Under Indiana’s law, you cannot sue based on a product liability claim for what is actually a service. Meaning Wind tunnels and Climbing Walls provides a service in Indiana, they are not products sold to the public.

Product liability claims are difficult to defend against because they have fewer or more limited defenses. Product Liability claims also award more damages than simple negligence claims. Consequently, if you provide a service and thus are not subject to a product liability claim your risk, and exposures are much lower.

That issue saved the defendant in this case because the release used by the defendant was written poorly and did not protect the defendant from the claims.

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15, 479

State: Indiana, Court of Appeals of Indiana, Fifth District

Plaintiff: Jason C. Marsh and Rhonda Marsh

Defendant: Kirk Dixon, Dyna Soar Aerobatics, Inc.,

Plaintiff Claims: negligence (or gross negligence) and product liability

Defendant Defenses: Release and the Indiana Product Liability statute

Holding: for the plaintiff on the release and the defendant on the product liability claim.

Year: 1999

The plaintiff paid to ride in the defendant’s wind tunnel. The wind tunnel was owned by Dyna Soar Aerobatics, Inc., which was owned by Kirk Dixon. Kirk Dixon was the sole owner and officer of Dyna Soar, Inc.

Before riding the plaintiff was told when turned on he would soar 3-4 feet upward in the air. The plaintiff also signed a release before riding the wind tunnel. When the wind tunnel was turned on he shot 15’ in the air and broke his ankle when he landed.

The plaintiff sued for negligence and product liability claims. The trial court granted the defendant’s motion for summary judgment based on the release, and the plaintiff appealed.

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

The first issue the court tackled was a procedural issue. The plaintiff sued for gross negligence and not simple negligence. The defendant argued that because they did not plead negligence and appealed a negligence claim and plead gross negligence but did not appeal a gross negligence claim they should be stopped from arguing a negligence claim of any type.

However, the court found through various arguments that those issues were moot and not at issue.

The next argument was the plaintiff’s claim the release was not sufficient under Indiana’s law to prevent a negligence claim. The court agreed.

Indiana generally supports releases, but requires the language of the release be sufficient to deny the claims being made.

It is well settled in Indiana that exculpatory agreements are not against public policy. Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.”

The language in the release must clearly and unequivocally state what the release is preventing and who is being protected for those claims.  Meaning the release is void if it does not clearly and unequivocally states the release is to protect the defendant from the defendant’s negligence.

This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” We note, however, that an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.

The release stated the plaintiff “fully discharged and released” the defendant from all “liability, claims, demands, actions, and causes of action.” Nowhere did it state the release, released D S from its own negligence. Nor would the court interpret the language of the release to cover that. The specific language was needed for the release to work.

We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

The next issue was the product liability claim. The Indiana Products Liability Act defines a manufacturer as the seller of a product, “a person engaged in the business of selling or leasing a product for resale, use, or consumption.”

Ind. Code § 33-1-1.5-2(5). 2 A product is defined as follows:

Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Personality is another name for something owned that is not attached to the land.

The plaintiff argued that the defendant created a machine, which was a product and sold what the machine did. However, the court found that what the plaintiff bought was a service.

A service is not subject to the Indian Product Liability Act.

The case was sent back to the trial court to go forward on the negligence claim of the plaintiff.

So Now What?

Simply put this lawsuit is based on a poorly written release. I repeat myself, but have someone who understands you and your business or program write a release based upon the law where the release will be applied.

Let me put it another way. Unless you wrote a check or paid money for your release, you would probably end up in court. Attorneys provide free releases not as a service, but knowing there are flaws in the document that will allow them to make a lot more money defending against the lawsuit.

If you got your release from a competitor, how do you know, the competitor gave you a good release? If you got your release from the Internet, how do you know it is for your activity, in your state and covers your law?

And if you think, it is not worth your money; figure that you will lose thirty (30) days of work the first year you are sued, 15-30 days each year until trial and probably 45-days the year of the trial. A good release can keep you at work and out of depositions and courtrooms.

The defendant got lucky on the product’s liability claim. Most states have a broader definition of a product. Put in the release that you are providing a service not selling a product if you have any doubts.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

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Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Jason C. Marsh and Rhonda Marsh, Appellant-Plaintiffs, vs. Kirk Dixon, Dyna Soar Aerobatics, Inc., Appellee-Defendants.

No. 49A05-9803-CV-146

COURT OF APPEALS OF INDIANA, FIFTH DISTRICT

707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

March 12, 1999, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Richard H. Huston, Judge. Cause No. 49D10-9610-CT-1378.

DISPOSITION: Affirmed in part and reversed in part.

COUNSEL: For APPELLANT: JAMES F. LUDLOW, Indianapolis, Indiana.

For APPELLEE: MICHAEL A. ASPY, Landau, Omahana & Kopka, Carmel, Indiana.

JUDGES: ROBB, Judge. BAKER, J., and GARRARD, J., concur.

OPINION BY: ROBB

OPINION

[*999] OPINION

ROBB, Judge

Case Summary

Appellants-Plaintiffs, Jason C. Marsh and Rhonda Marsh (collectively referred to as “Marsh”), appeal the trial court’s order granting summary judgment in favor of Appellees, Kirk Dixon and Dyna Soar Aerobatics, Inc. (collectively referred to as “Dyna Soar”) on Marsh’s gross negligence and products liability claim. We affirm in part and reverse in part.

Issues

Marsh raises two issues for our review which we restate as:

I. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the release signed by Marsh was valid; and

II. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the facts of this case do not support a products liability claim.

Facts and Procedural [**2] History

The facts most favorable to the judgment show that on October 9, 1994, Marsh decided to ride in a wind tunnel (“Dyna Soar Machine”) constructed by Kirk Dixon (“Dixon”) for Dyna Soar Aerobatics, Inc. Dixon is the sole officer of this company. The Dyna Soar Ride simulates the experience of free-fall by projecting columns of air through a cable trampoline upon which patrons of the ride levitate. Marsh signed a release which discharged Dyna Soar, its director, and its employees from liability in the event of an accident. While on the Dyna Soar ride, Marsh fell off of a column of air and fractured his ankle. Marsh sued Dyna Soar, bringing both a negligence claim and a products liability claim. The trial court entered summary judgment in favor of Dyna Soar finding that “the facts do not support a products liability claim or a misrepresentation claim.” (R. 159). This appeal ensued.

Discussion and Decision

Before we reach Marsh’s first issue, we note that Dyna Soar argues in their brief that Marsh waives the issue regarding the validity of the release for two reasons. First, Dyna Soar argues that Marsh failed to make a negligence claim in his original complaint. In [**3] his original complaint, Marsh filed a claim under a gross negligence theory. Second, Marsh failed to raise the same issue in his Motion to Correct Errors.

First, we find that Dyna Soar has waived their argument regarding the fact that Marsh made a gross negligence claim rather than a negligence claim. In their brief, they cite no cases and outline no argument developing this position. [HN1] Ind. Appellate Rule 8.3 requires Dyna Soar to support each contention with an argument, including citations to the authorities, statutes, and record for support. App.R. 8.3(A)(7); Burnett v. Cincinnati Ins. Co., 690 N.E.2d 747, 749 (Ind. Ct. App. 1998). Failure of a party to [*1000] present a cogent argument in his or her brief is considered a waiver of that issue. Id.

Second, we conclude that a party does not waive their right to appeal a claim by omitting the same from its Motion to Correct Errors. Marsh raised two issues in its Motion to Correct Errors. He argued that he presented sufficient evidence to create a genuine issue of material fact as to whether Dyna Soar was grossly negligent, and he argued that he had a viable products liability claim. He did not raise the issue of whether the release [**4] was valid. Indiana Trial Rule 59(A) provides that only two issues must be addressed in a Motion to Correct Errors before they may be appealed to this court: newly discovered material evidence and claims that a jury verdict is excessive or inadequate. T.R. 59(A)(1) and (2). The trial rule states that any other issues that are “appropriately preserved during trial may be initially addressed in the appellate brief.” Id. Trial Rule 59(D) states that a Motion to Correct Errors “need only address those errors found in Trial Rule 59(A)(1) and (2). Id. Based on the plain language of Trial Rule 59, therefore, we conclude that [HN2] a party does not waive its right to appeal a trial court’s decision if it fails to raise an issue in its Motion to Correct Errors which was properly preserved at trial. Dyna Soar’s claims to the contrary are based on cases referring to Trial Rule 59 before it was amended. Accordingly, we conclude that the following issue is properly before this court.

I.

Marsh argues that the trial court erred when it entered summary judgment on his negligence claim. In particular, he argues that the release he signed exculpating Dyna Soar was not sufficient to release [**5] Dyna Soar for its own negligence. We agree.

[HN3] It is well settled in Indiana that exculpatory agreements are not against public policy. Powell v. American Health Fitness Center, 694 N.E.2d 757, 760 (Ind. Ct. App. 1998). Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.” 694 N.E.2d at 761. In Powell, the clause at issue stated that Powell released the defendant “from ‘any damages’ and placed the responsibility on Powell for ‘any injuries, damages or losses.” Id. The Powell court concluded:

As a matter of law, the exculpatory clause did not release [the defendant] from liability resulting from injuries she sustained while on its premises that were caused by its alleged negligence. Therefore, the exculpatory clause is void to the extent it purported to release [the defendant] from [**6] liability caused by its own negligence.

694 N.E.2d at 761-62 (emphasis added). This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” Indiana State Highway Commission v. Thomas, 169 Ind. App. 13, 346 N.E.2d 252, 260 (Ind. Ct. App. 1976) (emphasis in original). We note, however, that [HN4] an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. See Powell, 694 N.E.2d at 761-62. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence. See 694 N.E.2d at 761.

In this case, we are presented with a similar exculpatory clause as in Powell. The release states in pertinent part:

I hereby fully and forever discharge and release [**7] . . . Dyna-Soar Aerobatics, Inc. and all of the partners, directors, officers, employees, and agents for the aforementioned companies from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of any damages, [*1001] both in law and in equity, in any way resulting from personal injuries, conscious suffering, death or property damage sustained while flying Dyna-Soar.

(R. 275). Obviously, the release fails to specifically and explicitly refer to Dyna Soar’s own negligence. The injury sustained by Marsh was not allegedly derived from a risk which was inherent in the nature of the ride. Dixon instructed Marsh that he would only levitate three to four feet from the ground. When the ride started, however, Marsh was allegedly shot fifteen feet in the air and subsequently dropped to the ground. Such a risk is not inherent in the nature of a wind tunnel ride. Thus, if, indeed, the accident occurred as Marsh describes, the injury must have resulted from the negligence of Dyna-Soar. We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this [**8] exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

Dyna Soar argues that the Powell decision should not be applied retroactively. In support of this argument, Dyna Soar cites Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc., 458 N.E.2d 291 (Ind. Ct. App. 1984). In Sink, the court held that ” [HN5] pronouncements of common law made in rendering judicial opinions of civil cases have retroactive effect unless such pronouncements impair contracts made or vested rights acquired in reliance on an earlier decision.” Id. at 295 (emphasis added). Dyna Soar argues that Powell changed the common law, and therefore, it should not apply to exculpatory agreements made prior to said decision. We disagree. Before the Powell decision, Indiana courts had never decided whether an exculpatory clause required specific language. In fact, in Powell, this court was careful to distinguish other cases which have upheld exculpatory clauses similar to the clause used by Dyna Soar:

Although [**9] we have upheld exculpatory clauses which have used similar language, those cases can be distinguished. In Shumate [v. Lycan, 675 N.E.2d 749 (Ind.Ct.App.1997), trans. denied] and Terry v. Indiana State University, 666 N.E.2d 87 (Ind.Ct.App.1996), the nonspecificity of the language in the exculpatory clauses was not put at issue nor addressed. In Marshall [v. Blue Springs Corp., 641 N.E.2d 92 (Ind.Ct.App.1994)], the focus of the appeal was that there was a genuine issue of material fact as to whether the releases were signed “willingly” or under economic or other compulsion. The nonspecificity of the language used to effect release for the defendant’s own negligence was not presented as an issue nor addressed. In LaFrenz [v. Lake Cty. Fair Bd., 172 Ind. App. 389, 360 N.E.2d 605 (1977)], we noted “the form and language of the agreement explicitly refers to the appellees’ [party released] negligence.” Therefore, had the issue been raised, the language contained the specific and explicit reference to negligence we now hold to be necessary.

Powell, 694 N.E.2d at 762 (citations omitted). From the language of the Powell decision itself, we [**10] conclude that Powell did not change Indiana common law. Thus, Dyna Soar can not show that they relied on earlier Indiana decisions when drafting its exculpatory agreement.

II.

Marsh also argues that the trial court erred when it entered summary judgment on his products liability claim. In particular, he argues that the Dyna Soar machine is a product for purposes of the Indiana Products Liability Act. 1 We disagree.

1 The Indiana Products Liability was codified at Ind. Code § 33-1-1.5-1 et seq. Since the inception of this litigation, however, the Act has been recodified at Ind. Code § 34-20-1-1 et seq. Hereinafter, we shall refer to the Indiana Products Liability Act using its former citation.

[HN6] In order to be subject to liability under the Indiana Products Liability Act, Dyna Soar must be defined as the seller of a product. The Act defines a seller as “a person engaged in the business of selling or leasing a product for resale, use, or consumption.” [*1002] Ind. Code § 33-1-1.5-2(5). 2 A product [**11] is defined as follows:

” [HN7] Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Ind. Code § 33-1-1.5-2(6). 3 Marsh claims that Dixon created a machine, a product, and provided a service. He argues that his claim should not be barred just because a service was provided in this case. In support of his argument, he points this court to Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379 (Ind. Ct. App. 1990). In Ferguson, a worker fell off of a ladder that was attached to a grain bin. The plaintiffs sued the manufacturers of the grain bin and its component parts under a products liability theory. In determining that the Indiana Products Liability Act applied to the plaintiffs’ claims, the Ferguson court stated: “the legislature did not contemplate a distinction between movable and nonmovable property, but rather sought to exclude transactions which relate primarily to the act of providing a service, such as that provided by an accountant, attorney, or physician.” 555 N.E.2d at 1384-85. [**12] Marsh claims that no such service was provided in his case. We do not find Ferguson dispositive. The crucial issue in Ferguson concerned whether the real estate improvement statute of limitations or the products liability statute of limitations applied to the plaintiffs’ products liability claim. Thus, the Ferguson court discussed whether property affixed to real estate constitutes a product. Such is not the issue in the present case.

2 See now Ind. Code § 34-6-2-136

3 See now Ind. Code § 34-6-2-114

We find Hill v. Rieth-Riley Const. Co., Inc., 670 N.E.2d 940 (Ind. Ct. App. 1996) more applicable to the set of facts presented here. In Hill, the defendants removed and reset guardrails to facilitate the resurfacing of U.S. 31. The plaintiff struck one of these guardrails and brought suit against the defendants under the Indiana Products Liability Act. This court held that the contract between the Indiana Department of Transportation and the plaintiffs was predominantly a contract for [**13] services. The Hill court stated: “even if it were true that 31 new concrete plugs were installed and some rusted rails replaced, the [plaintiffs] have presented no evidence that this contract was not “for the most part” about the service of resurfacing the roadway.” 670 N.E.2d at 943. In this case, the transaction between Marsh and Dyna Soar wholly involved a service. By purchasing a ticket from Dyna Soar, Marsh received the limited right to ride the Dyna Soar machine. He did not receive an interest in any property. In fact, Dyna Soar retained all rights to operate and control the machine in question. We conclude that the trial court did not err by entering summary judgment against Marsh on his products liability claim.

Affirmed in part and reversed in part.

BAKER, J., and GARRARD, J., concur.


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

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

Patti J. Roberts and David Roberts, Plaintiffs-Appellants-Petitioners, v. T.H.E. Insurance Company, Sundog Ballooning, LLC, Kerry M. Hanson and Jodi L. Hanson, Defendants-Respondents, Dean Health Plan, Inc., Defendant.

No. 2014AP1508

SUPREME COURT OF WISCONSIN

2016 WI 20; 2016 Wisc. LEXIS 121

December 15, 2015, Oral Argument

March 30, 2016, Filed

NOTICE:

THIS OPINION IS SUBJECT TO FURTHER EDITING AND MODIFICATION. THE FINAL VERSION WILL APPEAR IN THE BOUND VOLUME OF THE OFFICIAL REPORTS.

PRIOR HISTORY: [**1] REVIEW of a decision of the Court of Appeals. COURT: Circuit. COUNTY: Dodge. JUDGE: Joseph G. Sciascia. (L.C. No. 2013CV391).

Roberts v. T.H.E. Ins. Co., 2015 WI App 37, 363 Wis. 2d 656, 2015 Wisc. App. LEXIS 229 (2015)

DISPOSITION: Reversed and cause remanded.

