185 Mile Running Race release was clear and under Washington, law was sufficient to beat a Public Policy & ambiguous argument by plaintiff
Posted: December 5, 2016 Filed under: Racing, Washington | Tags: #race, Exculpatory clause, Gross negligence, Race Handbook, Release, Waiver Clause, Washington Leave a commentDecision clearly sets forth the requirements for the plaintiff to prove her claims which she failed to do.
State: Washington, Court of Appeals of Washington, Division Three
Plaintiff: Robin Johnson and Craig Johnson
Defendant: Spokane to Sandpoint, LLC, et al.
Plaintiff Claims: Negligence & Gross Negligence
Defendant Defenses: Release
Holding: for the defendant
Year: 2013
The plaintiff, an attorney signed up for the Spokane to Sandpoint race. The race is a team race run over two days and nights. The race is 185 miles long and an open course, meaning there is traffic on the course.
Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and night. The course is open, meaning it is not closed to public traffic.
The racers sign up online and sign an electronic release. The racers also receive a race handbook. The handbook explains the race and includes sections on crossing roads, highways and train tracks.
The plaintiff was crossing a highway, and she was hit by a car. The driver of the car stated the plaintiff walked out in front of her without looking. The plaintiff settled with the driver before this appeal.
As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. Ac-cording to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.
The defendant filed a motion for summary judgment, which was granted and this appeal followed.
Analysis: making sense of the law based on these facts.
The appellate court first looked at the requirements for the plaintiff to survive and proceed to trial.
To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one party is under no obligation of care to the other, and shall not be held liable for ordinary negligence.
The court then looked at the requirements for releases to be valid under Washington’s law. (Of note, the court calls the exculpatory clause a waiver clause. However, the court refers to the agreement as a release.)
The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.
Under Washington’s law, releases are valid, unless they violate public policy. There are six different factors identified as attributable to public policy in Washington.
Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) 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; (3) such party holds itself 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; (4) because 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 the services; (5) 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; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents.
The court then went through all six factors and eliminated them all in one paragraph.
First, 185-mile relay races are not regulated; second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.
Generally, Washington law looks at whether the issues that identify a public policy issue are those that affect the majority of the public in Washington. The court also found that other Washington decisions have found that recreational activities were not a public interest.
The second issue was the plaintiff’s claim the defendant was grossly negligent. Like most states, a release in Washington will not stop a claim for gross negligence. Gross negligence is greater than ordinary negligence and is care appreciably less than care required in an ordinary negligence claim.
“Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.
The court then went through the facts and found that nothing required the defendant to do more than what the defendant did. Consequently, since there was no duty to do more, there was no breach of a duty, let alone acts, which were substantially below the duty.
The final argument the plaintiff argued was the release was ambiguous and not conspicuous. Here again, Washington’s law set forth the requirements for ambiguous and conspicuous quite clearly.
Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether 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.
The requirements basically require the release to be seen by the signor and not hidden. The exculpatory provisions must be evident, conspicuous and not hidden. The language must stand out so it is easily recognized with capital letters and/or bold type and there must be a signature line below the exculpatory provisions so that you can see your signature is related to the exculpatory provisions.
In this case, the release provisions were found not to be ambiguous. Additionally, the plaintiff admitted in her deposition that she understood from a legal perspective that the release would release her from claiming damages for any injuries.
The appellate court agreed with the trial court and affirmed the decision.
So Now What?
This decision is refreshing because it clearly sets out the requirements needed to prove a release valid and invalid. The definition of gross negligence also easily defined to that you can understand your duties and a substantial breach of your duties leading to a gross negligence claim.
Also of note, which the court pointed out was the information provided to the plaintiff and other racers in the racer handbook. Although not an express assumption of risk agreement, the handbook was still proof, the plaintiff assumed the risk, even though that issue was not argued. The risks of the race were set forth as well as the steps taken by the defendant to protect the runners in the handbook.
Again, the more information you provide to your clients, the more information you give them the better your chances of winning if your release fails.
What do you think? Leave a comment.
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Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696
Posted: November 2, 2016 Filed under: Legal Case, Racing, Release (pre-injury contract not to sue), Washington | Tags: #race, Exculpatory clause, Gross negligence, Race Handbook, Release, Waiver Clause, Washington Leave a commentJohnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696
Robin Johnson et al., Appellants, v. Spokane to Sandpoint, LLC, et al., Respondents.
No. 31042-6-III
COURT OF APPEALS OF WASHINGTON, DIVISION THREE
July 23, 2013, Filed
NOTICE: Order Granting Motion to Publish September 10, 2013.
