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

                                 2015 UT 30


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

             WADE HERLAND, Personal Representative
                 of the estate of Neely Creager,
                            Appellant,
                                       v.
                               TRAVIS IZATT,
                                   Appellee.

                             No. 20120586
                         Filed January 30, 2015

                   Second District, Farmington
                  The Honorable Glen R. Dawson
                         No. 080700229

                                 Attorneys:
   Jack C. Helgesen, Kurt M. Helgesen, Clearfield, for appellant
   Paul M. Belnap, David E. Brown, Salt Lake City, for appellee

CHIEF JUSTICE DURRANT authored the opinion for the Court, in which
ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM, JUSTICE PARRISH,
                      and JUSTICE LEE joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:
                               Introduction
    ¶1 The right to bear arms is enshrined in both the United States
and Utah Constitutions. But with that right comes responsibilities—a
principle our Legislature has recognized by placing certain
restrictions on gun ownership. These include restrictions on
supplying firearms to minors and individuals who are incompetent
                          HERLAND v. IZATT
                        Opinion of the Court
or impaired.1 In this case we are asked to determine whether gun
owners have a duty in tort to exercise reasonable care in supplying
their guns to intoxicated individuals. We conclude a gun owner does
have such a duty. Supplying an intoxicated individual with a gun,
just as supplying a car to such a person, creates a foreseeable risk of
harm. But the fact that gun owners have such a duty does not mean
that they will necessarily be liable for damages when those
individuals injure themselves, because in most cases the intoxicated
individual’s negligence will likely exceed that of the gun owner as a
matter of comparative negligence.
    ¶2 The central facts of this case are as follows: after a night of
heavy drinking at a party, Neely Creager picked up a loaded
handgun and shot herself in the head—a shooting that both parties
agree for purposes of this appeal was accidental. Ms. Creager’s estate
filed this negligence action against Travis Izatt, who was the host of
the party and the owner of the handgun. Her estate premised the
suit on multiple theories of liability, including general negligence,
negligent entrustment, and premises liability. The district court
granted summary judgment for Mr. Izatt, concluding that he owed
no duty to Ms. Creager. We reverse and conclude that Mr. Izatt may
owe a duty to Ms. Creager, who at the time she obtained his gun was
severely impaired and posed a risk to herself and to the rest of those
attending the party. But this conclusion depends upon how the fact
finder below resolves a key factual dispute about whether
Ms. Creager gained access to the gun due to an affirmative act or an
omission. We emphasize that our holding today concerns only the
duty owed by Mr. Izatt to Ms. Creager; we do not decide questions of
breach or proximate cause, such as whether Mr. Izatt did, in fact,
exercise reasonable care. Nor do we decide the question of whether
any fault on the part of Mr. Izatt exceeded the fault of Ms. Creager.
For the resolution of these questions we remand for further
proceedings consistent with this opinion.




   1 For instance, the Legislature has made it illegal to encourage an
intoxicated individual to carry a firearm. See UTAH CODE § 76-10-528
(prohibiting the carrying of ―a dangerous weapon while under the
influence of alcohol or a controlled substance‖); id. § 76-2-202
(making it a crime to ―solicit[], request[], command[], encourage[], or
intentionally aid[] another person . . . in conduct which constitutes
an offense‖).

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                              Background
    ¶3 On May 5, 2006, Mr. Izatt invited a few friends over to his
home for a night of drinking and partying. Kimberly West, who was
one of his friends, invited Ms. Creager, a thirty-year-old woman, to
the party. Though Mr. Izatt may have met Ms. Creager on a few
previous occasions, he had never spoken with her prior to the party.
And unbeknownst to him, Ms. Creager was suffering from severe
depression and was on a variety of medications. The party lasted for
several hours, and the guests, including Ms. Creager, became
intoxicated. In fact, Ms. Creager attained a blood alcohol content of
0.25.
      ¶4 During the course of the evening, Ms. Creager gained
possession of Mr. Izatt’s handgun.2 Precisely how she came into
possession of the firearm is unclear, as Mr. Izatt gave different
accounts to a 911 dispatcher, a police officer, and in his deposition.
After calling 911, he initially told the dispatcher that Ms. Creager
―took a gun out of [his] cabinet, put it up to [her] temple and pulled
the trigger.‖ But later during the same call, he stated that she ―took
the handgun off of [his] counter‖ and suggested to the group that
they play Russian roulette. Mr. Izatt said he cautioned her that the
gun was not a revolver, so it would surely fire if the trigger were
pulled. He also noted to the dispatcher that ―[his] handgun is kinda
. . . always out.‖
    ¶5 When the police arrived on the scene, one of the officers
questioned Mr. Izatt about the events. Mr. Izatt told the officer that
while playing pool with Ms. Creager, he mentioned to her that he
won a shotgun in a pool tournament. He then asked her if she
wanted to see it. She answered yes, so the two went to his gun safe
to view the shotgun. Once there, Mr. Izatt opened the safe and
showed her his guns. There are conflicting versions of what
happened next. Under one account, Ms. Creager picked up one of
the handguns. Mr. Izatt warned her that the gun was loaded.
Mr. Izatt then closed the gun safe, apparently without noticing that
Ms. Creager did not put the handgun back in the safe. Mr. Izatt
claimed he then left the area, heard a muffled gun shot, and turned
around to see Ms. Creager lying on the floor.


   2Mr. Izatt owned the firearm legally and has possessed a Utah
concealed weapons permit since 1998. He received gun training in
the Army, through the California Police Academy, and through a
Utah gun safety training course.

