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ASSUMPTION OF RISK UNDER WASHINGTON LAW
©Charles H. Van Gorder The Law Offices of Charles H. Van Gorder, P.C. Post Office Box 5645 Bellingham, Washington 98227-5645 (360) 671-7900
Revised: January, 1998 November, 1999
Previously Published by Professional Education Systems, Inc., Eau Clare, WI and the Washington State Bar News Table of Contents
I. IntroductionThe "assumption of risk" doctrine was the subject of a lengthy decision in 1992 by the Washington Supreme Court, Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6 (1992). Justin Scott was injured while taking skiing lessons when he skied off a practice slalom race course and hit an abandoned tow‑rope shack. Scott, a 12‑year‑old boy, and his parents sued both the ski resort and the ski school for damages resulting from Scott's injuries. The trial court granted summary judgment motions on all claims on behalf of both the ski school and the resort on the basis of an assumption of risk defense. In a decision that reviewed the status of assumption of risk under Washington law, the Court upheld the validity of the express written release signed by Scott's mother, but limited its application to claims on behalf of Scott's parents; claims on behalf of the son were reinstated. The written release pertaining to the ski school, executed only by Scott's parents, was found not to bar Scott's own cause of action. The Court also reiterated the validity of the concept of implied assumption of risk, which could either completely bar recovery or limit a plaintiff's recovery, based upon the facts of the case. The Court remanded the case for a determination of whether there was negligence on the part of the operator of the ski resort and, if so, whether Scott should have recognized the risks that may have resulted from such negligence and caused his injury. The assumption of risk doctrine has been used by Washington courts to bar or limit recovery on behalf of plaintiffs injured in various recreational activities, including working out at fitness clubs, college cheerleading, BB gun wars, interscholastic athletics, demolition derbies, snow skiing, roller skating, mountain climbing, scuba diving, golfing, and tobogganing. This article examines how the assumption of risk defense may be applied in Washington to limit or bar a claim of negligence, particularly in the context of athletic or other recreational activities, in light of Scott v. Pacific West Mountain Resort and other Washington court opinions following that decision.
II. Assumption of Risk in GeneralIn a negligence case, Washington law requires a plaintiff to prove: 1) the existence of a duty owed to the plaintiff, 2) a breach of this duty, 3) a resulting injury or damage to the plaintiff, and 4) a causal relationship between the breach of duty and the damage sustained by the plaintiff. Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984). As a general rule, assumption of risk may operate to bar a plaintiff from recovering damages where evidence shows that the plaintiff voluntarily assumed a risk of harm arising from negligent or reckless conduct on the part of the defendant. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Torts, § 68, at 495‑98 (5th ed. 1984) (cited in Ridge v. Kladnick, 42 Wn. App. 785, 788, 713 P.2d 1131, reviewdenied, 106 Wn.2d 1011 (1986); Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 425, 927 P.2d 1148 (1996)).[1] If a defendant is able to prove the plaintiff "assumed the risk" of injury caused by negligent acts on the part of that defendant, there is no duty owed to the plaintiff and a cause of action for negligence is therefore barred. Under certain circumstances (termed "secondary" assumption of risk), assumption of risk may operate to reduce, rather than bar damages to a plaintiff.
III. Primary Assumption of RiskWashington case law distinguishes between "primary" assumption of risk and "secondary" assumption of risk. Primary assumption of risk occurs where the plaintiff either expressly or impliedly has consented to relieve the defendant of an obligation or duty to act in a certain way toward him . . . .
Leyendecker v. Cousins, 53 Wn. App. 769, 773, 770 P.2d 675, reviewdenied, 113 Wn.2d 1018 (1989). SeealsoKirk v. Washington State Univ., 109 Wn.2d 448, 453, 746 P.2d 285 (1987) ("Express and implied primary assumption of risk arise where a plaintiff has consented to relieve the defendant of a duty to the plaintiff regarding specific known risks"); Alston v. Blythe, 88 Wn. App. 26, 33, 943 P.2d 692 (1997). As discussed below, primary assumption of risk can either express or implied. The distinctions between express and implied assumption of risk were summarized in Boyce v. West, 71 Wn. App. 657, 666, 862 P.2d 592 (1993): Express primary assumption of risk arises out of a contract concept; implied primary assumption of risk arises out of a tort concept. Identical in result to a release of liability which exculpates for ordinary negligence if it occurs, express and implied primary assumption of risk exculpate by shifting the duty of care from the defendant to the plaintiff, thus preventing negligence from occurring. Express assumption of risk bars a claim resulting from risks actually assumed by the plaintiff; implied primary assumption of risk bars a claim resulting from specific known and appreciated risks.