SUBSEQUENT HISTORY: Reported at Johnson v. Spokane to Sandpoint, LLC, 175 Wn. App. 1054, 2013 Wash. App. LEXIS 1835 (2013)
Ordered published by Johnson v. Spokane to Sandpoint, LLC, 2013 Wash. App. LEXIS 2129 (Wash. Ct. App., Sept. 10, 2013)
PRIOR HISTORY: [***1]
Appeal from Spokane Superior Court. Docket No: 10-2-05387-0. Date filed: 07/09/2012. Judge signing: Honorable Gregory D Sypolt.
SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.
Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.
Superior Court: The Superior Court for Spokane County, No. 10-2-05387-0, Gregory D. Sypolt, J., on July 9, 2012, entered a summary judgment in favor of the race promoter.
Court of Appeals: Holding that a preinjury release and waiver signed by the runner precluded her recovering for ordinary negligence, the court affirms the judgment.
HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES
[1] Negligence — Duty — Necessity. The threshold question in a negligence action is whether the defendant owed a duty of care to the plaintiff.
[2] Negligence — Duty — Question of Law or Fact — In General. For purposes of a negligence cause of action, the existence of a duty of care is a question of law.
[3] Torts — Limitation of Liability — Validity — In General. Subject to certain exceptions, parties may expressly agree in advance that one is under no obligation of care to the other and shall not be liable for ordinary negligence.
[4] Torts — Limitation of Liability — Purpose. The function of a contractual waiver of negligence liability is to deny an injured party the right to recover damages from the person negligently causing the injury.
[5] Torts — Limitation of Liability — Validity — Test. A contractual waiver of negligence liability is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for the protection of others, or (3) it is inconspicuous.
[6] Torts — Limitation of Liability — Validity — Public Policy — Factors. In determining whether an agreement exculpating a party from liability for its future conduct violates public policy, a court will consider whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) 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; (3) such party holds itself 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; (4) because 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 the services; (5) 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; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or its agents.
[7] Torts — Limitation of Liability — Validity — Public Policy — Public Interest — Recreational Activities. For purposes of determining the validity of a liability release clause under a public policy analysis, Washington courts do not favor finding a public interest in adult recreational activities.
[8] Torts — Limitation of Liability — Applicability — Gross Negligence. A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. “Gross negligence” is negligence substantially and appreciably greater than ordinary negligence, i.e., care substantially or appreciably less than the quantum of care inhering in ordinary negligence, or a failure to exercise slight care. A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply substantial evidence that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, a plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.
[9] Negligence — Proof — Higher Standard — Summary Judgment — Prima Facie Case — Necessity. When the standard of proof in a negligence action is higher than ordinary negligence, in order to avoid an adverse summary judgment, a plaintiff must show that it can support its claim with prima facie proof supporting the higher level of proof.
[10] Torts — Limitation of Liability — Validity — Conspicuous Nature — Factors. The conspicuousness of a contractual liability waiver or release provision is determined by considering such factors as whether the provision is set apart or hidden within other provisions, whether the provision heading is clear, whether the waiver is set off in capital letters or in bold type, whether 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. Brown, J., delivered the opinion for a unanimous court.
COUNSEL: Martin A. Peltram, for appellants.
Thomas C. Stratton (of Rockey Stratton PS), for respondents.
JUDGES: Authored by Stephen M. Brown. Concurring: Laurel H. Siddoway, Kevin M. Korsmo.
OPINION BY: Stephen M. Brown
OPINION
[*455] [**530] ¶1 Brown, J. — Robin Johnson and Craig Johnson appeal the dismissal of their personal injury suit against Spokane to Sandpoint LLC after the trial court ruled the preinjury release and waiver Ms. Johnson signed precluded recovery. The Johnsons contend the release is unenforceable because it is ambiguous, offends public policy, and because Spokane to Sandpoint was grossly negligent. We disagree and affirm.
FACTS
¶2 Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and [**531] night. The course is open, meaning it is not closed to public traffic.
¶3 When registering on line, the runners must electronically acknowledge a release of liability and waiver, which states:
I understand that by registering I have accepted and agreed to the waiver [***2] and release agreement(s) presented to me during registration and that these documents include a release of liability and waiver of legal rights and deprive me of the right to sue certain parties. By agreeing electronically, I have acknowledged that I have both read and understood any waiver and release agreement(s) presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from participation in the event.
