Penunuri v. Sundance Partners, Ltd. , 732 Utah Adv. Rep. 28 ( 2013 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 22IN THE
SUPREME COURT OF THE STATE OF UTAH
LISA PENUNURI and BARRY SIEGWART,
Appellants,
v.
SUNDANCE PARTNERS, LTD; SUNDANCE HOLDINGS, LLC;
SUNDANCE DEVELOPMENT CORP; ROBERT REDFORD;
REDFORD 1970 TRUST; ROCKY MOUNTAIN OUTFITTERS, L.C.;
and DOES I-X,
Appellees.
No. 20110565
Filed April 9,2013
Fourth District, Provo Dep’t
The Honorable Claudia Laycock
No. 080400019
On Certiorari to the Utah Court of Appeals
Attorneys:
Robert D. Strieper, Salt Lake City, for appellants
H. Burt Ringwood, A. Joseph Sano, Salt Lake City, for appellees
CHIEF JUSTICE DURRANT authored the opinion of the Court,
in which ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE PARRISH joined.
JUSTICE LEE filed a concurring opinion.
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 Ms. Penunuri was injured while participating in a guided
horseback ride near Sundance Resort. Before the ride, she signed a
release (Waiver), in which she waived her right to sue Defendants
(collectively, Sundance) for injuries caused by Sundance’s ordinary
negligence. In this appeal, Ms. Penunuri asks us to find that the
Waiver is unenforceable under the Limitations on Liability for
PENUNURI v. SUNDANCE
Opinion of the Court
Equine and Livestock Activities Act (Equine Act)1 and that it violates
the public policy expressed in the Equine Act.
¶2 We first consider whether the Waiver is unenforceable
under the Equine Act. We conclude that the Equine Act establishes
no public policy that invalidates preinjury releases for ordinary
negligence. Second, we consider whether the Equine Act is suffi-
ciently similar to Utah’s Inherent Risks of Skiing Act (Skiing Act)2
such that the “public policy bargain” we inferred from the language
of the Skiing Act in Rothstein v. Snowbird Corp.3 similarly invalidates
preinjury releases under the Equine Act. Because the Equine Act
lacks the discussion of public policy contained in the Skiing Act, we
decline to infer that the Equine Act was the result of a public policy
bargain. Accordingly, we conclude that the Waiver is enforceable
and does not violate public policy.
BACKGROUND
¶3 On August 1, 2007, Ms. Penunuri participated in a guided
horseback ride operated by Sundance. Before the ride began,
Ms. Penunuri signed the Waiver. The Waiver explained that
horseback riding involves “significant risk of serious personal
injury,” and that there are certain “inherent risks” associated with
the activity, including “the propensity of the animal to behave in
ways that may result in injury, harm, or death to persons on or
around them.” The Waiver also purported to release Sundance from
liability for its ordinary negligence, providing as follows: “I ex-
pressly agree to assume all risks of personal injury, falls, accidents,
and/or property damage, including those resulting from any
negligence of [Sundance] . . . .”
¶4 The riding party consisted of five participants and one
guide, arranged in single file with the guide in front and
Ms. Penunuri in the rear. During the ride, a gap formed between
Ms. Penunuri and the eight-year-old rider in front of her. After some
1
UTAH CODE § 78B-4-201 to -203. Except where otherwise noted,
we cite to the current version of the Utah Code in this opinion
“because no substantive changes have been made to the relevant
statutory provisions that would affect the resolution of the issues
presented on appeal.” See State v. Maestas, 2012 UT 46, ¶ 1 n.1, ___
P.3d ___.
2
UTAH CODE § 78B-4-401 to -404.
3
2007 UT 96, ¶¶ 15–16, 175 P.3d 560.
2
Cite as: 2013 UT 22Opinion of the Court
of the riders asked the guide to slow down or stop to close the gap,
the guide stated that she would hold the eight-year-old’s reins to
keep the train of horses together. But before she could do so,
Ms. Penunuri’s horse suddenly accelerated to close the gap and
catch up with the other horses. Ms. Penunuri asserts that the sudden
acceleration caused her to fall to the ground and that she suffered
serious injuries as a result.
