Lisa Penunuri v. Sundance Partners, Ltd.

¶1 Ms. Penunuri was injured while participating in a guided

horseback ride near Sundance Resort. Before the ride, she signed a

release (Waiver), in which she waived her right to sue Defendants

(collectively, Sundance) for injuries caused by Sundance's ordinary

negligence. In this appeal, Ms. Penunuri asks us to find that the

Waiver is unenforceable under the Limitations on Liability for



PENUNURI v. SUNDANCE



Opinion of the Court



____________________________



1 UTAH CODE § 78B-4-201 to -203. Except where otherwise noted,

we cite to the current version of the Utah Code in this opinion

"because no substantive changes have been made to the relevant

statutory provisions that would affect the resolution of the issues

presented on appeal.” See State v. Maestas, 2012 UT 46, ¶ 1 n.1, ___

P.3d ___.



2 UTAH CODE § 78B-4-401 to -404.



3 2007 UT 96, ¶¶ 15–16, 175 P.3d 560.



2



Equine and Livestock Activities Act (Equine Act)1 and that it violates

the public policy expressed in the Equine Act.



¶2 We first consider whether the Waiver is unenforceable

under the Equine Act. We conclude that the Equine Act establishes

no public policy that invalidates preinjury releases for ordinary

negligence. Second, we consider whether the Equine Act is sufficiently

similar to Utah's Inherent Risks of Skiing Act (Skiing Act)2

such that the "public policy bargain” we inferred from the language

of the Skiing Act in Rothstein v. Snowbird Corp.3 similarly invalidates

preinjury releases under the Equine Act. Because the Equine Act

lacks the discussion of public policy contained in the Skiing Act, we

decline to infer that the Equine Act was the result of a public policy

bargain. Accordingly, we conclude that the Waiver is enforceable

and does not violate public policy.



BACKGROUND



¶3 On August 1, 2007, Ms. Penunuri participated in a guided

horseback ride operated by Sundance. Before the ride began,

Ms. Penunuri signed the Waiver. The Waiver explained that

horseback riding involves "significant risk of serious personal

injury,” and that there are certain "inherent risks” associated with

the activity, including "the propensity of the animal to behave in

ways that may result in injury, harm, or death to persons on or

around them.” The Waiver also purported to release Sundance from

liability for its ordinary negligence, providing as follows: "I expressly

agree to assume all risks of personal injury, falls, accidents,

and/or property damage, including those resulting from any

negligence of [Sundance] . . . .”



¶4 The riding party consisted of five participants and one

guide, arranged in single file with the guide in front and

Ms. Penunuri in the rear. During the ride, a gap formed between

Ms. Penunuri and the eight-year-old rider in front of her. After some



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Opinion of the Court



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4 Penunuri v. Sundance Partners, Ltd., 2011 UT App 183, ¶¶ 12–19,

257 P.3d 1049.



5 Id.



6 Fla. Asset Fin. Corp. v. Utah Labor Comm'n, 2006 UT 58, ¶ 8, 147

P.3d 1189 (internal quotation marks omitted).



3



of the riders asked the guide to slow down or stop to close the gap,

the guide stated that she would hold the eight-year-old's reins to

keep the train of horses together. But before she could do so,

Ms. Penunuri's horse suddenly accelerated to close the gap and

catch up with the other horses. Ms. Penunuri asserts that the sudden

acceleration caused her to fall to the ground and that she suffered

serious injuries as a result.



¶5 Ms. Penunuri sued Sundance, alleging negligence, gross

negligence, and vicarious liability. She then filed a motion for partial

summary judgment, arguing that the Waiver was unenforceable

under the Equine Act. The district court denied her motion, finding

that the Waiver was valid and enforceable. Accordingly, the court

dismissed all of Ms. Penunuri's claims except her claim for gross

negligence.



