Hawkins ex rel. Hawkins v. Peart, No. 20000562.

• Court: Utah Supreme Court
• Writing for the Court: DURRANT, Justice
• Citation: 37 P.3d 1062,2001 UT 94
• Parties: Jessica HAWKINS, by and through her guardians, Brian and Melinda HAWKINS, Plaintiff, Appellant, and Cross-Appellee, v. Blair PEART, dba Navajo Trails, Defendant, Appellee, and Cross-Appellant.
• Decision Date: 30 October 2001
• Docket Number: No. 20000562.

37 P.3d 1062
2001 UT 94

Jessica HAWKINS, by and through her guardians, Brian and Melinda HAWKINS, Plaintiff, Appellant, and Cross-Appellee,
v.
Blair PEART, dba Navajo Trails, Defendant, Appellee, and Cross-Appellant

No. 20000562.

Supreme Court of Utah.

October 30, 2001.

Rehearing Denied January 9, 2002.

37 P.3d 1063

Brian S. King, Salt Lake City, for plaintiff

James W. Jensen, Matthew T. Graff, Salt Lake City, for defendant.

DURRANT, Justice:

¶ 1 Defendant Navajo Trails required plaintiff Jessica Hawkins's mother to sign a release form prior to allowing Hawkins to ride one of its horses. The release form contained a waiver of liability and an indemnity provision. The district court invalidated the waiver provision on public policy grounds, but upheld the indemnity provision. Hawkins appeals the district court's decision upholding the indemnity clause, and Navajo Trails cross-appeals the court's invalidation of the waiver provision. We conclude that both the waiver provision and the indemnity provision are invalid. Thus, we affirm the district court's ruling as to the release provision, but reverse as to the indemnity provision.

BACKGROUND

¶ 2 In July 1997, eleven-year-old Hawkins went to Duck Creek, Utah, for a family reunion. As part of the reunion, members of the family arranged for Navajo Trails to provide horses and guides for a trail ride. As a condition of its service, Navajo Trails required Hawkins's mother to sign a "Release Form." In pertinent part, that form stated as follows:

Riding and handling horses can be DANGEROUS. This form must be completed and signed before you can ride . . . . By signing this form, you agree to ASSUME THE RISK of any injury, death, or loss, or damage which you or your child . . . may suffer. . . . In consideration for the rendering of trail riding . . . service by Navajo Trails . . . [t]he undersigned on behalf of himself or for any person for whom he or she is a parent or legal guardian, does hereby indemnify (reimburse), release, and forever hold harmless, Navajo Trails . . . [for] any claims, demands, and actions or causes of action on account of death or injury or loss or damage which may occur from any cause, without regard to negligence, other than the gross negligence or willful misconduct of Navajo Trails. . . . If the undersigned is a parent or guardian, he or she further agrees to indemnify (reimburse) Navajo Trails or such persons for any damages paid by or assessed against Navajo Trails . . . as a result of injury to or death of a child. . . .

Hawkins's mother signed this form.¹

¶ 3 During the trail ride, Hawkins's horse was spooked and threw her. Hawkins was injured. She filed suit against Navajo Trails, alleging that it had provided an insufficient number of guides, that its guides were

37 P.3d 1064

not adequately trained, and that its guides had failed to carry out properly their duties during the ride. In response, Navajo Trails denied that it was negligent and additionally defended on the ground that the "Release Form" precluded Hawkins's suit. Both parties moved for summary judgment on the issues of the legal effect and enforceability of the Release Form. The district court ruled that the indemnity provision was enforceable between Hawkins's mother and Navajo Trails but that the release of Hawkins's future claims for negligence was unenforceable as a matter of public policy. Hawkins appealed the indemnity ruling, and Navajo Trails cross-appealed the ruling as to the release.²

ANALYSIS

¶ 4 We review the lower court's contractual interpretation of the release form for correctness, affording the district court no deference. See Aquagen Int'l, Inc. v. Calrae Trust, 972 P.2d 411, 413 (Utah 1998).

¶ 5 In assessing the validity of the release, the district court referred to Russ v. Woodside, 905 P.2d 901, 905 (Utah Ct.App.1995). Russ described three general circumstances in which parties may obtain contractual releases from liability for negligent action: (1) where injuries have already occurred and one party releases the other from liability for those injuries, (2) where one party agrees to indemnify for liability for future injuries, and (3) where one party agrees to release the other from liability for future injuries. See Russ, 905 P.2d at 904-05. The second and third categories require a clear and unequivocal expression of the intent to indemnify or release according to Russ. See id.

¶ 6 The district court concluded that the contractual language of the indemnity and the release provisions was clear and unequivocal as a matter of law. Accordingly, it held that, because the indemnity provision constituted a contract between an adult and a business, it was enforceable according to the general rule permitting such agreements. However, with respect to the release, the court held that the general rule permitting release of liability did not apply where a parent signs the contract on behalf of a minor.

¶ 7 The court arrived at its decision by articulating a public policy for refusing to recognize contracts releasing individuals or entities from liability for future injuries to minors. In the absence of controlling statutes or case law, the court consulted general statements of policy found in statutes detailing the rights of minors and the responsibilities of guardians. The court referred to sections 15-2-2, 75-5-103, and 75-5-209 of the Utah Code, and rule 17 of the Utah Rules of Civil Procedure. Those provisions pertain, respectively, to a minor's ability to disaffirm contracts prior to attaining the age of majority, the power of a parent to delegate fundamental care and supervision responsibilities over a minor to another, the general powers of guardians of a minor, and the necessity of guardians or guardians ad litem when minors appear as parties to court proceedings. The court concluded that these provisions indicated a general protective intent that, on balance, militated in favor of precluding parents from contractually releasing others from liability for injuring minors.

¶ 8 On appeal, Hawkins defends the district court's distinction between contracts involving adults and contracts where a guardian releases another from liability for harm to a minor. Alternatively, Hawkins argues that the general rule permitting releases does not apply in this case. We will first address the general rule and then discuss the district court's application of a public policy exception to circumstances involving minors.

¶ 9 The rule regarding releases, to which the district court and Russ referred, is stated as a general principle of the common law in 6A Arthur Linton Corbin, Corbin on Contracts, § 1472, at 596-97 (1962):

37 P.3d 1065

It is generally held that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty; but such an exemption is always invalid if it applies to harm wilfully inflicted or caused by gross or wanton negligence.

(Footnote omitted.) Thus, most courts allow release of liability for prospective negligence, except where there is a strong public interest in the services provided. But see Hiett v. Lake Barcroft Cmty. Ass'n, 244 Va. 191, 418 S.E.2d 894, 896-97 (1992) (invalidating all pre-injury releases as violative of public policy). Some courts have attempted to establish a more detailed list of criteria for determining public policy limitations on releases. Many states rely on the standards propounded in Tunkl v. Regents of the University of California, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 445-46 (1963), or Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981).³ See, e.g., Porubiansky v. Emory Univ., 156 Ga.App. 602, 275 S.E.2d 163, 167-68 (1980) (adopting Tunkl); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn.1977) (same); Wagenblast v. Odessa...