McQuivey v. Fulmer Helmets

2014 UT App 177
_________________________________________________________
THE UTAH COURT OF APPEALS
JAMIE MCQUIVEY,
Plaintiff and Appellant,
v.
FULMER HELMETS, INC.,
Defendant and Appellee.
Opinion
No. 20121056-CA
Filed July 31, 2014
Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 090403384
Mark R. Taylor, Henry N. Didier Jr., and
P. Alexander Gillen, Attorneys for Appellant
Julianne P. Blanch and Tsutomu L. Johnson,
Attorneys for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE JOHN A. PEARCE concurred. JUDGE JAMES Z. DAVIS
concurred in the result.
VOROS, Judge:
¶1 Eight-year-old Conway Cook crashed an all-terrain vehicle
while wearing a protective helmet. Instead of protecting him, the
helmet cracked and injured his face. Conway’s mother sued various
defendants on his behalf. The district court dismissed the claim
against Fulmer Helmets, Inc. under the passive-retailer doctrine.
We reverse and remand for further proceedings.

McQuivey v. Fulmer Helmets
1. When reviewing a district court’s rulings on a summary
judgment motion, we recite all facts and fair inferences in the light
most favorable to the nonmoving party. Poteet v. White, 2006 UT 63,
¶ 7, 147 P.3d 439.
20121056-CA 2 2014 UT App 177
BACKGROUND1
¶2 In 2008, Conway Cook drove his ATV down a dirt path,
trailing his grandfather’s truck. Conway wore a Fulmer Blade AF-
C1, a helmet designed for children. While driving along the path,
Conway hit a shallow ditch. The impact ejected Conway and
flipped the ATV. The helmet’s chinguard snapped on impact, and
the sharp edge of the now-serrated plastic guard cut deeply into
Conway’s face. His injuries were serious and will require lifelong
care and future surgeries.
¶3 On Conway’s behalf, his mother, Jamie McQuivey, sued
three parties: Kim Yong Lung Industrial (KYL), which
manufactured the helmet in Taiwan; Fulmer Helmets, which
distributed the helmet throughout the American market; and White
Knuckle Motor Sports, which sold the helmet to Conway’s father.
Against Fulmer, McQuivey alleged strict liability for defective
design as well as negligence and failure to warn.
¶4 The district court dismissed McQuivey’s claims against both
KYL and White Knuckle. McQuivey stipulated to White Knuckle’s
dismissal because the evidence showed that White Knuckle had
neither knowledge of potential defects nor influence over the
helmet’s design, safety, or manufacturing. KYL moved to dismiss
the claims against it for lack of personal jurisdiction. Fulmer and
McQuivey did not oppose the motion, and the district court granted
it, leaving Fulmer as the lone defendant.
¶5 Fulmer moved for summary judgment. Fulmer argued that,
as a passive retailer, it could not be held liable for defects in the

McQuivey v. Fulmer Helmets
20121056-CA 3 2014 UT App 177
helmet. The district court agreed and dismissed all claims against
Fulmer, terminating the litigation.
ISSUE AND STANDARD OF REVIEW
¶6 McQuivey contends that the district court erred in granting
summary judgment for Fulmer on the ground that it qualifies as a
passive retailer. We review a district 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.” Orvis v.
Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation
marks omitted). Furthermore, “[t]he determination of whether a
passive seller of a product can be held strictly liable under the Utah
Liability Reform Act . . . is based on the trial court’s interpretation
of a statute, which we review for correctness without deference to
the trial court's conclusions.” Yirak v. Dan’s Super Mkts., Inc., 2008
UT App 210, ¶ 3, 188 P.3d 487 (citation and internal quotation
marks omitted).
ANALYSIS
¶7 McQuivey contends that the district court improperly
applied the passive-retailer doctrine to Fulmer and thus erred in
dismissing Fulmer from the case. She argues that Fulmer does not
qualify as a passive retailer because “[Fulmer] is not passive in the
design, manufacturing, and testing of the helmets bearing its
name.” Fulmer responds that it qualifies as a passive retailer
because it “does not design or manufacture helmets.”
¶8 Under general principles of tort law, “as between an injured
buyer of a product, and the seller of the product, the seller must
bear the liability.” Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 15,
94 P.3d 301. Utah has long recognized a cause of action against the
seller of defective products. Hahn v. Armco Steel Co., 601 P.2d 152,

