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Boyce v. West11/16/1993
/REF--> (1974).
Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wash. 2d 845, 758 P.2d 968, 85 A.L.R.4th 331 (1988) sets forth six factors, taken from Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33, 6 A.L.R.3d 693 (1963), which are to be 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 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. Wagenblast, at 851-55. Those factors are not present here. As noted in Hewitt, at 74, "extended discussion is not required to conclude that instruction in scuba diving does not involve a public duty. . . ." Accord, Blide v. Rainier Mountaineering, Inc., 30 Wash. App. 571, 574, 636 P.2d 492 (1981), review denied, 96 Wash. 2d 1027 (1982), in which the court noted: "Although a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest. . . ."
Madison v. Superior Court, 203 Cal. App. 3d 589, 250 Cal. Rptr. 299 (1988) is a factually similar case arising out of the death of a student enrolled in a scuba diving course offered through the YMCA. The Madison court applied the Tunkl factors and concluded a release signed by the scuba student did not involve a public interest. It then observed, in words that apply to this case as well:
Here, [decedent] certainly had the option of not taking the class. There was no practical necessity that he do so. In view of the dangerous nature of this particular activity defendants could reasonably require the execution of the release as a condition of enrollment. [Decedent] entered into a private and voluntary transaction in which, in exchange for an enrollment in a class which he desired to take, he freely agreed to waive any claim against the defendants for a negligent act by them. This case involves no more a question of public interest than does motorcross racing, sky diving, or motorcycle dirtbike riding.
(Citations omitted.) Madison, at 599. We do not find a public interest in a private school offering scuba diving instruction
to qualified students as an elective course. Upholding the release of Gonzaga does not violate public policy.
Mrs. Boyce further contends there are issues of material fact whether the defendants were grossly negligent. If Mr. West's negligent acts fell greatly below the standard established by law for the protection of others against unreasonable risk of harm, the releas
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