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Vodopest v. Macgregor

filed: March 28, 1996.


Appeal from Superior Court, King (91-2-11608-3) County; Honorable Ann Schindler, Judge. Judgment Date: 7-20-93.

Guy, J., Durham, C.j., Dolliver, Smith, Johnson, Madsen, Alexander, J.j., Pekelis, J.p.t., concurring. Talmadge, J. (concurring by separate opinion). Sanders, J. (did not participate)

Author: Guy


GUY, J.--This case involves a summary judgment which dismissed a negligence action based on an exculpatory clause in a preinjury release. We are faced with the question whether preinjury releases which bar a cause of action for negligence in the context of a medical research project violate public policy.


Both the Plaintiff and the Defendant are nurses and mountain trekkers. In the fall of 1989, Patricia Vodopest (Plaintiff) read an article in The Mountaineer magazine entitled, "Breathe Like a Sherpa at High Altitudes" written by Rosemary MacGregor (Defendant). The article described a 1989 "preliminary study" involving a trek to Everest base camp in the Himalayas to test a theory on a breathing technique to be used at high altitudes to alleviate "high altitude sickness." The article explained that a group of trekkers had been trained to use a breathing technique using a biofeedback breathing tracer and that some of the trekkers had been put through a respiratory challenge test by Dr. Robert Shoene at the Harborview pulmonary lab. The article explained that while on the trek, the group used an oximeter to measure oxygen saturation while trekking and concluded that the technique had proved successful in alleviation of high altitude sickness. Defendant MacGregor's article explained that her special technique of "altitude breathing" required weeks to months of training while climbing or hiking. The article concluded with the statement that MacGregor intended to "take a second research group" to the Himalayas in the spring of 1990 and asked for interested parties to contact her.

Plaintiff Vodopest later read a second article in the Boeing Alpine Club newsletter entitled, "Nepal, Himalayan Breathing Research Trek--WOULD YOU LIKE TO GO?" That article stated that in March 1990, a party of fifteen trekkers would be going to the Solo Khumbu area of Nepal to "continue research on a 'Sherpa Breathing' technique for high altitude survival." It stated that "we are repeating a successful research trip conducted in April of 1989" in which "seven trained breathers performed well at high altitude and were able to consistently eliminate all symptoms of altitude sickness." The trip leader was Rosemary MacGregor, a nurse and stress- management/biofeedback therapist. The article concluded with, "If you are interested in being a research subject on this trek, please call Rosemary . . ." and stated that "breathing training needs to take place as soon as possible."

Plaintiff Vodopest agreed to join the trek partly because MacGregor was a nurse and because MacGregor would be doing research on breathing techniques to eliminate high altitude sickness. MacGregor trained Vodopest on the breathing techniques.

One of the members of the trek group was Dr. Merrill Hille who was an associate professor at the University of Washington. MacGregor asked Professor Hille to collaborate on MacGregor's breathing research for the 1990 trek. Professor Hille and MacGregor submitted a "Research Proposal" on the "Effect of Biofeedback on Control of Ventilation and Performance at High Altitude" to the University of Washington Human Subjects Review Committee. The initial application which was submitted included biofeedback training involving the breathing technique; but since the training had already begun for the trekkers prior to the application of the research proposal, the University Committee declined to review that research proposal because the University does not review research which is already in progress. The application was reformulated and resubmitted to the University. Approval from the University, therefore, was limited to the part of the research involving the collection of the data (from the oximeter readings and questionnaires) from the trekkers and the control groups and did not include the training in the breathing. The research included two control groups comprised of Nepalese sherpas and porters, and random hikers. One of the documents in the proposal to the University indicated that the purpose of the study was to "evaluate the effects of breathing training using biofeedback (oximetry) at high altitudes" and stated that "the results of this study may provide information on potentially life-saving breathing practices at high altitude."

At Defendant MacGregor's request, Vodopest signed a form entitled "Release from Liability and Indemnity Agreement" which stated that she had been informed of all dangers of the trek including "illness" and that she released MacGregor "from all liability, claims and causes of action arising out of or in any way connected with my participation in this trek." The release also stated, "I personally assume all risks in connection with all activities, and further agree to indemnify and release Rosemary MacGregor, other group leaders, and all other participants from all liability, claims and causes of action or harm which may befall me arising from my participation in this trek."

A copy of this release agreement, different only in that it included Professor Hille and the University in addition to MacGregor as the released parties, was submitted to the University but was returned to MacGregor and Professor Hille stamped "INVALID FORM". The manager of the Human Subjects Division at the University explained that releases from liability for negligence are not allowed as a part of any approved study, as the federal government does not allow exculpatory language in human subject experimentation. Defendant MacGregor did not tell the trekkers that the release form had been rejected by the University's Human Subjects Division.