McQuivey v. Fulmer Helmets
20121056-CA 4 2014 UT App 177
158 (Utah 1979). Under Utah‘s Product Liability Act, a
“manufacturer or other initial seller” who sells an “unreasonably
dangerous product” may be liable for resulting “personal injury,
death, or property damage.” Utah Code Ann. § 78B-6-703(1)
(LexisNexis 2008). And under the Second Restatement of Torts,
section 402A, the commercial seller of a defective product may be
held strictly liable—liable without proof of fault—for harm caused
by the product:
One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or
to his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or
to his property, if (a) the seller is engaged in the
business of selling such a product, and (b) it is
expected to and does reach the user or consumer
without substantial change in the condition in which
it is sold.
Restatement (Second) of Torts § 402A (1965) expressly adopted in
Hahn, 601 P.2d at 158. Thus, because “strict liability does not require
an examination of a party’s fault,” a manufacturer or other initial
seller can be held liable for a defective product regardless of its
degree of fault. Sanns, 2004 UT App 203, ¶ 14 n.5. However, these
rules exist in tension with another feature of Utah tort law:
comparative fault.
¶9 Comparative fault became the law of Utah in 1986. Before
that time, Utah applied the common-law rule of joint-and-several
liability. Under joint-and-several liability, “a tortfeasor was
potentially liable for the entire amount of a plaintiff’s damages,
irrespective of what proportion of fault was actually attributable to
that individual tortfeasor as opposed to another joint tortfeasor.”
National Serv. Indus. v. B.W. Norton Mfg. Co., 937 P.2d 551, 554 (Utah
Ct. App. 1997). In 1986, the Utah Legislature enacted the Liability
Reform Act. See Utah Code Ann. § 78B-5-820(1) (LexisNexis 2008).
The Act replaced the rule of joint-and-several tort liability with a

McQuivey v. Fulmer Helmets
2. We previously noted that the legislature’s “inclusion of ‘strict
liability’ in defining ‘fault’ is confusing and somewhat problematic
because unlike negligence, strict liability does not require an
examination of a party’s fault.” Sanns v. Butterfield Ford, 2004 UT
App 203, ¶ 14 n.5, 94 P.3d 301. “The use of strict liability in this
statutory definition should be viewed only as a cause of action
subject to the [Liability Reform Act], rather than changing the
traditional use of the term fault to somehow include strict liability,
a liability concept that is unconcerned with fault in the usual sense
of culpability.” Id.
20121056-CA 5 2014 UT App 177
rule of comparative fault. A plaintiff’s “recovery of damages under
the Product Liability Act is proportionate to the percentage of fault
attributable to each defendant.” Yirak, 2008 UT App 210, ¶ 4. The
Act defines “fault” to include strict liability. Utah Code Ann. § 78B-
5-817(2) (LexisNexis 2008). Consequently, a plaintiff in a products-
liability case may recover from each defendant only in proportion
to that defendant’s fault (including strict liability).2
¶10 Tension inheres between the principles of Utah’s
comparative-fault statute and Utah’s products-liability statute
because together they require a finder of fact to apportion relative
fault to a codefendant whose liability does not depend on fault as
commonly understood in tort law. In response to this tension, this
court devised the passive-retailer doctrine.
¶11 The passive-retailer doctrine creates an exception to strict
liability under the Product Liability Act for “passive
retailers”—sellers who do not “participate in the design,
manufacture, engineering, testing, or assembly” of a product. Sanns,
2004 UT App 203, ¶ 21. Under this doctrine, “a passive retailer is
not subject to a strict liability claim . . . where the manufacturer is a
named party to the action.” Yirak v. Dan’s Super Mkts. Inc., 2008 UT
App 210, ¶ 5, 188 P.3d 487. The passive-retailer doctrine thus allows
the trial court to dismiss a strict-liability claim against a codefendant
when undisputed facts establish that no fact finder could, under

