Factors Affecting Waiver Law in the State of Washington

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 raised will be addressed this week and three more will be addressed next week.

Part I

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.

Public Policy

There is no public policy in Washington that prevents parties from releasing one or the other from liability for negligence. Courts rely on six factors given by Tunkl v. Regents of University of California (1963) to be used in determining if waivers violate public policy. If a contract exhibits several of the characteristics, it may be deemed to be against public policy.

In a prior case (Shields v. Sta-Fit, Inc., 1995), a Washington court  found that cases holding that exculpatory agreements are void against public policy generally deal with essential services—hospitals, housing, public utilities, and public education. That court considered Tunkl’s six factors, and  held that a gym is not subject to the public policy exception. A more recent court found that  Washington courts do not find a public interest in “non-essential” adult recreational activities (Johnson v. Spokane to Sandpoint, LLC, 2013). Hence, the DeAsis court ruled the YMCA’s release is not unenforceable on grounds of public policy.

Inconspicuous

DeAsis claims the waiver is unenforceable because it is not conspicuous. The court pointed out that previous courts have found whether an exculpatory clause is conspicuous or not depends upon how many of the characteristics that make a provision conspicuous are present. Those characteristics include the use of: 1) headings or captions, 2) capital letters or bold type, 3) a signature line, and 4) whether it is clear that the required signature is related to the exculpatory provision.

The court cited Chauvlier v. Booth Creek Ski Holdings, Inc. 2001) as an example:

The release at issue in Chauvlier was printed on a ski pass application. It was not hidden within part of a larger agreement, and it was clearly entitled “LIABILITY RELEASE & PROMISE NOT TO SUE. PLEASE READ CAREFULLY!” Also included were the words “RELEASE” and “HOLD HARMLESS AND INDEMNIFY” set off in capital letters throughout the agreement, and the release contained the language, just above the signature line, “Please Read and Sign: I have read, understood, and accepted the conditions of the Liability Release printed above.”

Summary judgment that the release was conspicuous and enforceable was affirmed.

In contrast, the court cited cases in which waivers were not conspicuous.

In Baker (Baker v. Seattle, 1971), the Supreme Court held as a matter of law that a disclaimer in a golf cart rental agreement was unconscionable and unenforceable where it consisted of several lines of release language in the middle of a paragraph dealing with something else, and “would have been observed only by reading the entire agreement.” In McCorkle (McCorkle v. Hall, 1989) … the appellate court concluded that the issue of conspicuousness required trial. …In McCorkle, the release language was included in a paragraph with the ambiguous caption, “LIABILITY STATEMENT.”

The court pointed out that the YMCA’s membership agreement and waiver has all of the characteristics that have been relied upon in finding, as a matter of summary judgment, that no reasonable jury could find release language to be inconspicuous. In addition, the waiver contained repeated cautionary and warning language including “I HAVE READ AND UNDERSTAND THIS DOCUMENT AND RELEASE” immediately above the signature line. The court ruled that there is no issue of fact as to conspicuousness that requires trial.

 

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