Restatement standard in Utah

2012Co. v. Utah Dep't of Transp., 858 P.2d 1363, 1366 (Utah 1993) ("In determining the validity of a liquidated damages provision, this court has adopted section 399 of the Restatement of Contracts."), abrogated by Commercial Real Estate Inv., LC v. Comcast of Utah II, Inc., 2012 UT 49, ¶ 27 , 285 P.3d 1193 (explaining that "[the three most recent Utah Supreme Court cases to consider liquidated damages have all done so pursuant to section 339 of the first Restatement of Contracts" but stating that prior case law never "officially adopted the Restatement's test").

2012See Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 24 , 20 P.3d 388 ; Woodhaven Apartments v. Washington, 942 P.2d 918, 920-23 (Utah 1997); Reliance, 858 P.2d at 1367, 1369 . .

2004However, the Gilbert court noted that in Baird v. Intermountain School Federal Credit Union, 555 P.2d 877, 878 (Utah 1976), the Utah Supreme Court varied from the Restatement standard when it implied that "in the 'most unusual cireum-stances,' " a suit for wrongful civil proceedings "could be maintained without a showing that the underlying action terminated in favor of the person against whom it was brought." Gilbert, 1999 UT 65 at ¶ 19 n. 10, 981 P.2d 841 (quoting Baird, 555 P.2d at 878 ).

2004However, the Gilbert court noted that in Baird v. Intermountain School Federal Credit Union, 555 P.2d 877, 878 (Utah 1976), the Utah Supreme Court varied from the Restatement standard when it implied that "in the 'most unusual cireum-stances,' " a suit for wrongful civil proceedings "could be maintained without a showing that the underlying action terminated in favor of the person against whom it was brought." Gilbert, 1999 UT 65 at ¶ 19 n. 10, 981 P.2d 841 (quoting Baird, 555 P.2d at 878 ).

2021See Donovan v. Sutton, 2019 UT App 161, ¶¶ 29, 31 , 452 P.3d 1189 .

2021See Donovan v. Sutton, 2019 UT App 161, ¶¶ 29, 31 , 452 P.3d 1189 .

2017Law Inst. 2011); see also infra ¶25 n.7 (citing cases adopting a similar rule). 7 See Richards , 914 P.2d at 722 (determining that an appeal of an unstayed foreclosure sale order was moot once the relevant property was lawfully sold to a third party because "[n]o action which we could now take would affect the litigants' rights to the property"); see also Spahi v. Hughes-Northwest, Inc. , 107 Wash.App. 763 , 27 P.3d 1233 , 1236-37 (2001) (adopting the First Restatement's standard). 8 See id. § 78B-5-201(4)(b)(iii) (requiring the judgment to include "the amount of the judgment as filed in the R

2017Law Inst. 2011); see also infra ¶25 n.7 (citing cases adopting a similar rule). 7 See Richards , 914 P.2d at 722 (determining that an appeal of an unstayed foreclosure sale order was moot once the relevant property was lawfully sold to a third party because "[n]o action which we could now take would affect the litigants' rights to the property"); see also Spahi v. Hughes-Northwest, Inc. , 107 Wash.App. 763 , 27 P.3d 1233 , 1236-37 (2001) (adopting the First Restatement's standard). 8 See id. § 78B-5-201(4)(b)(iii) (requiring the judgment to include "the amount of the judgment as filed in the R

2017Law Inst. 2011); see also infra ¶25 n.7 (citing cases adopting a similar rule). 7 See Richards , 914 P.2d at 722 (determining that an appeal of an unstayed foreclosure sale order was moot once the relevant property was lawfully sold to a third party because "[n]o action which we could now take would affect the litigants' rights to the property"); see also Spahi v. Hughes-Northwest, Inc. , 107 Wash.App. 763 , 27 P.3d 1233 , 1236-37 (2001) (adopting the First Restatement's standard). 8 See id. § 78B-5-201(4)(b)(iii) (requiring the judgment to include "the amount of the judgment as filed in the R

2017Law Inst. 2011); see also infra ¶25 n.7 (citing cases adopting a similar rule). 7 See Richards , 914 P.2d at 722 (determining that an appeal of an unstayed foreclosure sale order was moot once the relevant property was lawfully sold to a third party because "[n]o action which we could now take would affect the litigants' rights to the property"); see also Spahi v. Hughes-Northwest, Inc. , 107 Wash.App. 763 , 27 P.3d 1233 , 1236-37 (2001) (adopting the First Restatement's standard). 8 See id. § 78B-5-201(4)(b)(iii) (requiring the judgment to include "the amount of the judgment as filed in the R