The trekkers left Seattle for Phakding, Nepal, on March 5, 1990. During the trek, Vodopest and the other trekkers recorded their oximetry readings and completed the environmental symptoms questionnaires. Vodopest began to exhibit symptoms of altitude sickness at 8,700 feet. MacGregor was her roommate and was aware of her symptoms. MacGregor said it might be a food problem and Vodopest continued to climb the next day. As she continued to ascend, her symptoms increased. She was nauseated, had a headache, was dizzy, could not eat or drink, was not urinating, and was exhausted and dazed. Defendant MacGregor gave her rehydration salts and Vodopest continued to ascend with MacGregor's physical support. Vodopest states that as a research subject, it was her responsibility to chart her symptoms twice a day and that since this was done on the form that MacGregor had her fill out for the research on altitude sickness, she expected MacGregor was reviewing them.

The day Vodopest reached 11,300 feet, she alleges she again reported being very ill but the group went on because MacGregor told Vodopest to continue to breathe correctly and she would be fine. Defendant MacGregor told Vodopest that she probably had the Khumbu flu and told her to "breathe away" the symptoms. On the trek from Phortse Tenge to Dole, Vodopest's symptoms became life-threatening. She allegedly developed cerebral edema demonstrated by symptoms of shortness of breath, racing heart beat, terrible head pain, nausea, vomiting, loss of balance, and a swollen face. Another nurse/trekker administered simple neurological tests which Vodopest failed. Defendant MacGregor allegedly suggested that Vodopest had an ear infection. The next morning Vodopest was sent down and was ultimately diagnosed with cerebral edema from altitude sickness. As a consequence, she states she suffered permanent brain damage.

Vodopest sued MacGregor, asserting claims for negligence and gross negligence.*fn1 Vodopest claimed that she suffered neurological damage because of MacGregor's negligence in promoting the use of her breathing technique, rather than advising Vodopest to descend to a lower altitude, as a remedy for her symptoms of high altitude sickness. Defendant MacGregor moved for summary judgment based on the exculpatory agreement contained in the preinjury release. Plaintiff Vodopest argued that the preinjury release of liability for negligence in the setting of a medical research project violated public policy. The trial court granted summary judgment on the action for negligence but refused to dismiss the cause of action for gross negligence, holding that a preinjury release is not valid with regard to gross negligence. The gross negligence claim was tried to a jury. The jury found in favor of the Defendant.

Vodopest appealed the dismissal of the negligence claim. The Court of Appeals, in a divided, unpublished opinion, upheld the summary judgment. The majority of the Court of Appeals concluded that the Nepal trip was primarily a trek and the release was therefore valid. The dissent found the facts sufficient to characterize the trek as a research project involving human subjects and concluded that experimenters owe research subjects a duty of reasonable care from which they should not be permitted to obtain relief even when the research activity overlaps with a high-risk, adult recreational activity. Both the majority and the dissent rely on, but reach different conclusions in applying the factors enunciated in, this Court's opinion in Wagenblast v. Odessa Sch. Dist. 105-157-166 J, 110 Wash. 2d 845, 758 P.2d 968, 85 A.L.R.4th 331 (1988).


The only issue before us is whether the preinjury release signed by the Plaintiff is effective to totally bar her cause of action for negligence. As discussed below, we determine it is not.


Exculpatory clauses in preinjury releases are strictly construed and must be clear if the exemption from liability is to be enforced. Scott v. Pacific West Mountain Resort, 119 Wash. 2d 484, 490, 834 P.2d 6 (1992). 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. Scott, 119 Wash. 2d at 492; Wagenblast, 110 Wash. 2d 845 at 856.

In this case, the parties do not argue the release was unclear. The jury determined that the Defendant's conduct did not fall greatly below the standard of care. There is no allegation that the language was inconspicuous. Therefore, the issue here is whether this release violates public policy.

The Defendant argues that this case involves only a high-risk sport, while the Plaintiff argues the case involves medical research using human subjects. If the case involves only a high-risk sport, then prior Washington law determines the issue.

Appellate decisions in Washington have consistently upheld exculpatory agreements in the setting of adults engaging in high-risk sporting activities. Blide v. Rainier Mountaineering, Inc., 30 Wash. App. 571, 636 P.2d 492 (1981) (mountain climbing); Boyce v. West, 71 Wash. App. 657, 862 P.2d 592 (1993) (scuba diving); Conradt v. Four Star Promotions, Inc., 45 Wash. App. 847, 728 P.2d 617 (1986) (automobile demolition derby); Hewitt v. Miller, 11 Wash. App. 72, 521 P.2d 244 (scuba diving), review denied, 84 Wash. 2d 1007 (1974); Garretson v. United States, 456 F.2d 1017 (9th Cir. 1972) (ski jumping applying Washington law); Scott, 119 Wash. 2d at 493 (adhering to prior law that an adult sports participant can waive liability for another's negligence; see also Thomas H. Winslow & Ernest J. Asprelli, Jr., Negligence Disclaimers in Hazardous Recreational Activities, 68 Conn. B.J. 356 (1994). Consistent with prior Washington law, we reiterate that releases are enforceable in the setting of adult high-risk sports activities.