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                          Opinion of the Court
    ¶6 Mr. Izatt told a different story in his deposition. He stated
that while he and Ms. Creager were viewing his guns in the safe, she
asked if she could see his shotgun. He gave her the shotgun, and
after holding it briefly, she gave it back to him. As he went to place
the shotgun back in the safe, Ms. Creager grabbed the handgun from
the safe. Mr. Izatt quickly took the handgun back from her, however,
and he placed it back in the safe. Although he could not remember
whether it was he or Ms. Creager who actually closed the safe,
Mr. Izatt claims he ―heard the tumblers lock when [he] turned the
lock.‖ According to him, Ms. Creager then regained access to the
handgun without Mr. Izatt knowing, and then followed him out of
the room. A few moments later, Mr. Izatt heard a gunshot.
    ¶7 In any case, Ms. Creager shot herself in the head, in what the
medical examiner described as a contact-range wound that left ―a
visible muzzle imprint abrasion.‖ The shot killed her. Ms. Creager’s
estate has argued that she shot herself accidentally, and for purposes
of this appeal, Mr. Izatt does not dispute this point.
    ¶8 The police did not bring criminal charges against Mr. Izatt,
but Ms. Creager’s estate filed a wrongful death action against him in
April 2008, alleging that he was negligent in ―allowing her to have
access to his loaded handgun when she was severely intoxicated.‖
Mr. Izatt filed a Motion for Summary Judgment on November 30,
2011, arguing that he did not owe any legal duty to Ms. Creager. The
district court granted summary judgment in favor of Mr. Izatt,
holding that he did not owe Ms. Creager any legal duty.
Ms. Creager’s estate timely appealed. We have jurisdiction pursuant
to Utah Code section 78A-3-102(3)(j).
                            Standard of Review
    ¶9 ―The determination of whether a legal duty exists . . . is a
purely legal question‖3 that requires ―an examination of the legal
relationships between the parties.‖4 And we review ―a [lower]
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.‖5 Summary judgment is only appropriate if there

   3   Yazd v. Woodside Homes Corp., 2006 UT 47, ¶ 14, 143 P.3d 283.
   4 Reighard v. Yates, 2012 UT 45, ¶ 9, 285 P.3d 1168 (internal
quotation marks omitted).
   5  Jones & Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 9, 284 P.3d 630
(first alteration in original) (internal quotation marks omitted).

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                           Opinion of the Court

are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.6
                                  Analysis
    ¶10 As we explain further below, the district court erred in
concluding that Mr. Izatt did not owe Ms. Creager a duty of care
under any of the factual scenarios advanced by the parties. Recently,
in B.R. ex rel. Jeffs v. West, we identified five key factors that inform
our analysis of whether a duty of care exists.7 Four of these factors
support imposition of a duty on Mr. Izatt in this case, and there was
a dispute of material fact regarding the fifth. In framing the
applicable duty, we conclude that gun owners have a duty to
exercise reasonable care in supplying their guns to others—such as
children and incompetent or impaired individuals—whom they
know, or should know, are likely to use the gun in a manner that
creates a foreseeable risk of injury to themselves or third parties.
    ¶11 We stress that our analysis is confined to the establishment
of a duty of care in this general category of cases. We make no ruling
today concerning any potential breach of duty or causation, as these
are fact-sensitive issues to be resolved on remand. In fact, those who
are inebriated and seek to sue another for injuries brought on by
their own actions may find it difficult to ultimately prevail in a
negligence action, for to do so they must establish under Utah’s
comparative negligence framework that the negligence of the gun
owner was greater than their own.
                                I. Duty of Care
    ¶12 We begin by reiterating the baseline principle we stated in
Beach v. University of Utah—that ―a party does not [ordinarily] have
an affirmative duty to care for another.‖8 We adopted this principle
from section 314 of the Restatement (Second) of Torts, which states:
―The fact that the actor realizes or should realize that action on his
part is necessary for another’s aid or protection does not of itself
impose upon him a duty to take such action.‖ And comment c to
section 314 adds that this rule ―is applicable irrespective of the
gravity of the danger to which the other is subjected and the
insignificance of the trouble, effort, or expense of giving him aid or
protection.‖

   6   UTAH R. CIV. P. 56(c).
   7   2012 UT 11, ¶¶ 5–9, 275 P.3d 228.
   8   726 P.2d 413, 415 (Utah 1986).

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                            HERLAND v. IZATT
                           Opinion of the Court
   ¶13 But action may be necessary where there is an affirmative
duty to aid or protect the endangered individual. 9 In B.R. ex rel. Jeffs
v. West, we identified five relevant factors that guide our assessment
of whether a duty exists.10 These include
         (1) whether the defendant’s allegedly tortious conduct
         consists of an affirmative act or merely an omission; (2)
         the legal relationship of the parties; (3) the
         foreseeability or likelihood of injury; (4) public policy
         as to which party can best bear the loss occasioned by
         the    injury;    and    (5)   other    general    policy
         considerations. 11

In listing these factors, we noted that ―[n]ot every factor is created
equal . . . . [S]ome factors are featured heavily in certain types of
cases, while other factors play a less important, or different, role.‖12
For instance, in Jeffs, we were asked to address the question of
whether healthcare providers have a duty to nonpatients to exercise
reasonable care when prescribing medication to patients.13 In that
context, the second factor—the legal relationship of the parties—
played no role because there is no ―special relationship or physician-
patient relationship‖ between a healthcare provider and a
nonpatient.14 Despite this fact, we concluded that healthcare
providers did owe such a duty because each of the other four factors
weighed in favor of holding so.15 We engage in this same analytical
exercise in this case and conclude that four factors support imposing
a duty, and the remaining factor also supports imposing a duty
depending on how the fact finder resolves a key factual dispute on
remand. We discuss each factor in turn.
                               A. Foreseeability
   ¶14 Because the likelihood of injury is high when a gun owner
supplies a gun to an incompetent or impaired individual, the
foreseeability factor weighs in favor of imposing a duty in this case.

   9   See RESTATEMENT (SECOND) OF TORTS § 314A (1965).
   10   2012 UT 11, ¶ 5, 275 P.3d 228.
   11   Id. (internal quotation marks omitted).
   12   Id.
   13   Id. ¶ 6.
   14   Id. ¶ 19.
   15   Id. ¶¶ 7, 20.

