The legal issue was whether the release, a pre-injury contract, signed by the plaintiff prevented the lawsuit. The court found it did.
We find the case of Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244 (1974), controlling with reference to the primary issues. "Absent some statite to the contrary, the generally accepted rule is that contracts against liability for negligence are valid except in those cases where a public interest is involved", (italics ours), 57 Am Jur. 2d Negligence § 23, at 366 (1971) (cited with approval in Hewitt, supra at 77), or where the negligent act falls greatly below the standard established by law for the protection of others against unreasonable risk of harm. McCutcheon v. United Homes Corp., 79 Wn.2d 443, 486 P.2d 1093 (1971); Hewitt v. Miller, supra at 77 n. 1; Restatment of Contracts § 574 (1932). Although a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest and the plaintiff has at no time complained that the alleged negligence here fell greatly below the standard estalished by law. Therefore, the exculpatory clause is valid and enforceable.
Before coming to the seminar, plaintiff filled out an application for participation as a student which contained a release and assumption of risk. The application was contained on one page and the release on another. When plaintiff sent the form to RMI, his letter of transmittal stated: "Enclosed you will find my signed release..." At his deposition, he testified that he had signed the release but in fact he had not signed it, merely having filled in his name on the application portion.
During the climb the plaintiff was injured being lowered into a crevasse.
The plaintiff contends (1) that such a release should be void against public policy, (2) lack of reference to negligence in the release renders it ineffective, (3) lack of specificity renders the release ineffective and not applicable to a risk or cause of injury not mentioned in the release, and (4) there were unresolved questions of fact as to whether plaintiff understood the release and agreed to its terms.
The defendant argued the release, or waiver, prevented the plaintiff from suing.
There can be no question that plaintiff knowingly agreed to the terms of the release. He read the release and believed that he signed it. He accepted the benefits, including a $500 fee for his services, as well as the course in mountaineering. There was objective manifestation of his understanding of the agreement and intent to execute the release in the prescribed form. There was therefore no unresolved question of fact.
Under Washington law, the terms of the contract had been met. The contract was an agreement not to sue, a release. A release is an agreement where in advance of any injury one party agrees not to sue the other party.
LAC comments: This is the first lawsuit in the United States dealing with claims from a mountaineering accident for a commercial mountaineering guide and outfitter. It recognizes that a valid release can prevent a personal injury claim. Since then there have been between approx. 80-90 similar cases. This judgment is typical for the common law system (US, South Africa, New Zealand), but you cannot rely on it all around the world.
In the US the releases or waivers are accepted in more than 40 US jurisdictions (states) unless you prove the lack of care (gross negligence) on the side of the provider of (mountaineering) services. In South Africa, the release is valid unless the actions causing the personal injury are proven as reckless and in New Zealand as grossly negligent. In the continental European legal system or in Iran the releases or waivers are not acceptable. For example, in the Czech Republic, the victim cannot give a valid consent to a personal injury threat while participating in a mountaineering course. Neither the doctrine of accepted risks nor the doctrine of consent of the victim would be acceptable in this case in other countries, where it might be a defense in the US. It is similar in Macedonia, Switzerland, or Iran. Case law related to releases is generally of crucial importance for mountaineering clubs organizing seminars, courses, and similar activities in the mountains. Since different jurisdictions have different approaches to release, mountaineering clubs should always find out how the law in their country or in the country where they organize the course treats release.
