COX, A.C.J.
An exculpatory clause is enforceable unless (1) it violates public policy, or (2) the negligent act falls greatly below the standard established by law for protection of others, or (3) it is inconspicuous. At issue in this case is whether the exculpatory clause in the registration form that Susan Petersen signed when she agreed to take a motorcycle training course from Gary Sorensen is unenforceable because it violates public policy. Under the test set out in Wagenblast v. Odessa School District, the training course is neither of great importance to the public nor a matter of practical necessity. While other characteristics of that test are present in this case, they are insufficient to invalidate the clause on public policy grounds. Accordingly, we reverse. Susan Petersen registered for a motorcycle education course offered by Gary Sorensen, through Puget Sound Motorcycle Education. The registration form included an exculpatory clause that we describe in more detail later in this in opinion. The form was provided by the State Department of Licenses (DOL) to the school. DOL requires the school to use that release form. After a day of classroom instruction, the class began training on motorcycles provided by the school, in a parking lot. During this practice, Petersen lost control of the motorcycle she was driving, crashed into a car in the parking lot, and was injured. To drive a motorcycle in Washington State, a motorist must have a valid driver's license with a special motorcycle endorsement. This special endorsement may be obtained by taking an examination and paying a fee. The DOL may waive all or part of the examination for persons who satisfactorily complete a voluntary motorcycle operator training and education program like that offered by Sorensen. The training program is voluntary and one may obtain the special license endorsement by taking the examination without taking the course. Petersen sued Sorensen, claiming that his negligence caused the injuries she suffered during her accident in the parking lot. The parties made cross motions for summary judgment. Petersen moved for partial summary judgment, asking the court to find that the release was invalid and ineffective to limit Sorensen's liability, and granting her `judgment on the ineffectiveness of the waiver to limit [Sorensen's] liability.' Sorensen moved for an order denying Petersen's motion, and for an order of summary judgment dismissing Petersen's complaint with prejudice. The trial court granted Petersen's motion for summary judgment, and denied Sorensen's motion to dismiss Petersen's lawsuit. The trial court denied Sorensen's motion for reconsideration of the summary judgment ruling.
Vodopest v. MacGregor, 128 Wn.2d 840, 848, 913 P.2d 779 (1996).
110 Wn.2d 845, 758 P.2d 968 (1988).
RCW 46.20.500.
RCW 46.20.505; RCW 46.20.515.
RCW 46.20.515.
We granted Sorensen's motion for discretionary review. The commissioner of the state supreme court denied Petersen's motion to transfer the matter to that court.
Exculpatory Clause.
We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party. We review questions of law de novo. The release Peterson signed stated, in relevant part:
CR 56(c).
Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).
Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
The undersigned participant and his/her parent or legal guardian (if under the age of 18 years) does hereby execute this release, waiver and indemnification for him/her self and his/her heirs, successors, representatives and assigns; and hereby agrees and represents as follows:
To release the (sponsor's name) Puget Sound Motorcycle Education its members, employees, agents, representatives and those governmental agencies and other organizations affiliated with this course including, but not limited to the Washington Department of Licensing, the Motorcycle Safety Foundation, its members, agents and representatives, from any and all liability, loss, damage, costs, claims and/or causes of action, including but not limited to all bodily injuries and property damage arising out of participation in the motorcycle training course referred to above, it being specifically understood participant and other [sic] of the operation and use by the undersigned participant and others of motorcycles.
If a release is clear, the general rule in Washington is that exculpatory clauses are enforceable unless (1) they violate public policy, or (2) the negligent act falls greatly below the standard established by law for protection of others, or (3) they are inconspicuous. Petersen concedes that neither (2) nor (3) of the above standards is applicable to this case. Thus, the only issue before us is whether enforcement of the release would violate public policy.
Vodopest, 128 Wn.2d at 848.