COUNSEL: For the plaintiffs-appellants-petitioners, there were briefs by Timothy S. Knurr and Gruber Law Offices, LLC, Milwaukee and oral argument by Timothy S. Knurr.

For the defendants-respondents, there was a brief by Ward I. Richter, David G. Ress and Bell, Moore & Richter, S.C., Madison, WI and oral argument by David G. Ress.

JUDGES: ANN WALSH BRADLEY, J. ANNETTE KINGSLAND ZIEGLER, J. (concurring). DAVID T. PROSSER, J. (concurring in part; dissenting in part). REBECCA G. BRADLEY, J. (dissenting).

OPINION BY: ANN WALSH BRADLEY

OPINION

[*P1] ANN WALSH BRADLEY, J. Petitioners, Patti and David Roberts, seek review of an unpublished court of appeals decision that affirmed the circuit court’s order for summary judgment, dismissing their claims.1 The court of appeals determined that Wisconsin’s recreational immunity statute barred the petitioners’ claims because Patti Roberts was engaged in the recreational activity of hot air ballooning at the time she was injured.2

1 Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., (Wis. Ct. App. Mar. 26, 2015) (affirming order of summary [**2] judgment entered by the circuit court for Dodge County, Joseph G. Sciascia, J., presiding).

2 Although Patti’s husband, David Roberts, is also a petitioner, we will refer to Patti Roberts as the lone petitioner for ease of discussion.

[*P2] Roberts argues that the respondents, Sundog Ballooning, LLC, Kerry Hanson, Jodi Hanson, and T.H.E. Insurance Company (collectively “Sundog”) are not entitled to immunity pursuant to Wis. Stat. § 895.52 because Sundog was not an owner under the statute. She contends that Sundog was neither an “occupier” of the land nor was the hot air balloon “property.”3

3 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.

[*P3] In reply, Sundog asserts that even if it were not entitled to immunity under Wis. Stat. § 895.52, Roberts’ claims are barred because she signed a waiver of liability form.

[*P4] We conclude that Sundog is not entitled to recreational immunity pursuant to Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an “occupier” of the land and the hot air balloon was not “property” because it was not a “structure.”4 Finally, we determine that Sundog’s waiver of liability form violates public policy and is unenforceable as a matter of law. Accordingly, [**3] we reverse the court of appeals and remand to the circuit court for further proceedings.

4 Roberts also argues that Sundog is not entitled to immunity under Wis. Stat. § 895.52 because Sundog’s negligence was not associated with a condition of the land. We need not reach this argument because we conclude that Sundog was not an owner under the statute. The issue of whether a party’s negligence is associated with a condition of the land applies only if that party is an owner under the statute. See, e.g., Linville v. City of Janesville, 184 Wis. 2d 705, 719, 516 N.W.2d 427 (1994); see also Kosky v. Int’l Ass’n of Lions Clubs, 210 Wis. 2d 463, 475, 565 N.W.2d 260 (Ct. App. 1997).

I.

[*P5] The relevant facts of this case are undisputed. Patti J. Roberts was injured at a charity event sponsored by Green Valley Enterprises (“Green Valley”). Beaver Dam Conservationists, LLC (“the Conservationists”) owned the shooting range where the charity event was held.

[*P6] Sundog Ballooning, LLC was the owner and operator of a hot air balloon providing tethered rides at the event. Kerry and Jodi Hanson, the owners of Sundog, donated hot air balloon rides to promote Green Valley’s charity event.

[*P7] On the day of the event, Sundog set up a display, a sign-up table and a waiting area for the ride. The hot air balloon was tethered to two trees and a pick-up truck. During rides, the balloon operator raised [**4] the balloon to the length of the ropes and then lowered it back to the ground.

[*P8] Patti Roberts and her family watched the balloon rides and then entered the line to take a ride. While in line, Sundog gave Roberts a waiver of liability form that she was required to sign prior to riding in the hot air balloon. Roberts signed the waiver form, but never returned it to Sundog. The signed waiver form was found on the event grounds after Roberts sustained her injuries.

[*P9] The liability waiver form states in part:

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

Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, [**5] arising out of the ballooning activities . . . .

[*P10] After signing the form, Roberts waited in line for 20 to 30 minutes. During this time, strong winds caused one of the balloon’s tether lines to snap. As a result, the untethered balloon moved toward the spectators in line. Roberts was injured when she was struck by the balloon’s basket and knocked to the ground.

[*P11] 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.

[*P12] Hot air ballooning is governed by FAA guidelines and rules. See, e.g., Fed. Aviation Admin., U.S. Dep’t. of Transp., Pub. No. FAA-H-8083-11A, Balloon Flying Handbook 7-13 (2008). The FAA’s safety recommendations instruct the balloon operator to plan for the failure of one or more of the tethered lines and have a backup plan for safety. See id. at 7-14. In addition, the operator should organize participants [**6] “far back” from the balloon and tether lines. Id. At his deposition, Hanson agreed that had he moved the sign-up table and waiting line further back from the balloon, Roberts would not have been injured.

[*P13] Roberts filed a lawsuit against Sundog, alleging that its negligence caused her injuries. Sundog moved the circuit court for summary judgment, arguing that it is entitled to immunity under Wis. Stat. § 895.52 and that Roberts’ claims were barred by the waiver of liability form that she signed.

[*P14] The circuit court granted Sundog’s summary judgment motion, dismissing Roberts’ claims and concluding that Sundog was entitled to immunity under Wis. Stat. § 895.52. It also determined that the waiver of liability form Roberts signed was valid as a matter of law, although an issue of fact remained as to whether she had accepted the terms.

[*P15] On appeal, Roberts argued that Sundog is not entitled to immunity because her injury was not related to a condition associated with the land. Roberts asserted that under Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994) and Kosky v. Int’l Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), no immunity attaches for negligent conduct unassociated with the land.

[*P16] The court of appeals rejected Roberts’ argument, determining that it was “based on a misreading of the case law . . . which has no application to the [**7] facts of this case.”5 See Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶17 (Wis. Ct. App. Mar. 26, 2015). It explained that this was “the only argument that Roberts makes directed to the application of Wis. Stat. § 895.[52].” Id., ¶22. The court of appeals did not address the validity of the liability waiver form because its decision as to immunity disposed of the appeal. Id., ¶2 n.2.

5 This Court has previously expressed its concern that the recreational immunity statue is often difficult to apply and has recommended that the legislature reexamine this statute. See, e.g., Auman v. School Dist. Of Stanley-Boyd, 2001 WI 125, ¶11, 248 Wis. 2d 548, 635 N.W.2d 762 (“This court has wrestled with applying the recreational immunity statute . . . since its enactment. . . . We continue to be frustrated in our efforts to state a test that can be applied easily because of the seeming lack of basic underlying principles in the statute.”); see also Urban v. Grasser, 2001 WI 63, ¶12, 243 Wis. 2d 673, 627 N.W.2d 511 (“Circuit courts, the court of appeals, and this court have wrestled with recreational immunity since the legislature first provided for such immunity under the law. We have all been frustrated by the seeming lack of basic underlying principles in our efforts to state a test that can be easily applied.”).

[*P17] Before this court, Roberts renews her argument [**8] that Sundog’s negligence was not connected to a condition associated with the land. Because this court ordered briefing on an additional issue, she also asserts that Sundog is not entitled to immunity under Wis. Stat. § 895.52 because it is not an owner under the statute. Roberts argues that Sundog was not an “occupier” of the land and that the hot air balloon was not “property” because it was not a “structure.” Sundog replies that even if it is not entitled to immunity under Wis. Stat. § 895.52, Roberts’ claims are barred because she signed a waiver of liability form.

II.

[*P18] In this case we are asked to review the circuit court’s grant of summary judgment. [HN1] We review grants of summary judgment applying the same methodology employed by the circuit court. Belding v. Demoulin, 2014 WI 8, ¶13, 352 Wis. 2d 359, 843 N.W.2d 373. Summary judgment is appropriate if “there is no genuine issue as to any material fact and [] the moving party is entitled to [] judgment as a matter of law.” Wis. Stat. § 802.08(2).

[*P19] Here, there is no genuine issue of material fact. Accordingly, we focus on whether the application of Wis. Stat. § 895.52 bars Roberts’ claims. [HN2] Statutory interpretation presents a question of law that we review independently of the determinations rendered by the circuit court and the court of appeals. State v. Dinkins, 2012 WI 24, ¶28, 339 Wis. 2d 78, 810 N.W.2d 787.

[*P20] [HN3] In interpreting a statute we begin [**9] by examining its language, giving words and phrases their common, ordinary, and accepted meaning. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110. Statutory language must be interpreted reasonably to avoid absurd or unreasonable results. Id., ¶46.

[*P21] [HN4] When the legislature has expressly stated the purpose of a statute, the purpose is relevant to the plain meaning interpretation of the statute. See id., ¶48. “[A] plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose.” Id., ¶49.

[*P22] [HN5] In examining an exculpatory contract, we likewise apply the same summary judgment methodology as employed by the circuit court. See Richards v. Richards, 181 Wis. 2d 1007, 1010-11, 513 N.W.2d 118 (1994) (citing Dobratz v. Thomson, 161 Wis. 2d 502, 513, 468 N.W.2d 654 (1991)). The validity of an exculpatory contract is reviewed as a matter of law. Id. at 1011.

III.

[*P23] We begin our analysis with a brief explanation of what is not in dispute. Neither party disputes that Roberts was participating in a recreational activity at the time she was injured because ballooning is listed in the statutory definition of “recreational activity.” [HN6] Wis. Stat. § 895.52(1)(g) defines “recreational activity” as: [A]ny outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. “Recreational activity” includes hunting, fishing, trapping, [**10] camping,… ballooning, hang gliding, hiking . . . .” (emphasis added).

[*P24] Furthermore, “[t]he case law is clear that a spectator who attends a recreational activity is engaged in a recreational activity.” Meyer v. School Dist. Of Colby, 226 Wis. 2d 704, 710, 595 N.W.2d 339 (1999); see also Linville, 184 Wis. 2d at 717 (concluding that preparation for a recreational activity that takes place at a recreational facility that is open for public use is a “recreational activity” as defined by Wis. Stat. § 895.52(1)(g)). 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).

A.

[*P25] Although Roberts does not dispute that she was engaged in a recreational activity, she does contest the issue of immunity. Roberts argues that Sundog is not entitled to immunity as an occupier of the property where she was engaged in a recreational activity.

[*P26] The recreational immunity statute Wis. Stat. § 895.52 provides:

(2) [HN7] 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. [**11]

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 . . . .

[*P27] [HN8] Wis. Stat. § 895.52(1)(d)1 defines an “owner” as “[a] person, including a governmental body or nonprofit organization, that owns leases or occupies property.” Wis. Stat. § 895.52(1)(f) further defines “property” as “real property and buildings, structures and improvements thereon . . . .”

[*P28] The legislative purpose of the recreational immunity statute is set forth in 1983 Wis. Act 418, § 1. Its stated purpose is to limit liability in order to encourage property owners to open their lands to the public:

The legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit. While it is not possible to specify in a statute every activity which might constitute a recreational activity, [**12] this act provides examples of the kinds of activities that are meant to be included, and the legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability . . . . 1983 Wis. Act 418, § 1.

As our cases have explained, “the impetus for this law is the continual shrinkage of the public’s access to recreational land in the ever more populated modern world.” Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 489, 431 N.W.2d 696 (Ct. App. 1988).

[*P29] In reply, Sundog argues that it is entitled to recreational immunity because Roberts was injured at an event similar to those in prior cases. Sundog asserts that it is entitled to immunity as an “occupier” of the land, for the same reasons that the producer of a fair or event qualifies for recreational immunity. Prior cases interpreting Wisconsin’s recreational immunity law have concluded that the producer of a fair or event “occupied” property. See, e.g., Id., at 490; Lee v. Elk Rod & Gun Club, Inc., 164 Wis. 2d 103, 106, 473 N.W.2d 581 (Ct. App. 1991); Weina v. Atlantic Mut. Ins. Co., 179 Wis. 2d 774, 777 n.2, 508 N.W.2d 67 (Ct. App. 1993).

[*P30] As Sundog’s counsel aptly argued, Wisconsin courts have concluded private organizations hosting an event on land they did not own are entitled to recreational immunity. In Hall, the plaintiff was injured when he stepped in a hole on the grounds of [**13] the Turtle Lake Village Park during a fair sponsored by the Turtle Lake Lions Club. 146 Wis. 2d at 487. The Lion’s Club was not the titled owner of the land on which it held the fair. Id. at 490. The court of appeals concluded that the Lions Club was entitled to recreational immunity as a “landowner” that allowed Hall entry for “recreational activity.” Id. at 487-89.

[*P31] Likewise, in Lee, the plaintiff was injured when he slipped and fell on icy ground beneath a tent erected by the Elk Rod & Gun Club for a fishing contest on Bugle Lake. 164 Wis. 2d at 105. Lee explained that “[t]he club, as an occupant of the city park land, is treated as a landowner for purposes of recreational immunity.” Id. at 107 (citing Hall, 146 Wis. 2d at 490-91).

[*P32] Again, in Weina, the plaintiff was injured playing softball at a church picnic held at a public park. 179 Wis. 2d at 776. The plaintiff sued both the church and the teammate who hit the injurious baseball. Id. Granting summary judgment in favor of the church, the circuit court denied the teammate’s motion for summary judgment. Id. at 777 n.1. The court of appeals affirmed the circuit court’s judgment that the church, as the event organizer, was entitled to immunity. Id. at 779.

[*P33] This case is different from prior cases, however, because Roberts did not bring claims against the event producer or owner of the property. Green Valley [**14] Enterprises, not Sundog, produced the charity event where Roberts was injured. The Conservationists, not Sundog, was the owner of the property where the event took place. None of the prior cases interpreting Wis. Stat. § 895.52 has granted immunity to a third party not responsible for opening up the land to the public.6

6 Wis. Stat. § 895.52(2) grants immunity to officers, employees, or agents of an owner. Because the parties in this case did not argue or brief the issue of whether Sundog was an officer, employee, or agent of either the Conservationists or Green Valley, we do not address it. [HN9] We need not address issues that have not been raised or argued by the parties. See, e.g., State v. Steffes, 2013 WI 53, ¶28, 347 Wis. 2d 683, 832 N.W.2d 101.

[*P34] The distinction between Sundog and the producer of a fair or event is supported by case law analyzing the definition of “occupy” in the context of the statute’s policy. In Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 355, 575 N.W.2d 734 (Ct. App. 1998), the court of appeals held that the owner of an ice shanty was not an occupier under Wis. Stat. § 895.52. As Doane explained, [HN10] “occupy” is defined as “to take and hold possession.” Id. at 354 (citing Webster’s New Collegiate Dictionary 794 (8th ed. 1974)). The term “occupy,” as it is used in Wis. Stat. § 895.52, has been defined as “requiring a degree of permanence, as opposed to mere use.” Id. (citations ommitted).

[*P35] Underlying [**15] the Doane decision was the same statutory policy at issue here. As Doane explained, to define the owner of the ice shanty as an occupier “would not further the policy which underlies the statute, i.e., of opening as much property as possible for recreational use, because the lake was already held in trust for public recreational purposes, such as fishing.” Id. at 355. Here, as in Doane, defining Sundog as an “occupier” would not further the policy underlying the statute because the Conservationists’ property was already open for public recreational purposes.

[*P36] The Linville court also explained that we must consider whether immunity will encourage landowners to open the land for public use:

The benefits of granting immunity, i.e., encouraging landowners to open their lands to the public, comes from immunizing people or municipalities in their capacities as landowners . . . . Extending immunity to landowners for negligently performing in a capacity unrelated to the land . . . will not contribute to a landowner’s decision to open the land for public use.

184 Wis. 2d 705, 516 N.W.2d 427.

[*P37] Here, it was Green Valley and the Conservationists—- not Sundog—-that were responsible for opening the land to the public. The Conservationists [**16] 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.

[*P38] We also find Linville instructive in determining the logical stopping point for immunity. In Linville, the court analyzed whether granting immunity to city paramedics could create limitless immunity for all medical services provided for injuries sustained while recreating. 184 Wis. 2d 705, 516 N.W.2d 427. “Such services could conceivably take place days or even weeks after the recreational activity, at facilities far removed from the site of recreation, and by persons in no way connected to the land on which the accident occurred.” Id. at 720. “Such a result is absurd, leaves immunity limitless, and therefore could not have been intended by the legislature.” Id.

