Wisconsin Sales Rep Statute
REGULATION OF TRADE
CHAPTER 134. MISCELLANEOUS TRADE REGULATIONS
Wis. Stat. § 134.93 (2012)
134.93. Payment of commissions to independent sales representatives.
In this section:
(a) “Commission” means compensation accruing to an independent sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar amount of orders or sales made by the independent sales representative or as a percentage of the dollar amount of profits generated by the independent sales representative.
(b) “Independent sales representative” means a person, other than an insurance agent or broker, who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission. “Independent sales representative” does not include any of the following:
1. A person who places orders or purchases products for the persons own account for resale.
2. A person who is an employee of the principal and whose wages must be paid as required under s. 109.03(3) “Principal” means a sole proprietorship, partnership, joint venture, corporation or other business entity, whether or not having a permanent or fixed place of business in this state, that does all of the following:
1. Manufactures, produces, imports or distributes a product for wholesale.
2. Contracts with an independent sales representative to solicit orders for the product.
3. Compensates the independent sales representative, in whole or in part, by commission.
(2) COMMISSIONS; WHEN DUE.
(a) Subject to pars. (b) and (c), a commission becomes due as provided in the contract between the principal and the independent sales representative.
(b) If there is no written contract between the principal and the independent sales representative, or if the written contract does not provide for when a commission becomes due, or if the written contract is ambiguous or unclear as to when a commission becomes due, a commission becomes due according to the past practice used by the principal and the independent sales representative.
(c) If it cannot be determined under par. (a) or (b) when a commission becomes due, a commission becomes due according to the custom and usage prevalent in this state for the particular industry of the principal and independent sales representative.
(3) NOTICE OF TERMINATION OR CHANGE IN CONTRACT.
Unless otherwise provided in a written contract between a principal and an independent sales representative, a principal shall provide an independent sales representative with at least 90 days prior written notice of any termination, cancellation, nonrenewal or substantial change in the competitive circumstances of the contract between the principal and the independent sales representative.
(4) COMMISSIONS DUE; PAYMENT ON TERMINATION OF CONTRACT.
A principal shall pay an independent sales representative all commissions that are due to the independent sales representative at the time of termination, cancellation or nonrenewal of the contract between the principal and the independent sales representative as required under sub. (2)
(5) CIVIL LIABILITY.
Any principal that violates sub. (2) by failing to pay a commission due to an independent sales representative as required under sub. (2) is liable to the independent sales representative for the amount of the commission due and for exemplary damages of not more than 200% of the amount of the commissions due. In addition, the principal shall pay to the independent sales representative, notwithstanding the limitations specified in s. 799.25 or 814.04, all actual costs, including reasonable actual attorney fees, incurred by the independent sales representative in bringing an action, obtaining a judgment and collecting on a judgment under this subsection.
WordPress Tags: Wisconsin,Sales,Statute,REGULATION,TRADE,CHAPTER,MISCELLANEOUS,REGULATIONS,Stat,Payment,DEFINITIONS,Commission,compensation,percentage,dollar,Independent,person,insurance,agent,broker,products,account,employee,Principal,partnership,corporation,Manufactures,product,Contracts,Compensates,COMMISSIONS,Subject,pars,custom,usage,industry,NOTICE,TERMINATION,CHANGE,CONTRACT,cancellation,CIVIL,addition,limitations,attorney,action,judgment,subsection,nonrenewal
Pagel v. Marcus Corporation, 2008 WI App 110; 313 Wis. 2d 78; 756 N.W.2d 447; 2008 Wisc. App. LEXIS 423Posted: February 24, 2012
Pagel v. Marcus Corporation, 2008 WI App 110; 313 Wis. 2d 78; 756 N.W.2d 447; 2008 Wisc. App. LEXIS 423
Briane F. Pagel, Jr. and Joy Pagel, Plaintiffs-Appellants, v. Marcus Corporation d/b/a Hilton Milwaukee City Center, Defendant, Milwaukee City Center LLC, Defendant-Respondent.
Appeal No. 2007AP1369
COURT OF APPEALS OF WISCONSIN, DISTRICT ONE
2008 WI App 110; 313 Wis. 2d 78; 756 N.W.2d 447; 2008 Wisc. App. LEXIS 423
June 3, 2008, Decided
June 3, 2008, Filed
APPEAL from a judgment of the circuit court for Milwaukee County: RICHARD J. SANKOVITZ, Judge. Cir. Ct. No. 2006CV1145.
COUNSEL: On behalf of the plaintiff-appellant, the cause was submitted on the briefs of J. David Krekeler and Anthony Baer of Krekeler Strother, S.C., of Madison.
On behalf of the defendant-respondent, the cause was submitted on the brief of Ronald G. Pezze, Jr. and Ahndrea R. Van Den Elzen of Peterson, Johnson & Murray, S.C., of Milwaukee.
JUDGES: Before Curley, P.J., Fine and Kessler, JJ.
OPINION BY: KESSLER
[**81] [***448] [*P1] KESSLER, J. Briane F. Pagel, Jr., and Joy Pagel (individually and collectively, Pagel) appeal from an order granting summary judgment to Milwaukee City Center LLC (MCC), dismissing all claims by Pagel against it. Pagel asserts that the trial court erred when it applied § 388 of the RESTATEMENT (SECOND) OF TORTS to the [***449] facts here, and concluded that the hazard, which Pagel claims caused his injury, was open and obvious to Pagel, thus relieving MCC of a duty to provide signs warning of the open and obvious hazard. We affirm.
[*P2] Pagel and his family visited an indoor water park owned by MCC in a hotel in Milwaukee. Among the water attractions used by Pagel and his family was a “Lily Pad Walk” which Pagel described as:
The lily pads were a couple of large floating cushions underneath a cargo-style net. Each pad was about [four feet] in diameter and had a vinyl-like coating on them.
You grabbed the cargo net and stepped onto the lily pads, holding yourself by your arms as you used the lily pads to try to go ahead. The lily pads were chained to the bottom but loosely so they could float around, and they didn’t float well enough to hold up even a little kid.
[*P3] Pagel testified that before he used the Lily Pad Walk, he “knew the lily pads could tip to cause you to fall into the water.” When he used the Lily Pad Walk the first time, Pagel said his hand slipped off the ropes, the lily pad moved away from his feet, and, as a result, he dropped into the water rather than hanging from the [**82] ropes. Pagel testified about his observation of the mechanics of the Lily Pad Walk during his first time across:
Q: When you used the Lily Pad attraction the first time, why didn’t you continue to hold on to the rope when the lily pad tipped?
A: Because I was going to drop into the water.
Q: Well, you did drop into the water. But my question was, why didn’t you continue holding on to the rope?
A: I didn’t want to be just be [sic] hanging from the rope. When I couldn’t get it by the foot, your only option at that point would be just to hang by the rope and try to go across just with your arms, I guess. And I – that didn’t seem like a smart move, so I just dropped.
Pagel acknowledged that before using the Lily Pad Walk he watched other people using it, saw people fall into the water using it, and saw people trying to traverse across the Lily Pad Walk while he was waiting in line to use it.
[*P4] Pagel alleged that he was injured when he used the Lily Pad Walk when his foot slipped from the lily pad, he lost his grip on the cargo net ropes above the water and lily pads, and fell into the water, injuring his back. The injury occurred the second time he used the Lily Pad Walk. His amended complaint alleged, as material to this appeal, negligence by MCC for failure “to provide a warning of the unsafe condition of the lily pad section of its water park.”
[*P5] Relying on Kessel ex rel. Swenson v. Stansfield Vending, Inc., 2006 WI App 68, 291 Wis. 2d 504, 714 N.W.2d 206, and § 388 of the RESTATEMENT (SECOND) [**83] OF TORTS, the trial court observed that [HN1] “where an injured person already knows what he or she needs to know to avoid a danger, the law does not impose a duty to warn on a person who provides a product for the use of another.” Based on the undisputed facts, the trial court then granted summary judgment dismissing Pagel’s negligence claim against MCC. Pagel appeals.
Standard of Review
[*P6] [HN2] In reviewing motions for summary judgment, we apply the standards set forth in WIS. STAT. § 802.08 (2005-06), 1 in [***450] the same manner as the trial court. Moua v. Northern States Power Co., 157 Wis. 2d 177, 184, 458 N.W.2d 836 (Ct. App. 1990). “Summary judgment is [properly] granted when there is no genuine issue of material fact and only a question of law is at issue.” Id. The historical facts here are not in dispute. “Whether facts fulfill a particular legal standard is a question of law to which we give de novo review.” Bantz v. Montgomery Estates, Inc., 163 Wis. 2d 973, 978, 473 N.W.2d 506 (Ct. App. 1991); see also DOR v. Exxon Corp., 90 Wis. 2d 700, 713, 281 N.W.2d 94 (1979), aff’d, 447 U.S. 207, 100 S. Ct. 2109, 65 L. Ed. 2d 66 (1980).
