Exculpatory clauses—liability waivers signed before an injury occurs—are strictly interpreted under Washington law. For such a clause to be enforceable, it must be clear and unambiguous, it must not violate public policy, it cannot excuse conduct that falls significantly below the legal standard of care, and it must be presented in a conspicuous and understandable manner (Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 490, 834 P.2d 6 (1992)). If any of these conditions are not met, the clause will be invalid.
In the Vodopest case, there was no dispute over the clarity or visibility of the release language, and the jury did not find that the defendant’s conduct amounted to gross negligence. Therefore, the key legal issue became whether the clause violated public policy.
Washington courts draw a sharp distinction between exculpatory clauses used in voluntary, high-risk recreational activities and those used in contexts involving public duties or regulated professions.
Appellate decisions in Washington have consistently upheld exculpatory agreements in the setting of adults engaging in high-risk sporting activities. Blide v. Rainier Mountaineering, Inc., 30 Wash.App. 571, 636 P.2d 492 (1981) (mountain climbing); Boyce v. West, 71 Wash.App. 657, 862 P.2d 592 (1993) (scuba diving); Conradt v. Four Star Promotions, Inc., 45 Wash.App. 847, 728 P.2d 617 (1986) (automobile demolition derby); Hewitt v. Miller, 11 Wash.App. 72, 521 P.2d 244 (scuba diving), review denied, 84 Wash.2d 1007 (1974); Garretson v. United States, 456 F.2d 1017 (9th Cir.1972) (ski jumping applying Washington law); Scott, 119 Wash.2d at 493, 834 P.2d 6 (adhering to prior law that an adult sports participant can waive liability for another's negligence; see also Thomas H. Winslow & Ernest J. Asprelli, Jr., Negligence Disclaimers in Hazardous Recreational Activities, 68 Conn.B.J. 356 (1994). Consistent with prior Washington law, we reiterate that releases are enforceable in the setting of adult high-risk sports activities.
Outside of these voluntary high-risk sports situations, our courts have often found preinjury releases for negligence to violate public policy. McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971) (striking down a landlord's exculpatory clause relating to common areas in a multifamily dwelling complex); Thomas v. Housing Auth., 71 Wash.2d 69, 426 P.2d 836 (1967) (voiding a lease provision exculpating a public housing authority from liability for negligence); Reeder v. Western Gas & Power Co., 42 Wash.2d 542, 256 P.2d 825 (1953) (finding a contractual limitation on the duty of a gas company against public policy); Sporsem v. First Nat'l Bank, 133 Wash. 199, 233 P. 641 (1925) (holding a bank which rents safety deposit boxes cannot, by contract, exempt itself for liability for negligence). Additionally, courts have not allowed those charged with a public duty, which includes the obligation to use reasonable care, to insulate themselves from that obligation by contract. Wagenblast, 110 Wash.2d at 849-50, n. 8, 758 P.2d 968 (where a defendant is a common carrier, an innkeeper, or a public utility, an agreement discharging the defendant's performance will usually not be given effect); see also American Nursery Prods., Inc. v. Indian Wells Orchards, 115 Wash.2d 217, 230, 232, 797 P.2d 477 (1990) (professional bailees may not limit their liability for negligence, but nonprofessional bailees may contract to limit their liability for negligence); Scott, 119 Wash.2d at 494-95, 834 P.2d 6 (preinjury release of a party's liability for negligence which releases a child's cause of action for personal injuries, even in the context of high-risk sports, violates public policy and is unenforceable).
Prior to 1988, our courts decided the question whether one may be contractually insulated from liability for negligence on a case-by-case basis. In Wagenblast, we set forth a number of factors that have historically been relevant to courts in making that determination. In Wagenblast, we considered whether [913 P.2d 784] exculpatory clauses should be allowed as a condition of participation in interscholastic athletics and we held that the exculpatory clauses used by the school districts to release themselves from future negligence claims violated public policy and were therefore invalid. We explained that while parties may in some settings contract that one will not be liable for his or her own negligence to another, there are instances where public policy reasons for preserving an obligation of care owed by one person to another outweigh our traditional regard for the freedom of contract. Wagenblast, 110 Wash.2d at 849, 758 P.2d 968; Scott, 119 Wash.2d at 493, 834 P.2d 6.
