford and a Proposal for the Shifting Nature of Fault

I. INTRODUCTION: THE TENSION IN STRICT LIABILITY BETWEEN INNOCENT CONSUMERS AND INNOCENT SELLERS "A manufacturer is strictly liable . . . when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being."1 The purpose of strict products liability is to place the cost of injury resulting from dangerous products on the producers of those products because consumers "are powerless to protect themselves" against such products.2 Proponents of strict products liability argue that in an "increasingly complex and mechanized society"3 there exists an "economic and social need"4 to protect innocent consumers from the costs of dangerous products. The policy of strict products liability has extended into the realm of nonmanufacturing parties. Strict products liability, as explained in the widely accepted definition in the Restatement (second) of Torts, Section 402A,5 holds nonmanufacturing parties strictly liable for consumer injuries in equal proportion with the manufacturers. Justice Traynor, in Vandermark v. Ford Motor Co.,6 enunciated the policy for holding nonmanufacturing parties strictly liable, reasoning that the policy affords the consumer the greatest possible protection and that it creates an added incentive for retailers to offer safe products to the public.7 Despite the strong policy considerations for extending liability to protect innocent consumers from bearing the costs of dangerous products, the idea of holding nonmanufacturing parties strictly liable has met some resistance. During the 1970s and 1980s, a vast majority of legislatures around the country adopted liability-reform statutes designed to mitigate the reach of liability doctrines such as joint and several liability.8 Many jurisdictions passed legislation designed specifically to protect nonmanufacturing parties from the harsh effects of strict products liability.9 Thus, two forces-one designed to extend liability and the other designed to limit liability-supported opposing goals as jurisdictions sought to define the application of strict liability principles. Like most jurisdictions in the United States, Utah was caught up in both movements and had, until recently, left unresolved the tension between extending and limiting strict liability. The combination of the Utah Supreme Court's espousal of section 402A in Ernest W. Hahn, Inc. v. Armco Steel Co.10 and the Utah legislature's passage of the Liability Reform Act (LRA)11 in 1986 left Utah courts to determine the extent to which nonmanufacturing parties such as distributors and retailers could be strictly liable for harm caused by dangerous products. For years, both the Utah Supreme Court and the Utah Court of Appeals were silent on this issue, as no strict liability case presented these courts with a clear opportunity for examining exactly how the LRA and Section 402A interacted.12 Fortunately, this opportunity recently presented itself in Sunns v. Butterfield Ford13 in which the appellate court ruled in favor of limiting liability. In Sanns, the court of appeals examined a situation in which a consumer sought to hold strictly liable a manufacturer and a passive seller-a party who did nothing more than pass an unaltered and uninspected product from a manufacturer to a consumer.14 The court ultimately held that the LRA limited the liability of passive sellers under Section 402A.15 The effects of this holding are significant: the decision makes strict liability in passive seller situations more akin to traditional tort theories, such as negligence and culpability, than to Section 402A strict liability principles. Viewed in its entirety, the Sanns decision created more problems than it solved. Not only did it depart from a majority of jurisdictions by judicially immunizing passive sellers from suit in strict liability, but it failed to describe how its uncertain standard should be applied in future strict liability cases. …