1 All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[*P7] [HN3] “Where the facts alleged to give rise to a duty are agreed upon, the question of the existence of a duty is one of law.” Rockweit v. Senecal, 197 Wis. 2d 409, 419, 541 N.W.2d 742 (1995) (quoting Olson v. Ratzel, 89 Wis. 2d 227, 251, 278 N.W.2d 238 (Ct. App. 1979)). Where the undisputed facts establish that a danger is open and obvious to the user of the product, as a matter [**84] of law there is no duty to warn the user of that danger and summary judgment is proper. Griebler v. Doughboy Recreational, Inc., 160 Wis. 2d 547, 561, 466 N.W.2d 897 (1991).
[*P8] The role an open and obvious danger plays in our tort law has evolved over a long period of time. Describing the open and obvious nature of the danger as a “defense,” the trial court in Griebler granted summary judgment, dismissing a claim of injury in a shallow water diving accident. Id. at 551, 554. The court of appeals reversed, relying on § 343A(1) of the RESTATEMENT (SECOND) OF TORTS (1965) and a related comment which required not only that the reasonable person/user must recognize that an open and obvious danger exists, but that person must also appreciate the gravity of the harm threatened by that danger. Griebler, 160 Wis. 2d at 556-57. Our supreme court rejected § 343A(1), noting that, as in all of the earlier diving cases, the condition of the water is the obvious danger, the risk is that the person diving will hit bottom, and the type of injury that might result (or the person’s knowledge thereof) is irrelevant. Griebler, 160 Wis. 2d at 558. The supreme court reversed our decision and reinstated summary judgment dismissing Griebler’s complaint, stating:
We hold that the open and obvious danger defense applies whenever a plaintiff voluntarily 2 confronts an open and obvious condition and a reasonable person in [**85] the position of the plaintiff would recognize the condition and the risk the condition presents.
Id. at 551 (footnote modified). Relying on “nearly twenty years of Wisconsin law holding that diving into water of unknown depth is an open and obvious danger,” 3 id. at 557, where Griebler admitted that he dove headfirst [***451] into water, whose depth he did not know, id. at 557, the supreme court described such conduct as “unreasonable as a matter of law,” id. at 561.
2 By footnote, the court recognized two conditions which would preclude invoking the open and obvious danger defense, namely if the injured person was distracted or if the injured person could not avoid the condition. Griebler v. Doughboy Recreational, Inc., 160 Wis. 2d 547, 551, 466 N.W.2d 897 (1991) (citing Waters v. U.S. Fid. & Guar. Co., 124 Wis. 2d 275, 369 N.W.2d 755 (Ct. App. 1985), and Maci v. State Farm Fire & Cas. Co., 105 Wis. 2d 710, 314 N.W.2d 914 (Ct. App. 1981), overruled on other grounds by Rockweit v. Senecal, 197 Wis. 2d 409, 423, 541 N.W.2d 742 (1995)).
3 The Griebler court relied on Scheeler v. Bahr, 41 Wis. 2d 473, 164 N.W.2d 310 (1969), and Davenport v. Gillmore, 146 Wis. 2d 498, 431 N.W.2d 701 (Ct. App. 1988), for the duration of these holdings. Griebler, 160 Wis. 2d at 557.
[*P9] Four years later, in Rockweit, when a small child walking with his mother fell into a campground fire pit with smoldering embers, our supreme court noted that in previous cases it had
abrogated the common law immunity [for owners of premises] by subsuming the concept of open and obvious danger into the consideration of common law negligence. In the ordinary negligence case, if an open and obvious danger is confronted by the plaintiff, it is merely an element to be considered by the jury in apportioning negligence and will not operate to completely bar the plaintiff’s recovery.
Id., 197 Wis. 2d at 423. This holding placed the characterization of an open and obvious danger as a defense to negligence in the context of applying a comparative negligence analysis. Pagel relies on specific Rockweit [**86] language 4  to argue that summary judgment was not proper here because the lack of warning is merely a fact to be considered in apportioning the negligence attributable to MCC. Pagel argues that a jury must decide whether MCC’s common law duty of care is overcome by the defense that there was an open and obvious danger which Pagel recognized before he was injured.
4 [HN4] “In the ordinary negligence case, if an open and obvious danger is confronted by the plaintiff, it is merely an element to be considered by the jury in apportioning negligence ….” Rockweit, 197 Wis. 2d at 423.
[*P10] Pagel’s reliance on this isolated language in Rockweit is misplaced. In Rockweit, a fire pit at a commercial campground was used in common by the large extended family of the child victim, who were camping together. Id. at 414. A family friend, who was staying at a different area of the campground, was invited to a social gathering with the extended family at a fire pit the night before the accident occurred. Id. at 415. The friend, who was also named as a defendant, did not select the fire pit site, took no part in setting, controlling or managing the fire, and did not use that fire pit while she was camping. Id. Her only connection with the fire pit was attending the social gathering to which she was invited. Id. at 415. When the friend and two members of the child’s extended family were the last to leave the social gathering, no one extinguished the embers. Id. at 415-16. The next morning the child was walking with his mother when he stumbled into the pit which still contained live embers. Id. at 416. The child alleged negligence by the friend and the others who were the last to leave and did not extinguish the embers. Id. The jury found the campground owner, the family members present, the child’s mother, and the friend were all negligent. Id.
[**87] [*P11] On appeal, our supreme court concluded that public policy considerations precluded imposing liability on the invited friend. Id. at 429. The court noted that fire is commonly known to be dangerous, id. at 427 (“The dangerous propensities akin to fire are commonplace to a campsite.”), and that the child’s mother, who was with the child when he fell into the pit, knew as much about the danger of the fire pit as the invited friend, id. at 428 (“[Mother] testified that she was fully aware that the fire pit constituted a hazard at the time of the accident and had not relied on a supposition that someone the [***452] night before might have doused the embers ….”). These considerations foreshadowed the court’s later decision to adopt § 388 of the RESTATEMENT (SECOND) OF TORTS in the context of the open and obvious danger of a chattel which is alleged to have caused injury.
[*P12] Five years after Rockweit, our supreme court in Strasser v. Transtech Mobile Fleet Service, Inc., 2000 WI 87, PP57-59, 236 Wis. 2d 435, 613 N.W.2d 142, adopted the RESTATEMENT (SECOND) OF TORTS § 388 (1965), which provides:
[HN5] One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
[**88] (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Strasser involved personal property–a ladder fabricated without safety treads on the rungs–which Strasser used many times before he slipped on a rung and fell. Id., 236 Wis. 2d 435, P19. Our supreme court did not overrule Rockweit (which involved only real property–a fire pit in the ground). Strasser, 2000 WI 87, 236 Wis. 2d 435, P60, 613 N.W.2d 142. Rather, by adopting § 388, the supreme court adopted the law of a real property owner’s responsibility to invitees to codify the common law duty of due care owed by the provider of personal property to the user of personal property when the use for which the property is intended causes injury. Although somewhat awkwardly stated in the negative, § 388(1) establishes that when the danger is open and obvious to a reasonable person, warning of what the reasonable person already knows is unnecessary; thus, the failure to warn cannot be negligent. Strasser, 2000 WI 87, 236 Wis. 2d 435, PP59-60, 613 N.W.2d 142.
[*P13] The adoption of RESTATEMENT (SECOND) OF TORTS § 388 moved the open and obvious danger to the level of being not only a jury issue as a defense to negligence when the material facts of whether the danger is open and obvious are disputed, but also removed any duty to warn from the negligence calculus when the undisputed material facts establish that the danger is open and obvious and the user recognizes/observes/knows of the danger. Approximately four years after Strasser, in Mohr v. St. Paul Fire & Marine Insurance Co., 2004 WI App 5, 269 Wis. 2d 302, 674 N.W.2d 576 (Ct. App. 2003), we discussed § 388(b), noting that:
[**89] As the court explained in Strasser, one of the situations under § 388(b) in which a supplier or manufacturer has no duty to warn of a danger is when “‘a mere casual looking over will disclose [the dangerous condition] unless the circumstances under which the chattel is supplied are such as to make it likely that even so casual an inspection will not be made.’” … When danger is obvious from a mere casual looking over, the supplier or manufacturer has reason to believe that the user will realize the danger.
Mohr, 2004 WI App 5, 269 Wis. 2d 302, P23, 674 N.W.2d 576 (citing Strasser, 2000 WI 87, 236 Wis. 2d 435, PP58-59, 613 N.W.2d 142).
[***453] [*P14] Mohr presented a factual dispute as to whether a diving platform used by a high school for racing dives into 3.5 feet of water, rather than 5 feet of water, was something that a casual observation would disclose as dangerous. Id., P3 (discussing RESTATEMENT (SECOND) OF TORTS § 388 cmt. k). We concluded that summary judgment was inappropriate, not because a jury must always decide whether a danger is open and obvious, but because the facts material to that question were disputed–one high school swim coach had one view, and another swim coach at the same high school had a different view. Id., PP17-18, 25.
