Lawsuit because a ski helmet failed to protect a plaintiff from concussion.

Is this, the beginning of an avalanche of lawsuits for concussions from people wearing helmets?

Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEIS 217233

State: Wisconsin: United States District Court for the Western District of Wisconsin

Plaintiff: Steven Scott Rogers, by his guardian, Tracy Rogers, Tracy Rogers, Samba Health Benefit Plan, Blue Cross Blue Shield of Wisconsin, and State of Wisconsin Department of Health Services

Defendant: K2 Sports, LLC, Lexington Insurance Company, and AIG Europe Limited

Plaintiff Claims: negligence, strict product liability, and breach of warranty

Defendant Defenses:

Holding: Mostly for the Plaintiff

Year: 2018

Summary

This appears to be the first lawsuit over a ski helmet not protecting the skier from a brain injury. This is just a motion hearing. However, it provides some insight into the claims and defenses that will spring up in the future if people continue to believe that human-powered recreation helmets are going to protect against concussions and fatal head injuries.

Facts

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

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

This was a motion’s decision. A Motion for summary judgment was filed by the defendant who was denied and motions to exclude witnesses, expert witness testimony, etc., which were denied in part and granted in part for both parties.

The main issue is, it is a lawsuit against the manufacturer of a human-powered recreation helmet manufacturer for a concussion.

The motions covered a broad range of topics; this discussion will look at the important points from an outdoor recreation perspective.

The court started by looking at the Wisconsin Product Liability statute.

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages.

The substantial change requirement is interesting. That reasoning provides a defense for the manufacturer if the retailer makes modifications to the helmet for a sale. At the same time, it is how all people in the chain of custody of a product are held liable for a product liability claim. Any of the people in the chain of custody, manufacture, distributor, retailers could have identified the defect and prevented the defective product from reaching the consumer.

Generally, product liability claims are one of three types: “design defects, manufacturing defects, and warning defects.”

Design defects are levied when the product is designed badly from the beginning. Although there are a lot of design defect claims, there are rarely judgments based on design because most manufacturers understand safety issues.

One area that does pop up in design defects is when a product is used differently from what it was originally designed. If the manufacturer leans about the misuse of the product, then the manufacturer may be held liable for injuries due to the misuse of the product.

Manufacturing defects are simply a failure of quality control. Although in this day, you would think, manufacturing defects would be rare, they occur constantly. A manufacturing defect is usually the reason for a recall of a product.

The final defect, warning defects, are the easiest and toughest at the same time. Making sure the information on how to use a product and any warnings on how not to use the product are critical. At the same time, it is difficult for manufacture to envision how their product could be used and all the risks from those different uses.

As an example, when I’m design manuals and warnings, I want the product. After I have examined it thoroughly and tried every possible way to use it improperly, I ask someone who has no understanding of the product to use it. A sixteen-year-old kid can do amazing things that no one ever envisioned with some products.

Many times, a product liability lawsuit will include a negligence claim. Here the court compared the issues of proving a product negligence claim and a product liability claim.

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects.

The bold issue is another point you rarely know about. Your duty to design is just step one. Step two is you must test your product to make sure that it meets the intended purpose and the limits of your design. You design a product to do something. Once manufactured you must test the product initially and sometimes ongoing to make sure it still does what you say it will within the parameters you say it will operate.

This duty to test is increased if the duty arises from labeling or marketing. If you say the product contains X ounces of Sample or only breaks under loads greater than XX pounds you have to make sure each of your products meets that test.

The issue in ski helmets is not what the manufacturer says it can or cannot do. The issue is what the consumer believes the product will do. The consumer/plaintiff believes the ski helmet is designed to protect against a concussion, where, in reality; the design is just to slightly minimize the injury potential.

In this case, the plaintiff was claiming the helmet was defective. The plaintiff had to prove:

…a product is defective in design if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer, and the omission of the alternative design renders the product not reasonably safe.”

The helmet manufacturer, K2 brought up the fact that the helmet met the ASTM standards for ski helmets. That standard required the helmet to “keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.” If you look at that standard, it is minimal.

However, the ASTM helmet is not a 100% defense to a claim. It only shifts the burden to the plaintiff to prove the helmet was defective, more so since all helmet standards are voluntary.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim.

Voluntary standards, which most standards are identified as, are really only a sword and not a shield. If you don’t meet a standard, then it is proof you don’t care, and you had a cheap product. Failing to meet a standard is better in the plaintiff’s hands to proof you were bad, rather than in the defendant’s hands as a shield.

Under Wisconsin law, the court set forth the issues needed to prove a defect based on inadequate warnings on the product or provided to the consumer.

Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. There is a presumption that any missing instructions would have been read, and therefore a presumption of causation.

