2022 UT 8
IN THE
SUPREME COURT OF THE STATE OF UTAH
BRIAN and MARIAH CUNNINGHAM,
Appellants,
v.
WEBER COUNTY,
Appellee.
No. 20210077
Heard: October 13, 2021
Filed February 17, 2022
On Direct Appeal
Second District, Weber County
The Honorable Reuben J. Renstrom
No. 190901356
Attorneys:
Eric S. Olson, Lena Daggs, Salt Lake City, for appellants
Frank D. Mylar, Andrew R. Hopkins, Salt Lake City, for appellees
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS and JUSTICE PETERSEN joined.
JUSTICE HIMONAS authored a concurring opinion.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Brian Cunningham was attending a Special Weapons and
Tactics training when he was instructed to stand a few feet away
from an explosive set on a door latch. The explosive detonated and
caused severe injuries to Cunningham‘s face and neck. Cunningham
and his wife, Mariah Cunningham, sued the training‘s provider,
Weber County. The County moved for summary judgment, arguing
that Cunningham had waived any negligence claim against the
County when he signed a preinjury release and waiver. The County
CUNNINGHAM v. WEBER COUNTY
Opinion of the Court
further argued the Governmental Immunity Act of Utah does not
waive the County‘s immunity for Cunningham‘s gross negligence
claim or Ms. Cunningham‘s loss of consortium claim. The district
court agreed and entered judgment for the County.
¶2 The Cunninghams appeal, contending that the district court
erred across the board. We agree. The preinjury release Cunningham
signed was neither clear nor unmistakable and is therefore
unenforceable. The Governmental Immunity Act of Utah waives
immunity for gross negligence claims. It also waives immunity for
loss of consortium claims that arise out of an injury for which
immunity has been waived. We reverse the district court‘s grant of
summary judgment and remand.
BACKGROUND
¶3 Cunningham was a Layton City firefighter paid by Layton
City to receive Special Weapons and Tactics (SWAT) training.1 Weber
County conducted that training.
¶4 The day students arrived at the SWAT training, the Ogden
Metro SWAT trainers evaluated the students‘ ―immediate health.‖2
The trainers gave each student a document to sign (Release).
Students were informed that they needed to sign the Release before
they could attend the training.
¶5 The document stated:
Release and Waiver. I hereby unconditionally and
irrevocably release and discharge the Ogden Metro
SWATT [sic] Team and all related organizations and
entities from any and all claims, demands, damages
actions and causes of action arising, whether directly or
indirectly, from or in connection with [his] attending or
participating in the described SWAT training[.]
Cunningham signed the Release.
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1 On an appeal from a motion for summary judgment, we view
the facts in the light most favorable to the non-moving party. Orvis v.
Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
2The Ogden Metro SWAT Team is not a separate legal entity but
operates pursuant to an interlocal agreement that Weber County
administers.
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Opinion of the Court
¶6 During the training, the instructors set an explosive on a door
latch and had Cunningham stand ―a few feet away.‖ When the
explosive detonated, a piece of shrapnel hit Cunningham and caused
significant injuries to his face and neck.
¶7 The Cunninghams filed suit against Weber County. They
alleged that Weber County negligently failed to follow its safety
procedures when it placed him so close to the explosive without a
bomb shield or blanket. The Cunninghams also alleged that the
County was grossly negligent by failing to observe even the slightest
care and by showing an indifference to the consequences that could
result during the SWAT training. Ms. Cunningham asserted a loss of
consortium cause of action.
¶8 The County moved for summary judgment on all the
Cunninghams‘ claims. Among other things, the County argued that
Cunningham had released his negligence cause of action against the
County when he executed the Release. The County further argued
that the Governmental Immunity Act of Utah (GIA) did not waive
governmental immunity for the gross negligence and loss of
consortium causes of action.
¶9 The district court agreed and granted the County‘s motion for
summary judgment. It held that the Release was enforceable and
precluded the negligence claim. It also concluded that the GIA did
not waive immunity for the gross negligence and loss of consortium
claims. The Cunninghams appeal.
