2022 UT 8

IN THE

SUPREME COURT OF THE STATE OF UTAH

BRIAN and MARIAH CUNNINGHAM,

Appellants,

v.

WEBER COUNTY,

Appellee.

No. 20210077

Heard: October 13, 2021

Filed February 17, 2022

On Direct Appeal

Second District, Weber County

The Honorable Reuben J. Renstrom

No. 190901356

Attorneys:

Eric S. Olson, Lena Daggs, Salt Lake City, for appellants

Frank D. Mylar, Andrew R. Hopkins, Salt Lake City, for appellees

JUSTICE PEARCE authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE HIMONAS and JUSTICE PETERSEN joined.

JUSTICE HIMONAS authored a concurring opinion.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Brian Cunningham was attending a Special Weapons and 

Tactics training when he was instructed to stand a few feet away 

from an explosive set on a door latch. The explosive detonated and 

caused severe injuries to Cunningham‘s face and neck. Cunningham

and his wife, Mariah Cunningham, sued the training‘s provider, 

Weber County. The County moved for summary judgment, arguing 

that Cunningham had waived any negligence claim against the 

County when he signed a preinjury release and waiver. The County 
CUNNINGHAM v. WEBER COUNTY

Opinion of the Court

2

further argued the Governmental Immunity Act of Utah does not 

waive the County‘s immunity for Cunningham‘s gross negligence 

claim or Ms. Cunningham‘s loss of consortium claim. The district 

court agreed and entered judgment for the County.

¶2 The Cunninghams appeal, contending that the district court 

erred across the board. We agree. The preinjury release Cunningham 

signed was neither clear nor unmistakable and is therefore 

unenforceable. The Governmental Immunity Act of Utah waives

immunity for gross negligence claims. It also waives immunity for 

loss of consortium claims that arise out of an injury for which 

immunity has been waived. We reverse the district court‘s grant of 

summary judgment and remand.

BACKGROUND

¶3 Cunningham was a Layton City firefighter paid by Layton 

City to receive Special Weapons and Tactics (SWAT) training.

1 Weber 

County conducted that training.

¶4 The day students arrived at the SWAT training, the Ogden 

Metro SWAT trainers evaluated the students‘ ―immediate health.‖2

The trainers gave each student a document to sign (Release). 

Students were informed that they needed to sign the Release before 

they could attend the training.

¶5 The document stated:

Release and Waiver. I hereby unconditionally and 

irrevocably release and discharge the Ogden Metro

SWATT [sic] Team and all related organizations and 

entities from any and all claims, demands, damages 

actions and causes of action arising, whether directly or 

indirectly, from or in connection with [his] attending or 

participating in the described SWAT training[.]

Cunningham signed the Release.

_____________________________________________________________

1 On an appeal from a motion for summary judgment, we view 

the facts in the light most favorable to the non-moving party. Orvis v. 

Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.

2 The Ogden Metro SWAT Team is not a separate legal entity but 

operates pursuant to an interlocal agreement that Weber County 

administers.
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Opinion of the Court

3

¶6 During the training, the instructors set an explosive on a door 

latch and had Cunningham stand ―a few feet away.‖ When the 

explosive detonated, a piece of shrapnel hit Cunningham and caused 

significant injuries to his face and neck.

¶7 The Cunninghams filed suit against Weber County. They 

alleged that Weber County negligently failed to follow its safety 

procedures when it placed him so close to the explosive without a 

bomb shield or blanket. The Cunninghams also alleged that the 

County was grossly negligent by failing to observe even the slightest

care and by showing an indifference to the consequences that could 

result during the SWAT training. Ms. Cunningham asserted a loss of 

consortium cause of action.

¶8 The County moved for summary judgment on all the 

Cunninghams‘ claims. Among other things, the County argued that

Cunningham had released his negligence cause of action against the 

County when he executed the Release. The County further argued 

that the Governmental Immunity Act of Utah (GIA) did not waive 

governmental immunity for the gross negligence and loss of 

consortium causes of action.

