Exculpatory Clause. Norbert Eelbode applied for a job with ...

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Exculpatory Clause. Norbert Eelbode applied for a job with Travelers Inn in the state of Washington. As part of the application process, Eelbode was sent to Laura Grothe, a physical therapist at Chec Medical Centers, Inc, for a preemployment physical exam. Before the exam, Eelbode signed a document that stated in part, I hereby release Chec and the Washington Readicare Medical Group and its physicians from all liability arising from any injury to me resulting from my participation in the exam. During the exam, Grothe asked Eelbode to lift an item while bending from the waist using only his back with his knees locked. Eelbode experienced immediate sharp and burning pain in his lower back and down the back of his right leg. Eelbode filed a suit in a Washington state court against Grothe and Chec, claiming that he was injured because of an improperly administered back torso strength test. Grothe and Chec cited the document that Eelbode signed, and filed a motion for summary judgment. Should the court grant the motion? Why or why not?

Question 2

In Cove Management v. AFLAC, Galgano, an independent contractor who solicited insurance business for AFLAC, rented office space from Cove under AFLAC's name. When Galgano defaulted on payments, Cove sued AFLAC contending that Galgano was its agent when he rented the office, so AFLAC was liable. The appeals court held that AFLAC:
 a. was not obligated to the lease because real estate deals must be in writing with the principal of the company agreeing to the lease
  b. was not obligated to the lease because Galgano did not have apparent authority to sign a lease that would bind AFLAC
  c. was obligated on the lease as its employee had apparent authority
  d. was not obligated on the lease, but its employee who told Galgano it was ok to enter into such a lease was obligated
  e. all of the other choices are correct

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Answer to Question 1

Exculpatory clause
The court granted the defendants' summary judgment motion, noting the extensive nature of the waiver. Eelbode appealed to a state intermediate appellate court, which reversed the lower court's judgment and remanded the case. The appellate court held that the document Eelbode signed did not bar his claim. The court acknowledged that an exculpatory clause may be enforced unless it violates public policy. In this case, the court found it significant that physical therapy services and health care services are regulated by the state. Physical therapists must be licensed with the secretary of health and must conform to standards regarding the appropriateness of physical therapy. The court also recognized the public importance of pre employment physicals. . . . And Chec holds itself out as willing to perform a pre employment physical for any party who seeks it. Chec also had a decisive advantage' in bargaining strength and used it to form an adhesion contract. Eelbode was required to take the physical pursuant to his employment application. He was sent to Chec and was required to sign the waiver to get the examination. Courts have long recognized that the disparity of bar-gaining power between employer and employee may force the employee to accept what is otherwise an untenable agreement. And the agreement Eelbode signed had all the characteristics of an adhesion contract. It was a standard printed contract, prepared by Chec and submitted to Eelbode with no opportunity to negotiate a more favorable agreement. Finally, as a result of the adhesion contract, Eelbode was placed completely under the control of Chec personnel during the exam, subject to the risk of carelessness by Chec's physical therapist. All of these factors led the court to hold that the clause was void.

Answer to Question 2

b