STANDARD OF REVIEW
¶10 The Cunninghams argue that the district court erroneously
concluded that the Release was enforceable, and that it should have
instead concluded that: (1) the Release was contrary to the public
interest; (2) the Release contravened public policy; and (3) the
Release was not the clear and unmistakable waiver that the law
requires for preinjury releases. They also assert that the district court
misinterpreted the GIA to conclude that the statute did not waive
immunity for gross negligence. And that the district court likewise
misread the GIA to decide that the act did not waive immunity for
loss of consortium claims based on injuries caused by acts for which
the GIA waives immunity. These arguments present questions of law
that we review for correctness. dōTERRA Int'l, LLC v. Kruger, 2021 UT
24, ¶ 17, 491 P.3d 939.
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CUNNINGHAM v. WEBER COUNTY
Opinion of the Court
ANALYSIS
I. THE DISTRICT COURT ERRED BECAUSE THE RELEASE
IS NOT CLEAR AND UNMISTAKABLE
¶11 The district court dismissed the Cunninghams‘ negligence
claim, finding that Cunningham waived any claim he might have
against Weber County when he signed the Release. The
Cunninghams argue this was error because the Release is
unenforceable.3 We agree.
¶12 Utah law disfavors preinjury releases. We have long viewed
preinjury releases with suspicion, concluding that ―the law does not
look with favor upon one exacting a covenant to relieve himself of
the basic duty which the law imposes on everyone: that of using due
care for the safety of himself and others.‖ Union Pac. R.R. Co. v. El
Paso Nat. Gas Co., 408 P.2d 910, 913 (Utah 1965). Accordingly, ―the
presumption is against any such intention, and it is not achieved by
inference or implication from general language.‖ Id. at 914. Instead, a
preinjury release must ―make [its] intent clear and unmistakable.‖ Id.
¶13 We have reasoned that ―contracts exempting persons from
liability for negligence induce a want of care, for the highest
incentive to the exercise of due care rests in a consciousness that a
failure in this respect will fix liability to make full compensation for
any injury resulting from the cause.‖ Jankele v. Texas Co., 54 P.2d 425,
427 (Utah 1936) (citation omitted). ―It has therefore been declared to
be good doctrine that no person may contract against his own
negligence.‖ Id. (citation omitted). Allowing a party to contract
against his own negligence ―tend[s] to encourage carelessness and
would not be salutary either for the person seeking to protect himself
or for those whose safety may be hazarded by his conduct.‖ Howe
Rents Corp. v. Worthen, 420 P.2d 848, 849 (Utah 1966). We have further
asserted that parties entering into contracts should be able ―to
assume that the other intends to conduct himself as a reasonable and
prudent person would under whatever circumstances may thereafter
arise, which presupposes that he will commit no wrongful act nor be
guilty of negligence.‖ El Paso Nat. Gas Co., 408 P.2d at 913.
_____________________________________________________________
3 The Cunninghams also assert that the Release violates public
policy and is contrary to the public interest. Because we conclude the
Release is not clear and unmistakable, we need not reach the
Cunninghams‘ other arguments.
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Opinion of the Court
¶14 Although we respect the ability of two parties bargaining at
arm‘s length to agree that one party may waive its ability to sue for
injuries arising out of the other‘s negligence before any injury is
suffered, such arrangements are unenforceable unless they are clear
and unmistakable about both parties‘ intentions. See Jankele, 54 P.2d
at 427; El Paso Nat. Gas Co., 408 P.2d at 914.
¶15 In the context of preinjury releases, we balance a party‘s
ability to enter freely into contracts against the potential harm that
can flow from a party relieved of the obligation to act reasonably. To
that end, we demand precision in preinjury releases to ensure that a
reasonable person reviewing the document would understand that
she is changing the default setting and waiving her right, prior to
suffering any injury, to recover the damages caused by another
party‘s negligence.
¶16 For this reason, we will not imply that a party intended,
prior to suffering an injury, to release another party from the
consequences of her negligent act. See Union Pac. R.R. Co. v.