¶9 The district court agreed and granted the County‘s motion for 

summary judgment. It held that the Release was enforceable and 

precluded the negligence claim. It also concluded that the GIA did 

not waive immunity for the gross negligence and loss of consortium 

claims. The Cunninghams appeal.

STANDARD OF REVIEW

¶10 The Cunninghams argue that the district court erroneously 

concluded that the Release was enforceable, and that it should have 

instead concluded that: (1) the Release was contrary to the public 

interest; (2) the Release contravened public policy; and (3) the 

Release was not the clear and unmistakable waiver that the law 

requires for preinjury releases. They also assert that the district court 

misinterpreted the GIA to conclude that the statute did not waive 

immunity for gross negligence. And that the district court likewise 

misread the GIA to decide that the act did not waive immunity for 

loss of consortium claims based on injuries caused by acts for which 

the GIA waives immunity. These arguments present questions of law

that we review for correctness. dōTERRA Int'l, LLC v. Kruger, 2021 UT 

24, ¶ 17, 491 P.3d 939.
CUNNINGHAM v. WEBER COUNTY

Opinion of the Court

4

ANALYSIS

I. THE DISTRICT COURT ERRED BECAUSE THE RELEASE

IS NOT CLEAR AND UNMISTAKABLE

¶11 The district court dismissed the Cunninghams‘ negligence 

claim, finding that Cunningham waived any claim he might have 

against Weber County when he signed the Release. The 

Cunninghams argue this was error because the Release is 

unenforceable.3 We agree.

¶12 Utah law disfavors preinjury releases. We have long viewed 

preinjury releases with suspicion, concluding that ―the law does not 

look with favor upon one exacting a covenant to relieve himself of 

the basic duty which the law imposes on everyone: that of using due 

care for the safety of himself and others.‖ Union Pac. R.R. Co. v. El 

Paso Nat. Gas Co., 408 P.2d 910, 913 (Utah 1965). Accordingly, ―the 

presumption is against any such intention, and it is not achieved by 

inference or implication from general language.‖ Id. at 914. Instead, a 

preinjury release must ―make [its] intent clear and unmistakable.‖ Id.

¶13 We have reasoned that ―contracts exempting persons from 

liability for negligence induce a want of care, for the highest 

incentive to the exercise of due care rests in a consciousness that a 

failure in this respect will fix liability to make full compensation for 

any injury resulting from the cause.‖ Jankele v. Texas Co., 54 P.2d 425, 

427 (Utah 1936) (citation omitted). ―It has therefore been declared to 

be good doctrine that no person may contract against his own 

negligence.‖ Id. (citation omitted). Allowing a party to contract 

against his own negligence ―tend[s] to encourage carelessness and 

would not be salutary either for the person seeking to protect himself 

or for those whose safety may be hazarded by his conduct.‖ Howe 

Rents Corp. v. Worthen, 420 P.2d 848, 849 (Utah 1966). We have further 

asserted that parties entering into contracts should be able ―to 

assume that the other intends to conduct himself as a reasonable and 

prudent person would under whatever circumstances may thereafter 

arise, which presupposes that he will commit no wrongful act nor be 

guilty of negligence.‖ El Paso Nat. Gas Co., 408 P.2d at 913.

_____________________________________________________________

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.
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Opinion of the Court

5

¶14 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. See Jankele, 54 P.2d 

at 427; El Paso Nat. Gas Co., 408 P.2d at 914.

¶15 In the context of preinjury releases, we balance a party‘s

ability to enter freely into contracts against the potential harm that 

can flow from a party relieved of the obligation to act reasonably. 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. See Union Pac. R.R. Co. v. 

Intermountain Farmers Ass’n, 568 P.2d 724, 725 (Utah 1977).4 In El Paso 

Natural Gas Co., the parties presented us with a contract stating that 

the defendant would indemnify and hold the railroad harmless

from and against any and all liability, loss, damage, 

claims,. . .of whatsoever nature, . . . growing out of injury 

or harm to or death of persons whomsoever, or loss or 

destruction of or damage to property whatsoever, 

including the pipe line, when such injury, harm, death, 

loss, destruction or damage, howsoever caused, grows 

out of or arises from the bursting of or leaks in the pipe 

line, or in any other way whatsoever is due to or arises 

because of the existence of the pipe line or the construction, 

operation, maintenance, repair, renewal, reconstruction 

or use of the pipe line or any part thereof, or to the 

contents therein or therefrom.

