Reath v. Brian Head

2024 UT App 194

THE UTAH COURT OF APPEALS

DOUGLAS REATH,
Appellant,
v.
BRIAN HEAD TOWN,
Appellee.

Opinion
No. 20240160-CA
Filed December 27, 2024

Fifth District Court, Cedar City Department
The Honorable Matthew L. Bell
No. 210500107

Bradley C. Harr and Jedediah C. Harr,
Attorneys for Appellant
Gregory N. Hoole, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.

MORTENSEN, Judge:

¶1 Douglas Reath was injured while using the Brian Head
Town (Brian Head) bulk water dispenser to fill a large water tank
in the back of his pickup truck. Reath brought a negligence action
against Brian Head, and Brian Head moved for summary
judgment, claiming that, as a matter of law, Brian Head’s failure
to warn was not the proximate cause of Reath’s injuries because
Reath already knew everything that might have been contained
in a warning. We reverse the lower court’s grant of summary
judgment because under the applicable law, a properly instructed
jury could reasonably conclude that Brian Head’s failure was a
proximate cause of Reath’s injuries.
Reath v. Brian Head Town

BACKGROUND

¶2 Douglas Reath, like many residents in the mountain
community of Iron County, obtains water for his cabin from Brian
Head’s bulk water dispenser. To operate the dispenser, users
employ the following procedure:

(1) enter their four digit access number and hit
enter; (2) enter their four digit pin and hit enter; (3)
enter the specific amount of gallons they want to
dispense and hit enter; (4) the dispenser will then
ask the user if they are ready; (5) the user is to make
sure the valve is closed and the hose is secure before
hitting start; and (6) after hitting start, the user is to
open the valve slowly until they reach the water
pressure they desire.

¶3 At least, that’s how the process is supposed to work
according to Brian Head. But there are a few problems with those
instructions. First, it seems that the actual directions provided to
users varied. The instructions above, which Brian Head produced
in response to an interrogatory, do not appear to be recorded
anywhere or routinely distributed to users.

¶4 Reath recalls that when he initially set up his water account
with Brian Head, the Brian Head employees only created his
account, established his access code and pin, and advised him to
be careful. In some other cases, Brian Head sent emails to
residents that read, “Please make sure the valve is closed before
hitting start. After hitting start, open the valve slowly until you
reach the right water pressure” or, “Word of caution, the pump is
like a fire hose, so I recommend making sure the valve is closed
prior to starting and turning it slowly until you get the pressure
you want.” Internal Brian Head documents, which do not appear
to have been distributed to users, contain the following warning:
“CHECK THE VALVE AND MAKE SURE IT IS CLOSED
BEFORE PRESSING ‘START.’” There is no evidence that any of
these specific warnings were given to Reath.

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Reath v. Brian Head Town

¶5 These explicit instructions make sense in light of the
somewhat unique function of the dispenser. When a user is
dispensing their water, they can either (1) stop the flow before the
requested number of gallons has been dispensed by pushing the
stop button or manually turning the valve off or (2) wait until all
the water has been dispensed and the flow stops automatically. If
a user lets their tank fill to the requested level and then forgets to
close the valve after using the dispenser, the valve will be
completely open at the start of the process for the next user, and
when that next user pushes the start button, the water will
immediately flow at an extremely high pressure.

¶6 In fact, when the bulk water dispenser was installed in
2011, the water dispenser pressure was at 180 PSI. 1 The installers
“throttled it down” but expressed concern about subjecting the
system to that level of continued pressure. In any event, on the
day of the incident, the pressure level would have been that of a
fire hose.

