Pearce v. Utah Athletic Foundation

2008 UT 13
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
James Pearce, No. 20061030
Plaintiff and Appellant,
v.
Utah Athletic Foundation, dba
Utah Winter Sports Park, and
Oscar Podar, a foreign individual F I L E D
or company,
Defendants and Appellees. February 12, 2008
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Third District, Silver Summit
The Honorable Bruce C. Lubeck
No. 040500322
Attorneys: Fred R. Silvester, Spencer C. Siebers, Salt Lake
City, for plaintiff
Phillip S. Ferguson, Karra J. Porter, Ruth A.
Shapiro, Salt Lake City, for defendants
---
PARRISH, Justice:
INTRODUCTION
¶1 In 2003, James Pearce suffered a back injury while
riding a bobsled at the Utah Winter Sports Park in Park City,
Utah. Pearce brought ordinary negligence and gross negligence
claims against the Utah Athletic Foundation (“UAF”), which owns
and operates the bobsled track. The district court granted
summary judgment to UAF on the ordinary negligence claim because
Pearce, prior to riding the bobsled, had signed a liability
waiver in which he released any negligence claim against UAF.
The district court also granted summary judgment to UAF on the
gross negligence claim, holding that Pearce had not presented
sufficient evidence to show that UAF’s conduct rose to the level
of gross negligence. Pearce appeals both holdings. We affirm
the district court’s grant of summary judgment on the ordinary
negligence claim but reverse the district court’s grant of
summary judgment on the gross negligence claim.

No. 20061030 2
FACTUAL BACKGROUND
¶2 UAF oversees the Olympic legacy venues used during the
2002 Winter Olympics, including the Utah Winter Sports Park
(“Sports Park”) in Park City, Utah. The Sports Park includes a
bobsled track, which is owned and operated by UAF. The bobsled
track, which was built by the state of Utah for the 2002
Olympics, was completed in 1996, and ownership and operations
were then transferred to the Salt Lake Organizing Committee
(“SLOC”). In 1997, the track was opened to the public through
the Public Ride Program (“PRP”). UAF took over the ownership and
operation of the bobsled track following the 2002 Olympics and
continues to offer the PRP. Besides the Park City track, only
two other bobsled tracks are located in North America: one in
Lake Placid, New York, and the other in Calgary, Alberta, Canada.
The Lake Placid and Calgary tracks also operate a PRP.
¶3 To be qualified and approved for Olympic use, a bobsled
track has to be designed to specific international standards.
One design criterion limits the amount of time that a bobsled
athlete can be subjected to more than five Gs. The Federation
Internationale de Bobsleigh et de Tobogganing (“FIBT”) is the
international organization which ensures that a bobsled track’s
design and construction meet the criteria. The FIBT conducts
various measurements and tests to ensure that the standards are
met. The Park City bobsled track met the FIBT standards and was
used in the 2002 Winter Olympics. When UAF took over ownership
and operation of the track following the Olympics, it did not do
any testing independent of the testing conducted by the FIBT and
the other entities involved with the construction, design,
engineering, and certification of the track.
¶4 The bobsleds used in the PRP are configured for a
driver and three passengers. UAF employs professional, World
Cup-level bobsled drivers for its PRP. The PRP sleds are
modified from competition sleds. One modification is that the
PRP sleds allow the driver to control the braking; in competition
sleds, the fourth-seat rider controls the braking. Another
modification is that the PRP sleds have handles for the
passengers to hold during the bobsled ride.
¶5 On February 27, 2003, Pearce went with his son to the
Sports Park to ride the bobsled. Pearce was fifty-nine years old
at the time. Before riding the bobsled, Pearce signed a release

