FILED
SEPTEMBER 4, 2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DANNY DEASIS, a single person, )
) No. 31531-2-111
Appellant, )
)
v. )
)
YOUNG MEN'S CHRISTIAN )
ASSOCIATION OF YAKIMA (YMCA), )
a non-profit organization, ) UNPUBLISHED OPINION
)
Respondent. )
SIDDOWAY, C.J. - Danny DeAsis, a member of the Young Men's Christian
Association of Yakima (YMCA), slipped and fell on a puddle of water in a hallway
outside the pool office, resulting in a dislocated knee. He appeals the summary judgment
dismissal of his claims of negligence and gross negligence., arguing that a release and
waiver that he signed upon becoming a member was unenforceable and that genuine
issues of disputed fact require trial. We disagree and affirm.
FACTSANDPROCEDURALBACKGROlWD
Danny DeAsis applied for membership in the Yakima YMCA in late 2010 on its
two-sided membership application form. He completed the front side with required
personal and credit card information. The back side of the form is printed with a full-
page agreement, the greater part of which is captioned "RELEASE and WAIVER of
No. 31531-2-III
DeAsis v. YMCA
LIABILITY and INDEMNITY AGREEMENT," at the conclusion of which is the
language "I HAVE READ AND UNDERSTAND THIS DOCUMENT AND
RELEASE," followed by a line for the applicant's signature and the date. Clerk's Papers
(CP) at 19 (boldface omitted). Mr. DeAsis failed to sign and date the back side of the
form. If the release and waiver has not been signed, procedure requires YMCA
employees to flag the member's account so that his or her card will not work when the
member swipes it through a scanner to open the locker room door. When the member
seeks assistance at the front desk, personnel are able to pull up a message that the
application form was not fully completed, and obtain a signature at that time.
YMCA records indicate that when Mr. DeAsis returned the day after partially
completing the application form, his membership card did not open the locker room door.
He apparently was presented with the release and waiver agreement and signed it. He
admits that the signature on the release and waiver agreement is his, but testified in
deposition that he did not read the document before signing it.
Approximately nine months later, Nathan Vanderhoof, the aquatics supervisor at
the YMCA, was working when he noticed a swimmer who had just left the pool, was
apparently having trouble finding the locker room, and had dripped water down the
hallway outside the pool office door. Mr. Vanderhoof opened a locked door that would
lead the swimmer back to the locker room and then, in order to clean up the water,
headed to the pool office where he knew there were towels. Just as he was bringing the
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j
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towels back, he saw Mr. DeAsis, who was leaving the building after his workout, slip and
fall on the wet floor. Mr. DeAsis was taken to the hospital, where he was diagnosed with
a dislocated kneecap.
Mr. DeAsis sued the YMCA for negligence. Following discovery, the court heard
the YMCA's motion for summary judgment and Mr. DeAsis's motion for partial
summary judgment. Faced with the YMCA's argument that his negligence action was
barred by the release and waiver, Mr. DeAsis requested leave during argument of the
motion to amend his complaint to allege gross negligence. The court granted the motion
but still granted the YMCA's motion and dismissed his claims. After Mr. DeAsis's
motion for reconsideration was denied, he filed this appeal.
ANALYSIS
Mr. DeAsis's assignments of error present essentially two issues. He argues first
that the release and waiver he signed is unenforceable, and second that, properly
considered, the evidence he presented raised a genuine issue of material disputed fact.
We address the enforceability of the release and waiver first and then tum to the propriety
of summary judgment dismissal of his complaint.
I. Enforceability of release and waiver
A release is a contract in which one party agrees to abandon or relinquish a claim,
obligation, or cause of action against another party. Boyce v. West, 71 Wn. App. 657,
662, 862 P.2d 592 (1993) (citing 6 MARILYN MINZER, JEROME H. NATES, CLARK D.
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KIMBALL, & DIANA T. AXELROD, DAMAGES IN TORT ACTIONS § 51.11[3], at 51-9
(1991)). Under Washington law an eXCUlpatory contract clause is valid unless it (1)
violates public policy, (2) the defendant's breach constitutes gross negligence, or (3) the
clause is so inconspicuous that a reasonable person could find it was signed unwittingly.
