Yirak v. Dan’s Super Markets et al., 188 P.3d 487 (Utah Ct. App. 2008): UTAH COURT OF APPEALS UPHOLDS PASSIVE RETAILER DOCTRINE:

Products liability – Passive retailer exception - The plaintiff filed suit after having sustained injuries from eating glass in a prepackaged salad purchased from the defendant supermarket. The defendant moved for, and was granted, summary judgment under the passive retailer exception to strict liability under Utah’s Product Liability Act, Utah Code Ann. §§ 78-15-1 to -7 (2002). The plaintiff argued that the district court erred in granting the defendant supermarket summary judgment because the glass that caused her injury “could have entered into the bag while in” the defendant supermarket’s control. 

The Utah Court of Appeals rejected the plaintiff’s argument, finding that the plaintiff had failed to identify any contested material facts or legal flaws in the district court’s application of the passive retailer exception. Significant to the court’s decision was the fact that the plaintiff had put forth no evidence that the defendant supermarket opened the prepackaged salad while it was in its possession, that the bag was open or had any holes in it when it was sold to her, that the defendant supermarket knew there was glass in the salad, or that any other customer found glass in salad purchased from the defendant before or after her purchase.   

Thus, the court found the defendant supermarket had carried its burden under the passive retailer exception and affirmed summary judgment in its favor.

Peck v. State, 2008 UT 39 UTAH COURT OF APPEALS INTERPRETS INCARCERATION EXCEPTION TO WAIVER OF GOVERNMENTAL IMMUNITY:

Governmental immunity – Negligence - The plaintiff was arrested for drunk driving, placed in handcuffs, and asked to stand in front of a police cruiser while a space was cleared for him in the back seat. The plaintiff stood in front of the cruiser, but refused to comply with the troopers’ repeated requests that he turn and face the vehicle. In response, one of the troopers attempted to physically restrain the plaintiff by forcing him to the ground. The trooper slipped on the wet parking lot, allowing the plaintiff to fall on his face with his hands cuffed behind him. 

The plaintiff filed suit against the State for personal injuries caused by the negligence of the trooper in allowing him to fall on his face. In response, the State filed a motion to dismiss based on governmental immunity, but that motion was denied.

On appeal, the Utah Court of Appeals found that the district court had misinterpreted Utah’s incarceration exception to the waiver of immunity, Utah Code Ann. § 63-30d-301(5)(j), which provides immunity for claims arising out of, in connection with, or resulting from a person’s incarceration in any state prison, county or city jail, or other place of legal confinement.  The court found that the plaintiff’s injury arose out of his incarceration in a “place of legal confinement,” and accordingly, was covered by the plain language of the exception. Accordingly, the court reversed the district court’s ruling and remanded the case.  

Jex v. JRA, 2008 UT 67 UTAH SUPREME COURT ANALYZES NOTICE ISSUES IN PREMISES LIABILITY CASE:

            Jex was a customer at a deli owned by the defendant. One morning after a snow storm, the deli owner arrived early and removed the snow from the front of the store. Jex was the first customer. After entering the store, Jex slipped on a small puddle that had formed on the wood floor. Jex was injured and sued the store owner. 

            Jex asserted two theories of liability. She claimed that the dangerous condition was either of a permanent nature or of a temporary nature. First, she claimed that the deli’s wood floor that was slippery-when-wet was a permanent condition and was an inherently dangerous mode of operation. The Utah Supreme Court found that the construction and maintenance of a slippery-when-wet floor surface does not of itself constitute negligence. The court distinguished previous cases where liability was found because in these previous cases the store owners had taken additional actions that made the floor dangerous. The court dismissed this claim.

            Jex also argued the condition was of a temporary nature. The court divided its analysis of this claim. First, the court analyzed if the puddle was made by Jex herself or by a third party. If so, the court found that there could be no liability because the deli did not have notice and opportunity to remedy the condition prior to the incident.

            However, the court found that if the owner or store employee created the condition, then the deli could be found liability. The court recognized that it had not before analyzed the notice requirements for a temporary dangerous condition created by the store owner. The court found that, as in cases involving permanent dangerous conditions, a plaintiff is not required to prove that the owner had notice of the temporary condition when the owner created the condition. 

            The case was remanded to the trial court for the jury to determine who created the puddle.

Downing v. Hyland Pharmacy, 2008 UT 65 UTAH SUPREME COURT CONSIDERS LEARNED INTERMEDIARY DOCTRINE AS APPLIED TO PHARMACISTS:

            In this case, Downing sued his pharmacy for filling prescriptions of fen-phen after the drug was withdrawn from the market by the FDA. The pharmacy was granted summary judgment by the trial under the Schaerrer decision which adopted the learned intermediary rule. This rule protects pharmacists from liability if they fill a prescription as directed by the manufacturer or physician. 

            The Utah Supreme Court found that the Schaerrer decision concerned a products liability claim. The court distinguished the Schaerrer claim from the negligence claim asserted by Downing. The court found that the learned intermediary rule does not necessarily bar a claim for negligence and that pharmacists have a duty of reasonable care. The court remanded the case to determine if the pharmacists acted reasonably.

Summaries provided by Andrew D. Wright