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                            Opinion of the Court

In framing the appropriate inquiry for this factor, we noted in Jeffs
that
         foreseeability in [our] duty analysis is evaluated at a
         broad, categorical level. . . . [It] does not question the
         specifics of the alleged tortious conduct such as the
         specific mechanism of the harm. It instead relates to the
         general relationship between the alleged tortfeasor and
         the victim and the general foreseeability of harm.16
By instead analyzing foreseeability in a ―case-specific and fact-
intensive‖ manner, the parties in Jeffs had ―conflate[d] the kind of
foreseeability relevant to the duty analysis with the foreseeability
inquiries significant to matters of breach and proximate cause.‖17 We
thus clarified that ―[t]he appropriate foreseeability question for duty
analysis is whether a category of cases includes individual cases in
which the likelihood of some type of harm is sufficiently high that a
reasonable person could anticipate a general risk of injury to
others.‖18
   ¶15 In this case, foreseeability weighs in favor of imposing a
duty when properly framed. The relevant category of cases here
consists of gun owners who are negligent in supplying their guns to
others who then injure themselves or third parties.19 And the


   16   Id. ¶ 25 (internal quotation marks omitted).
   17 Id. ¶¶ 24, 28; see also Andrew J. McClurg, Armed and Dangerous:
Tort Liability for the Negligent Storage of Firearms, 32 CONN. L. REV.
1189, 1237–41 (2000) (describing multiple cases in which, in the
author’s view, courts approached the foreseeability analysis much
too narrowly and thus precluded recovery in cases involving
firearms).
   18   Jeffs, 2012 UT 11, ¶ 27.
   19 This category of cases is described in more general terms in
section 390 of the Restatement (Second) of Torts, which states,
       One who supplies directly or through a third person a
       chattel for the use of another whom the supplier knows
       or has reason to know to be likely because of his youth,
       inexperience, or otherwise, to use it in a manner
       involving unreasonable risk of physical harm to
       himself and others whom the supplier should expect to
       share in or be endangered by its use, is subject to
       liability for physical harm resulting to them.
                                                              Continued
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                            Opinion of the Court
foreseeability question is ―whether there are circumstances within
[this] category in which [such individuals] could foresee injury.‖20
We believe there are such circumstances, as myriad cases we discuss
below have already established.
    ¶16 As owners of dangerous weapons (particularly handgun
owners) are well aware, supplying others with such weapons may
create a foreseeable risk of harm. For instance, where a firearm is
given to an intoxicated individual, the risk of harm to others is
clearly foreseeable.21
   ¶17 ―Because the class of cases [therefore] includes some in
which a risk of injury to third parties is reasonably foreseeable . . . ,
the foreseeability factor weighs in favor of imposing a duty‖22 on
individuals who supply incompetent or impaired individuals with a
gun. It is not necessary, as Mr. Izatt contends, that he must have
been able to foresee the specific sequence of harm in this case.
Whether Ms. Creager’s possession and use of the gun was a
foreseeable consequence of Mr. Izatt’s actions, and whether
Ms. Creager’s use of medications contributed to the injury, are


   And particularly instructive to this case is comment c to section
390, which adds that
          [i]f . . . the person to whom the chattel is supplied is
      one of a class which is legally recognized as so
      incompetent as to prevent them from being responsible
      for their actions, the supplier may be liable for harm
      suffered by him, as when a loaded gun is entrusted to a
      child of tender years. So too, if the supplier knows that
      the condition of the person to whom the chattel is
      supplied is such as to make him incapable of exercising
      the care which it is reasonable to expect of a normal
      sober adult, the supplier may be liable for harm
      sustained by the incompetent although such person
      deals with it in a way which may render him liable to
      third persons who are also injured.
   20   Jeffs, 2012 UT 11, ¶ 27.
   21 See Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1207 (Fla. 1997)
(―Not surprisingly, this Court also has recognized that the high
degree of risk inherent in the use of a dangerous instrument
escalates when such an instrument is used by a person who is
intoxicated and unable to exercise caution.‖).
   22   Jeffs, 2012 UT 11, ¶ 28.

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questions of proximate cause. Likewise, in our assessment of duty
we do not decide whether Mr. Izatt did in fact exercise reasonable
care or whether he should have foreseen the danger posed by his
conduct. These are questions that go to Mr. Izatt’s breach of duty.
We decide duty as a matter of law, and as to foreseeability, failing to
exercise reasonable care in supplying a gun to incompetent or
impaired individuals creates a foreseeable risk of harm. Accordingly,
this factor weighs in favor of establishing a duty.
    ¶18 Recognizing this category of cases as giving rise to a duty
does not, however, provide blanket protection to every individual
who becomes voluntarily intoxicated, as we have enunciated in
several previous cases.23 But there are circumstances in which the
alleged tortfeasor assumes a duty of care to protect others, including
from the actions of someone who is voluntarily intoxicated. The
Restatement (Second) of Torts provides an example:
         A, who makes a business of letting out boats for hire,
         rents his boat to B and C, who are obviously so
         intoxicated as to make it likely that they will
         mismanage the boat so as to capsize it or to collide with
         other boats. B and C by their drunken mismanagement
         collide with the boat of D, upsetting both boats. B, C,
         and D are drowned. A is subject to liability to the
         estates of B, C, and D under the death statute, although
         the estates of B and C may also be liable for the death
         of D.24
Although this is an example of liability imposed on a business
supplier, the principle applies equally ―to anyone who supplies a
chattel for the use of another. It applies to sellers, lessors, donors or
lenders, and to all kinds of bailors, irrespective of whether the
bailment is gratuitous or for a consideration.‖25 In fact, courts have


   23 Horton v. Royal Order of the Sun, 821 P.2d 1167, 1169 (Utah 1991)
(holding that under Utah’s Dramshop Act a furnisher of alcohol is
liable only for injuries of third parties and not the intoxicated
individual); Beach v. Univ. of Utah, 726 P.2d 413, 415 (Utah 1986)
(―[O]ne has no duty to look after the safety of another who has
become voluntarily intoxicated and thus limited his ability to protect
himself.‖ (internal quotation marks omitted)).
   24   RESTATEMENT (SECOND) OF TORTS § 390, cmt c, illus. 7 (1965).
   25   Id. cmt. a.

