Egbert v. Nissan North America, Inc.

2007 UT 64
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Emily Egbert and Jerad Egbert, 	No. 20060433
individually and as guardians
for J.E., a minor,
Plaintiffs and Appellants,
v.
Nissan North America, Inc.;
Nissan Motor Co., Ltd.; and 	F I L E D
Central Glass Co., Ltd.,
Defendants and Appellees. 	August 24, 2007
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Federal Certification
Attorneys: 	David C. Biggs, Piero G. Ruffinengo, Preston L.
Handy, Darren A. Davis, Joseph W. Steele, Kenneth D.
Lougee, Salt Lake City, Jill M. Madajczyk, Patrick M.
Ardis, Memphis, TN, for plaintiffs
Michael D. Zimmerman, Tracy H. Fowler, Kamie F.
Brown, Troy Booher, Salt Lake City, for defendants
---
On Certification from the United States District Court
for the District of Utah, the Honorable Paul G. Cassell
DURRANT, Justice:
INTRODUCTION
¶1 	The Federal District Court for the District of Utah has
certified to us the following two questions:
1. 	In a product liability case where a
manufacturer’s product complies with
applicable government safety standards,
should the jury be instructed that a
presumption of non-defectiveness has arisen
under Utah Code Ann. § 78-15-6(3)? 	If so,
should the instruction require clear and

No. 20060433 	2
convincing evidence of a defect to rebut the
presumption, or is proof by a preponderance
of the evidence sufficient for rebuttal?
2. 	Does Utah recognize the “enhanced
injury” theory of liability outlined in
§ 16(a) of the Restatement (Third) of Torts:
Products Liability?
As to the first question, we hold that the jury should be
instructed that the presumption established by Utah Code section
78-15-6(3) has arisen and that a preponderance of the evidence is
sufficient to rebut it. 	As to the second question, we hold that
Utah does recognize the “enhanced injury” theory of liability as
outlined in section 16(a) of the Restatement (Third) of Torts.
BACKGROUND
¶2 	The underlying federal case giving rise to the
certified questions involves the facts that follow. 	In March
2002, Jerad and Emily Egbert were involved in an automobile
accident on Interstate 15 near Cedar City, Utah. 	Mr. Egbert was
driving the couple’s 1998 Nissan Altima, and Mrs. Egbert, who was
nearly eight months pregnant with their daughter J.E., was riding
in the front passenger seat. 	When Mr. Egbert tried to avoid
another vehicle, he lost control of the car, and it rolled off
the freeway approximately two and one-half times.
¶3 	At some point during the accident, the front passenger
window shattered. 	The window was made of tempered glass and met
the applicable federal safety standards in place at the time the
car was manufactured. 	Mrs. Egbert was ejected through that
window and suffered a broken pelvis, injuries to her bladder,
abrasions, and contusions. 	J.E. was born prematurely by
emergency C-section following the accident and has a serious
brain injury. 	The parties dispute whether and to what extent the
ejection proximately caused J.E.’s brain injury.
¶4 	The Egberts brought products liability claims against
Nissan under two different theories: strict liability and
negligence. 	They assert that the front passenger window was
defectively designed because it was made with tempered glass,
which shatters on impact, and not laminated glass, which is
designed to remain intact even if it cracks and acts as a
secondary restraint mechanism to keep occupants inside the
vehicle. 	The Egberts argue that, had the Altima’s window been
made of laminated glass, Mrs. Egbert may have remained in the
vehicle during the rollover and her injuries would have been less