In Wagenblast, our supreme court adopted a list of six nonexclusive factors for determining whether exculpatory agreements violate public policy. Our supreme court has noted that the six factors are not the exclusive considerations to which a court may look in the determination of public policy, but, rather, general characteristics taken from prior court cases that can only give a `rough outline' of the type of settings in which exculpatory agreements have not been allowed. The source of the list was the California case Tunkl v. Regents of University of California. The six factors are:
Vodopest, 128 Wn.2d at 855.
Wagenblast, 110 Wn.2d at 851-52 (quoting 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)).
(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) the 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. In applying this test, our state supreme court stated that the more of the foregoing six characteristics that appear in a given exculpatory agreement case, the more likely the agreement is to be declared invalid on public policy grounds. Subsequently, the same court focused on the second of the six factors as one of the important characteristics on which Washington courts have focused in determining whether a particular exculpatory agreement is void as against public policy. Two of the factors are concededly met here. The parties do not dispute the third factor, that the school offered its services to any member of the public who sought them. And Sorensen does not argue that this was not a standard adhesion contract, thus effectively conceding the fifth factor. Three of the remaining factors, the first, fourth and sixth, although disputed, are easily met here, as well. The first factor asks whether the agreement concerns an endeavor of a type generally thought suitable for public regulation. As the parties concede, the Legislature and the DOL both regulate the provision of motorcycle training. The Legislature created a motorcycle safety education advisory board to assist the director of licensing in the development of a motorcycle operator training education program and outlined what the motorcycle examination must test. In Wagenblast and Vodopest, our supreme court held that their respective subjects, interscholastic sports and medical research on human subjects, were highly regulated. In those cases, a higher degree of regulation was a factor in favor of a finding that a release would violate public policy. But, as Sorensen argues, the Legislature also regulates recreational activities for which exculpatory releases are allowed, like skiing. In Chauvlier, this court noted that the Washington State Legislature had chosen to regulate recreational skiing by statute, and stated that thus `it is for the Legislature, and not the courts, to declare that liability releases in the recreational skiing context violate public policy.' The extent of regulation of motorcycle training is not as great as that of interscholastic sports or medical research on human subjects, but more like the regulation of skiing. Petersen's argument that she was required to take the course from Sorensen because there were no other providers in the Everett area, and that Sorensen is a major provider of the courses in the state, seems to be directed to the fourth factor, whether, 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. But this argument is not convincing. Petersen did not have to take any course in order to obtain a license. The Department of Licensing does not require that this specific course or any course be taken as a condition of issuing a motorcycle license. Even if we were to assume for purposes of argument that the `essential nature of the service' is the State's endorsement of the training course as a method of avoiding the examination, this does not create an unfair bargaining advantage because there was no need for Petersen to take the course at all. By contrast, in Wagenblast, our supreme court noted that '[n]ot only have interscholastic sports become of considerable importance to students and the general public alike, but in most instances there exists no alternative program of organized competition.' The court described the school district's position as `near-monopoly power.' Thus, the court concluded, the school districts possessed a clear and disparate bargaining strength. Petersen's argument that Sorensen's course was `alluring', as the Wagenblast court described interscholastic sports, is not convincing. Although taking the course provides some benefits that other options do not provide, the Wagenblast court noted that the attraction of interscholastic sports offered more than a few marginal benefits. For many sports, the court pointed out, some students remain in school and maintain academic standing because of their desire to participate in school sports. For some, interscholastic sports are a crucial step in gaining admission to college or beginning a career in professional sports. A discount on insurance and the opportunity to waive the skills test are just not analogous. None of those considerations is applicable here.
Wagenblast, 110 Wn.2d at 852-55.
Wagenblast, 110 Wn.2d at 852
Vodopest, 128 Wn.2d at 858.
RCW 46.20.520.
`The motorcycle endorsement examination must emphasize maneuvers necessary for on-street operation, including emergency braking and turning as may be required to avoid an impending collision.' RCW 46.20.515.
Wagenblast, 110 Wn.2d at 852-53; Vodopest, 128 Wn.2d at 856-57.
Ch. 79A.45 RCW, Skiing and Commercial Ski Activity.
Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 344, n. 28, 35 P.3d 383 (2001).