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                             HERLAND v. IZATT
                           Opinion of the Court
imposed liability on individuals for allowing the use of guns by
those who are incompetent or impaired by way of intoxication 26 or
their age.27
    ¶19 And although we have not yet recognized such a duty in
Utah, our prior caselaw has affirmed the foreseeable nature of
similar conduct. In Wilcox v. Wunderlich, we discussed the doctrine of
negligent entrustment in a case involving minors who killed a young
child while operating a vehicle.28 And although we held in that case
that the parent was not liable because the car was owned by the
minor children, and thus the car could not be entrusted to them, we
affirmed the viability of a negligence action where
         an owner having control of the car [e]ntrusts it to a
         minor under the prescribed age, who by ordinance or
         statute is forbidden to drive a car, or to one who is
         known to be inexperienced or infirm, or otherwise
         under disability, and for such reason either not legally
         qualified or able to properly drive a car, and the parent
         or owner could or ought to anticipate that so
         [e]ntrusting the car to be driven on a public street likely
         would result in injury to others.29
In his dissent, Justice Cherry also analogized the entrustment of
vehicles to the entrustment of firearms and stated that ―[l]oaded
firearms are dangerous, if not properly handled. And one is careless
who [e]ntrusts a loaded gun to a 12 year old child; he should first

   26 See, e.g., Howard Bros. of Phenix City, Inc. v. Penley, 492 So. 2d
965, 966, 968–69 (Miss. 1986) (imposing a duty on a retailer who
provided a pistol and ammunition to a nineteen-year-old man who
was under the influence of alcohol and drugs); Bernethy v. Walt
Failor’s, Inc., 653 P.2d 280, 283 (Wash. 1982) (―The basis for our
imposing this general duty is that one should not furnish a
dangerous instrumentality such as a gun to an incompetent. Most of
the case law relates to gun sales to children or entrusting an
automobile to an intoxicated person. The principle of section 390 [of
the Restatement (Second) of Torts], however, applies equally well to
one who is incompetent due to intoxication.‖ (citation omitted)).
   27 E.g., Masone v. Gianotti, 54 A.D.2d 269, 274–75 (N.Y. App. Div.
1976) (imposing liability on parents for providing their twelve-year-
old child with a BB gun and ammunition).
   28   272 P. 207, 216 (Utah 1928).
   29   Id.

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draw the charge. Therefore, if it goes off in the hands of such child,
inflicting harm on another, he must answer for the wrong.‖30
    ¶20 In sum, the foreseeability factor weighs in favor of
establishing a duty, since supplying an incompetent or impaired
individual with a gun creates a foreseeable risk of harm.
                                 B. Public Policy
   ¶21 Ms. Creager’s estate argues that Utah public policy favors
imposing a duty on individuals who supply incompetent or
impaired individuals with a gun. We agree.
    ¶22 To begin, Mr. Izatt’s central contention is that the statutory
scheme favors unrestricted gun possession in one’s own home. In
support of this argument, he cites two Utah statutes. First, he cites
Utah Code section 76-10-500, which exclusively reserves to the State
the right to regulate firearms—it prevents ―local authorities or state
entities‖31 from restricting others from ―owning, possessing,
purchasing, selling, transferring, transporting, or keeping any
firearm at his place of residence, property, business, or in any vehicle
lawfully in his possession or lawfully under his control.‖32 Second,
he cites Utah Code section 76-10-511, which makes the possession of
a loaded firearm permissible ―(1) at the person's place of residence,
including any temporary residence or camp; or (2) on the person's
real property.‖ While it is certainly true that the Legislature has
reserved the right to regulate firearms and has made it legal to
possess a loaded firearm in one’s own home, it has also imposed
certain restrictions on firearm use and ownership.
    ¶23 We conclude that the Legislature has expressed two
important public policy points through the passage of various
statutes: first, that firearms are not to be provided to individuals who
are likely to harm others, including minors and persons that are
violent, mentally ill, or impaired; second, that firearms cannot be
carried under every circumstance, even if the gun owner has a
concealed weapons permit. As discussed below, the Utah Legislature




   30 Id. at 221 (Cherry, J., dissenting) (internal quotation marks
omitted).
   31   UTAH CODE § 76-10-500(2).
   32   Id. § 76-10-500(1)(a).

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                              Opinion of the Court
has expressed these policies by restricting (1) who may possess
firearms, and (2) how firearms may be carried.33
    ¶24 First, the code restricts who may possess firearms. For
instance, it is a crime to ―sell, transfer, or otherwise dispose of any
firearm‖ to restricted persons, such as felons, mentally ill persons,
and those using illegal substances.34 It is also a crime for parents or
guardians to allow a minor to handle a firearm unless there is
parental consent and supervision.35 And even if there is parental
consent and supervision, it is still a crime to provide a minor with a
firearm if the minor is violent.36 Moreover, minors under age
eighteen are categorically prohibited from possessing handguns.37
Finally, the code treats the possession of firearms by minors so
restrictively that parents have an affirmative duty to remove the
firearms from their minors’ possession when they are aware that the
firearms are possessed unlawfully.38
    ¶25 Second, the code restricts how firearms may be carried. For
instance, it is a crime to carry a firearm while intoxicated—whether
the owner of the weapon is inside or outside of the home.39 This
section also provides that ―[i]t is not a defense to prosecution under
this section that the person . . . has a valid permit to carry a
concealed firearm.‖40 Mr. Izatt argues that with respect to firearms,
this section applies only outside the home, since possession of a
firearm inside of a home is expressly permitted by another code



   33 We note that some of these restrictions apply not just to guns,
but to dangerous weapons generally. The Utah Code defines
―[d]angerous weapon‖ as ―(i) a firearm; or (ii) an object that in the
manner of its use or intended use is capable of causing death or
serious bodily injury.‖ Id. § 76-10-501(6)(a). But since this case
concerns only the duty of care owed by gun owners, we limit our
discussion to firearms.
   34   Id. § 76-10-503(8)(a).
   35   Id. §§ 76-10-509(1)–(2), -509.4, -509.5.
   36   Id. § 76-10-509.6.
   37   Id. § 76-10-509.4(1).
   38   Id. § 76-10-509.7.
   39   Id. § 76-10-528(1).
   40   Id. § 76-10-528(2)(b).