McCorkle v. Hall, 56 Wn. App. 80, 782 P.2d 574 (1989). Mr. DeAsis asserts that all
three exceptions apply to render the release that he signed unenforceable.
We review summary judgment decisions de novo, performing the same inquiry as
the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,860,93 P.3d 108
(2004) (citing Kruse v. Hemp, 121 Wn.2d 715,722,853 P.2d 1373 (1993)). Summary
judgment will be upheld if the pleadings, affidavits, answers to interrogatories,
admissions, and depositions establish that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law. Jones v. Allstate Ins.
Co., 146 Wn.2d 291,300-01,45 P.3d 1068 (2002)~ CR 56(c). The court reviews all facts
and reasonable inferences from the facts in a light most favorable to the nonmoving
party. Jones, 146 Wn.2d at 300.
Turning first to the public policy exception, ordinarily public policy does not
prevent parties from releasing one or the other from liability for negligence. Shields v.
Sta-Fit, Inc., 79 Wn. App. 584, 586, 903 P.2d 525 (1995) (citing Wagenblast v. Odessa
Sch. Dist. No. l05-157-166J, 110 Wn.2d 845,848, 758 P.2d 968 (1988)). Wage n blast
sets forth six factors, taken from Tunkl v. Regents ofUniversity ofCalifornia, 60 Cal. 2d
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92, 383 P .2d 441, 32 Cal. Rptr. 33 (1963) that are considered in determining whether
exculpatory agreements violate public policy:
Whether
(1) the agreement concerns an endeavor of a type generally thought suitable for
public regulation;
(2) the party seeking exculpation is engaged in performing a service of great
importance to the public, which is often a matter of practical necessity for some
members of the public;
(3) such party holds itself out as willing to perform this service for any member of
the public who seeks it, or at least for any member coming within certain
established standards;
(4) because of the essential nature of the service, in the economic setting of the
transaction, the party invoking exculpation possesses a decisive advantage of
bargaining strength against any member of the public who seeks the services;
(5) in exercising a superior bargaining power, the party confronts the public with a
standardized adhesion contract of exculpation, and makes no provision whereby a
purchaser may pay additional reasonable fees and obtain protection against
negligence; and
(6) the person or property of members of the public seeking such services must be
placed under the control of the furnisher of the services subject to the risk of
carelessness on the part of the furnisher, its employees, or agents.
See Boyce, 71 Wn. App. at 663-64 (citing Wagenblast, 110 Wn.2d at 851-55).
"[T]he more of the ... six characteristics that appear in a given exculpatory
agreement case, the more likely the agreement is to be declared invalid on public
policy grounds." Wagenblast, 110 Wn.2d at 852. Whether a release contravenes
public policy is a question oflaw, which we review de novo. Hanks v. Grace, 167
Wn. App. 542, 548, 273 P.3d 1029, review denied, 175 Wn.2d 1017 (2012).
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In Shields, this court considered a release of liability required as a condition of
joining a health club. Paul Shields, who had been required upon joining Sta-Fit to release
it and its employees from any negligence or fault, was injured when a Sta-Fit employee, a
trainer, instructed him to remove his support belt when performing squats. Shields, 79
Wn. App. at 586. The court found that cases holding that eXCUlpatory agreements are
void against public policy generally deal with essential services-hospitals, housing,
public utilities, and public education. Id. at 589. After considering Wagenblast's six
factors, the court held that a gym is not subject to the public policy exception. Id. at 590.
Mr. DeAsis asks us to reconsider Shields. When a judicial conclusion of the past
that established a public policy comes before the courts, accepted assumptions should be
reexamined in the light of current conditions and thinking. Wyman v. Wallace, 15 Wn.
App. 395, 396, 549 P.2d 71 (1976) (citing Pierce v. Yakima Valley Mem. Hosp. Ass'n, 43
Wn.2d 162,260 P.2d 765 (1953)), aff'd, 94 Wn.2d 99, 615 P.2d 452 (1980). Although
Shields was decided nearly 20 years ago, we recently reaffirmed that "Washington courts
have not favored finding a public interest in adult recreational activities." Johnson v.