[*P15] Later, in Kessel, we held there was no duty to warn of danger from steaming water coming from a hot water dispenser (provided in a hospital waiting room to let patients’ families make hot chocolate) where the hot temperature was obvious from the steam, and both parents admitted they took precautions because they knew that hot water could injure their young child (who tipped the cup and was injured by the scalding water). Id., 291 Wis. 2d 504, PP3-4, 23, 32. We discussed whether Strasser held that RESTATEMENT (SECOND) OF TORTS § 388(1) inevitably required a warning to comply with the duty of care:
[**90] In essence, the court in Strasser concluded that RESTATEMENT (SECOND) OF TORTS § 388 and cmt. k defined the standard of ordinary care in that situation: “This exception in cmt. k recognizes that a warning is not necessary to satisfy the standard of ordinary care when the condition at issue is known to the user.“
Kessel, 2006 WI App 68, 291 Wis. 2d 504, P21, 714 N.W.2d 206 (citation and brackets omitted; emphasis added).
[*P16] As we explained in Kessel, where the supplier of the tangible property has reason to believe that casual inspection will disclose the danger, and the user is aware of the danger, RESTATEMENT (SECOND) OF TORTS § 388 does not require a warning. Kessel, 2006 WI App 68, 291 Wis. 2d 504, P21, 714 N.W.2d 206. Here, it is undisputed that Pagel used the Lily Pad Walk once without injury. It is also undisputed that before, or during, his first use, Pagel personally observed how the Lily Pad Walk worked, knew from observation and experience that the lily pads were not stable, knew that they could not hold up even a small child, and that because of their obvious instability, the only alternatives available to users of the Lily Pad Walk were to drop or fall into the water 5 or use their hands to hold on to the cargo net ropes above to cross the area hand over hand. On his first use of the Lily Pad Walk, Pagel chose to get wet rather than travel by hand on the cargo net ropes. Thus, he knew both from experience and from observation that when the pad moved, the only two choices were to drop or fall into the water or to use his hands to hold onto the cargo net ropes to cross the [**91] area. The danger–that the pads would move–was open and obvious. The only ways to avoid the danger while using the Lily Pad Walk–get wet or travel hand over hand on the cargo net ropes–were equally open and obvious.
5 It would seem that the primary purpose of a water park is to get into the water. One would expect that the possibility of getting wet, or even drenched, is the very attraction that brings visitors to these facilities.
[*P17] The terms of RESTATEMENT (SECOND) OF TORTS § 388 apply here. MCC supplied the Lily Pad Walk in the water park for use by visitors to the water park. Section 388(1) (“One who supplies … a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel” under certain conditions.). MCC is liable if it “has reason to know [***454] that the chattel is likely to be dangerous for the use for which it is supplied.” Id. The lily pads were obviously unstable, tending to cause (or allow) users to fall into the water, or to traverse the area using their hands on the cargo net ropes. The “danger” of falling into the water or the “danger” of crossing by hands on ropes is the very purpose of the Lily Pad Walk. These “dangers” are not hidden in any way. These properties were apparent to Pagel before and/or during his uneventful first use of the Lily Pad Walk. Section 388(b) imposes liability if the supplier of the product “has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition.” Id. (emphasis added). Here, the converse is the fact. Because the mechanics of the moving lily pads and cargo net ropes for hand use were open and obvious to anyone who looked, MCC had reason to believe these “dangers” would be immediately apparent to any reasonable person. Hence, as in Strasser, where the lack of safety treads on the ladder was obvious to anyone who looked, and specifically known to Strasser who used the treadless ladder multiple times before his injury, the liability imposed by § 388(b) is not applicable here, where MCC had no [**92] reason to believe these conditions would not be immediately apparent to users of the Lily Pad Walk, and these dangers were specifically known to Pagel, in part because he had used the Lily Pad Walk before the use during which he was injured.
[*P18] Pagel urges us to adopt RESTATEMENT (SECOND) OF TORTS § 343A(1) and apply it to his case. As we explained above, when we relied on the § 343A(1) analysis in Griebler, our supreme court rejected our analysis and overruled our conclusion. See P8, supra. [HN6] It is not our role to reject our supreme court’s policy conclusions. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997):
[HN7] [T]he supreme court’s primary function is that of law defining and law development. The supreme court, unlike the court of appeals, has been designated by the constitution and the legislature as a law-declaring court. The purpose of the supreme court is to oversee and implement the statewide development of the law. The supreme court is the only state court with the power to overrule, modify or withdraw language from a previous supreme court case.
(Citations and internal quotation marks omitted.)
[*P19] Where, based on the undisputed facts, the dangerous condition of a chattel is open and obvious to the reasonable user, no warning is required under RESTATEMENT (SECOND) OF TORTS § 388(1), and summary judgment dismissing a negligence claim premised on failure to warn is proper.
By the Court.–Judgment affirmed.
If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.
|Alaska||Alaska: Sec. 09.65.292||Sec. 05.45.120 does not allow using a release by ski areas for ski injuries|
|Arizona||ARS § 12-553||Limited to Equine Activities|
|Colorado||C.R.S. §§13-22-107||Some commentators consider the statute a little weak|
|Florida||Florida Statute § 744.301 (3)|
By Case Law
|California||Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)|
|Florida||Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454||Allows a release signed by a parent to require arbitration of the minor’s claims|
|Florida||Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147||Release can be used for volunteer activities and by government entities|
|Massachusetts||Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384|
|Minnesota||Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299|
|North Dakota||McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3|
|Ohio||Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)||Maybe only for non-profits|
|Wisconsin||Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1||However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 voided all releases in the state|
On the Edge, but not enough to really rely on
|North Carolina||Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741||Ruling is by the Federal District Court and only a preliminary motion|
What do you think? Leave a comment.
Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
Keywords: #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #minor, #release, #ParentSignature, #NC, #NorthCarolina, #Alaska, #AK, #AZ, #Arizona, #CO, #Colorado, #Florida, #FL, #CA, #California, #MA, #Massachusetts, #Minnesota, #MN, #ND, #NorthDakota, #OH, #Ohio, #WI, #Wisconsin, #Hohe, #SanDiego, #SanDiegoUnifiedSchoolDistrict, #GlobalTravelMarketing, #Shea, #Gonzalez, #CityOfCoralGables, #Sharon, #CityofNewton, #Moore, #MinnesotaBaseballInstructionalSchool, #McPhail, #BismarkParkDistrict, #Zivich, #MentorSoccerClub, #Osborn, #CascadeMountain, #Atkins, #SwimwestFamilyFitnessCenter,
Wisconsin Recreational Use Statute prevents lawsuit over accidental drowning of guests at sports clubPosted: November 15, 2010
WI Supreme Court thoroughly reviews the definition of non-profit in examining the recreational use statute
Trinidad v. Capitol Indemnity Corporation, 2008 WI App 36; 308 Wis. 2d 394; 746 N.W.2d 604; 2008 Wisc. App. LEXIS 50 aff’d Trinidad v. Capitol Indemnity Corporation, 2009 WI 8; 315 Wis. 2d 324; 759 N.W.2d 586; 2009 Wisc. LEXIS 3
This is always a tough situation when the court has to apply the law no matter how sad the facts of the case. However, this is how our country works, the law controls no matter how hard the heartstrings are tuagged.
In this case, a family went to a wildlife area that was incorporated as a non-profit hunting club. While there, two young girls drowned. The parents sued the non-profit corporation for their loss. The trial court granted the defendants’ motion for summary judgment, which was upheld by the appellate court and the Wisconsin Supreme Court.
The legal issue was the application of the Wisconsin Recreational Land Use Statute, Wis. Stat. § 895.52 (2009). The state has different laws on how the protection of the recreational use statute will be applied based on the type of landowner. In this case, a landowner who is a non-profit, has broader protection if there is a fee charged for the use of the land.
The group that invited the plaintiffs to the hunting club paid the fee for the use of the land, not the plaintiffs. The plaintiffs were on the land for free.
The Wisconsin Recreational Use Statute first defines a non-profit as “Nonprofit organization” means an organization or association not organized or conducted for pecuniary profit.” Wis. Stat. § 895.52. The statute then defines the activities that will be protected by the statute.
Recreational activity” includes hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, sport shooting and any other outdoor sport, game or educational activity
The families activities, picnicking and water sports, are specifically listed as protected.
The immunity afforded by the statute is specific.
1. A duty to keep the property safe for recreational activities.
2. A duty to inspect the property, except as provided under s. 23.115 (2)
3. A duty to give warning of an unsafe condition, use or activity on the property. (b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owners property or for any death or injury resulting from an attack by a wild animal.
The statute then provides additional protection for non-profit entities as defined by the statute.
Subsection (2) does not limit the liability of a nonprofit organization or any of its officers, employees or agents for a death or injury caused by a malicious act or a malicious failure to warn against an unsafe condition of which an officer, employee or agent of the nonprofit organization knew, which occurs on property of which the nonprofit organization is the owner.
The statute goes further to allow property owners to collect up to $2000.00 per year for the use of the property.