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section.41 We disagree because his argument strains the reading of
these statutes. Specifically, the section of the code permitting
possession of firearms ―at [a] person’s place of residence‖ restricts
this right ―as otherwise prescribed in this part.‖42 And as already
noted, one of the ―part[s]‖ imposing such a restriction is where the
person is intoxicated.43 So although a person may possess a firearm
―at the person’s place of residence,‖ that right is limited in that the
person may not ―carr[y] [the firearm] while under the influence of
alcohol or a controlled substance.‖44
    ¶26 By extension, the Utah Code also makes it illegal to
encourage other intoxicated individuals to carry firearms. Section 76-
2-202 states that ―[e]very person, acting with the mental state
required for the commission of an offense who directly commits the
offense, who solicits, requests, commands, encourages, or
intentionally aids another person to engage in conduct which
constitutes an offense shall be criminally liable as a party for such
conduct.‖ Ms. Creager argues that this section makes it a crime to
encourage another to violate section 76-10-528; in other words, that it
makes it a crime to encourage or aid others to carry a firearm while
intoxicated. Mr. Izatt makes no argument to rebut this contention.
And indeed, section 76-2-202 does criminalize such behavior where
the person encouraging the intoxicated individual to carry a firearm
has the same mental state required under the statute and the person
aiding the intoxicated individual did something more than maintain
a ―passive presence.‖45 Under these two statutes it is illegal, when
the specified elements are shown, to encourage an intoxicated
individual to carry a firearm.
  ¶27 And unless the owner of the weapon has a concealed
weapons permit,46 the Utah Code also makes it a crime to carry an

   41 See id. § 76-10-511 (―Except for persons described in Section 76-
10-503 and 18 U.S.C. Sec. 922(g) and as otherwise prescribed in this
part, a person may have a loaded firearm: (1) at the person’s place of
residence, including any temporary residence or camp; or (2) on the
person’s real property.‖).
   42   Id.
   43   Id. § 76-10-528.
   44   Id.
   45   State ex rel. V.T., 2000 UT App 189, ¶ 16, 5 P.3d 1234.
   46   UTAH CODE § 76-10-523(2).

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                               HERLAND v. IZATT
                              Opinion of the Court
un-encased firearm ―in or on a place other than the person’s
residence, property, [or] vehicle.‖47 Furthermore, even if the owner
has a permit to carry a firearm, it cannot be carried into protected
areas such as schools48 and airports,49 and it may not be carried into
churches, private residences, and other properties when notice is
given to the owner of the firearm.50
    ¶28 In sum, the Legislature has made it clear that firearms are
not to be supplied to incompetent or impaired individuals, and it has
also restricted how a firearm may be carried. To further these
policies, the Legislature has also made the criminal penalties
applicable to firearms violations more severe than other dangerous
weapons violations.51
   ¶29 With this public policy background in mind, we are asked to
decide whether it favors imposing a duty of care. We have held that
a duty of care exists when an owner entrusts a vehicle to an
incompetent individual, such as a minor.52 But that duty arose from


   47   Id. § 76-10-504(1).
   48   Id. § 76-10-505.5.
   49   Id. § 76-10-529.
   50   Id. § 76-10-530.
   51Compare id. § 76-10-504(1) (making it a class B misdemeanor to
carry a concealed dangerous weapon), with id. § 76-10-504(2)–(3)
(making it either a class A misdemeanor or second degree felony to
carry a concealed firearm or an unlawfully possessed short-barreled
shotgun or rifle). See also id. § 76-10-503(2) (providing differing
penalties depending on whether the weapon is a ―firearm‖ or ―any
dangerous weapon other than a firearm.‖)
   52 Lowder v. Holley, 233 P.2d 350, 353 (Utah 1951) (―The obvious
intent of the legislature [in passing the motor-vehicle owner liability
statute] was to protect innocent third parties from the negligence of
minors to whom cars are furnished or who are permitted by the
owners of the cars to drive them, by holding the owners responsible
therefor. In most instances actual permission by the owner to the
minor to drive the car is impossible of direct proof. It is, of course, in
the interest of the owner after an accident to deny such permission. It
is not necessary, therefore, in order for a plaintiff to establish a case
against an owner of a car to prove that express consent to drive the
car was given to the minor. It may be implied from past conduct.‖).
But see Rollins v. Petersen, 813 P.2d 1156, 1164 (Utah 1991) (―[M]ere
                                                               Continued
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                          Opinion of the Court

Utah statutes, and here we are asked to impose a duty as a matter of
Utah common law. Utah public policy also supports imposition of a
duty as a matter of Utah common law. As we stated in Mugleston v.
Glaittli, an automobile may ―be regarded as [a dangerous
instrumentality] in the hands of an incompetent driver, and an
owner therof who knowingly entrusts its operation to such a driver
is liable, even in the absence of statute, for the proximate consequences
of its operation in such hands.‖53 Furthermore, a duty arises as a
matter of common law where the owner should know about the
entrustee’s incompetence: ―If [a parent] ha[s] reason to believe that
his son [is] a careless driver, from observation of his habits, or
otherwise, it would be his duty to deny the son the use of the car.‖54
   ¶30 This principle extends outside of the automobile context, as
evidenced by the Legislature’s efforts to restrict the possession and
use of firearms by those who are incompetent or incapable of
handling such weapons responsibly. And beyond the framework of
the statutes themselves, we believe that it is sound public policy to
impose a duty here. As we discuss further below, the dangers posed
by firearms are great and the costs of requiring their owners to
exercise reasonable care in supplying impaired or incompetent
individuals with them are relatively small.55
   ¶31 As a final matter, we note that third parties, as well as the
entrustees themselves (first parties) may recover under the theory of
negligent entrustment, though there is a jurisdictional split on this
point given the social policies pulling in either direction.56 In Utah,