Intermountain Farmers Ass’n, 568 P.2d 724, 725 (Utah 1977).4 In El Paso
Natural Gas Co., the parties presented us with a contract stating that
the defendant would indemnify and hold the railroad harmless
from and against any and all liability, loss, damage,
claims,. . .of whatsoever nature, . . . growing out of injury
or harm to or death of persons whomsoever, or loss or
destruction of or damage to property whatsoever,
including the pipe line, when such injury, harm, death,
loss, destruction or damage, howsoever caused, grows
out of or arises from the bursting of or leaks in the pipe
line, or in any other way whatsoever is due to or arises
because of the existence of the pipe line or the construction,
operation, maintenance, repair, renewal, reconstruction
or use of the pipe line or any part thereof, or to the
contents therein or therefrom.
408 P.2d at 912. We recognized that the provision employed broad
language—presumably in an attempt to allow for broad
_____________________________________________________________
4 See also Jensen's Used Car v. Rice, 323 P.2d 259, 260-61 (Utah 1958)
(holding ―it is also elementary and of extreme practical importance
that we hold contracting parties to their clear and understandable
language deliberately committed to writing and endorsed by them as
signatories thereto‖).
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Opinion of the Court
interpretation. See id. at 913-14. But the broad language the parties
chose did not reveal a clear and unmistakable intent to release each
other from their own negligent acts. Id. at 914. We concluded that if
―it had been the intent of the parties that the defendant should
indemnify the plaintiff even against the latter‘s negligent acts, it
would have been easy enough to use that very language and to thus
make that intent clear and unmistakable.‖ Id. We accordingly found
that the release did not require one party to indemnify the other for
its negligent acts. Id.
¶17 That is not to say that a release must use specific words to
make its intent clear and unmistakable. See Freund v. Utah Power
& Light Co., 793 P.2d 362, 371–72 (Utah 1990). In Freund, the court
considered a release between a cable company and a power
company. Id. at 364. The language of the release indicated that
―[e]xcept for intentional wrongdoing or willful negligence on the
part of Licensor, or any of its agents or employees, Licensee shall also
indemnify[,] protect[,] and save harmless Licensor from and against
any and all claims, demands, causes of action, costs, or other
liabilities . . . .‖ Id. at 371 (second and third alterations in original)
(emphasis removed). Although that release did not specifically state
that the licensee was agreeing to indemnify the licensor for claims
that might arise out of the licensor‘s negligence, the specific
carveouts for intentional wrongdoing and willful negligence helped
transform what might have been mistakable language into a clear
and unmistakable expression of an intent to extend the
indemnification to negligent acts. Id. Accordingly, the court held that
the release intended to give the power company ―‗full and complete‘
indemnification‖ for its own negligence. Id. at 371–72.
¶18 The United States District Court for the District of Utah has
applied the ―clear and unmistakable rule‖ to find several releases
unenforceable. For example, in one case, the parties presented the
federal court with a preinjury release that a plaintiff was required to
sign before he could compete in a cycling race. Finken v. USA Cycling,
Inc., No. 1:17-cv-79, 2020 WL 2926661, at *2 (D. Utah June 3, 2020). A
racer suffered a severe injury when he turned a corner on the route
and ran into a concrete barrier blocking the road. Id. at *1–2. The
racer sued USA Cycling as well as the independent contractor in
charge of the course design. Id. at *2.
¶19 Both USA Cycling and the contractor raised the waiver the
racer had signed as a defense against the suit. Id. at *2. The waiver
was broadly worded. Id. It noted ―that cycling is an inherently
dangerous sport‖ and included dangers such as ―collision with
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Opinion of the Court
pedestrians, vehicles, other riders, and fixed or moving objects.‖ Id. It
further noted ―the possibility of serious physical and/or mental
trauma or injury, or death associated with the event.‖ Id. The
defendants argued that the plaintiff had agreed to ―waive, release,
discharge, hold harmless, and promise to indemnify and not to sue‖
―USA Cycling‘s Event Directors, Affiliates, Agents, and Officials‖ for
―any and all rights and claims including claims arising from [their]
own negligence.‖ Id. at *2, *4 (alteration in original). The court held
that the release waived claims against USA Cycling. Id. at *3. But it
did not unambiguously release USA Cycling‘s independent
contractors because it was unclear whether the term ―Event
Directors‖ applied to independent contractors. Id. at *4. We endorse
the federal court‘s reasoning that if a preinjury release can lead to a
disagreement between reasonable minds about who is released, it
cannot be considered unmistakable.