408 P.2d at 912. We recognized that the provision employed broad 

language—presumably in an attempt to allow for broad 

_____________________________________________________________

4 See also Jensen's Used Car v. Rice, 323 P.2d 259, 260-61 (Utah 1958) 

(holding ―it is also elementary and of extreme practical importance 

that we hold contracting parties to their clear and understandable 

language deliberately committed to writing and endorsed by them as 

signatories thereto‖).
CUNNINGHAM v. WEBER COUNTY

Opinion of the Court

6

interpretation. See id. at 913-14. But the broad language the parties 

chose did not reveal a clear and unmistakable intent to release each 

other from their own negligent acts. Id. at 914. We concluded that if 

―it had been the intent of the parties that the defendant should 

indemnify the plaintiff even against the latter‘s negligent acts, it 

would have been easy enough to use that very language and to thus 

make that intent clear and unmistakable.‖ Id. We accordingly found 

that the release did not require one party to indemnify the other for 

its negligent acts. Id.

¶17 That is not to say that a release must use specific words to 

make its intent clear and unmistakable. See Freund v. Utah Power 

& Light Co., 793 P.2d 362, 371–72 (Utah 1990). In Freund, the court 

considered a release between a cable company and a power 

company. Id. at 364. The language of the release indicated that 

―[e]xcept for intentional wrongdoing or willful negligence on the 

part of Licensor, or any of its agents or employees, Licensee shall also 

indemnify[,] protect[,] and save harmless Licensor from and against 

any and all claims, demands, causes of action, costs, or other 

liabilities . . . .‖ Id. at 371 (second and third alterations in original) 

(emphasis removed). 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. Id. Accordingly, the court held that 

the release intended to give the power company ― ̳full and complete‘ 

indemnification‖ for its own negligence. Id. at 371–72.

¶18 The United States District Court for the District of Utah has 

applied the ―clear and unmistakable rule‖ to find several releases 

unenforceable. For example, in one case, the parties presented the 

federal court with a preinjury release that a plaintiff was required to 

sign before he could compete in a cycling race. Finken v. USA Cycling,

Inc., No. 1:17-cv-79, 2020 WL 2926661, at *2 (D. Utah June 3, 2020). A 

racer suffered a severe injury when he turned a corner on the route 

and ran into a concrete barrier blocking the road. Id. at *1–2. The 

racer sued USA Cycling as well as the independent contractor in 

charge of the course design. Id. at *2.

¶19 Both USA Cycling and the contractor raised the waiver the 

racer had signed as a defense against the suit. Id. at *2. The waiver

was broadly worded. Id. It noted ―that cycling is an inherently 

dangerous sport‖ and included dangers such as ―collision with 
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Opinion of the Court

7

pedestrians, vehicles, other riders, and fixed or moving objects.‖ Id. It 

further noted ―the possibility of serious physical and/or mental 

trauma or injury, or death associated with the event.‖ Id. The 

defendants argued that the plaintiff had agreed to ―waive, release, 

discharge, hold harmless, and promise to indemnify and not to sue‖ 

―USA Cycling‘s Event Directors, Affiliates, Agents, and Officials‖ for 

―any and all rights and claims including claims arising from [their]

own negligence.‖ Id. at *2, *4 (alteration in original). The court held 

that the release waived claims against USA Cycling. Id. at *3. But it

did not unambiguously release USA Cycling‘s independent 

contractors because it was unclear whether the term ―Event 

Directors‖ applied to independent contractors. Id. at *4. We endorse 

the federal court‘s reasoning that if a preinjury release can lead to a 

disagreement between reasonable minds about who is released, it 

cannot be considered unmistakable.

