Scott By and Through Scott v. Pacific West Mountain Resort, No. 57944-0

CourtUnited States State Supreme Court of Washington
Writing for the CourtANDERSEN; DORE
Citation119 Wn.2d 484,834 P.2d 6
PartiesJustin SCOTT, a minor, by and through his guardian ad litem, Barbara SCOTT, Barbara Scott and Gary Scott, individually and the marital community composed thereof, Appellants, v. PACIFIC WEST MOUNTAIN RESORT, a joint venture, Seattle Cascadia, Inc., a Washington corporation, Schuler Northwest, Inc., a Washington corporation, Great West Skiing, Inc., a Washington corporation, Recreational Consultants, Inc., a Washington corporation, and Grayson Connor and Jane Doe Connor, individually, and the marital community composed thereof, d/b/a Grayson Connor Ski School, Respondents.
Docket NumberNo. 57944-0
Decision Date30 July 1992

Page 484

119 Wn.2d 484
834 P.2d 6
Justin SCOTT, a minor, by and through his guardian ad litem,
Barbara SCOTT, Barbara Scott and Gary Scott,
individually and the marital community
composed thereof, Appellants,
v.
PACIFIC WEST MOUNTAIN RESORT, a joint venture, Seattle
Cascadia, Inc., a Washington corporation, Schuler Northwest,
Inc., a Washington corporation, Great West Skiing, Inc., a
Washington corporation, Recreational Consultants, Inc., a
Washington corporation, and Grayson Connor and Jane Doe
Connor, individually, and the marital community composed
thereof, d/b/a Grayson Connor Ski School, Respondents.
No. 57944-0.
Supreme Court of Washington,
En Banc.
July 30, 1992.

[834 P.2d 7]

Page 486

Law Offices of Christopher L. Otorowski, Christopher L. Otorowski, Bainbridge Island, for appellants.

Page 487

Steven R. Meeks, Olympia, for respondent Pacific West Mountain Resort.

Carney, Stephenson, Badley, Smith & Spellman, P.S. by David W. Bever, Ruth [834 P.2d 8] Nielsen, Seattle, for respondents Connor, et al.

Bryan P. Harnetiaux, Gary N. Bloom and Daniel E. Huntington, Spokane, amicus curiae, for respondents on behalf of Washington State Trial Lawyers Ass'n.

Michael H. Runyan, Linda E. Blohm, Seattle, amicus curiae, for respondents on behalf of Washington Defense Trial Lawyers.

Christopher W. Moore, Seattle, amicus curiae, for respondents on behalf of PNSAA, WSSI, PSIA/Northwest, PNSA-USSA, Seattle Ski Alliance and PNSEF.

ANDERSEN, Justice.

FACTS OF CASE

Justin Scott and his parents appeal the dismissals of their tort claims against a ski resort and a ski school for injuries suffered by Justin in a skiing accident. The ski school's motion for summary judgment was granted based upon an exculpatory clause in the ski school application and the ski resort's motion for summary judgment was granted based upon a theory of implied assumption of risk.

Since the trial courts dismissed the claims on summary judgment, the facts 1 and all reasonable inferences therefrom are considered in a light most favorable to the plaintiffs as the non-moving parties. 2

On March 11, 1989, 12-year-old Justin Scott sustained severe head injuries while skiing at a commercial ski resort

Page 488

owned by Pacific West Mountain Resort (hereafter ski resort). Justin was a student of the privately ownedGrayson Connor Ski School (hereafter ski school) which offered lessons at the ski resort.

At the time of his injury, Justin was attempting to ski on a slalom race course which had been laid out by the ski school owner, allegedly according to instructions from an agent of the ski resort.

Justin's mother, Barbara Scott, with Justin's father's knowledge and acquiescence, had filled out and signed an application for the ski school which included Justin's name, grade in school (sixth), years skied (2) and other personal information. She checked the boxes indicating Justin was an advanced skier and that he wished to purchase ski-racing lessons. The following language was included in the application:

For and in consideration of the instruction of skiing, I hereby hold harmless Grayson Connor, and the Grayson Connor Ski School and any instructor or chaperon from all claims arising out of the instruction of skiing or in transit to or from the ski area. I accept full responsibility for the cost of treatment for any injury suffered while taking part in the program.

