¶ 1 In this case, a group of residential tenants (collectively, Tenants) allege claims of negligence against Canyon Cove Properties, LLC, and Apartment Management Consultants, L.L.C. (collectively, AMC). AMC argues that it was relieved from liability because Tenants signed a Residential Release Agreement (Agreement) that included a limited liability provision (Exculpatory Clause or Clause) waiving the right to bring an action for negligence against AMC. The district court concluded that the Agreement and the Exculpatory Clause did "not violate public policy" and were therefore "valid and enforceable." Accordingly, it granted summary judgment for AMC.
¶ 2 On appeal, Tenants contend that the Exculpatory Clause is unenforceable because it violates Utah's public policy of encouraging landlords to act with care, and it falls within the public interest exception under the factors set forth in Tunkl v. Regents of the University of California.
¶ 3 Tenants resided in an apartment complex in Ogden, Utah. The apartment complex was owned and operated by AMC. Between March and August 2005, every Tenant signed an Agreement to lease an apartment in the complex. The Agreements each included an Exculpatory Clause containing the following language:
¶ 4 In November 2005, an arsonist started a fire at the apartment complex. As a result of the fire, Tenants suffered property damage and personal injuries. They filed suit against AMC, alleging that its negligence contributed to their damages from the fire. Specifically, Tenants claimed that AMC was negligent because it failed to (1) warn residents that the building did not contain fire blocking, (2) take any measures to reduce or eliminate fire hazards when it knew about a previous fire at the apartment complex, (3) have a functional fire alarm system, (4) have security at the premises, (5) remove a couch from a stairwell that served as the ignition for the fire, and (6) provide adequate access to firefighters.
¶ 5 After discovery, AMC filed a motion for summary judgment on the ground that Tenants' negligence claims were barred by the Exculpatory Clause in the Agreement. Specifically,
¶ 6 On appeal to this court, Tenants argue that the district court erred in granting summary judgment because the Exculpatory Clause violates Utah's public policy of encouraging landlords to act with care, and the Clause falls within the public interest exception under the factors set forth in Tunkl v. Regents of the University of California.
¶ 7 We have jurisdiction to hear this appeal under section 78A-3-102(3)(j) of the Utah Code.
¶ 8 "We review the district court's decision to grant summary judgment for correctness, granting no deference to the district court."
¶ 9 Rule 24 of the Utah Rules of Appellate Procedure governs the contents and format of briefs submitted to the court. In particular, rule 24(a) requires that the argument section of a brief "contain the contentions and reasons of the appellant with respect to the issues presented ... with citations to the authorities, statutes, and parts of the record relied on."
¶ 10 Rule 24(b) makes the requirements of rule 24(a) applicable to the brief of
¶ 11 Under our rules of appellate procedure, we need not address briefs that fail to comply with rule 24. Specifically, rule 24(k) states that "[b]riefs which are not in compliance may be disregarded or stricken, on motion or sua sponte by the court."
¶ 12 In this case, AMC fails to address Tenants' plausible arguments that the Exculpatory Clause is unenforceable because it violates Utah public policy and falls within the public interest exception. Indeed, we have held that limited liability provisions may be unenforceable under certain circumstances, including when such releases "offend public policy" or "fit within the public interest exception."
¶ 13 Under the Tunkl standard, an exculpatory clause may be unenforceable on public interest grounds when the party seeking to enforce the clause (1) is involved in "business of a type generally thought suitable for public regulation"; (2) "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) "holds himself out as willing to perform this service for any member of the public who seeks it"; (4) "possesses a decisive advantage of bargaining strength against any member of the public who seeks his services"; (5) "confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser [or lessee] may pay additional reasonable fees and obtain protection against negligence"; and (6) places "the person or property of the purchaser [or lessee] ... under the control of the seller [or lessor], subject to the risk of carelessness by the seller [or lessor,] or his agents."