[*P39] [HN11] Wis. Stat. § 895.52 “was not enacted to provide indiscriminate immunity for landowners without regard to possible consequences.” Id. at 719 (quoting Ervin v. City of Kenosha, 159 Wis. 2d 464, 477, 464 N.W.2d 654 (1991)). Extending immunity to Sundog could [**17] lead to limitless immunity. Sundog is not the owner of the land. It is not occupying the land as an event organizer and is therefore not responsible for opening up the land to the public. If Sundog—-who has no connection to the land—-is granted immunity, there will be no stopping point to recreational immunity.

[*P40] For example, what if Roberts brought a claim against the manufacturer of the hot air balloon that injured her? What if the tether that broke loose was due to a fault in the manufacture of the balloon, rather than the wind? Should the balloon manufacturer, which had no connection to opening the land to the public, be immunized because ballooning is a recreational activity?

[*P41] Granting immunity to third parties that are not responsible for opening up the land to the public is unsupported by our prior case law. In addition, it would create an absurd result with no logical stopping point that does nothing to further the legislative purpose of the statute. Accordingly, we conclude that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 because it was not an “occupier” of the land.

B.

[*P42] Next, Sundog argues that it is entitled to immunity not only as an “occupier” of real property, but [**18] also as an owner of “property” because the hot air balloon is a structure pursuant to Wis. Stat. § 895.52(1)(f). [HN12] “Property” means real property and buildings, structures and improvements thereon. Wis. Stat. § 895.52(1)(f).

[*P43] The term “structure” is not defined in Wis. Stat. § 895.52, and is therefore given its common and ordinary meaning. Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶16, 248 Wis. 2d 567, 636 N.W.2d 727. A “structure” is “something constructed,” or “something made up of a number of parts that are held or put together in a particular way.” Id. (citing American Heritage Dictionary of the English Language, 1782 (3d ed. 1992)). “Structure” is also defined as “[a]ny construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner.” Id. (citing Black’s Law Dictionary, 1424 (6th ed. 1991)).

[*P44] Sundog relies on Peterson, in which this court held that the owner of a tree stand was entitled to immunity as the owner of a “structure” on real property. Id., ¶4. Peterson adopted the court of appeals’ decision in Doane. Peterson, 248 Wis. 2d 567, ¶20. The Doane court identified three categories of property that qualify owners for immunity: (1) real property; (2) buildings, structures and improvements thereon; and (3) waters of the state. Doane, 216 Wis. 2d at 352. Sundog argues that like the tree stand in Peterson, the hot air balloon [**19] is a structure because it was constructed or put together in a particular way and made up of parts joined together.

[*P45] Although it may have been made up of parts joined together, the hot air balloon ride was not constructed on real property. In Peterson, the tree stand was permanent and built or constructed on the real property. See Peterson, 248 Wis. 2d 567, ¶¶5-7. The hot air balloon in this case was transient and designed to be moved at the end of the day. It was also not designed to remain in one place. The balloon was tethered to two trees and a pick-up truck because of the manner in which Sundog was using it on the day of the event. Thus, we conclude that the hot air balloon is not a structure as that term is applied in Wis. Stat. § 895.52(1)(f).

[*P46] Accordingly, we conclude that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an “occupier” of the land and the hot air balloon was not “property” because it is not a “structure.”

IV.

[*P47] Having determined that Sundog is not entitled to immunity under Wis. Stat. § 895.52, we must address whether Roberts’ claims are barred by Sundog’s exculpatory release. Sundog argues that the waiver of liability form that Roberts signed is valid under Wisconsin law. [**20]

[*P48] [HN13] Wisconsin case law does not favor exculpatory agreements. See, e.g., Atkins v. Swimwest Family Fitness Center, 2005 WI 4, ¶12, 277 Wis. 2d 303, 691 N.W.2d 334. “While this court has not held that an exculpatory clause is invalid per se, we have held that such a provision must be construed strictly against the party seeking to rely on it.” Id., ¶12 (citing Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81, 557 N.W.2d 60 (1996); Merten v. Nathan, 108 Wis. 2d 205, 210-11, 321 N.W.2d 173 (1982)).

[*P49] Our analysis of an exculpatory contract begins with examining the facts and circumstances of the agreement to determine if it covers the activity at issue. Atkins, 277 Wis. 2d 303, ¶13 (citing Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 211, 330 N.W.2d 773 (1983), overruled on other grounds). If the contract covers the activity, we proceed to a public policy analysis, “which remains the ‘germane analysis’ for exculpatory clauses.” Id., ¶13 (citing Yauger, 206 Wis. 2d at 86). “We generally define public policy as ‘that principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.'” Id., ¶14 (quoting Merten, 108 Wis. 2d at 213).

[*P50] This court has found [HN14] 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. See, e.g., Merten, 108 Wis. 2d at 214-15; see also Arnold, 111 Wis. 2d at 211-13; Dobratz, 161 Wis. 2d at 526. Our prior decisions have also set forth the factors to apply in analyzing whether a contract is void as a matter of law.

[*P51] In Richards, 181 Wis. 2d 1007, 513 N.W.2d 118, the plaintiff was injured while accompanying [**21] her husband on a trip. The waiver in Richards was both an application for permission to be a passenger and a release of all claims against the trucking company. Id. at 1012. Richards held that the contract was void as against public policy because: (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. Id. at 1011.

[*P52] In Yauger, 206 Wis. 2d 76, 557 N.W.2d 60, an 11-year old skier was killed when she struck a concrete ski lift tower pylon. Prior to the ski season, her father signed an “application” for a season family lift ticket. Id. at 79. The application stated: “I agree that [] [t]here are certain inherent risks in skiing and that we agree to hold [the ski resort] harmless on account of any injury incurred . . . on the [ski resort] premises.” Id. at 79. “Inherent risks” and “premises” were not defined. Id. at 84-85.

[*P53] The Yauger court unanimously concluded that the agreement was void as against public policy because: (1) it failed to clearly, unambiguously, and unmistakably explain to the signatory that he was accepting the risk [**22] 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. Id. at 78.

[*P54] More recently in Atkins, this court considered the enforceability of an exculpatory agreement after a swimmer drowned in a lap pool at a fitness center. Atkins, 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334. As a condition of being allowed to use the center, the swimmer had to complete a guest registration and waiver release statement form. Id., ¶3. The form was preprinted on a five and one-half inch square card, and the entire card was printed in capital letters of the same size, font, and color. Id., ¶4.

[*P55] Atkins held that the waiver was invalid, noting that “Wisconsin case law does not favor [exculpatory] agreements,” and “such a provision must be construed strictly against the party seeking to rely on it.” Id., ¶12. The Atkins court adopted a combination of the Yauger and Richards factors in its decision: (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 [**23] language in question. Id., ¶18; see also Alexander T. Pendleton, Enforceable Exculpatory Agreements: Do They Still Exist?, 78 Wis. Law. 16, 46 (Aug. 2005).

[*P56] Turning to the release at issue in this case, it is undisputed that Sundog required Roberts to sign a waiver prior to riding in the hot air balloon. Roberts signed the waiver while she was waiting in line for the ride, but never returned it. The signed waiver was found on the event grounds after she was injured by the hot air balloon.

[*P57] Sundog argues that Roberts read the release, understood its importance, and understood she was waiving her right to bring a negligence claim. It also asserts that Roberts had the opportunity to bargain and ask questions, but failed to do so. Roberts counters that she never accepted the liability waiver form because she never returned it to Sundog. She also argues that the waiver is void as a matter of law because it violates public policy.

[*P58] We agree with Roberts that the waiver of liability form is unenforceable as a matter of law because it fails to satisfy the factors set forth in our prior case law. Because the waiver is void as a matter of law, we need not address the question of whether Roberts [**24] accepted the agreement.7

7 Additionally, we do not address whether the question of Roberts’ “acceptance” presents a question of fact or law here.

[*P59] First, Sundog’s exculpatory waiver is overly broad and all-inclusive. As our prior cases have explained, [HN15] an agreement cannot be so broad “that it would absolve [the defendant] from any injury to the [plaintiff] for any reason.” Richards, 181 Wis. 2d at 1015 (citing College Mobile Home Park & Sales, Inc. v. Hoffmann, 72 Wis. 2d 514, 521-22, 241 N.W.2d 174 (1976)).

[*P60] The waiver in this case would absolve Sundog for any activity for any reason, known or unknown:

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

Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the ballooning [**25] activities…

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.

[*P61] 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. See Richards, 181 Wis. 2d at 1011. [HN16] “Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity.” Id. at 1016.

[*P62] Sundog concedes that the waiver of liability was a standard form. In order to ride the balloon, Roberts was told she would have to sign “this document.” Sundog did not discuss the content of the waiver or any of the risk associated with ballooning activities or watching others ride with Roberts. There was also no pre-flight meeting as referenced in the agreement. Roberts was not asked if she had any complaints or concerns with the waiver and she did not have an opportunity to negotiate the terms of the waiver.

[*P63] Thus, the liability waiver form is void as a matter of law. It is overly broad, printed on a standard [**26] form, and Sundog did not provide Roberts with an opportunity to bargain over the terms of the contract. As our prior case law demands, [HN17] we will not uphold a waiver of liability that violates public policy.

V.

[*P64] In sum, we conclude that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 because it is not an owner under the statute. Sundog was not an “occupier” of the land and the hot air balloon was not “property” because it was not a “structure.”

[*P65] Accordingly, we reverse the court of appeals and remand to the circuit court for further proceedings.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court for further proceedings.

CONCUR BY: ANNETTE KINGSLAND ZIEGLER; DAVID T. PROSSER (In Part)

CONCUR

[*P66] ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join the opinion of the court because I agree that Sundog is not entitled to recreational immunity under Wis. Stat. § 895.52 (2013-14) and that Sundog’s waiver of liability form is unenforceable. The court appropriately does not reach the questions of whether Roberts’ injuries arose from a condition or maintenance of the land and, if not, whether Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), and Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), preclude the attachment of immunity to Sundog under § 895.52, see majority op., ¶4 [**27] n.4, because resolution of that issue is not necessary to the disposition of this case.

[*P67] I feel compelled to comment briefly on the condition-or-maintenance issue so that the position set forth by the court of appeals below is not read as the only possible view of the matter. Simply stated, while the policy behind the statute is to encourage landowners to open their land to the public, the recreational immunity statute does not cloak a negligent actor with immunity no matter what they do.

[*P68] Unlike the court of appeals below, I conclude that there is a patent “division of functions” at play in this case. Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶20 (Wis. Ct. App. Mar. 26, 2015). Put differently, Sundog’s “immunity for its functions as [occupier] of recreational land cannot shelter its liability for negligently performing another function,” namely the operation of its hot air balloon business. Linville v. City of Janesville, 184 Wis. 2d 705, 711 516 N.W.2d 427 (1994). This conclusion is consistent with Linville, Kosky, and the recreational immunity statute.

[*P69] Wisconsin Stat. § 895.52(2)(b) states in part, “[N]o 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 . . . .” Despite [**28] the broad nature of this language, we concluded in Linville that an “owner” under the statute might sometimes function in a capacity unrelated to its ownership of land, and that the owner should not be immunized against claims that the owner engaged in negligent conduct when operating in that capacity. Linville, 184 Wis. 2d at 720-21. Hence, a municipal owner of a pond in which a four-year-old boy drowned despite the efforts of paramedics employed by the owner was immune under § 895.52 from claims that its pond was negligently maintained, but not immune from claims that it negligently performed in its capacity as provider of paramedic services. Id.

[*P70] This conclusion followed from our recognition that “[t]he policy behind the statute is to encourage property owners to open their lands for recreational activities by removing a property user’s potential cause of action against a property owner’s alleged negligence.” Id. at 715. We reasoned that Wis. Stat. § 895.52 “was not enacted to provide indiscriminate immunity for landowners without regard to possible consequences” and that “[e]xtending immunity to landowners for negligently performing in a capacity unrelated to the land . . . will not contribute to a landowner’s decision to open the land for public use.” Id. at 719 (citation [**29] omitted).

[*P71] The court of appeals applied Linville just a few years later when an individual who suffered injuries assisting in the detonation of fireworks for a display sued the owner of land on which the fireworks display occurred, alleging that the owner had negligently managed the display. Kosky v. Int’l Ass’n of Lions Clubs, 210 Wis. 2d 463, 468-70, 476-77, 565 N.W.2d 260 (Ct. App. 1997). The court of appeals concluded, relying on Linville, that the landowner—-which was an “occupie[r]” under the recreational immunity statute—-was not immune because the allegedly negligent activities of the owner and its employees related to the detonation of fireworks, not “the condition or maintenance of the land” which it owned. Id. at 468, 470 n.3, 476-77. “[R]ecreational immunity,” the court determined, “does not attach to the landowner when an act of the landowner’s officer, employee or agent that is unrelated to the condition or maintenance of the land causes injury to a recreational land user.” Id. at 475.

[*P72] In the instant case, Roberts cites Linville and Kosky and argues that Sundog’s alleged negligence—-the use of an “improper tethering system” and the decision “to proceed with a tethered balloon event in the face of a known storm/gust front”– –did not relate to a condition of the land. Therefore, Roberts argues, immunity does not attach. In dismissing [**30] this argument, the court of appeals declared: “Roberts identifies no . . . division of functions here. Rather, as stated above, Roberts sued Sundog as owner of property on which Patti Roberts was engaging in a recreational activity.” Roberts, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶20.

[*P73] This conclusion is perplexing, because there is a clear potential division of functions in this case: Sundog the property owner (occupier) and Sundog the hot air balloon company owner.1 The approach taken by the court of appeals below leads to the “indiscriminate immunity” against which we warned in Linville, upsetting the balance struck by the Legislature in both ensuring the protection of the public and incentivizing landowners to allow access to their land. Linville, 184 Wis. 2d at 719; see Ervin v. City of Kenosha, 159 Wis. 2d 464, 478, 464 N.W.2d 654 (1991).

1 The division of functions is only “potential” because, as explained, Sundog is not actually an owner under Wis. Stat. § 895.52(1)(d). See majority op. ¶4.

[*P74] Wisconsin Stat. § 895.52 protects property owners who open their land to the public, but it does not necessarily provide a shield to business owners who are negligent in the operation of their business. See § 895.52(1)(d)1. (defining “[o]wner” to mean, inter alia, “[a] person . . . that owns, leases or occupies property” (emphasis added)). Indeed, it is the partial purpose of § 895.52’s sister [**31] statute, § 895.525 (“Participation in recreational activities; restrictions on civil liability, assumption of risk”), “to help assure the continued availability in this state of enterprises that offer recreational activities to the public.” Wis. Stat. § 895.525(1) (emphasis added). These enterprises are nowhere mentioned in § 895.52, which does not pertain to them.

[*P75] The Linville and Kosky courts recognized that Wis. Stat. § 895.52 grants recreational immunity, not sovereign immunity, and that the protections offered by § 895.52 end when a landowner performs negligently in a capacity unrelated to the individual’s ownership of the land. These considerations govern here.

[*P76] A hypothetical helps illustrate. One of the many pleasant diversions included in Wis. Stat. § 895.52(1)(g)’s definition of “[r]ecreational activity” is “rock-climbing.” § 895.52(1)(g). If a landowner in northern Wisconsin owns a piece of property with a cliff on it and wishes, out of the goodness of her heart, to allow the local weekend rock-climbers’ club to use the cliff for practice, the legislature has determined via § 895.52 that she should not be penalized if, for example, an unfortunate climber plummets to his death from the cliff. This seems reasonable enough, as a grant of such immunity encourages the landowner to open the land to climbers [**32] without fear of negative repercussions. See Linville, 184 Wis. 2d at 715. On the other hand, imagine that the landowner decides to capitalize on her property’s attraction and opens an outdoor rock-climbing business, providing training, ropes, and safety equipment to climbers. Under the interpretation of the statute espoused by the court of appeals, if the landowner should decide to continue allowing the unsuspecting local club to climb for free, or opens up her land for a charity event, she can operate her business negligently with respect to the club or to the eventgoers—-snapping ropes, cracked helmets, improper training—-without fear.

[*P77] This hypothetical is not much different than the current case: in both instances there is a potential landowner/occupier who provides access to land but who also allegedly negligently provides recreational activity services on that land.

[*P78] The scope of immunity provided by this reading of Wis. Stat. § 895.52 is potentially enormous, but there is a more reasonable interpretation: the one applied in Linville and Kosky. Assuming that Sundog could be characterized as an “owner” under § 895.52(1)(d)—-and the opinion of the court correctly concludes that it can not, see majority op. ¶4—-then it is immune insofar as it [**33] is sued in its capacity as “owner” of the patch of land on which it was offering free balloon rides. It is not immune, however, insofar as it is sued in its capacity as owner of a hot air balloon company. This is the division of functions that the court of appeals found lacking. Just as holding the cliff-owner in the hypothetical liable for snapping ropes, cracked helmets, and improper training will not discourage the owner from allowing climbers to use the cliff without the involvement of her business, failing to grant Sundog immunity as a business operator will not discourage it from “opening” its land for recreational activities (that is, activities not conducted by Sundog).

