Pre-Injury Liability Waivers in Washington
Likelihood of Enforcement: Low
Exculpatory provisions are strictly construed. Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 490, 834 P.2d 6 (1992). They are enforceable unless they violate public policy, are inconspicuous, or involve liability for acts falling greatly below the standard established by law for the protection of others. Scott, 119 Wash.2d at 492, 834 P.2d 6. The third exception is generally referred to as the “gross negligence” standard. See Conradt v. Four Star Promotions, Inc., 45 Wash.App. 847, 852, 728 P.2d 617 (1986).
Washington courts apply a six-factor balancing test to determine whether an exculpatory agreement violates public policy. These factors come from Wagenblast v. Odessa Sch. Dist. No. 105-157-166J, which states that the more of the six factors that “appear in a given exculpatory agreement case, the more likely the agreement is to be declared invalid on public policy grounds.” 110 Wash.2d 845, 852, 758 P.2d 968 (1988).
The test is as follows: Boyce v. West, 71 Wash.App. 657, 663-64, 862 P.2d 592 (1993) (citing Wagenblast, 110 Wash.2d at 851-55, 758 P.2d 968); Riley v. Iron Gate Self Storage, 198 Wash.App. 692 (2017).
(1) the agreement concerns an endeavor of a type generally thought suitable for public regulations;
(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, subject to the risk of carelessness on the part of the furnisher, its employees, or agents.
Last updated 12/2018
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.