ownership of an automobile does not render the owner liable for
the negligent actions of the driver.‖).
   53   258 P.2d 438, 439 (Utah 1953) (emphasis added).
   54Reid v. Owens, 69 P.2d 265, 265–66 (Utah 1937) (recognizing a
duty in a wrongful death negligence action not premised on Utah’s
motor-vehicle owner liability statute).
   55   Infra ¶ 39.
   56  Some jurisdictions have concluded that public policy favors
first-party recovery for voluntary intoxicated individuals in
negligent entrustment cases involving automobiles, reasoning as
follows:
           We recognize that voluntary intoxication is socially
        undesirable conduct and that individual responsibility
        to refrain from such conduct should be promoted.
                                                           Continued
                                 15
                             HERLAND v. IZATT
                           Opinion of the Court
third-party recovery has long been permitted under the theory of
negligent entrustment.57 As to recovery for the entrustees
themselves, we note that the Utah Dramshop Act prevents first-party
recovery against the furnisher of the alcohol.58 That said, nothing in
our statutes, and nothing in our caselaw, prevents first-party
recovery against one who supplies a gun, even though recovery




       These considerations, however, cannot be permitted to
       obscure the fact that a vehicle owner who has the right
       and ability to control the use of the vehicle and takes
       no action to prevent the continued use of the vehicle by
       a borrower who the owner knows is likely to operate
       the vehicle while intoxicated is also engaged in morally
       reprehensible behavior that should be discouraged.
       Comparative negligence provides the appropriate
       framework for examining any negligence on the part of
       the individual who drives after consuming alcoholic
       beverages.
Casebolt v. Cowan, 829 P.2d 352, 362 (Colo. 1992). Other jurisdictions
disagree and conclude that public policy disfavors recovery for
voluntarily intoxicated adults in these scenarios:
       [D]enying those who drive another’s vehicle while
       intoxicated the ability to be compensated by the
       entrustor properly distributes the incentive to control
       irresponsible drinking between the entrustor and the
       entrustee . . . .
Bailey v. State Farm Mut. Auto. Ins. Co., 881 N.E.2d 996, 1003 (Ind. Ct.
App. 2008) (internal quotation marks omitted) (citing Kayce H.
McCall, Note, Lydia v. Horton: You No Longer Have To Protect Me From
Myself, 55 S.C. L. REV. 681, 694 (2004)). In South Carolina, like in
Utah, first-party recovery is not permitted by intoxicated individuals
against tavern owners under its Dramshop Act. And in its Lydia v.
Horton decision, the South Carolina Supreme Court extended this
principle to the negligent entrustment context, concluding that first-
party recovery was also barred by identical public-policy principles.
583 S.E.2d 750, 753–54 (S.C. 2003).
   57   E.g., Wilcox v. Wunderlich, 272 P. 207, 210, 213–14 (Utah 1928).
   58Horton v. Royal Order of the Sun, 821 P.2d 1167, 1169 (Utah 1991)
(―There is no indication that the legislature intended to extend strict
dramshop liability to the consumers of alcohol . . . .‖).

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against one who furnishes alcohol is not permitted.59 Indeed, many
states have permitted first-party recovery under the theory of
negligent entrustment.60 We likewise conclude that nothing bars
first-party recovery in a case such as the one at hand.
    ¶32 Despite this conclusion, we note that intoxicated individuals
will likely find it difficult to recover for injuries that are caused, at
least in part, by their own intoxication. Utah’s comparative fault rule
bars recovery where the plaintiff is fifty percent or more at fault.61
Indeed, some states have concluded that the comparative fault rule
completely bars first-party recovery as a matter of law because in
their reasoning an intoxicated plaintiff will never be less than fifty



   59  See Ward Miller, Annotation, Negligent Entrustment: Bailor’s
Liability to Bailee Injured Through His Own Negligence or Incompetence,
12 A.L.R.4th 1062 (1982) (compiling cases) (―Courts have held that a
bailor is liable to a bailee under the doctrine of negligent entrustment
if the bailee is injured through his or her own negligence or
incompetence and the bailor knew or should have known that the
bailee was likely to injure himself or herself because of inexperience
or inability in using the object of the bailment.‖).
   60 Gorday v. Faris, 523 So. 2d 1215, 1219 (Fla. Dist. Ct. App. 1988)
(permitting recovery for intoxicated driver against the bailor of the
vehicle); Greenwood v. Gardner, 366 P.2d 780, 780–82 (Kan. 1961)
(permitting a ten-year-old who was injured as a result of an
automobile collision to recover for his injuries against his
grandfather, who loaned the ten-year-old his automobile); Shepherd
v. Barber, 174 N.W.2d 163, 163–64 (Mich. Ct. App. 1969) (allowing a
nineteen-year-old, who was incompetent to drive, to recover in a
wrongful death action where the bailor lent the nineteen-year-old a
truck). But see McDermott v. Hambright, 238 So. 2d 876, 877 (Ala. 1970)
(barring recovery for bailee of vehicle, noting that ―[t]he Alabama
cases and the cases of other states have applied this doctrine only
where a third person was injured by the negligent driving of the
incompetent.‖ (internal quotation marks omitted)).
   61 UTAH CODE § 78B-5-818(2) (―A person seeking recovery may
recover from any defendant or group of defendants whose fault,
combined with the fault of persons immune from suit and
nonparties to whom fault is allocated, exceeds the fault of the person
seeking recovery prior to any reallocation of fault made under
Subsection 78B-5-819(2).‖).