Outside of these voluntary high-risk sports situations, our courts have often found preinjury releases for negligence to violate public policy. McCutcheon v. United Homes Corp., 79 Wash. 2d 443, 486 P.2d 1093 (1971) (striking down a landlord's exculpatory clause relating to common areas in a multifamily dwelling complex); Thomas v. Housing Auth., 71 Wash. 2d 69, 426 P.2d 836 (1967) (voiding a lease provision exculpating a public housing authority from liability for negligence); Reeder v. Western Gas & Power Co., 42 Wash. 2d 542, 256 P.2d 825 (1953) (finding a contractual limitation on the duty of a gas company against public policy); Sporsem v. First Nat'l Bank, 133 Wash. 199, 233 P. 641 (1925) (holding a bank which rents safety deposit boxes cannot, by contract, exempt itself for liability for negligence). Additionally, courts have not allowed those charged with a public duty, which includes the obligation to use reasonable care, to insulate themselves from that obligation by contract. Wagenblast, 110 Wash. 2d 845 at 849-50, n.8 (where a defendant is a common carrier, an innkeeper, or a public utility, an agreement discharging the defendant's performance will usually not be given effect); see also American Nursery Prods., Inc. v. Indian Wells Orchards, 115 Wash. 2d 217, 230, 232, 797 P.2d 477 (1990) (professional bailees may not limit their liability for negligence, but nonprofessional bailees may contract to limit their liability for negligence); Scott, 119 Wash. 2d at 494-95 (preinjury release of a party's liability for negligence which releases a child's cause of action for personal injuries, even in the context of high-risk sports, violates public policy and is unenforceable).

Prior to 1988, our courts decided the question whether one may be contractually insulated from liability for negligence on a case-by-case basis. In Wagenblast, we set forth a number of factors that have historically been relevant to courts in making that determination. In Wagenblast, we considered whether exculpatory clauses should be allowed as a condition of participation in interscholastic athletics and we held that the exculpatory clauses used by the school districts to release themselves from future negligence claims violated public policy and were therefore invalid. We explained that while parties may in some settings contract that one will not be liable for his or her own negligence to another, there are instances where public policy reasons for preserving an obligation of care owed by one person to another outweigh our traditional regard for the freedom of contract. Wagenblast, 110 Wash. 2d 845 at 849; Scott, 119 Wash. 2d at 493.