¶6 After the district court certified its order as final pursuant

to rule 54(b) of the Utah Rules of Civil Procedure, Ms. Penunuri

appealed. The court of appeals determined that the 54(b) certification

was improper, but exercised its discretion to treat Ms. Penunuri's

appeal as a petition for permission to appeal from an interlocutory

order. The court permitted Ms. Penunuri to appeal, but ultimately

affirmed the district court's ruling, concluding that the Waiver was

valid and enforceable.4 Specifically, the court concluded that neither

the Equine Act nor public policy invalidates preinjury releases for

horseback riding.5



¶7 Ms. Penunuri then filed a petition for writ of certiorari. We

granted her petition to consider whether the court of appeals erred

in construing the Equine Act to permit releases of liability for

ordinary negligence. We have jurisdiction over this matter pursuant

to section 78A-3-102(3)(a) of the Utah Code.



STANDARD OF REVIEW



¶8 "On certiorari, we review the decision of the court of

appeals, not the trial court.”6 And "[a]s the decision of the court of

appeals rests on questions of statutory interpretation, we review it

for correctness, affording no deference to the court of appeals' legal



PENUNURI v. SUNDANCE



Opinion of the Court



_________________________________



7 Id.



8 UTAH R. CIV. P. 56(c).



9 "Equine activity sponsor” is defined in the Equine Act as an

individual or group "which sponsors, organizes, or provides

facilities for an equine activity,” including horseback riding. UTAH

CODE § 78B-4-201(3).



10 Id. § 78B-4-202(2).



11 Id. § 78B-4-201(5).



4



conclusions.”7 Further, summary judgment is appropriate only when

"there is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.”8



ANALYSIS



¶9 Section 202 of the Equine Act provides that equine activity

sponsors9 are not liable for injuries caused by the "inherent risks”

associated with equine activities.10 "Inherent risk” is defined under

the Equine Act as "those dangers or conditions which are an integral

part of equine or livestock activities,” including, among other things,

"the propensity of the animal to behave in ways that may result in

injury” and "the unpredictability of the animal's reaction to outside

stimulation.”11



¶10 But section 202 does not completely eliminate an equine

sponsor's liability. In relevant part, section 202 provides as follows:



(2) An equine activity sponsor, equine professional,

livestock activity sponsor, or livestock professional is

not liable for an injury to or the death of a participant

due to the inherent risks associated with these activities,

unless the sponsor or professional:



(a)(i) provided the equipment or tack;



(ii) the equipment or tack caused the injury; and



(iii) the equipment failure was due to the sponsor's

or professional's negligence;



(b) failed to make reasonable efforts to determine

whether the equine or livestock could behave in a

manner consistent with the activity with the participant;

(c) owns, leases, rents, or is in legal possession and

control of land or facilities upon which the partici



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Opinion of the Court



________________________________



12 Id. § 78B-4-202(2) (emphasis added).



13 Id. § 78B-4-203(1) ("An equine or livestock activity sponsor shall

provide notice to participants of the equine or livestock activity that

there are inherent risks of participating and that the sponsor is not

liable for certain of those risks.”).



14 Id. § 78B-4-203(2).



15 See Rothstein v. Snowbird Corp., 2007 UT 96, ¶¶ 15–16, 175 P.3d

560.



5



pant sustained injuries because of a dangerous

condition which was known to or should have been

known to the sponsor or professional and for which

warning signs have not been conspicuously posted;



(d)(i) commits an act or omission that constitutes

negligence, gross negligence, or willful or wanton

disregard for the safety of the participant; and



(ii) that act or omission causes the injury; or



(e) intentionally injures or causes the injury to the

participant.12



¶11 While section 202 eliminates liability for the inherent risks

of equine activities, section 203 requires sponsors to provide notice

to participants that the sponsor is not liable for those risks.13 Section

203 requires that the "[n]otice shall be provided” either by "posting

a sign in a prominent location within the area being used for the

activity” or by "providing a document or release for the participant,

or the participant's legal guardian if the participant is a minor, to

sign.”14



¶12 Below, we first consider whether preinjury releases of

liability for ordinary negligence are enforceable under the Equine

Act. Second, we consider whether the public policy bargain we

inferred from the language of the Skiing Act in Rothstein15 should be

similarly inferred from the language of the Equine Act, which would

render preinjury releases of ordinary negligence unenforceable as

violating public policy.