                                   17
                          HERLAND v. IZATT
                         Opinion of the Court
percent at fault for injuries he or she causes.62 But we do not agree
with this reasoning, since it is not our prerogative to carve out
exceptions to the comparative negligence regime established by the
Utah Legislature. And a number of states are in agreement with this
approach as well.63

   62  See Bailey, 881 N.E.2d at 1003 (―Indiana does not recognize a
first-party cause of action for negligent entrustment of a motor
vehicle to a voluntarily intoxicated adult.‖); Lydia, 583 S.E.2d at 752
(―We believe that this state’s modified comparative negligence
system also bars an intoxicated adult’s recovery on a first party
negligent entrustment cause of action. We cannot imagine how one
could be more than fifty percent negligent in loaning his car to an
intoxicated adult who subsequently injured himself.‖); see also Mark
S. Cohen, Annotation, Proof of Negligent Sale, Entrustment, or Storage
of Firearm, 37 AM. JUR. PROOF OF FACTS 3d 1, § 28 (1996) (discussing
the comparative fault rule in the negligent entrustment context);
Ward Miller, Annotation, Negligent Entrustment: Bailor’s Liability to
Bailee Injured Through His Own Negligence or Incompetence, 12 A.L.R.
4th 1062 (1982) (―However, although holding that a bailee, who
alleges that it was negligence for a bailor to entrust him or her with a
certain object, has stated a valid cause of action, courts have
indicated a willingness to allow traditional defenses of contributory
negligence or assumption of the risk to bar recovery in some cases.‖).
   63 See, e.g., Blake v. Moore, 208 Cal. Rptr. 703, 707 (Ct. App. 1984)
(―[The plaintiff] is entitled to a comparative fault trial. This should
result in a weighing of [the] defendant’s fault in entrusting his car to
[the] plaintiff with knowledge of the intoxication, and the fault of
[the] plaintiff in drinking and then driving.‖); Casebolt, 829 P.2d at
361 (―Consideration of the relevant policy factors persuades us that
entrustment of an automobile to one who is likely to operate it under
the influence of intoxicating liquor soon after obtaining possession of
the vehicle presents an unreasonable risk of physical harm to the
entrustee and others.‖); id. at 362 (―Comparative negligence provides
the appropriate framework for examining any negligence on the part
of the individual who drives after consuming alcoholic beverages.‖);
Gorday v. Faris, 523 So. 2d 1215, 1218 (Fla. Dist. Ct. App. 1988)
(agreeing with a case which held ―that an adult drunken driver who
injures himself is entitled to a comparative fault trial predicated on
the theory of negligent entrustment‖); King v. Petefish, 541 N.E.2d
847, 852 (Ill. App. Ct. 1989) (―We find section 390 of the Restatement
is appropriately applied to negligent entrustment cases of the type
before us and hold, by that authority, a suit brought by an injured
                                                              Continued
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                            Opinion of the Court

   ¶33 In sum, Utah public policy supports imposing a duty on gun
owners to exercise reasonable care in supplying their guns to
others—such as children and incompetent or impaired individuals—
whom they know, or should know, are likely to use the gun in a
manner that creates a foreseeable risk of injury to themselves or third
parties. And although there are competing social policies that favor
and disfavor first-party recovery by an intoxicated individual,
nothing bars first-party recovery as a matter of law. As a result,
Ms. Creager’s estate may argue for recovery, but the estate must
overcome the high hurdle of comparative negligence in order to
prevail, as would any plaintiff whose injury occurs while he or she is
voluntarily intoxicated.
                             C. Acts vs. Omissions
    ¶34 Next, we look to the tortious conduct at issue to assess
whether it constituted an act or omission.64 This distinction ―makes a
critical difference‖ because a duty of care usually only arises in the
case of affirmative acts (sometimes termed ―misfeasance‖), or where
an individual’s ―active misconduct work[ed] positive injury to
others.‖65 By contrast, an omission (sometimes termed
―nonfeasance‖), or ―a failure to take positive steps to benefit others,
or to protect them from harm not created by any wrongful act of the
defendant . . . generally implicates a duty only in cases of special
legal relationships.‖66



entrustee against his entrustor is a viable cause of action in a
comparative negligence jurisdiction.‖).
   64   Jeffs, 2012 UT 11, ¶¶ 5, 7.
   65   Id. ¶ 7 (internal quotation marks omitted).
   66  Id. (internal quotation marks omitted). We note that the
nomenclature here has caused some confusion. Indeed, in Jeffs, we
used the terms ―acts and omissions‖ as well as ―misfeasance and
nonfeasance.‖ 2012 UT 11, ¶ 7. Both sets of terms are clear enough in
most cases. But the term ―omission‖ can be somewhat misleading
because, as we recently explained in Cope v. Utah Valley State College,
―[a]ctive misfeasance . . . is not confined to situations where an
affirmative act directly causes harm to the plaintiff.‖ 2014 UT 53,
¶ 35. In other words, in some cases an ―omission‖ may give rise to a
duty even where there is no special relationship. This is because
―omission‖ may well be understood in some contexts as failing to do
what one is obligated to do. A pure omission, or passive inaction, on
                                                           Continued
                                 19
                             HERLAND v. IZATT
                           Opinion of the Court
    ¶35 Modern negligence law is built upon this important
distinction between acts and omissions, which Justice Cardozo
famously described in H.R. Moch Co. v. Rensselaer Water Co.:
         A time-honored formula often phrases the distinction
         as     one    between      misfeasance and nonfeasance.
         Incomplete the formula is, and so at times misleading.
         Given a relation involving in its existence a duty of care
         irrespective of a contract, a tort may result as well
         from acts of omission as of commission in the
         fulfillment of the duty thus recognized by law. What
         we need to know is not so much the conduct to be
         avoided when the relation and its attendant duty are
         established as existing. What we need to know is the
         conduct that engenders the relation. It is here that the
         formula, however incomplete, has its value and
         significance. If conduct has gone forward to such a
         stage that [inaction] would commonly result, not
         negatively merely in withholding a benefit, but
         positively or actively in working an injury, there exists
         a relation out of which arises a duty to go forward. . . .
         The query always is whether the putative wrongdoer
         has advanced to such a point as to have launched a
         force or instrument of harm, or has stopped where
         inaction is at most a refusal to become an instrument
         for good.67
This distinction is key, since a duty will arise only where an alleged
tortfeasor’s conduct ―has gone forward to such a stage that [inaction]
would commonly result‖ in an injury.68 Stated differently, an alleged
tortfeasor’s conduct must have created a situation where harm will
commonly or foreseeably result, such that his inaction would permit
the already advancing, foreseeable harm to work its course. In cases
where a gun owner has supplied another with a gun, the question


the other hand, is more divorced from the concept of duty and may
better describe the ―nonfeasance‖ or ―bystander‖ scenario
envisioned by the Restatement (Second) of Torts, which permits ―one
human being, seeing a fellow man in dire peril, . . . [to] sit on the
dock, smoke his cigar, and watch the other drown.‖ RESTATEMENT
(SECOND) OF TORTS § 314 cmt. c (1965).
   67   159 N.E. 896, 898 (N.Y. 1928) (citations omitted).
   68   Id.

