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Are Liability Waivers in Washington A Hobson’s Choice?

I was among almost 20,000 people running Rock ‘n’ Roll Marathon and ½ Marathon in Seattle this June. Did you know that marathon organizers won’t give you your race number unless you present a valid ID and sign a waiver form? This means every year they collect 20,000 signatures on the dotted lines of liability waivers!

This is hardly a surprise because in the twenty-first century waiver forms crafted by shrewd lawyers have entered our daily lives as a necessary evil. And they are not leaving any time soon. Regardless of whether you signed up for a race, bought a gym membership, rented a piece of equipment, or registered your child for school, I am willing to bet a farm that within the last six months you’ve signed at least one waiver form releasing the party providing service from damage claims. And you probably couldn’t help but wonder whether your signature made that waiver enforceable in court. This article might help you wrap your head around this. Just keep reading…

The problem with waivers from the consumer’s perspective is that you don’t usually get to negotiate the language or bargain for the price. Try telling a mountain guide service that you don’t want to sign a release form, or that you’d like a discount in exchange for agreeing to not sue them if you are lost and have to spend three days in a snow cave hiding from a blizzard. Think their lawyer would still let them take you up the mountain? Probably not.

In law, they call it “a contract of adhesion” or “take-it-or-leave-it” contract. I call it a “Hobson’s Choice“. According to Wikipedia, this phrase originated with Thomas Hobson (1544-1631), a livery stable owner in Cambridge, England, who offered customers the choice of either taking the horse in his stall nearest to the door, or taking none at all.

Henry Ford was also said to have offered the Ford Model T with the famous Hobson’s choice: “Any customer can have a car painted any color that he wants as long as it is black.”

Liability waivers are like buying a black Model T. Either take it, or pound the sand. So let’s dispel some of the myths and talk about what happens with your waiver if things go terribly wrong.

Right off the bat, it is important to remember that a typical registration form would normally contain two conceptually different and legally distinguishable clauses: the assumption of risk clause and the exculpatory clause. Let’s break it down. 

Assumption of Risk

When you sign an assumption of risk clause, you essentially confirm that you understand the dangers associated with the activity and that you won’t sue the organizer in case anything goes wrong.

Not all assumptions of risk are made equal. Some of them are enforceable in court. And some are not. The question turns on whether you subjectively understood all facts that a reasonable person in your shoes would want to know and consider before signing the form. An assumption of risk bars recovery only for those risks subjectively assumed; it does not preclude recovery for injuries resulting from risks not known or not voluntarily encountered. 

For the assumption of risk to be enforceable, the other side would have to show that you had a full subjective understanding of the presence and nature of the specific risk, and voluntarily chose to encounter the risk.

Circling back to my marathon example, the form I had to sign may have included a language like this:

I know that running is a potentially hazardous activity. I should not enter and run unless I am medically able and properly trained. I agree to abide by any decision of a race official relative to my ability to safely complete the run. I hereby certify that I am in good health and I have trained to run the distance of the race, which I am entering. I assume all risks associated with running in this event including, but not limited to: falls, contact with other participants, the effects of weather, including high heat and/or humidity, traffic and the conditions of the road, all such risks being known and appreciated by me.

If I collapsed at mile 24 due to dehydration or exhaustion, I won’t have a case because I assumed this risk when I agreed that I understand running is dangerous. This year, I saw a half-marathoner pass out at mile 11 going uphill, so those occurrences are not uncommon. Similarly, if I tripped and fell on a pothole, my claim would likely be barred because I certified that I assume all risks associated with the conditions of the road.

On the other hand, if I tripped over a power cord carelessly left by the marathon staff across the finish line, it could be argued that no reasonable person would anticipate this tripping hazard and consequently never assumed the risk. The outcome could be different if the assumption of risk form specifically spelled out that “I understand power cords can be present on the course and constitute a tripping hazard.” Ultimately, the question of whether a reasonable person should have understood “the presence and nature of the risk” is a question for a jury to decide. 

Exculpatory clauses

An exculpatory clause is an affirmative promise that you waive your right to recover damages from the person causing the injury. Courts encourage freedom of contract. And in keeping with this principle, Washington courts by and large enforce voluntarily exculpatory clauses. But as with most things in law, there are exceptions.

An exculpatory clause will not be enforced if:

  • it is unclear or inconspicuous;
  • it violates public policy*; or
  • the alleged act amounts to negligence or intentional torts.

The definition of “gross negligence” is deliberately vague and sounds like a page out of an 1700’s law book on torts. It’s defined as “negligence substantially and appreciably greater than ordinary negligence. It’s a failure to exercise slight care or absence of care substantially or appreciably less than the quantum of care in ordinary negligence”.  

So in my marathon hypothetical, if the exculpatory language expressly stated that I have waived my claims against the organizers for negligently placing a power cord at the finish line, arguably it would be clear and conspicuous enough for the court to enforce it. But let’s change the facts a little and assume that the power cord had exposed wiring. And that I was electrocuted while crossing the finish line before the sea of flashing photo cameras. An unmarked bare electrical wire likely means that the organizers were grossly negligent, so they can’t have that risk waived, even if the form said “ELECTROCUTION RISK” in all caps, boldfaced. Also, no waiver language would protect Rock ‘n’ Roll Series from a suit if one of their staff intentionally tripped or punched a runner.   

*The question of whether an exculpatory clause is against public policy is too complicated and nuanced to address in this article. Suffice it to say that waivers are seldom overturned on this ground.

Waiver by a parent on behalf of a minor child

A parent may not legally waive a child’s future claim for injury or death. This is yet another exception to the general rule in Washington that exculpatory clauses are enforceable. 

I recently responded to a Facebook post in which parents were wondering whether they could sue a childcare facility for injuries sustained by their child after they signed a release. The answer is, as with most legal queries: “it depends.” But one thing is clear: the exculpatory clause they signed would not shield the childcare from liability because the parents had no legal authority to waive their child’s claim.

In Scott v. Pac. W. Mt. Resort, a 12-year old skier and his parents sued ski school for injuries the child suffered in a skiing accident. Even though the parents signed an application containing an exculpatory provision, the court held that the parents had no legal authority to waive their son’s claim, and therefore his lawsuit was not precluded by the exculpatory clause his parents signed.

While we are on the subject, it might be helpful to mention that a minor child has more time to file a lawsuit. A statute of limitations applicable to personal injury claims is 3 years, meaning that you have to file suit within 3 years of the accident. But in case of a minor child, the statute of limitations does not start to run until he or she reaches the age of majority, i.e. 18 years. So a 7 year-old plaintiff would have 14 years to file suit: 11 years till the age of 18 plus the 3-year statute of limitations.

What’s the lesson to be learned from all this? Never sign anything without reading. And please subscribe to my newsletter below: