UTAH
Likelihood of Enforcement: Moderate
A. Pre-Injury Liability Waivers
Preinjury releases from liability for negligent actions are generally enforceable in Utah unless the party challenging the release can establish that (1) the release offends public policy, (2) the activity the release governs fits within a public interest exception, or (3) the release is unclear or ambiguous. Rutherford v. Talisker Canyons Finance, Co., 445 P.3d 474, 481-82 (Utah 2019). A liability waiver is also always invalid if it “applies to harm [willfully] inflicted or caused by gross or wanton negligence.” Russ v. Woodside Homes, Inc., 905 P.2d 901, 904 (Utah Ct. App. 1995).
i. Public Policy Exception
To determine whether a liability waiver violates public policy, Utah courts will consider the policies advanced by the state constitution, state statutes, and the common law. Id.; see also Rothstein v. Snowbird Corp., 175 P.3d 560, 563 (Utah 2007) (holding that Utah’s Inherent Risks of Skiing Act established by implication that a ski area operator’s liability waiver violated public policy); Pearce v. Utah Athletic Found., 179 P.3d 760, 650 (Utah 2008) (holding that liability waivers for bobsled park operators do not violate public policy because, unlike ski resorts, bobsled parks were not regulated). 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, (Utah 2008); Hawkins ex rel. Hawkins v. Peart, 37 P.3d 1062 (Utah 2001).
ii. Public Interest Exception
In Berry v. Greater Park City Co., the Utah Supreme Court adopted the six-part test from Tunkl v. Regents of University of California, 383 P.2d 441, 444-47 (Cal. 1963) to determine whether a liability waiver violates public policy. 171 P.3d 442, 447 (Utah 2007). The Tunkl test asks whether:
“[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 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.”
Id. The party opposing enforcement of a liability waiver does not have to prove each criteria is met –the contract “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. The Utah Supreme Court has established a bright-line rule that “preinjury releases for recreational activities are not invalid under the public interest exception.” Pearce, 179 P.3d at 767; see also Russ, 905 P.2d at 907 (noting that “state agencies, utilities, innkeepers, common carriers, and public warehousers” are traditionally public servants under Tunkl).
iii. Unclear or Ambiguous Releases
Utah courts will invalidate a liability waiver if it does not communicate the intent to release a party from liability for negligence in “a clear and unequivocal manner.” Berry, 171 P.3d at 447 n.2. Waiver of liability for negligence “is not achieved by inference or implication from general language.” dōTERRA International, LLC v. Kruger, 491 P.3d 939, 945 (Utah 2021) (holding that broad exculpatory language that did not mention “personal injury or tort liability” did not clearly bar personal injury claims). However, the Utah Court of Appeals has held that the exculpatory language does not need to refer to negligence explicitly if the “intention . . . can be ‘clearly implied from the language and purposes of the entire agreement.’” Russ, 905 P.2d at 905 (quoting Freund v. Utah Power & Light Co., 793 P.2d 362, 370 (Utah 1990)).[1]
B. Waivers Signed By Parents on Behalf of Minor Children
Utah’s Supreme Court has held that both pre- and post-injury liability waivers signed by parents on behalf of their minor children are against public policy and therefore unenforceable. Hawkins ex rel. Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001); see also Rutherford, 445 P.3d 474 (reaffirming Hawkins). Parents also cannot indemnify another party against the legal consequences of an injury to their child. Hawkins, 37 P.3d at 1066-67. Utah’s legislature has allowed parents to sign liability waivers on behalf of their children in a few narrow instances, including where the child is participating in equestrian activities, Utah Code Ann. § 78B-4-203 (West 2021), or the child is skiing, Utah Code Ann. § 78B-4-405 (West 2021).
Last updated 03/2022
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.