¶20 The federal district court has also concluded that a release is 

not clear and unmistakable when the language supports more than 

one reasonable meaning. In Zollman, a woman was injured while 

snowmobiling when she collided with another snowmobiler. Zollman

v. Myers, 797 F. Supp. 923, 924 (D. Utah 1992). The rental agency 

required all renters to sign a preinjury release as part of the rental 

agreement. Id. The release ―enumerate[d] some of the risks involved 

in snowmobiling, including the failure to follow instructions.‖ Id. at 

928. It then ―state[d] in bold print that the signer [would] not hold 

[the rental company] liable, even if [it] or its employees act[ed]

negligently.‖ Id. However, in the second-to-last clause, the release 

required the signer to agree ―to stop and follow instructions if 

encountering a hazardous situation. Otherwise, the signer agrees to 

assume all risk.‖ Id. The court held that the second-to-last clause 

rendered the entire release ambiguous because that clause created an 

inconsistency, which could lead a reasonable person to interpret the 

release as meaning that the signer did not assume liability in certain 

situations. Id. This impression was ―sufficient to render the contract 

ambiguous.‖ Id. This holding harmonizes with the way we have 

articulated the rule.

¶21 Similarly, in Ghionis, a skier was injured when she used ski 

boots that were incompatible with the skis she had rented from a ski 

resort. Ghionis v. Deer Valley Resort Co., 839 F. Supp. 789, 791 (D. Utah 

1993). The skier alleged that the resort gave her an express warranty 

of the skis‘ compatibility with her boots. Id. The resort asked the 

court to analyze whether the skier‘s release, which indicated that the 

resort rented all ski equipment to consumers in an ―as is‖ condition, 
CUNNINGHAM v. WEBER COUNTY

Opinion of the Court

8

protected the resort from liability. Id. at 793. The resort insisted that 

the release‘s ―as is‖ language served as an express disclaimer of any 

warranties. Id. The court disagreed and held that because ―the terms 

[were] slipped into paragraph 1, without any indication to the 

average consumer that they [were] words of art with distinct legal 

meaning,‖ they constituted an ambiguous, and potentially deceptive, 

term. Id. at 793–94. This again comports with how we envision the 

rule should operate.

¶22 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.

¶23 The Release Cunningham signed provided that he would 

―unconditionally and irrevocably release and discharge the Ogden 

Metro SWATT [sic] Team and all related organizations and entities 

from any and all claims, demands, damages, actions and causes of 

action arising, whether directly or indirectly, from or in connection 

with [his] attending or participating in the described SWAT 

training.‖

¶24 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. In the words of the 

Union Pacific court, had the Release meant to waive negligence claims 

against Weber County, ―it would have been easy enough to use that 

_____________________________________________________________

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.
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Opinion of the Court

9

very language and to thus make that intent clear and 

unmistakable.‖ El Paso Natural Gas Co., 17 Utah 2d at 259–60.

¶26 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.

II. THE DISTRICT COURT ERRED WHEN IT CONCLUDED THAT THE

GOVERNMENTAL IMMUNITY ACT OF UTAH DOES NOT WAIVE

GOVERNMENTAL IMMUNITY FOR CLAIMS

OF GROSS NEGLIGENCE

¶27 The Cunninghams asserted a claim of gross negligence. The 

district court granted summary judgment on that claim, reasoning 

that while the GIA waives immunity for injuries caused by a

governmental entity‘s negligence, it does not waive immunity for 

injuries caused by the governmental entity‘s gross negligence. The 

Cunninghams argue that the district court misread the statute to 

reach that conclusion.

¶28 The GIA codifies the broad immunity that a sovereign

traditionally enjoys from legal action and explicitly extends the 

immunity to political subdivisions, like counties. See generally UTAH 

CODE §§ 63G-7-101–904. The act provides that governmental entities 

―are immune from suit for any injury that results from the exercise of 

a governmental function,‖ id. § 63G-7-201(1), unless the act 

specifically provides otherwise. Id. § 63G-7-301. In other words, a 

governmental entity enjoys immunity from suit unless the GIA 

waives that immunity.

