                  This opinion is subject to revision before final
                       publication in the Pacific Reporter

                                  2019 UT 14


                                     IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              BECKY SUMSION,
                                 Appellant,
                                        v.
 J. LYNE ROBERTS AND SONS, INC. and H&H STEEL FABRICATORS, INC.,
                            Appellees.

                               No. 20180347
                            Filed April 26, 2019

                             On Direct Appeal

                     Fourth District, Utah County
                    The Honorable Lynn W. Davis
                            No. 160400033

                                  Attorneys:
        Allen K. Young, Tyler S. Young, Provo, for appellant
  Vincent J. Velardo, Thomas J. Rollins, Salt Lake City, for appellee
                    J. Lyne Roberts and Sons, Inc.
    S. Spencer Brown, Jack D. Smart, Salt Lake City, for appellee
                   H&H Steel Fabricators, Inc.


 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
 which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
                  and JUSTICE PETERSEN joined.


   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
    ¶1 In this case we are asked to decide whether a contractor who
created an artificial condition on the land of another owes a duty of
reasonable care to the employees of the land owner. Becky Sumsion,
the plaintiff-appellant in this case, contends that we answered this
question in the affirmative in Tallman v. City of Hurricane, 1999 UT 55,
985 P.2d 892. She argues that Tallman announced a categorical rule
establishing a duty of all contractors who create artificial conditions
             SUMSION v. J. LYNE ROBERTS AND SONS, INC.
                         Opinion of the Court


on the land of another, which extends to all foreseeable users of such
conditions. The defendants-appellees see the matter differently. They
insist that the existence of a duty in this circumstance depends on an
analysis of the factors set forth in AMS Salt Industries, Inc. v.
Magnesium Corp. of America, 942 P.2d 315 (Utah 1997).
    ¶2 The district court agreed with the defendants. It granted
their motion to dismiss the plaintiff’s claims on the ground that she
had failed to carry the burden of presenting grounds for the
establishment of a duty under AMS Salt and its progeny. We reverse
and remand. We hold that the Restatement (Second) of Torts
framework endorsed in Tallman, and not the factors set forth in AMS
Salt, controls in a case like this one. And we thus reverse the district
court’s decision, which was premised on a contrary conclusion. In so
doing, however, we do not conclusively resolve the extent of a
contractor’s duty in a case like this one. We stop short of resolving
that question because the parties failed to brief a few dimensions of
the relevant duty inquiry under the Restatement (Second) of Torts
framework adopted in Tallman. Instead we offer some points of
clarification under the Tallman framework in a manner that we hope
will be useful to the parties and the district court on remand.
                                   I
   ¶3 In 2012, the City of Springville decided to construct a “splash
pad” recreation area in a public park. The City retained MGB+A as
the lead architect. MGB+A hired JRCA Architects, Inc. (“JRCA”) to
help design a pump house that would host the pumps supplying
water to the splash pad. The city contracted with J. Lyne Roberts and
Sons, Inc. (“JLR”) to construct the splash pad and pump house. JLR
was instructed to install a ladder in the pump house to access the
pump pit, which housed some of the controls. JLR subcontracted
with H&H Steel Fabricators, Inc. (“H&H”) to manufacture the
ladder. The entire splash pad project was completed in April 2013.
   ¶4 Becky Sumsion began working for the City in May 2014. Her
duties required her to make regular adjustments to the pumps
located in the pump pit. On June 2, 2015, Sumsion fell off the pump
house ladder as she was climbing down into the pump pit and broke
her ankle. That injury gave rise to this suit.
   ¶5 Sumsion first sued JLR alleging negligence related to the
design and manufacture of the ladder in question. Four months later,
she amended her complaint to include MGB+A, JRCA, and H&H.
The claim against each party was substantially the same—failure to
properly design and construct the access ladder leading to the pump

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                        Opinion of the Court