¶ 14 On the other hand, AMC's brief largely ignores the points in Tenants' brief. Instead, it makes arguments that are unrelated to the issues Tenants raise and that fail to address or refute Tenants' points. First, AMC contends that the Exculpatory Clause is enforceable because it is clear and unambiguous. But Tenants do not claim that the Clause is unclear or ambiguous. And AMC's argument on this matter does not refute Tenants' claim that the Clause is unenforceable on public policy and public interest grounds. Thus, the argument that the Exculpatory Clause is clear and unambiguous is both uncontested and irrelevant to the issues Tenants present on appeal.
¶ 15 Second, AMC contends that the fire was caused by an intentional act of arson, rather than by AMC's negligence, and accordingly, that it is inappropriate for us to find the Exculpatory Clause unenforceable as a matter of public policy. But this argument ignores Tenants' position that, regardless of who started the fire, AMC's negligence contributed to the damages resulting from the spread of the fire throughout the apartment complex. Further, AMC's focus on the fact that an arsonist started the fire does not address Tenants' plausible claim that AMC's statutory and common law duties to provide safe premises create a public policy that disfavors AMC's attempt to immunize itself from the consequences of its negligence through the Exculpatory Clause.
¶ 16 Third, AMC argues that, even if Tenants' assertions of its negligence were true, "Tenants have not established anywhere in the record ... that this contributed to their loss." It states that "Tenants simply point to miscellaneous things they contend were inadequate and ask this court to make the unbridged leap to negligence." But the question of whether AMC's acts contributed to Tenants' loss is a question of causation, and that issue is not before us. On appeal, Tenants argue that the district court erred in its conclusion that the Exculpatory Clause did "not violate public policy" and was "valid and enforceable," such that Tenants' negligence claims were precluded. Whether tenants have established that AMC's acts "contributed to their loss" is irrelevant to Tenants' claim that the Exculpatory Clause is unenforceable on public interest and public policy grounds and that it therefore should not bar their claims of negligence.
¶ 17 Finally, AMC attempts to circumvent Tenants' arguments that the Exculpatory Clause violates public policy and the public interest by asserting that the Agreement and the Exculpatory Clause were not contracts of adhesion. But AMC does not point out that this argument relates to one of the Tunkl factors set forth in Tenants' brief. In fact, it never recognizes Tenants' argument that the Clause is unenforceable under the Tunkl factors at all. Thus, AMC fails to provide us with meaningful analysis of how its assertion that the Agreement and the Exculpatory Clause are not contracts of adhesion relates to the enforceability of the Clause under the Tunkl factors set forth in Tenants' brief. Moreover, even if the Agreement and the Exculpatory Clause are not contracts of adhesion, such that the relevant Tunkl factor does not apply in this case, AMC never refutes Tenants' argument that the other five Tunkl factors apply here and are sufficient bases for concluding that the Exculpatory Clause is unenforceable.
¶ 18 Thus, AMC fails to meaningfully address Tenants' claim that the Clause is unenforceable or provide us with legal analysis addressing the points Tenants raise. Indeed, Tenants note in their reply brief that AMC does not squarely address their arguments. Further, at oral argument, counsel for AMC conceded that its brief failed to address Tenants' arguments regarding the unenforceability of the Clause under the Tunkl factors. When asked why AMC did not address these arguments in its brief, counsel for AMC admitted
¶ 19 We recognize that appellants bear the burden of persuasion on appeal,
¶ 20 Accordingly, because of AMC's inadequate briefing of the issues raised by Tenants, we reject AMC's brief. And thus, without reaching the merits of the broader issues before us, we accept Tenants' claim that the Exculpatory Clause in the Agreement is unenforceable.
¶ 21 In this case, Tenants claim that the district court erred in concluding that their claims of negligence were barred by the Exculpatory Clause and in granting summary judgment for AMC. They argue that the Exculpatory Clause is unenforceable because it violates Utah public policy and negatively affects the public interest under the factors set forth in Tunkl v. Regents of the University of California.
Chief Justice DURRANT authored the opinion of the Court, in which Associate Chief Justice NEHRING, Justice DURHAM, Justice PARRISH, and Justice LEE joined.