1 The critical part of the release in this case--the
sentence in paragraph 3 that releases UAF from its own
negligence--states in full:
TO THE FULLEST EXTENT PERMITTED BY LAW, I
HEREBY RELEASE, WAIVE, COVENANT NOT TO SUE,
AND DISCHARGE THE UAF AND ALL OF ITS
TRUSTEES, DIRECTORS, MANAGERS, OFFICERS,
EMPLOYEES, VOLUNTEERS, AGENTS AND
REPRESENTATIVES (COLLECTIVELY, THE
“RELEASEES”) FROM ANY AND ALL LIABILITY,
CLAIMS, DEMANDS, AND CAUSES OF ACTION
WHATSOEVER ARISING OUT OF OR RELATED TO ANY
LOSS, DAMAGE, OR INJURY, INCLUDING DEATH,
THAT MAY BE SUSTAINED BY ME/MY MINOR CHILD OR
LOSS OR DAMAGE TO ANY PROPERTY BELONGING TO
ME/MY MINOR CHILD, WHETHER CAUSED BY THE
NEGLIGENCE OF RELEASEES OR OTHERWISE, ARISING
OUT OF OR RELATED TO MY/MY MINOR CHILD’S USE
OF THE SPORTS FACILITIES OR PARTICIPATION IN
THE SPORTS.
3 No. 20061030
of liability form.1 According to Pearce, he was not told what
the document was, nor was he told that by signing it he was
releasing the Sports Park from liability for injuries caused by
its own negligence. Pearce understood that it was a release but
did not fully understand the extent of the release. Pearce and
the other patrons were given an orientation lasting approximately
fifteen minutes. During the orientation, the patrons were told
that they would experience four Gs during the ride. Pearce, a
mechanical engineer by trade, understood what a G was but did not
fully understand the effect that four Gs could have on his body.
¶6 The Sports Park managers knew that the g-forces were
more pronounced for passengers in the fourth seat of the bobsled
than for those in the other seats. Pearce, who was assigned to
sit in the fourth seat, was instructed to sit back away from his
son--who was seated in the third seat--and to lean forward and
grab the handles installed in the modified sled. The Sports
Park’s general manager testified that these instructions were
given to fourth-seat riders to minimize their risk of injury,
though he admitted that he did not know how such positioning
minimized the risk. One of Pearce’s expert witnesses, Dr. Paul
France, testified by affidavit that the Sports Park’s positioning
actually increased the risk of spinal injury to fourth-seat
riders. Dr. France opined that the risk of spinal injury could
have been reduced by having fourth-seat riders sit more upright,
push off the handles, and not flex the spine. During Pearce’s

No. 20061030 4
ride, the g-forces caused the L1 vertebrae of his spine to
shatter, propelling a bone fragment toward his spinal column.
PROCEDURAL HISTORY
¶7 Pearce brought suit against UAF in 2004. He originally
claimed ordinary negligence but later amended his complaint to
include gross negligence. During the course of the litigation,
Pearce presented several allegations to support his negligence
claims, including (1) the Sports Park did not obtain or review
any of SLOC’s 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.
¶8 Following some discovery, UAF moved for summary
judgment. UAF argued that the liability release protected it
from any action for ordinary negligence and that, in view of the
undisputed facts of the case, its conduct did not rise to the
level of gross negligence. After briefing and oral argument on
the motion, the district court issued its ruling and order.
¶9 The district court first ruled in favor of UAF on the
gross negligence claim, stating that “the court does not believe
plaintiff has set forth sufficient evidence of gross negligence”
and that “[t]here is no credible evidence of gross negligence as
a matter of law.” The court held that the Sports Park’s conduct
would, at most, amount to ordinary negligence.
¶10 The court then ruled that Pearce had waived any
ordinary negligence claim by signing the liability release. The
court held that the release was valid, enforceable, and not
against public policy. Thus, the court ultimately granted UAF’s

5 No. 20061030
motion for summary judgment on Pearce’s ordinary negligence claim
because he had assumed the risks of the bobsled ride, including
any negligent conduct of the Sports Park.
¶11 Pearce now appeals the district court’s grant of
summary judgment on both negligence claims. We have jurisdiction
pursuant to Utah Code section 78-2-2(3)(j) (2002).
ISSUES AND STANDARD OF REVIEW
¶12 There are two issues on appeal in this case:
(1) whether the district court correctly held that the release of
liability signed by Pearce barred his ordinary negligence claim
against UAF, and (2) whether the district court correctly granted
summary judgment to UAF on Pearce’s gross negligence claim.
¶13 “‘[S]ummary judgment is appropriate only when there is
no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.’” Swan Creek Vill.
Homeowners Ass’n v. Warne, 2006 UT 22, ¶ 16, 134 P.3d 1122
(quoting Norman v. Arnold, 2002 UT 81, ¶ 15, 57 P.3d 997). A
district court’s decision to grant summary judgment is reviewed
for correctness, with no deference afforded to the district
court. Crestwood Cove Apts. Bus. Trust v. Turner, 2007 UT 48,
¶ 10, 164 P.3d 1247. “When we review a district court’s grant of
summary judgment, ‘we view the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party.’” Progressive Cas. Ins. Co. v. Ewart, 2007 UT
52, ¶ 2, 167 P.3d 1011 (quoting Carrier v. Salt Lake County, 2004
UT 98, ¶ 3, 104 P.3d 1208).
ANALYSIS
I. ORDINARY NEGLIGENCE
¶14 In two recent cases, we reaffirmed our position with
the majority of states that people may contract away their rights
to recover in tort for damages caused by the ordinary negligence
of others. See Rothstein v. Snowbird Corp., 2007 UT 96, ¶ 6, ___
P.3d ___; Berry v. Greater Park City Co., 2007 UT 87, ¶ 15, 171
P.3d 442 (“[Utah’s] public policy does not foreclose the
opportunity of parties to bargain for the waiver of tort claims
based on ordinary negligence.”). We also reaffirmed our position
that preinjury releases are not unlimited in power and can be
invalidated in certain circumstances. Three such limitations are
relevant to this case: (1) releases that offend public policy are
unenforceable, Rothstein, 2007 UT 96, ¶ 6; (2) releases for
activities that fit within the public interest exception are
unenforceable, Berry, 2007 UT 87, ¶ 16; and (3) releases that are