The court in Trinidad concentrated on the definition of a non-profit. The plaintiff argued the organization had not kept its articles of incorporation current with the changes in the statute over the years. The Wisconsin Statutes concerning Wisconsin non-profits had changed several times since the defendant had been incorporated as a non-profit entity.
However, the court did not find this controlling. The Wisconsin Secretary of State and the IRS still considered the defendant a non-profit and that was all that mattered.
Many corporations forget that they may have to amend their articles of organization as the statutes controlling a corporation or LLC changes. Always check with an attorney, whether you are a non-profit or for profit entity to make sure your paperwork is current and up to date.
A big area that most corporations fail to do is titles. No state statute recognizes CEO. Although the CEO may be the top person, the president has all of the legal authority according to state law.
All fifty states in the US have recreational use statutes. All 50 of them are very different. If you are going to rely on the recreational use statute for protection from litigation, make sure you meet each of the requirements based on the activities occurring on your land and the type of landowner you are.
When in doubt, do not rely on the recreational use statute alone. Either receive an indemnification agreement from groups bringing people on to your land or have each person entering and using your land sign a release.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
#recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #Recreational Use Statute, #Charitable Immunity, #non-profit, #Wisconsin, #Wisconsin Supreme Court, #Private Club, #Hunting Club Technorati Tags: Wisconsin,Recreational,Statute,lawsuit,guests,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,Charitable,Supreme,Court,Private,Club,blog
Windows Live Tags: Wisconsin,Recreational,Statute,lawsuit,guests,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,Charitable,Supreme,Court,Private,Club,blog
WordPress Tags: Wisconsin,Recreational,Statute,lawsuit,guests,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,Charitable,Supreme,Court,Private,Club,blog
Blogger Labels: Wisconsin,Recreational,Statute,lawsuit,guests,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,Charitable,Supreme,Court,Private,Club,blog
Trinidad v. Capitol Indemnity Corporation, 2009 WI 8; 315 Wis. 2d 324; 759 N.W.2d 586; 2009 Wisc. LEXIS 3Posted: November 15, 2010
Nelly De La Trinidad, Individually, and as Special Administrator of the Estate of Elizabeth Callejas-De La Trinidad, Deceased, and Victor Leonardo Aguilar-Hernandez, and Luz Maria Torres-Sanches, Individually, and as Special Administrator of the Estate of Marisol Aguilar-Torres, Deceased, Plaintiffs-Appellants-Petitioners, v. Capitol Indemnity Corporation, a Wisconsin Insurance Corporation, Halter Wildlife, Inc., and Rachel Proko, Defendants-Respondents.
2009 WI 8; 315 Wis. 2d 324; 759 N.W.2d 586; 2009 Wisc. LEXIS 3
November 4, 2008, Argued
January 23, 2009, Filed
REVIEW of a decision of the Court of Appeals. COURT: Circuit. COUNTY: Kenosha. JUDGE: David M. Bastianelli. (L.C. No. 2005CV145).
De La Trinidad v. Capitol Indem. Corp., 2008 WI App 36, 308 Wis. 2d 394, 746 N.W.2d 604, 2008 Wisc. App. LEXIS 50 (2008)
COUNSEL: For the plaintiffs-appellants-petitioners there were briefs by Patrick O. Dunphy, Robert D. Crivello, and Cannon & Dunphy, S.C., Brookfield, and oral argument by Robert D. Crivello.
For the defendants-respondents there were briefs by James S. Smith, Wendy G. Gunderson, and Smith, Gunderson & Rowen, S.C., Brookfield, and oral argument by Wendy G. Gunderson.
JUDGES: N. PATRICK CROOKS, J.
OPINION BY: N. PATRICK CROOKS
[**327] [***588] [*P1] N. PATRICK CROOKS, J. Petitioners Nelly De La Trinidad, Victor Leonardo Aguilar-Hernandez, and [**328] Luz Maria Torres-Sanches (collectively, De La Trinidad) are the parents of two children who drowned in a pond on the grounds of Halter Wildlife, Inc. De La Trinidad seeks review of an unpublished court of appeals opinion 1 affirming a circuit court order that dismissed their lawsuit against Halter Wildlife, Inc. (Halter); its insurer, Capitol Indemnity Corporation; and lifeguard Rachel Proko, an employee of Halter, on the grounds that the recreational immunity statute 2 applies and bars a suit under these circumstances.
1 Nelly De La Trinidad v. Capitol Indem. Corp., No. 2007AP45, 2008 WI App 36, 308 Wis. 2d 394, 746 N.W.2d 604, unpublished slip op. (Wis. Ct. App. Jan. 23, 2008).
2 Wis. Stat. § 895.52 (2005-06). All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
[*P2] The sole question before us is whether Halter is “an organization or association not organized or conducted for pecuniary profit” under Wis. Stat. § 895.52(1)(c) and as such entitled to immunity from liability for negligence, as well as for safe place violations, for any deaths occurring during recreational activity on Halter’s land. 3 De La Trinidad contends that Halter cannot be a nonprofit organization for two reasons: first, because it was incorporated in 1984 under the statute that since 1953 has governed for-profit corporations; and second, because it supplemented membership dues with revenues from other [**329] activities–revenues that created a budget surplus or profit which in turn meant dividends for members in the form of dues that were lower than they would otherwise have been. Halter argues that its articles of incorporation show that it was organized as a nonprofit, and its financial records and its status with the Internal Revenue Service (IRS) and the Wisconsin Department of Financial Institutions (DFI) show that it is not conducted for profit and has never paid any dividends.
3 Because the statute also grants immunity to the employees and agents of nonprofit landowners, and because Proko is being sued in her capacity as an employee of Halter, the resolution of this question affects the claims against Proko as well. “[N]o owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property. . . .” Wis. Stat. § 895.52(2)(b).
[*P3] The recreational immunity statute does not define nonprofits by referencing the chapter under which they were incorporated, either chapter 180 or 181, so that factor is not dispositive of the question. We see no basis in the statute for defining “profit” as broadly as De La Trinidad urges. Halter’s articles of incorporation, tax returns, and financial statements make clear that it was organized and is conducted as a nonprofit organization, a fact recognized by both Wisconsin and the federal government. For these reasons, explained more fully below, Halter is a nonprofit organization as defined by the statute and is thus entitled to immunity.
[*P4] We therefore affirm the decision of the court of appeals.
[***589] I. BACKGROUND
[*P5] Though it filed restated articles of incorporation in 1984 and 1988 which varied in some respects from the original articles, Halter has since its inception consistently defined itself as a nonprofit stock corporation under ch. 180 of the Wisconsin Statutes. These articles and successive restated articles of incorporation were accepted for filing by the secretary of state. The current articles of incorporation describe Halter as a [**330] hunt and sportsman club with the purpose of promoting wetlands preservation and environmental education.
Its regulations allow its approximately 275 dues-paying members to invite guests 4 to events held on the club’s grounds, which include a clubhouse, a picnic area, a ball park, and a beach and pond used for fishing and swimming. In addition to annual membership dues, Halter collects extra fees from members who host picnics and other events to which guests are invited.
4 The general public does not have access to Halter’s facilities; only club members and their guests may be on the property. Payment of invoices or statements is required under the organization’s regulations to be made by a member’s check.
[*P6] It was at one such event, a company picnic hosted on July 13, 2002, by Finishing and Plating Services (FPS) of Kenosha, 5 that the tragic drownings of the two children occurred.
5 The picnic guests were not charged admission; in keeping with Halter’s regulations, FPS, which held a corporate membership with Halter, paid the invoice for the picnic.
[*P7] De La Trinidad filed this lawsuit, alleging negligence and safe place violations by Halter, and negligence by Proko. The Kenosha County Circuit Court, the Honorable David Bastianelli presiding, granted summary judgment for the defendants. The circuit court noted that despite Halter’s organization under ch. 180 6 as a nonprofit stock corporation, all of the documentation of its existence, from its articles of incorporation to its tax returns, supported the conclusion that it was organized as a nonprofit. The circuit [**331] court also concluded that under the statute’s definition, Halter’s fund-raising activities did not make it a for-profit corporation, noting that the record showed no distributions of profits or earnings to members. The court of appeals affirmed, pointing out that the recreational immunity statute does not define nonprofit with reference to the chapter under which the organization is incorporated. The court of appeals also found that Halter’s nonprofit status turned not on how funds were generated, but rather on how they were used. It noted, “[M]ost importantly, Halter is not organized to distribute profits to anyone, and it does not do so.” Nelly De La Trinidad v. Capitol Indem. Corp., No. 2007AP45, 2008 WI App 36, 308 Wis. 2d 394, 746 N.W.2d 604, unpublished slip op., P15 (Wis. Ct. App. Jan. 23, 2008). For those reasons it affirmed the circuit court. De La Trinidad petitioned this court for review, and on May 13, 2008, review was granted.