Here again, warnings are another weak shield for the defendant and a better sword for the plaintiff in litigation. Warnings show you tried to inform the consumer, or you told the consumer not to do something and they consumer did it anyway. The lack of a warning is a major sword to the plaintiff who can show the jury the lack of care and concern on the part of the manufacturer that should have and could have warned the consumer of the risk.

You can see the difference in the value of some arguments between the plaintiff and the defendant. If the defendant had the warning, it really does not matter except to hope you can argue it was written in a way that the consumer had to have seen it. If the manufacturer fails to have a warning, then the presumption is the consumer would have read the warning and not been hurt. But for the failure to have a warning, there would be no injury. If you are a manufacturer believing that since you have met the standards you are safe, you are soon to be renamed “Defendant.”

Even the voluntary part of the term “voluntary standard” can come back to haunt a manufacturer. If the manufacturer decides not to meet the standard, it is easy for the plaintiff’s attorney to argue the manufacturer did not meet the standard to save money, or because they did not care about their customers. Consequently, once a standard is created, voluntary or not, every manufacturer must meet the standard.

Worse, any standard then restricts research and development because of the fear of not meeting the standard and looking bad in court.

The motion did not look at the issues, we would like some clarification or the facts. What happened to cause the head injury that turned the plaintiff into a vegetable and more importantly, what did the plaintiff believe when they purchased the helmet.

So Now What?

The decision had a few interesting points. However, the greatest issue is the floodgates are now probably open for head injuries that occur to skiers and other recreationists while wearing a helmet. It will be interesting to see how this decision progresses through the courts and whether the issues of the amount of protections afforded versus the expectations of the consumer becomes an issue.

As the decision states. Ski helmets have limited ability to protect. The ASTM standard quoted in the decision requires the helmet to meet a simple test.

Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less.

Human-powered recreation helmets, ski, bike, rollerblading, scooters, etc., only protect against minor scalp injuries, nothing more. If the NFL cannot protect football players with helmets costing thousands of dollars why to you think the piece of plastic you paid $100 is going to protect you from a concussion.

More articles about helmets

A helmet manufacture understands the issues (Uvex, Mouthguards)    http://rec-law.us/xpxX6n

A new idea that makes sense in helmets: the Bern Hard Hat    http://rec-law.us/yPerOd

Are we using safety as an excuse not to spend time with people? Is here, “wear your helmet” taking the place of let me show you how to ride a bike?    http://rec-law.us/1fqwlpV

Do you really want to sell helmets this way? Does this article promote the industry?    http://rec-law.us/NfoMTs

Does being safe make us stupid? Studies say yes.    http://rec-law.us/Ao5BBD

Great article on why helmet laws are stupid    http://rec-law.us/zeOaNH

Great editorial questioning why we need laws to “protect” us from ourselves.    http://rec-law.us/Ayswbo

Helmets do not increase risk of a neck injury when skiing    http://rec-law.us/wPOUiM

Helmets: why cycling, skiing, skateboarding helmets don’t work    http://rec-law.us/RVsgkV

Law requires helmets, injuries down fatalities up?    http://rec-law.us/YwLcea

Mixed emotions, but a lot of I told you so.    http://rec-law.us/ysnWY2

More information over the debate about ski helmets: Ski Helmets ineffective crashes were the wear is going faster than 12 miles per hour    http://rec-law.us/z4CLkE

The helmet issue is so contentious people will say the stupidest things    http://rec-law.us/zhare9

What do you think? Leave a comment.

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helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed


Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

 Rogers v. K2 Sports, LLC, 2018 U.S. Dist. LEXIS 217233

United States District Court for the Western District of Wisconsin

December 28, 2018, Decided; December 28, 2018, Filed

17-CV-534-JDP

Reporter

2018 U.S. Dist. LEIS 217233 *

STEVEN SCOTT ROGERS, by his guardian, Tracy Rogers, TRACY ROGERS, SAMBA HEALTH BENEFIT PLAN, BLUE CROSS BLUE SHIELD OF WISONSIN, and STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES, Plaintiffs, v. K2 SPORTS, LLC, LEXINGTON INSURANCE COMPANY, and AIG EUROPE LIMITED, Defendants.

Core Terms

helmet, summary judgment, testing, injuries, plaintiffs’, ASTM, instructions, contends, expert testimony, warning, ski, drop, product liability, move to strike, design defect, manufacturing, time of an accident, measured, opined, centimeters, parties, loss of consortium, admissibility, inadmissible, speculation, simulation, chinstrap, requires, warranty, exposed

Counsel: [*1] For Steven Scott Rogers, By his Guardian Tracy Rogers, Tracy Rogers, Blue Cross Blue Shield of Wisconsin, doing business as Athem Blue Cross and Blue Shield, Lexington Insurance Company, Plaintiffs, Counter Claimant, Counter Defendants: Charles M. Bye, Robert A. Parsons, LEAD ATTORNEY, Brian F. Laule, Bye, Goff, & Rohde, Ltd, River Falls, WI.