¶7 At the time Reath had set up his account, he had already
observed people using the dispenser. By the time of the accident,
Reath had personally used the dispenser about twenty-five times.
Reath knew how to operate the dispenser and felt comfortable
using it. He knew that it was good practice to make sure the water
valve was closed before starting the water flow. And Reath
generally followed this practice before the accident. He would
“open it up a little bit and hit start, and then crank it up.” But he
was not always as “vigilant” as he could be in following this
practice. On occasions when Reath strayed from these procedures,

1. PSI stands for pounds per square inch, and it is a unit of
pressure commonly used to measure the force exerted by a fluid
like water or air. For context, the PSI of a sink faucet is generally
below sixty. Showerheads generally don’t exceed eighty PSI. See
Int’l Ass’n of Plumbing & Mech. Offs., 2024 Uniform Plumbing Code
30-36 (2023), https://epubs.iapmo.org/2024/UPC [https://perma.c
c/46AQ-LKVH].

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he would “just hope it wasn’t turned on full blast.” Sometimes
Reath would check the valve; sometimes he wouldn’t. And
historically, sometimes the valve would be open; sometimes it
wouldn’t.

¶8 In September 2020, Reath went to fill his water tank. In the
past, Reath had always been the person operating the keypad, but
this time he brought his “dear older friend” to help him. Reath
stood on the bed of his truck holding the hose while his friend
operated the keypad. Reath warned his friend saying, “[O]kay,
when we hit start, this thing’s going to take off, so make sure I’m
ready.” Reath was evidently not ready. Because the pressure
valve was not closed when his friend pushed the start button, the
pressure of the water immediately “pushed the hose out” of the
tank. This caused Reath to lose his balance and fall to the ground,
injuring his elbow and forehead.

¶9 After this accident, Reath learned that he could use
camlocks to secure the hose to the two-way valve system on his
tank. He has since used this method to fill his tank.

¶10 Reath brought a negligence action against Brian Head.
Brian Head moved for summary judgment, arguing, “The
undisputed facts show that Brian Head’s alleged breach was not
the proximate cause of Mr. Reath’s injuries. This is because by the
time of his injury Mr. Reath already knew everything about using
the water tank that [Brian Head] could have told him.” Following
the briefing and a hearing on the motion, the district court granted
Brian Head’s motion.

ISSUE AND STANDARD OF REVIEW

¶11 Reath argues that the district court erred in granting Brian
Head’s motion for summary judgment. “We review a grant of
summary judgment for correctness. We give no deference to the
district court’s legal conclusions and consider whether the court
correctly decided that no genuine issue of material fact existed.

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We review the facts in a light most favorable to the party against
whom summary judgment was granted.” Heslop v. Bear River
Mutual Ins. Co., 2017 UT 5, ¶ 15, 390 P.3d 314 (cleaned up).

ANALYSIS

¶12 “To prevail on a negligence claim, a plaintiff must establish
four essential elements: (1) that the defendant owed the plaintiff a
duty, (2) that the defendant breached that duty, (3) that the breach
of duty was the proximate cause of the plaintiff’s injury, and (4)
that the plaintiff in fact suffered injuries or damages.” Hunsaker v.
State, 870 P.2d 893, 897 (Utah 1993). “The issue of negligence, or
breach of a legal duty, is normally a question of fact for the jury.”
Kitchen v. Cal Gas Co., 821 P.2d 458, 461 (Utah Ct. App. 1991). In
contrast, “the question of whether a ‘duty’ exists is a question of
law.” Weber ex rel. Weber v. Springville City, 725 P.2d 1360, 1363
(Utah 1986) (cleaned up). But the questions of breach and
causation are questions of fact that should ordinarily be left to the
jury. See B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 25, 275 P.3d 228
(breach); Richmond v. Bateman, 2024 UT App 103, ¶ 42, 554 P.3d
341 (causation).