¶20 The federal district court has also concluded that a release is
not clear and unmistakable when the language supports more than
one reasonable meaning. In Zollman, a woman was injured while
snowmobiling when she collided with another snowmobiler. Zollman
v. Myers, 797 F. Supp. 923, 924 (D. Utah 1992). The rental agency
required all renters to sign a preinjury release as part of the rental
agreement. Id. The release ―enumerate[d] some of the risks involved
in snowmobiling, including the failure to follow instructions.‖ Id. at
928. It then ―state[d] in bold print that the signer [would] not hold
[the rental company] liable, even if [it] or its employees act[ed]
negligently.‖ Id. However, in the second-to-last clause, the release
required the signer to agree ―to stop and follow instructions if
encountering a hazardous situation. Otherwise, the signer agrees to
assume all risk.‖ Id. The court held that the second-to-last clause
rendered the entire release ambiguous because that clause created an
inconsistency, which could lead a reasonable person to interpret the
release as meaning that the signer did not assume liability in certain
situations. Id. This impression was ―sufficient to render the contract
ambiguous.‖ Id. This holding harmonizes with the way we have
articulated the rule.
¶21 Similarly, in Ghionis, a skier was injured when she used ski
boots that were incompatible with the skis she had rented from a ski
resort. Ghionis v. Deer Valley Resort Co., 839 F. Supp. 789, 791 (D. Utah
1993). The skier alleged that the resort gave her an express warranty
of the skis‘ compatibility with her boots. Id. The resort asked the
court to analyze whether the skier‘s release, which indicated that the
resort rented all ski equipment to consumers in an ―as is‖ condition,
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Opinion of the Court
protected the resort from liability. Id. at 793. The resort insisted that
the release‘s ―as is‖ language served as an express disclaimer of any
warranties. Id. The court disagreed and held that because ―the terms
[were] slipped into paragraph 1, without any indication to the
average consumer that they [were] words of art with distinct legal
meaning,‖ they constituted an ambiguous, and potentially deceptive,
term. Id. at 793–94. This again comports with how we envision the
rule should operate.
¶22 Taken together, these cases illustrate how a preinjury release
must clearly and unmistakably inform a reasonable person who and
what she is releasing to be enforceable. It is not enough that we
might be able to squint at the preinjury release language and
conclude that a reader ―might have known‖ or ―probably knew‖ that
she was releasing a certain party or claim.
¶23 The Release Cunningham signed provided that he would
―unconditionally and irrevocably release and discharge the Ogden
Metro SWATT [sic] Team and all related organizations and entities
from any and all claims, demands, damages, actions and causes of
action arising, whether directly or indirectly, from or in connection
with [his] attending or participating in the described SWAT
training.‖
¶24 The Release‘s language does not clearly and unmistakably
release ―the Ogden Metro SWATT [sic] Team and all related
organizations and entities‖ from liability for their own negligence.5
Instead, it uses broad, general language that does not specifically nor
unequivocally evince an intent to hold the released party blameless
for its own negligent conduct. Unlike the release in Freund, there is
no additional context that would put a party on specific notice that it
was providing a preinjury release for claims arising out of the other
party‘s negligence.
¶25 Ambiguity exists in a preinjury release when reasonable
minds could disagree on the release‘s meaning. In the words of the
Union Pacific court, had the Release meant to waive negligence claims
against Weber County, ―it would have been easy enough to use that
_____________________________________________________________
5 Because we conclude that the release is not clear and
unmistakable about what it purports to release, we need not address
the question of whether it is clear and unmistakable about who it
releases.
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Opinion of the Court
very language and to thus make that intent clear and
unmistakable.‖ El Paso Natural Gas Co., 17 Utah 2d at 259–60.
¶26 Simply stated, the preinjury release Cunningham signed was
not clear and unmistakable. It was therefore unenforceable, and the
district court erred when it concluded otherwise and granted
summary judgment.