I. THE EQUINE ACT DOES NOT INVALIDATE

PREINJURY RELEASES OF LIABILITY FOR

ORDINARY NEGLIGENCE



¶13 Ms. Penunuri argues that section 202 of the Equine Act

prohibits a sponsor from using a preinjury release to escape liability



PENUNURI v. SUNDANCE



Opinion of the Court



____________________



16 Whether a preinjury release would be enforceable if it purported

to release a sponsor's liability for gross negligence is not at

issue in this appeal.



17 Penunuri v. Sundance Partners, Ltd., 2011 UT App 183, ¶ 13, 257

P.3d 1049.



18 Id.



19 Id. ¶ 14.



20 Id.



21 Ivory Homes, Ltd. v. Utah State Tax Comm'n, 2011 UT 54, ¶ 21,

266 P.3d 751.



22 Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶ 14,

267 P.3d 863 (internal quotation marks omitted).



6



for its negligent acts.16 She asserts that by protecting equine activity

sponsors from liability arising out of the inherent risks associated

with equine activities, the Legislature impliedly intended that they

remain liable for all other claims. Ms. Penunuri also directs our

attention to legislative debates that, she argues, support her

interpretation of the statute. Further, while noting that section 203

mentions that a sponsor may provide a "release” for a participant to

sign, Ms. Penunuri argues that the content of such a release must be

limited to providing the notice required by that section.



¶14 The court of appeals concluded that reading section 202 to

invalidate preinjury releases "stretches the statutory language past

its plain meaning.”17 Instead, the court concluded that while "section

202 protects a sponsor from liability arising from the inherent risks

of equine activities unless the sponsor is negligent . . . the sponsor

remains free to assert all other applicable defenses, including, if

appropriate, release.”18 Regarding section 203, the court declined

Ms. Penunuri's invitation to read "'release' . . . to refer merely to a

document notifying the participant that the sponsor is insulated

against claims arising from certain inherent risks of participating in

the activity.”19 The court concluded that "[b]ecause the statutory

term 'document' already conveys this meaning, such a reading

would impermissibly render 'release' redundant.”20 We agree.



¶15 When we interpret a statute, "our primary objective is to

ascertain the intent of the legislature.”21 Because "[t]he best evidence

of the legislature's intent is the plain language of the statute itself,”22



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23 Ivory Homes, 2011 UT 54, ¶ 21.



24 Id. (internal quotation marks omitted).



25 Marion Energy, 2011 UT 50, ¶ 14 (first and second alterations in

original) (internal quotation marks omitted).



26 Ivory Homes, 2011 UT 54, ¶ 21 (internal quotation marks

omitted).



27 LKL Assocs., Inc. v. Farley, 2004 UT 51, ¶ 7, 94 P.3d 279.



28 Marion Energy, 2011 UT 50, ¶ 15 (second alteration in original)

(internal quotation marks omitted).



29 Id.



30 UTAH CODE § 78B-4-202(1)–(2).



31 See id. § 78B-4-201(5)(a).



7



we look first to the plain language of the statute.23 "We presume that

the legislature used each word advisedly and read each term

according to its ordinary and accepted meaning.”24 "Additionally,

we presume[] that the expression of one [term] should be interpreted

as the exclusion of another,” and "[w]e therefore seek to give

effect to omissions in statutory language by presuming all omissions

to be purposeful.”25 But we do not view individual words and

subsections in isolation; instead, our statutory interpretation

"requires that each part or section be construed in connection with

every other part or section so as to produce a harmonious whole.”26

Thus, we "interpret[] statutes to give meaning to all parts, and

avoid[] rendering portions of the statute superfluous.”27



¶16 Further, "[w]hen the meaning of [a] statute can be discerned

from its language, no other interpretive tools are needed.”28

Accordingly, it is only "when statutory language is ambiguous—in

that its terms remain susceptible to two or more reasonable interpretations

after we have conducted a plain language analysis”—that we

"resort to other modes of statutory construction,” such as legislative

history.29



¶17 In this case, the Equine Act eliminates a sponsor's liability

for injuries caused by risks that are inherent to equine activities, but

retains sponsor liability for injuries that are caused in part by the

sponsor's own negligence.30 For example, a horse's "propensity . . .

