Boyce v. West11/16/1993
is Boyce, as personal representative of her son's estate, sued Mr. West and Gonzaga for wrongful death. The complaint asserts Mr. West negligently caused Mr. Boyce's death and Gonzaga is vicariously liable for the negligence of its agent. The defendants denied negligence and asserted as alternative affirmative defenses the release of liability and assumption of risk provisions contained in the documents signed by Mr. Boyce.
Mr. West and Gonzaga moved for summary judgment. Mrs. Boyce resisted the motion and submitted parts of a deposition of Charles R. Lewis, a dive master, in which Mr. Lewis expresses his opinion that Mr. West was negligent in his instruction and supervision of the students. Mr. Lewis did acknowledge that with the 50 pounds of air Mr. Boyce still had when he reached the surface, he would have had enough air had he continued to exhale on the way up, and that free ascents have been made from greater depths. By memorandum decision entered April 15, 1992, the court granted the motion for summary judgment.
Release of Liability
Mrs. Boyce first contends neither of the releases of liability signed by Mr. Boyce cover Mr. West. We agree the spring release does not apply to Mr. West, but conclude the fall release does.
[1, 2] A release is a contract in which one party agrees to abandon or relinquish a claim, obligation or cause of action against another party. 6 M. Minzer, J. Nates, C. Kimball, and D. Axelrod, Damages in Tort Actions § 51.11 , at 51-9 (1991). As a contract, a release is to be construed according to the legal principles applicable to contracts. Stottlemyre v. Reed, 35 Wash. App. 169, 171, 665 P.2d 1383, review denied, 100 Wash. 2d 1015 (1983). Exculpatory clauses are strictly construed and must be clear if the release from liability is to be enforced. Scott v. Pacific West Mt. Resort, 119 Wash. 2d 484, 490, 834 P.2d 6 (1992).
The fall release, signed September 5, 1988, names only Gonzaga and PADI. Mrs. Boyce concedes it releases Gonzaga from liability unless a public interest is involved. The release does not name Mr. West, but it is undisputed that Mr. West was Gonzaga's employee. The general rule is that a preinjury release of the employer from liability also releases the employee. Restatement (Second) of Agency § 347(2) & comment b (1958); see 3 C.J.S. Agency § 379 (1973). Mr. West, in the performance of his job as an instructor for Gonzaga, owed Mr. Boyce no greater duty of care than Gonzaga, which by
contract relieved itself from liability for harm caused by ordinary negligence. Restatement (Second) of Agency § 347(2), comment b ; § 350, comment d (1958). Put another way,
[when] a valid agreement is entered into between an employer and a third person, exculpating the former from liability to the latter for ordinary negligence, an employee is ordinarily entitled to the same exculpation as his employer, even though he is not expressly named as a beneficiary of such exculpation.
Mayfair Fabrics v. Henley, 101 N.J. Super. 363, 375-76, 244 A.2d 344, 351 (1968). Mr. West, as an employee of Gonzaga, was covered by the agreement releasing Gonzaga from liability for negligent harm to Mr. Boyce.
Mrs. Boyce next contends the release of Gonzaga from liability violates public policy and should not be enforced. In Washington, contracts of release of liability for negligence are valid unless a public interest is involved. Hewitt v. Miller, 11 Wash. App. 72, 521 P.2d 244, review denied, 84 Wash. 2d 1007
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