¶13 Here, Brian Head’s motion for summary judgment was
based on the premise that “Reath cannot satisfy the third required
element, causation, as a matter of law.” See Johnson v. Watts, 2005
UT App 122U, para. 6 (stating that claims “fail as a matter of law
for lack of evidence of causation”). But “causation is generally
determined by an examination of the facts, and questions of fact
are to be decided by the jury.” Arreguin-Leon v. Hadco Constr. LLC,
2018 UT App 225, ¶ 30, 438 P.3d 25 (cleaned up), aff’d, 2020 UT 59,
472 P.3d 927; see also Nielsen v. LeBaron, 2023 UT App 29, ¶ 21, 527
P.3d 1133, cert. denied, 534 P.3d 751 (Utah 2023) (“In short, rarely
can proximate cause be resolved without a finder of fact making
that determination . . . .”); Godesky v. Provo City Corp., 690 P.2d 541,
544 (Utah 1984) (“[P]roximate causation is generally a matter of
fact to be determined by the jury.”).

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¶14 “Summary judgment is appropriate on a fact question only
in the clearest cases, such as when reasonable minds cannot differ
as to the inferences to be drawn from the undisputed facts.” Nassi
v. Hatsis, 2023 UT App 9, ¶ 35, 525 P.3d 117 (cleaned up).
“Accordingly, summary judgment is generally improper on the
issue of negligence and only in clear-cut cases, with the exercise
of great caution, should a court take the issue of negligence from
the province of the jury.” Kitchen, 821 P.2d at 461; see also Williams
v. Melby, 699 P.2d 723, 725 (Utah 1985); Bowen v. Riverton City, 656
P.2d 434, 436 (Utah 1982).

¶15 Summary judgment was improper here because
reasonable minds can “differ as to the inferences to be drawn from
the undisputed facts.” See Nassi, 2023 UT App 9, ¶ 35 (cleaned up).
When the facts are analyzed in light of the applicable law, this is
not a clear-cut case. In other words, reasonable jurors properly
instructed will not necessarily reach the same conclusion. When
considering whether Brian Head’s breach of duty caused Reath’s
injuries, it is not a given that a properly instructed jury could draw
only one conclusion. This is particularly the case when we
consider the facts in light of the law applicable here—sections 343
and 343A of the Second Restatement of Torts.

¶16 Brian Head argues that these questions need not go to a
jury because Reath’s claims “fail as a matter of law for lack of
evidence of causation.” See Johnson, 2005 UT App 122U, para. 6.
Brian Head’s argument is that because Reath already knew about
the danger of the high-pressure hose, the lack of a warning, as a
matter of law, did not contribute to his harm. This argument is
inconsistent with current Utah law governing premises liability.

¶17 While the parties’ briefing focused on cases like House v.
Armour of Am., Inc., 929 P.2d 340 (Utah 1996), and Feasel v. Tracker
Marine LLC, 2021 UT 47, 496 P.3d 95, those are products liability
cases—and this is a premises liability case. While the two lines of
“cases share some common themes, the breach[es] alleged in
House [and Feasel] arose out of a wholly separate duty found in a

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Reath v. Brian Head Town

wholly separate section of the Restatement.” Hale v. Beckstead,
2005 UT 24, ¶ 18, 116 P.3d 263. 2

¶18 Sections 343 and 343A of the Second Restatement of Torts
establish the “duty of care that possessors of land in Utah owe to
invitees upon their property.” Id. ¶ 7; see also Coburn v. Whitaker
Constr. Co., 2019 UT 24, ¶ 12, 445 P.3d 446; English v. Kienke, 848
P.2d 153, 156 (Utah 1993); Downham v. Arbuckle, 2021 UT App 121,
¶ 13, 502 P.3d 312; Laws v. Blanding City, 893 P.2d 1083, 1085 (Utah
Ct. App. 1995). And thus the question of whether a party breached
its duty and whether that breach caused the plaintiff’s injuries
should be considered in light of sections 343 and 343A. 3
Accordingly, our determination on whether reasonable minds can
differ as to the outcome of this case must be made in light of those
sections.