to behave in ways that may result in injury” to its rider is an

"inherent risk” of horseback riding.31 Consequently, under the

Equine Act, if that propensity caused injury to a rider, the sponsor



PENUNURI v. SUNDANCE



Opinion of the Court



_____________________________



32 See id. § 78B-4-202(2).



33 Id. § 78B-4-202(2)(b).



34 See Rothstein v. Snowbird Corp., 2007 UT 96, ¶ 26, 175 P.3d 560

(Wilkins, J., dissenting).



35 E.g., UTAH CODE § 78B-6-707 ("Any clause in a sales contract or

collateral document that requires a purchaser or end user of a

product to indemnify, hold harmless, or defend a manufacturer of

a product is contrary to public policy and void and unenforceable if

a defect in the design or manufacturing of the product causes an

injury or death.”); id. § 13-8-1(2) (Except in enumerated

circumstances, "an indemnification provision in a construction

contract is against public policy and is void and unenforceable.”).



36 See Marion Energy, 2011 UT 50, ¶ 14.



8



would generally not be liable.32 But if the injuries occurred after the

sponsor "failed to make reasonable efforts to determine whether the

[horse] could behave in a manner consistent with” horseback riding,

then the sponsor would remain liable under the Equine Act.33 Thus,

the Equine Act eliminates a participant's ability to recover damages

for injuries resulting from the inherent risks of equine activities

unless the injuries resulted from a sponsor's negligence.



¶18 But the fact that the Equine Statute does not eliminate a

sponsor's liability for negligence does not mean that the Legislature

intended to invalidate preinjury waivers for ordinary negligence. In

other words, "[n]owhere does the text suggest that [equine sponsors]

may not contractually further limit their liability for risks that

are not inherent” to equine activities.34



¶19 Indeed, in other contexts, the Legislature has expressly

invalidated particular contractual waivers, stating that they are

"void and unenforceable” as contrary to public policy.35 But the

Equine Act contains no such expression. We "give effect” to this

omission "by presuming [it] to be purposeful,”36 and conclude that

the Equine Act does not invalidate preinjury releases of liability for

ordinary negligence.



¶20 This conclusion is supported by the Legislature's use of the

word "release” in section 203. Specifically, section 203 requires that

sponsors "provide notice to participants . . . that there are inherent

risks of participating and that the sponsor is not liable for certain of



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Opinion of the Court



_____________________________



37 UTAH CODE § 78B-4-203(1).



38 Id. § 78B-4-203(2) (emphasis added).



39 Penunuri, 2011 UT App 183, ¶ 14.



40 Id.



41 BLACK'S LAW DICTIONARY 1403 (9th ed. 2009).



42 See Ivory Homes, 2011 UT 54, ¶ 21 (internal quotation marks

omitted).



43 Section 203 permits a parent to sign a "release” on behalf of a

minor. UTAH CODE § 78B-4-203(2)(b). But in Hawkins ex rel. Hawkins

v. Peart, we held that a parent's preinjury release of a minor's claim

is unenforceable as a violation of public policy. 2001 UT 94, ¶¶

10–11, 37 P.3d 1062. Thus, Ms. Penunuri argues that the statute

makes sense only if "release” cannot include a preinjury release. But

although the Equine Act was enacted in 1993, the notice requirement

was not added until 2003. See UTAH CODE § 78-27b-101 to 102 (1993);

UTAH CODE § 78-27b-101 (2003). Thus, the statutory language

permitting a parent to sign a release on behalf of a minor was added

two years after we issued our opinion in Hawkins. Accordingly, to

the extent the Equine Act conflicts with Hawkins, the Equine Act

would control and effectively overrule our conclusion in Hawkins.



