Liability waivers are an important part of many contracts as they shift liability from the business to the individual should some action be taken by the contract signer. The liability waiver is an opportunity for a business to inform the signer of the risk associated with the related activity and to reduce the business’ liability should an accident occur. Quite often though, liability waivers are passed over or skimmed at best. While one cannot require a signatory to read every word of a contract, it is vital the business ensures its liability waivers are conspicuous because waivers that are determined to be hidden within a contract are unenforceable. A liability waiver took center stage in a case involving a gym membership where plaintiff failed to read the waiver, signed the agreement, and was subsequently injured at the gym. The State Supreme Court determined liability rested with plaintiff based on the conspicuity of the liability waiver.
On February 1, 2016, plaintiff entered into a membership agreement (“Agreement”) allowing her access to the defendant’s facility in Lacey, Washington. The first part of the membership agreement contract included plaintiff’s personal information, membership rate, and fee schedule. A box sectioning off parts of the first page called attention to plaintiff’s payment authorization.
Between the day plaintiff entered into the Agreement and the day of the incident, plaintiff checked into defendant’s facility eight times; her last known date of attendance was July 28, 2016.
Plaintiff arrived at the defendant’s facility on July 28, 2016, checked in, and decided to use a PowerMill stair machine. Plaintiff provided testimony in the first half of her deposition that conflicted with her testimony in the second half of her deposition. On July 17, 2019, plaintiff testified she had never before used a stair-climber-type machine and did not seek instruction or read any warning labels. Plaintiff stated she started the machine by pressing “the slow button.” When shown a picture of the control console, she was unable to identify which button she pushed to start the machine. The machine started slowly after plaintiff pressed an unknown button, then sped up “super fast,” and did not stop when she pushed the stop button.
When questioned about the liability waiver, plaintiff testified she did not read the liability waiver because she was not given a chance to do so. She testified she was rushed through the sign-up process and was simply told to sign and initial some pages.
Plaintiff refused to dismiss the defendant facility when presented with evidence of the signed liability waiver. Defendant filed a motion for summary judgment, which was denied. Defendant then filed a motion for reconsideration, which was denied.
Defendant next filed a motion for discretionary review with the Washington Court of Appeals. After oral argument, a Commissioner granted acceptance of the appeal. Both parties submitted briefing, with plaintiff focusing on inconspicuousness and a lack of opportunity to read the lengthy liability waiver. Defendant focused on the waiver being conspicuous, such that a reasonable person would have noticed it and recognized it for what it was.
The court found there was a dark line above a banner containing the bolded, capitalized words “RELEASE OF LIABILITY,” “ASSUMPTION OF RISK,” “CLUB RULES,” and “BUYER’S NOTICE & RIGHT TO CANCEL.” The paragraph below contained the same small font as the rest of the gym contract. The waiver warns of the risk of injury and/or death and alerts the reader that defendant would not be liable for any injury resulting from negligent conduct or omission of defendant.
The Washington Supreme Court has recognized the right of parties “‘expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.’”[i] A liability waiver 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.”[ii] Factors considered by courts in determining conspicuity include: (1) whether the waiver provision is set apart or hidden within other provisions, (2) whether the heading or caption of the provision is clear, (3) whether the waiver provision is set off in capital letters or in bold type, (4) whether there is a signature line below the waiver provision, (5) what the language says above the signature line, and (6) whether it is clear that the signature is related to the waiver provision.[iii]
The court did not analyze whether plaintiff unwittingly signed the form from her subjective viewpoint, but rather reviewed, “objectively, the waiver provision was so inconspicuous that it is unenforceable.”[iv] Hidden waivers are unenforceable.
Here, the court found the waiver was set apart from the other contract provisions. The heading of the waiver was clear. The appearance of the waiver language was not emphasized. The signature line was below the waiver provision, but the language above the signature line did not relate only to the waiver provision. However, the required signature related to the waiver provision.
The court next addressed plaintiff not reading the waiver. A person is bound by the waiver only if they were provided an opportunity to examine it but failed to do so for personal reasons.[v] Plaintiff argued the defendant facility employee identified the agreement as a “mere formality” she had to sign to join the facility. The employee showed her where to sign and she signed them, and then he immediately took the papers back. When plaintiff mentioned she had not been able to read them, he told her he would mail them to her home address.
The court found plaintiff was apparently satisfied with not reading the liability waiver before signing. There is no indication she could not have read the contract either before or after she signed it if she had asked. Additionally, plaintiff sought out the membership and there is no evidence she was coerced.
The court ruled the liability waiver was conspicuous as a matter of law, and plaintiff did not show there was a genuine issue of material fact regarding her opportunity to read the membership agreement. In addition, the court found even if she felt rushed to sign the document, the waiver language was, as a matter of law, conspicuous enough for her to notice it.
Providing for informed decision making is critical when asking for an individual to waive rights, whether it pertains to a gym contract or the sale of a used car. When enforceable, waivers are extremely valuable to preclude liability for the very thing for which litigation began. Here, defendant provided plaintiff with a clear and conspicuous waiver. Because the court found no genuine issue of material fact as to plaintiff’s opportunity to review and sign the waiver, the waiver protected defendants. This is the ideal situation for a defendant because the liability waiver was written and placed appropriately and plaintiff was given an opportunity to read it. A liability waiver that meets these requirements fulfills its purpose. Avoiding litigation may be preferable, but litigation is sometimes unavoidable. While businesses cannot predict whether they are going to be sued and for what, they can create an effective liability waiver. While it may not always be possible to supervise the conditions under which someone reads the liability waiver, it is possible to ensure all liability waivers are conspicuous.
[i] Wagenblast v. Odessa Sch. Dist., 110 Wn.2d 845, 848, 758 P.2d 968 (1988) (quoting W. PAGE KEETON, ET AL, PROSSER AND KEETON ON TORTS § 68, at 482 (5th ed. 1984)).
[ii] Johnson v. Spokane to Sandpoint, LLC, 176 Wn. App. 453, 458, 309 P.3d 528 (2013).
[iii] See Baker v. City of Seattle, 79 Wn.2d 198, 202, 484 P.2d 405 (1971); McCorkle, 56 Wn. App. at 83-84; Chauvlier, 109 Wn. App. at 342; Stokes v. Bally’s Pacwest, Inc., 113 Wn. App. 442, 448, 54 P.3d 161 (2002).
[iv] Stokes, 113 Wn. App. at 446.
[v] Yakima County (W. Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 389, 858 P.2d 245 (1993) (“Where a party has signed a contract without reading it, that party cannot successfully argue that mutual assent was lacking as long as the party was not deprived of the opportunity to read the contract.”).