[*456] Clerk’s Papers (CP) at 246. Ms. Johnson, an attorney, registered on line for the 2010 Spokane to Sandpoint race and acknowledged the above waiver, plus she agreed to “waive and release Spokane to Sandpoint … from any and all claims or liability of any kind arising out of my participation in this event, even though that liability may arise out negligence or carelessness on the part of persons on this waiver.” CP at 246. Ms. Johnson agreed she read the agreement carefully and understood the terms and she signed the agreement, “FREELY AND VOLUNTARILY, WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE” and that her signature was [***3] “TO SERVE AS CONFIRMATION OF MY COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS, CONDITIONS, AND PROVISIONS OF THIS AGREEMENT.” CP at 248.
¶4 Spokane to Sandpoint provided a race handbook to Ms. Johnson, explaining all facets of the race, including crossing public highways and train tracks. The fourth leg of the race crossed U.S. Route 2 at its intersection with Colbert Road. At that location, U.S. Route 2 is a divided highway that runs north and south. It has two lanes in each direction, separated by a median strip. A sign was posted on Colbert Road telling the runners “caution crossing highway.” CP at 128. Signs were posted along the race route informing drivers that runners were running along the race route roads.
¶5 As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. According to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.
¶6 The Johnsons sued Spokane [***4] to Sandpoint, Ms. Young, and Ms. Young’s parents. The Johnsons dismissed their [*457] claims against Ms. Young and her parents following a settlement.
¶7 During Ms. Johnson’s deposition, counsel for Spokane to Sandpoint asked her if she understood that the release she signed “would … release the entities for any personal injury that might occur to you during the activity?” CP at 138. Ms. Johnson replied, “Yes, I understand that from a legal perspective completely.” CP at 139. When questioned about the on line registration process, counsel asked:
Q. Do you recall whether you clicked yes to the waiver language at all on the registration process?
A. On the registration process I assume I must have clicked because all that information is there and I did it. Nobody else did it for me.
CP at 156.
¶8 Spokane to Sandpoint requested summary judgment dismissal, arguing the preinjury waiver and release agreed to by Ms. Johnson was conspicuous and not against public policy and the Johnsons lacked the evidence of gross negligence necessary to overcome the release. The trial court agreed and dismissed the Johnsons’ complaint.
ANALYSIS
¶9 The issue is whether the trial court erred in summarily dismissing the [**532] Johnsons’ [***5] negligence complaint. The Johnsons contend the release and waiver signed by Ms. Johnson prior to her injury was invalid and unenforceable because it was ambiguous and against public policy, and because Spokane to Sandpoint was grossly negligent.
¶10 [HN1] We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001). [HN2] Summary judgment is appropriate if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). Where different [*458] competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Kuyper v. Dep’t of Wildlife, 79 Wn. App. 732, 739, 904 P.2d 793 (1995).
[1-3] ¶11 [HN3] To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 339, 35 P.3d 383 (2001) (citing Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994)). Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one [***6] party is under no obligation of care to the other, and shall not be held liable for ordinary negligence. Chauvlier, 109 Wn. App. at 339.
[4, 5] ¶12 [HN4] The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 491, 834 P.2d 6 (1992). The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous. Stokes v. Bally’s Pacwest, Inc., 113 Wn. App. 442, 445, 54 P.3d 161 (2002).
[6] ¶13 [HN5] In Washington, contracts releasing liability for negligence are valid unless a public interest is involved. Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244 (1974). [HN6] Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) 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 [***7] of the public; (3) such party holds itself 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 [*459] standards; (4) because 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 the services; (5) 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; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents. Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wn.2d 845, 851-55, 758 P.2d 968 (1988) (citing Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-101, 383 P.2d 441, 32 Cal. Rptr. 33 (1963)). The Johnsons fail to establish all six factors.
¶14 First, 185-mile relay races are not regulated; [***8] second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.
[7] ¶15 [HN7] Washington courts have not favored finding a public interest in adult recreational activities. As noted in Hewitt, 11 Wn. App. [**533] at 74, “[e]xtended discussion is not required to conclude that instruction in scuba diving does not involve a public duty.” Similarly, “[a]lthough a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest.” Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 574, 636 P.2d 492 (1981). Washington courts have come to the same conclusion regarding [*460] tobogganing and demolition car racing. Broderson v. Rainer Nat’l Park Co., 187 Wash. 399, 406, 60 P.2d 234 (1936), overruled in part by [***9] Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 853, 728 P.2d 617 (1986).