Spokane to Sandpoint, LLC, 176 Wn. App. 453, 460, 309 P.3d 528 (2013). Shields had
reasoned that the public interest is not implicated by a health club's requirement that
members sign a release of liability, because while health club membership is "beneficial"
it is a "far cry from declaring health clubs an indispensable necessity as a matter of public
policy." Shields, 79 Wn. App. at 588-89. Gyms and health clubs make available the
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same opportunity for improving health and physical condition today as they did 20 years
ago. They still fall outside the "essential services" context in which we would refuse to
enforce an exculpatory agreement. The YMCA's release is not unenforceable on grounds
of public policy.
Mr. DeAsis next argues the release is unenforceable because it is not conspicuous.
He cites Johnson v. Ubar, LLC, 150 Wn. App. 533,210 PJd 1021 (2009), characterizing
it as holding that "[w ]hen the plaintiff testifies that the exculpatory clause is
inconspicuous, a question of fact is created." Br. of Appellant at 14. That is not a fair
characterization of Ubar, which in fact held that "[b]ased on [the health club's]
membership agreement, we conclude that reasonable persons could disagree as to
whether the waiver provision is conspicuously displayed." 150 Wn. App. at 542. It was
significant to the Ubar court that the membership agreement at issue included some
provisions that were made conspicuous by use of capital letters and bold print, but "all
the provisions that [were] called to the attention of the reader in the membership
agreement concem[ed] financial terms." Id. In surveying pertinent Washington cases,
Ubar cites several in which the appellate court concluded that summary judgment was
properly granted because reasonable persons could not reach different conclusions as to
whether the waiver and release provision was inconspicuous. Id. at 539-40 (citing
Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 PJd 383 (2001);
Stokes v. Bally's Pacwest, Inc., 113 Wn. App. 442,54 PJd 161 (2002)).
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Whether an exculpatory clause can be found conspicuous as a matter oflaw turns
on how many of the characteristics that make a provision conspicuous are present:
characteristics such as setting it apart from other provisions, using a heading or caption
that makes the purpose of the provision clear, whether the provision or its heading or
caption set forth in capital letters or in bold type, whether there is a signature line, and
whether it is clear that the required signature is related to the exculpatory provision. See
Baker v. City o/Seattle, 79 Wn.2d 198,484 P.2d 405 (1971); McCorkle, 56 Wn. App. at
83; Chauvlier, 109 Wn. App. at 342; Stokes, 113 Wn. App. at 448.
The release at issue in Chauvlier was printed on a ski pass application. It was not
hidden within part of a larger agreement, and it was clearly entitled "'LIABILITY
RELEASE & PROMISE NOT TO SUE. PLEASE READ CAREFULLY!'" 109 Wn.
App. at 342. Also included were the words '"RELEASE''' and "'HOLD HARMLESS
AND INDEMNIFY'" set off in capital letters throughout the agreement, and the release
contained the language, just above the signature line, '''Please Read and Sign: I have
read, understood, and accepted the conditions of the Liability Release printed above.'"
Id. Summary judgment that the release was conspicuous and enforceable was affirmed.
At the other end ofthe spectrum are Baker, McCorkle, and Johnson. In Baker, the
Supreme Court held as a matter of law that a disclaimer in a golf cart rental agreement
was unconscionable and unenforceable where it consisted of several lines of release
language in the middle of a paragraph dealing with something else, and "would have
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been observed only by reading the entire agreement." Baker, 79 Wn.2d at 200. In
McCorkle and Johnson, the appellate courts concluded that the issue of conspicuousness
required triaL We have already discussed the court's concerns in Johnson. In McCorkle,
the release language was included in a paragraph with the ambiguous caption,
"'LIABILITY STATEMENT.'" 56 Wn. App. at 81. The court contrasted the agreement
in McCorkle with release provisions in two earlier cases that were deemed conspicuous
because they were set off by an unambiguous caption or otherwise, and because they
drew the attention of the party signing the document to the fact of the release with
language immediately above the signature line. Id. at 83-84 (citing Hewitt v. Miller, 11
Wn. App. 72, 78, 521 P.2d 244 (1974); Conradt v. Four Star Promotions, Inc., 45 Wn.
App. 847, 850, 728 P.2d 617 (1986)). It was because the release in McCorkle was so
much easier to overlook than those in Hewitt and Conradt that this court concluded there
was a genuine issue of material fact whether it was so inconspicuous that the plaintiff
unwittingly signed it. Id. at 84.