[*P79] In fairness, application of the statute to facts such as these produces some cognitive dissonance, because, had Sundog been found to be an “occupie[r],” it would not really be a property owner in the sense that most people are used to thinking about that phrase. Sundog would only be a property owner under the recreational immunity statute because it “occupie[d]” the Conservationists’ land, and it was only occupying the Conservationists’ land because it wanted to offer free balloon rides. But it must be remembered that we are essentially [**34] thinking of two Sundogs for purposes of the Linville/Kosky analysis: business owner Sundog, which provides hot air balloon rides, and occupier Sundog, which stands on the sidelines and watches the eventgoers happily use “its” property free of charge.

[*P80] Importantly, and contrary to what Roberts seems to argue, this interpretation should not be misconstrued to mean that immunity under Wis. Stat. § 895.52 extends only to injuries associated with the physical land itself, e.g., injuries from holes in the ground. Wisconsin Stat. § 895.52(2)(b) provides immunity to owners for any “death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property.” § 895.52(2)(b) (emphases added). But the fact remains that immunity is extended to the “owner,” i.e. the property owner—-not to, for instance, a business operator also on that property. Thus, if someone is accidentally shot while hunting on a landowner’s property, the landowner is seemingly immune from suit against her as landowner (even though the bullet is not “associated” with a condition of the land). But if the landowner also operates a hunting supply shop on the land, opens the land for a charity event, and proceeds to provide negligently-maintained [**35] firearms to participants, it might be that recreational immunity would not attach to the entity in its capacity as a business owner.

[*P81] Ultimately, because Sundog is not an “owner” under Wis. Stat. § 895.52(1)(d), the question of whether it operated in two distinct capacities at the charity event is not relevant to the outcome of this case. However, the court of appeals should not be the only word on this important question, which is wisely left unanswered by the opinion of the court.2

2 Justice Prosser’s partial concurrence criticizes my post-Linville analysis through use of a pre-Linville case, Ervin v. City of Kenosha, 159 Wis. 2d 464, 464 N.W.2d 654 (1991) (and, even more daringly, through use of a pre-1983 Wis. Act 418 case, Wirth v. Ehly, 93 Wis. 2d 433, 287 N.W.2d 140 (1980)). Concurrence, ¶¶125, 127. The partial concurrence notes that the author of Linville was also the sole dissenter from Ervin. Concurrence, ¶128. If the question is whether Linville eroded any of the principles in Ervin, one would think this fact hinders rather than helps the partial concurrence’s case. Regardless, there is no need to attempt to divine the meaning of Linville’s authorship, because my analysis is not “squarely at odds” with Ervin. Concurrence, ¶125.

This is because the City of Kenosha’s (“the City”) actions in Ervin were arguably performed [**36] in its capacity as property owner rather than, for instance, in its capacity as a business owner. The facts underlying that case took place at a beach owned by the City of Kenosha and “staffed by four lifeguards employed and trained by the City.” Ervin, 159 Wis. 2d at 469-70. In the summer of 1987, two minors drowned in the water off the beach. Id. at 468-69. The City was sued, among other things, for the alleged negligence of its lifeguards and for its own allegedly negligent hiring and failure to train them. Id. at 471-72. This court held that the City was immune from such allegations under the recreational immunity statute. Id. at 469.

Returning to my earlier hypothetical, Ervin is analogous to a circumstance in which a cliff-owner (or somebody hired by the cliff-owner) stands by and watches while a climber using the cliff for free plummets to her death. Nothing in Ervin indicates that the City was stepping outside of its role as landowner (indeed, it had not formally interviewed its lifeguards or even provided its lifeguards with “skills testing [or] lifeguard, first-aid or rescue training”). Id. at 471. Put differently, although the Ervin court seemingly rejected an “active/passive negligence distinction” with respect to landowners’ negligence under [**37] the recreational immunity statute, the court said nothing about the operation of the statute when landowners act in a non-proprietary capacity. See, e.g., id., at 476-77 (“If liability were imposed on landowners for negligence in failing to provide adequate safety measures, it would encourage landowners to provide no safety measures.” (emphases added)). That came later, in Linville. As opposed to Ervin, wherein the City had “gratuitously” provided a few “lifeguards” without “skills testing [or] lifeguard, first-aid or rescue training” to stand post on the single parcel of property at issue, id., 471-77, the City of Janesville operated a team of paramedics which provided city-wide services and which had little to do with the ownership of the municipal pond in particular. See State v. Linville, 184 Wis. 2d 705, 720-21, 516 N.W.2d 427.

While I understand the partial concurrence’s reading of Linville and find it to be a reasonable one in isolation, it is at odds with a principal expositor of Linville, Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997). Justice Prosser would need to overrule a substantial amount of law to arrive at his interpretation of the recreational immunity statute.

[*P82] For the foregoing reasons, I respectfully concur.

DISSENT BY: DAVID T. PROSSER (In Part); REBECCA G. BRADLEY

DISSENT

[*P83] DAVID T. PROSSER, J. (concurring in part; dissenting [**38] in part). This case involves an unfortunate accident that occurred at a charity event in Beaver Dam on July 30, 2011. I agree with the majority opinion that “Sundog’s waiver of liability form violates public policy and is unenforceable as a matter of law.” Majority op., ¶4. However, I also agree with the dissenting opinion of Justice Rebecca G. Bradley that “Sundog meets the statutory requirements to obtain recreational immunity because: (1) it falls within the definition of ‘owner,’ which includes ‘a person . . . that . . . occupies property;’ and (2) Patti Roberts engaged in a recreational activity on the property occupied by Sundog.” Dissent, ¶132. Consequently, I join the dissenting opinion of Justice Rebecca Bradley except for footnote 4.

[*P84] My purpose in writing is to reinforce the inexorable logic of Justice Bradley’s dissent and respond to the concurrence of Justice Ziegler.

[*P85] Wisconsin Stat. § 895.52 reads in part as follows:

(2) 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:

. . . .

3. A duty to give warning of an unsafe condition, [**39] 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 . . . any injury to . . . a person engaging in a recreational activity on the owner’s property . . . .

[*P86] Critical to the interpretation of this statute is the definition of “owner.”

“Owner” means either of the following:

1. A person, including a governmental body or nonprofit organization, that owns, leases or occupies property.

2. A governmental body or nonprofit organization that has a recreational agreement with another owner.

Wis. Stat. § 895.52(1)(d).

[*P87] In this case, we should analyze three different entities: (1) Beaver Dam Conservationists, LLC; (2) Green Valley Enterprises; and (3) Sundog Ballooning, LLC (and its owners, Kerry M. Hanson and Jodi L. Hanson) (Sundog).

[*P88] “Beaver Dam Conservationists, LLC . . . owned the shooting range where the charity event was held.” Majority op., ¶5. The shooting club was thus an owner.

[*P89] The shooting club donated use of its property to Green Valley Enterprises, a charitable organization, which opened the property free to the public as part of a charitable fundraiser. Of course, Green Valley could not have opened up the property to the [**40] public if Beaver Dam Conservationists had not “opened up” the property for Green Valley’s charitable event.

[*P90] Green Valley was an “owner” under Wis. Stat. § 895.52(1)(d)1. because it occupied the property with the permission of an owner. In addition, it was an owner under (d)2. if it signed “a recreational agreement” with Beaver Dam Conservationists.1 Whether Green Valley actually signed a “recreational agreement” is not known.

1 “Recreational agreement” is defined in Wis. Stat. § 895.52(1)(h) to mean “a written authorization granted by an owner to a governmental body or nonprofit organization permitting public access to all or a specific part of the owner’s property for any recreational activity.”

[*P91] The principal issue in this court is whether Sundog also is an “owner” by virtue of occupying the property.

[*P92] This was not the principal issue in the circuit court. In fact, this was not an issue at all in the circuit court. In its motion for summary judgment, Sundog explained at length that it was an “owner” under the statute because it occupied the property.

[*P93] The plaintiffs did not dispute this contention. The plaintiffs instead took a different position:

The liability of the Defendant in this case has absolutely nothing to do with the condition [**41] of the land, any structures upon it, or use of the land itself by the Plaintiffs or the Defendant.

. . . .

Negligent acts or decisions not directed at the condition of the land are not entitled to immunity.

[*P94] The Dodge County Circuit Court, Joseph G. Sciascia, Judge, wrote the following: “The [plaintiffs] do not dispute that the plaintiff was on the property for a recreational purpose. The plaintiff raises the issue of whether or not the statute applies in this case because the injury was caused by an act unrelated to the condition or maintenance of the land . . . .”

[*P95] Whether Sundog occupied the property was not an issue in the court of appeals either. The court’s opinion stated:

Roberts does not contest that Sundog was occupying, and therefore was an “owner” of, “property” on which Patti Roberts was engaging in “recreational activity.” See Wis. Stat. § 895.52(1)(d), (f), (g). Roberts also does not dispute that “the activity giving rise to [Patti Roberts’] injury was a ‘recreational activity’ as defined by the statute,” that is, ballooning.

Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op., ¶16 (Wis. Ct. App. Mar. 26, 2015) (alteration in original).

[*P96] The reason why “occupies” is the principal issue in this court is because [**42] this court made it the principal issue by asking the parties to brief it. The court’s order granting review stated in part:

IT IS FURTHER ORDERED that the parties’ briefs shall address the following additional issue:

Whether the defendants/respondents Sundog Ballooning, LLC, Kerry M. Hanson, and Jodi L. Hanson, were “occupiers” of the property in question for purposes of the recreational immunity statute at the time of the accident in question. See Wis. Stat. § 895.52(1)(d); see also Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998).

[*P97] This court has broad authority to ask that additional issues be briefed, but the court should be careful not to fault a party for failing to supply complete evidence on an issue that was not contested, or chide a party for not arguing or briefing an issue that was not necessary because of the party’s success in circuit court on a more encompassing issue. See Majority op., ¶33 n.6.

[*P98] As I see it, Sundog took possession of a large, wide-open space at the recreational property of Beaver Dam Conservationists at the express invitation of Green Valley Enterprises. Its balloon was tethered to two trees and a pickup truck that was brought into and parked on the property. The two trees and truck formed a triangle with the large balloon in [**43] the middle. The Hansons flagged off the whole area. They set up a display and a sign-up table for the balloon ride, and they designated a waiting area for people to line up for a ride. In short, the Hansons completely controlled one section of the property for their ballooning operation. They “filled up” the space. They not only “used” the space but also governed the space during the time they were authorized to be there. In sum, they occupied the property.

[*P99] In Doane, the court of appeals said, “An occupant is one who has actual possession of the property, but is more transient than either a lessee or an owner with legal title.” Doane, 216 Wis. 2d at 351 (citing Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 491, 431 N.W.2d 696 (Ct. App. 1988)). This, in essence, is the rule applied in multiple cases. There can really be no dispute that Sundog satisfied the test of “occupies” under this rule.

[*P100] The Doane court added, however, that “‘occupancy,’ in the statutory sense, signifies a degree of permanence, as opposed to the mere use of the property in question.” Id. (citing Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193, 1197 (7th Cir. 1987)). The Doane court later stated:

“Occupy” is defined as “to take and hold possession.” Webster’s New Collegiate Dictionary 794 (8th ed. 1974). That definition could imply possession for some unstated period of time or it could [**44] be understood in a way in which time is not relevant. Therefore, reasonable persons could differ in their assessments of whether Ehle “occupied” a portion of the lake with his shanty within the meaning of the statute. However, occupy, as used in § 895.52 Stats., has been defined by this court as requiring a degree of permanence, as opposed to mere use. See Hall, 146 Wis. 2d at 491, 431 N.W.2d at 698 (citing Smith, 823 F.2d at 1197).

Id. at 354 (emphasis added).

[*P101] The court of appeals reached the correct decision in Doane, but it did so, at least in part, for the wrong reason. The Hall case never discussed “a degree of permanence” because Hall never quoted that portion of the Seventh Circuit’s opinion. Hall clearly sidestepped the “permanence” part of the Seventh Circuit’s opinion and instead quoted language that the Seventh Circuit had quoted from the underlying District Court decision. The language quoted from the District Court’s decision made absolutely no reference to “permanence.” Until Doane, no Wisconsin case had ever used the phrase “degree of permanence.”

[*P102] The Hall case involved a Lions Club in Turtle Lake that sponsored a fair on the grounds of the Turtle Lake Village Park. The Village granted the Lions permission to use the park. The Hall court said: “[W]hen a third [**45] party such as the Lions Club produces a fair on the land of another, it ‘occupies’ the land within the intended definition.” Hall, 146 Wis. 2d at 490. Then the court quoted language that the Seventh Circuit had quoted from the underlying District Court decision in Smith:

[O]ccupant include[s] persons who, while not owners or tenants, have the actual use of land.. . . . While “occupant” includes [an] owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to [occupies], the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner.

Id. at 491 (alterations in original)(quoting Smith, 823 F.2d at 1197, which had quoted Smith v. Sno Eagles Snowmobile Club, Inc., 625 F. Supp. 1579, 1582 (E.D. Wis. 1986)).

[*P103] If the Doane case is controlling, it substantially changed the law in Wisconsin, disregarding prior court of appeals precedent, when it quoted from the Seventh Circuit’s independent analysis in Smith, rather than language quoted from the District Court’s underlying decision.

[*P104] In the Seventh Circuit case, the losing party, Smith, relied on Labree v. Millville Manufacturing, Inc., 195 N.J. Super. 575, 481 A.2d 286 (N.J. Super. Ct. App. Div. 1984), a New Jersey case in which a contractor was sued after excavating land as part of the construction of a highway. Smith, 823 F.2d at 1196-97. “The excavation and transfer of sand and gravel resulted in [**46] the man-made creation of a twenty acre lake in which people swam on an informal basis.” Id. at 1197. David Labree later dove into the lake and hit his head, rendering him a quadriplegic. Id. The contractor, who was sued after he had left the land, claimed recreational immunity under a New Jersey statute. The New Jersey court said:

We believe use of the word “occupant” in the statute signifies an intent to provide immunity for an entity with a degree of permanence in the occupancy, not merely one who is using the property, as was the case with Gaskill. [Gaskill] “occupied” the property not really as one in occupancy but rather as one removing dirt and gravel from it.

Id. (alterations omitted)(quoting Labree, 481 A.2d at 291).

[*P105] The Seventh Circuit opinion in Smith borrowed the “degree of permanence” language from the New Jersey court and used it against the losing party. But it is very doubtful that the Seventh Circuit intended to create a “degree of permanence” test for “occupants.” Indeed, the Seventh Circuit favorably referred to the language from the underlying District Court opinion, quoted in Hall, when explaining that if the court “were to circumscribe and interpret ‘occupant’ as one in actual possession or exclusive [**47] control the term would be indistinguishable from owner.” Smith, 823 F.2d at 1198. Our court of appeals should not have embraced the phrase “degree of permanence” as established Wisconsin law to bootstrap its decision in Doane.

[*P106] This court cannot adopt the “permanence” test from the Seventh Circuit decision without overruling Hall and numerous other cases, and also effectively ruling that Green Valley Enterprises did not “occupy” the property. If a “permanence” test disqualifies Sundog, it would disqualify Green Valley Enterprises as well because Green Valley did not own or lease the property—-it occupied the property. Green Valley’s few extra hours of occupancy at the shooting range cannot realistically be viewed as being more “permanent” than Sundog’s occupancy.

[*P107] The majority’s decision to disqualify Sundog from any status as an “owner” and send this case back for trial does not end the immunity issue. If Green Valley is still considered an occupant, we must anticipate that Sundog will assert that it was Green Valley’s “agent” under Wis. Stat. § 895.52(2)(a) and (b). There is no definition of “agent” in the recreational immunity statute, meaning that the circuit court may resort to a dictionary. “Agent” is defined as (1) one that acts [**48] or has the power or authority to act, or (2) one empowered to act for or represent another. American Heritage Dictionary of the English Language 33 (3d ed. 1992).

[*P108] Kerry Hanson explained in his deposition that he and his wife lived in Rhinelander but had family ties to Beaver Dam. In fact, his sister, Kristin Hanson, was manager for agency development for Green Valley Enterprises. Kerry Hanson testified as follows:

Q. How was it that it came about that you were going to be involved in this event in the first place?

. . . .

A. –the head of the Green Valley Enterprises, a business that services special needs people, was actually in the neighborhood, saw my balloon tethered. He employs my sister, who is a marketing director for Green Valley Enterprises. He saw it and said, wow, what a cool thing; maybe we could use that at our fundraiser to increase awareness, and I believe that began the process.

Q. And eventually it was agreed that you would do that.

Correct?