9



those risks.”37 Further, the statute requires that the "[n]otice shall be

provided by” either "posting a sign in a prominent location,” or

"providing a document or release for the participant, or the participant's

legal guardian if the participant is a minor, to sign.”38



¶21 We do not read "release” to refer merely to a document that

provides the required notice. As the court of appeals noted,

"[b]ecause the statutory term 'document' already conveys this

meaning, such a reading would impermissibly render 'release'

redundant.”39 Further, "a release does more than provide notice.”40

A release is "[t]he relinquishment or concession of a right . . . or

claim.”41 Thus, if we were to adopt Ms. Penunuri's reading, the

statute would permit a participant to "release” a right which she

does not have under the Equine Act—a right to recover for injuries

caused by the inherent risks of horseback riding. Instead, we read

"release” to have its "ordinary and accepted meaning.”42 Thus, we

conclude that the statute contemplates that equine sponsors might

seek preinjury releases from participants.43



¶22 We conclude that the statute is unambiguous. Thus, we

decline to consider "other modes of statutory construction,”



PENUNURI v. SUNDANCE



Opinion of the Court



_________________________________



44 See Marion Energy, 2011 UT 50, ¶ 15.



45 Penunuri, 2011 UT App 183, ¶ 13.



46 See UTAH CODE § 78B-4-401 to -404.



47 2007 UT 96, ¶¶ 15–16, 175 P.3d 560.



48 Penunuri v. Sundance Partners, Ltd., 2011 UT App 183, ¶¶ 17–18,

257 P.3d 1049 (citing Rothstein, 2007 UT 96).



49 Id. ¶ 19.



50 Rothstein, 2007 UT 96, ¶ 6.



10



including legislative history.44 And ultimately, we adopt the

reasoning expressed by the court of appeals: although "section 202

protects a sponsor from liability arising from the inherent risks of

equine activities unless the sponsor is negligent . . . the sponsor

remains free to assert all other applicable defenses, including, if

appropriate, release.”45 We therefore conclude that the Equine Act

does not invalidate preinjury releases of liability for ordinary

negligence.



II. PREINJURY RELEASES DO NOT VIOLATE

PUBLIC POLICY UNDER THE EQUINE ACT



¶23 Ms. Penunuri argues that the Waiver is unenforceable as a

violation of public policy. Specifically, she argues that the Equine

Act was modeled after—and enacted for the same purpose as—the

Skiing Act.46 Relying on Rothstein v. Snowbird Corp., in which we

invalidated a preinjury release as a violation of the public policy

expressed in the Skiing Act,47 Ms. Penunuri argues that preinjury

releases are similarly unenforceable under the Equine Act.



¶24 The court of appeals concluded that preinjury releases do

not violate public policy under the Equine Act. The court began with

a thorough analysis of our Rothstein decision, noting that our

analysis was grounded in the public policy expressed by the

Legislature in the first section of the Skiing Act.48 Because "[t]he

Equine Act has no equivalent statement of public policy,” the court

concluded that preinjury releases do not violate public policy under

the Equine Act.49 We agree.



¶25 It is well settled that preinjury releases of claims for

ordinary negligence can be valid and enforceable.50 Indeed, "[w]e

have joined the majority of jurisdictions in permitting people to

surrender their rights to recover in tort for the negligence of



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Opinion of the Court



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51 Id.



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



53 Though similar in name, an analysis of the public policy

exception and an analysis of the public interest exception begin at

different points and require different considerations. Specifically, to

determine whether an exculpatory provision is contrary to public

policy, we first determine whether a public policy has been established

in the common law or in constitutional or statutory provisions.