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                           Opinion of the Court

could be framed as ―whether the putative wrongdoer has advanced
to such a point as to have launched a force or instrument of harm,‖69
meaning whether he has placed others in harm’s way by supplying
an impaired or incompetent individual with a gun.
    ¶36 Here, Ms. Creager’s estate has conceded that no special
relationship existed.70 Consequently, in order to prevail her estate
must establish that a duty existed as the result of an affirmative act.
So to survive summary judgment, Ms. Creager needed to establish,
at a minimum, a dispute of fact about whether Mr. Izatt’s conduct
was an affirmative act.71 The district court focused on this question
and determined that because there was no dispute that Ms. Creager’s
―possession [of the gun] was voluntary,‖ Mr. Izatt’s conduct was
―nonfeasance or [an] omission and failure to act.‖ And thus, ―[u]nder
any of the proffered scenarios under which Ms. Creager gained
possession of the firearm,‖ Mr. Izatt did not owe a duty. We see the
matter differently.
    ¶37 The evidence submitted at summary judgment establishes a
factual dispute about the nature of Mr. Izatt’s conduct. The parties
agree that Ms. Creager had a blood alcohol level of 0.25 and that
Mr. Izatt ―unlocked his gun safe and allowed [her] to handle his . . .
handgun[,] which he knew to be loaded.‖ But they submitted
conflicting evidence about what happened next. The estate provided
depositions from investigators stating that Mr. Izatt then left the
room without retrieving the handgun, leaving Ms. Creager alone
with the weapon. Mr. Izatt’s deposition testimony diverges
significantly from the estate’s account—he claims he told
Ms. Creager that the gun was loaded, urged her to be careful, and
took the gun away from her and locked it in his safe. But somehow
Ms. Creager took the gun out of the safe after Mr. Izatt walked away.
There is also a third possibility—some evidence in the record
suggests that Ms. Creager found the gun on Mr. Izatt’s counter
because, as Mr. Izatt told a 911 operator, the gun ―is kind[] of always
out.‖


   69   Id.
   70  This concession is consistent with our opinion in Gilger v.
Hernandez, in which we held that ―no special relationship exists
between a host and a guest that imposes on a social host a duty
either to control one guest or to protect another when one threatens
to injure the other.‖ 2000 UT 23, ¶ 17, 997 P.2d 305.
   71   See UTAH R. CIV. P. 56(c).

                                     21
                             HERLAND v. IZATT
                           Opinion of the Court
    ¶38 We conclude that under at least some of these scenarios, the
alleged conduct constitutes an affirmative act, or misfeasance,
because the tortfeasor (Mr. Izatt) by affirmative act supplied a gun to
an impaired individual (Ms. Creager), and thereby created a
situation where harm would commonly or foreseeably result. In so
doing, we clarify that in cases involving use of a gun, such as this
one, the affirmative act giving rise to a duty may be (1) directly
supplying or handing a gun to another, (2) placing the gun within
reach of another, or (3) consenting (either explicitly or implicitly) to
the use of the gun by another. We of course do not decide whether
the specific factual scenarios alleged by the parties fit any of these
categories. That is a decision for the fact finder below. While there
was some consistency in the parties’ descriptions of Mr. Izatt’s
preliminary actions, there was clearly a dispute of fact about
whether Mr. Izatt allowed Ms. Creager to handle the gun or whether
he locked it in the safe to prevent her from accessing it. Placing a gun
within reach of an intoxicated individual by leaving it on a counter
top or opening a safe and consenting to his or her use of a weapon
certainly constitutes an overt act, not an omission. Accordingly, the
district court erred in characterizing the conduct under each possible
scenario as nonfeasance and concluding that no duty existed as a
matter of law. Depending on the decision of the fact finder below,
this factor may or may not weigh in favor of imposing a duty.
                      D. Best Suited to Prevent Injury
    ¶39 The final factor we review is the ―public policy as to which
party can best bear the loss occasioned by the injury.‖72 In doing so,
we do not consider the relative ―depth of [the parties’] pockets.‖73
Rather, we assess ―whether the defendant is best situated to take
reasonable precautions to avoid injury.‖74 Where firearms and
impaired individuals are at issue, ―[t]he risk and seriousness of
injury that might result from [impaired individuals] taking a firearm,
and thus the costs associated with not recognizing a duty in these
circumstances, are high.‖75 Because the burden on gun owners to
properly restrict access to their firearms is relatively slight, and given
the high risk of injury that may potentially result, this factor favors
imposition of a duty.


   72   Jeffs, 2012 UT 11, ¶ 5 (internal quotation marks omitted).
   73   Id. ¶ 29.
   74   Id. ¶ 30.
   75   Jupin v. Kask, 849 N.E.2d 829, 838 (Mass. 2006).

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                        Opinion of the Court

                             Conclusion
    ¶40 This case involves important questions of first impression
for this court regarding the duties owed by gun owners. Although
the United States Constitution, as well as Utah’s Constitution and
statutes, clearly protect the right to own firearms, this right is not
unrestricted. The Legislature has in multiple ways acted to prevent
access to guns by restricted persons, minors, and those who are
intoxicated. Given the minor burden imposed and the great risk
where such weapons are supplied to these groups, we affirm that
gun owners have a duty to exercise reasonable care in supplying
their guns to others—such as children and incompetent or impaired
individuals—whom they know, or should know, are likely to use the
gun in a manner that creates a foreseeable risk of injury to
themselves or third parties. Accordingly, we reverse the district
court’s determination that Mr. Izatt owed no duty of care and
remand for further proceedings consistent with this opinion.




                                 23