¶29 The district court concluded that the Cunninghams ―could 

not identify any provision within the [GIA] or any case law that 

supports their position‖ that the GIA waives immunity for gross 

negligence. The court further reasoned that had ―the Legislature 

intended for government entities to be liable for their employees‘ 

gross negligence, the Legislature could have included such a 

provision, but did not do so.‖

¶30 We do not read the GIA the way the district court did.

Before the district court, the Cunninghams argued that Utah Code 

section 63G-7-301(2)(i)—which waives governmental immunity for 

―any injury proximately caused by a negligent act or omission of an 
CUNNINGHAM v. WEBER COUNTY

Opinion of the Court

10

employee committed within the scope of employment‖—waives 

immunity for both simple and gross negligence.6 We agree.

¶31 The GIA waives immunity for an injury ―caused by a 

negligent act or omission.‖ UTAH CODE § 63G-7-301(2)(i). ― ̳[G]ross 

negligence‘ . . . differs from ordinary negligence only in degree, and 

not in kind.‖ Negligence, BLACK'S LAW DICTIONARY (11th ed. 2019)

(quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF 

TORTS § 34, at 212 (5th ed. 1984)). In other words, a grossly negligent

act is still a negligent act. And when the Legislature waived 

immunity for negligent acts, it waived immunity for negligence in all 

of its forms. Accordingly, we reverse the district court‘s grant of 

summary judgment on Cunningham‘s gross negligence claim.

III. THE DISTRICT COURT ERRED WHEN IT GRANTED SUMMARY

JUDGMENT ON MS. CUNNINGHAM‘S LOSS OF

CONSORTIUM CLAIM

¶32 The district court granted Weber County‘s motion for 

summary judgment on Ms. Cunningham‘s loss of consortium claim. 

As with the gross negligence claim, the district court concluded that 

the GIA barred the loss of consortium cause of action ―because there 

is no waiver of immunity for these types of claims.‖ The district court

declined ―to extend the reach of the [GIA] to include waivers of 

immunity for claims not specifically identified in the [GIA].‖7

¶33 The district court again misread the GIA. The GIA waives 

immunity for ―any injury proximately caused by a negligent act or 

omission of an employee‖ committed within the scope of her 

employment. UTAH CODE § 63G-7-301(2)(i) (emphasis added). Ms. 

Cunningham alleges that Weber County‘s negligent act caused her to 

suffer a loss of consortium with her husband. That is an injury she 

claims was proximately caused by Weber County‘s negligence. The 

GIA waives immunity for the claim.

_____________________________________________________________

6 The waiver of liability for negligent acts is subject to several 

exceptions given in Utah Code sections 63G-7-101(4) and 63G-7-

201(2)–(4).

7 The court also opined that even if the GIA had waived immunity 

for loss of consortium claims, ―given [the] court‘s finding that 

Plaintiff Brian Cunningham‘s claims cannot be maintained, Plaintiff 

Mariah Cunningham‘s . . . loss of consortium claim is not viable and 

must be dismissed.‖ The restoration of Brian Cunningham‘s claims 

undermines the district court‘s logic.
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Opinion of the Court

11

¶34 Even if we were tempted to entertain doubt about this 

reading, the statutory scheme governing loss of consortium claims 

would eliminate it. Utah Code section 30-2-11 sets forth the 

parameters of a loss of consortium claim. That section indicates that 

if damages are ―awarded for loss of consortium which a 

governmental entity is required to pay‖ the total amount of damages 

―may not exceed the liability limit for one person . . . .‖ UTAH CODE

§ 30-2-11(8). This language confirms that the Legislature anticipated 

that a governmental entity might need to pay damages for a loss of 

consortium claim. There would have been no need for the Legislature 

to include such a provision if the Legislature did not understand that 

the GIA waived immunity for such claims in certain circumstances. 

Simply put, the district court misinterpreted the GIA to conclude that 

it does not waive immunity for loss of consortium claims related to 

injuries for which immunity is waived.8

CONCLUSION

¶35 The district court erred when it concluded that the Release 

was clear and unmistakable. It was not, and it is therefore 

unenforceable. The district court also erred when it read the GIA to 

not waive the government‘s immunity for gross negligence and 

certain loss of consortium claims. We reverse the grant of summary 

judgment in favor of Weber County and remand.

