Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.

The decision states that under Utah law gross negligence must always be decided by the trier of fact.

Pearce v. Utah Athletic Foundation, 2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16

The plaintiff in this case was injured while riding as a passenger on a four man bobsled at the Utah Winter Sports Park (UWSP). The bobsled ride caused the plaintiff’s vertebrae “to shatter, propelling a bone fragment toward his spinal column” from the g-force. The plaintiff sued for negligence and gross negligence. The UWSP raised the defense of release. The trial court granted the defendant’s motion for summary judgment for both simple or ordinary negligence and gross negligence.

The plaintiff in making his allegations listed ways the UWSP failed to take care of its riders:

1. The Sports Park did not obtain or review any of SLOC’s (Salt Lake Organizing Committee the parent of the UWSP) accident reports for the years of 1997 through 2002;

2. The Sports Park knew that the fourth seat exposed the rider to the greatest risk of injury but did not warn fourth-seat riders of the increased danger or undertake any measures to mitigate the risks of the fourth seat;

3. The Sports Park instructed fourth-seat riders to sit in a position that increased the risk of spinal injury;

4. The Sports Park failed to warn Pearce that three riders had suffered serious spinal injuries–including compression fractures–during the prior three months;

5. The Sports Park knew that riders had suffered back injuries but never attempted to find out how these back injuries were being caused or what could be done to minimize the risk of back injury;

6. The Sports Park never measured the g-forces on the fourth rider and never did any evaluation of the effect of the g-forces on public riders;

7. Sports Park management reviewed injury reports only at the end of the season and were therefore unaware of the reported spinal injuries contained in the injury reports; and

8. The Sports Park did not conduct any of its own testing to determine the inherent dangers of the ride and how to minimize those dangers.

Although individually most of the eight allegations raise concerns individually the allegations do not rise to the level of negligence. However, together they show a pattern of not caring about its patrons or how they suffered their injuries, which might prove gross negligence.

The court set forth the three ways under Utah’s law that a release would not be upheld by the courts.

(1) releases that offend public policy are unenforceable;

(2) releases for activities that fit within the public interest exception are unenforceable;

(3) releases that are unclear or ambiguous are unenforceable,

Under Utah’s law, “offend public policy” means there is a law or policy of the state that would prevent the use of a release. Here the court ruled that the release for a bobsled run were not against public policy.

Public service means providing a service or a necessity to the public such that without the service or necessity a person would not be able to live. The easiest way to understand this is to understand the types of services or necessities in the category. Usually utilities such as gas, electric or phone service are defined as public services. They are items that are needed in this day and age to live.

The court, after the analysis of the above public policy and public service arguments, made the pronouncement that as a general rule “recreational activity do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception.”

That is a great legal statement that can be relied upon by all recreational programs and businesses in the state of Utah for the future.

Ambiguity under Utah’s law requires that the release be “communicated in a clear and unequivocal manner.” A release is not ambiguous if it is a “clear and unequivocal expression of the intent to indemnify or release.”

Utah’s courts have found areas where releases are not enforceable. Releases cannot be used to stop a claim by a minor. Releases can also not be used to stop claims by a skier from claims based on the negligence of the ski area.

In Hawkins v. Peart, we relied on public policy gleaned from Utah law in holding that a preinjury release signed by a parent is not enforceable against a minor child. In Rothstein v. Snowbird Corp, we relied on the legislature’s statement of public policy in Utah’s Inherent Risks of Skiing Act to conclude that a ski resort cannot enforce a preinjury release against a skier whose injuries may have resulted from the negligence of the ski resort.

The Rothstein case is interesting because the public policy exception was carved out of the language of the statute that was created to provide protection against lawsuit in the ski industry.

The court in this decision, then defined gross negligence under Utah law.

Gross negligence is “the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” “Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”

Unless the standard of care is fixed by law, based on this definition, a claim of gross negligence cannot be dismissed by a motion for summary judgment. Meaning, claims of gross negligence must be decided by the trier of fact. The trier of fact is normally the jury, and if there is no jury, the judge.

So?

Gross negligence is rarely dismissed by a motion for summary judgment. Unless the facts in front of the judge are void of any issue lending any argument to gross negligence, most courts are going to allow a gross negligence claim to continue.

In Utah, the chances of having a gross negligence claim dismissed are even higher, unless there is a law, all ready in force or a decision by a court that specifically defines gross negligence and the facts of the case do not rise to the legal level.

Here the eight allegations raised against the UWSP could possibly lead to a claim of gross negligence and the totality of the eight may support a claim for gross negligence.

If you have injuries, you need to determine, if possible what caused those injuries. If you don’t know what causes the injuries, or you cannot determine what causes injuries you need to inform your guests of those specific issues. The best way to do that would be in a release. In the release list, the risks, you cannot control as one of the specific issues or risks the signor of the release will assume.

Another red flag set forth in the facts of this case is telling people to do something as a safety measure and not having any idea why you are doing it. Worse, the plaintiff’s expert said that the safety measure actually increased the chance of injury in this case.

Except for the exceptions under Utah’s law already carved out by the courts, a release for recreational activities can be used to stop a claim for ordinary or simple negligence. Overall a good decision for Utah and not outside of the general framework of release law in the United States.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

© 2010 James H. Moss

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