Will a Washington court enforce a clause releasing a party from liability for its own negligence?
Generally yes, with three exceptions: exculpatory clauses are enforceable unless (1) they violate public policy, (2) the negligent act falls greatly below the standard established by law for protection of others, or (3) they are inconspicuous. They are strictly construed and must be clear if the exemption is to be enforced, but the word 'negligence' is not required: Scott agreed with two Court of Appeals holdings that the word "is not essential to *491 the effectiveness of an express release" (the star page marker sits inside the sentence as reported), and held that the language "hold harmless ... from all claims" logically includes negligent conduct, so an application reading "I hereby hold harmless Grayson Connor, and the Grayson Con-nor Ski School and any instructor or chaperon from all claims arising out of the instruction of skiing" was "sufficiently clear to give notice that the ski school was attempting to be released from liability for its negligent conduct". Releases of future negligence that exhibit one or more of the characteristics of a public-interest transaction identified in Tunkl v. Regents may violate public policy, and where all six appear they are invalid (Wagenblast, school interscholastic athletics). The six are "not the exclusive considerations to which a court may look in the determination of public policy" and only give a "rough outline" of "the type of settings in which exculpatory agreements have not been allowed" (Vodopest), and a release can fail on public policy even where "there was no particular unequal bargaining strength": Vodopest held that "a preinjury agreement, which releases a medical researcher for liability for negligent conduct which occurs in the course of medical research, violates public policy". Wagenblast took Tunkl's list whole: a business "of a type generally thought suitable for public regulation"; a party "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"; one who "holds himself out as willing to perform this service for any member of the public who seeks it"; a party who "possesses a decisive advantage of bargaining strength"; "a standardized adhesion contract of exculpation" with "no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence"; and a transaction in which "the person or property of the purchaser is placed under the control of the seller". "[T]he more of the foregoing six characteristics that appear in a given exculpatory agreement case, the more likely the agreement is to be declared invalid on public policy grounds", and in Wagenblast "all of the characteristics are present in each case". A parent's release cannot bar the child's own cause of action for injuries from a third party's negligence (Scott), but it can bar the parents' own claim, and in Scott it did: the Court affirmed "the *504 dismissal of the parents' cause of action" while reversing and remanding "with regard to Justin's own cause of action", and separately reversed the summary judgment the ski resort had won. In a construction contract the statute takes over: a promise "purporting to indemnify, including the duty and cost to defend, against liability for damages" "Caused by or resulting from the sole negligence of the indemnitee, his or her agents or employees is against public policy and is void and unenforceable" (RCW 4.24.115(1)(a)).
The trap
The public-policy exception is not limited to consumer contracts. Wagenblast struck down releases required of every student athlete because the districts had near-monopoly bargaining power, offered a standardised adhesion form with no option to pay for protection, and took students under their control. And 'falls greatly below the standard established by law' is Scott's own wording for conduct beyond ordinary negligence, and the Court of Appeals has applied it as the gross-negligence exception: where "negligent acts fell greatly below the standard established by law for the protection of others against unreasonable risk of harm", "the releases are unenforceable" (Boyce v. West); Conradt v. Four Star Promotions states the same exception and defines the conduct: "Gross negligence is negligence substantially and appreciably greater than ordinary negligence".
17 authorities
The words that state the rule
For and in consideration of the instruction of skiing, I hereby hold harmless Grayson Connor, and the Grayson Con-nor Ski School and any instructor or chaperon from all claims arising out of the instruction of skiing or in transit to or from the ski area. I accept full responsibility for the cost of treatment for any injury suffered while taking part in the program.
The words that state the rule
The general rule in Washington is that exculpatory clauses are enforceable unless (1) they violate public policy, or (2) the negligent act falls greatly below the standard established by law for protection of others or (3) they are inconspicuous.
The words that state the rule
Exculpatory clauses are strictly construed and must be clear if the exemption from liability is to be enforced.
The words that state the rule
We hold that to the extent a parent's release of a third party's liability for negligence purports to bar a child's own cause of action, it violates public policy and is unenforceable. However, an otherwise conspicuous and clear exculpatory clause can serve to bar the parents' cause of action based upon injury to their child. Therefore, we hold that Justin's parents' cause of action is barred by the release; Justin's own cause of action is not haired.
- case110 Wash. 2d 845Wagenblast v. Odessa School District No. 105-157-166JWash.decided 1988read it at the source ↗
The words that state the rule
In sum, the attempted releases in the cases before us exhibit all six of the characteristics denominated in Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-101 , 383 P.2d 441 , 32 Cal. Rptr. 33 , 6 A.L.R.3d 693 (1963). Because of this, and for the aforesaid reasons, we hold that the releases in these consolidated cases are invalid as against public policy.