The YMCA's membership agreement at issue in this case has all of the
characteristics that have been relied upon in finding, as a matter of summary judgment,
that no reasonable jury could find release language to be inconspicuous. Both the release
and waiver agreement and its several sections are set apart by the use of boldface print or
capital letters, it contains repeated cautionary and warning language, and it states, above
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the signature line, "I HAVE READ AND UNDERSTAND THIS DOCUMENT AND
RELEASE." There is no issue of fact as to conspicuousness that requires trial.
Even if the document is conspicuous in its format, Mr. DeAsis argues that the
language of the release is confusing and ambiguous and "[n]owhere in the three
paragraphs does YMCA state that it is being released from its own negligence." Reply
Br. of Appellant at 9. We disagree; the first paragraph contains language releasing the
YMCA and its directors, officers, employees, and agents, "hereafter referred to as
'releasees'" from all liability "whether caused by the negligence of the releasees or
otherwise." CP at 19. And even if it did not disclose that it was being released from
liability for its own negligence, courts use common sense in interpreting purported
releases. Cf Scottv. Pac. W Mountain Resort, 119 Wn.2d 484,491,834 P.2d 6 (1992)
(use of the word "negligent" is not essential). The language of the YMCA's release and
waiver provision clearly conveys the parties' intent to shift the risk of loss. Id.
Elsewhere, Mr. DeAsis argues that summary judgment was inappropriate where
the "defendant's actions created a scenario that caused the plaintiff to become unaware
that he was signing a waiver," Br. of Appellant at 13, and that he did not know what he
was signing "because of the way YMCA presented the document." Reply Br. of
Appellant at 11. We presume these are references to the fact that, because Mr. DeAsis
failed to sign the release and waiver initially, it was presented for his signature at a later
time. He fails to explain how the circumstances of his signing interfered with his ability
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to understand the agreement; he has presented no evidence that he was denied the
opportunity to read it or was misled about its terms. "[A] person who signs an agreement
without reading it is bound by its terms as long as there was' ample opportunity to
examine the contract in as great a detail as he cared, and he failed to do so for his own
personal reasons.'" Chauvlier, 109 Wn. App. at 341 (internal quotation marks omitted)
(quoting Nat 'I Banko/Wash. v. Equity Investors, 81 Wn.2d 886, 913, 506 P.2d 20
(1973)).
Finally, Mr. DeAsis argues that the release is an unenforceable adhesion contract.
Whether a contract is an adhesion contract turns on (1) whether the contract is a standard
form printed contract, (2) whether it was prepared by one party and submitted to the other
on a "take it or leave it" basis, and (3) whether there was no true equality of bargaining
power between the parties. Zuver v. Airtouch Commc'ns, Inc., 153 Wn.2d 293, 304,103
P.3d 753 (2004). To the extent that the characterization of a contract as an adhesion
contract has any relevance to determining the validity of a contract, it is only in looking
for procedural unconscionability; the fact that an agreement is an adhesion contract does
not necessarily render it procedurally unconscionable. Id.
Whether a release and waiver is included in an adhesion contract is one of the
Wagenblast factors considered in determining whether it violates public policy; in
Shields, this court held that the health club membership contract in that case was "clearly
one of adhesion," 79 Wn. App. at 590, and the same is true here. As we reasoned in
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Shields, "the true concern is the disparate bargaining power. And that in tum is related to
the essential nature of the services being provided." ld. As discussed above, a health
club is not essential. People interested in recreation and exercise have many alternatives.
The "take it or leave it" nature of the YMCA membership agreement does not render it
unenforceable.
Because the release and waiver provision is valid and enforceable, Mr. DeAsis's
negligence claim was properly dismissed.
II. Summary judgment dismissal of gross negligence claim
Preinjury releases are only enforceable to the extent that they exculpate tortfeasors
for negligent acts, and are not otherwise in violation of public policy. Washington courts
have for decades found preinjury releases that purport to extend to gross negligence and
intentional torts unenforceable. Boyce, 71 Wn. App. at 665; McCutcheon v. United
Homes Corp., 79 Wn.2d 443, 447, 486 P.2d 1093 (1971). In dismissing Mr. DeAsis's
claim of gross negligence, the trial court concluded that he had failed to demonstrate a
genuine issue of material fact supporting the YMCA's asserted breach of the applicable
standard of care.