¶5 Ms. Penunuri sued Sundance, alleging negligence, gross
negligence, and vicarious liability. She then filed a motion for partial
summary judgment, arguing that the Waiver was unenforceable
under the Equine Act. The district court denied her motion, finding
that the Waiver was valid and enforceable. Accordingly, the court
dismissed all of Ms. Penunuri’s claims except her claim for gross
negligence.
¶6 After the district court certified its order as final pursuant
to rule 54(b) of the Utah Rules of Civil Procedure, Ms. Penunuri
appealed. The court of appeals determined that the 54(b) certification
was improper, but exercised its discretion to treat Ms. Penunuri’s
appeal as a petition for permission to appeal from an interlocutory
order. The court permitted Ms. Penunuri to appeal, but ultimately
affirmed the district court’s ruling, concluding that the Waiver was
valid and enforceable.4 Specifically, the court concluded that neither
the Equine Act nor public policy invalidates preinjury releases for
horseback riding.5
¶7 Ms. Penunuri then filed a petition for writ of certiorari. We
granted her petition to consider whether the court of appeals erred
in construing the Equine Act to permit releases of liability for
ordinary negligence. We have jurisdiction over this matter pursuant
to section 78A-3-102(3)(a) of the Utah Code.
STANDARD OF REVIEW
¶8 “On certiorari, we review the decision of the court of
appeals, not the trial court.”6 And “[a]s the decision of the court of
appeals rests on questions of statutory interpretation, we review it
for correctness, affording no deference to the court of appeals’ legal
4
Penunuri v. Sundance Partners, Ltd., 2011 UT App 183, ¶¶ 12–19,
257 P.3d 1049.
5
Id.6
Fla. Asset Fin. Corp. v. Utah Labor Comm’n, 2006 UT 58, ¶ 8, 147
P.3d 1189 (internal quotation marks omitted).
3
PENUNURI v. SUNDANCE
Opinion of the Court
conclusions.”7 Further, summary judgment is appropriate only when
“there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.”8
ANALYSIS
¶9 Section 202 of the Equine Act provides that equine activity
sponsors9 are not liable for injuries caused by the “inherent risks”
associated with equine activities.10 “Inherent risk” is defined under
the Equine Act as “those dangers or conditions which are an integral
part of equine or livestock activities,” including, among other things,
“the propensity of the animal to behave in ways that may result in
injury” and “the unpredictability of the animal’s reaction to outside
stimulation.”11
¶10 But section 202 does not completely eliminate an equine
sponsor’s liability. In relevant part, section 202 provides as follows:
(2) An equine activity sponsor, equine professional,
livestock activity sponsor, or livestock professional is
not liable for an injury to or the death of a participant
due to the inherent risks associated with these activi-
ties, unless the sponsor or professional:
(a)(i) provided the equipment or tack;
(ii) the equipment or tack caused the injury; and
(iii) the equipment failure was due to the spon-
sor’s or professional’s negligence;
(b) failed to make reasonable efforts to determine
whether the equine or livestock could behave in a
manner consistent with the activity with the partici-
pant;
(c) owns, leases, rents, or is in legal possession and
control of land or facilities upon which the partici-
7
Id.8
UTAH R. CIV. P. 56(c).
9
“Equine activity sponsor” is defined in the Equine Act as an
individual or group “which sponsors, organizes, or provides
facilities for an equine activity,” including horseback riding. UTAH
CODE § 78B-4-201(3).
10
Id. § 78B-4-202(2).
11
Id. § 78B-4-201(5).