1 Robert J. DeBry & Assocs. v. Qwest Dex, Inc., 2006 UT 41,
¶ 11, 144 P.3d 1079.
2 In re Kunz, 2004 UT 71, ¶ 6, 99 P.3d 793 (quoting Spackman
ex rel. Spackman v. Bd. of Educ., 2000 UT 87, ¶ 1 n.2, 16 P.3d
533).
3 	No. 20060433
severe. 	They also argue that, had Mrs. Egbert not been ejected,
J.E. may not have suffered a brain injury.
¶5 	Nissan argues that the Altima was not defective because
the window complied with applicable government safety
regulations, which allowed Nissan to use either tempered glass or
laminated glass in the passenger window. 	In addition, Nissan
argues that it was not negligent with respect to the design and
manufacture of the car by using tempered glass in the front
passenger window instead of laminated glass. 	Nissan further
claims that the glass was not the proximate cause of any of Mrs.
Egbert’s or J.E.’s injuries and that Mrs. Egbert would have been
ejected from the Altima during the accident even if the window
had been made with laminated glass.
¶6 	While preparing for trial, the parties disputed several
areas of Utah law. 	The federal district court determined that
the two issues certified to this court are controlling in the
case and have not yet been decided under Utah law. 	It
subsequently certified both questions to us pursuant to rule 41
of the Utah Rules of Appellate Procedure.
STANDARD OF REVIEW
¶7 	A certified question from the federal district court
does not present us with a decision to affirm or reverse a lower
court’s decision; as such, “traditional standards of review do
not apply.” 1 	“On certification, we ‘answer the legal questions
presented’ without ‘resolving the underlying dispute.’” 2
ANALYSIS
I. 	THE JURY SHOULD BE INSTRUCTED THAT A PRESUMPTION OF
NONDEFECTIVENESS HAS ARISEN UNDER UTAH CODE SECTION 78-15-6(3)
AND THAT PROOF BY A PREPONDERANCE OF THE EVIDENCE IS SUFFICIENT
TO OVERCOME IT
¶8 	The first question certified to us by the federal
district court consists of two parts. 	First, “[i]n a product
liability case where a manufacturer’s product complies with
applicable government safety standards, should the jury be

3 The district court has not certified to us the question of
this section’s constitutionality, so we do not address it here.
But we note that the section at issue is part of the Utah Product
Liability Act, Utah Code Ann. §§ 78-15-1 to -7 (2002), which we
held unconstitutional in Berry v. Beech Aircraft Corp., 717 P.2d
670, 686 (Utah 1985). 	In Berry, we specifically held section
78-15-3 unconstitutional under article I, section 11 of the Utah
Constitution--the open courts provision--because it was a statute
of repose that barred certain claims before the cause of action
arose. 	Id. at 681, 683, 685. 	We also held sections 78-15-4, -5,
and -6 to be invalid because they were not severable from the
remainder of the Act. 	Id. at 686. 	In response to our decision
in Berry, the Legislature repealed and reenacted section 78-15-3,
changing it from a statute of repose to a statute of limitations,
and thereby addressed our constitutional concerns with the
original section. 	See 1989 Utah Laws 268. 	The Legislature made
no change to section 78-15-6, which has remained on the books
since Berry. 	We have not since directly addressed the
constitutionality of section 78-15-6, but we have, in several
cases, referred to it without sua sponte raising any question as
to its constitutionality. 	See Grundberg v. Upjohn Co., 813 P.2d
89, 97 n.7 (Utah 1991) (referring to section 78-15-6 as support
for the Legislature’s approving view of governmental standards
and stating that, “[a]lthough section 78-15-6 was neither
repealed, amended, nor specifically reenacted, there is no
indication that the legislature has changed its policy regarding
deference to governmental standards”); see also Slisze v.
Stanley-Bostitch, 1999 UT 20, ¶ 18, 979 P.2d 317 (finding that
the district court “properly admitted [an OSHA] regulation to
establish a rebuttable presumption of non-defectiveness under
Utah Code Ann. § 78-15-6(3),” without commenting on the
constitutionality of that section).
No. 20060433 	4
instructed that a presumption of non-defectiveness has arisen
under Utah Code Ann. § 78-15-6(3)?” 3 	And second, “[i]f so,
should the instruction require clear and convincing evidence of a
defect to rebut the presumption, or is proof by a preponderance
of the evidence sufficient for rebuttal?” 	We address both
questions in turn.
¶9 	As to the first question, we hold that the jury should
be informed of the presumption of nondefectiveness under Utah
Code section 78-15-6(3). 	That section reads, in its entirety, as
follows:
There is a rebuttable presumption that a
product is free from any defect or defective
condition where the alleged defect in the

