Creative Recreation: Recreational Injury Cases Present Unique Challenges

BY CARSON PHILLIPS-SPOTTS

I’m a city kid—born and raised in Atlanta. Growing up, my idea of “outdoor recreation” was riding bikes through the neighborhood or playing pickup hoops at the park. An “extreme sport” was football practice on a muggy, 90-degree July day.

My understanding of these terms changed when I moved to Seattle. In the Pacific Northwest, I found a community enamored with getting outside. On a hike up Rattlesnake Ridge shortly after moving west, my breath was taken away (literally and figuratively) by the old-growth forest we navigated and the vibrant hue of the lake below. It seems like everyone in the region has a hobby that gets them moving or outside: water skiing on Lake Chelan, bouldering in Index, snowshoeing on Mount Baker, hiking the Pacific Crest Trail—the list goes on.

It is not surprising, then, that my injury practice has evolved to represent folks who have been hurt while engaging in the type of recreational activities that make the Pacific Northwest special. I have found that these cases require creativity, agility, preparation, and grit—the same qualities that a mountaineer may need to scale Mount Rainier or a mountain biker to navigate a black-diamond run. Below I discuss some foundational principles and common issues that arise in these types of cases.

Recreational Injury Cases Do Not Fit in a Box

Unlike practicing in certain, specialized fields—think labor or securities—where legal issues are governed by a single set of rules, recreational injury cases can hinge on myriad legal frameworks and concepts.

For example, take a case our firm handled recently where a young man was paralyzed after falling from the top of an indoor climbing wall in Pierce County. This case involved not only potential fault on the part of the gym for not having a reliable system in place to ensure all visitors are properly trained on how to use rented equipment, but also potential fault on the part of the manufacturer of the climbing harness, which turned out to have a design defect. And to complicate matters further, the harness was designed in France and manufactured in Malaysia.

In a single case, we relied on common law principles of negligence against the gym and statutory product liability law against the harness manufacturer.¹1 See RCW Chapter 7.72 et seq. This meant applying different standards (reasonableness for negligence versus strict liability for products) and contending with unique defenses (contributory negligence, product misuse).

We also had to serve French defendants through the Hague Conventions, establish that a Malaysian manufacturer “purposefully availed itself”²2 Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., 592 U.S. 351, 359 (2021). of doing business in Washington for personal jurisdiction, and grapple with French laws that prohibit French businesses from providing discovery in American courts.

This case illustrates the depth and complexity that may lie beneath seemingly simple recreational injury cases. These are not rinse-and-repeat cases. Who would imagine that an injury in a Tacoma climbing gym would result in a week of depositions in Paris?

What About Waivers?

We live in a time when you practically cannot walk down the street without signing a waiver. We sign them in mobile apps, cell phone user agreements, and any time we take our kids to a birthday party at a play center. Surely, waivers preclude most recreational injury cases, right? Not quite.

While it is true that pre-injury releases are required to participate in many recreational activities (think: rock climbing at a gym, skiing, or mountain biking at a managed park), it is important to understand what waivers can and cannot do.

In Washington, pre-injury releases are typically enforceable for recreational activities.³3 See Vodapest v. MacGregor, 128 Wn.2d 840, 848-49 (1996). Despite this, releases have limits. A pre-injury release may not, for example, absolve liability for grossly negligent or intentional conduct.⁴4 Id.; see also Johnson v. Spokane to Sandpoint, LLC, 176 Wn. App. 453, 460 (2013). So, even if there is a signed waiver, a case for gross negligence or for intentional conduct can still proceed.

Moreover, because pre-injury releases are technically contracts, a party challenging the enforceability of a release has available to them defenses that would void an ordinary contract. This includes arguments that the release was procedurally or substantively unconscionable.⁵5 See Hill v. Garda CL Nw., Inc., 179 Wn.2d 47, 55 (2013).

Procedural unconscionability looks at the circumstances surrounding the execution of the release, including whether the injured plaintiff “lacked meaningful choice” in signing it.⁶6 Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38, 56 (2020). A procedural unconscionability argument could arise, for example, where a plaintiff was required to pay a nonrefundable fee to go white water rafting before she ever saw the release. In that scenario, it could be argued that she lacked any meaningful choice: Whether she signed or not, she still had to pay.