4
Cite as: 2013 UT 22Opinion of the Court
pant sustained injuries because of a dangerous
condition which was known to or should have been
known to the sponsor or professional and for which
warning signs have not been conspicuously posted;
(d)(i) commits an act or omission that constitutes
negligence, gross negligence, or willful or wanton
disregard for the safety of the participant; and
(ii) that act or omission causes the injury; or
(e) intentionally injures or causes the injury to the
participant.12
¶11 While section 202 eliminates liability for the inherent risks
of equine activities, section 203 requires sponsors to provide notice
to participants that the sponsor is not liable for those risks.13 Section
203 requires that the “[n]otice shall be provided” either by “posting
a sign in a prominent location within the area being used for the
activity” or by “providing a document or release for the participant,
or the participant’s legal guardian if the participant is a minor, to
sign.”14
¶12 Below, we first consider whether preinjury releases of
liability for ordinary negligence are enforceable under the Equine
Act. Second, we consider whether the public policy bargain we
inferred from the language of the Skiing Act in Rothstein15 should be
similarly inferred from the language of the Equine Act, which would
render preinjury releases of ordinary negligence unenforceable as
violating public policy.
I. THE EQUINE ACT DOES NOT INVALIDATE
PREINJURY RELEASES OF LIABILITY FOR
ORDINARY NEGLIGENCE
¶13 Ms. Penunuri argues that section 202 of the Equine Act
prohibits a sponsor from using a preinjury release to escape liability
12
Id. § 78B-4-202(2) (emphasis added).
13
Id. § 78B-4-203(1) (“An equine or livestock activity sponsor shall
provide notice to participants of the equine or livestock activity that
there are inherent risks of participating and that the sponsor is not
liable for certain of those risks.”).
14
Id. § 78B-4-203(2).
15
See Rothstein v. Snowbird Corp., 2007 UT 96, ¶¶ 15–16, 175 P.3d
560.
5
PENUNURI v. SUNDANCE
Opinion of the Court
for its negligent acts.16 She asserts that by protecting equine activity
sponsors from liability arising out of the inherent risks associated
with equine activities, the Legislature impliedly intended that they
remain liable for all other claims. Ms. Penunuri also directs our
attention to legislative debates that, she argues, support her
interpretation of the statute. Further, while noting that section 203
mentions that a sponsor may provide a “release” for a participant to
sign, Ms. Penunuri argues that the content of such a release must be
limited to providing the notice required by that section.
¶14 The court of appeals concluded that reading section 202 to
invalidate preinjury releases “stretches the statutory language past
its plain meaning.”17 Instead, the court concluded that while “section
202 protects a sponsor from liability arising from the inherent risks
of equine activities unless the sponsor is negligent . . . the sponsor
remains free to assert all other applicable defenses, including, if
appropriate, release.”18 Regarding section 203, the court declined
Ms. Penunuri’s invitation to read “‘release’ . . . to refer merely to a
document notifying the participant that the sponsor is insulated
against claims arising from certain inherent risks of participating in
the activity.”19 The court concluded that “[b]ecause the statutory
term ‘document’ already conveys this meaning, such a reading
would impermissibly render ‘release’ redundant.”20 We agree.
¶15 When we interpret a statute, “our primary objective is to
ascertain the intent of the legislature.”21 Because “[t]he best evidence
of the legislature’s intent is the plain language of the statute itself,”22
16
Whether a preinjury release would be enforceable if it pur-
ported to release a sponsor’s liability for gross negligence is not at
issue in this appeal.
17
Penunuri v. Sundance Partners, Ltd., 2011 UT App 183, ¶ 13, 257
P.3d 1049.
18
Id.19
Id. ¶ 14.
20
Id.
21
Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21,
266 P.3d 751.
22
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14,
267 P.3d 863 (internal quotation marks omitted).
6
Cite as: 2013 UT 22Opinion of the Court
we look first to the plain language of the statute.23 “We presume that
the legislature used each word advisedly and read each term
according to its ordinary and accepted meaning.”24 “Additionally,
we presume[] that the expression of one [term] should be inter-
preted as the exclusion of another,” and “[w]e therefore seek to give
effect to omissions in statutory language by presuming all omissions
to be purposeful.”25 But we do not view individual words and
subsections in isolation; instead, our statutory interpretation
“requires that each part or section be construed in connection with
every other part or section so as to produce a harmonious whole.”26
Thus, we “interpret[] statutes to give meaning to all parts, and
avoid[] rendering portions of the statute superfluous.”27
¶16 Further, “[w]hen the meaning of [a] statute can be discerned
from its language, no other interpretive tools are needed.”28
Accordingly, it is only “when statutory language is ambiguous—in
that its terms remain susceptible to two or more reasonable interpre-
tations after we have conducted a plain language analysis”—that we
“resort to other modes of statutory construction,” such as legislative
history.29
¶17 In this case, the Equine Act eliminates a sponsor’s liability
for injuries caused by risks that are inherent to equine activities, but
retains sponsor liability for injuries that are caused in part by the
sponsor’s own negligence.30 For example, a horse’s “propensity . . .