6 The present version of ch. 180 of the Wisconsin Statutes governs “Business Corporations,” which include those issuing stock. Wis. Stat. § 180.0103(5). The present version of ch. 181 governs “Nonstock Corporations,” which are defined as including nonprofit corporations. Wis. Stat. § 181.0103(5).
II. STANDARD OF REVIEW
[*P8] [HN1] The application of a statute to undisputed facts is reviewed de novo. Wis. Dep’t of Revenue v. Menasha Corp., 2008 WI 88, P44, 311 Wis. 2d. 579, 754 N.W.2d 95.
[***590] III. DISCUSSION
[*P9] The question we address is whether Halter was a nonprofit organization under the recreational immunity statute 7 and is therefore entitled to immunity [**332] from liability for negligence, as well as for the claimed safe place violations. [HN2] Nonprofit organizations are among the types of property owners to whom immunity is extended under the statute. 8 7 Wisconsin Stat. § 895.52(2):
[HN3] No duty; immunity from liability. (a) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owner’s property to engage in a recreational activity:
1. A duty to keep the property safe for recreational activities.
2. A duty to inspect the property, except as provided under s. 23.115(2).
3. A duty to give warning of an unsafe condition, use or activity on the property.
(b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property . . . .
Subsections (3) to (6) do not apply in this case. They deal with government property, malicious acts, and private property owners who collect fees for recreational use of the land in excess of $ 2,000 per year.
There is no dispute here either as to the ownership of the land or as to the recreational nature of the activity.
8 Wisconsin Stat. § 895.52(1), (c) and (d):
[HN4] (c) “Nonprofit organization” means an organization or association not organized or conducted for pecuniary profit.
(d) “Owner” means either of the following:
1. A person, including a governmental body or nonprofit organization, that owns, leases or occupies property. . . .
[*P10] We begin of course with [HN5] the statute’s definition of a nonprofit organization as “an organization or association not organized or conducted for pecuniary profit.” Wis. Stat. § 895.52(1)(c). We address each prong in turn: how Halter is organized and how it is conducted. 9
9 Wisconsin Stat. § 895.52(1)(c) uses the wording “not organized or conducted for pecuniary profit,” which can be read as intending to mean both prongs would have to be met (as in, “neither organized nor conducted for pecuniary profit”) or as intending to mean that at least one prong would have to be met (as in, “not organized or not conducted for pecuniary profit”).
Yet, in Szarzynski, this court has called the language “clear on its face and capable of one simple construction–that the organizations that are organized and/or conducted for purposes other than profit-making are eligible for recreational immunity under the statute.” Szarzynski v. YMCA, 184 Wis. 2d 875, 890, 517 N.W.2d 135 (1994). Neither party argues that Wis. Stat. § 895.52(1)(c) may be interpreted in the conjunctive or disjunctive, and it is not necessary for us to consider the question here. Halter does not argue that because it was either organized or conducted as a nonprofit, it was entitled to immunity. Rather, it argues that it met both requirements. We recognize that the “and/or” construction often can be problematic. See, e.g., Wisconsin Bill Drafting Manual § 2.01(9)(a) (2009-10) (“Never use the compound ‘and/or.’ ‘And’ is conjunctive and ‘or’ is disjunctive; decide whether you mean ‘and’ or ‘or’ and use the proper word.”).
[**333] A. “Not organized . . . for pecuniary profit”
[*P11] De La Trinidad’s contention that Halter is organized for pecuniary profit centers on the fact that, as Halter’s restated articles of incorporation provide, it is organized as a stock-issuing corporation “pursuant to the authority and provisions of Chapter 180 of the Wisconsin Statutes.” De La Trinidad contends that this means it is by definition a for-profit–or at best a corporation masquerading as a nonprofit while reserving the legal right to convert to for-profit whenever it chooses–regardless of what its articles of incorporation currently say.
[***591] [*P12] Halter argues that the question of whether it is organized for pecuniary profit is answered by the statement of purpose in its articles of incorporation: “The corporation will be a non-profit corporation which is to be formed not for private profit but exclusively for educational, benevolent, fraternal, social and athletic [**334] purposes within the meaning of Section 501(c)(7) of the Internal Revenue Code of 1954 . . . .” The articles of incorporation, Halter argues, are consistent with its status with the federal and state governments: the Department of the Treasury granted it tax exempt status under § 501(c)(7) of the Internal Revenue Code, and the state Department of Financial Institutions has confirmed that it has operated since its inception as a nonprofit. Halter points to our decision in Szarzynski v. YMCA, 184 Wis. 2d 875, 890, 517 N.W.2d 135 (1994), in which we cited the definition provided in Black’s Law Dictionary for the term “nonprofit corporation.” That definition made explicit reference to the federal tax code 10 and included corporations “no part of the income of which is distributable to its members, directors or officers.” Id. at 890 (quoting Black’s Law Dictionary 1056 (6th ed. 1990)). Because it distributes no income to members, directors or officers and because it is a nonprofit for purposes of federal taxation, Halter argues that it is organized as a nonprofit.
10 In fact, part of the dictionary’s definition of “nonprofit corporation” not quoted in Szarzynski refers readers to I.R.C. § 501(c) “for a list of exempt organizations.” Black’s Law Dictionary 1056 (6th ed. 1990). The clear inference from that definition is that it intends to define all § 501(c) organizations as nonprofit corporations.
[*P13] A brief summary of the history of chapters 180 and 181 will help make sense of the parties’ arguments. Prior to 1953, it was not unusual for Wisconsin organizations to be incorporated as nonprofit stock corporations under ch. 180. There was a change in the statute, however, that took effect that year and remained in effect at the time of Halter’s incorporation, and it is not entirely clear whether by that change, the legislature intended to continue to permit nonprofit [**335] stock organizations under ch. 180. De La Trinidad relies on a 1958 opinion of the attorney general that examined the statute and concluded otherwise: “[A] nonprofit stock corporation cannot be lawfully organized under ch. 180 subsequent to July 1, 1953 . . . .” 47 Wis. Op. Att’y Gen. 78, 81 (1958).
[*P14] As even that attorney general’s opinion acknowledged, however, it is difficult to reconcile several provisions of the statute. 11 One provision, for example, defines “corporation” as including “a corporation with capital stock but not organized for profit.” Wis. Stat. § 180.02(1) (1957). Another appears to contemplate nonprofits organized under ch. 180 even after 1953: “After June 30, 1953 ch. 180 shall apply to all domestic corporations with capital stock, regardless of when they were organized and whether for profit or not . . . .” Wis. Stat. § 180.97(1) (1957) (emphasis added). However, that same section contains a provision that refers only to nonprofits formed prior to 1953, and is silent as to nonprofits formed thereafter: “any domestic corporation with capital stock but not organized for profit which has before July 1, 1953, been organized under the general corporation laws . . . shall be subject to ch. 180 only to the extent that the provisions of ch. 180 are not inconsistent [***592] with the articles or form of organization of such corporation . . . .” Id. (emphasis added).
11 The opinion noted, “It would have been much more explicit if the legislature had stated plainly that no stock nonprofit corporations are to be organized under ch. 180 after July 1, 1953.” 47 Wis. Op. Att’y Gen. 78, 81 (1958).
[*P15] The attorney general’s 1958 opinion in response to a query from the secretary of state acknowledged that the statute “does say that there can be such a thing as a corporation with capital stock but not [**336] organized for profit.” 47 Wis. Op. Att’y Gen. at 80. The opinion also said Wis. Stat. § 180.97(1) “leaves the door wide open for nonprofit stock corporations” because the language in that section is “about as all-embracing as human draftsmanship can devise.” Id. Nevertheless, in light of an absence of any language in Wis. Stat. § 180.97(1) (1957) about post-1953 stock nonprofits, the attorney general advised that absent explicit statutory authority, the secretary of state “would be justified in finding that the proposed articles [for a nonprofit stock] do not conform to law.” Id. at 81.
[*P16] De La Trinidad urges us to adopt the reasoning of that attorney general’s opinion and reach the same conclusion concerning Halter’s articles of incorporation. Of course, we are not bound to do so. [HN6] “‘An Attorney General’s opinion is only entitled to such persuasive effect as the court deems the opinion warrants.’” State v. Gilbert, 115 Wis. 2d 371, 380, 340 N.W.2d 511 (1983) (quoting Hahner v. Bd. of Educ., 89 Wis. 2d 180, 192, 278 N.W.2d 474 (Ct. App. 1979)). In this case, the opinion does not warrant great persuasive effect; it candidly acknowledges broad language in the statute, for example, that leads to the opposite conclusion. However, even if the attorney general’s opinion was correct as to ch. 180 nonprofits, it merely concluded that the secretary of state “would be justified” in rejecting articles of incorporation for such an organization. 12
12 Even if the secretary of state erred in permitting a nonprofit to organize under ch. 180 rather than requiring it to organize under ch. 181, it does not follow that such an error alone would convert Halter into a for-profit organization. The court of appeals accordingly held that “whether Halter’s form of organization is lawful or not is not the issue in this case.” De La Trinidad, No. 2007AP45, 2008 WI App 36,, 746 N.W.2d 604, unpublished slip op., P8. We agree.