Witnesses to the accident agreed Justin was practicing on the race course and that he missed one of the gates 3 and left the course. One witness reported that as Justin left the course, he appeared to be turning uphill to avoid an unused tow-rope shack but was unable to do so and was ejected out of his skis and down into the depression under the shack. He was found unconscious underneath the shack wrapped around one of the shack's 12- by 12-inch supports, and had sustained severe head injuries.

The Scotts sued both the ski resort and the ski school alleging the race course had been improperly prepared and had been negligently placed too close to an unfenced tow-rope shack which was supported by exposed unpadded pillars. The exact distance between the shack and the race

Page 489

course is disputed but there was evidence the shack was approximately 40 feet from the closest gate. Pacific West noted in [834 P.2d 9] its memorandum in support of summary judgment that the distance between the shack and the nearest gate was a matter of dispute, as is the distance between the shack and where Justin left the ski course. These, of course, are factual determinations which cannot be resolved on summary judgment. One expert witness' declaration opined that Justin would have traveled the short distance between the race course and the shed in approximately 2 seconds.

There is evidence that the snow adjacent to the race course had not been packed and was wet and heavy and more difficult to ski in than the packed snow in the race course.

The ski school moved for summary judgment on the basis that the exculpatory clause in the ski school application, signed by Justin's mother, relieved the school from any liability for its own negligence. The trial judge granted that motion and dismissed the claims against the ski school.

The ski resort moved for summary judgment on the ground that Justin had "assumed the risk" and was thus barred from recovery in a negligence action against the ski resort. The trial judge granted that motion and dismissed the claims against the ski resort.

Petitions for direct review were granted by this court.

ISSUES REGARDING SKI SCHOOL'S DISMISSAL

ISSUE ONE. Was the language of the purported exculpatory clause sufficiently clear to release the ski school for negligent conduct?

ISSUE TWO. May a parent legally waive a child's future potential cause of action for personal injuries resulting from a third party's negligence?

ISSUES REGARDING SKI RESORT'S DISMISSAL

ISSUE THREE. Subsequent to the adoption of comparative negligence, does the doctrine of primary implied assumption of risk act to bar recovery or only to reduce damages?

Page 490

ISSUE FOUR. Under the facts of this case, did the trial court properly apply the doctrine of primary implied assumption of risk as a complete bar to plaintiff's recovery?

DECISION

ISSUE ONE.

CONCLUSION. We conclude that the language of the purported exculpatory clause contained in the ski school application was sufficiently clear to give notice that the ski school was attempting to be released from liability for its negligent conduct.

Exculpatory clauses are strictly construed and must be clear if the exemption from liability is to be enforced. 4 The sufficiency of the language to effect a release is generally a question of law. 5

Some cases and commentators have declared that a clause will not be construed to include an exemption for negligence unless it includes the word "negligence" or language with similar import. 6 However, many courts have held that clear and unambiguous exculpatory language can eliminate negligence liability without expressly using the word "negligence". 7 [834 P.2d 10] Two Washington Court of Appeals cases have also held that the word "negligence" is not essential to

Page 491

the effectiveness of an express release. 8 We agree. Courts should use common sense in interpreting purported releases, 9 and the language "hold harmless ... from all claims" logically includes negligent conduct. One does not have a "claim" to be "held harmless" from unless there is a basis for liability. The language of the exculpatory clause shows the parties' intent to shift the risk of loss. The second sentence stating that the parents of the skier "accept full responsibility for the cost of treatment for any injury" supports this conclusion.

Plaintiffs also argue that the hold harmless language is more "indemnity" language than "release" language and therefore should not be sufficient to serve as an exculpatory clause. However, indemnity agreements are "closely akin" to releases. 10 The court in O'Connell v. Walt Disney World Co., 413 So.2d 444, 446 (Fla.Dist.Ct.App.1982) explained that although there is a distinction in definition between exculpatory clauses and indemnity clauses, in these settings they both attempt to shift ultimate responsibility for negligence and so are generally construed by the same principles of law. An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury. An indemnification clause attempts to shift responsibility for the payment of damages to someone other than the negligent party, usually back to the injured party, thus likely producing the same result as an exculpatory clause.

Thus, in this case the fact that the application uses the words "hold harmless" rather than the word "release" does not significantly impact the issue of whether the effect was to exculpate the ski school from liability for its own negligence.