to behave in ways that may result in injury” to its rider is an
“inherent risk” of horseback riding.31 Consequently, under the
Equine Act, if that propensity caused injury to a rider, the sponsor
23
Ivory Homes, 2011 UT 54, ¶ 21.
24
Id. (internal quotation marks omitted).
25
Marion Energy, 2011 UT 50, ¶ 14 (first and second alterations in
original) (internal quotation marks omitted).
26
Ivory Homes, 2011 UT 54, ¶ 21 (internal quotation marks
omitted).
27
LKL Assocs., Inc. v. Farley, 2004 UT 51, ¶ 7, 94 P.3d 279.
28
Marion Energy, 2011 UT 50, ¶ 15 (second alteration in original)
(internal quotation marks omitted).
29
Id.30
UTAH CODE § 78B-4-202(1)–(2).
31
See id. § 78B-4-201(5)(a).
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PENUNURI v. SUNDANCE
Opinion of the Court
would generally not be liable.32 But if the injuries occurred after the
sponsor “failed to make reasonable efforts to determine whether the
[horse] could behave in a manner consistent with” horseback riding,
then the sponsor would remain liable under the Equine Act.33 Thus,
the Equine Act eliminates a participant’s ability to recover damages
for injuries resulting from the inherent risks of equine activities
unless the injuries resulted from a sponsor’s negligence.
¶18 But the fact that the Equine Statute does not eliminate a
sponsor’s liability for negligence does not mean that the Legislature
intended to invalidate preinjury waivers for ordinary negligence. In
other words, “[n]owhere does the text suggest that [equine spon-
sors] may not contractually further limit their liability for risks that
are not inherent” to equine activities.34
¶19 Indeed, in other contexts, the Legislature has expressly
invalidated particular contractual waivers, stating that they are
“void and unenforceable” as contrary to public policy.35 But the
Equine Act contains no such expression. We “give effect” to this
omission “by presuming [it] to be purposeful,”36 and conclude that
the Equine Act does not invalidate preinjury releases of liability for
ordinary negligence.
¶20 This conclusion is supported by the Legislature’s use of the
word “release” in section 203. Specifically, section 203 requires that
sponsors “provide notice to participants . . . that there are inherent
risks of participating and that the sponsor is not liable for certain of
32
See id. § 78B-4-202(2).
33
Id. § 78B-4-202(2)(b).
34
See Rothstein v. Snowbird Corp., 2007 UT 96, ¶ 26, 175 P.3d 560(Wilkins, J., dissenting).
35
E.g., UTAH CODE § 78B-6-707 (“Any clause in a sales contract or
collateral document that requires a purchaser or end user of a
product to indemnify, hold harmless, or defend a manufacturer of
a product is contrary to public policy and void and unenforceable if
a defect in the design or manufacturing of the product causes an
injury or death.”); id. § 13-8-1(2) (Except in enumerated
circumstances, “an indemnification provision in a construction
contract is against public policy and is void and unenforceable.”).
36
See Marion Energy, 2011 UT 50, ¶ 14.