¶19 Section 343 reads,

A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the
land if, but only if, he (a) knows or by the exercise of
reasonable care would discover the condition, and
should realize that it involves an unreasonable risk
of harm to such invitees, and (b) should expect that
they will not discover or realize the danger, or will
fail to protect themselves against it, and (c) fails to
exercise reasonable care to protect them against the
danger.

2. Prior to oral argument we asked the parties to come to
argument prepared to discuss the Restatement sections and
associated case law.

3. Indeed, the model jury instructions relevant to this case borrow
directly from these sections of the Restatement. See Model Utah
Jury Instructions 2d CV1102, https://legacy.utcourts.gov/muji/?cat=
1 [https://perma.cc/YZ4H-NZBL].

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Reath v. Brian Head Town

Restatement (Second) of Torts § 343 (Am. L. Inst. 1965) (emphasis
added).

¶20 As expressly relevant and highlighted here, section 343
makes clear that a possessor of land has a duty to invitees if the
possessor knows of the condition, should realize it involves an
unreasonable risk, should expect invitees will fail to protect
themselves against it, and fails to exercise reasonable care to
protect invitees.

¶21 At oral argument, Brian Head conceded that Reath was an
invitee. Brian Head was well aware of how the bulk water
dispenser worked. The undisputed facts reflect that Brian Head
knew that the water pressure could be comparable to that of “a
fire hose.” And it knew that, given the setup of the bulk water
dispenser, it was possible (indeed somewhat likely) that although
no water appeared to be flowing from the dispenser, the valve
could nevertheless be completely open. This occurred anytime a
previous user let the dispenser stop after it had delivered the
requested amount but that user failed to close the valve. Given
this configuration, the next user would sometimes encounter an
open valve, sometimes a closed valve. This unique set up—
combined with the high water pressure of the dispenser—
arguably created an unreasonable risk that Brian Head should
have foreseen—or at least a jury could so find. And given the
unpredictable nature of the risk, this may be a situation where
invitees will fail to protect themselves. Under the undisputed
facts, construed in Reath’s favor, Brian Head knew all of this.
Again, we need not answer these questions because those are
issues of fact that ought to be addressed by a jury. But there’s
enough information in the record to suggest that this might be the
case and that reasonable minds could differ on these questions.

¶22 Section 343A reads, in its entirety,

(1) A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or

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condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate
the harm despite such knowledge or obviousness.

(2) In determining whether the possessor should
anticipate harm from a known or obvious danger,
the fact that the invitee is entitled to make use of
public land, or of the facilities of a public utility, is a
factor of importance indicating that the harm should
be anticipated.

Id. § 343A (emphasis added).

¶23 While 343A is “often referred to as the ‘open and obvious
danger rule,’ the Restatement provisions are actually
substantially different from the old common law rule governing
landowner liability bearing the same name.” Hale, 2005 UT 24, ¶ 7.
And sections 343 and 343A should be read together. See
Restatement (Second) of Torts § 343 cmt. a (Am. L. Inst. 1965)
(“This Section should be read together with § 343A, which deals
with the effect of the fact that the condition is known to the invitee,
or is obvious to him, as well as the fact that the invitee is a patron
of a public utility.” (emphasis added)). Here, the danger of the
water pressure was perhaps not open and obvious, but Brian
Head’s argument rests on the assertion that it was known—an
assertion that places this factual scenario squarely within the
language of sections 343 and 343A.

¶24 Comment f to section 343A reads in part,

There are . . . cases in which the possessor of land
can and should anticipate that the dangerous
condition will cause physical harm to the invitee
notwithstanding its known or obvious danger. In such
cases the possessor is not relieved of the duty of
reasonable care which he owes to the invitee for his
protection. This duty may require him to warn the
invitee, or to take other reasonable steps to protect

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Reath v. Brian Head Town

him, against the known or obvious condition or
activity, if the possessor has reason to expect that the
invitee will nevertheless suffer physical harm.

Id. § 343A cmt. f (emphasis added).