See Rackley v. Fairview Care Ctrs., Inc., 2001 UT 32, ¶ 16, 23 P.3d

1022; see also infra ¶ 26 n.55. On the other hand, to determine

whether an exculpatory provision is invalid under the public interest

exception, we consider a variety of aspects of the contract, including

whether "[t]he party seeking exculpation is engaged in performing

a service of great importance to the public,” and whether, "[a]s 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.” Pearce, 2008 UT 13, ¶ 17 (internal

quotation marks omitted).



54 Pearce, 2008 UT 13, ¶ 14 (citations omitted).



55 Although the Utah Association for Justice argues in its amicus

brief that preinjury releases violate the public interest, it is a "wellsettled

rule that an amicus brief cannot extend or enlarge the issues

on appeal,” and that we will "only consider[] those portions of the

amicus brief that bear on the issues pursued by the parties to th[e]

appeal.” Madsen v. Borthick, 658 P.2d 627, 629 n.3 (Utah 1983).

Accordingly, we decline to consider whether the Waiver is ambiguous

or violates the public interest.



11



others.”51 But "preinjury releases are not unlimited in power and can

be invalidated in certain circumstances.”52 Specifically, "(1) releases

that offend public policy are unenforceable; (2) releases for activities

that fit within the public interest exception53 are unenforceable; and

(3) releases that are unclear or ambiguous are unenforceable.”54 In

this case, Ms. Penunuri does not argue that the Waiver is ambiguous

or that horseback riding constitutes a public interest. Thus, we

consider only whether the Waiver is unenforceable as a violation of

public policy.55



¶26 To determine whether a contract offends public policy, we

first determine whether an established public policy has been

expressed in either constitutional or statutory provisions or the



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Opinion of the Court



_______________________



56 See Rothstein, 2007 UT 96, ¶ 20 (relying on the Legislature's

explicit statement of public policy in the Skiing Act to conclude that

a ski resort could not enforce a preinjury release of a skier's

negligence claims against a ski resort); Hawkins ex rel. Hawkins v.

Peart, 2001 UT 94, ¶¶ 10–12, 37 P.3d 1062 (relying on the public

policy expressed in various provisions of the Utah Code as well as

by a "clear majority of courts”); Berube v. Fashion Ctr., Ltd., 771 P.2d

1033, 1043 (Utah 1989) (noting that public policy may be found in

constitutional or statutory provisions, as well as judicial pronouncements);

see also Rackley, 2001 UT 32, ¶ 16 (noting that in the

employment-at-will context, "public policy is 'clear' if it is plainly

defined by one of three sources: (1) legislative enactments; (2)

constitutional standards; or (3) judicial decisions”).



57 Ockey v. Lehmer, 2008 UT 37, ¶ 21, 189 P.3d 51 (internal quotation

marks omitted).



58 Fox v. MCI Commc'ns Corp., 931 P.2d 857, 860 (Utah 1997).



59 Rothstein, 2007 UT 96, ¶ 10.



60 Berube, 771 P.2d at 1043 (quoting Patton v. United States, 281 U.S.

276, 306 (1930)).



12



common law.56 We have held that "[f]or a contract to be void on the

basis of public policy, there must be a showing free from doubt that

the contract is against public policy.”57 But "the term 'public policy'

is so broad in the abstract that it eludes a reasonably precise

definition for legal purposes.”58 And we have noted that "[t]o pluck

a principle of public policy from the text of a statute and to ground

a decision of this court on that principle is to invite judicial mischief.”

59 Accordingly, we have held that "the theory of public policy

embodies a doctrine of vague and variable quality, and, unless

deducible in the given circumstances from constitutional or

statutory provisions, should be accepted as the basis of a judicial

determination, if at all, only with the utmost circumspection.”60



¶27 In some instances, the Legislature unequivocally expresses

its view that certain contractual provisions are unenforceable as

against public policy. For example, section 78B-6-707 of the Utah

Code provides that "[a]ny clause . . . that requires a purchaser or end

user of a product to indemnify, hold harmless, or defend a manufacturer

of a product is contrary to public policy and void and unenforceable.”

Similarly, section 13-8-1(2) of the Utah Code provides

that "an indemnification provision in a construction contract is

against public policy and is void and unenforceable” except in

specific circumstances.



