Legal Memorandum: Pre-injury Releases in WA

Issue: Would a pre-injury release effectively release a horse racetrack from liability for

In many jurisdictions, courts disfavor pre-injury releases, and will strictly construe them or even find them unenforceable on a number of grounds. See Randy J. Sutton, Validity, Construction, and Effect of Agreement Exempting Operator of Amusement Facility from Liability for Personal Injury or Death of Patron, 54 A.L.R.5th 513 (1997 & 2011 Supp.).  For example, in several jurisdictions courts apply the “express negligence doctrine” which means that the release “must expressly list negligence as a claim being relinquished” and if a negligence claim is not so specified—regardless of whether it is clearly implied—the release is held to be ineffective to bar a negligence claim.  See Rickey v. Houston Health Club, Inc., 863 S.W.2d 148, 150 (Tex. Ct. App. 1993); O’Connell v. Walt Disney World Co., 413 So. 2d 444, 447 (Fla. Ct. App. 1982).

Unfortunately, the Washington Supreme Court has specifically rejected the express negligence doctrine.  Scott v. Pac. W. Mountain Resort, 119 Wash. 2d 484, 834 P.2d 6, 9-10 (1992).  That is, in Washington, express use of the word “negligence” in the release is not necessary and if release of negligence is within the scope of the language used, it should be found effective. Id.

            Nonetheless, even though Washington courts reject the express negligence doctrine they do recognize a number of bases for refusing to enforce a release:

1.                  It is inconspicuous.  Baker v. City of Seattle, 79 Wash. 2d 198, 484 P.2d 405, 407 (1971).  Where […]