II. THE DISTRICT COURT ERRED WHEN IT CONCLUDED THAT THE
GOVERNMENTAL IMMUNITY ACT OF UTAH DOES NOT WAIVE
GOVERNMENTAL IMMUNITY FOR CLAIMS
OF GROSS NEGLIGENCE
¶27 The Cunninghams asserted a claim of gross negligence. The
district court granted summary judgment on that claim, reasoning
that while the GIA waives immunity for injuries caused by a
governmental entity‘s negligence, it does not waive immunity for
injuries caused by the governmental entity‘s gross negligence. The
Cunninghams argue that the district court misread the statute to
reach that conclusion.
¶28 The GIA codifies the broad immunity that a sovereign
traditionally enjoys from legal action and explicitly extends the
immunity to political subdivisions, like counties. See generally UTAH
CODE §§ 63G-7-101–904. The act provides that governmental entities
―are immune from suit for any injury that results from the exercise of
a governmental function,‖ id. § 63G-7-201(1), unless the act
specifically provides otherwise. Id. § 63G-7-301. In other words, a
governmental entity enjoys immunity from suit unless the GIA
waives that immunity.
¶29 The district court concluded that the Cunninghams ―could
not identify any provision within the [GIA] or any case law that
supports their position‖ that the GIA waives immunity for gross
negligence. The court further reasoned that had ―the Legislature
intended for government entities to be liable for their employees‘
gross negligence, the Legislature could have included such a
provision, but did not do so.‖
¶30 We do not read the GIA the way the district court did.
Before the district court, the Cunninghams argued that Utah Code
section 63G-7-301(2)(i)—which waives governmental immunity for
―any injury proximately caused by a negligent act or omission of an
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Opinion of the Court
employee committed within the scope of employment‖—waives
immunity for both simple and gross negligence.6 We agree.
¶31 The GIA waives immunity for an injury ―caused by a
negligent act or omission.‖ UTAH CODE § 63G-7-301(2)(i). ―‗[G]ross
negligence‘ . . . differs from ordinary negligence only in degree, and
not in kind.‖ Negligence, BLACK'S LAW DICTIONARY (11th ed. 2019)
(quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF
TORTS § 34, at 212 (5th ed. 1984)). In other words, a grossly negligent
act is still a negligent act. And when the Legislature waived
immunity for negligent acts, it waived immunity for negligence in all
of its forms. Accordingly, we reverse the district court‘s grant of
summary judgment on Cunningham‘s gross negligence claim.
III. THE DISTRICT COURT ERRED WHEN IT GRANTED SUMMARY
JUDGMENT ON MS. CUNNINGHAM‘S LOSS OF
CONSORTIUM CLAIM
¶32 The district court granted Weber County‘s motion for
summary judgment on Ms. Cunningham‘s loss of consortium claim.
As with the gross negligence claim, the district court concluded that
the GIA barred the loss of consortium cause of action ―because there
is no waiver of immunity for these types of claims.‖ The district court
declined ―to extend the reach of the [GIA] to include waivers of
immunity for claims not specifically identified in the [GIA].‖7
¶33 The district court again misread the GIA. The GIA waives
immunity for ―any injury proximately caused by a negligent act or
omission of an employee‖ committed within the scope of her
employment. UTAH CODE § 63G-7-301(2)(i) (emphasis added). Ms.
Cunningham alleges that Weber County‘s negligent act caused her to
suffer a loss of consortium with her husband. That is an injury she
claims was proximately caused by Weber County‘s negligence. The
GIA waives immunity for the claim.
_____________________________________________________________
6 The waiver of liability for negligent acts is subject to several
exceptions given in Utah Code sections 63G-7-101(4) and 63G-7-
201(2)–(4).
7 The court also opined that even if the GIA had waived immunity
for loss of consortium claims, ―given [the] court‘s finding that
Plaintiff Brian Cunningham‘s claims cannot be maintained, Plaintiff
Mariah Cunningham‘s . . . loss of consortium claim is not viable and
must be dismissed.‖ The restoration of Brian Cunningham‘s claims
undermines the district court‘s logic.
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¶34 Even if we were tempted to entertain doubt about this
reading, the statutory scheme governing loss of consortium claims
would eliminate it. Utah Code section 30-2-11 sets forth the
parameters of a loss of consortium claim. That section indicates that
if damages are ―awarded for loss of consortium which a
governmental entity is required to pay‖ the total amount of damages
―may not exceed the liability limit for one person . . . .‖ UTAH CODE
§ 30-2-11(8). This language confirms that the Legislature anticipated
that a governmental entity might need to pay damages for a loss of
consortium claim. There would have been no need for the Legislature
to include such a provision if the Legislature did not understand that
the GIA waived immunity for such claims in certain circumstances.