pit resulted in her injury. MGB+A and JRCA settled claims against
them, leaving JLR and H&H as the only named defendants.
    ¶6 In September 2017, H&H and JLR filed motions for
summary judgment. They both contended that summary judgment
was appropriate because they owed Sumsion no duty of care. They
further argued that Sumsion could not prove that her fall was
directly and proximately caused by a defect in the ladder.
    ¶7 The district court granted JLR and H&H’s motions for
summary judgment on the ground that they did not owe Sumsion a
legal duty. In framing its decision, the court first cited what it
believed to be the relevant duty standard—a standard requiring
consideration of four factors: “(1) the extent that the [defendant]
could foresee that its actions would cause harm; (2) the likelihood of
injury; (3) the magnitude of the burden of guarding against it; and
(4) the consequences of placing the burden on the defendant.”
Niemela v. Imperial Mfg., Inc., 2011 UT App 333, ¶ 19, 263 P.3d 1191
(quoting Slisze v. Stanley-Bostitch, 1999 UT 20, ¶ 12, 979 P.2d 317).
Sumsion offered no substantial analysis on the last three of these
factors. She instead argued that as an employee of the City she was a
foreseeable user of the ladder. And she insisted that JLR and H&H
thus owed her a duty to provide a reasonably safe ladder for her
authorized use.
    ¶8 Sumsion cited Tallman v. City of Hurricane, 1999 UT 55, 985
P.2d 892, in support of her position. In Tallman we held that “Utah
follows the foreseeability rule set forth in the Restatement (Second)
of Torts and followed by a majority of states” in assessing whether a
manufacturer of an artificial condition owes another a duty of care.
Id. ¶ 8. The Restatement rule first states:
      One who on behalf of the possessor of land erects a
      structure or creates any other condition thereon is
      subject to liability to others upon or outside of the land
      for physical harm caused to them by the dangerous
      character of the structure or condition after his work
      has been accepted by the possessor, under the same
      rules as those determining the liability of one who as
      manufacturer or independent contractor makes a
      chattel for the use of others.
RESTATEMENT (SECOND) OF TORTS § 385 (1965). Subsequent sections
of the Restatement provide further elaboration. They identify
standards for determining the duty for one who makes a chattel for
the use of others. See id. §§ 394–98, 403–04.

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              SUMSION v. J. LYNE ROBERTS AND SONS, INC.
                         Opinion of the Court


    ¶9 The district court acknowledged the Tallman holding and its
adoption of the Restatement. But it concluded that Tallman speaks
only to the first of the four factors set forth in Niemela—foreseeability
of the harm. And it read Tallman to say that harm is foreseeable only
in instances where a contractor knew, or had reason to know, that
the condition it created was, or was likely to be, dangerous for use.
See id. § 394. The court held that Sumsion had provided insufficient
analysis to reach that conclusion.
   ¶10 The court further held that Sumsion had the burden of
addressing the other Niemela factors—the likelihood of the injury, the
magnitude of the burden of guarding against it, and the
consequences of placing the burden on the defendant. See Niemela,
2011 UT App 333, ¶ 19. And because she failed to do so, the court
determined that summary judgment in JLR and H&H’s favor was
appropriate. Sumsion then filed this appeal.
                                   II
   ¶11 Sumsion contends that Tallman alone resolves the issue
before us. We agree that Tallman controls in this case and thus hold
that the district court applied the wrong legal standard in dismissing
Sumsion’s claims. In so holding we do not conclusively resolve the
question whether the defendants owe plaintiff a duty here, however.
We stop short of resolving that question due to inadequacies in the
parties’ briefing—inadequacies that, in turn, stem from imprecisions
in our decision in Tallman. We highlight some of the unanswered
questions and imprecisions in the law in our discussion below, in the
hopes of providing guidance for the parties and the district court on
remand.
                                   A
   ¶12 Duty is one of four essential elements a plaintiff must prove
to establish negligence.1 “As a general rule, we all have a duty to
exercise care when engaging in affirmative conduct that creates a

_____________________________________________________________

   1  Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993) (“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.”).


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risk of physical harm to others.” B.R. ex rel. Jeffs v. West, 2012 UT 11,
¶ 21, 275 P.3d 228. Our courts, however, have carved out some
exceptions to this general rule. Historically, one such exception
functioned to cut off a contractor’s liability to third parties after the
contractee accepted the work. Tallman v. City of Hurricane, 1999 UT
55, ¶ 7, 985 P.2d 892. This “acceptance” doctrine found its roots in
English courts, which premised a contractor’s liability on privity of
contract. See Winterbottom v. Wright (1842) 152 Eng. Rep. 402. The
doctrine began to fade out of American jurisprudence in the
mid-twentieth century in favor of a rule based on the foreseeability
of the harm.2 We noted the shift towards the foreseeability rule in
Leininger v. Stearns-Roger Manufacturing Co., 404 P.2d 33, 36 (Utah
1965). But it wasn’t until our Tallman decision that we abrogated the
old “acceptance” doctrine.
    ¶13 In Tallman we “announce[d] unambiguously that Utah
follows the foreseeability rule set forth in the Restatement (Second)
of Torts and followed by a majority of states.” 1999 UT 55, ¶ 8. In so
doing we eliminated the “archaic principle of privity” inherent in the
acceptance doctrine. Id. But we did not clearly establish the terms
and conditions of a contractor’s duty to third persons—to whom the
duty is owed, when it is imposed, and the relevant standard of care.
    ¶14 The Tallman opinion stated that “[t]he creator of an artificial
condition on land may be liable to others . . . for physical harm
caused by its dangerous nature.” Id. ¶ 9. In that case we also noted
that “[t]he subsequent acceptance by the possessor of the completed
condition does not abrogate this duty.” Id. And we cited section 385
of the Restatement to define the breadth of a contractor’s potential
liability:
       One who on behalf of the possessor of land erects a
       structure or creates any other condition thereon is
       subject to liability to others upon or outside of the land
       for physical harm caused to them by the dangerous
       character of the structure or condition after his work
       has been accepted by the possessor, under the same
       rules as those determining the liability of one who as