A. Right.

Q. And it’s my understanding that you were donating your services that day?

A. Right.

[*P109] In other depositions, witnesses testified that Sundog’s balloon rides were advertised as an attraction for Green Valley Enterprises’ fundraising [**49] event.

[*P110] Under the circumstances, it would be rather difficult to conclude that Sundog was not an “agent” of Green Valley Enterprises if Green Valley was an “owner.”

[*P111] The “agent” of an “owner” is immune under the statute. However, the majority’s conceptual dilemma is that any “agent” in this situation is likely to be “a third party not responsible for opening up the land to the public,” Majority op., ¶33, which the majority now deems essential to qualifying for immunity: “Here . . . defining Sundog as an ‘occupier’ would not further the policy underlying the statute because the Conservationists’ property was already open for public recreational purposes.” Id., ¶35.

[*P112] The majority opinion adds, “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.” Id., ¶37.

[*P113] This analysis would appear to deny immunity to any “officer, employee or agent” who did not “open up the land” to the public.

[*P114] This analysis also is deficient because it ignores the fact that people often come to a property because they have been attracted by the promise of recreational activities there. Example: the Roberts family [**50] came to the shooting range, in part, because they heard there would be balloon rides. If organizations and people providing bona fide recreational activities are stripped of recreational immunity because they did not “open up the land to the public,” they will have to rethink whether they are willing to participate in such activities.

[*P115] In sum, the majority opinion seriously misinterprets the meaning of “owner” in the statute.

[*P116] As noted above, the Robertses contended at trial that recreational immunity must be linked to a “condition of the land, any structures upon it, or use of the land itself.” See supra, ¶93. Justice Ziegler’s concurrence champions this proposition by relying on Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), and Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997).

[*P117] Linville is the tragic case in which a man took a mother and her four-year-old son to a city-owned pond in Janesville. The man intended to take the boy fishing, and he was checking out fishing spots for the next day. Through a series of bizarre events, the man drove his van too close to the water, got stuck in mud, then inadvertently drove the van into the water where he and the boy drowned. Plaintiffs sued the city claiming that the city’s paramedics were negligent in their rescue of the boy and negligent [**51] in providing medical services to the boy. The city defended with a claim of recreational immunity under Wis. Stat. § 895.52.

[*P118] This court first struggled with the question of whether the three people at the pond were engaging in a “recreational activity” at the time two of them died. The court said they were. But that did not settle the question of whether the city could claim recreational immunity for the alleged negligence of its paramedics in the rescue effort.

[*P119] The court determined that the city could not assert recreational immunity for the alleged negligence of its paramedics because it was virtually coincidental that the alleged negligence of the paramedics occurred at a city-owned recreational site and came after a mishap in recreational activity for which the city bore no responsibility.

[*P120] The court said: “The City’s immunity for its functions as owner of recreational land cannot shelter its liability for negligently performing another function.” Linville, 184 Wis. 2d at 711.

[*P121] In discussing this conclusion, the court observed: “We must determine whether this statute immunizes the paramedics and the City simply because the paramedics are employees of the City which owns the Pond.” Id. at 718.

[G]ranting immunity to the landowner when the landowner [**52] and the employer of the negligent employee are functioning in two different capacities and are therefore not the same entity in the eyes of the law would produce absurd consequences. . . . To interpret the language of sec. 895.52(2)(b), Stats., to include injury resulting from negligent rescue and treatment by the paramedics in this case, would produce absurd consequences.

Id. at 719. The court continued: “The paramedics provide emergency medical treatment in every part of the City, no matter the situs. Thus the City’s rescue attempts and medical treatment are separate and apart from the City’s ownership of or activities as owner of recreational land.” Id. at 721.

[*P122] The Linville court bolstered its analysis by repeated reference to the purported purpose of the recreational immunity statute, e.g., property owners should be encouraged to open up land to the public. In my view, this discussion of policy was not necessary to a limitation of immunity and is not relevant when dealing with public land that is intended for use by the public.2

2 Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), also is cited in Justice Ziegler’s concurrence. This case requires close examination.

Kosky involved a man whose hands were badly injured as he was participating in a three-person team detonating [**53] “explosive fireworks” at the annual Fourth of July fireworks celebration in Land O’Lakes, Wisconsin. Kosky sued the Land O’Lakes Lions Club and other sponsors of the show, as well as several co-workers. The defendants claimed recreational immunity under Wis. Stat. § 895.52.

In his brief to the court of appeals, the plaintiff asserted that the “extra-hazardous activity of detonating explosive fireworks” was not a “recreational activity” protected under Wis. Stat. § 895.52. (capitalization and title case omitted.) He also asserted that although he had ties to the area, he came from Niles, Illinois, at the specific request of the Land O’Lakes Lions Club “to perform work tasks with a team of people detonating explosive fireworks.” He declared that he personally was not engaging in recreational activity because he was working, not watching the fireworks.

The court of appeals rejected Kosky’s argument that the detonation of fireworks could not be a recreational activity because it is an inherently dangerous, extra-hazardous activity. Kosky, 210 Wis. 2d at 474. On the other hand, the court was not willing to say that the detonation of fireworks was a recreational activity in the circumstances presented. Instead, the court concluded that “recreational immunity [**54] does not attach to the landowner when an act of the landowner’s officer, employee or agent that is unrelated to the condition or maintenance of the land causes injury to a recreational land user.” Id. at 475.

The Kosky court quoted from Linville: “Extending immunity to landowners for negligently performing in a capacity unrelated to the land or to their employees whose employment activities have nothing to do with the land will not contribute to a landowner’s decision to open the land for public use.” Id. at 476 (quoting Linville, 184 Wis. 2d at 719).

To support this conclusion, Linville cited Ervin v. City of Kenosha, 159 Wis. 2d 464, 472-76, 464 N.W.2d 654 (1991), for the following proposition: “The legislature, in sec. 895.52, Stats., granted immunity to landowners with respect to the condition of the land and to the landowners’ (or its employees’) actions with respect to the land.” Linville, 184 Wis. 2d at 718.

As will be seen, this statement is not an accurate description of Ervin. Moreover, it does not take into account that lessees and occupiers and persons with a recreational agreement cannot “open the land” until the actual landowner puts them in a position to open the land. It also fails to acknowledge that public land is normally open to the public already.

[*P123] Justice Ziegler’s concurrence builds on Linville and would state the law [**55] as follows:

(1) While the policy of the recreational immunity statute encourages landowners to open their land to the public, the recreational immunity statute does not cloak negligent actors with immunity no matter what they do. Justice Ziegler’s concurrence, ¶67.

(2) A “person” who owns, leases, occupies, or has a “recreational agreement” to use recreational property is not sheltered from liability for “negligently performing” another function such as operating or otherwise participating in a “recreational activity,” as defined in Wis. Stat. § 895.52(1)(g). See id., ¶69. An “owner” under the statute “might sometimes function in a capacity unrelated to its ownership of the land, and that . . . owner should not be immunized against claims that the owner engaged in negligent conduct when operating in that capacity.” Id.

[*P124] Justice Ziegler writes that the “municipal owner of a pond in which a four-year-old boy drowned despite the efforts of paramedics employed by the owner was immune under § 895.52 from claims that its pond was negligently maintained, but not immune from claims that it negligently performed in its capacity as provider of paramedic services.” Id. (emphasis added).

[*P125] Justice Ziegler’s summary of the law is squarely [**56] at odds with the court’s discussion in Ervin v. City of Kenosha, 159 Wis. 2d 464, 464 N.W.2d 654 (1991). In that case, two youths drowned at a public beach owned and operated by the City of Kenosha. The youths’ parents sued the City for negligently hiring and failing to properly train and instruct lifeguards, and for the lifeguards’ alleged negligent performance at the time of the drownings. This court was confronted with arguments about separating the City’s ownership of the land from its operation and oversight of the beach by its lifeguards. The court concluded that “the City is immune from liability . . . for its negligence in hiring or failing to properly train the lifeguards, [and] for the lifeguards’ negligent performance.” Ervin, 159 Wis. 2d at 469.

[*P126] The Ervin court’s opinion reads in part:

The parents argue that sec. 895.52(2), Stats., does not immunize the City from liability for the lifeguards’ negligence or for its own negligent hiring and failure to train them. The parents contend that the City’s conduct represented “active” negligence, and that the statute was intended to immunize only “passive” or “condition of the premises” negligence. We disagree because: (a) the plain language of the statute does not support this contention, (b) Wisconsin case law permits immunity under [**57] the recreational use statute for both active and passive negligence, and (c) legislative intent clearly supports granting immunity for both active and passive negligence.

Id. at 472.

[*P127] The Ervin court also quoted approvingly from this court’s decision in Wirth v. Ehly, 93 Wis. 2d 433, 287 N.W.2d 140 (1980):

The statute does not contemplate that the land subject to public recreational use shall remain static. Since the purpose of the statute was to open land for recreational use, it would be inconsistent for the statute to provide protection only if the owner or occupant does not perform any potentially negligent activities on the land.

Ervin, 159 Wis. 2d at 475 (alteration omitted) (quoting Wirth, 93 Wis. 2d at 446).

[*P128] It should be noted that the only justice who dissented in Ervin was Justice William Bablitch, the author of the Linville opinion. In his dissent, Justice Bablitch wrote:

By placing unqualified lifeguards on a public beach, the City of Kenosha . . . created a trap for the unwary. The presence of the lifeguards created the perception of a safe condition that was not justified. I do not agree with the majority that the recreational use statute exempts owners of recreational property from liability when the actions of the owner create a perception of safety that does not in reality exist. [**58] The legislature could not have intended such an absurd result.

Id. at 485 (Bablitch, J., dissenting). In Justice Bablitch’s Linville opinion, the court did not overrule Ervin.

[*P129] In her concurrence, Justice Ziegler formulates a rational policy of limited recreational immunity, but that policy would require this court to overrule a number of cases including Ervin and Wirth, disregard controlling language in the statute, and clean up internal inconsistencies in her own concurring opinion. If we were to assume the correctness of a strict separation of functions analysis, that separation would apply irrespective of whether the separation affects an owner, a lessee, an occupier, a recreational agreement holder, or an officer, employee, or agent of an owner. Neither the concurrence nor the majority opinion has confronted the consequences of such a change in the law.

[*P130] I would not hesitate for a moment supporting the unfortunate victim of this balloon accident if the statute provided a reasonable means to do so. I do not hesitate now to recommend that the legislature promptly review the recreational immunity statute. I respectfully dissent, however, from any notion that the court itself should rewrite the [**59] statute to reach a desirable objective.

[*P131] I am authorized to state that Chief Justice PATIENCE DRAKE ROGGENSACK joins this opinion.

[*P132] REBECCA G. BRADLEY, J. (dissenting). I would affirm the court of appeals1 and hold that Sundog2 is immune from liability under Wisconsin’s recreational immunity statute, Wis. Stat. § 895.52(2).3 Sundog meets the statutory requirements to obtain recreational immunity because: (1) it falls within the definition of “owner,” which includes “a person . . . that . . . occupies property,” and (2) Patti Roberts engaged in a recreational activity on the property occupied by Sundog. See Wis. Stat. § 895.52(1)(d)1., (2)(b). By actually using the land during a charity event, Sundog meets the ordinary and accepted meaning of “occupies.” This conclusion comports with the legislative purpose of recreational immunity and would not, as the majority fears, result in the limitless application of the recreational immunity statute. As a result, I respectfully dissent from the majority opinion because a plain reading of the statute demonstrates Sundog is entitled to recreational immunity.4

1 Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI App 37, 363 Wis. 2d 656, unpublished slip op. (Wis. Ct. App. March 26, 2015).

2 Sundog refers to the Respondents: Sundog Ballooning, [**60] LLC, Kerry Hanson, Jodi Hanson, and T.H.E. Insurance Company. See majority op., ¶2.

3 Whether Sundog met the statutory definition of an “owner” in Wis. Stat. § 895.52(1)(d)1. was not an issue before the court of appeals. In our order granting the petition for review, this court ordered the parties to brief and address that issue.

4 Because Sundog is entitled to recreational immunity, I would not reach the issue of whether the waiver of liability violates public policy.

Similarly, because I conclude that recreational immunity applies to Sundog, it is unnecessary to decide whether Sundog qualifies for recreational immunity based on its argument that the hot air balloon constitutes “property” under Wis. Stat. § 895.52(1)(f). I disagree, however, with the majority’s conclusion that because the hot air balloon was not “constructed on real property” it fails to meet the definition of property in the statute. See majority op., ¶45. Although the majority’s structure analysis could be read to require that the structure be built or put together on site, the majority suggests that for purposes of recreational immunity, a structure must be permanently affixed to real property. This requirement is not found in the text of the recreational immunity statute, [**61] but the majority imposes the requirement based on Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶17, 248 Wis. 2d 567, 636 N.W.2d 727. Peterson held that a tree stand used for hunting constituted a structure within the meaning of Wis. Stat. § 895.52(1)(f). Id., ¶4. The majority asserts that unlike Sundog’s hot air balloon, “the tree stand was permanent and built or constructed on the real property.” Majority op., ¶45. This differentiation between a hot air balloon and a tree stand, however, should not determine whether Sundog’s hot air balloon meets the common and ordinary meaning of the word “structure.”

Based on the statutory language alone, Sundog’s alternative argument for recreational immunity fails because Patti Roberts did not ever enter or get on the hot air balloon, which is required by the recreational immunity statute. See Wis. Stat. § 895.52(2)(a)(making recreational immunity available to owners when a person “enters the owner’s property”); see also Wis. Stat. § 895.52(2)(b)(making recreational immunity available to owners when “a person engag[es] in a recreational activity on the owner’s property”) (emphases added).

[*P133] Subject to exceptions not applicable in this case, property “owners,” as defined by Wis. Stat. § 895.52(1)(d)1.-2., are immune from liability for injuries sustained as a result of recreational activities that occur on their property. See Wis. Stat. § 895.52(2). The parties [**62] dispute whether Sundog meets the statutory definition of an “owner” to qualify it for recreational immunity. Applicable here is § 895.52(1)(d)1., which defines an owner as: “A person, including a governmental body or nonprofit organization, that owns, leases or occupies property” (emphasis added).5 There is no assertion that Sundog owns legal title to the property or that it leased the property in question. The only way that Sundog meets the statutory definition of “owner” is if Sundog “occupies [the] property.” See § 895.52(1)(d)1.

5 It is not disputed that Sundog Ballooning, LLC qualifies as “a person” in the definition of “owner” found in Wis. Stat. § 895.52(1)(d)1.

[*P134] Unlike “owner,” the word “occupies” is not defined in the recreational immunity statute. However, the plain, ordinary, and accepted meaning of “occupies” can be readily determined by reference to the dictionary definition of an “occupant.” An occupant is “[o]ne that resides in or uses a physical space.” Occupant, The American Heritage Dictionary of the English Language 1218 (5th ed. 2015). This definition indicates that a person who occupies property is one who has actual use of the property.

[*P135] Here, Sundog donated tethered, hot air balloon rides at a charity event sponsored by Green [**63] Valley Enterprises. To provide this recreational ballooning activity, Sundog set up the tethered hot air balloon on property legally owned by Beaver Dam Conservationists, LLC. It used both ropes and flags to designate an area surrounding the hot air balloon. These facts show that Sundog actually used the property to provide a recreational activity, ballooning, (specifically mentioned by Wis. Stat. § 895.52(1)(g)) when Patti Roberts sustained injuries. This actual use of the property meets the plain, common, and ordinary meaning of “[a] person . . . that . . . occupies property.” See Wis. Stat. § 895.52(1)(d)1. Therefore, Sundog meets the definition of a statutory owner as one who occupied the property and therefore is entitled to recreational immunity.

[*P136] This conclusion is consistent with the legislative purpose of the recreational immunity statute: to “limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit.” 1983 Wis. Act 418, § 1. This statement of legislative purpose is often summarized as “encourag[ing] landowners to open up their land for recreational activity.” Ervin v. City of Kenosha, 159 Wis. 2d 464, 477, 464 N.W.2d 654 (1991) (emphasis added); see majority op., ¶28. The [**64] purpose of the recreational immunity statute, however, is much broader as evidenced by the legislature’s decision to include in its definition of “owner” both lessees and occupiers of property. In interpreting the meaning of “property” defined by Wis. Stat. § 895.52(1)(f), we reached a similar conclusion: “[I]t is abundantly clear from the language of the statute and the statement of legislative intent that the purpose of the statute is broader, and recreational immunity is not in fact limited only to landowners.” Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶22, 248 Wis. 2d 567, 636 N.W.2d 727.

[*P137] This broad legislative purpose, evidenced by the legislative policy statement read in conjunction with the statutory text refutes the majority’s claim that “[i]mmunizing 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.” See majority op., ¶37.