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61 2001 UT 94, ¶¶ 1, 11–12.



62 Id. ¶¶ 10–12.



63 Id. ¶ 10.



64 Id. (alteration in original) (internal quotation marks omitted).



65 Rothstein, 2007 UT 96, ¶ 1.



66 Id. ¶ 4 (internal quotation marks omitted).



67 Id. ¶ 16.



68 Id. ¶ 11.



13



¶28 In the absence of this sort of statutory language, we have

looked to public policy expressed in the common law or suggested

by the statutory text. For example, in Hawkins ex rel. Hawkins v. Peart,

we looked to public policy suggested by various provisions of the

Utah Code when we considered the enforceability of a preinjury

release signed by a mother on behalf of her minor daughter.61 In

concluding that the release was unenforceable, we relied on a

"public policy exception” indicated by Utah statues and rules that

"provides various checks on parental authority to ensure a child's

interests are protected” and indicate "public policies favoring

protection of minors with respect to contractual obligations.”62

Further, we noted that "[a] clear majority of courts treating the issue

have held that a parent may not release a minor's prospective claim

for negligence.”63 Specifically, we agreed that "[s]ince a parent

generally may not release a child's cause of action after injury, it

makes little, if any, sense to conclude a parent has authority to

release a child's cause of action prior to an injury.”64



¶29 And in Rothstein, we looked to public policy expressed in

the statute itself when we considered the enforceability of a

preinjury release signed by a skier.65 The preinjury release at issue

waived the skier's right to recover damages arising from "the risks

of skiing or from any other cause including the negligence” of the ski

resort.66 Turning to the language of the Skiing Act, we concluded

that by waiving the resort's liability for negligence, the release

"breached [the] public policy bargain” struck by the statute.67 And

although the Skiing Act does not mention preinjury releases for

negligence, we concluded that "[f]ew legislative expressions of

public policy speak more clearly to an issue . . . than the public

policy rationale for [the Skiing Act] speaks to preinjury releases for

negligence.”68



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Opinion of the Court



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69 UTAH CODE § 78B-4-401.



70 Rothstein, 2007 UT 96, ¶ 15.



71 Id. ¶ 16.



72 Id. The dissent, however, concluded that the statute expressed

no such bargain. Id. ¶ 26 (Wilkins, J., dissenting). Instead, the dissent

asserted that the statute "simply proscribes lawsuits against ski area

(continued...)



14



¶30 The first section of the Skiing Act is entitled "Public Policy”

and provides as follows:



The Legislature finds that the sport of skiing is practiced

by a large number of residents of Utah and

attracts a large number of nonresidents, significantly

contributing to the economy of this state. It further

finds that few insurance carriers are willing to provide

liability insurance protection to ski area operators and

that the premiums charged by those carriers have

risen sharply in recent years due to confusion as to

whether a skier assumes the risks inherent in the sport

of skiing. It is the purpose of this act, therefore, to

clarify the law in relation to skiing injuries and the

risks inherent in that sport, to establish as a matter of

law that certain risks are inherent in that sport, and to

provide that, as a matter of public policy, no person

engaged in that sport shall recover from a ski operator

for injuries resulting from those inherent risks.69



¶31 Based upon this language, we concluded that the "central

purpose of the Act . . . was to permit ski area operators to purchase

insurance at affordable rates.”70 Additionally, we concluded that the

statutory language evidenced a bargain struck by the Legislature: by

removing liability for the inherent risks of skiing, ski area operators

could purchase cheaper insurance, and in exchange, they would be

required to retain liability for risks that are not inherent to skiing.71 In

light of this bargain, we concluded that the Legislature intended to

prohibit preinjury releases. Specifically, we held that "[b]y expressly

designating a ski area operator's ability to acquire insurance at

reasonable rates as the sole reason” for enacting the Skiing Act, "the

Legislature authoritatively put to rest the question of whether ski

area operators are at liberty to use preinjury releases to significantly

pare back or even eliminate their need to purchase the very liability

insurance the Act was designed to make affordable. They are not.”72



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72 (...continued)

operators for those risks that are inherent to skiing. Nowhere does

the text suggest that ski area operators may not contractually further

limit their liability for risks that are not inherent to skiing. In fact, the

text is silent about whether an individual may or may not sue a ski

area operator on some other basis.” Id. (citation omitted). Accordingly,

the dissent concluded that we should "resist the temptation to

add language or meaning to the Act where no hint of it exists in the

text.” Id.



