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While in Utah, Penunuri and two of her friends went on a guided horseback ride operated by Sundance. The group, consisting of fve riders and one guide, rode in a single fle with Penunuri toward the rear and the guide in the front. Penunuri rode behind an eight year old girl who, as a result of gaps in the line of the horses, was having problems controlling her horse. Before the guide could assist the girl, Penunuri’s horse suddenly moved forward to catch up with the other horses. As a result, Penunuri fell off and suffered serious injuries. Prior to participating in the ride, the plaintiff had signed a Release and Indemnity Agreement (the Release). The Release specifcally released Sundance from any claims arising from ordinary negligence and contained the following language: “I expressly agree to assume all risks of personal injury, falls, accidents, and/or property damage, including those resulting from any negligence of Sundance…”

A lawsuit was fled by Penunuri alleging negligence, gross negligence and vicarious liability. Plaintiff fled a motion for partial summary judgment and declaratory relief on the argument that the release was unenforceable as per the limitations on liability under the Utah Equine Act. (Under Utah law, summary judgment can be granted by

the court only when there is no genuine issue as to any material fact. All facts and reasonable inferences drawn are to be taken in the light most favorable to the nonmoving party, which in this case is the defendant.) The trial court held for defendants and denied plaintiff’s motions for both summary judgment and declaratory relief.

Normally common law (non-statutory law developed as a result of years of legal decisions) does not favor agreements that indemnify parties against their own negligence because allowing one to do so could lead to carelessness, because there is no penalty for such actions. However, as long as one is not engaged in public service the parties may enter into such contracts limiting liability provided the release does not release the party from liability from harm willfully inficted or caused by gross or wanton negligence. Looking at this issue the court determined that Utah allows people to contract away their rights to recover in tort for damages caused by the ordinary negligence of others.

Penunuri argued that the release violated the express terms of the equine act in that the act shields an equine sponsor from liability for the inherent risks associated with equine activities (unless the sponsor engages in negligence, gross negligence, willful or wanton disregard for the safety of the participant or intentionally injurious conduct.) As a result she argued that given the Equine Act specifcally holds sponsors liable for both acts as well as omissions of negligence. She further contended that once negligence is established the Act mandates liability unless the statute gives the defendant defenses. Sundance on the other hand contended that once negligence is established the Act ceases to apply and the defense may utilize common law defenses. The Appeals Court agreed with Sundance fnding that the Equine Act protects a sponsor from liability which is as a result of inherent risks of equine activities, unless the sponsor is negligent. When the sponsor is negligent the Equine Act offers no protection. However, the Appeals Court found that the sponsor remains free to assert all other applicable defenses including those contained in the release. As a result the Equine Act still allows sponsors to contractually limit their liability for acts of ordinary negligence as long as it is valid under Utah state law.

While it is conceivable that another state could fnd that its equine activity act limits the use of a release, it is advisable that you not only utilize a release for your equine establishment but also have adequate liability coverage.

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