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Eelbode v. Chec Medical Center9/17/1999
the transaction concerns a business 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) the party holds himself 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) as a result 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 his 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; (6) as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents. Vodopest 128 Wn.2d at 854-55 (citing Wagenblast, 110 Wn.2d at 851-52 (citing Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-101, 32 Cal. Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693 (1963))). The more Wagenblast characteristics that appear in an exculpatory agreement, the more likely the agreement will be found to violate public policy. Wagenblast, 110 Wn.2d at 852.
The Wagenblast factors favor a finding that the exculpatory language of the release violates public policy. Physical therapy services and health care services are regulated by the state. See RCW 18.74; RCW 18.100. Physical therapists must be licensed with the secretary of health and must conform to standards regarding the appropriateness of physical therapy. RCW 18.74.090; RCW 18.74.025. Furthermore, at least one court has recognized the public importance of pre-employment physicals: "We live in an age in which the drive for an increasingly productive workforce has led employers increasingly to require that employees subject their bodies (and minds) to inspection in order to obtain or maintain employment." Green v. Walker, 910 F.2d 291, 295 (5th Cir. 1990) (citation omitted) (holding that when a pre-employment physical is conducted as a condition of employment, the examination creates a relationship between the examining physician and the examinee and the physician has a duty to conduct the tests with due care). And Chec holds itself out as willing to perform a pre-employment physical for any party who seeks it.
Chec also had a "decisive advantage" in bargaining strength and used it to form an adhesion contract. Eelbode was required to take the physical pursuant to his employment application. He was sent to Chec and was required to sign the waiver to get the examination. Courts have long recognized that the disparity of bargaining power between employer and employee may force the employee to accept what is otherwise an untenable agreement. Wagenblast, 110 Wn.2d at 850. And the agreement Eelbode signed had all the characteristics of an adhesion contract. It was a standard printed contract, prepared by Chec and submitted to Eelbode with no opportunity to negotiate a more favorable agreement. Finally, as a result of the adhesion contract, Eelbode was placed completely under the control of Chec personnel during the exam, subject to the risk of carelessness by Chec's physical therapist.
We hold that Chec's release, tested against the Wagenblast factors, violates public policy and is, accordingly, void. Because the release is invalid as against public policy, it is also invalid
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