73 See Berube, 771 P.2d at 1043 (quoting Patton, 281 U.S. at 306).



74 See Rothstein, 2007 UT 96, ¶ 15.



75 Id. ¶¶ 15–16.



76 Id. ¶ 26 (Wilkins, J., dissenting).



15



¶32 In this case, the Equine Act is silent regarding public policy.

Indeed, neither "public policy” nor any similar phrase appears in

any section of the Act. Accordingly, because a public policy is not

"deducible . . . from constitutional or statutory provisions,” we may

infer a public policy in the Equine Act "if at all, only with the utmost

circumspection.”73 But unlike the Skiing Act, the Equine Act does

not explain the motivation behind the Legislature's decision to

eliminate liability for inherent risks for equine activities. Further, the

Equine Act contains no statement regarding the importance of

equine activities on the tourism industry or the difficulty equine

sponsors face in purchasing insurance at affordable rates.



¶33 Thus, we cannot conclude that the "central purpose” of the

Equine Act was to permit equine sponsors "to purchase insurance

at affordable rates.”74 And as discussed above, it was that "central

purpose” of the Skiing Act, as expressed by the Legislature, that led

us to infer that the Legislature had struck a "public policy bargain”

when it eliminated liability for the inherent risks of skiing.75 But

there is not a similar expression of purpose in the Equine Act, and

we "resist the temptation to add language or meaning to the Act

where no hint of it exists in the text.”76 We cannot infer that, by

removing liability for the inherent risks of equine activities, the

Legislature intended that equine sponsors be precluded from

escaping liability for their negligent acts. We therefore conclude that

preinjury waivers for ordinary negligence do not violate public

policy under the Equine Act.



CONCLUSION



PENUNURI v. SUNDANCE



JUSTICE LEE: concurring in part,

concurring in the judgment



16



¶34 We conclude that the Equine Act does not invalidate

preinjury releases for ordinary negligence. Further, we conclude that

the Equine Act does not evidence a public policy bargain struck by

the Legislature, and that our rationale in Rothstein is inapplicable to

the Equine Act. Accordingly, we conclude that the Waiver is

enforceable, and we affirm the decision of the court of appeals.



____________



JUSTICE LEE, concurring in part, concurring in the judgment:



¶35 I write separately only to note my disagreement with

Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560, which the

majority restates and then distinguishes. I see no logical or legal

basis for Rothstein's conclusion that enforcement of a ski resort's

release waiving liability for negligence "breached [the] public policy

bargain” struck by the Inherent Risks of Skiing Act, UTAH CODE

§§ 78B-4-401 to -404. Rothstein, 2007 UT 96, ¶ 16. Even if the "central

purpose” of that statute was to "permit ski area operators to

purchase insurance at affordable rates,” it could hardly follow that

"the Legislature [thereby] authoritatively” renounced the

enforceability of written waivers of liability for negligence. Id.

¶¶ 15–16. Enforcement of such releases could only further advance

the stated goal—making insurance even more affordable. I would

therefore repudiate Rothstein instead of distinguishing it in a manner

that tends to reinforce it.

¶34 We conclude that the Equine Act does not invalidate

preinjury releases for ordinary negligence. Further, we conclude that

the Equine Act does not evidence a public policy bargain struck by

the Legislature, and that our rationale in Rothstein is inapplicable to

the Equine Act. Accordingly, we conclude that the Waiver is

enforceable, and we affirm the decision of the court of appeals.