concurrence">WILKINS, Justice,

concurring in the result:

116 This is the first case to reach us arising from application of the boat owner liability statute found in section 78-18-18, and specifically regarding the scope of the words, "with the ... implied consent of the owner" as used in the statute. I agree with the lead opinion's conclusion that the information presented by affidavit and otherwise to the trial court was insufficient to know, as a matter of law, that Mr. Croft did not give his implied consent for use of the vessel by persons of Mr. Bearden's choosing-minors and adults-so as to include Mr. Golsan. I, too, believe that there remains a material, contested issue of fact on that point that prevents the granting of summary judgment at this stage of the proceedings.

T 17 I write separately to caution against the blanket application of cases decided under the motor vehicle lability statutes. While it is true, as the lead opinion notes, that we have decided a number of cases under section 58-38-212(1) addressing the seope of liability accruing to a motor vehicle owner for the "causing or knowingly permitting" a minor to operate a motor vehicle, the language of the watercraft owner's lability statute in question in this case is different, turning on whether a minor operated the "vessel with the express or implied consent of the owner." Utah Code Aun. § 73-18-18 (1989). The language of the two statutes is not the same, and I do not read them as being "similar" as suggested by the lead opinion. I see them as very different legal standards, requiring both different factual inquiry and different considerations of the fair import of the facts presented.

118 In essence, I agree with the main opinion that the central question is whether the minor operator of the vessel had the "express or implied consent" of the owner to operate the Waverunner at the time of the *542accident, and that summary judgment is inappropriate given the facts before the trial court. I agree that the finder of fact, at trial, may well be able to discern the seope of Mr. Croft's consent, express or implied, if any, as it considers the evidence. I also agree that the only thing we can or should do is to remand the case for proper determination of those facts.

119 I do not agree that the automobile liability statute and cases reviewed by the main opinion aid in that effort. In fact, I believe that the differences in statutory language make reliance upon the reasoning and interpretations of the motor vehicle Hability cases potentially quite misleading.

DURHAM, Justice,

concurring in the result and dissenting:

T 20 The trial judge in this case held that, as a matter of law, (1) "Croft did not give Golsan express or implied consent or permission to operate the waverunners so as to impose liability against Croft under {[the statute)," and (2) "[the statute] does not go far enough to cover a third party such as Mr. Golsan is in this matter." The lead opinion rejects the trial court's first ruling, determining that whether Croft gave Golsan express or implied permission is a jury question and not properly one of law. I do not disagree with that assessment, but cannot join in the lead opinion's failure to analyze the statute. The trial judge's holding that section 73-18, 18 does not extend owner liability to a see-nario involving a subpermittee such as Gol-san was a legal determination of the meaning of the statute, which I believe this court must review before remanding.

121 Absent a holding from this court on the scope of the statute (a question of first impression in Utah), the trial judge on remand will be unable to provide the trial jury with correct instructions on the law. The jury's choices will include at least the following options:

1. to find that Croft did give Golsan implied or express permission to operate the Waverunners, and is therefore subject to owner's liability under the statute; OR

2. to find that Croft did not give Golsan implied permission, but that he did give Vandee Bearden express or implied consent for Bearden's "kids," including his minor stepson Cody, to use the Waverunners, and

a. such permission was limited to the direct permittee (Cody) under the statute, and not to the sub-permittee (Golsan), thereby precluding liability; OR

b. such permission extended as a matter of law under the statute to the sub-permittee (Golsan), whose use was authorized by the direct permit-tees (Vandee and Cody), thereby permitting liability; OR

3. to find that Croft did not give Golsan or Vandee Bearden any kind of permission for anyone other than Vandee himself to operate the Waverunners, and the statute does not extend owner lability to any sub-permittees, including Cody and Golsan, resulting in no lability. ©

T22 In other words, under any factual scenario except the first, the jury will have to be instructed on the effect of the statute before it will be able to determine whether Croft has any liability. Therefore, I disagree with the lead opinion's conclusion that our construction of the statute would be premature at this time; we should undertake that task before remand.

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