_____________________________________________________________
   2 See, e.g., Hanna v. Fletcher, 231 F.2d 469 (D.C. Cir. 1956), cert.
denied, 351 U.S. 989 (1956); Montijo v. Swift, 33 Cal. Rptr. 133 (Cal. Ct.
App. 1963); MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916);
Evans v. Otis Elevator Co., 168 A.2d 573 (Pa. 1961).


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             SUMSION v. J. LYNE ROBERTS AND SONS, INC.
                        Opinion of the Court


      manufacturer or independent contractor makes a
      chattel for the use of others.
Id. (quoting RESTATEMENT (SECOND) OF TORTS § 385 (1965)).
    ¶15 In Tallman we said that the rules for “determining the
liability of one who as manufacturer or independent contractor
makes a chattel for the use of others” are in turn defined in sections
394–398 and 403–404. Id. ¶ 9. Yet we never delved into any of the
details of the cited Restatement sections. Instead we analogized
“[t]he digging of an unsafe and inherently dangerous trench”—the
alleged cause of the Tallman’s injury—“to the manufacture of an
unfinished, inherently dangerous product.” Id. We then quoted the
Restatement section underscoring “the nature of the duty owed by
the supplier of an unfinished, inherently dangerous product.” Id.
¶ 10.
      One who supplies directly or through a third person a
      chattel for another’s use, knowing or having reason to
      know that the chattel is unlikely to be made
      reasonably safe before being put to a use which the
      supplier should expect it to be put, is subject to
      liability for physical harm caused by such use to those
      whom the supplier should expect to use the chattel or
      to be endangered by its probable use.
Id. (emphasis omitted) (quoting RESTATEMENT (SECOND) OF TORTS
§ 389). Beyond reciting this language, we did little to explain which
of it—if any—speaks to the conditions for the imposition of a duty
on a contractor. And we at least arguably offered conflicting signals
on the basis for the imposition of a duty.
    ¶16 At one point we suggested that a duty of care exists “where
the supplier of a chattel knows or has reason to know that the chattel
‘is unlikely to be made reasonably safe before being put to a use
which the supplier should expect it to be put.’” Id. ¶ 12 (quoting
RESTATEMENT (SECOND) OF TORTS § 389). And we highlighted a
number of material facts that needed to be resolved before we could
conclude that a duty existed, including the contractor’s knowledge
of the dangerous condition, the foreseeability of the harm, and the
likelihood of injury. Id. ¶ 24. Elsewhere, however, we made
categorical statements seemingly in tension with the above—that
“the creator of an artificial condition on land has a duty to perform
its work with reasonable care to avoid harm to people who might
foreseeably come in contact with the condition,” id. ¶ 20, and that a
contractor has a “duty to take reasonable precautions to protect