McQuivey v. Fulmer Helmets
3. Other jurisdictions have sought to protect passive sellers from
the effects of section 402A in other ways or left them unprotected.
Some jurisdictions that adopted section 402A sought to protect
passive sellers with legislation prohibiting a strict-liability suit
against a seller unless the seller either manufactures the product or
participates in the manufacture of the product. See, e.g., Ga. Code
Ann. § 51-1-11.1 (2000); Ind. Code § 34-20-2-3 (2008); Neb. Rev. Stat.
§ 25-21, 181 (2008). Other jurisdictions have enacted legislation
prohibiting strict-liability suits against passive sellers unless no
remedy exists against the manufacturer. See, e.g., Del. Code Ann.
tit. 18, § 7001 (1999); Idaho Code Ann. § 6-1407(4) (2010); Iowa
Code § 613.18 (West 1999); Kan. Stat. Ann. § 60-3306 (Supp. 2012);
Ky. Rev. Stat. Ann. § 411.340 (LexisNexis 2005); Md. Code Ann.,
Cts. & Jud. Proc. § 5-405 (LexisNexis 2013); Minn. Stat. Ann.
§ 544.41 (West 2010); Mo. Ann. Stat. § 537.762 (West 2008); N.C.
Gen. Stat. Ann. § 99B-2 (2013); N.D. Cent. Code § 28-01.3-04 (2006);
Tenn. Code Ann. § 29-28-106 (Supp. 2013); Wash. Rev. Code Ann.
§ 7-72.040(2) (West 2007). And a significant number of jurisdictions
that adopted section 402A have not enacted any legislation to
protect passive sellers and continue to subject passive sellers to
strict liability. See, e.g., Clark v. Williamson, 129 F. Supp. 2d 956, 959
(S.D. Miss. 2000) (applying Mississippi law and holding that a
passive retailer could be strictly liable in products-liability suit);
Oser v. Wal-Mart Stores, Inc., 951 F. Supp. 115, 119 (S.D. Tex. 1996)
(holding that a plaintiff injured by a defective shopping bag can sue
the passive retailer); Nichols v. Agway, Inc., 720 N.Y.S.2d 691, 692
(N.Y. App. Div. 1994) (confirming that retailers are subject to strict-
liability suits but dismissing on other grounds); Honeywell v. GADA
Builders, Inc., 271 P.3d 88, 95 (Okla. Civ. App. 2011) (“The rationale
(continued...)
20121056-CA 6 2014 UT App 177
principles of comparative fault, apportion fault to that codefendant.
In this circumstance, “as long as [the actual manufacturer] is present
in the suit, there remains no reason to require [a passive retailer] to
incur the time and expense of defending” the action. Sanns, 2004 UT
App 203, ¶ 21.3

McQuivey v. Fulmer Helmets
3. (...continued)
for imposing strict liability on retailers and distributors is founded
upon the public interests in human safety. . . .”).
4. The Utah Supreme Court has yet to address or apply the passive-
retailer doctrine.
20121056-CA 7 2014 UT App 177
¶12 This court has applied the passive-retailer doctrine only
twice. In Sanns, a van in which Sanns was a passenger rolled4
several times. Id. ¶ 2. Sanns sued both the manufacturer—Ford
Motor Company—and the retailer— Butterfield Ford. Id. ¶ 3. We
held that Butterfield Ford qualified as a passive retailer because it
“did not participate in the design, manufacture, engineering,
testing, or assembly of the van.” Id. ¶ 21. As a result, we concluded,
“The strict liability ‘fault’ in this case, if any, lies with the
manufacturer, not with Butterfield Ford, the passive retailer.” Id.
Consequently, we held that “the trial court was correct to dismiss
Butterfield Ford.” Id.
¶13 This court again applied the passive-retailer doctrine in Yirak,
2008 UT App 210. After discovering a piece of glass in her
prepackaged salad, Yirak sued both the seller—Dan’s Super
Markets—and the manufacturer—Dole. Id. ¶¶ 2, 5 n.3. However,
Dan’s submitted undisputed evidence that it did not “manufacture,
design, repackage, label, or inspect the prepackaged salads supplied
by Dole.” Id. ¶ 7. Consequently, we held that Dan’s qualified as a
passive retailer. Id. ¶ 8.
¶14 Notably, the passive retailers in Sanns and Yirak did not
participate in the creation of the defective or unreasonably
dangerous products at issue in those cases—they did not participate
in the products’ design, manufacture, or testing. See Sanns v.
Butterfield Ford, 2004 UT App 203, ¶ 21, 94 P.3d 301; Yirak, 2008 UT
App 210, ¶ 7. They were thus not “in a position to eliminate the
unsafe character of the product and prevent the loss,” one of the

