ROBERT R. BAKER, Appellant,
v.
THE CITY OF SEATTLE et al., Respondents.
No. 239-41082-1.
The Court of Appeals of Washington, Division One, Panel 1.
July 6, 1970.Levinson & Friedman and Robert D. Duggan, for appellant.
Jack E. Hepfer, for respondents.
REVIEW GRANTED BY SUPREME COURT
FARRIS, J.
On July 7, 1967, Robert Baker was a patron of the Jackson Park Municipal Golf Course in Seattle. While there he sustained personal injuries when the electric golf cart which he had rented turned over.
The defendants Paul Billingsley and his wife were engaged in the business of leasing golf carts at Jackson Park with the permission of the defendant, City of Seattle, which received a portion of the rental fees. The accident occurred while Baker was returning the cart after playing 18 holes without incident.
The trial judge granted the defendants' motion for summary *1004 judgment on the grounds that a "disclaimer of liability" in the rental agreement barred recovery.[1]
The scope of the exculpatory clause is not questioned; if it is valid, it is an effective bar to plaintiff's action. The plaintiff argues that the disclaimer of liability clause should be declared void as contrary to public policy. He argues that such a clause in a form rental agreement is not bargained for, but offered on a "take it or leave it" basis. In *1005 support of this argument he cites Thomas v. Housing Auth., 71 Wash. 2d 69, 426 P.2d 836 (1967).
[1] In Thomas, the Supreme Court refused to recognize the validity of a disclaimer clause similar to the one in issue. It did so on the basis that the clause was inconsistent with the statutory public duty of providing safe and sanitary housing for persons of low income. It did not overrule the line of cases establishing the right to contract for protection from one's own negligence. Broderson v. Rainier Nat'l Park Co., 187 Wash. 399, 60 P.2d 234 (1936); Griffiths v. Henry Broderick, Inc., 27 Wash. 2d 901, 182 P.2d 18, 175 A.L.R. 1 (1947); Union Pac. R.R. v. Ross Transfer Co., 64 Wash. 2d 486, 392 P.2d 450 (1964).
The Broderson case involved a recreational activity, as here. The plaintiff was injured while riding on a rented toboggan after having entered into a similar agreement. The Supreme Court rejected the public policy arguments against the validity of the exculpatory clause.
The doctrine of strict liability as applied in Washington is set forth in the Restatement (Second) of Torts, § 402A (1965) which provides:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
The basis for the rule is the special responsibility for the safety of the public which one who supplies the public with *1006 products must undertake. See Restatement (Second) of Torts, § 402A, comment f (1965) at 350.
In adopting the language of strict liability as set forth in Restatement (Second) of Torts, § 402A (1965) the Supreme Court declined to pass upon the applicability of the rule to sellers other than manufacturers, reserving these questions until they are properly before the court. Ulmer v. Ford Motor Co., 75 Wash. 2d 522, 452 P.2d 729 (1969).
We are impressed with the logic of appellant's argument which equates a lessor with a seller. We have also reviewed the California decisions wherein the doctrine of strict liability has been extended.[2] We also recognize the direction that the doctrine of strict liability is taking,[3] but we agree with the decision in McCutcheon v. United Homes Corp., 2 Wash. App. 618, 620, 469 P.2d 997 (1970):
In light of this state's policy of validating exculpatory agreements in general, Griffiths v. Henry Broderick, Inc., supra, and in the absence of any legislative expression to the contrary, we can discern no public policy which is violated by the exculpatory clause in question. We view this as an area for distinct concern because of the potentiality for unwarranted abuse, but nevertheless deem this a subject peculiarly appropriate for legislative, rather than judicial, action.
Affirmed.
JAMES, C.J., and SWANSON, J., concur.
NOTES
[1] ">1.
[2] The California court has held that the test of strict liability is whether the article or chattel is placed on the market knowing that it is to be used without inspection for defects. See Price v. Shell Oil Co., ___ Cal.2d ___, 79 Cal. Rptr. 342, 348 (1969). The California Court of Appeals has recently extended the doctrine to lessors of equipment (defective stepladder). McClaflin v. Bayshore Equip. Rental Co., ___ Cal.2d ___, 79 Cal. Rptr. 337 (1969).
[3] See 45 Wash. L. Rev. 431 (1970).