8
Cite as: 2013 UT 22Opinion of the Court
those risks.”37 Further, the statute requires that the “[n]otice shall be
provided by” either “posting a sign in a prominent location,” or
“providing a document or release for the participant, or the partici-
pant’s legal guardian if the participant is a minor, to sign.”38
¶21 We do not read “release” to refer merely to a document that
provides the required notice. As the court of appeals noted,
“[b]ecause the statutory term ‘document’ already conveys this
meaning, such a reading would impermissibly render ‘release’
redundant.”39 Further, “a release does more than provide notice.”40
A release is “[t]he relinquishment or concession of a right . . . or
claim.”41 Thus, if we were to adopt Ms. Penunuri’s reading, the
statute would permit a participant to “release” a right which she
does not have under the Equine Act—a right to recover for injuries
caused by the inherent risks of horseback riding. Instead, we read
“release” to have its “ordinary and accepted meaning.”42 Thus, we
conclude that the statute contemplates that equine sponsors might
seek preinjury releases from participants.43
¶22 We conclude that the statute is unambiguous. Thus, we
decline to consider “other modes of statutory construction,”
37
UTAH CODE § 78B-4-203(1).
38
Id. § 78B-4-203(2) (emphasis added).
39
Penunuri, 2011 UT App 183, ¶ 14.
40
Id.41
BLACK’S LAW DICTIONARY 1403 (9th ed. 2009).
42
See Ivory Homes, 2011 UT 54, ¶ 21 (internal quotation marks
omitted).
43
Section 203 permits a parent to sign a “release” on behalf of a
minor. UTAH CODE § 78B-4-203(2)(b). But in Hawkins ex rel. Hawkins
v. Peart, we held that a parent’s preinjury release of a minor’s claim
is unenforceable as a violation of public policy. 2001 UT 94, ¶¶
10–11, 37 P.3d 1062. Thus, Ms. Penunuri argues that the statute
makes sense only if “release” cannot include a preinjury release. But
although the Equine Act was enacted in 1993, the notice requirement
was not added until 2003. See UTAH CODE § 78-27b-101 to 102 (1993);
UTAH CODE § 78-27b-101 (2003). Thus, the statutory language
permitting a parent to sign a release on behalf of a minor was added
two years after we issued our opinion in Hawkins. Accordingly, to
the extent the Equine Act conflicts with Hawkins, the Equine Act
would control and effectively overrule our conclusion in Hawkins.
9
PENUNURI v. SUNDANCE
Opinion of the Court
including legislative history.44 And ultimately, we adopt the
reasoning expressed by the court of appeals: although “section 202
protects a sponsor from liability arising from the inherent risks of
equine activities unless the sponsor is negligent . . . the sponsor
remains free to assert all other applicable defenses, including, if
appropriate, release.”45 We therefore conclude that the Equine Act
does not invalidate preinjury releases of liability for ordinary
negligence.
II. PREINJURY RELEASES DO NOT VIOLATE
PUBLIC POLICY UNDER THE EQUINE ACT
¶23 Ms. Penunuri argues that the Waiver is unenforceable as a
violation of public policy. Specifically, she argues that the Equine
Act was modeled after—and enacted for the same purpose as—the
Skiing Act.46 Relying on Rothstein v. Snowbird Corp., in which we
invalidated a preinjury release as a violation of the public policy
expressed in the Skiing Act,47 Ms. Penunuri argues that preinjury
releases are similarly unenforceable under the Equine Act.
¶24 The court of appeals concluded that preinjury releases do
not violate public policy under the Equine Act. The court began with
a thorough analysis of our Rothstein decision, noting that our
analysis was grounded in the public policy expressed by the
Legislature in the first section of the Skiing Act.48 Because “[t]he
Equine Act has no equivalent statement of public policy,” the court
concluded that preinjury releases do not violate public policy under
the Equine Act.49 We agree.
¶25 It is well settled that preinjury releases of claims for
ordinary negligence can be valid and enforceable.50 Indeed, “[w]e
have joined the majority of jurisdictions in permitting people to
surrender their rights to recover in tort for the negligence of
44
See Marion Energy, 2011 UT 50, ¶ 15.
45
Penunuri, 2011 UT App 183, ¶ 13.
46
See UTAH CODE § 78B-4-401 to -404.
47
2007 UT 96, ¶¶ 15–16, 175 P.3d 560.
48
Penunuri v. Sundance Partners, Ltd., 2011 UT App 183, ¶¶ 17–18,
257 P.3d 1049 (citing Rothstein, 2007 UT 96).
49
Id. ¶ 19.
50
Rothstein, 2007 UT 96, ¶ 6.