(CitingScott, 119 Wn.2d at 496-98.)
Primary assumption of risk acts as a complete bar to a plaintiff's recovery on a negligence claim as it acts to remove one of the elements of negligence, i.e., the defendant's alleged duty to the plaintiff. Leyendecker, 53 Wn. App. at 773 ("consent operates as a principle of no duty 'hence no breach and no underlying cause of action'") (quoting Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 402, 725 P.2d 1008 (1986), reviewdenied, 107 Wn.2d 1020 (1987)).SeealsoKirk, 109 Wn.2d at 453‑54 ("The basis of [primary] assumption of risk is the plaintiff's consent to the negation of a duty by the defendant with regard to those risks assumed by the plaintiff"); Alston, 88 Wn. App. at 33. Although primary assumption of risk acts as a complete bar, it does so only to the extent the alleged damage resulted from the specific risks assumed by the plaintiff.[2] The key factor in determining if primary assumption of risk applies is the plaintiff's subjective knowledge of the specific risks to be encountered. The test is a subjective one: Whether the plaintiff in fact understood the risk; not whether the reasonable person of ordinary prudence would comprehend the risk . . . . [T]here must be proof they knew of and appreciated the specific hazard which caused the injury.
Shorter v. Drury, 103 Wn.2d 645, 656‑57, 695 P.2d 116 (1985). SeealsoRidge, 42 Wn. App. at 788 ("assumption of risk involves a knowing encounter of danger and a subjective standard of conduct"). Cf. Scott, 119 Wn.2d at 503 (in the case of a child, "conduct is measured by the conduct of a reasonably careful child of the same age, intelligence, maturity, training and experience"). The elements of a primary assumption of risk defense are as follows: To establish primary assumption of risk, the evidence must show the plaintiff (1) had full subjective understanding, (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk.
Tincani v. Inland Empire Zoological Society, 66 Wn. App. 852, 859, 837 P.2d 640 (1992), aff'd, 124 Wn.2d 121, 875 P.2d 621 (1994) (citing Kirk, 109 Wn.2d at 453). Primary assumption of risk may fall within either of two categories, express or implied primary assumption of risk. A. Express Primary Assumption of Risk.Express primary assumption of risk incorporates an "affirmatively demonstrated, and presumably bargained upon, choice by the plaintiff to relieve the defendant of his legal duty toward the plaintiff." W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 68 at 496 (5th ed. 1984). The Washington Supreme Court has stated that "courts have generally recognized that, subject to certain exceptions, parties may contract that one shall not be liable for his or her own negligence to another." Wagenblast v. Odessa School Dist. No. 105‑157‑166J, 110 Wn.2d 845, 848, 758 P.2d 968 (1988); SeealsoShields v. Sta-Fit, 79 Wn. App. 584, 586, 903 P.2d 525 (1995). In Kirk, 109 Wn.2d at 453, the Court noted that for primary assumption of risk to apply, the plaintiff's consent must be manifested by an affirmatively demonstrated, and presumably bargained upon, express agreement. In Scott, 119 Wn.2d at 496, the Court stated: Express assumption [of risk] occurs when parties agree in advance that one of them is under no obligation to use reasonable care for the benefit of the other and will not be liable for what would otherwise be negligence. When such a plaintiff is injured by one of the risks for which he or she has agreed to forgo suit, the claim will be barred because that risk was assumed by the plaintiff.
SeealsoAlston, 88 Wn. App. at 33 (“With express assumption of the risk, the plaintiff states in so many words that he or she consents to relieve the defendant of a duty the defendant would otherwise have”). Although an express oral assumption of risk presumably could be valid, most often such express assumptions take the form of a written release or exculpatory clause.[3] The question of the validity of written agreements releasing or "exculpating" a party from potential liability arises frequently. 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.
