                                                                          FILED 

                                                                       JULY 23, 2013 

                                                               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 


ROBIN JOHNSON and CRAIG                      )         No. 31042-6-111 

JOHNSON, Wife and Husband, and               )

the marital community composed               )

thereof,                                     )

                                             )
                     Appellants,             )
                                             )         UNPUBLISHED OPINION
             v.                              )
                                             )
SPOKANE TO SANDPOINT, LLC, a                 )
Washington corporation; MADILYN K.           )
YOUNG a single woman; DARREN                 )
YOUNG and TANYA YOUNG,                       )
Husband and Wife, and the marital            )
community composed thereof,                  )
                                             )

                  . Respondents.             )


       BROWN,   J. - Robin Johnson and Craig Johnson appeal the dismissal of their

personal injury suit against Spokane to Sandpoint, LLC after the trial court ruled the

preinjury release and waiver Ms. Johnson signed precluded recovery. The Johnsons

contend the release is unenforceable because it is ambiguous, offends public policy,

and because Spokane to Sandpoint was grossly negligent. We disagree and affirm.
No. 31042-6-111
Johnson v. Spokane to Sandpoint, LLC


                                          FACTS

       Spokane to Sandpoint promotes a long-distance relay race from the Spokane

area to Sandpoint, Idaho involving teams running a 185-mile course over two days, day

and night. The course is open, meaning it is not closed to public traffic.

       When registering online, the runners must electronically acknowledge a release

of liability and waiver, which states:

              I understand that by registering I have accepted and agreed
              to the waiver and release agreement(s) presented to me
              during registration and that these documents include a
              release of liability and waiver of legal rights and deprive
              me of the right to sue certain parties. By agreeing
              electronically, I have acknowledged that I have both read
              and understood any waiver and release agreement(s)
              presented to me as part of the registration process and
              accept the inherent dangers and risks which mayor may
              not be readily foreseeable, including without limitation
              personal injury, property damage or death that arise from
              participation in the event.

Clerk's Papers (CP) at 246. Ms. Johnson, an attorney, registered online for the 2010

Spokane to Sandpoint race and acknowledged the above waiver, plus she agreed to

"waive and release Spokane to Sandpoint . .. from any and all claims or liability of any

kind arising out of my participation in this event, even though that liability may arise out

negligence or carelessness on the part of persons on this waiver." CP at 246. Ms.

Johnson agreed she read the agreement carefully and understood the terms and she

signed the agreement, "FREELY AND VOLUNTARILY, WITHOUT ANY INDUCEMENT,

ASSURANCE OR GUARANTEE" and that her signature was "TO SERVE AS




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Johnson v. Spokane to Sandpoint, LLC


CONFIRMATION OF MY COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE

TERMS, CONDITIONS, AND PROVISIONS OF THIS AGREEMENT." CP at 248.

       Spokane to Sandpoint provided a race handbook to Ms. Johnson, explaining all

facets of the race, including crossing public highways and train tracks. The fourth leg of

the race crossed Highway 2 at its intersection with Colbert Road. At that location,

Highway 2 is a divided highway that runs north and south. It has two lanes in each

direction, separated by a median strip. A sign was posted on Colbert Road telling the

runners "caution crossing highway." CP at 128. Signs were posted along the race

route informing drivers that runners were running along the race route roads.

       As Ms. Johnson was crossing Highway 2, Madilyn Young was driving about 63

miles per hour southbound in the outside lane on Highway 2 approaching the Colbert

Road intersection. According to Ms. Young's statement to the police, she saw Ms.

Johnson crossing the northbound lanes of Highway 2 and saw her continue into the

southbound lanes without looking for cars. Ms. Young was unable to stop in time to

avoid a collision. Ms. Johnson suffered severe injuries.

       The Johnsons sued Spokane to Sandpoint, Ms. Young, and Ms. Young's

parents. The Johnsons dismissed their claims against Ms. Young and her parents

following a settlement.

       During Ms. Johnson's deposition, counsel for Spokane to Sandpoint asked her if

she understood that the release she signed "would ... release the entities for any

personal injury that might occur to you during the activity?" CP at 138. Ms. Johnson



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Johnson v. Spokane to Sandpoint, LLC


replied, "Yes, I understand that from a legal perspective completely." CP at 139. When

questioned about the online registration process, counsel asked:

             Q. Do you recall whether you clicked yes to the
             waiver language at all on the registration process?
             A. On the registration process I assume I must have
             clicked because all that information is there and I
             did it. Nobody else did it for me.