The majority of the Court of Appeals in the present case concluded that the trip was "primarily a trek" and that the breathing study was an incidental, informal experiment subsumed in what was otherwise a typical high-risk recreational trek. Vodopest v. MacGregor, No. 33123-O-I, slip op. at 10 (Wn.Ct.App. Dec. 27, 1994). The record, however, does not support this factual conclusion. In a motion for summary judgment, facts and all reasonable inferences therefrom must be construed in the light most favorable to the nonmoving party. Scott, 119 Wash.2d at 502, 834 P.2d 6. Many documents and statements in the record support the conclusion that the medical research was a significant component of the trip. The article in The Mountaineer magazine authored by the Defendant solicited participation in a "research group" to go to the Himalayas. The Boeing newsletter article was entitled, "Nepal Himalayan Breathing Research Trek" and stated the group would "continue research on a 'Sherpa Breathing' technique for high altitude survival" and concluded, "If you are interested in being a research subject ... call...." A letter from the Defendant and Professor Hille to the trekkers began, "Dear Nepal High Altitude Experiment Participants" and stated that they were still in the process of having "our research project approved by the University of Washington's Human Subjects Review Board." The fact that the University only approved a portion of the research project does not affect whether the project was, in fact, a research project. The University declined approval of a part of the project because it had commenced prior to the application to the University. The Sherpa, Porter, Highlander Consent Form stated, "I, ______ have agreed to be a control subject for this research." The "Sagarmatha Park Questionnaire" requesting data on high altitude sickness symptoms from randomly selected hikers stated, "We are a group from Seattle Washington and the University of Washington doing a study on high altitude sickness." A report by one of the trekkers to the Washington State Department of Health stated, "I was recently a member subject of a high altitude breathing research project/trek to Nepal lead by Rosemary MacGregor ... for the purpose of studying abdominal pursed-lip breathing, oxygen levels in the blood, and their relationship to high altitude symptoms." The document entitled "Research Proposal" submitted to the University by the Defendant and Professor Hille was subtitled, "Effect of Biofeedback on Control of Ventilation and Performance at High Altitudes". The declaration of Dr. Schoene, the physician at the Harborview pulmonary research laboratory who conducted testing on the 1989 trekkers, stated that "[a] primary purpose of this 1990 trek to Nepal was an experiment on human beings, including Ms. Vodopest, to gather data on the trekkers' oxygen saturation at various altitudes during rest and exercise, utilization of a certain breathing technique at high altitudes, and comparison of data with the trekkers' symptoms and with data of a control group." The Defendant in her deposition stated, "I was the organizer and the leader of the research, and the people in Nepal were the leaders and the organizers of the trek in Nepal." We conclude from a review of the record that the Defendant represented the trip as a research project which utilized human subjects and that other participants and involved parties believed the trek involved a medical research experiment.
Medical research includes a class of activities designed to develop or contribute to generalizable knowledge and generalizable knowledge consists of theories, principles, or relationships (or the accumulation of data on which they may be based) that can be corroborated by accepted scientific observation and [913 P.2d 785] inference. Robert J. Levine, Ethics and Regulation of Clinical Research 3 (2d ed. 1988); see Department of Health and Human Services Rules and Regulations, 45 C.F.R. § 46.102(d) (1994) (research means a systematic investigation designed to develop or contribute to generalizable knowledge). Ordinarily, whether a given endeavor constitutes medical research will be a question of fact. However, when the researcher represents to the potential subjects that the project involves medical research using human subjects, then we can find as a matter of law that the endeavor is a medical research project for the purpose of deciding the validity of a preinjury exculpatory clause. Not every set of facts will lead to a conclusion that an informal investigation is medical research. However, in this case, the experimentation was represented by the investigator to be research, sponsorship from the Human Subjects Division of the University of Washington was sought, and the participants considered themselves to be subjects in a medical research project to avoid the onset of a life-threatening illness.
The critical question here is not whether the trip was primarily a recreational trek or primarily a research project; the record is clear that it was both. Rather, the question is whether the alleged conduct giving rise to the cause of action for negligence occurred in the context of the mountain trekking or within the scope of the research project. The focus is whether the conduct that caused the injury was within the risks legally assumed in the exculpatory agreement. As discussed below, insofar as the Defendant attempts to use the agreement to release herself as a researcher from negligent acts performed in the furtherance of medical research, it is unenforceable. This does not necessarily mean the release is void for all purposes. A release may be effective for some, but not all, purposes. For example, a release may be effective for negligent conduct but would be unenforceable as it relates to gross negligence or willful conduct. Boyce, 71 Wash.App. at 663 n. 6, 862 P.2d 592; Blide, 30 Wash.App. at 573-74, 636 P.2d 492. In the present case, if the plaintiff had fallen on a steep trail as the result of the Defendant's negligence, the release may have been effective to bar a cause of action for negligence (because the context would be only a high-risk sport). However, if the Defendant had misused a piece of medical equipment in the course of a medical experiment, the release would not be effective to bar the action if contracts which release a medical researcher for negligence are void as violative of public policy.