2014RESTATEMENT (SECOND) OF TORTS § 343 (1965); Tallman v. City of Hurricane, 1999 UT 55, ¶ 9 , 985 P.2d 892 (―The creator of an artificial condition on land may be liable to others—both upon or outside of the land—for physical harm caused by its dangerous nature.‖); Rogalski v. Phillips Petroleum Co., 282 P.2d 304, 307 (Utah 1955) (―The duty owed by an owner of land to a business visitor is to inspect and maintain his premises in a reasonably safe condition or to warn the visitor of any dangerous conditions existing thereon.‖); Erickson v. Walgreen Drug Co., 232 P.2d 210, 212 (Utah 1951) (citing

2014RESTATEMENT (SECOND) OF TORTS § 343 (1965); Tallman v. City of Hurricane, 1999 UT 55, ¶ 9 , 985 P.2d 892 (―The creator of an artificial condition on land may be liable to others—both upon or outside of the land—for physical harm caused by its dangerous nature.‖); Rogalski v. Phillips Petroleum Co., 282 P.2d 304, 307 (Utah 1955) (―The duty owed by an owner of land to a business visitor is to inspect and maintain his premises in a reasonably safe condition or to warn the visitor of any dangerous conditions existing thereon.‖); Erickson v. Walgreen Drug Co., 232 P.2d 210, 212 (Utah 1951) (citing

2014RESTATEMENT (SECOND) OF TORTS § 343 (1965); Tallman v. City of Hurricane, 1999 UT 55, ¶ 9 , 985 P.2d 892 (―The creator of an artificial condition on land may be liable to others—both upon or outside of the land—for physical harm caused by its dangerous nature.‖); Rogalski v. Phillips Petroleum Co., 282 P.2d 304, 307 (Utah 1955) (―The duty owed by an owner of land to a business visitor is to inspect and maintain his premises in a reasonably safe condition or to warn the visitor of any dangerous conditions existing thereon.‖); Erickson v. Walgreen Drug Co., 232 P.2d 210, 212 (Utah 1951) (citing

2014RESTATEMENT (SECOND) OF TORTS § 343 (1965); Tallman v. City of Hurricane, 1999 UT 55, ¶ 9 , 985 P.2d 892 (―The creator of an artificial condition on land may be liable to others—both upon or outside of the land—for physical harm caused by its dangerous nature.‖); Rogalski v. Phillips Petroleum Co., 282 P.2d 304, 307 (Utah 1955) (―The duty owed by an owner of land to a business visitor is to inspect and maintain his premises in a reasonably safe condition or to warn the visitor of any dangerous conditions existing thereon.‖); Erickson v. Walgreen Drug Co., 232 P.2d 210, 212 (Utah 1951) (citing

2012Co. v. Utah Dep't of Transp., 858 P.2d 1363, 1366 (Utah 1993) ("In determining the validity of a liquidated damages provision, this court has adopted section 399 of the Restatement of Contracts."), abrogated by Commercial Real Estate Inv., LC v. Comcast of Utah II, Inc., 2012 UT 49, ¶ 27 , 285 P.3d 1193 (explaining that "[the three most recent Utah Supreme Court cases to consider liquidated damages have all done so pursuant to section 339 of the first Restatement of Contracts" but stating that prior case law never "officially adopted the Restatement's test").

2012Co. v. Utah Dep't of Transp., 858 P.2d 1363, 1366 (Utah 1993) ("In determining the validity of a liquidated damages provision, this court has adopted section 399 of the Restatement of Contracts."), abrogated by Commercial Real Estate Inv., LC v. Comcast of Utah II, Inc., 2012 UT 49, ¶ 27 , 285 P.3d 1193 (explaining that "[the three most recent Utah Supreme Court cases to consider liquidated damages have all done so pursuant to section 339 of the first Restatement of Contracts" but stating that prior case law never "officially adopted the Restatement's test").

2012See, e.g., Croft, 40 P.2d at 202 ; Jacobson, 278 P.2d at 299 ; Woodhaven Apartments, 942 P.2d at 920-21 (applying Restatement test after first noting that the court has " 'uniformly held [a liquidated damages clause] to be unenforceable'" where "'enforcement of the [clause] would allow an unconscionable and exorbitant recovery'" (quoting Perkins, 248 P.2d at 449-50); see also Perkins, 243 P.2d at 453 (Wolfe, C.J., concurring) (noting that section 389 "works out in requiring ... that the amount demanded as liquidated damages be conscionable"). 188 We now hold that liquidated damages clauses sho

2012Woodhaven Apartments, 942 P.2d at 925 (noting that the court must find the disparity between liquidated and actual damages "shock[s] the conscience or produce[s] a profound sense of injustice before there can be a determination of un-conscionability"). ¶ 36 The Restatement test raises similar concerns.

