Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.

Plaintiff was struck by the balloon before the ride occurred. Defendant admitted he screwed up so it helped the court prove they should be liable.

Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121

State: Wisconsin, Supreme Court of Wisconsin

Plaintiff: Patti J. Roberts and David Roberts

Defendant: T.H.E. Insurance Company, Sundog Ballooning, LLC, Kerry M. Hanson and Jodi L. Hanson

Plaintiff Claims: Negligence

Defendant Defenses: Recreational Use Statute & Release

Holding: for the Plaintiff

Year: 2016

This is a crazy set of facts that created this decision. The defendants were providing balloon rides at an event to support a fund-raiser for a charity. No charge was being made for the rides. The balloon was tethered to two trees and a truck and was raised and lowered with people wanting a ride in the balloon basket.

The plaintiff and her family decided to go for a ride. The plaintiff signed the release and was waiting in line for her ride. One of the tethers’s holding the balloon broke and the plaintiff was struck by the balloon.

The plaintiff had not given her release back to the balloon operator before she was struck. The release was found on the ground after her injury.

The trial court, called the circuit court in Wisconsin, had granted the defendant’s motion for summary judgment, which was upheld by the Wisconsin court of Appeals. The basis of the motion for summary judgment was the release and the Wisconsin Recreational Use Statute.

Analysis: making sense of the law based upon these facts.

The court started by pointing out some fairly damaging facts. The Federal Aviation Administration, which governs hot-air ballooning requires balloon operators to have a backup plan if a tether breaks and to keep people far back from the balloon when giving tethered rides. The balloon pilot admitted he did not check the weather, did not have a safety plan and did not keep people far enough away from the balloon.

The evidence submitted to the circuit court demonstrated that defendant Kerry Hanson, the balloon operator, had limited experience with tethered ballooning before giving rides at Green Valley’s event. Hanson testified in his deposition that he should have obtained information regarding weather fronts in the area. Had he known about the weather front on the day Roberts was injured, Hanson testified that he would have suspended the ride.

The first defense raised by the defendant was whether or not the defendant could take advantage of the Wisconsin Recreational Use Statute. The plaintiff argued that the statute could not protect the defendant because her injury was not related to the land or a condition associated with the land. The defendant argued he was providing a recreational service on land for no charge.

Everyone agreed that the plaintiff was on the land to engage in recreational activities.

Given that Roberts was on recreational land open to the public, watching the balloon rides as a spectator, and preparing for the balloon ride by waiting in line, she was engaged in a “recreational activity” as defined by Wis. Stat. § 895.52(1)(g).

However, the court interpreted the Wisconsin Recreational Use Statute to cover land owners. The defendant balloon operation was not an owner or the land. Owner, under Statute, means an owner, occupier, tenant, etc., of the land.

Nor was the balloon a structure that would qualify as an occupier on the land, and covered by the statute since it could be gathered up and moved.

Here, it was Green Valley and the Conservationists—- not Sundog—-that were responsible for opening the land to the public. The Conservationists allowed Green Valley to host an event on the land. Green Valley was responsible for organizing the event and bringing people onto the land. Sundog provided hot air balloon rides on land that was owned by the Conservationists and occupied by Green Valley. Immunizing Sundog would have no effect on whether the public had access to private land, because Sundog is not responsible for opening the land to the public.

The court found there was a difference between opening up your land to allow recreation and allowing third parties on the land to take advantage of the statute. “Granting immunity to third parties that are not responsible for opening up the land to the public is unsupported by our prior case law.” That means negligent conduct that occurs on the land but not associated with the land is not protected by the statute.

The court then looked at the release. It did not get at the issue as to whether the plaintiff has accepted the terms of the release even though she had signed the release but not given it back to the defendant.

The court looked at the rules for releases, or exculpatory agreements, under Wisconsin law. “This court has found an exculpatory agreement to be invalid if it contains misrepresentations, if it too broadly defines the location and actions covered, or if it is ambiguous and uncertain.”

A release has been held to be void under Wisconsin law if:

(1) the contract served two purposes which were not clearly identified or distinguished; (2) the release was extremely broad and all-inclusive; and (3) the release was in a standardized agreement printed on the Company’s form, offering little or no opportunity for negotiation or free and voluntary bargaining.

Releases are also void if they fail to:

(1) it failed to clearly, unambiguously, and unmistakably explain to the signatory that he was accepting the risk of Hidden Valley’s negligence; and (2) the form when considered in its entirety failed to alert the signer to the nature and significance of the document being signed.

Finally releases can be void if:

(1) the waiver was overly broad and all-inclusive; (2) the form served two functions and did not provide the signer adequate notification of the waiver’s nature and significance; and (3) there was little or no opportunity to bargain or negotiate in regard to the exculpatory language in question.

The court found the defendants release was “overly broad and all-inclusive.” The court explained was this was a problem. “As our prior cases have explained, an agreement cannot be so broad “that it would absolve [the defendant] from any injury to the [plaintiff] for any reason.”

The release was also void because it covered both known and unknown risks. “The waiver in this case would absolve Sundog for any activity for any reason, known or unknown….”

Not only is the waiver overly broad, it is not clear whether waiting in line for the ride is something Roberts would have contemplated as being covered by the waiver, especially because she was not required to return the waiver before she got into the line.

(How can a release be void because it is overly broad and then have the court determine it’s not clear if the overly broad release covers the incident the plaintiff suffered?)

Because the release offered no opportunity for the plaintiff to negotiate the terms, the release was also void.

Second, the release was a standard agreement printed on the company’s form, offering Roberts no opportunity to bargain or negotiate in regard to the exculpatory language in question. “Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity.”

The court simply concluded the release was void for those reasons.

Thus, the liability waiver form is void as a matter of law. It is overly broad, printed on a standard form, and Sundog did not provide Roberts with an opportunity to bargain over the terms of the contract. As our prior case law demands, we will not uphold a waiver of liability that violates public policy.

There were numerous concurring opinions and dissenting opinions in this decision. One judge wrote a concurring opinion looking at the language of the Recreational Use Statute. Three judges dissented based on the recreational Use Statute. Both dissenting judges each wrote a dissenting opinion.

So Now What?

Although the court legally did not void all releases, functionally the court did. Providing an opportunity for the guest to negotiate the release will add months to any process of getting the release signed. You might try a two-tiered approach.  You can pay one price for the standard release, or you can pay five times that price for an assumption of the risk form.

You also might narrow the scope of the release to just a few incidents; however, you still have the requirement to bargain the release.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law           Rec-law@recreation-law.com     James H. Moss

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