                                                                          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a non-profit organization,                    )         UNPUBLISHED OPINION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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     No. 31531-2-111
!    DeAsis v. YMCA
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j
-,

     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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No. 31531-2-111
DeAsis v. YMCA


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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No. 31531-2*III
DeAsis v. YMCA


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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No. 31531-2-III
DeAsis v. YMCA


       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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No. 31531-2-III
DeAsis v. YMCA


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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No. 31531-2-111
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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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No. 31531-2-III
DeAsis v. YMCA


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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No. 31531·2-III
DeAsis v. YMCA


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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No. 31531-2-111
DeAsis v. YMCA


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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No. 31531-2-111
DeAsis v. YMCA


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

                                             12 

No. 31531-2-111
DeAsis v. YMCA


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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No. 31531-2-III
DeAsis v. YMCA


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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No. 31531-2-II1
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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 

