Pre-Injury Liability Waivers in Utah

Likelihood of Enforcement: Low

In Utah, preinjury releases of claims for ordinary negligence can be valid and enforceable. Rothstein v. Snowbird Corp., 175 P.3d 560 (Ut.2007). However, “preinjury releases are not unlimited in power and can be invalidated in certain circumstances.” Pearce v. Utah Athletic Found., 179 P.3d 760 (Ut.2008). Specifically, “(1) releases that offend public policy are unenforceable, Id.; (2) releases for activities that fit within the public interest exception are unenforceable, Rackley v. Fairview Care Ctrs., Inc., 23 P.3d 1022 (Ut.2002); and (3) releases that are unclear or ambiguous are unenforceable.” Pearce, 179 P.3d at 760.

i.               Public Policy Exception

In determining “whether a contract offends public policy,” Utah courts “first determine whether an established public policy has been expressed in either constitutional or statutory provisions or the common law.” Here, “[f]or a contract to be void on the basis of public policy, there must be a showing free from doubt that the contract is against public policy.” Ockey v. Lehmer, 189 P.3d 51 (Ut.2008); Hawkins ex rel. Hawkins v. Peart, 37 P.3d 1062 (Ut.2001).

ii.             Public Interest Exception 

In Berry v. Greater Park City Co., the Utah Supreme Court adopted the standard set out in Tunkl v. Regents of the University of California, 60 Cal.2d 92, (1963), as “the traits of an activity in which an exculpatory provision may be invalid” under the public interest exception. Berry, 2007 UT 87, ¶ 15, 171 P.3d 442. The six Tunkl guidelines are:

[1] [The transaction] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks h[er] services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or h[er] agents.

Id. (quoting Hawkins v. Peart, 2001 UT 94, ¶ 9 n. 3, 37 P.3d 1062). “Preinjury releases for recreational activities are not invalid under the public interest exception.” Berry, 2007 UT 87, ¶ 15, 171 P.3d 442.

iii.           Unclear or Ambiguous Releases

“To be enforceable,” however, “the release must be communicated in a clear and unequivocal manner.” Berry v. Greater Park City Co., 2007 UT 87, ¶ 15 n. 2, 171 P.3d 442; see also Hawkins v. Peart, 2001 UT 94, ¶ 5, 37 P.3d 1062 (stating that preinjury releases “require a clear and unequivocal expression of the intent to indemnify or release”).

Last updated 12/2018

This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.