[8] ¶16 [HN8] A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. Vodopest v. MacGregor, 128 Wn.2d 840, 853, 913 P.2d 779 (1996). “Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965); see 6 Washington Practice: Washington Pattern Jury Instructions: Civil 10.07 (6th ed. 2012) (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. Boyce v. West, 71 Wn. App. 657, 665, 862 P.2d 592 (1993). To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises [***10] to the level of gross negligence. CR 56(e); Boyce, 71 Wn. App. at 666.
¶17 Spokane to Sandpoint marked the roadways to warn both drivers and runners of danger and provided a handbook to each runner advising about crossing busy roadways and highways. Nothing in this record establishes any duty to do more.
¶18 Our case is somewhat like Conradt, where Mr. Conradt was hurt in an auto race. 45 Wn. App. at 848. He signed a release before being told of a change in the race direction. Id. Mr. Conradt argued the risk had been materially altered by that change after he signed the release. Id. at 850. He explained he could not corner as well and he had not understood the additional risk. Id. The race promoter [*461] requested summary judgment based on the release. Id. at 848. The trial court dismissed Mr. Conradt’s complaint, finding the release was valid and the promoter’s action did not amount to gross negligence. Id. at 852. The Conradt court affirmed, holding the promoter’s “conduct was not so substantially and appreciably substandard that it rendered the release invalid.” Id.
[9] ¶19 Similarly, the Johnsons fail to show Spokane to Sandpoint committed gross negligence by failing to exercise slight care. See Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008) [***11] (When a standard of proof is higher than ordinary negligence, the nonmoving parties must show that they can support their claim with prima facie proof supporting the higher level of proof.). Spokane to Sandpoint’s conduct does not reach gross negligence under the circumstances presented here.
[10] ¶20 Finally, the Johnsons argue the release was ambiguous and not conspicuous. Several Washington courts have analyzed waiver provisions to determine whether the language was conspicuous. [HN9] Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether 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. See Baker, 79 Wn.2d at 202; McCorkle v. Hall, 56 Wn. App. 80, 83, 782 P.2d 574 (1989); Chauvlier, 109 Wn. App. at 342; Stokes, 113 Wn. App. at 448.
[**534] ¶21 The release executed by Ms. Johnson on line clearly sets apart the release language in either italicized letters or in all capital letters or both. The [***12] document was conspicuous with a header stating, “WAIVER AND RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT.” CP at 246. The waiver repeatedly warned Ms. Johnson that she was giving up her legal rights by [*462] signing the waiver, with this clearly indicated above the signature line. Although the Johnsons argue the waiver was ambiguous and, therefore, inconspicuous, Ms. Johnson (an attorney) acknowledged in her deposition that from a “legal perspective” she understood the release she signed “would … release the entities for any personal injury that might occur … during the activity.” CP at 138-39. Thus, no genuine issues of material fact remain regarding ambiguity or conspicuousness.
¶22 Given our analysis, we hold reasonable minds can reach but one conclusion; the preinjury release and waiver signed by Ms. Johnson precludes her from claiming an ordinary negligence duty by Spokane to Sandpoint, thus preventing her from seeking liability damages for her injuries. The trial court correctly concluded likewise in summarily dismissing the Johnsons’ complaint.
¶23 Affirmed. [***13]
Korsmo, C.J., and Siddoway, J., concur.
Washington Recreational Use Statute
Posted: October 2, 2016 Filed under: Washington | Tags: Recreational Use, Recreational Use Statute, Washington Leave a commentTitle 4 Civil Procedure
Chapter 4.24 Special Rights of Action and Special Immunities
Rev. Code Wash. (ARCW) § 4.24.200 (2016)
4.24.200. Liability of owners or others in possession of land and water areas for injuries to recreation users — Purpose.
The purpose of RCW 4.24.200 and 4.24.210 is to encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.
HISTORY: 1969 ex.s. c 24 § 1; 1967 c 216 § 1.
4.24.210. Liability of owners or others in possession of land and water areas for injuries to recreation users — Known dangerous artificial latent conditions — Other limitations.
(1) Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowners, hydroelectric project owners, or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to, the cutting, gathering, and removing of firewood by private persons for their personal use without purchasing the firewood from the landowner, hunting, fishing, camping, picnicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, aviation activities including, but not limited to, the operation of airplanes, ultra-light airplanes, hanggliders, parachutes, and paragliders, rock climbing, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, kayaking, canoeing, rafting, nature study, winter or water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites, without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.
(2) Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowner or others in lawful possession and control of any lands whether rural or urban, or water areas or channels and lands adjacent to such areas or channels, who offer or allow such land to be used for purposes of a fish or wildlife cooperative project, or allow access to such land for cleanup of litter or other solid waste, shall not be liable for unintentional injuries to any volunteer group or to any other users.