4 Utah Code Ann. § 78-15-6(3) (2002).
5 Uzelac v. Thurgood (In re Estate of S.T.T.), 2006 UT 46,
¶ 28, 144 P.3d 1083 (quoting Santosky v. Kramer, 455 U.S. 745,
755 (1982)).
5 	No. 20060433
plans or designs for the product or the
methods and techniques of manufacturing,
inspecting and testing the product were in
conformity with government standards
established for that industry which were in
existence at the time the plans or designs
for the product or the methods and techniques
of manufacturing, inspecting and testing the
product were adopted. 4
¶10 	It is common to instruct juries as to the law, and as
to presumptions specifically. 	Presumptions generally must be
incorporated into the fact-finding process for juries to
appropriately discharge their obligations as fact finders. 	The
Egberts do not cite a good reason, and we cannot conceive of one,
not to instruct the jury here that the rebuttable presumption of
nondefectiveness applies to Nissan.
¶11 	We next consider whether the presumption in the jury
instruction may be rebutted by a preponderance of the evidence or
whether clear and convincing evidence is required. 	As we have
noted, where, as in this case, the standard of proof required to
rebut a presumption is not specified in the statute, “[t]he
degree of proof required in a particular type of proceeding has
‘traditionally been left to the judiciary to resolve.’” 5
¶12 	As to standards of proof generally, the United States
Supreme Court has said as follows:
The function of a standard of proof, as that
concept is embodied in the Due Process Clause
and in the realm of factfinding, is to
“instruct the factfinder concerning the
degree of confidence our society thinks he
should have in the correctness of factual
conclusions for a particular type of
adjudication.” 	The standard serves to
allocate the risk of error between the
litigants and to indicate the relative

6 Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In
re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)).
7 See Santosky, 455 U.S. at 755-56.
8 Addington, 441 U.S. at 424.
9 See id. at 432-33.
10 See, e.g., Woodby v. INS, 385 U.S. 276, 285 (1966).
11 See, e.g., Chaunt v. United States, 364 U.S. 350, 353
(1960).
12 2006 UT 46, 144 P.3d 1083.
13 Id. ¶ 27.
14 Id. ¶ 28.
No. 20060433 	6
importance attached to the ultimate
decision. 6
Thus, proof beyond a reasonable doubt is the standard appropriate
for criminal defendants who stand to lose liberty or life upon
conviction, while a preponderance of the evidence is the level of
proof required in the typical civil case where only money damages
are at stake. 7
¶13 	The intermediate standard of proof--clear and
convincing evidence--is appropriate when the interests at stake
in a civil case are “particularly important” and “more
substantial than the mere loss of money.” 8 	For example, the
United States Supreme Court has applied this standard in cases
involving civil commitment, 9 deportation, 10 and denaturalization. 11
We applied this standard in Uzelac v. Thurgood (In re Estate of
S.T.T.),12 where we considered the appropriate standard of proof
for rebutting the “presumption that parents act in the best
interests of their children” in Utah’s Grandparent Visitation
Statute. 13 	We held “that a clear and convincing standard of
proof should apply to satisfy due process requirements” and
explained that this was the case “[b]ecause the parental
presumption deals with parental liberty interests, and
accordingly should be afforded great deference by the courts.” 14
¶14 	In this case, we hold that a preponderance of the
evidence is sufficient to overcome the presumption of
nondefectiveness in Utah Code section 78-15-6(3). 	The kind of

