Explosive Breacher Training Claim Survives Dismissal

Written on 11/05/2022
Will Aitchison

Brian Cunningham was a Layton City firefighter in Utah. Cunningham was paid by Layton City to receive SWAT training conducted by Weber County.

As students arrived at the SWAT training, they were required to sign a waiver in which they “unconditionally and irrevocably released and discharged the Ogden Metro SWAT 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 attending or partici­pating in the described SWAT training.”

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.

Cunningham and his wife filed suit against Weber County, alleging that the 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.

The Utah Supreme Court held that the waiver did not prohibit the lawsuit. The Court noted that “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. A preinjury release must make its intent clear and unmistakable.

“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. 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.

“Here, the Release’s language does not clearly and unmistakably release ‘the Ogden Metro SWAT Team and all related organizations and entities’ from liability for their own negligence. 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. 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.

“Ambiguity exists in a preinjury release when reasonable minds could disagree on the release’s meaning. Had the Release meant to waive negligence claims against Weber County, it would have been easy enough to use that very language and to thus make that intent clear and unmistakable. Simply stated, the preinjury release Cunningham signed was not clear and unmistakable. It was therefore unenforceable.”

The Court’s order allowed the Cun­ninghams a trial on their negligence claim.

Cunningham v. Weber County, 2022 WL 480901 (Utah 2022).

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