No. 20061030 6
unclear or ambiguous are unenforceable, Rothstein, 2007 UT 96,
¶ 6. We now analyze each of these limitations and conclude that
none is applicable here; therefore, the preinjury release is
valid and enforceable.
A. The Preinjury Release Is Not Contrary to Public Policy
¶15 We have long held that preinjury releases must be
compatible with public policy. See Rothstein v. Snowbird Corp.,
2007 UT 96, ¶ 7, ___ P.3d ___ (citing Pugmire v. Or. Short Line
R.R., 92 P. 762 (Utah 1907)). 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. 2001 UT 94, ¶¶ 10-13, 37 P.3d 1062. In Rothstein, 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. 2007 UT 96,
¶ 20. In the present case, however, Pearce has not presented,
nor has this court found, a public policy that would render
unenforceable a preinjury release between a public bobsled ride
operator and an adult bobsled rider. Thus, we conclude that the
preinjury release signed by Pearce is not contrary to public
policy.
B. The Preinjury Release Is Not Invalid Under
the Public Interest Exception
¶16 It is a “general principle of common law 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.” Berry v. Greater Park City
Co., 2007 UT 87, ¶ 12, 171 P.3d 442 (internal quotation marks and
citations omitted). Thus, a preinjury release that does not
violate public policy is valid and enforceable unless it meets
the public interest exception. Id. (stating that a preinjury
release may be invalidated if it “attempts to limit liability for
activities in which there is a strong public interest”).
¶17 In Berry, we adopted the standard set out in Tunkl v.
Regents of the University of California, 383 P.2d 441, 445-46
(Cal. 1963), as “the traits of an activity in which an
exculpatory provision may be invalid” under the public interest
exception. Berry, 2007 UT 87, ¶ 15. The six Tunkl guidelines
are:
“[1] [The transaction] concerns a business of
a type generally thought suitable for public
regulation. [2] The party seeking

7 No. 20061030
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. (quoting Hawkins v. Peart, 2001 UT 94, ¶ 9 n.3, 37 P.3d
1062).
¶18 In Berry, we applied the six Tunkl guidelines to a
skiercross race and determined that skiercross racing did not
meet the public interest exception. Id. ¶¶ 17-24. In the
present case, we could again apply the guidelines in order to
conclude that bobsledding does not meet the public interest
exception, but we go one step further. We now join other states
in declaring, as a general rule, that recreational activities do
not constitute a public interest and that, therefore, preinjury
releases for recreational activities cannot be invalidated under
the public interest exception.
¶19 In California, where the Tunkl test was formulated,
appellate courts have applied the Tunkl factors to a wide variety
of recreational activities and have consistently concluded that
such activities do not fit within the public interest exception.
See, e.g., Randas v. YMCA of Metro. Los Angeles, 21 Cal. Rptr. 2d
245, 247 (Ct. App. 1993) (swimming); Guido v. Koopman, 2 Cal.
Rptr. 2d 437, 439-40 (Ct. App. 1991) (horseback riding); Madison
v. Superior Court, 250 Cal. Rptr. 299, 305-06 (Ct. App. 1988)
(scuba diving); Kurashige v. Indian Dunes, Inc., 246 Cal. Rptr.