CP at 156.

       Spokane to Sandpoint requested summary judgment dismissal, arguing the

preinjury waiver and release agreed to by Ms. Johnson was conspicuous and not

against public policy and the Johnsons lacked the evidence of gross negligence

necessary to overcome the release. The trial court agreed and dismissed the

Johnsons' complaint.

                                       ANALYSIS

      The issue is whether the trial court erred in summarily dismissing the Johnsons'

negligence complaint. The Johnsons contend the release and waiver signed by Ms.

Johnson prior to her injury was invalid and unenforceable because it was ambiguous

and against public policy, and because Spokane to Sandpoint was grossly negligent.

      We review summary judgment de novo and engage in the same inquiry as the

trial court. Heath v. Uraga, 106 Wn. App. 506, 512,24 P.3d 413 (2001). Summary

judgment is appropriate if, in view of all the evidence, reasonable persons could reach

only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485,824 P.2d 483 (1992).

Where different competing inferences may be drawn from the evidence, the issue must



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Johnson v. Spokane to Sandpoint, LLC


be resolved by the trier of fact. Kuyper v. Oep't of Wildlife, 79 Wn. App. 732, 739, 904

P.2d 793 (1995).

       To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons

must establish Spokane to Sandpoint owed them a duty. Chauvlier v. Booth Creek Ski

Holdings, Inc., 109 Wn. App. 334, 339, 35 P.3d 383 (2001) (citing Tincani v. Inland

Empire Zoological Soc'y, 124 Wn.2d 121, 128,875 P.2d 621 (1994)). Whether such a

duty exists is a question of law. Id. The parties may, subject to certain exceptions,

expressly agree in advance that one party is under no obligation of care to the other,

and shall not be held liable for ordinary negligence. Chauvlier, 109 Wn. App. at 339.

       The function of a waiver provision is "to deny an injured party the right to recover

damages from the person negligently causing the injury." Scott v. Pac. W Mountain

Resort, 119 Wn.2d 484, 491, 834 P .2d 6 (1992). The general rule in Washington is that

a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act

falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.

Stokes v. Bally's Pacwest, Inc., 113 Wn. App. 442, 445,54 P.3d 161 (2002).

       In Washington, contracts releasing liability for negligence are valid unless a

public interest is involved. Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244 (1974). Six

factors are considered in determining whether exculpatory agreements violate public

policy. The court considers 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



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Johnson v. Spokane to Sandpoint, LLC


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 additjonal

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. Wagenblast v. Odessa Sch. Dist. 105-157-166J,

110 Wn.2d 845,851-55,758 P.2d 968 (1988) (citing Tunkl v. Regents of Univ. of Cal.,

60 Cal. 2d 92,32 Cal. Rptr. 33, 383 P.2d 441 693 (1963)). The Johnsons fail to

establish all six factors.

       First, 185-mile relay races are not regulated; second, Spokane to Sandpoint is

not performing an important public service such as a school; third, not all members of

the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had

no control over how Ms. Johnson ran or when she decided to cross Highway 2; fifth

there was no inequality of bargaining since Ms. Johnson could have easily chosen not

to participate and could have selected a different event; and sixth, while Spokane to



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Johnson v. Spokane to Sandpoint, LLC


Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the

race.

        Washington courts have not favored finding a public interest in adult recreational

activities. As noted in Hewitt, 11 Wn. App. at 74, "[e]xtended discussion is not required

to conclude that instruction in scuba diving does not involve a public duty." Similarly.

"[a]lthough a popular sport in Washington, mountaineering, like scuba diving, does not

involve public interest." Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571,574,

636 P.2d 492 (1981). Washington courts have come to the same conclusion regarding

tobogganing and demolition car racing. Broderson v. Rainer Nat. Park Co., 187 Wash.