(3) Any public or private landowner, or others in lawful possession and control of the land, may charge an administrative fee of up to twenty-five dollars for the cutting, gathering, and removing of firewood from the land.
(4) (a) Nothing in this section shall prevent the liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.
(i) A fixed anchor used in rock climbing and put in place by someone other than a landowner is not a known dangerous artificial latent condition and a landowner under subsection (1) of this section shall not be liable for unintentional injuries resulting from the condition or use of such an anchor.
(ii) Releasing water or flows and making waterways or channels available for kayaking, canoeing, or rafting purposes pursuant to and in substantial compliance with a hydroelectric license issued by the federal energy regulatory commission, and making adjacent lands available for purposes of allowing viewing of such activities, does not create a known dangerous artificial latent condition and hydroelectric project owners under subsection (1) of this section shall not be liable for unintentional injuries to the recreational users and observers resulting from such releases and activities.
(b) Nothing in RCW 4.24.200 and this section limits or expands in any way the doctrine of attractive nuisance.
(c) Usage by members of the public, volunteer groups, or other users is permissive and does not support any claim of adverse possession.
(5) For purposes of this section, the following are not fees:
(a) A license or permit issued for statewide use under authority of chapter 79A.05 RCW or Title 77 RCW;
(b) A pass or permit issued under RCW 79A.80.020, 79A.80.030, or 79A.80.040; and
(c) A daily charge not to exceed twenty dollars per person, per day, for access to a publicly owned ORV sports park, as defined in RCW 46.09.310, or other public facility accessed by a highway, street, or nonhighway road for the purposes of off-road vehicle use.
HISTORY: 2012 c 15 § 1. Prior: 2011 c 320 § 11; 2011 c 171 § 2; 2011 c 53 § 1; 2006 c 212 § 6; prior: 2003 c 39 § 2; 2003 c 16 § 2; 1997 c 26 § 1; 1992 c 52 § 1; prior: 1991 c 69 § 1; 1991 c 50 § 1; 1980 c 111 § 1; 1979 c 53 § 1; 1972 ex.s. c 153 § 17; 1969 ex.s. c 24 § 2; 1967 c 216 § 2.
Complete this Survey to Promote Cycling and Tourism in Washington
Posted: June 11, 2015 Filed under: Adventure Travel, Cycling, Mountain Biking, Washington | Tags: #Tourism, Bike Trail, Cycling, Hiking Trail, Mt Shuksan, Mt. Baker, Survey, Trail, Washington Leave a commentBy participating in this survey you will help a grassroots citizens group realize a pedestrian path along the Mt Baker Highway corridor.
Mt Baker Highway, AKA Washington State Highway 542 stretches 58 miles from sea level in Bellingham, Washington to Artist’s Point at an elevation of 5,140 feet – a scenic overlook above tree line that on clear days treats visitors to sublime views of Mt Baker and Mt Shuksan.
Since 1992 Whatcom County has had plans to build a pedestrian pathway from Bellingham to Artist’s Point and dubbed it the Bay to Baker Trail (B2B). However due to a number of factors little has been accomplished. Right of way has been established in some areas, and in those areas some sections of the trail is under water for much of the year, some travel heavily undercut banks 100 feet above the North Fork Nooksack River, and at least one section acts as the local garbage dump.
Due to its beauty the highway attracts heavy traffic during the winter ski and summer hiking seasons. RVs, families coming up to recreate in SUVs, sports cars, sport motorcycles traveling at triple digits due to virtually no speed enforcement, and road cyclists all share this road. To compound the mix there are residential communities on the highway with limited options for residents to safely walk or ride bikes to community destination. At the local middle school if a child shows up to school with their bike they are sent home due to the hazard that riding on the road represents.
The mild winter that the Pacific Northwest experienced this last year was a shock to the small, tourist dependent communities in the shadow of Mt Baker. Businesses closed and residents watched as skiers, snowboarders and snowmobilers, who bring much needed revenue to the area, disappeared. It was a call to action as residents and business owners realized that perhaps some diversification of recreational opportunities was in order.