¶25 Thus, both section 343 and section 343A give expression to
the idea that sometimes landowners must protect business
invitees from dangers when the landowner knows or should
know that a business invitee may be injured even if the dangers
are known or obvious—where the landowner should expect that
the business invitees “will fail to protect themselves against [the
danger],” id. § 343, or should anticipate harm, id. § 343A. And
whether the landowner should anticipate those things is a
quintessential jury question.

¶26 For example, in Hale v. Beckstead, 2005 UT 24, 116 P.3d 263,
a painter working in someone’s home stepped off an unfinished
balcony and was injured. Id. ¶ 3. The district court granted
summary judgment in favor of the homeowner, reasoning that
because the danger of the unfinished balcony was open and
obvious, the homeowner had no duty to warn. Id. ¶ 4. This court
affirmed that grant of summary judgment, but the Utah Supreme
Court reversed. Id. ¶¶ 6, 40. Relying on the Second Restatement of
Torts, the Utah Supreme Court explained,

Where an invitee’s attention may be distracted, such
that he will not discover what is obvious, or will
forget what he has discovered, or fail to protect
himself against it, a possessor of land may be liable
for breaching his duty of care if he fails to warn or
to take other reasonable steps to protect the invitee.
A possessor of land may also be liable for injuries an
invitee sustains if the possessor has reason to
believe that the invitee will proceed to encounter the
known or obvious danger because to a reasonable
man in his position the advantages of doing so
would outweigh the apparent risk. While the invitee

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Reath v. Brian Head Town

may also share responsibility for his injuries, he may
still recover from the defendant in proportion to the
defendant’s fault. Importantly, the invitee’s
negligence is not conclusive in determining the duty
of the possessor, or whether he has acted reasonably
under the circumstances.

Id. ¶ 26 (cleaned up).

¶27 As previously discussed, there is some evidence to support
a finding that Brian Head knew that users might fail to protect
themselves against the danger of the high-pressure hose. Under
section 343A, even if Reath knew of the danger, Brian Head may
still be liable if Brian Head should have realized Reath would be
likely to forget or overlook a risk that Brian Head knew was
present. Again, an invitee’s knowledge of a danger does not
foreclose the possibility of a landowner’s liability. Yet that was the
express basis of Brian Head’s motion for summary judgment.

¶28 In Downham v. Arbuckle, 2021 UT App 121, 502 P.3d 312,
this court described the open and obvious danger rule as
requiring a two-step analysis. Id. ¶ 14. Step one is to consider
whether the danger was known or obvious. Id. Step two involves
considering whether the landowner should have nevertheless
anticipated harm. Id. Under the language of the Restatement and
the relevant caselaw, both steps are required and neither is
dispositive. See id. ¶¶ 13–15.

¶29 In its motion to dismiss, Brian Head suggests that Reath
cannot recover on a negligence claim because he “already knew
everything about using the water tank that [Brian Head] could
have told him.” But to say that Reath’s prior knowledge of this
potential harm absolutely bars any recovery is to skip step two
altogether. That cannot be the correct analysis under our current
law because “a possessor may still be liable if the possessor should
have anticipated harm despite the invitee’s knowledge of the
danger or the danger’s obviousness.” Id. ¶ 13 (cleaned up).