[**337] [*P17] Which brings us to a key point: notwithstanding the attorney general’s opinion on the matter, there is no dispute that the secretary of state did accept and file Halter’s articles of incorporation and restated articles of incorporation. Three times. From the repeated filing and acceptance it is reasonable to infer that the acceptance was intentional and that the secretary of state saw no legal impediment to Halter’s incorporation as a nonprofit under ch. 180. 13 [HN7] Under Wis. Stat. § 180.0203(2), filing of the articles of incorporation by the DFI “is conclusive proof that the corporation is incorporated under this chapter . . . .”
13 It is clear that a different policy was in effect in 1958 in the secretary of state’s office; the attorney general’s opinion from that year makes reference to the fact that the office at that time was “refus[ing] to accept such articles for filing[.]” 47 Wis. Op. Att’y Gen. at 79.
[*P18] That the State of Wisconsin accepted Halter’s incorporation on those terms is verified by the certified document from the secretary of state that confirmed the filing in 1988. It is also confirmed by a 2005 letter from the DFI, which, in response to a letter from Halter about the organization’s status and designation on the DFI online database, stated:
Regarding your written request involving the corporate status of Halter Wildlife, Inc. I have examined the records for this corporation and have determined [***593] that you are correct in that this entity has, since its inception, been a “stock, not-for-profit corporation.["] Unfortunately, when our database was created we did not set forth a specific “status code” for “stock, not-for-profit” entities. Therefore, although it is a not-for-profit entity, it was included with all other corporations formed [**338] under Chapter 180 having a status code of “01″ which reflects the entity as a business corporation on our records. [Emphasis added.]
[*P19] A second, related argument made by De La Trinidad is that an organization formed under ch. 180 cannot be a nonprofit because there is nothing in the law governing it that prevents Halter’s members from voting to amend its articles and becoming a for-profit corporation. De La Trinidad notes that Halter’s articles of incorporation allow the organization to “engage in lawful activity within the purposes for which corporations may be organized under the Wisconsin Business Corporation Law.” Because it was organized under ch. 180, which allows for the distribution of profits to shareholders under Wis. Stat. § 180.0640, De La Trinidad argues that Halter left open the possibility of distributions to shareholders.
[*P20] De La Trinidad cites language from two cases from other jurisdictions in support of the proposition that the mere potential for for-profit conduct should preclude defining Halter as a nonprofit. Both involve organizations that unsuccessfully sought tax exemption by claiming to be nonprofit organizations. Ukranian National Urban Renewal Corp. v. Director, Division of Taxation, 3 N.J. Tax 326 (1981), is easy to distinguish, however, from this case; it turned on the fact that “[t]he organizational focus of this tax exemption statute is on the statute pursuant to which the taxpayer was organized and whether stock was authorized.” Id. at 331 (emphasis added). In other words, the statute at issue there defined a nonprofit in exactly the way the recreational immunity statute does not: pursuant to the statute under which the property owner is organized. The second case, Produce Exchange Stock [**339] Clearing Association, Inc. v. Commissioner of Internal Revenue, 27 B.T.A. 1214, 1219 (1933), is cited for the proposition that a corporation cannot use the fact that dividends have never been paid to claim nonprofit status, when it has retained a legal ability to do so. The case concerned whether the plaintiff was tax-exempt under a statute exempting “business leagues,” which functioned like chambers of commerce. Thus, the central determination was that the plaintiff did not meet the statutory definition of a business league and was therefore not tax-exempt. The language cited by De La Trinidad was an afterthought. (“Although up to the present time the petitioner has not paid any dividends to its stockholder, the New York Produce Exchange, there appears to be no reason under the law why it could not amend its by-laws and pay dividends to its sole stockholder.” Id. at 1219.) Further, on appeal, the Second Circuit Court of Appeals limited its ruling solely to the “business league” question and expressly declined to reach the remainder of the questions. See Produce Exch. Stock Clearing Ass’n, Inc. v. Helvering, 71 F.2d 142, 144 (2d Cir. 1934). In short, for the reasons noted, neither of these cases are as persuasive as De La Trinidad argues.
[*P21] While the “potential for profit” argument may have some merit, it is essentially an argument that it is not good public policy to provide immunity under Wis. Stat. § 895.52 to a nonprofit corporation that has, by incorporating under ch. 180, left open legal avenues for a later change to a for-profit corporation. In other words, it can be argued that the better policy is for the benefits afforded to nonprofits [***594] under the statute to accrue only to those nonprofits that are, by virtue of their incorporation under ch. 181, committed to staying a nonprofit. It is significant, however, that the legislature [**340] did not choose to define nonprofits in Wis. Stat. § 895.52 with reference to the statute under which they were incorporated. 14
14 We note that in some other cases, the legislature has defined nonprofit organization in those terms. See, e.g., Wis. Stat. § 26.40(1c) (referencing “a nonprofit corporation, as defined in s. 181.0103(17)”).
[*P22] Having established that incorporation under ch. 180 does not preclude Halter from being organized as a nonprofit, we arrive at the question of what makes a nonprofit a nonprofit. A leading treatise says the articles of incorporation are the place to focus, and it bolsters our view that the chapter under which Halter is organized is not dispositive here (note especially the second sentence):
[HN8] In order to determine the purpose for which a corporation was created, courts will primarily refer to the stated purpose in the articles of incorporation. . . . A recitation in the articles of incorporation that an organization is organized under a particular statute is not dispositive of the nature of the organization; instead, a corporation’s statement of purpose in its articles determines the corporation’s true nature.
1A Carol A. Jones & Britta M. Larsen, Fletcher Cyclopedia of the Law of Private Corporations § 139 (citing State v. Delano Cmty. Dev. Corp., 571 N.W.2d 233 (Minn. 1997)).
[*P23] We thus turn to the substantive provisions of Halter’s restated articles of incorporation, and we see they:
- explicitly define Halter as a nonprofit;
- [**341] forbid income to inure to the benefit of any trustee, director or officer;
- forbid dividends or distributions to be made to stockholders or members;
- limit Halter to activities permissible to a particular type of nonprofit, § 501(c)(7) organizations; and
- provide for its assets to be turned over to a public body or another nonprofit in the event of its dissolution.
[*P24] As noted above, this court has said that [HN9] organizations that are organized “for purposes other than profit-making” are eligible for recreational immunity under the statute. Szarzynski, 184 Wis. 2d at 890.
[*P25] The most recent restated articles of incorporation for Halter are those filed with the Office of the Secretary of State in 1988. 15 They were the documents in effect at the time of the drownings in 2002. They state in part:
[**342] [***595] The purpose of this corporation is to engage in lawful activity within the purposes for which corporations may be organized under the Wisconsin Business Corporations Law. The corporation will be a non-profit corporation which is to be formed not for private profit but exclusively for educational, benevolent, fraternal, social and athletic purposes within the meaning of Section 501(c)(7) of the Internal Revenue Code of 1954 and in this connection, to promote a hunt and sportsman club, to preserve the environment in its natural setting and to promote education of citizens and youth as to the need to conserve and retain wetlands and adjacent uplands in a natural state . . . .
15 We take judicial notice of the 1988 Restated Articles of Incorporation as we are authorized to do [HN10] under Wis. Stat § 902.01(2)(b), which provides that “A judicially noticed fact must be . . . [a] fact capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Wis. Stat. § 902.01(3) and (6) provide “[a] judge or court may take judicial notice, whether requested or not” and “[j]udicial notice may be taken at any stage of the proceeding.” See Gupton v. City of Wauwatosa, 9 Wis. 2d 217, 101 N.W.2d 104 (1960) (taking judicial notice of articles of incorporation recorded in the office of the secretary of state). The briefs filed with this court quoted the 1984 version and the record included only 1984 versions of the articles of incorporation. The 1988 articles of incorporation were not included despite the fact that references were made to them in documents in the record (e.g., in a letter attached to an affidavit filed by respondents and in a brief filed with the circuit court by De La Trinidad). This error was not cleared up until after oral arguments. Because the 1988 articles of incorporation are the relevant articles, there is no need to address the earlier versions.
[*P26] Additional relevant provisions reiterate the nonprofit nature of the organization:
ARTICLE IV: The corporation has not been formed for pecuniary profit or financial gain, and no part of the assets, income or profit of the corporation is distributable to, or inures to the benefit of, its officers or directors, except to the extent permitted under Wisconsin law. . . . Notwithstanding any other provision of this certificate, the corporation shall not carry on any other activities not permitted to be carried on by a corporation exempt from federal income tax under Section 501(c)(7) of the Internal Revenue Code of 1954, (or the corresponding provisions of any future United States Internal Revenue law).
. . . .
