Wisconsin Supreme Court Reinforces its Stand Against the Enforcement of Waivers

By Doyice Cotten

1060243044_09b77d629f_zSeveral liability waivers have been enforced by Wisconsin appellate courts over the years; more important, however, is the fact that the Wisconsin Supreme Court has never enforced a liability waiver. With the advent of Roberts v. T.H.E. Insurance Company (2016), that record is still intact.

Patti Roberts attended a charity event at which Sundog Ballooning, LLC, offered tethered hot air balloon rides. After watching the event for a few minutes, Roberts decided to take a ride. While in line, Sundog gave Roberts a waiver of liability form that she was required to sign prior to riding in the hot air balloon.

After signing the form, Roberts waited in line for 20 to 30 minutes. During this time, strong winds caused one of the balloon’s tether lines to snap. The untethered balloon struck Roberts while she waited in line. She was knocked to the ground and suffered injury. The signed waiver form was found on the event grounds after Roberts sustained her injuries.

Sundog claimed protection based upon the waiver. It read in part:

 I expressly, willing, and voluntarily assume full responsibility for all risks of any and every kind involved with or arising from my participation in hot air balloon activities with Company whether during flight preparation, take-off, flight, landing, travel to or from the take-off or landing areas, or otherwise.

Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the ballooning activities . . . .

Roberts alleged negligence on the part of Sundog stating that the operator was inexperienced, should have known the weather forecast, and should have discontinued the ride when the wind increased.

Analysis of the Supreme Court

 

The court stated that Wisconsin case law does not favor exculpatory agreements citing three previous Supreme Court Ruling (Atkins v. Swimwest Family Fitness Center, 691 N.W.2d 334 (2005);  Yauger v. Skiing Enters., Inc., 557 N.W.2d 60 (1996);  Merten v. Nathan, 321 N.W.2d 173 (1982)). The court stated that “While this court has not held that an exculpatory clause is invalid per se, we have held that such a provision must be construed strictly against the party seeking to rely on it.”

The court pointed out that the Sundog’s waiver is 1) overly broad and all-inclusive. They explained that an agreement cannot be so broad “that it would absolve [the defendant] from any injury to the [plaintiff] for any reason.” In the waiver (below), note the breadth included in the underlined passages:

 

I expressly, willing, and voluntarily assume full responsibility for all risks of any and every kind involved with or arising from my participation in hot air balloon activities with Company whether during flight preparation, take-off, flight, landing, travel to or from the take-off or landing areas, or otherwise.

Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold [**410]  them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the ballooning activities…

The court said that the waiver was not only overly broad, but was ambiguous as to whether Roberts would have contemplated waiting in line for the ride to be covered by the waiver.

In addition, the court pointed out that the waiver 2) was a standard form agreement and 3) offered Roberts no opportunity to bargain or negotiate in regard to the exculpatory language in question. Each deficiency had been previously specified in one or more of the Atkins, Yauger, and Merten Supreme Court Cases. Other criteria previously specified include 4) that the contract served two purposes and 5) failed to sufficiently alert the signer of the significance of the agreement.

The court ruled, “As our prior case law demands, we will not uphold a waiver of liability that violates public policy.” So waiver law in Wisconsin remains the same – waivers will be enforced only if they adhere to the criteria specified by the court.

Photo Credit: Thanks to star5112 at Flickr.