Before turning to what Mr. DeAsis advances as sufficient evidence of gross
negligence, we address his argument that because he was a business invitee the YMCA
owed him a heightened duty of care that was overlooked by the trial court. There is no
question that Mr. DeAsis was an invitee (as releasors often are) and, but for his release of
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the YMCA from liability, his status as invitee would dictate the standard of care. l He
voluntarily released the YMCA from liability, however, and therefore must establish at
least gross negligence to overcome the effectiveness of the release. Nothing about Mr.
DeAsis's status as a business invitee alters the analysis.
Mr. DeAsis submits that gross negligence claims should never be dismissed on
summary judgment, arguing that "[t]here are literally dozens of Washington cases that
specifically hold that the issue of whether negligence rises to gross negligence presents a
question of fact for the jury, and is not properly decided by the judge on summary
judgment." Br. of Appellant at 7. But the cases on which he relies are those presenting
"substantial evidence of acts or omissions seriously negligent in character," in which the
fact question presented was where, on the spectrum between seriously negligent and
grossly negligent, a defendant's conduct fell. Nist v. Tudor, 67 Wn.2d 322, 326, 407 P.2d
798 (1965) (emphasis added), It is in those cases that the Washington Supreme Court
had, as of 1965, "inclined toward leaving the question of gross negligence to the jury."
Id. In cases that do not present substantial evidence of acts or omissions that are
seriously negligent in character, this court will affirm summary judgment dismissal of a
1 Businesses owe their invitees a duty to exercise reasonable care and inspect for
dangerous conditions, "'followed by such repair, safeguards, or warning as may be
reasonably necessary for [the invitee's] protection under the circumstances.'" Tincani v.
Inland Empire Zoological Soc'y, 124 Wn.2d 121, 139,875 P.2d 621 (1994) (alteration in
original) (quoting RESTATEMENT (SECOND) OF TORTS § 343 cmt. b (1965)).
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claim of gross negligence. See, e.g., Johnson, 176 Wn. App. at 460.
The YMCA, as the party moving for summary judgment, bore the initial burden of
demonstrating that there was no genuine issue of material fact. Young v. Key Pharm.,
Inc., 112 Wn.2d 216,225, 770 P.2d 182 (1989). With the YMCA having demonstrated
apparently nonnegligent conduct on the part of Mr. Vanderhoof, it was incumbent on Mr.
DeAsis to present evidence that material facts are in dispute.
The undisputed evidence is that Mr. Vanderhoof observed the water being dripped
onto the hallway floor as it occurred and, at his earliest opportunity, went directly to his
office to retrieve towels in order to wipe it up. The towels were "only a couple steps
away." CP at 146. Mr. DeAsis's argument is that there were other, perhaps better
courses of action available: he submits that Mr. Vanderhoof could have obtained a safety
cone to mark the hazard, or could have stood in the hallway to caution anyone coming
through. Yet Mr. Vanderhoof testified that it would have taken him longer to get a cone
than to get the towels, and Mr. DeAsis presents no contrary evidence.
"Gross negligence" has been defined as '''negligence substantially and appreciably
greater than ordinary negligence,' i.e., 'care substantially or appreciably less than the
quantum of care inhering in ordinary negligence.'" Johnson, 176 Wn. App. at 460
(quoting NisI, 67 Wn.2d at 331); see 6 WASHINGTON PRACTICE: WASHINGTON PATTERN
JURY INSTRUCTIONS: CIVIL 10.07 (6th ed. 2012) ("gross negligence" is "the failure to
exercise slight care"). To meet this burden of proof on summary judgment, the plaintiff
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must offer something more substantial than mere argument that the defendant's breach of
care arises to the level of gross negligence. CR 56(e); Boyce, 71 Wn. App. at 666.
Mr. DeAsis did not present anything approaching substantial evidence of acts or
omissions seriously negligent in character. No reasonable jury could have found the
YMCA grossly negligent. Summary judgment was appropriate. 2
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
~f
Korsmo, J.
F~~'S,
2 We need not address Mr. DeAsis's contention that the trial court's analytic
approach improperly included weighing evidence because we are engaged in de novo
review. We decide independently whether a genuine issue of fact required trial.
15