Inventorying the material that they had to work with, a group of residents and business owners has banded together in an attempt to motivate government to take action on the Bay to Baker Trail. John Adam, owner of Glacier Ski Shop, believes that pedestrian infrastructure will not only make the area more attractive to visitors, but will also provide residents with a safe option to getting in a vehicle and burning fossil fuels when they need a quart of milk. Paul Engel, who owns Wild and Scenic River Tours, added that, “Hundreds of reports show that when pedestrian pathways are created in a community it brings nothing but good – the population is healthier, vehicular traffic is reduced, property values are stable and local businesses see more traffic. Everyone benefits”
It would be easy to see why businesses would want to increase tourist traffic, and a small group of locals have pointed fingers at them and stating that they just want to “cash in”. When in reality it is more a matter of staying in businesses. And while a very small group of locals oppose the trail effort, the vast majority are for it. One of those is Marty Grabijas, a product developer in the outdoor industry. According to Marty, “What we have here is so special. The access to big wilderness and high alpine environments is incredible, and I can see why some want this to remain their private paradise. However no matter how much we want it we can’t turn the clock back. We do however have an opportunity to engineer the Mt Baker Highway corridor for the future. With a pedestrian pathway we can reduce vehicle congestion, and provide residents and visitors with a safe way to get around on foot or on a bike. My motive for being involved is to create safe places to walk and ride for everyone. The Mt Baker area is visually stunning, and with a safe pathway in the highway corridor a bike is the perfect vehicle for visiting services in one of the several small towns, or connecting to Forest Service roads and exploring the area.”
This citizens group is in the due diligence stage of forming a pedestrian and equestrian advocacy group. Part of that process is showing a want and need for pedestrian pathways by gauging interest of residents, visitors and potential visitors. By participating in their survey you will provide them with the data points they need to attempt to secure funding in Whatcom County’s 2017 / 18 budget to see portions of the Bay to Baker Trail become reality.
Regardless if you have been to the Mt Baker area, your feedback is valuable.
Go to the Survey Here: https://www.surveymonkey.com/s/MTBAKERTA
What do you think? Leave a comment.
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Copyright 2015 Recreation Law (720) Edit Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Want to Maximize a Visit to Colorado? San Juan Mountain Guides can help!
Posted: June 24, 2014 Filed under: Colorado, Mountaineering | Tags: Alaska, Canyoning, Mountaineering, Peru, Rock climbing, San Juan, San Juan Mountain Guides, San Juan Mountains, SJMG, Via Ferrata, Washington, Weminuche Wilderness Leave a comment
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Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff
Posted: February 24, 2014 Filed under: Assumption of the Risk, Scuba Diving, Washington | Tags: BC, Dive Buddy, Diving, duty, Night diving, Open Water Diver, Outdoors, Recreation, scuba diving, Sudden Emergency Doctrine, Washington 2 CommentsThis case was brought to my attention because of the suit for the ski buddy fatality in Canada in the news recently. (See Canadian suit would hold you liable for your ski buddy’s death.)Are you liable for your buddy’s death if you are participating in a sport together. The issue pivots on whether or not there is an expected responsibility (duty) on behalf of the buddies.
Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962
Plaintiff: Cully, Adam, and Brandy Jo Rasmussen, children of the deceased and the estate of the deceased
Defendant: Eugene L. Bendotti, husband of the deceased
Plaintiff Claims: negligence
Defendant Defenses: there was no negligence
Holding: for the defendant
This is one of a few cases where a co-participant or in this case dive buddy is held liable for the injuries or deaths of the other participant. In this case, a husband and wife were diving together to recover a snowmobile 100’ deep in a lake. On the fourth dive of the day, the husband realized he had not attached his power inflator to his buoyance compensator. He dropped his weight belt and ascended, leaving his spouse, dive buddy, below.
The wife was found drowned after becoming entangled in a rope.
The buoyance compensator is a PFD (personal floatation device) designed for diving. It is inflated and deflated as you dive to keep your body at the level or depth in the water you want. Many divers will deflate and inflate the buoyance compensator (BC) several times during a dive as they descend, stay at a level and descend or ascend again.
A trial was held to the court which held that the husband did owe a duty to the spouse. However, that duty was terminated once the husband’s emergency occurred. The court also found that the husband’s failure to act as a proper dive buddy was too distant from the cause of death of the spouse to be the proximate cause of her death.
The plaintiff’s appealed.
In this case, the plaintiff’s appealed the errors; they felt the court made in its decision. Those are called “assignment of error(s).” The plaintiff argued that the court came to the incorrect conclusion in the determination of the facts and the application of the law.
Summary of the case
The court accepted several conclusions of fact and law from the trial court that are necessary to understand its analysis and, which are critical legal issues. The first was a dive buddy owes a duty of care to his or her dive buddy. Consequently, a failure to exercise this duty, which results in an injury to the dive buddy, can be negligent.