10
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others.”51 But “preinjury releases are not unlimited in power and can
be invalidated in certain circumstances.”52 Specifically, “(1) releases
that offend public policy are unenforceable; (2) releases for activities
that fit within the public interest exception53 are unenforceable; and
(3) releases that are unclear or ambiguous are unenforceable.”54 In
this case, Ms. Penunuri does not argue that the Waiver is ambiguous
or that horseback riding constitutes a public interest. Thus, we
consider only whether the Waiver is unenforceable as a violation of
public policy.55
¶26 To determine whether a contract offends public policy, we
first determine whether an established public policy has been
expressed in either constitutional or statutory provisions or the
51
Id.52
Pearce v. Utah Athletic Found., 2008 UT 13, ¶ 14, 179 P.3d 760.
53
Though similar in name, an analysis of the public policy
exception and an analysis of the public interest exception begin at
different points and require different considerations. Specifically, to
determine whether an exculpatory provision is contrary to public
policy, we first determine whether a public policy has been estab-
lished in the common law or in constitutional or statutory provi-
sions. See Rackley v. Fairview Care Ctrs., Inc., 2001 UT 32, ¶ 16, 23 P.3d
1022; see also infra ¶ 26 n.55. On the other hand, to determine
whether an exculpatory provision is invalid under the public interest
exception, we consider a variety of aspects of the contract, including
whether “[t]he party seeking exculpation is engaged in performing
a service of great importance to the public,” and whether, “[a]s 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.” Pearce, 2008 UT 13, ¶ 17 (internal
quotation marks omitted).
54
Pearce, 2008 UT 13, ¶ 14 (citations omitted).
55
Although the Utah Association for Justice argues in its amicus
brief that preinjury releases violate the public interest, it is a “well-
settled rule that an amicus brief cannot extend or enlarge the issues
on appeal,” and that we will “only consider[] those portions of the
amicus brief that bear on the issues pursued by the parties to th[e]
appeal.” Madsen v. Borthick, 658 P.2d 627, 629 n.3 (Utah 1983).
Accordingly, we decline to consider whether the Waiver is ambigu-
ous or violates the public interest.
11
PENUNURI v. SUNDANCE
Opinion of the Court
common law.56 We have held that “[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.”57 But “the term ‘public policy’
is so broad in the abstract that it eludes a reasonably precise
definition for legal purposes.”58 And we have noted that “[t]o pluck
a principle of public policy from the text of a statute and to ground
a decision of this court on that principle is to invite judicial mis-
chief.”59 Accordingly, we have held that “the theory of public policy
embodies a doctrine of vague and variable quality, and, unless
deducible in the given circumstances from constitutional or
statutory provisions, should be accepted as the basis of a judicial
determination, if at all, only with the utmost circumspection.”60
¶27 In some instances, the Legislature unequivocally expresses
its view that certain contractual provisions are unenforceable as
against public policy. For example, section 78B-6-707 of the Utah
Code provides that “[a]ny clause . . . that requires a purchaser or end
user of a product to indemnify, hold harmless, or defend a manufac-
turer of a product is contrary to public policy and void and unen-
forceable.” Similarly, section 13-8-1(2) of the Utah Code provides
that “an indemnification provision in a construction contract is
against public policy and is void and unenforceable” except in
specific circumstances.
56
See Rothstein, 2007 UT 96, ¶ 20 (relying on the Legislature’s
explicit statement of public policy in the Skiing Act to conclude that
a ski resort could not enforce a preinjury release of a skier’s
negligence claims against a ski resort); Hawkins ex rel. Hawkins v.
Peart, 2001 UT 94, ¶¶ 10–12, 37 P.3d 1062 (relying on the public
policy expressed in various provisions of the Utah Code as well as
by a “clear majority of courts”); Berube v. Fashion Ctr., Ltd., 771 P.2d
1033, 1043 (Utah 1989) (noting that public policy may be found in
constitutional or statutory provisions, as well as judicial pronounce-
ments); see also Rackley, 2001 UT 32, ¶ 16 (noting that in the
employment-at-will context, “public policy is ‘clear’ if it is plainly
defined by one of three sources: (1) legislative enactments; (2)
constitutional standards; or (3) judicial decisions”).