McQuivey v. Fulmer Helmets
5. Fulmer’s tags contain explicit warnings, instructions for sizing,
and a directive stating, “If helmet experiences a severe blow, return
it to the manufacturer for competent inspection or destroy and
replace it.” Below this direction, in all capital letters, the tag reads,
“FULMER HELMETS, INC.”
20121056-CA 8 2014 UT App 177
rationales for imposing strict liability. See Hebel v. Sherman Equip.,
442 N.E.2d 199, 205 (Ill. 1982).
¶15 In contrast, McQuivey presented evidence demonstrating
that Fulmer did participate in the manufacture, design, and testing
of the helmets that bear its name. First, Fulmer participates in
helmet design. Fulmer receives sample helmets from KYL to ensure
that they fit properly. One of Fulmer’s representatives stated, “[W]e
might have to tell [KYL] this is tight here or loose here and they
change something about the comfort padding perhaps to—to adjust
the way it fits. But we work through that.” Fulmer also designs the
helmets’ graphics and tags. Though relatively slight, this degree of5
involvement in helmet design distinguishes Fulmer from Dan’s and
Butterfield Ford, who had no role in the design of the products they
sold.
¶16 Fulmer also participates in the helmets’ manufacture. Fulmer
performs on-site visits to KYL’s helmet factory twice annually.
Fulmer examines KYL’s quality-control procedures. Furthermore,
Fulmer requires that KYL manufacture its helmets in compliance
with United States Department of Transportation standards, “100
percent, every helmet, all the time.” This level of involvement
constitutes “participation” in the manufacturing process. See Sanns,
2004 UT App 203, ¶ 21.
¶17 Fulmer also participates in the helmets’ testing. Fulmer
requires that KYL test all Fulmer helmets, and Fulmer itself has the
helmets tested “from time to time.” As mentioned above, Fulmer
test-fits helmets and then instructs KYL to make changes
accordingly. Furthermore, Fulmer has had helmets tested “both in

McQuivey v. Fulmer Helmets
6. See, e.g., Carney v. Sears, Roebuck & Co., 309 F.2d 300, 304 (4th Cir.
1962) (citing Highland Pharmacy, Inc. v. White, 131 S.E. 198 (Va.
1926)); Davis v. United States Gauge, 844 F. Supp. 1443, 1446 (D. Kan.
1994); Moody v. Sears, Roebuck & Co., 324 F. Supp. 844, 846 (S.D. Ga.
1971) superseded by statute as stated in Freeman v. United Cities
Propane Gas, Inc., 807 F. Supp. 1533, 1539–40 (M.D. Ga. 1992); Sears,
Roebuck & Co. v. Morris, 136 So. 2d 883, 885 (Ala. 1961); Cravens,
Dargan & Co. v. Pacific Indem. Co., 105 Cal. Rptr. 607, 611 (Ct. App.
1972); King v. Douglas Aircraft Co., 159 So.2d 108, 110 (Fla. Dist. Ct.
App.1963); Dudley Sports Co. v. Schmitt, 279 N.E.2d 266, 273 (Ind.
Ct. App. 1972); Tice v. Wilmington Chem. Corp., 141 N.W.2d 616, 628
(Iowa 1966); Penn v. Inferno Mfg. Corp., 199 So.2d 210, 215 (La. Ct.
App. 1967); Coca Cola Bottling Co. v. Reeves, 486 So.2d 374, 378 (Miss.
(continued...)
20121056-CA 9 2014 UT App 177
KYL as well as in labs in the United States” to ensure that all
helmets comply with U.S. standards.
¶18 Finally, we note that Fulmer holds itself out to the public as
the manufacturer of the helmets that bear its name. Under Second
Restatement of Torts, “[o]ne who puts out as his own product a
chattel manufactured by another is subject to the same liability as
though he were its manufacturer.” Restatement (Second) of Torts
§ 400 (1965). “[O]ne puts out a chattel as his own product when he
puts it out under his name or affixes to it his trade name or
trademark.” Id., § 400 cmt. d. Courts typically refer to this as the
“apparent-manufacturer doctrine.” Long v. United States Brass Corp.,
333 F. Supp. 2d 999, 1002 (D. Colo. 2004) (citing Yoder v. Honeywell
Inc., 104 F.3d 1215, 1223 (10th Cir. 1997)). “The primary rationale for
imposing liability on the apparent manufacturer of a defective
product is that it induced the purchasing public to believe that it is
the actual manufacturer, and . . . [thus] to purchase the product in
reliance on the apparent manufacturer's reputation and skill in
making it.” Hebel, 442 N.E.2d at 203 (emphasis omitted). Although
Utah has not yet addressed the question, most jurisdictions to
consider the apparent-manufacturer doctrine have adopted it.6