Scott, 119 Wn.2d at 492. SeealsoVodopest v. Mac Gregor, 128 Wn.2d 840, 848, 913 P.2d 779 (1996); Shields, 79 Wn. App. at 585; Hewitt v. Miller, 11 Wn. App. 72, 77, 521 P.2d 244, reviewdenied, 84 Wn.2d 1007 (1974) ("'Absent some statute to the contrary, the generally accepted rule is that contracts against liability for negligence are valid except in those cases where a public interest is involved'") (quoting 57 Am. Jur. 2d Negligence § 23 (1971)). Furthermore, "exculpatory clauses are strictly construed and must be clear if the exemption from liability is to be enforced." Scott, 119 Wn.2d at 490 (but the term "negligence" is not essential for an effective release). SeealsoBoyce, 71 Wn. App. at 662. 1. Violation of Public Policy.Where exculpatory clauses are found to violate public policy, they will not be enforced against a plaintiff. There are instances where public policy reasons for preserving an obligation of care owed by one person to another outweigh our traditional regard for freedom of contract.
Scott, 119 Wn.2d at 493. The Court in Wagenblast observed that "courts . . . are usually reluctant to allow those charged with a public duty, which includes the obligation to use reasonable care, to rid themselves of that obligation by contract." Wagenblast, 110 Wn.2d at 849. The Wagenblast Court then set forth the six criteria to be considered in determining whether an exculpatory agreement should be declared invalid on public policy grounds: 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. Id. at 852‑56. SeealsoVodopest, 128 Wn.2d at 854-55; Boyce, 71 Wn. App. at 663-64 (citing Wagenblast).[4] Examples of exculpatory clauses found to violate public policy include clauses relating to negligence of a bank renting safety deposit boxes, Sporsem v. First Nat'l Bank of Poulsbo, 133 Wash. 199, 233 Pac. 641 (1925); to a gas company's duty to inspect pipes and fittings, Reeder v. Western Gas & Power Co., 42 Wn.2d 542, 256 P.2d 825 (1953); to negligence involving a public housing authority, Thomas v. Housing Auth. of Bremerton, 71 Wn.2d 69, 426 P.2d 836 (1967); to negligence in a residential landlord‑tenant setting, McCutcheon v. United Homes Corp., 79 Wn.2d 443, 486 P.2d 1093 (1971); to injuries sustained by students engaged in interscholastic sports, Wagenblast; to negligence on the part of professional bailees, American Nursery Prods, Inc. V. Indian Wells Orchards, 115 Wn. 2d 217, 797 P.2d 477 (1990); and to negligence on the part of those conducting human medical experiments, Vodopest. 2. Gross Negligence.Washington courts have recognized that liability releases will be invalid "'where the negligent act falls greatly below the standard established by law for the protection of others against unreasonable risk of harm.'" Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 852, 728 P.2d 617 (1986) (quoting Blide, 30 Wn. App. at 574). SeealsoVodopest, 128 Wn.2d at 853; Boyce, 71 Wn. App. at 665 ("If [the defendant'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"). In Liberty Furniture, Inc. v. Sonitrol of Spokane, Inc., 53 Wn. App. 879, 882, 770 P.2d 1086 (1989), the Court of Appeals recognized that gross negligence, lying "somewhere between negligence and willful or wanton misconduct," was sufficient to invalidate an exculpatory clause. Boyce concerned a claim on behalf of a student who died in a scuba diving accident. The appellate court upheld the trial court's summary judgment dismissal of plaintiff's claims because the plaintiff failed allege gross negligence or to produce substantial evidence of serious negligence. "Since a release of liability exculpates ordinary negligence, if it occurs, the plaintiff must establish gross negligence affirmatively to avoid enforcement of the release." Boyce, 71 Wn. App. at 665. 3. Conspicuousness and Opportunity to Review.The "conspicuousness" of exculpatory clauses deals both with the physical presentation of the clause and a plaintiff's opportunity to review and understand that clause. In Washington, contracts against liability for negligence "are valid unless the releasing language is so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed." McCorkle v. Hall, 56 Wn. App. 80, 83, 782 P.2d 574 (1989). The sufficiency of the language of the exculpatory clause is generally a question of law. Scott, 119 Wn.2d at 490; cf. McCorkle, 56 Wn. App. at 74 (discussed below). In addition to the conspicuousness of the exculpatory clause, the plaintiff must also have had ample opportunity to fully examine the language of the release. McCorkle, 56 Wn. App. at 83. McCorkle, Conradt, and Baker v. Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971), provide guidance concerning the requisite conspicuousness of an exculpatory clause; the clauses in McCorkle and Baker were found not to be clearly sufficient. McCorkle involved the interpretation of a release that the plaintiff signed when joining a fitness club. Even though the plaintiff testified that he did not read the liability release before signing the application to join the club, the trial court granted a defense motion for summary judgment, holding that the liability release was controlling. The Court of Appeals reversed and remanded for trial because there was an issue of fact as to whether the plaintiff's signature was "unwittingly" made, and whether "the disclaimer language was so conspicuous that he could not have unwittingly signed the application." McCorkle, 56 Wn. App. at 84. The exculpatory clause at