Waiver Provision Case Analysis

The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous. Johnson v. UBAR, LLC, 150 Wash. App. 533, 538 (Wash. App. Div. 1, 2009). A liability waiver will not be upheld if the releasing language is so inconspicuous that a reasonable person could reach different conclusions as to whether the document was innocently signed. There are six elements in deciding whether a waiver and release provision is conspicuous or inconspicuous: (1) whether the waiver is set apart or hidden within other provisions, (2) whether the heading is clear, (3) whether the waiver is set off in capital
letters or in bold type, (4) whether there is a signature line below the waiver provision, (5) what the language says above the signature line, and (6) whether it is clear that the signature is related to the waiver. Id. at 538.