The question, whether the Defendant's conduct which allegedly caused the injuries occurred in furtherance of the medical research project, is a question of fact which must be decided by the finder of fact. Because there is some evidence in the record which could support a conclusion that the conduct which caused the injuries occurred within the scope of the medical research project, summary judgment is not appropriate on this question. The Plaintiff's affidavit repeatedly alleges that in spite of serious symptoms of high altitude sickness, Defendant MacGregor, who was conducting research on that condition, encouraged the Plaintiff to continue to use the breathing techniques to alleviate the symptoms and to continue to ascend. The Plaintiff states that "[a]s a consequence of Rosemary's [MacGregor's] failure to recognize signs and symptoms of severe altitude sickness, the very thing that she was doing research on, I was encouraged to breathe and to go even higher and finally developed a life-threatening cerebral edema." Dr. Schoene's declaration states that "the breathing technique that Rosemary MacGregor promoted and trained the participants in was experimental in nature and, therefore, had not been found to be reliable in its alleviation of symptoms of altitude sickness. In fact, all the literature and discussions by experts on altitude sickness have always indicated that descent is the rule. The overzealous use by Ms. MacGregor of her breathing techniques to cure altitude symptoms, rather than evacuation of Ms. Vodopest to a lower altitude, when Ms. Vodopest started showing symptoms of moderate to severe altitude sickness, was a major cause of Ms. Vodopest's developing cerebral edema."
We conclude there was evidence (which creates an issue of fact) which could support [913 P.2d 786] a finding that the alleged negligence occurred during the course of the medical research. The question then becomes whether preinjury agreements, which release a researcher for liability for negligent conduct which occurs in the course of the medical research, are void as against public policy.
Both Patricia Vodopest (the Plaintiff) and Rosemary MacGregor (the Defendant) are nurses and experienced mountain trekkers. In 1989, Vodopest read an article in The Mountaineer magazine written by MacGregor, titled “Breathe Like a Sherpa at High Altitudes.” The article described a previous expedition to Everest Base Camp, during which trekkers used a special breathing technique, developed by MacGregor and tested using biofeedback and oximeters, to help prevent high-altitude sickness. The article concluded with an invitation to join a second research trek planned for spring 1990.
Vodopest later saw a similar article in the Boeing Alpine Club newsletter, titled “Nepal, Himalayan Breathing Research Trek: WOULD YOU LIKE TO GO?” It described the upcoming trip as a continuation of a successful breathing experiment and explicitly invited people to become “research subjects.” Vodopest agreed to participate, drawn by the medical focus and MacGregor’s background as a nurse and stress-management therapist. MacGregor personally trained her on the breathing method before the trip.
MacGregor also recruited Dr. Merrill Hille, a University of Washington professor, to co-lead the research. Together, they submitted a research proposal to the university’s Human Subjects Review Committee. The initial application was rejected because training of participants had already begun, violating university policy. A revised version was approved, but only for data collection, not for the breathing training. The study included data from trekkers, Sherpas, and random hikers. Importantly, one document stated that the goal of the study was to evaluate potentially life-saving breathing techniques for use at high altitude.
Before departing, Vodopest signed a liability release form drafted by MacGregor, acknowledging the risks of illness and injury and agreeing not to hold MacGregor responsible. A version of the same form submitted to the University (which also named the University and Dr. Hille) was rejected as invalid. The Human Subjects Division explained that federal regulations prohibit liability waivers in studies involving human subjects. MacGregor did not inform the participants that the form had been rejected by the university.
The group left Seattle for Nepal in March 1990. During the trek, participants, including Vodopest, collected oxygen data using oximeters and filled out daily symptom questionnaires as part of the research. Vodopest began showing symptoms of altitude sickness early in the trip, including nausea, dizziness, fatigue, and confusion. MacGregor, who shared a room with her, reportedly dismissed the symptoms as food-related or due to the "Khumbu flu" and encouraged her to keep using the breathing technique and continue ascending.