[*P138] Here, Sundog provided the recreational ballooning activity free of cost to members of the public who attended the charity event. Depriving Sundog of immunity because Green Valley and the Conservationists, rather than Sundog, “opened” the land to the public, creates a distinction between Sundog on the one hand, and Green Valley and the Conservationists on the other, that is not [**65] only unsupported by the broad legislative purpose of the recreational immunity statute but wholly absent from the statutory definition of the term “owner.” Furthermore, the creation of this unsupported distinction ignores the fact that the Conservationists allowed Green Valley to hold an event that included a recreational ballooning activity provided by Sundog. Sundog’s participation in the charity event undoubtedly encouraged the public to attend the event and, in some instances, take part in the recreational ballooning activity. Declining to recognize Sundog’s statutory immunity will discourage organizations such as Sundog from donating recreational activities at charity events for fear of incurring liability, which, in turn, will reduce sponsorship of such events by organizations because they will have less recreational options—-if any at all—-to draw attendance. Ultimately, public access to private land will be reduced. This runs counter to the legislative purpose of the recreational immunity statute.

[*P139] As further support for its decision to treat Sundog differently than Green Valley and the Conservationists, the majority indicates that prior case law has not granted immunity to [**66] a “third-party” organization such as Sundog. See majority op., ¶33. Simply because the appellate courts apparently have not previously been presented with a similar fact pattern does not eliminate immunity created by the statute. Sundog satisfies the requirements of the statute and therefore is entitled to the immunity it provides.

[*P140] Further, the majority does not explain how its conclusion—-that an organization such as Sundog that did not open land to the public cannot “occupy” the property—-accounts for the plain, ordinary, and accepted meaning of the term “occupies.” See majority op., ¶41. Although the majority opinion references the “requiring a degree of permanence, as opposed to mere use” definition of “occupies” utilized by the court of appeals in Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 354, 575 N.W.2d 734 (Ct. App. 1998), majority op., ¶34, it fails to apply the Doane definition to the facts of this case and fails to address the fact that the court of appeals has used differing definitions of “occupies,” as explained below, when determining whether an individual or group meets the definition of “owner” in Wis. Stat. § 895.52(1)(d)1.

[*P141] On several occasions, the court of appeals has addressed the meaning of “occupies” in the definition of “owner” under Wis. Stat. § 895.52(1)(d)1. and concluded that “occupies” [**67] requires actual use of the property. In Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 490-91, 431 N.W.2d 696 (Ct. App. 1988), the court of appeals adopted a definition of “occupies” from a case decided by the Seventh Circuit Court of Appeals:

[O]ccupant include[s] persons who, while not owners or tenants, have the actual use of land . . . . While “occupant” includes [an] owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to [occupies], the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner.

Id. at 491 (citing Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193, 1197 (7th Cir. 1987))(quoting Smith v. Sno Eagles Snowmobile Club, Inc., 625 F. Supp. 1579, 1582 (E.D. Wis. 1986)).6 Subsequent cases have cited Hall and relied on its definition of “occupies property.” See Leu v. Prince Cty. Snowmobile Trails Ass’n, Inc., 2005 WI App 81, ¶¶11-13, 280 Wis. 2d 765, 695 N.W.2d 889; Mooney v. Royal Ins. Co. of Am., 164 Wis. 2d 516, 521-22, 476 N.W.2d 287 (Ct. App. 1991); Lee v. Elk Rod & Gun Club, Inc., 164 Wis. 2d 103, 107, 473 N.W.2d 581 (Ct. App. 1991).

6 Although Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193 (7th Cir. 1987), applied Wis. Stat. § 29.68, the precursor to Wis. Stat. § 895.52, both statutes grant recreational immunity to owners, lessees, and occupants. Compare Wis. Stat. § 29.68(1)(1981-82) with Wis. Stat. § 895.52(1)(d)1. and (2) (2013-14).

[*P142] However, in Doane, the court of appeals determined that “occupies property” within the definition of “owner” under Wis. Stat. § 895.52(1)(d)1. requires some degree of permanence in addition to actual use of the property. Doane, 216 Wis. 2d at 351. The court of appeals recently applied the some degree of permanence definition of “occupies” from Doane in WEA Property & Cas. Ins. Co., 2013 WI App 139, ¶21, 352 Wis. 2d 73, 841 N.W.2d 290.

[*P143] The majority, however, fails to apply the some degree of permanence definition of Doane [**68] to the facts of this case. Instead, it compares this case to Doane by focusing on the purpose underlying the recreational immunity statute—-to open up land for recreation. Majority op., ¶35. Doane involved the owner of an ice shanty on a lake already open for public recreational purposes, who was not present at the invitation of the titled owner or lessee but who was simply using public waters as any member of the public could. See Doane, 216 Wis. 2d at 348, 353-54. An entirely different situation is presented here, where Sundog, the owner of a hot air balloon, was invited to occupy land for purposes of attracting members of the public to a charity event by offering the recreational activity of ballooning. The majority likens Sundog to the owner of the ice shanty because the Conservationists’ property, like the lake in Doane, was already open for public recreational purposes; therefore, the majority reasons, recognizing immunity “‘would not further the policy which underlies the statute, i.e., of opening as much property as possible for recreational use . . . .'” Majority op., ¶35 (citing Doane, 216 Wis. 2d at 355). The majority’s analogy fails because in Hall, 146 Wis. 2d at 487, the Turtle Lake Lions Club was immunized from liability for an injury occurring on [**69] the grounds of a public park and in Lee, 164 Wis. 2d at 107, the Elk Rod & Gun Club was considered a “landowner” under the recreational immunity statute as an occupant of a city park. The recreational immunity statute simply does not restrict immunity to occupiers of land that is not already open to the public.

[*P144] The definition of “occupies” adopted in Hall comports with the plain, ordinary, and accepted meaning of the word as well as the legislative purpose of the recreational immunity statute. There is no temporal requirement embedded in the definition of occupy. The broad definition of “owner,” which expressly encompasses a person that “occupies” property, is not limited to those who “host” or “organize” an event on the land. The recreational immunity statute immunizes a person that “owns, leases or occupies property”; the statute does not restrict immunity to only those occupiers who are event “hosts” or “organizers,” a limitation the majority invents in this case. In an apparent attempt to further narrow the scope of recreational immunity beyond the words of the statute, the majority reads into the statute language that simply is not present. Whether recreational immunity should be further limited is [**70] a policy judgment for the legislature and not this court to make.

[*P145] Furthermore, I am not persuaded by the majority’s conclusion that granting recreational immunity to Sundog would result in the limitless application of Wis. Stat. § 895.52(2). See majority op., ¶¶38-40. A plain meaning interpretation of “occupies property,” requires actual use of the land. For example, in Mooney, 164 Wis. 2d at 522-23, the court of appeals held that a snowmobile club that had left the property following the conclusion of an event did not meet the definition of an occupier and could not receive recreational immunity. The same would be true of a hot air balloon manufacturer because the manufacturer is not located on the property at the event using the land, and therefore is not an “occupier.” It should go without saying that the recreational immunity statute does not extend to the manufacturer of Sundog’s balloon yet the majority uses this example to create an unnecessary limiting principle by stirring unfounded fears that otherwise “there will be no stopping point to recreational immunity” despite statutory language that plainly restricts immunity to those who own, lease or occupy property. See majority op., ¶39. Of course, the manufacturer of Sundog’s [**71] balloon fits none of these categories. The legislature created a stopping point. It is not this court’s role to second-guess the legislature’s policy judgments by moving the mark.

[*P146] Finally, the majority relies on Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), to declare a new limiting principle for recreational immunity. Majority op., ¶¶38-39. In Linville, the court declined to extend immunity to city paramedics providing services for injuries sustained during a recreational activity, noting that such services could take place days or weeks after the event and away from the site of the recreational activity. Linville, 184 Wis. 2d at 711, 720. Specifically, relying on Linville, the majority asserts that Sundog has “no connection to the land” and therefore should not qualify for recreational immunity. Majority op., ¶39. The use of Linville and this particular limiting principle is perplexing in two respects. First, the majority’s reliance on Linville implicitly addresses the Roberts’s alternative argument—-that an injury must arise from a condition associated with the land—- despite the majority opinion’s pronouncement that it does not decide this issue. See majority op., ¶4 n.4. Second, not only was Sundog present on the land during the charity event, but its [**72] hot air balloon was literally connected to the land by ropes that tethered the hot air balloon to two trees (and a truck) on the property. Unlike the paramedics in Linville, Sundog was the entity actually providing the recreational activity, notably one that is specifically mentioned as a “recreational activity” in the recreational immunity statute. See 895.52(1)(g).

[*P147] I would affirm the court of appeals and hold that Sundog is entitled to recreational immunity under Wis. Stat. § 895.52.

[*P148] For the foregoing reasons, I respectfully dissent.

[*P149] I am authorized to state that Justice DAVID T. PROSSER joins this dissent except for footnote 4.


Wethington v. Swainson, d/b/a/ Pegasus Airsport Center, 2015 U.S. Dist. LEXIS 169145

Wethington v. Swainson, d/b/a/ Pegasus Airsport Center, 2015 U.S. Dist. LEXIS 169145

Holly Wethington and Makenzie Wethington, Plaintiffs, v. Robert Swainson, d/b/a/ Pegasus Airsport Center, Defendant.

Case No. CIV-14-899-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

2015 U.S. Dist. LEXIS 169145

December 18, 2015, Decided

December 18, 2015, Filed

SUBSEQUENT HISTORY: Sanctions allowed by, in part, Sanctions disallowed by, in part Wethington v. Swainson, 2015 U.S. Dist. LEXIS 171126 (W.D. Okla., Dec. 23, 2015)

Motion granted by Wethington v. Swainson, 2016 U.S. Dist. LEXIS 7421 (W.D. Okla., Jan. 22, 2016)

COUNSEL: [*1] For Holly Wethington, individually, Mackenzie Wethington, Plaintiffs: James E Weger, LEAD ATTORNEY, Jones Gotcher & Bogan, Tulsa, OK; Robert E Haslam, Haslam & Gallagher, Fort Worth, TX.

Robert Swainson, doing business as Pegasus Airsport Center, Defendant, Pro se.

Robert Swainson, Third Party Plaintiff, Pro se.

Joseph Wethington, Third Party Defendant, Pro se.

Robert Swainson, Counter Claimant, Pro se.

For Holly Wethington, individually, Counter Defendant: James E Weger, LEAD ATTORNEY, Jones Gotcher & Bogan, Tulsa, OK; Robert E Haslam, Haslam & Gallagher, Fort Worth, TX.

JUDGES: TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

OPINION BY: TIMOTHY D. DEGIUSTI

OPINION

ORDER

The determinative issue before the Court concerns the authority of a parent to bind their minor child to an exculpatory agreement, which functions to preclude a defendant’s liability for negligence, before an injury has even occurred. Holly and Makenzie Wethington, mother and daughter (“Plaintiffs”), bring this action against Defendant Robert Swainson, d/b/a/ Pegasus Airsport Center, for injuries suffered by Makenzie while skydiving.1 Under theories of negligence and breach of contract, Plaintiffs contend Defendant (1) provided inadequate training to [*2] Makenzie in preparation for the parachute jump, (2) selected a person to provide radio assistance who had no prior experience, (3) provided old equipment that malfunctioned during Makenzie’s jump, and (4) permitted Makenzie to use a parachute she was ill-prepared to use and which was inappropriate for her skill level. Before the Court is Defendant’s Motion for Summary Judgment [Doc. No. 24], to which Plaintiffs have filed their response in opposition [Doc. No. 30]. The matter is fully briefed and at issue.

1 At the time this action was brought, Makenzie was a minor. She has since become eighteen and will thus be referenced by name.

BACKGROUND

The following facts are undisputed. On January 24, 2014, Makenzie, who was then sixteen years old and accompanied by her parents, went to Defendant to learn how to skydive. As part of the registration process, Makenzie executed a Registration Form and Medical Statement. Near the bottom of the document, Makenzie initialed a disclaimer which read:

I FURTHER UNDERSTAND THAT SKYDIVING AND GLIDING ARE VERY SERIOUS AND HAZARDOUS SPORTS IN WHICH I COULD SUSTAIN SERIOUS AND PERMANENT INJURIES OR EVEN DEATH

Makenzie underwent an instruction course that included [*3] determining the condition of the parachute after deployment, gaining control and resolving any deployment problems and, if necessary, activating her emergency parachute. In connection with her registration and training, Makenzie and her parents both signed and/or initialed an accompanying document entitled “Agreement, Release of Liability and Acknowledgment of Risk” (the Release). The Release contained numerous exculpatory provisions, which stated in pertinent part:

1. RELEASE FROM LIABILITY. I hereby RELEASE AND DISCHARGE [Defendant] from any and all liability claims, demands or causes of action that I may hereafter have for injuries and damages arising out of my participation in parachuting and other aviation activities, including but not limited to LOSSES CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES.

2. COVENANT NOT TO SUE. I further agree that I WILL NOT SUE OR MAKE A CLAIM AGAINST [Defendant] for damages or other losses sustained as a result of my participation in parachuting and other aviation activities.

* * *

5. ACKNOWLEDGMENT OF RISK. I understand and acknowledge that parachuting activities have inherent dangers that no amount of care, caution, instruction or [*4] expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ACKNOWLEDGE ALL RISK OF DEATH OR PERSONAL INJURY SUSTAINED WHILE PARTICIPATING IN PARACHUTING AND OTHER AVIATION ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OR OTHER FAULT OF THE RELEASED PARTIES, including but not limited to equipment malfunction from whatever cause or inadequate training.

* * *

9. ENFORCEABILITY. I agree that if any portion of this Agreement, Release of Liability and Acknowledgment of risk is found to be unenforceable or against public policy, that only that portion shall fall and all other portions shall remain in full force and effect. . . . I also specifically waive any unenforceability or any public policy argument that I may make or that may be made on behalf of my estate or by anyone who would sue because of injury, damage or death as a result of my participation in parachuting and other aviation activities.

10. LEGAL RIGHTS. It has been explained to me, and I expressly recognize that this Agreement, Release of Liability and Acknowledgment of Risk is a contract pursuant to which I am giving up important legal rights, and it is my intention to do so.

(Emphasis added).

Near the bottom of the form, Makenzie [*5] read and rewrote the following statement: “I hereby certify that I have read this Agreement, Release of Liability and Acknowledgment of Risk, that I fully understand the contents of this contract, that I wish to be bound by its terms, and that I have signed this contract of my own free will.” This statement was signed and dated by Makenzie and initialed by her mother. At the bottom of the Release, under the heading, “RATIFICATION BY PARENT/GUARDIAN if participant is under 18-years-of-age,” both parents attested that they had read the agreement, understood its terms, and agreed to be bound thereby.

Makenzie received four hours of training and instruction. She was assigned a used parachute based on her size and weight. Defendant employed the assistance of Jacob Martinez to act as radio controller. Mr. Martinez’s duty was to help guide the jumpers onto the landing area and it was his first time to assist with the radio. Upon Makenzie’s jump, her chute malfunctioned, causing her to spin with increasing rapidity towards the ground. Makenzie landed at a high speed and impact, causing her to sustain serious injuries.

STANDARD OF DECISION

“Summary judgment is proper if, viewing the evidence in [*6] the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Bonidy v. U.S. Postal Service, 790 F.3d 1121, 1124 (10th Cir. 2015) (citing Peterson v. Martinez, 707 F.3d 1197, 1207 (10th Cir. 2013)). The Court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter asserted, but to determine whether there is a genuine issue for trial. Tolan v. Cotton, U.S. , 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014). An issue is “genuine” if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). An issue of fact is “material” if under the substantive law it is essential to the proper disposition of the claim. Id. Once the moving party has met its burden, the burden shifts to the nonmoving party to present sufficient evidence in specific, factual form to establish a genuine factual dispute. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).

The nonmoving party may not rest upon the mere allegations or denials of its pleadings. Rather, it must go beyond the pleadings and establish, through admissible evidence, there is a genuine issue of material fact that must be resolved by the trier of fact. Salehpoor v. Shahinpoor, 358 F.3d 782, 786 (10th Cir. 2004). Unsupported conclusory allegations do not create an issue of fact. Finstuen v. Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007).

DISCUSSION

Defendant contends the Release absolves him from all liability [*7] for any injury suffered by Makenzie. Plaintiffs respond that Defendant’s motion should be denied because (1) Makenzie was a minor when she signed the Release, rendering it invalid under Oklahoma law,2 (2) Defendant is clearly liable under the theories asserted, and (3) this Court had a duty to protect Makenzie as a minor.