The majority of the Court of Appeals in the present case concluded that the trip was "primarily a trek" and that the breathing study was an incidental, informal experiment subsumed in what was otherwise a typical high-risk recreational trek. Vodopest v. MacGregor, No. 33123-O-I, slip op. at 10 (Wash. Ct. App. Dec. 27, 1994). The record, however, does not support this factual conclusion. In a motion for summary judgment, facts and all reasonable inferences therefrom must be construed in the light most favorable to the nonmoving party. Scott, 119 Wash. 2d at 502. Many documents and statements in the record support the conclusion that the medical research was a significant component of the trip. The article in The Mountaineer magazine authored by the Defendant solicited participation in a "research group" to go to the Himalayas. The Boeing newsletter article was entitled, "Nepal Himalayan Breathing Research Trek" and stated the group would "continue research on a 'Sherpa Breathing' technique for high altitude survival" and concluded, "If you are interested in being a research subject . . . call . . . ." A letter from the Defendant and Professor Hille to the trekkers began, "Dear Nepal High Altitude Experiment Participants" and stated that they were still in the process of having "our research project approved by the University of Washington's Human Subjects Review Board." The fact that the University only approved a portion of the research project does not affect whether the project was, in fact, a research project. The University declined approval of a part of the project because it had commenced prior to the application to the University. The Sherpa, Porter, Highlander Consent Form stated, "I, have agreed to be a control subject for this research." The "Sagarmatha Park Questionnaire" requesting data on high altitude sickness symptoms from randomly selected hikers stated, "We are a group from Seattle Washington and the University of Washington doing a study on high altitude sickness." A report by one of the trekkers to the Washington State Department of Health stated, "I was recently a member subject of a high altitude breathing research project/trek to Nepal lead by Rosemary MacGregor . . . for the purpose of studying abdominal pursed-lip breathing, oxygen levels in the blood, and their relationship to high altitude symptoms." The document entitled "Research Proposal" submitted to the University by the Defendant and Professor Hille was subtitled, "Effect of Biofeedback on Control of Ventilation and Performance at High Altitudes". The declaration of Dr. Schoene, the physician at the Harborview pulmonary research laboratory who conducted testing on the 1989 trekkers, stated that "a primary purpose of this 1990 trek to Nepal was an experiment on human beings, including Ms. Vodopest, to gather data on the trekkers' oxygen saturation at various altitudes during rest and exercise, utilization of a certain breathing technique at high altitudes, and comparison of data with the trekkers' symptoms and with data of a control group." The Defendant in her deposition stated, "I was the organizer and the leader of the research, and the people in Nepal were the leaders and the organizers of the trek in Nepal." We conclude from a review of the record that the Defendant represented the trip as a research project which utilized human subjects and that other participants and involved parties believed the trek involved a medical research experiment. Medical research includes a class of activities designed to develop or contribute to generalizable knowledge and generalizable knowledge consists of theories, principles, or relationships (or the accumulation of data on which they may be based) that can be corroborated by accepted scientific observation and inference. Robert J. Levine, Ethics and Regulation of Clinical Research 3 (2d ed. 1988); see Department of Health and Human Services Rules and Regulations, 45 C.F.R. ยง 46.102(d) (1994) (research means a systematic investigation designed to develop or contribute to generalizable knowledge). Ordinarily, whether a given endeavor constitutes medical research will be a question of fact. However, when the researcher represents to the potential subjects that the project involves medical research using human subjects, then we can find as a matter of law that the endeavor is a medical research project for the purpose of deciding the validity of a preinjury exculpatory clause. Not every set of facts will lead to a conclusion that an informal investigation is medical research. However, in this case, the experimentation was represented by the investigator to be research, sponsorship from the Human Subjects Division of the University of Washington was sought, and the participants considered themselves to be subjects in a medical research project to avoid the onset of a life-threatening illness.

The critical question here is not whether the trip was primarily a recreational trek or primarily a research project; the record is clear that it was both. Rather, the question is whether the alleged conduct giving rise to the cause of action for negligence occurred in the context of the mountain trekking or within the scope of the research project. The focus is whether the conduct that caused the injury was within the risks legally assumed in the exculpatory agreement. As discussed below, insofar as the Defendant attempts to use the agreement to release herself as a researcher from negligent acts performed in the furtherance of medical research, it is unenforceable. This does not necessarily mean the release is void for all purposes. A release may be effective for some, but not all, purposes. For example, a release may be effective for negligent conduct but would be unenforceable as it relates to gross negligence or willful conduct. Boyce, 71 Wash. App. at 663 n.6; Blide, 30 Wash. App. at 573-74. In the present case, if the plaintiff had fallen on a steep trail as the result of the Defendant's negligence, the release may have been effective to bar a cause of action for negligence (because the context would be only a high-risk sport). However, if the Defendant had misused a piece of medical equipment in the course of a medical experiment, the release would not be effective to bar the action if contracts which release a medical researcher for negligence are void as violative of public policy.

The question, whether the Defendant's conduct which allegedly caused the injuries occurred in furtherance of the medical research project, is a question of fact which must be decided by the finder of fact. Because there is some evidence in the record which could support a conclusion that the conduct which caused the injuries occurred within the scope of the medical research project, summary judgment is not appropriate on this question. The Plaintiff's affidavit repeatedly alleges that in spite of serious symptoms of high altitude sickness, Defendant MacGregor, who was conducting research on that condition, encouraged the Plaintiff to continue to use the breathing techniques to alleviate the symptoms and to continue to ascend. The Plaintiff states that "as a consequence of Rosemary's [MacGregor's] failure to recognize signs and symptoms of severe altitude sickness, the very thing that she was doing research on, I was encouraged to breathe and to go even higher and finally developed a life-threatening cerebral edema." Dr. Schoene's declaration states that "the breathing technique that Rosemary MacGregor promoted and trained the participants in was experimental in nature and, therefore, had not been found to be reliable in its alleviation of symptoms of altitude sickness. In fact, all the literature and discussions by experts on altitude sickness have always indicated that descent is the rule. The overzealous use by Ms. MacGregor of her breathing techniques to cure altitude symptoms, rather than evacuation of Ms. Vodopest to a lower altitude, when Ms. Vodopest started showing symptoms of moderate to severe altitude sickness, was a major cause of Ms. Vodopest's developing cerebral edema."

We conclude there was evidence (which creates an issue of fact) which could support a finding that the alleged negligence occurred during the course of the medical research. The question then becomes whether preinjury agreements, which release a researcher for liability for negligent conduct which ...

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