Pre-Injury Release and Waiver Provisions

waiverRecreational sports, such as skiing, scuba diving and basketball can be a lot of fun but are not without their injury risks. Businesses involved in such sports can limit their liability by having participants sign a waiver, but should be aware that not all waivers are enforceable.

In Washington, a waiver provision is enforceable unless: (1) the negligent act falls greatly below the legal standard for protection of others, (2) it violates public policy, or (3) it is inconspicuous. Stokes v. Bally’s Pacwest, Inc., 1113 Wn.App. 442, 445 (2002). With regard to the first exception, a waiver will not exculpate a business from liability for damages resulting from “gross negligence,” which is negligence that is substantially and appreciably greater than ordinary negligence. Vodopest v. MacGregor, 128 Wash.2d 840, 853 (1996). A recent Washington case found that an event organizer did not commit gross negligence when routing an extended marathon race through a dangerous intersection. The organizer had posted warning signs at the intersection, and advised participants on how to safely cross. Johnson v. Spokane to Sandpoint, LLC, 176 Wn.App. 453, 460 (2013).

Whether a waiver provision violates public policy, six factors are considered: (1) whether the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) whether the party seeking release is engaged in performing a service of great importance to the public; (3) whether the party seeking release holds itself out as willing to perform its service for any member of the public who seeks it; (4) whether the party seeking release possesses a decisive advantage of bargaining strength; (5) whether a standardized adhesion contract is used or if a fee may be paid in lieu of the waiver; and (6) whether the participant signing the release is under the control of the party seeking release and is subject to their risk of carelessness. Wagenblast v. Odessa Sch. Dist. 105–157–166J, 110 Wn.2d 845, 851–55 (1988). Washington courts rarely find that adult recreational activities are matters of “public interest,” and have held that scuba diving, mountaineering, tobogganing, demolition car racing and marathon running are not activities that sufficiently concern a public interest.

To determine if the language in a waiver is conspicuous, courts evaluate several factors, including: whether the waiver is set apart or hidden within other provisions, the heading is clear,  the waiver is set off in capital letters or in bold type, there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. Baker v. City of Seattle, 79 Wn.2d 198, 202 (1971). In the recent case Johnson v. Spokane to Sandpoint, LLC, a waiver provision was found unambiguous and conspicuous where the release language was clearly set apart in either italicized letters or in all capital letters or both, contained a heading stating, “WAIVER AND RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT,” and repeatedly warned that the participant was giving up legal rights by signing the waiver.

For assistance in drafting a waiver appropriate for your business, please contact an experienced attorney at Montgomery Purdue Blankinship & Austin, PLLC.

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