McQuivey v. Fulmer Helmets
6. (...continued)
1986) superseded by statute as stated in Turnage v. Ford Motor Co., 260
F. Supp. 2d 722, 727 (S.D. Ind. 2003)); Slavin v. Francis H. Leggett &
Co., 177 A. 120, 121 (N.J. 1935) aff’d, 186 A. 832 (N.J. 1936)); Andujar
v. Sears Roebuck & Co., 597 N.Y.S.2d 78, 78 (App. Div. 1993) (citing
Commissioners of State Ins. Fund v. City Chem. Corp., 48 N.E.2d 262,
265 (N.Y. 1943)); Warzynski v. Empire Comfort Sys., Inc., 401 S.E.2d
801, 803–04 (N.C. Ct. App. 1991); Forry v. Gulf Oil Corp., 237 A.2d
593, 599 (Pa. 1968); Sears, Roebuck & Co. v. Black, 708 S.W.2d 925, 928
(Tex. App. 1986); Wojciuk v. United States Rubber Co., 108 N.W.2d
149, 152–53 (Wis. 1961).
7. McQuivey also argues that the court erred in granting summary
judgment in Fulmer’s favor on two other grounds: first, that “the
(continued...)
20121056-CA 10 2014 UT App 177
¶19 As McQuivey has not urged us to adopt the apparent-
manufacturer doctrine here, we reserve that question for another
day. We note, however, that Fulmer distributed the Blade AF-C1
helmet under its own name; typically describes itself as the
“manufacturer” of Fulmer helmets on equipment safety reports
filed with the National Highway Traffic Safety Administration; and
puts its name on tags inside its helmets, certifying that they meet
the applicable safety standards.
¶20 Even without resort to the apparent-manufacturer doctrine,
we conclude that the district court erred in granting summary
judgment for Fulmer as a passive retailer. See Sanns, 2004 UT App
203, ¶ 21. Although KYL principally conducted the manufacturing,
design, and testing of the helmets, the passive-retailer doctrine does
not ask whose role in manufacturing a defective product was the
greatest; rather it asks whether a party “participate[d] in the design,
manufacture, engineering, testing, or assembly of” the product. Id.
This follows from the passive-retailer doctrine’s rationale, which is
to dismiss codefendants to whom the finder of fact will, should the
matter go to trial, inevitably apportion no fault.7

McQuivey v. Fulmer Helmets
7. (...continued)
passive-retailer doctrine is inappropriate” here because “the
alleged manufacturer was never a proper party to this case,” and
second, that “even if the doctrine otherwise applied, only the strict-
liability claims against Fulmer should be dismissed.” Because we
determine that the court erred in ruling that Fulmer qualifies as a
passive retailer, we do not address these arguments.
20121056-CA 11 2014 UT App 177
CONCLUSION
¶21 We reverse the district court’s judgment of dismissal and
remand the case for further proceedings.