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persons exposed” to a condition if it “created an inherently
dangerous condition,” id. ¶ 19.
    ¶17 This tension within the Tallman opinion leaves some
unanswered questions that have yet to be resolved in this case. See
infra ¶ 28. But Tallman is clear in concluding that the Restatement’s
conception of duty controls in cases like this one. We thus reject the
argument advanced by JLR and H&H and accepted by the district
court—that our pre-Tallman cases (specifically AMS Salt Industries v.
Magnesium Corp. of America and Slisze v. Stanley-Bostitch) control the
outcome of this case. Those cases, which detail four factors courts
should consider when assessing whether a contractor owes a third
person a duty of care, are distinguishable.
    ¶18 AMS Salt Industries, Inc. v. Magnesium Corp. of America, 942
P.2d 315 (Utah 1997) concerned a dispute between two adjacent
facilities (AMS and Mag Corp) along the shores of the Great Salt
Lake. Both facilities pumped water out of the lake and into ponds
where it would then evaporate leaving behind salt that could be
extracted. And both facilities employed a system of dikes to keep
water from escaping back into the lake. Mag Corp’s dikes were
breached during a severe storm. That breach resulted in the
destruction of some of AMS’s ponds and served as the basis for
AMS’s suit against Mag Corp. AMS argued that Mag Corp owed it a
duty to construct and maintain its own dikes. We rejected that
argument, going so far as to say that it would be “absurd” in those
circumstances to hold that “Mag Corp owed some legally actionable
duty to AMS.” Id. at 324.
   ¶19 JLR and H&H believe that our holding in AMS Salt naturally
extends to this case. But the facts at issue in AMS Salt bear little
resemblance to the facts at issue here. In contrast to the present
case—where Sumsion has sued JLR and H&H for the negligent
construction of an artificial condition on Springville City’s land—the
basis for AMS’s suit was “that Mag Corp was negligent in the
design, construction, and maintenance of Mag Corp’s perimeter
dike” on Mag Corp’s own land. Id. at 318. So we see little reason for
extending what we said about duty in AMS Salt to this case.
    ¶20 Slisze v. Stanley-Bostitch, 979 P.2d 317 (Utah 1999) is likewise
distinguishable. There we dealt with a construction worker who
sustained a head injury following an accident involving the use of a
nail gun. The worker sought to recover under a theory that the
manufacturer marketed a non-defective product when a safer model
was available. That theory of recovery is quite different from the one
presented here. Sumsion is suing JLR and H&H for their negligence

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             SUMSION v. J. LYNE ROBERTS AND SONS, INC.
                        Opinion of the Court


in designing and manufacturing the actual chattel that was installed
in the pump house. She is not seeking to prevail on a theory of
negligent marketing, but rather on a theory that the chattel itself was
unsafe. We thus reject the call to apply the duty standard discussed
in Slisze to the present case.
    ¶21 The four-factor test detailed in both AMS Salt and Slisze may
be relevant in future cases, but it does not define the scope of a
contractor’s duty in a case such as this one. Although some aspects
of Tallman may be confusing, one thing is clear: we use the
Restatement (Second) of Torts to define the scope of a contractor’s
duty to third parties in a case in which the contractor built an
artificial condition on land.
    ¶22 Beyond this the Tallman opinion is less than a model of
clarity. See supra ¶¶ 14–17. The Restatement, however, establishes a
clear framework for assessing the scope of a contractor’s duty. It
does so by first providing:
      One who on behalf of the possessor of land erects a
      structure or creates any other condition thereon is
      subject to liability to others upon or outside of the
      land . . . under the same rules as those determining the
      liability of one who as manufacturer or independent
      contractor makes a chattel for the use of others.
RESTATEMENT (SECOND) OF TORTS § 385. “The rules determining the
liability as one who as manufacturer or independent contractor
makes a chattel for the use of others” are subsequently defined “in
§§ 394–398, and §§ 403–404.” Id. § 385 cmt. a. Each of those sections
establishes and defines the scope of a manufacturer’s duty,
dependent on the nature of the manufactured chattel. For instance,
section 395 defines the duty imposed on a manufacturer who
manufactures a chattel “which, unless carefully made, he should
recognize as involving an unreasonable risk of causing physical
harm.” Id. § 395. Section 394, in contrast, provides that those who
manufacture a chattel that is known to be dangerous owe the same
duty as a supplier of a chattel that is known to be dangerous. Id.
§ 394. And the rules defining the scope of such a supplier’s duty are
established in sections 388–390. Id. § 394 cmt. a.
    ¶23 Sections 397 and 398 speak to two distinct duties—one
where a chattel is compounded under a secret formula and another
where a chattel is made under a dangerous plan or design. Id.
§§ 397–98. And sections 403 and 404 do not themselves establish
separate duty standards. They instead direct us to sections