Page 492

Plaintiffs also argue that the claim was one not "arising out of the instruction of skiing" because it was caused by the ski instructor's placement of the race course too close to the shed. However, it is clear from the application form that these were ski racing lessons; a race course would therefore be an integral part of teaching ski racing. This argument is factually strained and unconvincing.

We conclude that to the extent the release is otherwise legally valid the language of the exculpatory clause was sufficiently clear to release the ski school from liability for negligent conduct. We therefore must reach the legal issue regarding parents' authority to release not only their own claims but also the potential future claim belonging to a child.

ISSUE TWO.

CONCLUSION. A parent does not have legal authority to waive a child's own future cause of action for personal injuries resulting from a third party's negligence.

The general rule in Washington is that exculpatory clauses are...

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154 practice notes
  • Zuver v. Airtouch Communications, Inc., No. 74156-5.
    • United States
    • United States State Supreme Court of Washington
    • December 23, 2004
    ...is valid unless, among other things not relevant here, it violates public policy. Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 492, 834 P.2d 6 (1992). A contract provision forgoing punitive damages is not against public policy in this state. See, e.g., Spokane Truck & Dray Co. v. Hoef......
  • INTER. ASS'N OF FIRE. v. Spokane Airports, No. 70667-1.
    • United States
    • United States State Supreme Court of Washington
    • April 25, 2002
    ...fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Scott v. Pac. W. Mt. Resort, 119 Wash.2d 484, 502, 834 P.2d 6 (1992). "A material fact is one upon which the outcome of the litigation depends." Vacova Co. v. Farrell, 62 Wash.App. 386, 395, 814 P.2d 255......
  • Gall v. McDonald Industries, No. 19161-0-II
    • United States
    • Court of Appeals of Washington
    • November 27, 1996
    ...not repaired at the time of Gall's accident. 12 Clerk's Papers at 61-63. 13 Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 492, 834 P.2d 6 (1992); McCutcheon v. United Homes Corp., 79 Wash.2d 443, 447, 486 P.2d 1093 14 State v. Antoine, 82 Wash.2d 440, 444, 511 P.2d 1351 (1973). 15......
  • Linda EASTWOOD v. HORSE HARBOR Found. INC., No. 81977-7.
    • United States
    • United States State Supreme Court of Washington
    • November 4, 2010
    ...construed and must be clear if the exemption from liability is to be enforced.” Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 490, 834 P.2d 6 (1992). An “inconspicuous” exculpatory clause is unenforceable. Id. at 492, 834 P.2d 6. 4Conceiving of harm as potentially both an economic loss......
  • Request a trial to view additional results
154 cases
  • Zuver v. Airtouch Communications, Inc., No. 74156-5.
    • United States
    • United States State Supreme Court of Washington
    • December 23, 2004
    ...is valid unless, among other things not relevant here, it violates public policy. Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 492, 834 P.2d 6 (1992). A contract provision forgoing punitive damages is not against public policy in this state. See, e.g., Spokane Truck & Dray Co. v. Hoef......
  • INTER. ASS'N OF FIRE. v. Spokane Airports, No. 70667-1.
    • United States
    • United States State Supreme Court of Washington
    • April 25, 2002
    ...fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Scott v. Pac. W. Mt. Resort, 119 Wash.2d 484, 502, 834 P.2d 6 (1992). "A material fact is one upon which the outcome of the litigation depends." Vacova Co. v. Farrell, 62 Wash.App. 386, 395, 814 P.2d 255......
  • Gall v. McDonald Industries, No. 19161-0-II
    • United States
    • Court of Appeals of Washington
    • November 27, 1996
    ...not repaired at the time of Gall's accident. 12 Clerk's Papers at 61-63. 13 Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 492, 834 P.2d 6 (1992); McCutcheon v. United Homes Corp., 79 Wash.2d 443, 447, 486 P.2d 1093 14 State v. Antoine, 82 Wash.2d 440, 444, 511 P.2d 1351 (1973). 15......
  • Linda EASTWOOD v. HORSE HARBOR Found. INC., No. 81977-7.
    • United States
    • United States State Supreme Court of Washington
    • November 4, 2010
    ...construed and must be clear if the exemption from liability is to be enforced.” Scott v. Pac. W. Mountain Resort, 119 Wash.2d 484, 490, 834 P.2d 6 (1992). An “inconspicuous” exculpatory clause is unenforceable. Id. at 492, 834 P.2d 6. 4Conceiving of harm as potentially both an economic loss......
  • Request a trial to view additional results

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