57
Ockey v. Lehmer, 2008 UT 37, ¶ 21, 189 P.3d 51 (internal quota-
tion marks omitted).
58
Fox v. MCI Commc’ns Corp., 931 P.2d 857, 860 (Utah 1997).
59
Rothstein, 2007 UT 96, ¶ 10.
60
Berube, 771 P.2d at 1043 (quoting Patton v. United States, 281 U.S.
276, 306 (1930)).
12
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¶28 In the absence of this sort of statutory language, we have
looked to public policy expressed in the common law or suggested
by the statutory text. For example, in Hawkins ex rel. Hawkins v. Peart,
we looked to public policy suggested by various provisions of the
Utah Code when we considered the enforceability of a preinjury
release signed by a mother on behalf of her minor daughter.61 In
concluding that the release was unenforceable, we relied on a
“public policy exception” indicated by Utah statues and rules that
“provides various checks on parental authority to ensure a child’s
interests are protected” and indicate “public policies favoring
protection of minors with respect to contractual obligations.”62
Further, we noted that “[a] clear majority of courts treating the issue
have held that a parent may not release a minor’s prospective claim
for negligence.”63 Specifically, we agreed that “[s]ince a parent
generally may not release a child’s cause of action after injury, it
makes little, if any, sense to conclude a parent has authority to
release a child’s cause of action prior to an injury.”64
¶29 And in Rothstein, we looked to public policy expressed in
the statute itself when we considered the enforceability of a
preinjury release signed by a skier.65 The preinjury release at issue
waived the skier’s right to recover damages arising from “the risks
of skiing or from any other cause including the negligence” of the ski
resort.66 Turning to the language of the Skiing Act, we concluded
that by waiving the resort’s liability for negligence, the release
“breached [the] public policy bargain” struck by the statute.67 And
although the Skiing Act does not mention preinjury releases for
negligence, we concluded that “[f]ew legislative expressions of
public policy speak more clearly to an issue . . . than the public
policy rationale for [the Skiing Act] speaks to preinjury releases for
negligence.”68
61
2001 UT 94, ¶¶ 1, 11–12.
62
Id. ¶¶ 10–12.
63
Id. ¶ 10.
64
Id. (alteration in original) (internal quotation marks omitted).
65
Rothstein, 2007 UT 96, ¶ 1.
66
Id. ¶ 4 (internal quotation marks omitted).
67
Id. ¶ 16.
68
Id. ¶ 11.
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PENUNURI v. SUNDANCE
Opinion of the Court
¶30 The first section of the Skiing Act is entitled “Public Policy”
and provides as follows:
The Legislature finds that the sport of skiing is prac-
ticed by a large number of residents of Utah and
attracts a large number of nonresidents, significantly
contributing to the economy of this state. It further
finds that few insurance carriers are willing to provide
liability insurance protection to ski area operators and
that the premiums charged by those carriers have
risen sharply in recent years due to confusion as to
whether a skier assumes the risks inherent in the sport
of skiing. It is the purpose of this act, therefore, to
clarify the law in relation to skiing injuries and the
risks inherent in that sport, to establish as a matter of
law that certain risks are inherent in that sport, and to
provide that, as a matter of public policy, no person
engaged in that sport shall recover from a ski operator
for injuries resulting from those inherent risks.69
¶31 Based upon this language, we concluded that the “central
purpose of the Act . . . was to permit ski area operators to purchase
insurance at affordable rates.”70 Additionally, we concluded that the
statutory language evidenced a bargain struck by the Legislature: by
removing liability for the inherent risks of skiing, ski area operators
could purchase cheaper insurance, and in exchange, they would be
required to retain liability for risks that are not inherent to skiing.71 In
light of this bargain, we concluded that the Legislature intended to
prohibit preinjury releases. Specifically, we held that “[b]y expressly
designating a ski area operator’s ability to acquire insurance at
reasonable rates as the sole reason” for enacting the Skiing Act, “the
Legislature authoritatively put to rest the question of whether ski
area operators are at liberty to use preinjury releases to significantly
pare back or even eliminate their need to purchase the very liability
insurance the Act was designed to make affordable. They are not.”72
69
UTAH CODE § 78B-4-401.
