January 2015 Bar Bulletin
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January 2015 Bar Bulletin

Beware of One-Click Liability Waivers

By Karen Sutherland

 

Increasingly, people click on "I accept" buttons in online forms without thinking about what it is they have accepted. Acceptance, however, can have significant consequences.

In Johnson v. Spokane to Sandpoint, LLC,1 attorney Robin Johnson filled out an online entry form for a long-distance relay. The online form required electronic agreement with the following language:

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 may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from participation in the event.2

In addition to the above language, Johnson 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 of negligence or carelessness on the part of persons on this waiver." The online form also stated that she "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 confirmation of my complete and unconditional acceptance of the terms, conditions, and provisions of this agreement.'"3

In her deposition, Johnson did not recall whether she clicked "yes" to the waiver language, but stated, "I assume I must have clicked because all that information is there and I did it. Nobody else did it for me." She also stated that she understood from a legal perspective what the release meant.4

During the long-distance relay, Johnson was hit by a car and severely injured. In the lawsuit that followed, Spokane to Sandpoint LLC sought and obtained summary judgment on the grounds that "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."5 On appeal, the Court of Appeals analyzed the six factors that are considered in determining whether exculpatory agreements violate public policy, which are:

(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;


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