Factors Affecting Waiver Law in the State of Washington (Part 2)

By Doyice Cotten

This case examines Washington waiver law, specifically as it relates to health clubs and fitness centers. Most of the concepts, however, apply to all waivers in the state. Two issues were raised last week and three more are addressed next week.

Part II

14553426853_ebbd77d741_mA recent Washington waiver case (DeAsis v. Young Men’s Christian Association of Yakima, 2014 Wash. App. LEXIS 2201) clearly explains Washington law regarding the enforcement of waivers used by health clubs.

When Danny DeAsis joined the YMCA, the application contained a liability waiver on the back of the application. DeAsis failed to sign the application and when he returned to use the facility, staff presented him with the waiver and he signed it without reading it. About nine months later, he slipped, fell, and was injured when he walked over a wet spot on the floor caused by another swimmer who had left the pool.

DeAsis sued the YMCA alleging negligence (and later, gross negligence) on the part of the YMCA. Washington law provides that a waiver is valid unless it 1) violates public policy, 2) involves gross negligence by the entity, or 3) the clause is so inconspicuous that a reasonable person could find it was signed unwittingly.

These and other factors will be addressed below.



The plaintiff argued that the language of the waiver is confusing, ambiguous, and failed to specify a release of “negligence.” The court disagreed, finding the first paragraph contains language releasing the YMCA and its directors, officers, employees, and agents, “hereafter referred to as ‘releasees’” from all liability “whether caused by the negligence of the releasees or otherwise.”  It stated that further, Washington law does not require that a waiver specifically refer to “negligence” of the provider.

Unaware of Signing/Failure to Read

DeAsis argued that the scenario under which he signed the waiver caused him to be unaware of the significance of the act. He claimed he did not know what he was signing “because of the way YMCA presented the document.” However,  he failed to explain to the court and presented no evidence showing how the circumstances of his signing interfered with his ability to understand the agreement.

He admits failing to read the waiver, but shows no evidence as to how he was denied the opportunity to read it or was misled about its terms. The court made clear the adage “A person who signs an agreement without reading it is bound by its terms as long as there was ample opportunity to examine the contract in as great a detail as he cared, and he failed to do so for his own personal reasons.’”

Adhesion Contract

DeAsis argued that the release is an unenforceable adhesion contract. An adhesion contract is one that is 1) a standard form printed contract, (2) prepared by one party and submitted to the other on a “take it or leave it” basis, and (3) does not allow true equality of bargaining power between the parties. However, the court pointed out that the fact that an agreement is an adhesion contract does not necessarily render it procedurally unconscionable or unenforceable.

The court stated that Tunkl did include an adhesion contract as a factor in determining if a waiver violated public policy. It went on to discuss the Shields court decision enforcing a contract that was clearly adhesionary. As in Shields, this court reasoned that the critical factor is whether there was disparate bargaining power. Since a health club is not an essential service, people have a choice in selecting a health club as well as other ways to maintain their fitness. Thus, the club and DeAsis had equal bargaining power  and the waiver was enforceable.  The “take it or leave it” nature of the YMCA membership agreement did not render it unenforceable.

Because the release and waiver provision is valid and enforceable, Mr. DeAsis’s negligence claim was properly dismissed.

Gross Negligence Claim

Waivers are only enforceable to exculpate tortfeasors for negligent acts — they are not enforceable for grossly negligent acts. DeAsis claims the YMCA was also guilty of gross negligence and that there were genuine issues of fact.

DeAsis submits that gross negligence claims should never be dismissed on summary judgment; he argues that in many cases the issue of whether negligence rises to gross negligence presents a question of fact for the jury and is not properly decided by the judge on summary judgment.  The court stated that summary judgment is proper in cases that do not present substantial evidence of acts or omissions that are seriously negligent in character.

The court found no evidence of gross negligence; the record shows that the defendant acted prudently and promptly.

The court ruled that no reasonable jury could have found the YMCA grossly negligent and declared that summary judgment in favor of the YMCA was appropriate


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