A Defense to Negligence – Exculpatory Agreements

Posted Tuesday, October 18, 2016 by Ed Harper

Exculpatory Agreements

A properly executed exculpatory agreement, also known as a hold harmless or a general liability release can overcome a claim for negligence. Thus, a defendant will often successfully defeat a plaintiff’s claim of negligence if certain factors are satisfied. Hold harmless agreements are a way to protect oneself if for example one wants to rent out their property for dangerous activities or recreational activities. You may have found yourself signing a document prior to renting sporting goods or before you participate in some fun, but dangerous activity.

As mentioned in the case Blide v Rainier Mountaineering, Inc. 30 Wn.App. 571, 574 (1981), the reliance on a contract entered into prior to a mountainous activity allowed the defendant to avoid responsibility for the serious injury of a participant. In Blide, the plaintiff had unintentionally fallen or was lowered into crevasse where he was injured. However, the court reasoned the “accident was within the contemplation of the hold harmless which was clear, unambiguous and conspicuous.” Blide at 574.

The Blide court relied upon Hewitt v. Miller, 11 Wn.App. 72 (1974) for controlling this issue. “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.” The court continued in evaluating the public interest in mountaineering, “although a popular sport in Washington, mountaineering like scuba diving, does not involve public interest and the plaintiff has at no time complained that the alleged negligence here fell greatly below (this would require proving the defendant exhibited gross negligence) the standard established by law.” Hewitt, at 574.

Therefore, Blide stands for the proposition that for the release to be effective, the document exhibits enough proof that the parties to the release contemplated the hazards as were actually experienced. In other words, was “the hazard experienced clearly within the contemplation of the release?” Blide at 574. To invalidate such a release, one would have to go through the document line by line to determine if the release provided enough pertinent information – relative to the hazard actually encountered. This would often require a factual inquire and comparison.

Why does this matter? As stated in a previous blog post, there are certain ways to avoid this type of exculpatory clause. As mentioned here, violation of public policy; an unclear and inconspicuous warning to the signer of a clause such as this; and/or gross negligence. These questions often become jury questions to ascertain the facts of the incident and then apply the law of the case before a verdict can be rendered.

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