The existence of a duty is a question of law. Whether the defendant owed the plaintiff a duty, however, turns on the foreseeability of injury; that is, whether the risk embraced by the conduct exposes the plaintiff to injury. “The hazard that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.”
The trial court found the defendant had not breached his duty because his personnel emergency ended any duty he owed to his dive buddy. The trial court labeled this as the emergency doctrine. However, the appellate court defined the emergency doctrine as:
The emergency doctrine was developed at common law and states the commonsense proposition that a person faced with an emergency should not be held to the same standards as someone given time for reflection and deliberation.
A defendant is entitled to the benefit of the emergency doctrine when he or she undertakes the best course of action given an emergency not of his or her own making.
The appellate court did not hold the emergency doctrine did not apply; however, its statements indicate such because it went on to discuss proximate cause.
Proximate cause is the term defined to relate the breach of the duty to the injury.
Proximate cause has two discreet elements. The first, cause in fact, requires some physical connection between the act (the failure to connect the power inflator) and the injury (Bonny’s death). The second element of proximate cause involves legal causation. Id. And that is a policy consideration for the court. The consideration is whether the ultimate result and the defendant’s acts are substantially connected, and not too remote to impose liability. Id. It is a legal question involving logic, common sense, justice, policy, and precedent.
The court ruled that the cause of the plaintiff’s death was the plaintiff’s own acts, not caused by the defendant. The court questioned, “…if Gene had properly connected his power inflator, would Bonny be alive today?” The trial court stated, and the appellate court accepted that the act of the defendant descending was not the cause of the plaintiff’s death.
An expert witness opined that the cause of the plaintiff’s death was her failure to have a dive knife with her.
There was too much between the ascension of the defendant and the entanglement which caused the drowning to be linked. The ascension was not the proximate cause of the plaintiff’s death.
So Now What?
The decision in the Canadian court on whether a ski buddy owes a duty of care to another skier will probably not end with the jury’s decision. See Canadian suit would hold you liable for your ski buddy’s death. Ski buddy meaning the guy you don’t know skiing next to you. However, here we have a definitive decision that a dive buddy in a scuba diving owes a duty to their dive buddy.
This is a very different legal relationship than found in competitive sports where someone may be injured due to another participant and the nature of the game. See Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case. Here one participant in the sport is legal responsible, as defined by the sport or activity or sometimes the two people, for the other person.
If you agree to watch or take care of someone in a sport, you may be accepting liability for that person. Be aware.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
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Washington Skier Safety Act
Posted: August 28, 2013 Filed under: Washington | Tags: Alpine skiing, Occupational safety and health, Platter lift, Ski, Ski Resort, Ski tow, Skier Safety Act, WA, Washington Leave a commentWashington Skier Safety Act
ANNOTATED REVISED CODE OF WASHINGTON
TITLE 70. PUBLIC HEALTH AND SAFETY
CHAPTER 70.117. SKIING AND COMMERCIAL SKI ACTIVITY
GO TO REVISED CODE OF WASHINGTON ARCHIVE DIRECTORY
Rev. Code Wash. (ARCW) § 70.117.010 (2012)
§ 70.117.010. Ski area sign requirements
Transferred.
§ 70.117.015. “Trails” or “runs” defined
Transferred.
§ 70.117.020. Standard of conduct — Prohibited acts — Responsibility
Transferred.
§ 70.117.025. Skiing outside of trails or boundaries — Notice of skier responsibility
Transferred.
§ 70.117.030. Leaving scene of skiing accident — Penalty — Notice
Transferred.
§ 70.117.040. Insurance requirements for operators
Transferred.
§ 79A.45.010. Ski area sign requirements
(1) The operator of any ski area shall maintain a sign system based on international or national standards and as may be required by the state parks and recreation commission.
All signs for instruction of the public shall be bold in design with wording short, simple, and to the point. All such signs shall be prominently placed.
Entrances to all machinery, operators’, and attendants’ rooms shall be posted to the effect that unauthorized persons are not permitted therein.
The sign “Working on Lift” or a similar warning sign shall be hung on the main disconnect switch and at control points for starting the auxiliary or prime mover when a person is working on the passenger tramway.
(2) All signs required for normal daytime operation shall be in place, and those pertaining to the tramway, lift, or tow operations shall be adequately lighted for night skiing.
(3) If a particular trail or run has been closed to the public by an operator, the operator shall place a notice thereof at the top of the trail or run involved, and no person shall ski on a run or trail which has been designated “Closed”.