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Reath v. Brian Head Town

¶30 Even outside sections 343 and 343A, Utah courts have
determined in other contexts that a plaintiff knowing information
that also could have been included in a warning does not alone
merit summary judgment. For example, Feasel v. Tracker Marine
LLC, 2021 UT 47, 496 P.3d 95, is a products liability case in which
the plaintiff argued that the defendant failed to properly warn the
driver of a boat of potential dangers. Id. ¶ 1. There, two men were
riding in a fishing boat when it struck an unknown object in the
water, throwing them both from the boat. Id. ¶ 6. Without a driver
on board, the boat turned right and began to circle tightly in the
water, trapping and repeatedly hitting one of the passengers. Id.
¶¶ 5–6. The boat was equipped with a safety lanyard device
designed to prevent incidents like this by killing the engine when
the driver was thrown from the boat. Id. ¶ 4. But the driver was
not wearing the lanyard in this incident. Id. ¶ 6. One of the
passengers sued the boat manufacturer “for failure to adequately
warn of the dangers associated with not wearing the lanyard.” Id.
¶ 7. The district court granted summary judgment in favor of the
manufacturer, explaining that “because [the plaintiff] was aware
of the warnings, any additional warnings would not have
changed his behavior.” Id. ¶ 16. This court reversed that grant,
and the Utah Supreme Court upheld that reversal explaining that
“in this case, whether [the manufacturer] owed a duty to warn
[the plaintiff] does not turn on the personal understanding [the
plaintiff] may have had of the dangers associated with not
wearing the safety lanyard.” Id. ¶ 31.

¶31 It cannot be said that because a person knew at one time
the danger something posed, that the owner of that thing can
never be held liable for the breach of a duty of care. This is equally
true in a case such as this where Brian Head might have “reason
to expect that the invitee will nevertheless suffer physical harm.”
See Restatement (Second) of Torts § 343A cmt. f (Am. L. Inst. 1965).

¶32 To be sure, there are cases in which, as a matter of law,
there is no causal connection and thus no negligence. But even the
cases that Brian Head cites are not analogous to the case at hand.

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Reath v. Brian Head Town

See, e.g., Wood v. United Parcel Service, Inc., 2021 UT 49, ¶ 13, 496
P.3d 139; Crestwood Cove Apartments Bus. Trust v. Turner, 2007 UT
48, ¶ 43, 164 P.3d 1247; Harline v. Barker, 912 P.2d 433, 439 (Utah
1996); Mitchell v. Pearson Enters., 697 P.2d 240, 245 (Utah 1985);
Breton v. Clyde Snow & Sessions, 2013 UT App 65, ¶ 10, 299 P.3d 13;
Bansasine v. Bodell, 927 P.2d 675, 676–77 (Utah Ct. App. 1996).

¶33 For example, Brian Head cites Bansasine v. Bodell, 927 P.2d
675 (Utah Ct. App. 1996). In that case, a passenger of a vehicle was
shot and killed by another driver after the driver of the
passenger’s vehicle engaged in some reckless driving. Id. at 676.
The passenger’s daughter brought a negligence action against the
driver of the passenger’s car, arguing that the driver’s reckless
driving was the proximate cause of her father’s death. Id.

¶34 There, the court determined “that a reasonable juror could
not find that [the] defendant should foresee that another driver on
the road would fire a gun into his car simply because he shined
his high beams on that person, passed him, then sped up as the
driver tried to approach.” Id. at 677. The court reasoned that such
a conclusion would be unreasonable and, thus, reasonable minds
could not differ as to the outcome of that case. See id. (“If such a
response were so common as to make it foreseeable, the streets
and highways of this country would be empty.”). 4

4. In 2024, these sentiments seem quaint. Bansasine v. Bodell, 927
P.2d 675 (Utah Ct. App. 1996), is an interesting study in
determinations of reasonable foreseeability. Two men engaged in
a significant road rage event involving alternately blinding each
other with high beams, lane changes, hand gestures, and pistol
brandishing, etc. Id. at 676. The pistol was fired, and a passenger
in the other vehicle was hit and later died. Id. An heir of the dead
passenger filed suit against the driver of the vehicle in which her
father had been a passenger. Id. The driver was granted summary
judgment and this court affirmed, stating, “The trial court
(continued…)

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¶35 The situation here is a far cry from the facts of Bansasine.
Where there the act of a driver shooting into another car was
determined to be so unreasonable as to be objectively
unpredictable and thus cut off the chain of causation, here the
analogous question is whether Brian Head could reasonably have
foreseen Reath injuring himself as a result of its alleged negligence
or failure to warn. The answer to that question could be yes, no,
or maybe so, but it’s certainly not that no reasonable juror could
ever so find.

