Will a Utah court enforce a release or exculpatory clause against the drafter's own negligence?
Only if clear and unmistakable, and never for gross negligence. Utah respects the ability of parties bargaining at arm's length to agree that one may waive its ability to sue for injuries arising out of the other's negligence before any injury, but such arrangements are unenforceable unless they are clear and unmistakable about both parties' intentions; the court demands precision, so that a reasonable person reading the document would understand she is changing the default setting and giving up her right to recover damages caused by another party's negligence, and it will not imply that intention. A release need not use specific words to be clear and unmistakable (Cunningham v. Weber County, 2022). On public policy grounds the Utah Supreme Court has disallowed liability waivers for grossly negligent acts while permitting those that release liability stemming from negligent acts (Ipsen v. Diamond Tree Experts, 2020, a three to two decision about the professional rescuer rule, describing prior law and citing Hawkins v. Peart, which the court noted is superseded by statute on other grounds, for the rule that a release is always invalid if it applies to harm wilfully inflicted or caused by gross or wanton negligence).
The trap
A release that can reasonably be read two ways about what it releases fails: Cunningham held the release there was not clear and unmistakable, reversed the summary judgment built on it, and did not reach public policy. It also expressly left open the separate question whether that release was clear and unmistakable about who it released, so the who half of the test is not settled. No drafting reaches gross negligence. Specific words are not required, but carve-outs matter: Cunningham described Freund's exclusion of intentional wrongdoing and willful negligence as what made the indemnity clear and unmistakable as to negligence.
11 authorities
The words that state the rule
That is not to say that a release must use specific words to make its intent clear and unmistakable.
The words that state the rule
But in another context—that of liability waivers—this court has found that the difference between ordinary and gross negligence does matter.12 On public policy grounds, we have disallowed liability waivers for grossly negligent acts while permitting those that release liability stemming from negligent acts.13 See, e.g., Hawkins v. Peart, 2001 UT 94, ¶ 9, 37 P.3d 1062, superseded by statute on other grounds as stated in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984 (noting that a liability release “is always invalid if it applies to harm wilfully inflicted or caused by gross or wanton negligence” (citation omitted)).
The words that state the rule
The preinjury release Cunningham signed was neither clear nor unmistakable and is therefore unenforceable.
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
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.
The words that state the rule
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.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.