issue in Baker was contained in the middle of a one‑page Golf Cart Rental Agreement. Although the size of the print of that clause was no smaller than the rest of the agreement, the court found that the exculpatory clause would have been observed only if the plaintiff had read the entire agreement. Thus, the clause was found not to be conspicuous and did not operate to bar plaintiff's claim. Baker, 79 Wn.2d at 202. In Conradt, the subject release was found to be sufficiently conspicuous and summary judgment in favor of the defendant was affirmed upon appeal. Conradt concerned the validity of a release signed by a driver in a demolition derby. The court found the release was entirely addressed to the obvious and inherent risks and dangers in racing and the voluntary assumption of those risks, and contained BOLDFACE emphasis throughout. Further, above the signature line on the release was the "conspicuous statement 'I have read this release.'" Conradt, 45 Wn. App. at 850. Under these circumstances, the court found there was "no issue of fact as to [the plaintiff's] contemplation of the risk involved." Id. B. Implied Primary Assumption of Risk.The second category, implied primary assumption of risk, is similarly based on consent by the plaintiff, "but without the 'additional ceremonial and evidential weight of an express agreement.'" Kirk, 109 Wn.2d at 453 (quoting Prosser at 496). It "arises where a plaintiff has impliedly consented (often in advance of any negligence by the defendant) to relieve defendant of a duty to plaintiff regarding specific known and appreciated risks." Scott, 119 Wn.2d at 497 (emphasis in original) (cited in Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121, 144, 875 P.2d 621 (1994).[5] “With implied primary assumption of the risk, the plaintiff engages in . . . conduct, from which consent is then implied.” Alston, 88 Wn. App. at 33. Primary implied assumption of risk acts as a complete bar to a plaintiff's recovery. Scott, 119 Wn.2d at 495 ("Primary implied assumption of risk continues to act as a complete bar to recovery after the adoption of comparative negligence laws"). SeealsoTincani, 124 Wn.2d at 143 ("Assumption of the risk in this form is really a principle of no duty, or no negligence, and so denies the existence of the underlying action. Therefore, implied primary assumption of the risk remains a complete bar to recovery"); Ridge, 42 Wn. App. at 788 ("this primary type of assumption of risk should continue to bar recovery even after the adoption of comparative negligence or fault because assumption of the risk in this form is, in reality, the principle of no duty ‑‑ hence no breach and no underlying cause of action") (cited with approval in Scott, 119 Wn.2d at 497); Leyendecker, 53 Wn. App at 774; Codd, 45 Wn. App. at 402. A critical factual issue in applying primary implied assumption of risk is the scope of the risks assumed by the plaintiff, i.e., "what risks were impliedly assumed and which remain as a potential basis for liability." Scott, 119 Wn.2d at 497. "Implied primary assumption of risk means the plaintiff assumes the dangers that are inherentin and necessaryto the particular sport or activity." Id. at 501 (emphasis in original) (quoted in Tincani, 124 Wn.2d at 143). SeealsoDorr, 84 Wn. App. at 427 (“Those who choose to participate in sports or other amusements likely to cause harm to the participant . . . impliedly consent in advance to excuse the defendant from any duty to protect the participant from being injured by the risks inherent in such activity”); Ridge, 42 Wn. App. at 788 ("Those who participate in sports or amusements are taken to assume known risks of being hurt, although they are deemed not to have consented to unsportsmanlike conduct rule violations, which are not part of the game. By taking part in the game, [plain-tiff] agreed to accept the risks inherent in the game that were obvious and necessary"). "To the extent a plaintiff is injured as a result of a risk inherent in and necessary to a sport or other activity, the defendant owes no duty; and there is, therefore, no negligence." Tincani, 124 Wn.2d at 144 (citing Scott, 119 Wn.2d at 498). C. Limitations on Primary Assumption of Risk.As noted above, in order to be effective, exculpatory clauses must not violate public policy nor be vague or inconspicuous, nor can they release liability resulting from conduct constituting gross negligence. There are, however, additional limitations on the effectiveness of primary assumption of risk. The most far‑reaching limitation may be the Court's recent determination that a parent does not have the legal authority to execute a release on behalf of a minor child. The Court has held 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." Scott, 119 Wn.2d at 495. Such a release will operate, however, to bar the parents' cause of action based upon their child's injury. Id. Although primary assumption of risk operates as a complete bar to a cause of action based upon negligence, the risk that allegedly caused the damage must be a risk that was specifically known and appreciated by the plaintiff. One who participates in sports "assumes the risks" which are inherent in the sport. To the extent a plaintiff is injured as a result of a risk inherent in the sport, the defendant has no duty and there is no negligence. . . . A defendant simply does not have a duty to protect a sports participant from dangers which are an inherent and normal part of a sport.