Simply put, the district court misinterpreted the GIA to conclude that
it does not waive immunity for loss of consortium claims related to
injuries for which immunity is waived.8
CONCLUSION
¶35 The district court erred when it concluded that the Release
was clear and unmistakable. It was not, and it is therefore
unenforceable. The district court also erred when it read the GIA to
not waive the government‘s immunity for gross negligence and
certain loss of consortium claims. We reverse the grant of summary
judgment in favor of Weber County and remand.
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8 The County also argues that even if the GIA waives
governmental immunity for Ms. Cunningham‘s claim, that claim
should be dismissed because Cunningham ―does not fit the
definition of an injured person within the Code.‖ Weber County
contends that a loss of consortium claim requires a permanent injury
and that ―there is no evidence that [Cunningham‘s] injury is
permanent.‖ The district court disagreed saying that ―the undisputed
facts demonstrate that [Cunningham] suffered significant
disfigurement as a result of the accident. Therefore, so long as he can
maintain any of his causes of action against [the County], [Ms.
Cunningham‘s] claim for loss of consortium is also viable.‖ But the
district court did not explicitly address whether the injuries were
permanent. Weber County, in essence, asks us to affirm the district
court on an alternate ground apparent from the record. The record
before us does not permit us to do that, but nothing we say in this
opinion should prevent the district court from revisiting the County‘s
argument on remand.
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J. HIMONAS, concurring
JUSTICE HIMONAS, concurring:
¶36 The majority is spot-on: because the Release isn‘t clear and
unmistakable, it‘s unenforceable. We could end our analysis there, as
the majority proposes, supra ¶ 11 n.3, but I‘d take the additional step
of declaring the Release unenforceable for the independent reason
that it covers activities in which there‘s a strong public interest, to
wit, specialized law enforcement training. My unease with the
majority‘s stopping point is that by only ruling on the ambiguity
issue, we‘re suggesting that a differently worded release might pass
muster in the future, despite it covering activities that obviously fall
within the public interest. I‘d clip that allusion now.
¶37 In Utah, preinjury releases are unenforceable if they
(1) ―offend public policy,‖ (2) release ―activities that fit within the
public interest exception,‖ or (3) are ―unclear or ambiguous.‖ Pearce
v. Utah Athletic Found., 2008 UT 13, ¶ 14, 179 P.3d 760 (citations
omitted), abrogated on other grounds by Penunuri v. Sundance Partners,
Ltd., 2017 UT 54, ¶ 28, 423 P.3d 1150. We distinguish ―the public
interest and public policy exceptions . . . in the context of preinjury
releases,‖ although some other jurisdictions don‘t make such a
distinction. Rutherford v. Talisker Canyons Fin., Co., 2019 UT 27, ¶ 19,
445 P.3d 474 (referencing Pearce, 2008 UT 13, ¶ 14; Penunuri v.
Sundance Partners, Ltd., 2013 UT 22, ¶ 25, 301 P.3d 984).
¶38 We apply the six-factor Tunkl test when considering the
public interest exception. See Hawkins v. Peart, 2001 UT 94, ¶¶ 9–10, 9
n.3, 37 P.3d 1062 (quoting Tunkl v. Regents of Univ. of Cal., 383 P.2d
441, 445–46 (Cal. 1963)), superseded by statute on other grounds as
recognized by Penunuri, 2013 UT 22, ¶ 21 n.43. Those factors 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 his
services. [5] In exercising a superior bargaining power
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J. HIMONAS, concurring
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 his agents.
Hawkins, 2001 UT 94, ¶ 9 n.3.9
¶39 The Tunkl test ―identifies the traits of an activity in which an
exculpatory provision may be invalid.‖ Berry v. Greater Park City Co.,
2007 UT 87, ¶ 15, 171 P.3d 442, abrogated on other grounds by Penunuri,
2017 UT 54, ¶ 3. It‘s a flexible test and doesn‘t require all six factors
be met; rather ―the activity at issue need exhibit only a sufficient
number of Tunkl characteristics such that one may be convinced of
the activity‘s affinity to the public interest.‖ Id. ¶ 16. Additionally,
our court has ―adopt[ed] the rule that preinjury releases for
recreational activities are not invalid under the public interest
exception.‖ Pearce, 2008 UT 13, ¶ 21 (emphasis added).