2012Woodhaven Apartments, 942 P.2d at 925 (noting that the court must find the disparity between liquidated and actual damages "shock[s] the conscience or produce[s] a profound sense of injustice before there can be a determination of un-conscionability"). ¶ 36 The Restatement test raises similar concerns.

2012See, e.g., Croft, 40 P.2d at 202 ; Jacobson, 278 P.2d at 299 ; Woodhaven Apartments, 942 P.2d at 920-21 (applying Restatement test after first noting that the court has " 'uniformly held [a liquidated damages clause] to be unenforceable'" where "'enforcement of the [clause] would allow an unconscionable and exorbitant recovery'" (quoting Perkins, 248 P.2d at 449-50); see also Perkins, 243 P.2d at 453 (Wolfe, C.J., concurring) (noting that section 389 "works out in requiring ... that the amount demanded as liquidated damages be conscionable"). 188 We now hold that liquidated damages clauses sho

2012See Bellion, 808 P.2d at 1097 .

2012See Bellion, 808 P.2d at 1097 .

2012See Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 24 , 20 P.3d 388 ; Woodhaven Apartments v. Washington, 942 P.2d 918, 920-23 (Utah 1997); Reliance, 858 P.2d at 1367, 1369 . .

2012See Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 24 , 20 P.3d 388 ; Woodhaven Apartments v. Washington, 942 P.2d 918, 920-23 (Utah 1997); Reliance, 858 P.2d at 1367, 1369 . .

2005See Thompson v. Jess, 1999 UT 22,¶18 , 979 P.2d 322 . [5] Plaintiffs argue for the first time in their reply brief that CPB is liable as a landowner to Decedent, an invitee on its property.

2005See Thompson v. Jess, 1999 UT 22,¶18 , 979 P.2d 322 . [5] Plaintiffs argue for the first time in their reply brief that CPB is liable as a landowner to Decedent, an invitee on its property.

2005Specifically, the court rejected the duty-defining capacity of the Restatement rule, holding that “ ‘deeming ... the invitee’s voluntary encounter with a known or obvious danger to excuse the landowner’s duty’ ” would effectively and impermissibly “ ‘resurrect contributory negligence as an absolute bar to recovery.’ ” Id. (quoting Keller v. Holiday Inns, 105 Idaho 649 , 671 P.2d 1112, 1118-19 (Idaho Ct.App.1983)). ¶ 17 Instead, the court of appeals decided, the open and obvious nature of a danger is just one factor to be considered in determining whether a landowner breached a duty of care.

2005Specifically, the court rejected the duty-defining capacity of the Restatement rule, holding that “ ‘deeming ... the invitee’s voluntary encounter with a known or obvious danger to excuse the landowner’s duty’ ” would effectively and impermissibly “ ‘resurrect contributory negligence as an absolute bar to recovery.’ ” Id. (quoting Keller v. Holiday Inns, 105 Idaho 649 , 671 P.2d 1112, 1118-19 (Idaho Ct.App.1983)). ¶ 17 Instead, the court of appeals decided, the open and obvious nature of a danger is just one factor to be considered in determining whether a landowner breached a duty of care.

2000See Loveland, 746 P.2d at 772 (indicating that whether the case "is analyzed under the attractive nuisance doctrine as enunciated in Brown v. Salt Lake City or under the Restatement's rule is not outcome determinative") (footnotes omitted); and Weber v. Springville City, 725 P.2d 1360, 1365 (Utah 1986) (noting that the rule as stated in the Restatement differs from the doctrine followed in Utah and concluding that both rules are limited to artificial conditions). 114 In rejecting Featherstone and Taylor, we also part with the attractive nuisance rule in Brown in favor of Restatement (Second) T

2000See Loveland, 746 P.2d at 772 (indicating that whether the case "is analyzed under the attractive nuisance doctrine as enunciated in Brown v. Salt Lake City or under the Restatement's rule is not outcome determinative") (footnotes omitted); and Weber v. Springville City, 725 P.2d 1360, 1365 (Utah 1986) (noting that the rule as stated in the Restatement differs from the doctrine followed in Utah and concluding that both rules are limited to artificial conditions). 114 In rejecting Featherstone and Taylor, we also part with the attractive nuisance rule in Brown in favor of Restatement (Second) T