Scott, 119 Wn.2d at 498 (emphasis in original). Thus, a plaintiff assumes only those risks that are inherent in and necessary to the particular sport or activity. Id. at 501. If a plaintiff is injured as a result of a risk that was not known or appreciated at the time the course of conduct was entered into, the claim will not be barred by this defense. Assumption of risk may act to limit recovery but only to the extent the plaintiff's damages resulted from the specific risks known to the plaintiff and voluntarily encountered. To the extent a plaintiff's injuries resulted from other risks, created by the defendant, the defendant remains liable for that portion.
Kirk, 109 Wn.2d at 454‑55 (quoted in Tincani, 66 Wn. App. at 860). Thus in Kirk, the plaintiff was held not to have assumed the risks of, and was not barred from recovering for, injuries resulting from the university's negligent provision of dangerous facilities or improper instruction or supervision.
IV. Secondary Assumption of RiskSecondary assumption of risk occurs when "the plaintiff is aware of a risk that already has been created by the negligence of the defendant yet chooses to voluntarily encounter it." Leyendecker, 53 Wn. App. at 774. Secondary assumption of risk differs from primary assumption in that secondary assumption of risk "is not truly consensual, but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk." Id. Secondary assumption of risk results in a reduction of damages rather than a complete bar to the recovery of damages. Scott, 119 Wn.2d at 497 (cited in Yurkovich v. Rose, 68 Wn. App. 643, 656, 847 P.2d 925, reviewdenied, 121 Wn.2d 1029 (1993). SeealsoAlston, 88 Wn. App. at 32 (1997)(these forms of secondary assumption of risk “are nothing more than alternative names for contributory negligence”). Secondary assumption of risk has two categories: "implied unreasonable" and "implied reasonable" assumption of risk. Kirk, 109 Wn.2d at 454; Leyendecker, 53 Wn. App. at 774. A. Implied Unreasonable Assumption of Risk.This category "focuses . . . upon the . . . issue of the objective unreasonableness of the plaintiff's conduct in assuming the risk." Kirk, 109 Wn.2d at 454. "[O]ne who willingly and unreasonably encounters a known risk created by the negligence of another may be held to have assumed that risk." ITT Rayonier, Inc. v. Puget Sound Freight Lines, 44 Wn. App. 368, 373, 722 P.2d 1310 (1986). Washington courts have determined that it is a jury question whether the plaintiff acted in an objectively unreasonable manner in assuming the risk of the defendant's conduct. If it is found the plaintiff acted unreasonably, Washington law requires a reduction in damages based on the percentage of damage contributorily caused by the plaintiff. Id. at 375‑76.[6] B. Implied Reasonable Assumption of Risk.This category of assumption of risk contemplates a situation where the plaintiff impliedly assumed the risk, but acted reasonably in doing so. Leyendecker, 53 Wn. App. at 774 n.2. Historically, there have been differing views on how to treat this category of assumption of risk. (1) Prosser View. The Prosser view asserts that implied reasonable assumption of risk should not be allowed to reduce a plaintiff's damage in any way: It would thus appear odd if the plaintiff's reasonable assumption of the risk to which he was exposed by the negligence of the defendant were treated as an absolute bar. Nor logically should it even factor in to reduce the plaintiff's damages, since his conduct has by definition been free from blame.