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previously referenced. Section 403 essentially mirrors section 394. It
applies where an independent contractor creates a chattel known to
be dangerous and applies the same liability rules that apply to
suppliers of such chattel. Id. § 403; see also id. §§ 388–90. And
section 404 applies where an independent contractor negligently
“makes, rebuilds, or repairs a chattel for another.” Id. § 404. Such a
contractor is “subject to the same liability as that imposed” “under
the rules stated in §§ 395-398.” Id. § 404 & cmt. a. Because each of
these cited Restatement sections establishes a duty and fully explains
the scope of that duty, the task before us in this case is to determine
which Restatement section applies and determine whether the duty
identified therein extends to Sumsion.
    ¶24 The district court failed to do this. Its resolution was based
on an application of the AMS Salt factors rather than the duty
analysis Tallman demands. The court opened its opinion by citing the
AMS Salt factors and explaining that Sumsion failed to adequately
brief each of them. And it concluded in like manner—noting that
Sumsion failed to “offer any analysis whatsoever respecting the
other applicable factors courts should consider when determining
whether a duty of care exists.” The court considered some of the
Restatement’s language. But it did so merely in an attempt to apply
the “foreseeability of harm” factor under AMS Salt. And as
previously stated, we do not see the AMS Salt framework as
controlling the duty analysis in a case like this one. That alone gives
us cause to reverse.
    ¶25 The court further erred when it determined that Sumsion
was required to prove things that have nothing to do with whether
JLR and H&H owe her a duty of care. For instance, the court stated
that Sumsion was required to “show how [JLR and H&H] failed to
exercise reasonable care in the manufacture of the ladder.” And it
held that Sumsion was required to demonstrate “how the ladder
posed an unreasonable risk of harm to foreseeable users.” Both of
these considerations go to “the specifics of the alleged tortious
conduct” and thus are outside the bounds of a duty analysis. See B.R.
ex rel. Jeffs, 2012 UT 11, ¶ 25 (quoting Normandeau v. Hanson Equip.,
Inc., 2009 UT 44, ¶ 20, 215 P.3d 152). We reverse the decision of the
district court for these reasons.
                                  B
   ¶26 In a typical case we might explain the standard that should
be applied on remand. But this is not a typical case. We lack the kind
of briefing that would help us confidently resolve the question
before us. And in the absence of such briefing, we choose not to

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provide a definitive answer to that question. See Zimmerman v. Univ.
of Utah, 2018 UT 1, ¶ 28, 417 P.3d 78 (reaching the same conclusion in
the context of a certified question from a federal district court).
    ¶27 We are generally limited to considering issues raised by the
parties. Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903. But merely
raising an issue is not enough. The parties must also adequately brief
it. UTAH R. APP. P. 24. And when they fail to do so, we may have the
discretion to defer deciding the issue until a later time. We have
noted the existence of such discretion in the context of a case
certified to us from a federal court. See Zimmerman, 2018 UT 1, ¶ 28.
But we also retain some discretion here, where the option of a
remand is a disposition available to us.
    ¶28 Here we are tasked with resolving a significant issue
concerning the scope of a contractor’s duty to third parties. Sumsion
is of the view that Tallman resolved this issue. But it did not.
Although Tallman provided some direction, it did not conclusively
resolve the question presented in this case. Instead it sent some
mixed signals, and failed to clarify the analysis called for by the
Restatement. This problem is compounded by the imprecisions in
the plaintiff’s theory of its case. Sumsion has not clearly identified
which Restatement section she relies on in support of her claims.
And in these circumstances we conclude that a remand would better
serve the parties and better help the courts in our resolution of the
question of whether and to what extent a duty is owing in the
circumstances of this case.
    ¶29 JLR and H&H largely ignore the problems highlighted
above. They instead argue that our pre-Tallman cases (AMS Salt and
its progeny) control the duty analysis in a case like this one. But that
is incorrect.
    ¶30 In short, the parties largely argue past each other in the
briefing before us. They fail to confront the questions highlighted
above—as to which Restatement section the plaintiff is relying on,
which elements of that section go to the existence of a duty, and
whether the elements of a duty can be established in this case.
Without the benefit of adversarial briefing on these issues, we are
reluctant to announce a categorical duty standard as it applies to this
case. Instead we exercise our discretion and remand without fully
resolving the issue before us.
   ¶31 On remand we encourage the parties to clarify their
positions on the language of section 385 and the sections it
incorporates by reference—sections 394–398 and 403–404.

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RESTATEMENT (SECOND) OF TORTS § 385 cmt. a. This is the language
that should inform the decision of whether the defendants owe a
duty in a case like this one—where a contractor creates an artificial
condition on the land of another and an employee of the land owner
is injured while using that condition.
    ¶32 By way of example, if the parties determined that section 395
applied here, the language of that section would fully define the
scope of JLR and H&H’s duty. Whether that duty extends to
Sumsion would appear to depend on whether she falls within the
class of individuals identified therein—those “lawful[ly]” using the
chattel “in a manner and for a purpose for which it is supplied.” Id.
§ 395. If she does, JLR and H&H would owe her a duty “to exercise
reasonable care in the manufacture” of the chattel at issue. Id.
                                 III
   ¶33 We reverse the decision of the district court for the reasons
discussed above. But we stop short of deciding whether JLR and
H&H owe Sumsion a legal duty. The answer to that question should
be decided using the standards articulated in the Restatement
(Second) of Torts—specifically in section 385 and the sections it
incorporates by reference.




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