70
Rothstein, 2007 UT 96, ¶ 15.
71
Id. ¶ 16.
72
Id. The dissent, however, concluded that the statute expressed
no such bargain. Id. ¶ 26 (Wilkins, J., dissenting). Instead, the dissent
asserted that the statute “simply proscribes lawsuits against ski area
(continued...)
14
Cite as: 2013 UT 22Opinion of the Court
¶32 In this case, the Equine Act is silent regarding public policy.
Indeed, neither “public policy” nor any similar phrase appears in
any section of the Act. Accordingly, because a public policy is not
“deducible . . . from constitutional or statutory provisions,” we may
infer a public policy in the Equine Act “if at all, only with the utmost
circumspection.”73 But unlike the Skiing Act, the Equine Act does
not explain the motivation behind the Legislature’s decision to
eliminate liability for inherent risks for equine activities. Further, the
Equine Act contains no statement regarding the importance of
equine activities on the tourism industry or the difficulty equine
sponsors face in purchasing insurance at affordable rates.
¶33 Thus, we cannot conclude that the “central purpose” of the
Equine Act was to permit equine sponsors “to purchase insurance
at affordable rates.”74 And as discussed above, it was that “central
purpose” of the Skiing Act, as expressed by the Legislature, that led
us to infer that the Legislature had struck a “public policy bargain”
when it eliminated liability for the inherent risks of skiing.75 But
there is not a similar expression of purpose in the Equine Act, and
we “resist the temptation to add language or meaning to the Act
where no hint of it exists in the text.”76 We cannot infer that, by
removing liability for the inherent risks of equine activities, the
Legislature intended that equine sponsors be precluded from
escaping liability for their negligent acts. We therefore conclude that
preinjury waivers for ordinary negligence do not violate public
policy under the Equine Act.
CONCLUSION
72
(...continued)
operators for those risks that are inherent to skiing. Nowhere does
the text suggest that ski area operators may not contractually further
limit their liability for risks that are not inherent to skiing. In fact, the
text is silent about whether an individual may or may not sue a ski
area operator on some other basis.” Id. (citation omitted). Accord-
ingly, the dissent concluded that we should “resist the temptation to
add language or meaning to the Act where no hint of it exists in the
text.” Id.73
See Berube, 771 P.2d at 1043 (quoting Patton, 281 U.S. at 306).
74
See Rothstein, 2007 UT 96, ¶ 15.
75
Id. ¶¶ 15–16.
76
Id. ¶ 26 (Wilkins, J., dissenting).
15
PENUNURI v. SUNDANCE
JUSTICE LEE: concurring in part,
concurring in the judgment
¶34 We conclude that the Equine Act does not invalidate
preinjury releases for ordinary negligence. Further, we conclude that
the Equine Act does not evidence a public policy bargain struck by
the Legislature, and that our rationale in Rothstein is inapplicable to
the Equine Act. Accordingly, we conclude that the Waiver is
enforceable, and we affirm the decision of the court of appeals.
____________
JUSTICE LEE, concurring in part, concurring in the judgment:
¶35 I write separately only to note my disagreement with
Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560, which the
majority restates and then distinguishes. I see no logical or legal
basis for Rothstein’s conclusion that enforcement of a ski resort’s
release waiving liability for negligence “breached [the] public policy
bargain” struck by the Inherent Risks of Skiing Act, UTAH CODE
§§ 78B-4-401 to -404. Rothstein, 2007 UT 96, ¶ 16. Even if the “central
purpose” of that statute was to “permit ski area operators to
purchase insurance at affordable rates,” it could hardly follow that
“the Legislature [thereby] authoritatively” renounced the
enforceability of written waivers of liability for negligence. Id.¶¶ 15–16. Enforcement of such releases could only further advance
the stated goal—making insurance even more affordable. I would
therefore repudiate Rothstein instead of distinguishing it in a manner
that tends to reinforce it.
16