399,406,60 P.2d 234 (1936), overruled in part by Baker v. City of Seattle, 79 Wn.2d

198,484 P.2d 405 (1971); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847,853,

728 P.2d 617 (1986).

        A preinjury waiver and release will not eXCUlpate a defendant from liability for

damages resulting from gross negligence. Vodopest v. MacGregor, 128 Wn.2d 840,

853,913 P.2d 779 (1996). "Gross negligence" is "negligence substantially and

appreciably greater than ordinary negligence," i.e., "care substantially or appreciably

less than the quantum of care inhering in ordinary negligence." Nist v. Tudor, 67 Wn.2d

322,331,407 P.2d 798 (1965); see 6 WASHINGTON PRACTICE: WASHINGTON PATTERN

JURY INSTRUCTIONS: CIVIL 10.07 (6th ed. 1997) ("gross negligence" is "the failure to

exercise slight care."). A plaintiff seeking to overcome an eXCUlpatory clause by proving

gross negligence must supply "substantial evidence" that the defendant's act or



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Johnson v. Spokane to Sandpoint, LLC


omission represented care appreciably less than the care inherent in ordinary

negligence. Boyce v. West, 71 Wn. App. 657, 665, 862 P.2d 592 (1993). To meet this

burden of proof on summary judgment, the plaintiff must offer something more

substantial than mere argument that the defendant's breach of care arises to the level of

gross negligence. CR56(e); Boyce, 71 Wn. App. at 666.

       Spokane to Sandpoint marked the roadways to warn both drivers and runners of

danger and provided a handbook to each runner advising about crossing busy

roadways and highways. Nothing in this record establishes any duty to do more.

       Our case is somewhat like Conradt where Mr. Conradt was hurt in an auto race.

45 Wn. App. at 848. He signed a release before being told of a change in the race

direction. 'd. Mr. Conradt argued the risk had been materially altered by that change

after he signed the release. Id. at 850. He explained he could not corner as well and

he had not understood the additional risk. Id. The race promoter requested summary

judgment based on the release. Id. at 848. The trial court dismissed Mr. Conradt's

complaint, finding the release was valid and the promoter's action did not amount to

gross negligence. 'd. at 852. The Conradt court affirmed, holding the promoter's

"conduct was not so substantially and appreciably substandard that it rendered the

release invalid." 'd. at 852.

       Similarly, the Johnsons fail to show Spokane to Sandpoint committed gross

negligence by failing to exercise slight care. See Woody v. Stapp, 146 Wn. App. 16,22,

189 P.3d 807 (2008) (when a standard of proof is higher than ordinary negligence, the



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Johnson v. Spokane to Sandpoint, LLC


nonmoving parties must show that they can support their claim with prima facie proof

supporting the higher level of proof.). Spokane to Sandpoint's conduct does not reach

gross negligence under the circumstances presented here.

       Finally, the Johnsons argue the release was ambiguous and not conspicuous.

Several Washington courts have analyzed waiver provisions to determine whether the

language was conspicuous. Factors in deciding whether a waiver and release provision

is conspicuous include: whether the waiver is set apart or hidden within other

provisions, whether the heading is clear, whether the waiver is set off in capital letters or

in bold type, whether there is a signature line below the waiver provision, what the

language says above the signature line, and whether it is clear that the signature is

related to the waiver. See Baker, 79 Wn.2d at 202; McCorkle v. Hall, 56 Wn. App. 80,

83,782 P.2d 574 (1989); Chauvlier, 109 Wn. App. at 342; Stokes, 113 Wn. App. at 448.

      The release executed by Ms. Johnson online clearly sets apart the release

language in either italicized letters or in all capital letters or both. The document was

conspicuous with a header stating, "WAIVER AND RELEASE OF LIABILITY,

ASSUMPTION OF RISK AND INDEMNITY AGREEMENT." CP at 246. The waiver

repeatedly warned Ms. Johnson that she was giving up her legal rights by signing the

waiver, with this clearly indicated above the signature line. Although the Johnsons

argue the waiver was ambiguous and, therefore inconspicuous, Ms. Johnson (an

attorney) acknowledged in her deposition that from a "legal perspective" she understood

the release she signed "would ... release the entities for any personal injury that might



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occur ... during the activity." CP at 138-39. Thus, no genuine issues of material fact

remain regarding ambiguity or conspicuousness.

       Given our analysis, we hold reasonable minds can reach but one conclusion; the

preinjury release and waiver signed by Ms. Johnson precludes her from claiming an

ordinary negligence duty by Spokane to Sandpoint, thus preventing her from seeking

liability damages for her injuries. The trial court correctly concluded likewise in

summarily dismissing the Johnsons' complaint.

       Affirmed.

       A majority of the panel has determined 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.


                                                         Brown, J.

WE CONCUR:



 orsmo, C.J.




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