(4) An operator shall place a notice at the embarking terminal or terminals of a lift or tow which has been closed that the lift or tow has been closed and that a person embarking on such a lift or tow shall be considered to be a trespasser.
(5) Any snow making machines or equipment shall be clearly visible and clearly marked. Snow grooming equipment or any other vehicles shall be equipped with a yellow flashing light at any time the vehicle is moving on or in the vicinity of a ski run; however, low profile vehicles, such as snowmobiles, may be identified in the alternative with a flag on a mast of not less than six feet in height.
(6) The operator of any ski area shall maintain a readily visible sign on each rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device, advising the users of the device that:
(a) Any person not familiar with the operation of the lift shall ask the operator thereof for assistance and/or instruction; and
(b) The skiing-ability level recommended for users of the lift and the runs served by the device shall be classified “easiest”, “more difficult”, and “most difficult”.
§ 79A.45.020. “Trails” or “runs” defined
As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise.
“Trails” or “runs” means those trails or runs that have been marked, signed, or designated by the ski area operator as ski trails or ski runs within the ski area boundary.
§ 79A.45.030. Standard of conduct — Prohibited acts — Responsibility
(1) In addition to the specific requirements of this section, all skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.
(2) No person shall:
(a) Embark or disembark upon a ski lift except at a designated area;
(b) Throw or expel any object from any tramway, ski lift, commercial skimobile, or other similar device while riding on the device;
(c) Act in any manner while riding on a rope tow, wire rope tow, j-bar, t-bar, ski lift, or similar device that may interfere with the proper or safe operation of the lift or tow;
(d) Wilfully engage in any type of conduct which may injure any person, or place any object in the uphill ski track which may cause another to fall, while traveling uphill on a ski lift; or
(e) Cross the uphill track of a j-bar, t-bar, rope tow, wire rope tow, or other similar device except at designated locations.
(3) Every person shall maintain control of his or her speed and course at all times, and shall stay clear of any snowgrooming equipment, any vehicle, any lift tower, and any other equipment on the mountain.
(4) A person shall be the sole judge of his or her ability to negotiate any trail, run, or uphill track and no action shall be maintained against any operator by reason of the condition of the track, trail, or run unless the condition results from the negligence of the operator.
(5) Any person who boards a rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device shall be presumed to have sufficient abilities to use the device. No liability shall attach to any operator or attendant for failure to instruct the person on the use of the device, but a person shall follow any written or verbal instructions that are given regarding the use.
(6) Because of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety. However, the primary duty shall be on the person skiing downhill to avoid any collision with any person or object below him or her.
(7) Any person skiing outside the confines of trails open for skiing or runs open for skiing within the ski area boundary shall be responsible for any injuries or losses resulting from his or her action.
(8) Any person on foot or on any type of sliding device shall be responsible for any collision whether the collision is with another person or with an object.
(9) A person embarking on a lift or tow without authority shall be considered to be a trespasser.
§ 79A.45.040. Skiing outside of trails or boundaries — Notice of skier responsibility
Ski area operators shall place a notice of the provisions of RCW 79A.45.030(7) on their trail maps, at or near the ticket booth, and at the bottom of each ski lift or similar device.
§ 79A.45.050. Leaving scene of skiing accident — Penalty — Notice
(1) Any person who is involved in a skiing accident and who departs from the scene of the accident without leaving personal identification or otherwise clearly identifying himself or herself before notifying the proper authorities or obtaining assistance, knowing that any other person involved in the accident is in need of medical or other assistance, shall be guilty of a misdemeanor.
(2) An operator shall place a prominent notice containing the substance of this section in such places as are necessary to notify the public.
§ 79A.45.060. Insurance requirements for operators
(1) Every tramway, ski lift, or commercial skimobile operator shall maintain liability insurance of not less than one hundred thousand dollars per person per accident and of not less than two hundred thousand dollars per accident.
(2) Every operator of a rope tow, wire rope tow, j-bar, t-bar, or similar device shall maintain liability insurance of not less than twenty-five thousand dollars per person per accident and of not less than fifty thousand dollars per accident.
(3) This section shall not apply to operators of tramways that are not open to the general public and that are operated without charge, except that this section shall apply to operators of tramways that are operated by schools, ski clubs, or similar organizations.
§ 79A.45.070. Skiing in an area or trail closed to the public — Penalty
A person is guilty of a misdemeanor if the person knowingly skis in an area or on a ski trail, owned or controlled by a ski area operator, that is closed to the public and that has signs posted indicating the closure.