7 	No. 20060433
interest for which a higher standard of proof is appropriate,
such as the parental liberty interest in In re Estate of S.T.T.,
does not exist here. 	Nissan argues that clear and convincing
evidence should be required to rebut the presumption because the
government invested substantial amounts of time and money in
studying the regulation at issue and that manufacturers should
benefit by complying with such a carefully considered regulation.
Nissan argues that, given the government’s extensive studies, “it
would be poor public policy . . . to permit lay jurors to
reevaluate the issue and decide by a mere preponderance of the
evidence relating to a single accident that [the government] was
wrong.” 	But the government’s substantial investment in the
safety regulation does not elevate a manufacturer’s interest in
that regulation to that of a fundamental liberty or particularly
important interest. 	Thus, we are not persuaded that the interest
at stake here rises to the level of requiring application of the
clear and convincing standard.
¶15 	Nissan also argues for a clear and convincing standard
because, in its view, to require only a preponderance of the
evidence would render Utah Code section 78-15-6(3) a nullity.
Nissan correctly explains that, at common law, the party claiming
injury because of a product defect already bears the burden of
showing by a preponderance of the evidence that there is a defect
and that it caused the injury. 	And at common law, a
manufacturer’s compliance with governmental regulations would be
evidence tending to show no defect and would be weighed with all
other evidence. 	Accordingly, Nissan argues that by creating the
presumption of nondefectiveness in section 78-15-6(3), the
Legislature meant “to rachet-up . . . the proof needed to
overcome [the presumption] from what prevailed before it was
passed,” otherwise, the statute is of no benefit to the
manufacturer.
¶16 	Although we agree with Nissan that the Legislature must
have intended to benefit the manufacturer by creating the
presumption of nondefectiveness, we disagree that the intended
benefit is necessarily that the plaintiff be required to meet a
higher standard of proof for rebuttal. 	Rather, the statutory
presumption benefits the manufacturer by highlighting for the
jury the significance of the plaintiff’s burden of establishing
defectiveness by a preponderance of the evidence. 	That is, the
presumption clearly communicates to the jury that, for the
plaintiff to succeed, the plaintiff must overcome by a
preponderance of the evidence the presumption that a product is
nondefective because of the manufacturer’s compliance with
government safety standards. 	The presumption therefore gives a
kind of legal imprimatur to the significance of compliance with

15 Restatement (Third) of Torts: Products Liability § 16(a)
(1998).
No. 20060433 	8
federal standards. 	In light of this benefit to the manufacturer,
requiring rebuttal by a preponderance of the evidence does not
render the statute a nullity.
¶17 	In sum, we answer the first part of the federal
district court’s first question in the affirmative and hold that
the jury should be instructed as to the presumption established
by Utah Code section 78-15-6(3). 	As to the second part of the
first question, we hold that the jury should be instructed that a
preponderance of the evidence is sufficient to rebut this
presumption.
II. 	UTAH RECOGNIZES THE “ENHANCED INJURY” THEORY OF LIABILITY
¶18 	The second question certified to us is the following:
“Does Utah recognize the ‘enhanced injury’ theory of liability
outlined in section 16(a) of the Restatement (Third) of Torts:
Products Liability?” 	Our answer is yes.
¶19 	Section 16(a) reads as follows: 	“When a product is
defective at the time of commercial sale or other distribution
and the defect is a substantial factor in increasing the
plaintiff’s harm beyond that which would have resulted from other
causes, the product seller is subject to liability for the
increased harm.” 15 	This section embodies what is commonly
referred to as the “enhanced injury” theory of liability. 	It
provides that a manufacturer of a defective product can be held
liable for injuries resulting from an automobile accident--even
if the defective product did not cause the accident--where the
defect caused injuries over and above those that would have been
expected in the accident absent the defect--in other words,
“enhanced injuries.” 	Like the majority of jurisdictions that
have considered this issue, we now expressly recognize the
“enhanced injury” theory of liability as the law in Utah.
¶20 	The Egberts and Nissan agree that we should recognize
the “enhanced injury” theory of liability. 	They disagree,
however, as to whether the plaintiff or the defendant
manufacturer bears the burden of proof with respect to the
allocation of injuries resulting from the underlying automobile
accident and those resulting from the product defect. 	Indeed,
the parties have briefed this issue at length. 	Because the
question of who bears the burden of proof was not certified to us
by the federal district court nor addressed in its order,
however, we decline to address it.

9 	No. 20060433
CONCLUSION
¶21 	As to the federal district court’s first question, we
hold that the jury should be instructed as to the presumption of
nondefectiveness in Utah Code section 78-15-6(3) and that a
preponderance of the evidence is sufficient to rebut it. 	As to
the second question, Utah recognizes the “enhanced injury” theory
of tort liability outlined in section 16(a) of the Restatement
(Third) of Torts: Products Liability.
---
¶22 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.