Substantive unconscionability, on the other hand, focuses on the terms of the agreement itself. Courts may find that a contract is substantively unconscionable when it is “overly or monstrously harsh, is overly one-sided, shocks the conscience, or is exceedingly calloused.”⁷7 Hill, 179 Wn.2d at 55 (2013). Courts have observed that contracts may be substantively unconscionable if they severely limit the remedies available to one side, but not the other.⁸8 See e.g., Zuver v. Airtouch Comms., Inc., 153 Wn.2d 293, 318-19 (2004). In Zuver v. Airtouch Communications Inc., for example, the court struck down as unconscionable an arbitration agreement that purported to limit the plaintiff—and the plaintiff only—from seeking punitive damages.⁹9 Id. Familiarity with these principles is important for both plaintiffs’ lawyers and counsel advising companies in the outdoor/recreational space.

For another example, our firm recently represented a woman who was severely injured while participating in a guided recreational activity. We learned through our investigation that she had signed a release. When we saw it, we could hardly believe our eyes: It purported to absolve the operator of responsibility for any injuries, including those caused by gross negligence or intentional conduct. The release contained “no sue” and indemnification provisions that had the effect of precluding our client from any judicial relief; and, if she did sue and win, the release required her to pay back to the operator any judgment she obtained along with the operator’s attorney fees. At the same time, the operator could sue her if she broke a piece of equipment or accidentally damaged property.

Relying on the principles stated earlier, we were able to void these provisions and move our claims forward. And because the “no sue” provision contained an impermissible one-way fee shifting provision, we were able to obtain an award for attorney fees and costs under RCW 4.38.330.

So, while releases in recreational settings are typically viable, both plaintiffs and defense lawyers must know their limits and plan accordingly.

Risks Ahead

Beyond waivers, one of the most interesting and challenging parts of pursuing recreational injury cases is contending with the common belief that if someone decides to participate in an activity that involves some inherent risk (insert outdoor recreational activity here), that person accepts the risk of any injury that may come their way.

This belief system often finds its way into recreational injury cases through an assumption of risk defense. Of the four varieties of assumption of risk, implied primary is the most lethal for plaintiffs: If proven, it serves as a complete bar to the claims.¹⁰10 Gleason v. Cohen, 192 Wn.  App. 788, 794 (2016). Although we may informally equate engaging in an activity with accepting the risks (e.g., if you drive a car you may get in a crash), more is required for an assumption of risk defense. This distinction is important. To establish that a plaintiff impliedly assumed the risk, the defendant must show that the plaintiff voluntarily assumed a specific, known risk that is inherent in the sport or activity.¹¹11 See id; Scott v. Pac W. Mt. Resort, 119 Wn.2d 484, 497 (1992). What’s more, the “risk” assumed cannot be the result of defendant’s negligence that created or enhanced risks to the plaintiff.¹²12 Id.

This means that as lawyers we must dig beyond the simple explanation that a plaintiff’s injury was just part of the deal. We must ask: What actually caused the injury? Was it inherent in the sport? Was it enhanced by the defendant? Take a hypothetical zip-line fall caused by old, faulty equipment. Sure, if the plaintiff had not decided to go zip-lining, they would not have gotten hurt. But when we look at what caused the injury, we realize that the plaintiff did not knowingly assume the risk of receiving inadequate equipment, and that such a risk is not inherent in zip-lining (surely, some outfits provide working equipment). By looking beyond the convenient narratives, we better understand the root causes of the injuries and ways we can prevent them. The law supports this notion by requiring a showing that a plaintiff knowingly encountered a risk that is part and parcel to the activity; not simply that he decided to participate.

In sum, recreational injury cases are often complex and draw upon diverse legal principles. Though challenging, these cases are worth it: Outdoor recreation is a calling for many; consequently, it is important to ensure that these activities are accessible and safe for all Washingtonians.

NOTES

1. See RCW Chapter 7.72 et seq.

2. Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., 592 U.S. 351, 359 (2021).

3. See Vodapest v. MacGregor, 128 Wn.2d 840, 848-49 (1996).

4. Id.; see also Johnson v. Spokane to Sandpoint, LLC, 176 Wn. App. 453, 460 (2013).

5. See Hill v. Garda CL Nw., Inc., 179 Wn.2d 47, 55 (2013).

6. Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38, 56 (2020).

7. Hill, 179 Wn.2d at 55 (2013).

8. See e.g., Zuver v. Airtouch Comms., Inc., 153 Wn.2d 293, 318-19 (2004).

9. Id.

10. Gleason v. Cohen, 192 Wn.  App. 788, 794 (2016).

11. See id; Scott v. Pac W. Mt. Resort, 119 Wn.2d 484, 497 (1992).

12. Id.

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