ARTICLE VIII: No part of the income of the corporation shall inure to the benefit of any trustee, director or officer of the corporation, except that reasonable compensation may be paid for services rendered to or for the corporation affecting one or more of its purposes. In the event of liquidation of the assets of the corporation [**343] any assets available for distribution at the time of such liquidation shall be turned over to an educational, benevolent, fraternal, social, scientific, religious or athletic association within the meaning of Section 501(c)(7) of the Internal Revenue Code of 1954, or to a public body. Furthermore, no dividends or distributions shall be made to stockholders or members of the corporation during its existence and that upon its liquidation the stockholders or members may receive back no more than their original investment.
[*P27] The language of the articles of incorporation is clear. It directly prohibits distributions to members, trustees, directors and officers, and covers the liquidation of the organization’s assets at dissolution. De La Trinidad asserts, rather incredibly, that the articles of incorporation are irrelevant to the determination of whether Halter was organized for profit. We cannot agree. It is clear beyond any doubt that Halter’s relevant organizing documents establish an organization with a purpose other than profit-making. As to De La Trinidad’s argument about Halter’s ability under ch. 180 to amend the articles, that ability would become relevant only at the point the organization chose to do so. The immunity extended to nonprofit organizations under Wis. Stat. § 895.52, in other words, continues to extend to Halter unless it amends its articles to allow for a purpose of achieving pecuniary profit.
B. “Not . . . conducted for pecuniary profit”
[*P28] De La Trinidad’s second argument, that Halter does not qualify for immunity under the statute because it is conducted for pecuniary profit, depends on a sort of “penny saved is a penny earned” definition of [**344] profit. This argument is [***596] based on the fact that Halter operated in the black, taking in more revenues than it required for operating expenses; the fact that not all the revenue was from membership dues; and the fact that the income of the organization was therefore distributed, albeit indirectly, to the members, just as if dividends had been paid. This is because those additional fees ultimately reduce the membership dues, De La Trinidad argues; the difference between what the dues are and what they would be without the additional revenues is, according to this argument, the individual member’s dividend.
[*P29] Halter argues that profits from picnics do not affect its immunity because they were returned to the organization, not distributed to members. The relevant inquiry, Halter argues, is whether it made distributions to directors, officers, or members, and its financial statements and tax returns make clear that it never has done so. Halter further points out that De La Trinidad’s approach, limiting nonprofit status to those organizations operating at a deficit, is unworkable and undesirable.
[*P30] De La Trinidad’s arguments rest on broad definitions of the terms “profit” and “distribution.” In support of its position, De La Trinidad cites language from State ex rel. Troy v. Lumbermen’s Clinic, 186 Wash. 384, 58 P.2d 812 (Wash. 1936), a case having to do with a corporation that the state believed had falsely incorporated as a nonprofit while operating as a for-profit. In finding for the state, the court there defined profit thus: “Profit does not necessarily mean a direct return by way of dividends, interest, capital account, or salaries. . . . [I]n considering . . . the question of whether or not respondent is or is not operated for profit, money saved is money earned.” Id. at 816. This holding is at quite a [**345] variance from a standard legal definition of “profit,” as found in Black’s Law Dictionary: “The excess of revenues over expenditures in a business transaction; GAIN (2). Cf. EARNINGS; INCOME.” Black’s Law Dictionary 1246 (8th ed. 2004). There is nothing in the statute that would support such an expansive definition of the word “profit.” 16
16 [HN11] “When giving a statute its plain and ordinary meaning, courts refer to dictionaries to define those terms not defined by the legislature. Wisconsin Stat. § 990.01(1) provides that ‘[a]ll words and phrases shall be construed according to common and approved usage; but technical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning.’” Rouse v. Theda Clark Med. Ctr., Inc., 2007 WI 87, P21, 302 Wis. 2d 358, 735 N.W.2d 30 (citation omitted).
[*P31] De La Trinidad also relies on St. John’s Military Academy v. Larson, 168 Wis. 357, 170 N.W. 269 (1919), for the proposition that when an organization operates in the black, it “materially enhance[s] the value of its capital stock, resulting in a pecuniary profit to the shareholders.” Id. at 361. As the underlying facts of the case make clear, it was not the indirect enhancement of the stock that made St. John’s Military Academy a for-profit organization; it was the fact that it was organized as a profit-sharing corporation and had in two prior years declared a dividend on its stock.
[*P32] De La Trinidad’s arguments are unavailing. To adopt them would, with the stroke of a pen, convert innumerable nonprofits in Wisconsin to for-profit enterprises by virtue of the fact that their bills are paid and they have money in the bank. Such a rule would operate to strip any solvent § 501(c)(7) organization of its nonprofit status. In fact, neither case compels the outcome that De La Trinidad seeks. First, St. John’s is [**346] a case about a for-profit organization in the first place. In St. John’s this court noted that the school’s [***597] “articles of incorporation show that it is organized to conduct a private enterprise upon the plan of a profit-sharing corporation . . . .” St. John’s, 168 Wis. 2d at 361. Further, the case shows that “in 1900 and 1901 it declared a small dividend on its stock.” Id. at 360. In contrast, Halter’s articles of incorporation explicitly describe the organization as a non-profit, and there is no allegation that cash distributions have ever been made to members.
[*P33] De La Trinidad’s “indirect benefits” argument is unsupported by Wisconsin case law. [HN12] So long as no profits are distributed to members, the fact that members may obtain other benefits from an organization is no bar to its nonprofit status. That this is the law in Wisconsin is made clear from a reading of Bethke v. Lauderdale of La Crosse, Inc., 2000 WI App 107, P13, 235 Wis. 2d 103, 612 N.W.2d 332. In Bethke, the plaintiff challenged the condo association’s status as a nonprofit organization and its entitlement to immunity under the recreational immunity statute. The basis for the challenge was, among other things, that the statute was unconstitutional when it protected property owners who were nonprofit organizations that further no charitable purposes. There the sole purpose for the revenues raised (in that case, monthly fees from each member) was “to provide for the maintenance, preservation and control of the common area [of the condo].” Id. The court found no bar in the statute for the benefits that accrued to the members, and, consistent with the reasoning in Bethke, we see none here.
[*P34] As the court of appeals observed when it decided the case before us, “even nonpublic-service-oriented [**347] nonprofits receive nonprofit immunity under the statute. . . . Bethke specifically rejected the argument that a nonprofit must  be charitable to claim the benefit of recreational immunity. In Bethke . . . the defendant was a condominium association, and its revenues were presumably used solely for the benefit of the few people who happened to live in the condominium development.” De La Trinidad, No. 2007AP45, 2008 WI App 36, 308 Wis. 2d 394; 746 N.W.2d 604, unpublished slip op., P14 (citations omitted).
[*P35] Contrary to De La Trinidad’s assertions, there is substantial evidence of Halter’s being conducted as a nonprofit. Halter is recognized by the IRS as a § 501(c)(7) nonprofit organization; 17 documents from the IRS in the record confirm that Halter qualifies as a tax-exempt organization under the Internal Revenue Code. The record also contains Halter’s 2002 IRS Form 990, Return of Organization Exempt from Income Tax, in which Halter identifies itself as a § 501(c)(7) organization. A letter from the IRS dated November 23, 1990, states that Halter’s “organization continues to qualify for exemption from Federal income tax” under § 501(c)(7).
17 The Internal Revenue Code exempts from taxation “[c]lubs organized for pleasure, recreation, and other nonprofitable purposes, substantially all of the activities of which are for such purposes and no part of the net earnings of which inures to the benefit of any private shareholder.” I.R.C. § 501(c)(7) (2006).
[*P36] There is no indication in the record that Halter brings in revenues from outside of its membership though it could do so under IRS guidelines without forfeiting its nonprofit status. 18 The record includes [**348] [***598] regulations from Halter that show that it requires all invoices to be paid by member checks. Deposition testimony in the record is clear that the attendees at the picnic giving rise to this action were not charged for the picnic; a Halter member, FPS of Kenosha, paid the invoice.
18 According to an official IRS publication, “A section 501(c)7 organization may receive up to 35% of its gross receipts, including investment income, from sources outside of its membership without losing its tax-exempt status. Of the 35%, up to 15% of the gross receipts may be derived from the use of the club’s facilities or services by the general public or from other activities not furthering social or recreational purposes for members.” IRS Publication 557 at 49 (Rev. June 2008).
[*P37] A law review author described the standard controlling inquiry for nonprofits:
[HN13] The defining characteristic of a nonprofit corporation is that it is barred from distributing profits, or net earnings, to . . . its directors, officers or members. That does not mean that it is prohibited from earning a profit. Rather, it is only the distribution of those earnings as dividends that is prohibited.
Jane C. Schlicht, Piercing the Nonprofit Corporate Veil, 66 Marq. L. Rev. 134, 136 (1982) (internal quotations omitted).
[*P38] The record is replete with evidence that supports Halter’s 27-year existence as a nonprofit. It would be an absurd result if we were to read the recreational immunity statute as making a for-profit organization out of an organization that throughout its existence has been governed by articles of incorporation that define it as a nonprofit, has been documented by state agencies as a nonprofit, and has been in compliance with IRS regulations as a nonprofit. Like the circuit court and court of appeals, we see no failure on Halter’s part to meet the requirements necessary to be a nonprofit and thus to be entitled to immunity here.