Petersen submitted into evidence a document taken from the Puget Sound Motorcycle Education Center website in January 2002 stating `PSME sites train over 60% of all students training in Washington State.' The only training provider in Everett listed on a document taken from the DOL's website that month was PSME. A different organization offered classes in Seattle and other nearby locations.
Wagenblast, 110 Wn.2d at 855.
The sixth factor is whether 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. The court in Vodopest noted that '[t]he element of a researcher's control over a subject is common to most medical research projects and is one of the reasons why such strict regulations are imposed.' The court explained that the relationship between investigator and subject has been described as a fiduciary relationship. In Wagenblast, our supreme court held that this factor was met because, as `a natural incident to the relationship of a student athlete and his or her coach, the student athlete is usually placed under the coach's considerable degree of control.' In Chauvlier, this court held that this factor was met because, although the plaintiff had control over which runs he chose to ski down, as well as how prudently he would ski, he was subject to the risk that Booth Creek, which owned the ski area in which he was injured, would be careless in maintaining the runs and trails. Similarly, in this case, Sorensen set up the training exercises that the class performed, and provided the motorcycles they used. Sorenson's argument that motorcycle training is distinguishable because an instructor cannot ride with the student, as an automobile driving instructor can, is not well taken. In Chauvlier, we held that this factor was met. Like motorcycle training, the ski area owner is responsible for the conditions in the area, and the operator of a ski area is no more able to accompany a skier on a run and control his or her movement than Sorenson was in control of Peterson's driving. We hold that these three factors are met here.
Vodopest, 128 Wn.2d at 859-60.
Wagenblast, 110 Wn.2d at 856.
Chauvlier, 109 Wn. App. at 344.
The remaining factor is the second factor, whether 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. In Vodopest, our supreme court cited with approval a California statute that described medical research involving human subjects as `vital for the benefit of mankind' and concluded that medical research is a matter of public importance. In Wagenblast, our supreme court held that interscholastic sports are a matter of public importance, noting the expenditure of time, effort and money; that such sports `represent a significant tie of the public at large to our system of public education;' and that `some students undoubtedly remain in school and maintain their academic standing only because they can participate in these programs.' In Eelbode v. Chec Medical Centers, Inc., this court held that, in light of increasing demands by employers that prospective employees submit to pre-employment physical examinations, these examinations were a matter of public importance. Any of these three activities might be considered a practical necessity to some members of the public. By contrast, motorcycle training, while of interest to the public, cannot be considered of great importance to the public, or a practical necessity, in the manner of these three examples. As Sorensen argues, it is not necessary to attend a motorcycle training course to obtain a license, or to learn to safely operate a motorcycle. While the public clearly has an interest in the courses, as evidenced by the Legislature's regulation and individuals' participation in the courses, this interest is not as vital as the interest in the continued survival of humankind, or the State's interest in educating high school students. While some people might arguably rely on motorcycles for transportation, and thus for employment, the connection is much more tenuous than that of pre-employment physicals required by employers.
Vodopest, 128 Wn.2d at 859.
Wagenblast, 110 Wn.2d at 853-54.
97 Wn. App. 462, 984 P.2d 436 (1999).
Eelbode, 97 Wn. App. at 471.