- case110 Wash. 2d 845Wagenblast v. Odessa School District No. 105-157-166JWash.decided 1988read it at the source ↗
The words that state the rule
Probably the best exposition of the test to be applied in determining whether exculpatory agreements violate public policy is that stated by the California Supreme Court. In writing for a unanimous court, the late Justice Tobriner outlined the factors in Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92 , 383 P.2d 441 , 32 Cal. Rptr. 33 , 6 A.L.R.3d 693 (1963): Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation 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. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby *852 a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents. (Footnotes omitted.) Tunkl, 60 Cal. 2d at 98-101 . 15 We agree. Obviously, the more of the foregoing six characteristics that appear in a given exculpatory agreement case, the more likely the agreement is to be declared invalid on public policy grounds. In the consolidated cases before us, all of the characteristics are present in each case.
- case110 Wash. 2d 845Wagenblast v. Odessa School District No. 105-157-166JWash.decided 1988read it at the source ↗
The words that state the rule
In exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
- case110 Wash. 2d 845Wagenblast v. Odessa School District No. 105-157-166JWash.decided 1988read it at the source ↗
The words that state the rule
Many students cannot afford private programs or the private schools where such releases might not be employed. In this regard, school districts have near-monopoly power. And, because such programs have become important to student participants, school districts possess a clear and disparate bargaining strength when they insist that students and their parents sign these releases.
The words that state the rule
Two Washington Court of Appeals cases have also held that the word "negligence" is not essential to *491 the effectiveness of an express release. 8 We agree. Courts should use common sense in interpreting purported releases, 9 and the language "hold harmless ... from all claims" logically includes negligent conduct. One does not have a "claim" to be "held harmless" from unless there is a basis for liability.
The words that state the rule
We conclude that the language of the purported exculpatory clause contained in the ski school application was sufficiently clear to give notice that the ski school was attempting to be released from liability for its negligent conduct.
The words that state the rule
Accordingly, we reverse the summary judgment in favor of the ski resort operator and remand to the trial court for further proceedings consistent with this opinion. As to the summary judgment in favor of the ski school, we affirm the *504 dismissal of the parents' cause of action, but reverse and remand with regard to Justin's own cause of action.
- statuteRCW 4.24.115enactment date not established
The words that state the rule
(1) A covenant, promise, agreement, or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, a contract or agreement for architectural, landscape architectural, engineering, or land surveying services, or a motor carrier transportation contract, purporting to indemnify, including the duty and cost to defend, against liability for damages arising out of such services or out of bodily injury to persons or damage to property: (a) Caused by or resulting from the sole negligence of the indemnitee, his or her agents or employees is against public policy and is void and unenforceable; (b) Caused by or resulting from the concurrent negligence of (i) the indemnitee or the indemnitee's agents or employees, and (ii) the indemnitor or the indemnitor's agents or employees, is valid and enforceable only to the extent of the indemnitor's negligence and only if the agreement specifically and expressly provides therefor, and may waive the indemnitor's immunity under industrial insurance, Title 51 RCW, only if the agreement specifically and expressly provides therefor and the waiver was mutually negotiated by the parties. This subsection applies to agreements entered into after June 11, 1986.
The words that state the rule
In a setting which involves one or more of these characteristics, a preinjury release from liability for negligence may violate public policy. Wagenblast, 110 Wn.2d at 851 ; Tunkl, 60 Cal.2d at 98, 101 ; 383 P.2d at 444, 446-47 . These factors are not the exclusive considerations to which a court may look in the determination of public policy. These general characteristics are taken from prior court cases and only give a "rough outline" of the type of settings in which exculpatory agreements have not been allowed.
The words that state the rule
In spite of the fact that this was not an adhesion *856 contract, in that there was no particular unequal bargaining strength, we conclude there are critical public policy reasons to maintain the usual standard of care in settings where one person is using another as a medical research subject.
The words that state the rule
We conclude that a preinjury agreement, which releases a medical researcher for liability for negligent conduct which occurs in the course of medical research, violates public policy.
The words that state the rule
Mrs. Boyce further contends there are issues of material fact whether the defendants were grossly negligent. If Mr. West's negligent acts fell greatly below the standard established by law for the protection of others against unreasonable risk of harm, the releases are unenforceable.
- case45 Wash. App. 847Conradt v. Four Star Promotions, Inc.Wash. Ct. App.decided 1986read it at the source ↗
The words that state the rule
We are next asked to determine whether the release was invalid based on the gross negligence of Four Star. In addition to the previously discussed "inconspicuous" basis for invalidating contracts waiving liability for negligence, another exception exists "where the negligent act falls greatly below the standard established by law for the protection of others against unreasonable risk of harm." Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 574 , 636 P.2d 492 (1981) (citing McCutcheon v. United Homes Corp., 79 Wn.2d 443 , 486 P.2d 1093 (1971); Hewitt , at 77 n. 1). Gross negligence is negligence substantially and appreciably greater than ordinary negligence.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.