Prosser, at 497‑98. (2) Schwartz View. Professor Schwartz argues that implied reasonable assumption of risk is an issue that should be given to the jury for consideration: When a person's conduct under the facts is truly voluntary and when he knows of the specific risk he is to encounter, this is a form of responsibility or fault that the jury should evaluate.
V. Schwartz, Comparative Negligence, § 9.5, at 180 (2d ed. 1986) (quoted with approval in Kirk, 109 Wn.2d at 458). (3) Washington View. Noting that the issue of implied reasonable assumption of risk was the subject of extensive discussion by the courts and legal commentators, the Washington Supreme Court has stated it favors the reasoning of Professor Schwartz. The Court held that implied reasonable assumption of risk, if it was voluntary on the part of a plaintiff, is a matter for the jury to address and is a damage‑reducing factor rather than a complete bar. Kirk, 109 Wn.2d at 457‑58.
V. Conclusions and RecommendationsIn Washington, courts will apply the defense of assumption of risk as a complete bar to a plaintiff's negligence claim if proof of a valid executed liability release form is offered at trial, or if the defendant establishes by a preponderance of the evidence the plaintiff subjectively knew of the risks to be encountered and expressly or impliedly decided to encounter the known risk. The Washington Supreme Court stated in its most recent decision on this topic: “Consistent with prior Washington law, we reiterate that releases are enforceable in the setting of adult high risk sports activities.” Vodopest, 128 Wn.2d at 849. Thus, Washington courts will uphold written agreements "exculpating" a defendant from potential liability resulting from activities which may be classified as "risky" or "dangerous," but only if particular public interests are not involved. When a defendant raises the defense of an express primary assumption of risk, Washington courts will require proof that the exculpatory language was conspicuous, the party signing understood the significance of the document, and there was ample opportunity for the injured party to examine the release prior to the signing. All contracts seeking to release a party from potential liability should contain clearly written language indicating the party signing the agreement is assuming all risks of injury or damage resulting from the activity in which he or she seeks to engage.[7] Specific risks that can be anticipated should be itemized in the release. All exculpatory language should be printed in bold format or in a manner that makes it "stand out" on the page. Once the document is prepared in a clear and easily understandable manner, the party signing must be given a reasonable opportunity to read and understand the document.
[1] In a case involving strict liability, however, assumption of risk is a damage‑reducing factor rather than a bar to recovery. South v. A.B. Chance Co., 96 Wn.2d 439, 635 P.2d 728 (1981) (cited in Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 819‑20, 733 P.2d 969 (1987)). [2]When damages are partly due to a defendant's negligence and the risks thereof were not expressly assumed by a plaintiff, that plaintiff may still recover a portion of his or her damages. See, e.g., Shorter v. Drury, 103 Wn.2d 645, 695 P.2d 116 (1985) (plaintiff held to have assumed risk of injury from refusing a blood transfusion, but did not assume risk of negligence of physician; plaintiff allowed a recovery reduced by 75%). [3]Note that an express pre-injury release of an employer may operate to release any employees as well. Boyce, 71 Wn. App. at 662-63. [4] “These considerations do not provide a fixed formula necessarily leading to the conclusion that a given exculpatory agreement does or does not violate public policy. . . . ‘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.’” Shields, 79 Wn. App. 584 at 587 (quoting Wagenblast, 110 Wn.2d at 851-52). [5]SeealsoDorr, 84 Wn. App. at 426-27. [6]In Tincani, the jury concluded the plaintiff voluntarily chose to encounter a risk created by the defendant. The Court held this type of assumption of risk is called "unreasonable assumption of the risk" and did not bar all recovery; the jury may apportion the percentage of the fault attributable to each responsible party. Tincani, 124 Wn.2d at 145 (quoting Scott, 119 Wn.2d at 499). [7]The express assumption of all risks in a release has been found to include the risks of negligent instruction and supervision. SeeBoyce, 71 Wn. App. at 666-67 ("'. . . knowledge of a particular risk is unnecessary when there is an express agreement to assume all risk; by express agreement a plaintiff may undertake to assume all of the risks of a particular . . . situation, whether they are known or unknown to him.'") (quoting Restatement 2d Torts § 496D, com. a; Prosser & Keeton, Torts (5th ed. 1984) § 68, p. 482). |
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