No. 20061030 8
310, 313 (Ct. App. 1988) (dirt bike racing); Okura v. U.S.
Cycling Fed’n, 231 Cal. Rptr. 429, 430-32 (Ct. App. 1986)
(bicycle racing); Hulsey v. Elsinore Parachute Ctr., 214 Cal.
Rptr. 194, 199-200 (Ct. App. 1985) (parachute jumping). When
faced with public interest challenges to preinjury releases for
recreational activities, California appellate courts no longer
need to go through a Tunkl analysis; instead, the courts rely on
the general rule--established through years of applying the Tunkl
test--that “[e]xculpatory agreements in the recreational sports
context do not implicate the public interest and therefore are
not void as against public policy.” Benedek v. PLC Santa Monica,
LLC, 129 Cal. Rptr. 2d 197, 202 (Ct. App. 2002); see also Westlye
v. Look Sports, Inc., 22 Cal. Rptr. 2d 781, 791 (Ct. App. 1993)
(“[R]ecreational sports do not constitute a public interest under
Tunkl.”).
¶20 California courts are not alone in refusing to
invalidate preinjury releases in recreational activities under
the public interest exception. Courts across the country that
have applied the public interest exception to preinjury releases,
whether under the Tunkl factors or under some other test, have
consistently held that recreational activities do not implicate
public interest concerns and, therefore, that preinjury releases
for recreational activities are not invalid under the public
interest exception. See, e.g., Chadwick v. Colt Ross Outfitters,
Inc., 100 P.3d 465, 467 (Colo. 2004) (distinguishing “businesses
engaged in recreational activities, which are not practically
necessary and with regard to which the provider owes no special
duty to the public” from businesses that implicate the public
interest under the Tunkl factors); Seigneur v. Nat’l Fitness
Inst., Inc., 752 A.2d 631, 641 (Md. Ct. Spec. App. 2000)
(“[C]ourts from other jurisdictions almost universally have held
that contracts relating to recreational activities do not fall
within any of the categories that implicate public interest
concerns.”); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 925-
26 (Minn. 1982) (“Courts from other jurisdictions generally have
held contracts relating to recreational activities do not fall
within any of the categories where the public interest is
involved.”); Henderson v. Quest Expeditions, Inc., 174 S.W.3d
730, 733 (Tenn. Ct. App. 2005) (“[M]any jurisdictions have
recognized that . . . recreational sporting activities are not
activities of an essential nature which would render exculpatory
clauses contrary to the public interest.”); Milligan v. Big
Valley Corp., 754 P.2d 1063, 1066 (Wyo. 1988) (“[C]ontracts
relating to recreational activities do not fall within any of the
categories . . . where the public interest is involved.”).
¶21 We now join the majority of courts by adopting the rule
that preinjury releases for recreational activities are not

9 No. 20061030
invalid under the public interest exception. Thus, we conclude
that the preinjury release in this case is not invalid under the
public interest exception because bobsledding is a recreational
activity.
C. The Preinjury Release Is Not Ambiguous
¶22 Preinjury releases, to be enforceable, must be
“communicated in a clear and unequivocal manner.” Berry v.
Greater Park City Co., 2007 UT 87, ¶ 15 n.2, 171 P.3d 442; see
also Hawkins v. Peart, 2001 UT 94, ¶ 5, 37 P.3d 1062 (stating
that preinjury releases “require a clear and unequivocal
expression of the intent to indemnify or release”).
To be effective, a release need not achieve
perfection; only on Draftsman’s Olympus is it
feasible to combine the elegance of a trust
indenture with the brevity of a stop sign.
. . . It suffices that a release be clear,
unambiguous, and explicit, and that it
express an agreement not to hold the released
party liable for negligence.
Nat’l & Int’l Bhd. of St. Racers, Inc. v. Superior Court, 264
Cal. Rptr. 44, 47 (Ct. App. 1989).
¶23 Pearce argues that the liability waiver is invalid as
ambiguous because the 111-word sentence in paragraph 3 does not
clearly and unequivocally inform riders that they are releasing
UAF of any injury caused by UAF’s ordinary negligence. We
disagree. Although the sentence at issue is long and contains
some “legalese,” it is not unclear or equivocal. See Freund v.
Utah Power & Light Co., 793 P.2d 362, 371 (Utah 1990) (holding
that a 97-word sentence in a commercial indemnification agreement
clearly and unequivocally showed that the licensee agreed to
indemnify the licensor from liability that could arise from the
licensor’s negligence, even though the word “negligence” was not
included in the sentence). The sentence conceivably could have
been written more concisely or plainly, but that does not render
it unclear or ambiguous. The sentence, in clear and unequivocal
language, releases UAF from any claim “whether caused by the
negligence of [UAF] or otherwise.” Although not perfect, the
release is sufficiently clear. Thus, we affirm the district
court’s conclusion that the preinjury release is valid and
enforceable because it is not unclear, equivocal, or ambiguous.

