Hold Harmless Agreements

In Washington is that a hold harmless provision is unenforceable if violates public policy, or it is inconspicuous (in the “fine print”).[1]

Cases in which Washington courts have held waiver and release provisions unenforceable on public policy grounds have involved essential public services, including hospitals, housing, public utilities, and public education.[2]

Washington courts also held unenforceable an exculpatory clause relieving a landlord from liability for failing to maintain common areas. Thus, in spite of a hold harmless provision in the rental agreement, the landlord will be liable for injury caused by a failure to maintain the premises. The Court of Appeals held that a landlord cannot avoid by contract “common law rules of tort liability that exist in the landlord-tenant relationship” and that such a hold harmless provision in a rental agreement “offends the public policy of the state and will not be enforced by the courts.” [3]

Parents may not waive personal injury claims of minors, and such hold harmless agreements are not enforceable. “A parent does not have legal authority to waive a child's own future cause of action for personal injuries resulting from a third party's negligence.” [4]

There formal legal analysis involves six primary factors Washington Courts consider when deciding whether a release and waiver violates public policy:

  • the agreement concerns a business of a type generally thought suitable for public regulation;
  • the person seeking exculpation is engaged in a service which is of great importance to the public, which is often a matter of practical necessity for some members of the public;
  • the party seeking exculpation holds himself or herself out as willing to perform this service for any member of the public seeking it, or at least any member of the public coming within certain established standards;
  • because of the essential nature of the service, the party seeking exculpation possesses a decisive advantage of bargaining strength against members of the public seeking the service;
  • in exercising superior bargaining power the party seeking exculpation confronts the public with a standardized adhesion contract of exculpation and makes no provision for the purchaser to pay additional reasonable fees and obtain protection against negligence; and
  • the person or property of the public purchaser seeking such services is placed under the control of the seller or his agents.[5]


A hold harmless provision may not be enforced if it is in the fine print. Factors in deciding whether a waiver and release provision is conspicuous include:

  • whether the waiver is set apart or hidden within other provisions,
  • whether the heading is clear,
  • whether the waiver is set off in capital letters or in bold type,
  • whether there is a signature line below the waiver provision,
  • what the language says above the signature line, and
  • whether it is clear that the signature is related to the waiver.[6]

[1] Wagenblast v. Odessa Sch. Dist., 110 Wn.2d 845, 849, 758 P.2d 968, 970 (1988).

[2]  Shields v. Sta-Fit, Inc., 79 Wn.App. 584, 589, 903 P.2d 525 (Div. 3 1995), citing McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486P.2d 1093 (1971); Thomas v. Housing Auth., 71 Wash.2d 69, 426 P.2d836 (1967).Reeder v. Western Gas & Power Co., 42 Wash.2d542, 256 P.2d 825 (1953).

[3] McCutcheon v. United Homes Corp., 79 Wn.2d at 450.

[4] Scott By and Through Scott v. Pacific West Mountain Resort, 119 Wn.2d at 492.


[5] Wagenblast, 110 Wash.2d at 851-52, 758 P.2d 968; Boyce v. West, 71 Wash.App. 657, 663-64, 862 P.2d 592 (1993).

[6] See Baker v. City of Seattle, 79 Wash.2d 198,202, 484 P.2d 405 (1971); McCorkle v. Hall, 56 Wash.App.80, 83, 782 P.2d 574 (1989); Chauvlier v. Booth Creek Ski Holdings, 109 Wash.App. 334, 342, 35 P.3d 383 (2001); Stokes v. Bally’s Pacwest, Inc., 113 Wash.App. at 442, 54 P.3d 161 (2002).