_____________________________________________________________

8 The County also argues that even if the GIA waives

governmental immunity for Ms. Cunningham‘s claim, that claim 

should be dismissed because Cunningham ―does not fit the 

definition of an injured person within the Code.‖ Weber County 

contends that a loss of consortium claim requires a permanent injury 

and that ―there is no evidence that [Cunningham‘s] injury is 

permanent.‖ The district court disagreed saying that ―the undisputed 

facts demonstrate that [Cunningham] suffered significant 

disfigurement as a result of the accident. Therefore, so long as he can 

maintain any of his causes of action against [the County], [Ms. 

Cunningham‘s] claim for loss of consortium is also viable.‖ But the 

district court did not explicitly address whether the injuries were 

permanent. Weber County, in essence, asks us to affirm the district 

court on an alternate ground apparent from the record. The record 

before us does not permit us to do that, but nothing we say in this 

opinion should prevent the district court from revisiting the County‘s

argument on remand.
CUNNINGHAM v. WEBER COUNTY

J. HIMONAS, concurring

12

JUSTICE HIMONAS, concurring:

¶36 The majority is spot-on: because the Release isn‘t clear and 

unmistakable, it‘s unenforceable. We could end our analysis there, as 

the majority proposes, supra ¶ 11 n.3, but I‘d take the additional step 

of declaring the Release unenforceable for the independent reason 

that it covers activities in which there‘s a strong public interest, to 

wit, specialized law enforcement training. My unease with the 

majority‘s stopping point is that by only ruling on the ambiguity 

issue, we‘re suggesting that a differently worded release might pass 

muster in the future, despite it covering activities that obviously fall 

within the public interest. I‘d clip that allusion now.

¶37 In Utah, preinjury releases are unenforceable if they 

(1) ―offend public policy,‖ (2) release ―activities that fit within the

public interest exception,‖ or (3) are ―unclear or ambiguous.‖ Pearce 

v. Utah Athletic Found., 2008 UT 13, ¶ 14, 179 P.3d 760 (citations 

omitted), abrogated on other grounds by Penunuri v. Sundance Partners, 

Ltd., 2017 UT 54, ¶ 28, 423 P.3d 1150. We distinguish ―the public 

interest and public policy exceptions . . . in the context of preinjury 

releases,‖ although some other jurisdictions don‘t make such a 

distinction. Rutherford v. Talisker Canyons Fin., Co., 2019 UT 27, ¶ 19, 

445 P.3d 474 (referencing Pearce, 2008 UT 13, ¶ 14; Penunuri v. 

Sundance Partners, Ltd., 2013 UT 22, ¶ 25, 301 P.3d 984).

¶38 We apply the six-factor Tunkl test when considering the 

public interest exception. See Hawkins v. Peart, 2001 UT 94, ¶¶ 9–10, 9 

n.3, 37 P.3d 1062 (quoting Tunkl v. Regents of Univ. of Cal., 383 P.2d 

441, 445–46 (Cal. 1963)), superseded by statute on other grounds as 

recognized by Penunuri, 2013 UT 22, ¶ 21 n.43. Those factors are

[1] [The transaction] concerns a business of a type 

generally thought suitable for public regulation. [2] The 

party seeking 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 
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J. HIMONAS, concurring

13

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.

Hawkins, 2001 UT 94, ¶ 9 n.3.9

¶39 The Tunkl test ―identifies the traits of an activity in which an 

exculpatory provision may be invalid.‖ Berry v. Greater Park City Co., 

2007 UT 87, ¶ 15, 171 P.3d 442, abrogated on other grounds by Penunuri, 

2017 UT 54, ¶ 3. It‘s a flexible test and doesn‘t require all six factors 

be met; rather ―the activity at issue need exhibit only a sufficient 

number of Tunkl characteristics such that one may be convinced of 

the activity‘s affinity to the public interest.‖ Id. ¶ 16. Additionally, 

our court has ―adopt[ed] the rule that preinjury releases for 

recreational activities are not invalid under the public interest 

exception.‖ Pearce, 2008 UT 13, ¶ 21 (emphasis added).