2 In Oklahoma, a minor is any person under eighteen (18) years of age. 15 Okla. Stat. § 13.

“An exculpatory clause releases in advance the second party for any harm the second party might cause the first party after the contract is entered.” Arnold Oil Properties LLC v. Schlumberger Tech. Corp., 672 F.3d 1202, 1206-07 (10th Cir. 2012) (citation omitted). While generally enforceable, such clauses are considered “distasteful to the law.” Schmidt v. United States, 1996 OK 29, P 8, 912 P.2d 871, 874 (emphasis in original).3 Exculpatory clauses are enforceable only if they meet the three following criteria:

(1) Their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;

(2) At the time the contract was executed, there must have been no vast difference in bargaining power between parties; and

(3) Enforcement of the clause would not (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual [*8] rights vis-a-vis personal safety or private property as to violate public policy.

Schmidt, 912 P.2d at 874. “The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence.” Id. at 874 (citations omitted, emphasis in original); Satellite System, Inc. v. Birch Telecom of Okla., Inc., 2002 OK 61, P 11, 51 P.3d 585, 589 (“Oklahoma has a strong legislative public policy against contracts which attempt ‘to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another.'”) (citing 15 Okla. Stat. § 212).

3 Notwithstanding this admonition, courts should void contract clauses on public-policy grounds “rarely, with great caution and in cases that are free from doubt.” Union Pacific R. Co. v. U.S. ex rel. U.S. Army Corps of Engineers, 591 F.3d 1311, 1321 (10th Cir. 2010) (quoting Shepard v. Farmers Ins. Co., 1983 OK 103, P 3, 678 P.2d 250, 251).

Oklahoma courts, and others, have upheld exculpatory contracts similar to the present Release, i.e., contracts that exculpate the defendant from injuries suffered by plaintiffs while skydiving. See Manning v. Brannon, 1998 OK CIV APP 17, PP 15-17, 956 P.2d 156, 158-59 (exculpatory contract relieving defendant from any liability for injuries to plaintiff from parachuting activities was valid and enforceable); see also Scrivener v. Sky’s the Limit, Inc., 68 F. Supp. 2d 277, 280 (S.D.N.Y. 1999); Paralift, Inc. v. Superior Court, 23 Cal.App.4th 748, 756, 29 Cal.Rptr.2d 177, 181 (1993); Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). This Court, likewise, finds the Release is generally valid on its face.

First, the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused [*9] by Defendant’s negligence, equipment failure, or inadequate instruction. Plaintiffs signed and initialed several clauses containing the headings, RELEASE FROM LIABILITY, COVENANT NOT TO SUE, and ACKNOWLEDGMENT OF RISK. Mrs. Wethington and her husband signed a ratification stating they had read the Release, understood its terms, and agreed to be bound thereby. Second, there is no evidence of unequal bargaining power. “Oklahoma courts consider two factors in determining parties’ relative bargaining power: ‘(1) the importance of the subject matter to the physical or economic wellbeing of the party agreeing to the release, and (2) the amount of free choice that party could have exercised when seeking alternate services.'” Arnold Oil, 672 F.3d at 1208 (quoting Schmidt, 912 P.2d at 874). There is no evidence that skydiving was necessary or important to Plaintiffs’ wellbeing. In fact, when asked why she wanted to skydive, Makenzie answered, “It’s on my bucket list.” Moreover, Plaintiffs do not contend Makenzie had no choice but to agree to be trained by and jump with Defendant as opposed to going elsewhere. Third, as noted, Oklahoma courts have upheld such releases as not against public policy. See Manning, 956 P.2d at 159 (“we find a exculpatory contract in the [*10] context of a high-risk sport such as sky diving not against the public policy of this state.”).

Plaintiffs nevertheless maintain the Release is voidable because Makenzie was a minor when she signed it and her subsequent suit disaffirmed the agreement. It is also true that as a matter of public policy, courts have protected minors from improvident and imprudent contractual commitments by declaring the contract of a minor is voidable at the election of the minor after she attains majority. See 15 Okla. Stat. § 19. “A release is a contract.” Corbett v. Combined Communications Corp., 1982 OK 135, P 5, 654 P.2d 616, 617. Under Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent. Gomes v. Hameed, 2008 OK 3, P 26, 184 P.3d 479, 489 (citing Gage v. Moore, 1948 OK 214, P 8, 200 Okla. 623, 198 P.2d 395, 396).

In this case, however, Makenzie’s parents also knowingly signed the Release on her behalf, ratifying and affirming its exculpatory content, and agreeing to be bound thereby. Nevertheless, Defendant refers this Court to no controlling authority that permits the parent of a minor to, on the minor’s behalf, release or waive the minor’s prospective claim for negligence. The Court is unaware of any such authority, and therefore must predict how the Oklahoma Supreme Court would rule on the question. Ortiz v. Cooper Tire & Rubber Co., No. CIV-13-32-D, 2015 U.S. Dist. LEXIS 41544, 2015 WL 1498713, at *5 (W.D. Okla. Mar. 31, 2015) (“A [*11] federal court sitting in diversity must apply state law as propounded by the forum’s highest court. Absent controlling precedent, the federal court must attempt to predict how the state’s highest court would resolve the issue.”) (quoting Royal Maccabees Life Ins. Co. v. Choren, 393 F.3d 1175, 1180 (10th Cir. 2005)).

Although the cases are split on the issue, it is well-recognized that the majority of state courts considering the issue have held a parent may not release a minor’s prospective claim for negligence. See Fedor v. Mauwehu Council, Boy Scouts of Am., 21 Conn. Supp. 38, 143 A.2d 466, 467-68 (Conn. 1958); Kirton v. Fields, 997 So.2d 349, 356 (Fla. 2008) (pre-injury release executed by parent on behalf of minor is unenforceable against minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 386 (N.J. 2006) (New Jersey public policy prohibits parents of a minor child from releasing a minor child’s potential tort claim arising out of the use of a commercial recreational facility); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. Ct. 1994) (“[I]n the absence of statutory or judicial authorization, a parent cannot waive, compromise, or release a minor child’s cause of action merely because of the parental relationship . . . . This rule has also been extended to render ineffective releases or exculpatory agreements for future tortious conduct by other persons where such releases had been signed by parents on [*12] behalf of their minor children.”); Galloway v. State, 790 N.W.2d 252, 256 (Iowa 2010) (public policy precluded enforcement of parent’s pre-injury waiver of her child’s cause of action for injuries caused by negligence); Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n. 3 (Me. 1979) (“a parent, or guardian, cannot release the child’s or ward’s, cause of action.”); Childress v. Madison County, 777 S.W.2d 1, 6-7 (Tenn. Ct. App. 1989); Woodman v. Kera, LLC, 280 Mich. App. 125, 760 N.W.2d 641, 655-56 (Mich. Ct. App. 2008) (pre-injury waivers effectuated by parents on behalf of their minor children are not presumptively enforceable); Apicella v. Valley Forge Military Acad. & Junior Coll., 630 F.Supp. 20, 24 (E.D. Penn. 1985) (“Under Pennsylvania law, parents do not possess the authority to release the claims or potential claims of a minor child merely because of the parental relationship.”); Munoz v. II Jaz Inc., 863 S.W.2d 207, 209-10 (Tex. App. 1993) (statute which empowered parents to make legal decisions concerning their child did not give parents power to waive child’s cause of action for personal injuries); Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 11-12 (Wash. 1992) (“A parent does not have legal authority to waive a child’s own future cause of action for personal injuries resulting from a third party’s negligence”).4

4 Of the cases enforcing pre-injury releases executed by parents on behalf of minor children, most involve state-enacted legislation permitting such waiver or the minor’s participation in school-run or community-sponsored activities. See, e.g., Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 874 (10th Cir. 2013); Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1564, 274 Cal. Rptr. 647, 649-50 (1990); BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714, 80 A.3d 345, 362 (Md. 2013); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 746-47 (Mass. 2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 205 (Ohio 1998).

These decisions have invalidated such agreements on the grounds that (1) parents have no [*13] such power, or (2) the agreements violate public policy. The underlying rationale employed by many is that courts, acting in the role as parens patriae, have a duty to protect minors. Oklahoma recognizes its duty to protect minor children. Baby F. v. Oklahoma County District Court, 2015 OK 24, P 23, 348 P.3d 1080, 1088. In Oklahoma, a parent or guardian may not settle a child’s claim without prior court approval. See 30 Okla. Stat. § 4-702 (“A guardian, with the approval of the court exercising jurisdiction in the suit or proceeding, may compromise and settle any claim made by, on behalf of or against the ward in such suit or proceeding.”). As aptly summarized by the Washington Supreme Court in Scott:

Since a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury. In situations where parents are unwilling or unable to provide for a seriously injured child, the child would have no recourse against a negligent party to acquire resources needed for care and this is true regardless of when relinquishment of the child’s rights might occur.

Scott, 834 P.2d at 11-12 (emphasis added).

Based on the case law in Oklahoma and other jurisdictions, the Court is led to the conclusion [*14] that (1) Makenzie’s acknowledgment and execution of the Release is of no consequence and does not preclude her claims against Defendant, and (2) the Oklahoma Supreme Court would find that an exculpatory agreement regarding future tortious conduct, signed by parents on behalf of their minor children, is unenforceable. Accordingly, to the extent the Release purports to bar Makenzie’s own cause of action against Defendant, it is voidable. Plaintiffs correctly argue that commencement of this lawsuit constitutes a disaffirmance of the Release (see, e.g., Gage, supra; Ryan v. Morrison, 1913 OK 598, 40 Okla. 49, 135 P. 1049), and the contract is void ab initio. Grissom v. Beidleman, 1912 OK 847, P 8, 35 Okla. 343, 129 P. 853, 857 (“The disaffirmance of a contract made by an infant nullifies it and renders it void ab initio; and the parties are returned to the same condition as if the contract had never been made.”). The ratification signed by Makenzie’s parents is likewise unenforceable as a bar to Makenzie’s claims. The Release, however, is otherwise conspicuous and clear so as to bar the parents’ cause of action based upon injury to their child. Therefore, Mrs. Wethington’s causes of action, individually, are barred.5

5 As noted, exculpatory clauses cannot excuse one for, inter alia, gross negligence. The statutory definition [*15] of gross negligence is “want of slight care and diligence.” 25 Okla. Stat. § 6. Under Oklahoma law, “gross negligence” requires the intentional failure to perform a manifest duty in reckless disregard of consequences or in callous indifference to life, liberty, or property of another. Palace Exploration Co. v. Petroleum Dev. Co., 374 F.3d 951, 954 (10th Cir. 2004). Plaintiffs expressly plead in their Complaint only causes of action for negligence and breach of contract. Moreover, although Plaintiffs’ Complaint seeks punitive damages based on Defendant’s alleged “gross, willful, and intentional acts,” Compl., P 8, Plaintiffs neither argue nor present any evidence indicating Defendant’s actions constituted anything beyond ordinary negligence.

CONCLUSION

Defendant’s Motion for Summary Judgment [Doc. No. 24] is GRANTED IN PART and DENIED IN PART. Defendant’s motion is granted as to Plaintiff Holly Wethington’s claims and denied as to Plaintiff Makenzie Wethington’s claim for negligence. Since the skydiving contract is rendered void ab initio by means of Makenzie’s lawsuit, her breach of contract claim cannot proceed as a matter of law.

IT IS SO ORDERED this 18th day of December, 2015.

/s/ Timothy D. DeGiusti

TIMOTHY D. DeGIUSTI

UNITED STATES DISTRICT JUDGE


Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.

Aramark sued for parasailing accident when it booked the trip with an “affiliate.”

Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

State: Nevada, United States District Court for the District of Nevada

Plaintiff: Jaclyn Cobb

Defendant: Aramark Sports and Entertainment Services, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2013

The plaintiff signed up to go parasailing on Lake Tahoe with Zephyr Cove Resort. Zephyr Cove Resort is described by the court as being an “affiliate of the defendant Aramark. Aramark is well known as a large concessionaire operating hotel and services in National Parks.

After signing up the plaintiff signed a release (waiver). The plaintiff went parasailing and was sailing when the weather turned bad. She was being reeled back to the boat when she struck her knee causing injury.

The plaintiff filed this claim against Aramark. (It is not stated what the relationship is between Aramark and Zephyr Cove Resort or why the plaintiff did not sue Zephyr Cove Resort.)

The defendant filed a motion for summary judgment which the court granted with this opinion.

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

Most legal decisions based where a motion for summary judgment is filed to review the requirements on what must be proved by the defendant (generally), for the motion to be granted. Generally, that occupies one to five paragraphs in the order. Most are either too succinct to explain the process or too wordy to make deciphering the process worth the effort. This court did a great job of explaining what the defendant must prove to succeed in its motion for summary judgment. The court then reviewed what the plaintiff must do to rebut the motion for summary judgment.

The party filing a motion for summary judgment must argue the facts, taken in the light most favorable to the opposing party when applied to the law show there is no genuine issue of material fact. Those facts must show that no reasonable trier of fact (a jury normally), could find any other way.

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. On those issues for which it bears the burden of proof, the moving party must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.

To rebut the motion for summary judgment the non-moving party must point to facts in the record which so issues. The record is the evidence, depositions, responses to interrogatories and information that met the rules of evidence to be presented to the court.

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact.

If a reasonable mind could see the facts in a different way, then a motion for summary judgment is not appropriate. The issues must go to trial and be presented to a jury. The evidence presented in the motion must be genuine that means a reasonable jury can only see the evidence as pointing in one direction, saying one thing. The evidence that is not proved must be more than a scintilla; it must show there is a real dispute in how the facts can be seen.

Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. A dispute regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff.

Consequently, when a court grants a motion for summary judgment, the evidence presented is such the court can see that evidence only proving one view of the issue and there is no other evidence that refutes that evidence sufficient to change the mind, or even make the person waiver in his or her thoughts on how the evidence is viewed.

In this case, the court found that admiralty law did apply in this case. Admiralty law is federal law that controls the seas or waters moving between two states. Lake Tahoe has shores on both Nevada and California so admiralty law was the law to be applied to the case.

The action giving rise to the admiralty law claim must be based on maritime activity. The Supreme Court and other federal courts have a very broad definition of maritime activity, and paragliding has been found to be a maritime activity.

An action falls within the admiralty jurisdiction of the federal courts under 28 U.S.C. § 1333(1) when: (1) the underlying tort occurred on navigable waters; and (2) the actions giving rise to the tort claim bear a significant relationship to traditional maritime activity.

Where, as here, a body of water forms a border between two states and is capable of supporting maritime commerce, it is considered navigable for the purpose of establishing admiralty jurisdiction. Second, parasailing bears a significant relationship to traditional maritime activities sufficient to establish admiralty jurisdiction. (“Careful and safe navigation of vessels in navigable waters have always been a fundamental admiralty concern. Navigation is an essential component in the parasailing activity.”)

Assumption of the risk is not a defense that can be used in a case covered by admiralty law. However, release is a valid defense.

In her opposition, Cobb argues that the liability waiver is unenforceable because under federal maritime law assumption of the risk is not a valid defense. Cobb is correct that assumption of the risk is not an available defense in maritime cases involving personal injury. However, this does not preclude Aramark from raising the defense of express waiver in this case. Waiver and assumption of the risk are two distinct affirmative defenses and are addressed separately under federal admiralty law.

Under Admiralty law, a release must meet a two-part test.

First, Cobb concedes that she knowingly and voluntarily signed the liability waiver. Second, the court finds that the express waiver in this action is clear and unambiguous as it contains specific language releasing Zephyr and its affiliates, including defendant Aramark, for injuries sustained in carrying out the parasailing activities as a result of Zephyr’s negligence

An unambiguous waiver is one that specifically bars the claims of the plaintiff and protects all the defendants. “A waiver is clear and unambiguous if it specifically bars the plaintiff’s negligence claim and explicitly exonerates all defendants in the lawsuit.”

The court then specifically pointed out that the injury the plaintiff is complaining of was specifically listed in the release. “Further, the very injuries Cobb is suing for are specifically precluded by the waiver including “drowning, sprained or broken bones.

Nor does the release violate public policy. Voluntary recreational activities do not violate public policy under admiralty law.

Third, the underlying express waiver is not inconsistent with public policy because waivers of liability on navigable waters do not contravene federal public policy.

The waiver is also not an adhesion contract because again, it is for a voluntary recreational activity.

Finally, the court finds that the express waiver signed by Cobb is not an adhesion contract because it concerns a voluntary recreational activity. Under federal admiralty law, liability waivers for recreational sporting activities like parasailing are not contracts of adhesion because they are not essential services.

Finding that Admiralty law was the law to be applied, finding that admiralty law allowed the use of a release to stop claims for negligence and finding the release in this matter was valid, the court granted the defendants motion for summary judgment.

Therefore, the court finds that the underlying pre-accident waiver is valid and enforceable and absolves the defendant Aramark of any liability arising from the recreational parasailing activity. Accordingly, the court shall grant Aramark’s motion for summary judgment.