No. 20061030 10
II. GROSS NEGLIGENCE
¶24 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.” Berry
v. Greater Park City Co., 2007 UT 87, ¶ 26, 171 P.3d 442
(internal quotation marks and citations omitted). “Gross
negligence requires proof of conduct substantially more distant
from the appropriate standard of care than does ordinary
negligence.” Id. Summary judgment in negligence cases,
including gross negligence cases, is “inappropriate unless the
applicable standard of care is fixed by law, and reasonable minds
could reach but one conclusion as to the defendant’s negligence
under the circumstances.” Id. ¶ 27 (internal quotation marks and
citations omitted). When reviewing grants of summary judgment in
negligence cases, “we have consistently followed the principle
that summary judgment is generally inappropriate to resolve
negligence claims and should be employed only in the most clear-
cut case.” Id. (internal quotation marks and citations omitted).
¶25 In Berry, a competitive skier brought a gross
negligence claim against a ski resort for negligently designing
and constructing a skiercross course. Id. ¶¶ 6-7. The district
court granted the ski resort’s motion for summary judgment on the
gross negligence claim because the plaintiff had “failed to
present evidence sufficient to place in dispute the issue of
whether [the ski resort] had designed and built the skiercross
course with . . . gross negligence.” Id. ¶ 7. We concluded that
the district court improperly granted summary judgment because
the standard of care for designing and constructing skiercross
courses was not “fixed by law,” and “where a standard of care is
not ‘fixed by law,’ the determination of the appropriate standard
is a factual issue to be resolved by the finder of fact.” Id.
¶ 30 (quoting Wycalis v. Guardian Title of Utah, 780 P.2d 821,
825 (Utah Ct. App. 1989)). Without the applicable standard of
care, it was impossible for the district court to determine the
degree to which the ski resort’s conduct deviated from the
standard of care--“the core test in any claim of gross
negligence.” Id. Thus, we held that a district court cannot
properly grant a motion for summary judgment regarding a gross
negligence claim unless there is “an identified, applicable
standard of care to ground the analysis.” Id.
¶26 The present case is very similar to Berry. Pearce
brought a gross negligence claim against UAF, and the district
court granted summary judgment for UAF because Pearce had not
“set forth sufficient evidence of gross negligence.” However,
there is no standard of care fixed by law regarding the operation
of public bobsled rides upon which the district court could have

2 In his brief, Pearce stated that a standard of care has
been established by Utah law: “the care required of amusement
ride operators is the care that reasonably prudent persons would
exercise under the circumstances . . . commensurate with the
dangers and risks created by the ride.” Lamb v. B & B Amusements
Corp., 869 P.2d 926, 931 (Utah 1994). Besides the question of
whether the bobsled ride is an “amusement ride,” the problem with
this standard is that it simply states the normal “reasonably
prudent person” standard that applies in any negligence case; it
does not state more specific standards for designing,
constructing, and testing a bobsled run for the public or for
operating a public bobsled ride. See Restatement (Second) of
Torts § 285, cmt. d (stating that the reasonable person standard
“is, without more, incapable of application to the facts of a
particular case”). In order to determine what a reasonable
bobsled ride operator would do, the finder of fact would likely
need to hear testimony from expert witnesses before it could
determine the operator’s deviation from the standard. See Berry,
2007 UT 87, ¶ 30.
11 No. 20061030
based its analysis of gross negligence.2 Indeed, the district
court itself noted that the expert witnesses in the case “[did]
not opine on the standard of care in such an industry.” Without
an identified, applicable standard of care, it was error for the
district court to rule on summary judgment that, as a matter of
law, Pearce could not show gross negligence. We therefore hold
that the district court improperly granted summary judgment to
UAF on Pearce’s gross negligence claim, and we therefore reverse
and remand to the district court.
CONCLUSION
¶27 We hold that Pearce’s ordinary negligence claim is
barred by the preinjury release that he signed because the
release is not against public policy, it does not meet the public
interest exception, and it is clear, unequivocal, and
unambiguous. Thus, we affirm the district court’s grant of
summary judgment to UAF on Pearce’s ordinary negligence claim.
¶28 We reach the opposite conclusion, however, with respect
to Pearce’s gross negligence claim. We hold that the district
court erred in granting summary judgment to UAF on Pearce’s gross
negligence claim without identifying the applicable standard of
care. We therefore reverse and remand to the district court for
proceedings consistent with this opinion.
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No. 20061030 12
¶29 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.