As Vodopest’s symptoms worsened, eventually including severe headache, vomiting, loss of coordination, and facial swelling, another nurse on the trek conducted a neurological check, which Vodopest failed. Still, MacGregor allegedly downplayed the seriousness of the condition, suggesting an ear infection. Only the next day was Vodopest sent back down the mountain, at which point she was diagnosed with cerebral edema, a serious condition related to altitude sickness. She claims to have suffered permanent brain damage as a result.
In this case, the parties do not argue the release was unclear. The jury determined that the defendant's conduct did not fall greatly below the standard of care. There is no allegation that the language was inconspicuous. Therefore, the issue here is whether this release violates public policy.
The Defendant, Rosemary MacGregor, contends that the waiver is valid and bars the Plaintiff’s negligence claim. She characterizes the 1990 expedition as a voluntary, high-risk recreational activity, a mountain trek undertaken by informed adult participants. Citing established Washington case law that upholds exculpatory clauses in the context of adult participation in hazardous sports, the Defendant argues that the Plaintiff knowingly assumed the risks associated with high-altitude trekking, including illness and injury. Therefore, MacGregor maintains that she is not legally liable for the Plaintiff’s injuries, as the release covers the scope of activities in which they were engaged.
In contrast, the Plaintiff argues that the release is unenforceable because the activity in question was not merely recreational but constituted a medical research project involving human subjects. Vodopest asserts that the injuries she sustained were not incidental to ordinary trekking, but rather the result of the Defendant’s negligence in the conduct of an unapproved and experimental medical study. She emphasizes that she was recruited and trained as a research subject and that data was collected from her as part of the study. Vodopest also points to the University of Washington’s rejection of the same liability release form on the grounds that exculpatory language is not permitted under federal human subjects research regulations. Accordingly, she argues that the release violates public policy and cannot shield the Defendant from liability for research-related negligence.
The Plaintiff further contends that, even if the waiver could apply in recreational contexts, it cannot extend to negligent conduct that occurred during the course of a medical investigation. She maintains that public policy does not allow individuals conducting research on human subjects to disclaim responsibility for harm caused by their own failure to meet the applicable standard of care.
The court held that preinjury waivers releasing a medical researcher from liability for negligent conduct occurring in the course of medical research are unenforceable as a matter of public policy. Such clauses may not be used to avoid responsibility in contexts where the duty of care is grounded in the protection of human subjects, especially in activities resembling clinical or experimental research.
In this case, while the Defendant characterized the activity as recreational, the record contained substantial evidence suggesting that a structured research project was underway, involving human participants, data collection, and experimental breathing techniques intended to prevent high altitude sickness. This evidence includes promotional materials, consent-related documents, and communications referring to participants as research subjects.
The central legal issue was not whether the overall trek was recreational or scientific in nature, but rather whether the allegedly negligent conduct occurred within the scope of the research. If the Plaintiff’s injury was caused by the Defendant’s actions in her capacity as a researcher, the release cannot be used to bar the claim.
Because the record presents conflicting evidence as to the nature and context of the conduct that allegedly caused the injury, the court determined that a genuine issue of material fact exists. As such, the matter cannot be resolved through summary judgment. The case is therefore remanded to the trial court for further proceedings, allowing a jury to determine whether the Defendant’s actions occurred in the course of medical research and whether the waiver is enforceable in light of that finding.
This judgment is important as it highlights that even in jurisdictions where waivers are commonly used and generally accepted, there are situations in which a waiver—an agreement to waive liability for future harm—is not legally valid. One such situation, as confirmed by this U.S. case, is medical research involving human subjects.
LAC emphasizes that in many countries around the world, the enforceability of liability waivers is significantly limited. For example, in several European legal systems, civil codes contain provisions that render such clauses invalid in advance. A typical formulation, such as in Section 2898 of the Czech Civil Code, states that “any agreement that excludes or limits liability for harm caused to a person’s natural rights, or caused intentionally or through gross negligence, shall not be taken into account; in such cases, the right to compensation cannot be validly waived.”
In other words, it is a common legal principle that no waiver can protect against harm caused intentionally or by gross negligence, nor can it override the right to protection of fundamental human rights—most notably, the right to health.
Regarding the limitations on the use of waivers in the United States, we also refer to Blide v Rainier Mountaineering, Inc. included in the database.