¶40 The County gloms onto this recreational distinction and 

suggests that ―[t]raining and education, while not exactly the same as 

recreational activities, are certainly more like recreation than 

operational functions like rescuing a hostage or stopping a gunman. 

In fact, to a law enforcement officer, training is much more 

comparable to a recreational or leisure activity than to anything 

else.‖ Utter nonsense.

¶41 The public has a strong interest in specialized law 

enforcement training, including SWAT training. Without a 

competent and confident police force, we would be left without aid 

in dangerous and life-threatening situations. The Tunkl analysis 

strikingly illustrates the strong public interest in such law 

_____________________________________________________________

9 We initially considered the Tunkl test in Hawkins, adopted it in 

Berry, subsequently analyzed it in Pearce, and most recently 

discussed it in Rutherford. See Tunkl, 383 P.2d at 444–47; Hawkins, 2001 

UT 94, ¶¶ 9–10; Berry v. Greater Park City Co., 2007 UT 87, ¶¶ 15–16,

171 P.3d 442, abrogated on other grounds by Penunuri, 2017 UT 54, ¶ 3;

Pearce, 2008 UT 13, ¶¶ 16–21; Rutherford, 2019 UT 27, ¶ 20.
CUNNINGHAM v. WEBER COUNTY

J. HIMONAS, concurring

14

enforcement training and why a preinjury release form in this setting 

is unacceptable. I take the factors in the order presented above.

¶42 The transaction concerns a business of a type generally thought 

suitable for public regulation. Specialized law enforcement training 

generally qualifies as a business suitable for public regulation. 

Indeed, given the critical role that law enforcement plays in our 

society, it strikes me as beyond obvious that such training is suitable 

for public regulation.

¶43 The party seeking 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. Law enforcement officers are charged 

with performing at a high level in dangerous and uncertain 

situations, frequently in response to the public‘s need for protection 

or intervention. Thus, I agree with the Cunninghams‘ point that 

police training, including SWAT training, is a matter of great 

practical necessity for the public.

¶44 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. Here, I focus on the latter part of 

the Tunkl language, which indicates that the party (i.e., the County) 

must have held itself out as willing to perform the service (i.e., SWAT 

training) for any member of the public coming within certain 

established standards (i.e., a member of a law enforcement agency that 

was signed up by their department for the training). While the 

County asserts that its SWAT training is ―extremely selective,‖ its 

―30(b)(6) representative testified that the Training is offered to 

anyone who receives permission from their [law enforcement] 

department and has their department sign them up.‖ Thus, it seems 

that the County offered to perform the police SWAT training to 

anyone coming within certain established standards.

¶45 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. In this instance, the County had an advantage in 

bargaining power over Cunningham with respect to the police 

SWAT training. Cunningham was required to complete the Weber 

County training to become a member of the Davis County SWAT 

team. And although the County points out that there are several

other SWAT trainings to choose from in the state, Cunningham 

actually couldn‘t have opted to complete another training because of 

the limits Davis County placed on their SWAT team members.
Cite as: 2022 UT 8

J. HIMONAS, concurring

15

¶46 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. The County required Cunningham, 

and all other SWAT training attendees, to sign a non-negotiable 

contract that ―unconditionally and irrevocably release[d] and 

discharge[d] the Ogden Metro SWATT [sic] Team and all related 

organizations and entities from any and all claims, demands, 

damages, actions and causes of action arising, whether directly or 

indirectly, from or in connection with my attending or participating 

in the described SWAT training.‖ The County didn‘t allow 

Cunningham or any other attendees to pay extra for protection 

against negligence. This inability of participants to purchase 

additional insurance or protection exemplifies the notion that the 

County was exercising a superior bargaining power.

¶47 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. The County controlled the Ogden 

City Metro SWAT training, which left Cunningham completely 

exposed to its negligence.

¶48 For these reasons, I‘d hold that the Ogden City Metro SWAT 

training preinjury release form signed by Cunningham is 

unenforceable both because it‘s ambiguous and because it‘s contrary 

to the public interest.