¶40 The County gloms onto this recreational distinction and
suggests that ―[t]raining and education, while not exactly the same as
recreational activities, are certainly more like recreation than
operational functions like rescuing a hostage or stopping a gunman.
In fact, to a law enforcement officer, training is much more
comparable to a recreational or leisure activity than to anything
else.‖ Utter nonsense.
¶41 The public has a strong interest in specialized law
enforcement training, including SWAT training. Without a
competent and confident police force, we would be left without aid
in dangerous and life-threatening situations. The Tunkl analysis
strikingly illustrates the strong public interest in such law
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9 We initially considered the Tunkl test in Hawkins, adopted it in
Berry, subsequently analyzed it in Pearce, and most recently
discussed it in Rutherford. See Tunkl, 383 P.2d at 444–47; Hawkins, 2001
UT 94, ¶¶ 9–10; Berry v. Greater Park City Co., 2007 UT 87, ¶¶ 15–16,
171 P.3d 442, abrogated on other grounds by Penunuri, 2017 UT 54, ¶ 3;
Pearce, 2008 UT 13, ¶¶ 16–21; Rutherford, 2019 UT 27, ¶ 20.
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J. HIMONAS, concurring
enforcement training and why a preinjury release form in this setting
is unacceptable. I take the factors in the order presented above.
¶42 The transaction concerns a business of a type generally thought
suitable for public regulation. Specialized law enforcement training
generally qualifies as a business suitable for public regulation.
Indeed, given the critical role that law enforcement plays in our
society, it strikes me as beyond obvious that such training is suitable
for public regulation.
¶43 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. Law enforcement officers are charged
with performing at a high level in dangerous and uncertain
situations, frequently in response to the public‘s need for protection
or intervention. Thus, I agree with the Cunninghams‘ point that
police training, including SWAT training, is a matter of great
practical necessity for the public.
¶44 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. Here, I focus on the latter part of
the Tunkl language, which indicates that the party (i.e., the County)
must have held itself out as willing to perform the service (i.e., SWAT
training) for any member of the public coming within certain
established standards (i.e., a member of a law enforcement agency that
was signed up by their department for the training). While the
County asserts that its SWAT training is ―extremely selective,‖ its
―30(b)(6) representative testified that the Training is offered to
anyone who receives permission from their [law enforcement]
department and has their department sign them up.‖ Thus, it seems
that the County offered to perform the police SWAT training to
anyone coming within certain established standards.
¶45 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 his services. In this instance, the County had an advantage in
bargaining power over Cunningham with respect to the police
SWAT training. Cunningham was required to complete the Weber
County training to become a member of the Davis County SWAT
team. And although the County points out that there are several
other SWAT trainings to choose from in the state, Cunningham
actually couldn‘t have opted to complete another training because of
the limits Davis County placed on their SWAT team members.
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Cite as: 2022 UT 8
J. HIMONAS, concurring
¶46 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. The County required Cunningham,
and all other SWAT training attendees, to sign a non-negotiable
contract that ―unconditionally and irrevocably release[d] and
discharge[d] the Ogden Metro SWATT [sic] Team and all related
organizations and entities from any and all claims, demands,
damages, actions and causes of action arising, whether directly or
indirectly, from or in connection with my attending or participating
in the described SWAT training.‖ The County didn‘t allow
Cunningham or any other attendees to pay extra for protection
against negligence. This inability of participants to purchase
additional insurance or protection exemplifies the notion that the
County was exercising a superior bargaining power.
¶47 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 his agents. The County controlled the Ogden
City Metro SWAT training, which left Cunningham completely
exposed to its negligence.
¶48 For these reasons, I‘d hold that the Ogden City Metro SWAT
training preinjury release form signed by Cunningham is
unenforceable both because it‘s ambiguous and because it‘s contrary
to the public interest.
15