Scott By and Through Scott v. Pacific West Mountain Resort
| Decision Date | 30 July 1992 |
| Docket Number | No. 57944-0,57944-0 |
| Citation | 119 Wn.2d 484,834 P.2d 6 |
| Court | Washington Supreme Court |
| Parties | 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. |
Steven R. Meeks, Olympia, for respondent Pacific West Mountain Resort.
Carney, Stephenson, Badley, Smith & Spellman, P.S. by David W. Bever, Ruth 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.
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 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.
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
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 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.
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
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.
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?
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?
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?
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 Two Washington Court of Appeals cases have also held that the word "negligence" is not essential to 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.
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 enforceable unless (1) they violate public policy, or (2) the negligent act falls greatly below the standard...
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