¶36 Finally, under Utah’s comparative fault scheme, it is
possible for both the acts of a plaintiff and a defendant to be
concurrent causes of harm. “Utah abandoned its contributory
negligence tort scheme in favor of a comparative fault theory of
tort liability when the state legislature enacted the Utah

properly held that under the facts of this case, [the] defendant
could not have foreseen that his ‘reckless driving’ would lead to
another driver firing into his car.” Id. at 678. This holding reflects
a bygone time. Indeed, this case’s precedential value is not only
limited to its facts but limited to its time. Would any reasonable
person say one could not now foresee what happened? Multiple
persons have been shot and killed in Utah road rage incidents just
while this case has been pending. Many appellate court cases arise
now from road rage incidents. See, e.g., State v. Archuleta, 2021 UT
App 66, ¶ 1, 492 P.3d 801; State v. Watson, 2021 UT App 37, ¶ 1,
485 P.3d 946; State v. Farnworth, 2018 UT App 23, ¶ 1, 414 P.3d
1053. Indeed, in Archuleta, Judge Orme wrote a concurring
opinion to register his “indignation at the intolerable increase in
‘road rage’ incidents, now quite commonplace in our fair state.”
Archuleta, 2021 UT App 66, ¶ 38 (Orme, J., concurring). He also
noted, based upon personal observation, that some of the “road
ragers” are members of the bar. He admonished: “Stop it! If you
are not inclined to stop it because it is the right thing to do, stop it
because you risk being shot or run off the road if you do not.” Id.
¶ 44. Thus, in present-day Utah, this type of incident is foreseeable
indeed.

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Comparative Negligence Act in 1973.” Hale, 2005 UT 24, ¶ 19. And
“[t]he 1973 act was subsequently revised and extended by the
Liability Reform Act of 1986, which maintained the comparative
liability regime while extending its scope.” Graves v. North E.
Services, Inc., 2015 UT 28, ¶ 44, 345 P.3d 619. “Under the prior
approach, a person who bore any portion of fault, no matter how
slight, for his own injuries was barred from recovering against the
primary tortfeasor.” Hale, 2005 UT 24, ¶ 19. Under current law,
“the fault of a person seeking recovery may not alone bar recovery
by that person.” Utah Code § 78B-5-818(1).

¶37 “In adopting this approach, the legislature has necessarily
disavowed any tort theory of recovery inconsistent with
comparative fault apportionment principles.” Hale, 2005 UT 24,
¶ 21. 5 Where Reath’s own negligence may at one time have
operated as a complete bar to recovery, it no longer does. We in
no way suggest that Reath is blameless—but he doesn’t have to
be to recover from Brian Head. It is quite possible that Reath bears
some fault, or most of the fault, for what happened to him. But it’s
also possible that Brian Head bears some. The weight of each
party’s fault is also a question for the jury when, as here,
reasonable minds could differ as to whether Brain Head breached
its duty and contributed to (or caused) Reath’s injury.

CONCLUSION

¶38 Because reasonable minds on a properly instructed jury
could differ as to the outcome of this case, and because Brian
Head’s motion to dismiss is based on the erroneous argument that

5. At oral argument Brian Head contended that it was making an
assumption of risk argument. However, “the doctrine of
‘assumption of risk,’ whereby a defendant is not liable for his
negligence toward a plaintiff who has voluntarily assumed a risk
of harm arising from the defendant’s negligent conduct, is no
longer recognized in Utah as a total bar to recovery.” Hale v.
Beckstead, 2005 UT 24, ¶ 21, 116 P.3d 263 (cleaned up).

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knowing information that could have been contained in a missing
warning precludes recovery, we reverse the lower court’s grant of
summary judgment and remand this matter for further
proceedings.

20240160-CA 16 2024 UT App 194