[**349] IV. CONCLUSION
[*P39] The recreational immunity statute does not define nonprofits by referencing the chapter under which they were incorporated, either chapter 180 or 181, so that factor is not dispositive of the question. We see no basis in the statute for defining “profit” as broadly as De La Trinidad urges. Halter’s articles of incorporation, tax returns, and financial statements make clear that it was organized and is conducted as a nonprofit organization, a fact recognized by both Wisconsin and the federal government. For these reasons, Halter is a nonprofit organization as defined by the statute and is thus entitled to immunity.
[*P40] We therefore affirm the decision of the court of appeals.
By the Court.–The decision of the court of appeals is affirmed.
All outdoor recreation, travel, tourism and fitness businesses use a release, (or should use a release). However, the legal description of what is a release is rarely explained to the business clients using them or the clients of the business signing them.
A Release is also known as Waiver. Some parts of the country also use the term Covenant Not to Sue to identify the clause in a release that prevents lawsuits. The Negligence Clause is another term for the actual part of the contract that prevents the possible lawsuit. Therefore, in most cases the term Release, Waiver or Covenant Not to Sue are interchangeable and have more of a geographic definition rather than a different legal definition.
Release is the word that is adopted as the term to describe the types of agreements we are discussing here by the majority of states. Waiver and covenant not to sue are used by a few southern states to describe these documents.
A release is a contract. A contract is an agreement between two or more parties, with consideration flowing to both parties and a meeting of the minds as to the terms of the contract. Contracts cannot be for illegal activities or things and most be enforceable by the courts.
Contracts are the basis for commerce in the world; how one party sells goods or services and the other party buys goods or services.
There must be two and can be thousands of parties to a contract. Each party must receive something of value or benefit. Each party must understand the basic terms of the contract. Not every term must be known or understood in the contract.
Consideration, the benefit or value in a contract, is easily defined as money, and in most contacts makes up one part of the transaction. With a local shopkeeper, a contact to buy a t-shirt consists of consideration (money) flowing to the shopkeeper and the purchaser receiving the t-shirt. Both parties knew the terms of the contract and both understood that was the purpose of the contract. The contract by the way was oral. Contracts can be in writing or can be oral. Oral contacts are hard to prove in a court.
In an outdoor recreation case, the consideration is money flowing to the outfitter and the opportunity to engage in the activity by the guest.
Contracts cannot be for illegal activities. Gambling debts are not enforceable in most states so a contract to pay a gambling debt is illegal. Most states, but not all, have done away with contracts for marriage also. (Marriage is not illegal, just to contract for a marriage is illegal.) Courts are reluctant to force people to act or do something specific such as standing on their head as an easy example.
A release then is a contract that covers something that may or may not happen in the future. It is the fact that the contract may not actually be enforced because of some future date that gives releases their special place in the law.
A release is also different from most contracts because the release is a contract where one party gives up or releases a future right, the right to sue. This possibility of giving up a future right is one of the issues that courts are divided on and that cause courts problems. The right is the right to sue, a right that is given to US citizens in our constitution. As such, the courts scrutinize any constitutional right that is given up by a party. However, most courts have agreed that if the right is in writing and voluntarily given up for consideration, the release will be upheld. The right to contract between parties is greater and more important than the right to sue in most, but not all state supreme courts.
As stated earlier, contracts can be oral or written. Because a future right is at stake in releases, most courts will not enforce an oral release, such as reading the release over the phone to someone and having them agree to the terms of the release. At the same time, you should review electronic contracts and agreements, which are valid.
Release law is determined by each state; as such, it is difficult to define a release in an article written for the masses because of the different requirements of some states. In addition, some states have different requirements or statutory requirements for releases in some activities or recreational sports then other. Also, states are changing their stands on releases each year. Wisconsin, Arizona and Connecticut have done so in the past couple of years.
However, there are some general issues common to all releases and required in most states that support releases.
A release should use the magic word negligence. Negligence is the legal term for an accident that gives rise to a lawsuit. The release should state that your guests release you from any negligence on your part. Lacking this term, your release is a piece of paper with little value in the majority of states.
The second most important clause is the jurisdiction and venue clause. This clause defines the law of the state that will be applied to the case to interpret the release and the place where the lawsuit will be held. Your state law may uphold releases. However, your customer maybe from a state that does not support releases. Jurisdiction and venue clauses prevent your customer from dragging you into a different state and voiding your release.
The signature is also critical. For someone to sue on a breach of contract or to enforce a contract, the person who is being sued or the release that is being enforced must be signed. Therefore, the injured guest is the person who must sign the contract to have the release enforced. It is not necessary to witness the signature. The date and time of the accident along with the type of payment, usually a credit card will confirm the person was there and signed a release. In addition, handwriting experts can verify a signature.
Initialing paragraphs is also of no value and may cause problems. The courts look for a signature and nothing else. It does not matter to the courts if the release has been read. Initialing paragraphs may create a problem if one paragraph is not initialed. Does that mean that paragraph does not apply? Nor has the author ever found a case where the court commented on the initialed paragraphs as being necessary or important.
Initials, however, may be necessary if the paper that is being used has different contracts on it. The classic is a car rental contract. Part of the contract is a release and a promise to pay. That gets a signature. Declining additional insurance or promising to bring the car back full of gas are different contracts and as such initials might help prove those parts of the contract. However, if your document is one or two pieces of paper with one purpose and no white spaces or added information, you only need a signature.
There is a real difference of opinions between some attorneys as to the need to identify the risks of the activity. Most activities have so many possible risks that the release would be endless if it listed them all. However, there are two valid reasons for putting at least some of the possible risks in a release. The release has better “legal balance” if some of the risks are listed. It provides a background or a basis for the release if the document states some of the reasons for the reason behind the release. Courts always comment that the injury the plaintiff is complaining about was listed in the release.
A release with risks in it can also be used as assumption of the risk document. If the release is thrown out, the release can be used to prove the person assumed the risks and either eliminate a lawsuit or reduce the damages. For this to work, the risks of the activity must be in the release.
Because of state and federal laws concerning a release of medical information and the possibility of an injury, you should probably include a release for first aid care and release of medical information. Although federal HIPPA laws may not affect you, many states medical information privacy acts may. First aid negligence lawsuits rare, but they occur occasionally and are very dangerous. As such, you should include a release for any medical care you provide and any medical information you collect or pass on to other people.
There are dozens of other factors and clauses that may need to be included in your release. These are going to be dependent the state that is identified in your jurisdiction and venue clause, any state statutes that control releases or state laws that control the activity that the release covers. The type of activity you are providing, the guests you are recruiting and how close medical care is, may also change your release. Finally, any release for activities outside of the US must be written carefully.
Any article about releases always ends with a disclaimer and an admonition. The disclaimer is releases work in most states. However, release law changes every month. New state statures or Supreme Court justices can change the law affecting releases and subsequently your business.
The admonition is your release must be written by an attorney. The easiest example of this admonition is the courts. Releases written by attorneys are rarely contested in court. The releases you see in appellate and Supreme Court decisions are always those written by non-attorneys. The attorney you choose should also be one that understands release law and your business to give you the best chance at staying out of court.
What do you think? Leave a comment.
© 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
#recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #covenant not to sue, #waiver, Technorati Tags: Release,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,covenant,waiver,blog
Windows Live Tags: Release,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,covenant,waiver,blog
WordPress Tags: Release,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,covenant,waiver,blog
Blogger Labels: Release,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,negligence,covenant,waiver,blog
Signs, signs, everywhere there’s signs*, except at the Lily Pad Walk at the Hilton Milwaukee Center. Briane Pagel Jr. and his family sued the Hilton Milwaukee Center which is or has a waterpark on its premises. Mr. Pagel had been injured when he fell off the lily pad walk.
The lily pad walk is a series of large floating vinyl pads. There is an overhead net someone can grab to assist their walk or stop their fall. Mr. Pagel tried the walk and fell into the water. Then he tried again, falling and injuring his back.
Mr. Pagel claimed the hotel should have posted warning signs. The trial court judge dismissed the case and awarded the hotel their costs of $1,394. The appellate court agreed, stating the dangers were open and obvious to the reasonable user and not warning or signs were required.
*Apologies to Tesla and the song Signs
Pagel v. Marcus Corporation, 2008 App. LEXIS 423
The Janesville, Wisconsin GazetteXtra.com in a headline titled Milton student sues for injury
states that a student injured in a climbing wall accident at school is suing the school district. A “safety strap” broke when she was climbing the wall resulting in a 10′ fall breaking her tailbone. The strap was attached to the ceiling and held the climbing rope. The strap broke after the student had reached the top of the wall. Another student had allegedly informed the school the rope was frayed earlier.
The lawsuit claims the school district was “negligent for failing to properly maintain or inspect the equipment and to properly place the mats. It also claims the district violated the Wisconsin Safe Place statute.”