So Now What? 

This is another decision that you should keep handy if your recreational activity could be viewed as subject to admiralty law. Scuba diving, whitewater rafting, and as here parasailing, dependent on the location of the activity, can all be subject to admiralty law.

The decision is also good because its explanation of the law is simple and succinct. You want nothing better than to point to a sentence in a case to support your position that is easy to read and easily understood; no matter how intelligent the judges and attorneys are that may be reading it.

Of major importance for everyone is the court specifically pointed out that the injury the plaintiff was complaining about was one the release specifically pointed out as one that could occur in the release.

Whenever those two issues occur, the injury the plaintiff received was in writing in the release courts point it out. That should be a major flag to anyone writing a release that you need to list the risks of the activity in your release. You must list the major accidents that can occur like death and the common accidents that can occur, like sprains and strains for the activity, you are running.

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Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

Jaclyn Cobb, Plaintiff, v. Aramark Sports and Entertainment Services, LLC, Defendant.

3:11-cv-0840-LRH-WGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

933 F. Supp. 2d 1295; 2013 U.S. Dist. LEXIS 20139; 2013 AMC 2563

February 13, 2013, Decided

February 14, 2013, Filed

SUBSEQUENT HISTORY: As Amended March 18, 2013.

COUNSEL: [**1] For Jaclyn Cobb, Plaintiff: Angela D. Bullentini, Charles M Kilpatrick, Kilpatrick, Johnston & Adler, Carson City, NV.

For Aramark Sports and Entertainment Services, LLC, Defendant: Rachel K McLendon-Kent, Graeme A. Reid, Bauman Loewe Witt & Maxwell, Reno, NV; Terence Cox, Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA.

JUDGES: LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

OPINION BY: LARRY R. HICKS

OPINION

[*1296] AMENDED ORDER

Before the court is defendant Aramark Sports and Entertainment Services, LLC’s (“Aramark”) motion for summary judgment. Doc. #28. 1 Plaintiff Jaclyn Cobb (“Cobb”) filed an opposition (Doc. #33) to which Aramark replied (Doc. #38). This Order amends Order #39. 2

1 Refers to the court’s docket number.

2 This Order is identical to Order #39, but with needed edits for punctuation and citation accuracy.

I. Facts and Procedural History

Plaintiff Cobb is seeking recovery for a knee injury allegedly sustained while parasailing with an affiliate of defendant Aramark.

On June 15, 2010, Cobb paid to go parasailing on Lake Tahoe through an operation ran by Zephyr Cove Resort (“Zephyr”). Before going on the boat for parasailing, Cobb signed a waiver of liability entitled Acknowledgment and Assumption of Risk and Waiver of Liability (“Waiver”). The waiver stated in relevant part:

In consideration of my being allowed to participate in the parasailing [**2] activities operated and conducted by [Zephyr], I hereby RELEASE and WAIVE . . . any and all claims that I may have . . . against [Zephyr], and any of [its] affiliates . . . I specifically RELEASE [Zephyr], and any of [its] affiliates . . . from . . . all claims for . . . injury or death to persons caused by negligence of any one of them arising out of my participation in the parasailing activities. I AGREE NOT TO SUE . . . the aforementioned parties for any injuries or damages that I might hereby receive from my participation in the parasailing activities, whether or not such injury, loss or damage results from the aforementioned [*1297] parties’ negligence or from any other cause.

Doc. #28, Exhibit A.

After signing the waiver, Cobb boarded the parasailing vessel and, along with another family member, went parasailing in a tandem harness. At some point during the trip, adverse weather conditions, including high winds, caused the parasailing trip to be called short. As she was being reeled back into the boat Cobb struck her knee on the boat causing significant injury.

Subsequently, Cobb filed a complaint for negligence against Aramark. Doc. #1, Exhibit A. Thereafter, Aramark filed the present motion [**3] for summary judgment contending that Cobb expressly waived her right to sue. Doc. #28.

II. Legal Standard

Summary judgment is appropriate only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).

The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is “sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” [**4] Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the plaintiff. See id. at 252.

III. Discussion

A. Applicable Law

In its motion, Aramark argues that this action, and thereby [**5] the express waiver, is governed by federal admiralty law. See Doc. #28. An action falls within the admiralty jurisdiction of the federal courts under 28 U.S.C. § 1333(1) when: (1) the underlying tort occurred on navigable waters; and (2) the actions giving rise to the tort claim bear a significant relationship to traditional maritime activity. Charnis v. Watersport Pro, LLC, 2009 U.S. Dist. LEXIS 76022, *5-6 [*1298] (D. Nev. 2009) (citing Sisson v. Ruby, 497 U.S. 358, 365-66, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990)).

The court has reviewed the documents and pleadings on file in this matter and finds that this action falls within the court’s exercise of admiralty jurisdiction. First, the alleged injury occurred on Lake Tahoe, a navigable waterway that lies within the borders of Nevada and California. Where, as here, a body of water forms a border between two states and is capable of supporting maritime commerce, it is considered navigable for the purpose of establishing admiralty jurisdiction. Charnis, 2009 U.S. Dist. LEXIS 76022, *6. Second, parasailing bears a significant relationship to traditional maritime activities sufficient to establish admiralty jurisdiction. See e.g., In the Matter of Skyrider, 1990 U.S. Dist. LEXIS 16510, *10 (D. Haw. 1990) [**6] (“Careful and safe navigation of vessels in navigable waters have always been a fundamental admiralty concern. Navigation is an essential component in the parasailing activity.”); UFO Chuting of Hawaii Inc. v. Smith, 508 F.3d 1189, 1193 (9th Cir. 2007) (holding that parasailing is an activity bearing a significant relationship to traditional maritime activities); Charnis, 2009 U.S. Dist. LEXIS 76022, *6 (“The operation of recreational boats, including pulling skiers or wakeboarders, bears a significant relationship to traditional maritime activity.”). Therefore, this action arises under the court’s admiralty jurisdiction and, as such, the court must apply substantive federal admiralty law to this action. Charnis, 2009 U.S. Dist. LEXIS 76022, *6 (“With admiralty jurisdiction comes the application of substantive admiralty law.”) (citing E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S 858, 864, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986)).

B. Assumption of the Risk

In her opposition, Cobb argues that the liability waiver is unenforceable because under federal maritime law assumption of the risk is not a valid defense. Cobb is correct that assumption of the risk is not an available defense in maritime cases involving [**7] personal injury. See e.g., De Sole v. United States, 947 F.2d 1169 (4th Cir. 1991); Skidmore v. Grueninger, 506 F.2d 716 (5th Cir. 1975). However, this does not preclude Aramark from raising the defense of express waiver in this case. Waiver and assumption of the risk are two distinct affirmative defenses and are addressed separately under federal admiralty law. See Charnis, 2009 U.S. Dist. LEXIS 76022, *10-11. Therefore, Aramark may raise the affirmative defense of express waiver in this action.

C. Express Waiver

In its motion, Aramark argues that the signed express waiver precludes the present action. See Doc. #28. Specifically, Aramark argues that under federal maritime law, pre-accident liability waivers are enforceable and may properly dispose of this action on summary judgment.

Under federal admiralty law, owners of recreational vessels may, through written waivers, disclaim liability for their own negligence. Charnis, 2009 U.S. Dist. LEXIS 76022, *11. A pre-accident waiver absolves a defendant of liability for recreational activities on navigable waters if the exculpatory clause is (1) clear and unambiguous; (2) is not inconsistent with public policy; and (3) is not an adhesion contract. [**8] Id. at 13.

The court has reviewed the documents and pleadings on file in this matter and finds that the signed waiver of liability is [*1299] enforceable. First, Cobb concedes that she knowingly and voluntarily signed the liability waiver. See Doc. #33. Second, the court finds that the express waiver in this action is clear and unambiguous as it contains specific language releasing Zephyr and its affiliates, including defendant Aramark, for injuries sustained in carrying out the parasailing activities as a result of Zephyr’s negligence.

A waiver is clear and unambiguous if it specifically bars the plaintiff’s negligence claim and explicitly exonerates all defendants in the lawsuit. See Charnis, 2009 U.S. Dist. LEXIS 76022. Here, the waiver specifically bars plaintiff from suing for her injuries. Doc. #28, Exhibit A (“I AGREE NOT TO SUE . . . the aforementioned parties for any injuries or damages that I might hereby receive from my participation in the parasailing activities, whether or not such injury, loss or damage results from the aforementioned parties’ negligence or from any other cause.”). Further, the very injuries Cobb is suing for are specifically precluded by the waiver including “drowning, [**9] sprained or broken bones.” Doc. #28, Exhibit A. Therefore, the court finds that the express waiver is sufficiently clear and unambiguous to cover Cobb’s injuries sustained while parasailing.

Third, the underlying express waiver is not inconsistent with public policy because waivers of liability on navigable waters do not contravene federal public policy. Charnis, 2009 U.S. Dist. LEXIS 76022, *13-14; In re Aramark Sports and Entertainment Services, LLC, 2012 U.S. Dist. LEXIS 123786, *21 (C.D. Utah 2012) (holding that maritime exculpatory clauses are enforceable when a party clearly absolves itself from liability for its own negligence).

Finally, the court finds that the express waiver signed by Cobb is not an adhesion contract because it concerns a voluntary recreational activity. Under federal admiralty law, liability waivers for recreational sporting activities like parasailing are not contracts of adhesion because they are not essential services. See e.g., Charnis, 2009 U.S. Dist. LEXIS 76022, *14-15; In re Aramark, 2012 U.S. Dist. LEXIS 123789, *15. Therefore, the court finds that the underlying pre-accident waiver is valid and enforceable and absolves defendant Aramark of any liability [**10] arising from the recreational parasailing activity. Accordingly, the court shall grant Aramark’s motion for summary judgment.

IT IS THEREFORE ORDERED that defendant’s motion for summary judgment (Doc. #28) is GRANTED. The clerk of court shall enter judgment in favor of defendant Aramark Sports and Entertainment Services, LLC and against plaintiff Jaclyn Cobb.

IT IS SO ORDERED.

DATED this 18th day of March, 2013.

/s/ Larry R. Hicks

LARRY R. HICKS

UNITED STATES DISTRICT JUDGE


Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.

Minor injured in a sky-diving accident is allowed to sue because the release, she and her parents signed are void under Oklahoma law. Parents are not allowed to sue for their claims because of the release.

Wethington v. Swainson, 2015 U.S. Dist. LEXIS 169145

State: Oklahoma, United States District Court for the Western District of Oklahoma

Plaintiff: Holly Wethington and Makenzie Wethington

Defendant: Robert Swainson, d/b/a/ Pegasus Airsport

Plaintiff Claims: (1) provided inadequate training to [*2]  Makenzie in preparation for the parachute jump, (2) selected a person to provide radio assistance who had no prior experience, (3) provided old equipment that malfunctioned during Makenzie’s jump, and (4) permitted Makenzie to use a parachute she was ill-prepared to use and which was inappropriate for her skill level

Defendant Defenses: Release

Holding: for the defendant for the claims of the parents, for the plaintiff for her claims

Year: 2015

The minor plaintiff was sixteen years old when she wanted to check another item off her bucket list. She went to the defendant’s sky-diving business along with her parents.

First, the minor plaintiff completed a Registration Form and Medical Statement which included a notice that sky diving was dangerous. The minor plaintiff also signed a release. Her parents also signed the release. The release required the minor plaintiff to write out a statement that she knew she was signing a release and understood the risks. She wrote this out and signed it. The bottom of the release also had a ratification paragraph which the Parent/Guardian was required to sign that stated they understood the risks and released the defendants. Both parents signed this.

In total, a warning in one document, a release signed by all three parents, an additional clause signed by the paragraphs and a written paragraph written and signed by the minor plaintiff is normally far in excess of what a party signs before engaging in recreational activities.

The minor plaintiff then received four houses of training. On her first jump, her parachute malfunctioned, and she hit the ground sustaining injuries.

The defendants filed for a motion for summary judgment based on the release.

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

The court started by looking at the issues surrounding release law in Oklahoma. “An exculpatory clause releases in advance the second party for any harm the second party might cause the first party after the contract is entered.” Releases are enforceable in Oklahoma but are “distasteful.”

At the same time, releases in Oklahoma should not be voided because of public policy grounds. “Notwithstanding this admonition, courts should void contract clauses on public-policy grounds “rarely, with great caution and in cases that are free from doubt.” Public policy grounds are the normal way releases signed by minors are voided.

Releases in Oklahoma have to meet three criteria to be valid.

(1) Their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;

(2) At the time the contract was executed, there must have been no vast difference in bargaining power between parties; and

(3) Enforcement of the clause would not (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.

The court also stated that under Oklahoma law releases cannot work to prevent “liability for intentional, willful or fraudulent acts or gross, wanton negligence.”

After reviewing the release the court found the release was valid.

First, the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused by Defendant’s negligence, equipment failure, or inadequate instruction. Plaintiffs signed and initialed several clauses containing the headings, RELEASE FROM LIABILITY, COVENANT NOT TO SUE, and ACKNOWLEDGMENT OF RISK. Mrs. Wethington and her husband signed a ratification stating they had read the Release, understood its terms, and agreed to be bound thereby.

The court then looked at whether there was inequality in the bargaining power of the plaintiff and found none.

Second, there is no evidence of unequal bargaining power. “Oklahoma courts consider two factors in determining parties’ relative bargaining power: ‘(1) the importance of the subject matter to the physical or economic wellbeing of the party agreeing to the release, and (2) the amount of free choice that party could have exercised when seeking alternate services.'” There is no evidence that skydiving was necessary or important to Plaintiffs’ wellbeing. In fact, when asked why she wanted to skydive, Makenzie answered, “It’s on my bucket list.”

The court found the plaintiffs were not bound to sky dive with the defendant; she was free to sky dive with anyone. Therefore, the plaintiff was not under any pressure or requirement to sky dive with the defendant.

The court then looked at Oklahoma law to see if parents could sign away a minor’s right to sue.

It is also true that as a matter of public policy, courts have protected minors from improvident and imprudent contractual commitments by declaring the contract of a minor is voidable at the election of the minor after she attains majority. Under Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent.

The court also found that for a claim to be approved for a minor for an injury resulting in a settlement, the court had to approve the settlement.

However, the court found this case was complicated by the fact the minor plaintiff’s parents had also signed the release. “In this case, however, Makenzie’s parents also knowingly signed the Release on her behalf, ratifying and affirming its exculpatory content, and agreeing to be bound thereby.”

The Oklahoma Supreme Court did not rule on the issue. Federal courts hearing cases based on the diversity of the parties dealing with state law issues must apply the law of the state where the lawsuit is based or the law that applies.

…federal court sitting in diversity must apply state law as propounded by the forum’s highest court. Absent controlling precedent, the federal court must attempt to predict how the state’s highest court would resolve the issue.

The next issue is disaffirmance of the contract. A minor must disaffirm a contract after reaching the age of majority or the contract is valid. The plaintiffs argued, and the court agreed that the filing of the lawsuit disaffirmed the release. “Plaintiffs correctly argue that commencement of this lawsuit constitutes a disaffirmance of the Release, and the contract is void ab initio.”

For more on this see Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18. However, this decision was later overturned in Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

The court also examined the issue that the parents signed the release and found it had no bearing on the case. However, the release did stop claims by the parents.

The ratification signed by Makenzie’s parents is, likewise, unenforceable as a bar to Makenzie’s claims. The Release, however, is otherwise conspicuous and clear so as to bar the parents’ cause of action based upon injury to their child.

When a minor is injured, the minor can sue and the parents can sue. Dependent upon the state, the claims of the parents may include those of the minor or may be solely based on the parents’ loss.

The court then ruled that the minor claim was valid and not barred by the release. The parent’s claims, specifically the named plaintiff, the minor plaintiff’s mother, were barred by the release.

Defendant’s motion is granted as to Plaintiff Holly Wethington’s claims and denied as to Plaintiff Makenzie Wethington’s claim for negligence. Since the skydiving contract is rendered void ab initio by means of Makenzie’s lawsuit, her breach of contract claim cannot proceed as a matter of law.

So Now What?

The minor plaintiff can sue, and the mother cannot.

This decision is not controlling in Oklahoma. The Oklahoma Supreme Court could still rule that a parent can sign away a minor’s right to sue.

At the same time, this decision outlines release law in Oklahoma and does a great job. As far as how the Oklahoma Supreme Court will rule, the Federal District Court knows the Supreme Court in the state where they sit better than any other person, and I would vote with the Federal Court.

As in other cases in the majority of states, a parent cannot sign away a minor’s right to sue.  To see the States where a parent can sign away a minor’s right to sue and the decisions deciding that issue see States that allow a parent to sign away a minor’s right to sue.

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