In short, of the cases cited by the parties here, this case is most similar to Chauvlier, in that the second factor, `perhaps most important,' is not met. While the other factors are met, there is no mathematical equation to apply. One of the important characteristics that Washington cases have identified when deciding if exculpatory clauses violate public policy is the practical importance of the activity in question. Our supreme court noted with approval the suggestion that `a survey of cases assessing exculpatory clauses reveals that the common determinative factor for Washington courts has been the services' or activities' importance to the public.' On balance, and particularly because the activity of motorcycle training cannot be considered a matter of great public importance or necessity, enforcement of the release at issue here does not violate public policy. Sorensen argues that this court should categorize motorcycle operation as a dangerous recreational activity, or high-risk sport. As he points out, Washington courts have traditionally enforced exculpatory releases in the context of these activities. Our supreme court in Vodopest stated, '[a]ppellate decisions in Washington have consistently upheld exculpatory agreements in the setting of adults engaging in high-risk sporting activities. Consistent with prior Washington law, we reiterate that releases are enforceable in the setting of adult high-risk sports activities.' More recently, this court upheld an exculpatory release in the context of recreational skiing, but expressly declined to do so on the basis that skiing is a `high-risk sporting activity.' We decline to hold that motorcycle training is a `high-risk sporting activity.' Although Petersen's personal motivation for learning to ride motorcycles was recreational, it cannot be said that motorcycle riding in general is a purely recreational activity. Many people rely on motorcycles as a primary form of transportation. And, unlike ski jumping, scuba diving, and automobile demolition derby participation, motorcycle operation on public roads affects the safety of the public in general. Motorcycle operation on public roads cannot be dismissed as a high-risk sporting activity.
Chauvlier, 109 Wn. App. at 345.
Vodopest, 128 Wn.2d at 858.
Vodopest, 128 Wn.2d at 858.
Vodopest, 128 Wn.2d at 848-49 (citing Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (1981), review denied, 96 Wn.2d 1027 (1982) (mountain climbing); Boyce v. West, 71 Wn. App. 657, 862 P.2d 592 (1993) (scuba diving); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 728 P.2d 617 (1986) (automobile demolition derby); Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244, review denied, 84 Wn.2d 1007 (1974) (scuba diving); Garretson v. United States, 456 F.2d 1017 (9th Cir. 1972) (ski jumping applying Washington law); Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 493, 834 P.2d 6 (1992) (adhering to prior law that an adult sports participant can waive liability for another's negligence).
Chauvlier, 109 Wn. App. at 345, n. 35.
Petersen argues that this court should follow the decision of the North Carolina Court of Appeals, which applied Tunkl to a case with similar facts, and held that enforcing an exculpatory release signed by a student in a voluntary motorcycle training class would violate public policy. Despite that court's application of the same general test that we apply, it is clear that North Carolina case law recognizes a very different determination of what kinds of activities are of such great interest to the public as to prevent the use of exculpatory releases. The court in Fortson relied on its earlier determination, in Alston v. Monk, that the practice of cosmetology, involving the use of hazardous chemicals, extensively regulated by the state with training and licensing requirements, and having the capacity to affect the health of the general public, was such a matter of public interest that exculpatory releases could not be enforced. Thus, the plaintiff's claim that she was injured when the defendants' negligence caused her hair to fall out was not barred by an exculpatory release she signed. The Fortson court noted that a `motorcycle safety training program evokes the same, if not greater, important level of public interest as cosmetology.' While the public interest in cosmetology is undoubtedly strong, it does not rise to the level of interests that Washington courts have thus far held to preclude the enforcement of exculpatory releases. North Carolina precedent is not persuasive in this case. By contrast, the Court of Appeal in Florida, applying the Tunkl factors, and rejecting arguments similar to those made by Petersen, held that a similar release could be enforced, because attendance at the motorcycle school was an available option, but not a requirement for obtaining a license for persons over 21, and thus attendance at the school was not shown to be a matter of practical necessity or an essential service. Under the Wagenblast test, enforcement of an exculpatory release in the provision of motorcycle training does not violate public policy, and the trial court erred as a matter of law in granting summary judgment for Petersen on this issue, and in denying Sorensen summary judgment dismissal of Petersen's claims.
Fortson v. McClellan, 131 N.C. App. 635, 638, 508 S.E.2d 549 (1998).
92 N.C. App. 59, 373 S.E.2d 463 (1988), review denied, 324 N.C. 246, 378 S.E.2d 420 (1989).
Alston, 92 N.C. App. at 64.
Fortson, 131 N.C. App. at 637.
Goeden v. CM III, Inc., 756 So.2d 1105 (2000).
We reverse the partial summary judgment in favor of Petersen and direct entry of summary judgment of dismissal in favor of Sorensen.
COLEMAN and AGID, JJ., concur.