For Samba Health Benefit Plan, Plaintiff, Cross Claimant: Matthew Robert Falk, LEAD ATTORNEY, Falk Legal Group, Milwaukee, WI.

For State of Wisconsin – Department of Health Services, Involuntary Plaintiff, Plaintiff: Jesus Gabriel Garza, State of Wisconsin Department of Health Services, Madison, WI.

For K2 Sports, LLC, f/k/a K-2 Corporation, Defendant, Cross Defendant: Anne Marie Ellis, Gary A Wolensky, Michael Preciado, LEAD ATTORNEYS, Buchalter Nemer, Irvine, CA; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI; Leslie Gutierrez, LEAD ATTORNEY, Milwaukee, WI; Christopher Hossellman, Buchalter, APC, Irvine, CA.

For AIG Europe Limited, Defendant, Cross Defendant: Charles W. Browning, Sara D. Corbello, LEAD ATTORNEYS, Plunkett Cooney, Bloomfield Hills, MI; Eric J. Meier, LEAD ATTORNEY, Husch Blackwell, LLP, Milwaukee, WI.

Judges: JAMES D. PETERSON, [*2] District Judge.

Opinion by: JAMES D. PETERSON

Opinion

OPINION & ORDER

Plaintiff Steven Scott Rogers fell while skiing and suffered a serious brain injury. Scott and his wife, plaintiff Tracy Rogers, contend that Scott’s helmet, made by defendant K2 Sports, was defectively designed and that the defect was a cause of his injury. They have sued K2 for negligence, strict product liability, and breach of warranty. Dkt. 32. Tracy also claims loss of consortium as a result of her husband’s injuries.1 K2 denies that the helmet was defective, contending instead that the helmet was the wrong size and that Scott had not properly fastened it, and that he was injured by direct contact with the ground.

K2 moves for summary judgment on all of plaintiffs’ claims. Dkt. 102. Plaintiffs oppose, and they move to strike defendant’s experts’ opinions that the helmet moved out of position when Scott fell. Dkt. 139.

At the heart of this case is a straightforward dispute about the role of the helmet in Scott’s injury. The court will limit the testimony of K2’s experts about how the injury occurred because some of those opinions are too speculative. But that still leaves genuine disputes about the fit of the helmet and whether it was [*3] properly designed, so K2’s motion for summary judgment will be denied.

UNDISPUTED FACTS

The following facts are undisputed except where noted.

Scott wore a K2 Phase 08 helmet while skiing with his stepson Coby at the Afton Alps Ski Area in Washington County, Minnesota, on New Year’s Eve 2015. Around 8:40 p.m., Scott and Coby skied down a beginner’s run called Nancy’s Nursery. Scott fell about halfway down the hill near some small mounds called “rollers.” Coby was in front of Scott and did not witness the fall. Another skier did witness the fall, but he was not able to recall any details about it, except that the fall did not seem unusual.

The fall left Scott unconscious and bleeding from his left ear. Scott was taken by ambulance to a hospital, where doctors conducted tests including a CT scan of Scott’s head. The accident caused brain hemorrhages and fractured Scott’s skull, left clavicle, and numerous ribs along Scott’s left side. As a result of permanent brain damage caused by the accident, Scott now lives at a VA hospital where he receives round-the-clock care.

The K2 helmet was certified as compliant with the standards of ASTM International, which is an organization that develops and [*4] publishes technical standards for a wide range of products.2 Compliance with ASTM standards is voluntary. The K2 helmet has three layers. The exterior layer is a hard-plastic shell. The shell is lined with an Expanded Polystyrene (EPS) energy-attenuating layer, which is supposed to absorb and dissipate shock from a blow to the head. The third layer is a comfort liner that can be adjusted to fit on the user’s head. After Scott’s accident, the lower left rear of the exterior shell was cracked. And, in the same area, the shock-absorbing EPS layer was flattened, and chunks of the EPS were missing.

The parties sharply dispute what happened to the helmet when Scott fell. K2 contends that the helmet was improperly fit and not properly fastened. K2’s theory is that as Scott fell, his helmet shifted out of place and the left posterior region of his head was exposed and directly hit the ground. Dkt. 144, ¶ 38. K2 contends that the helmet only partially protected Scott’s head, and that the point of impact on the helmet was below the “test line,” which is the lower limit of the area that is supposed to be protected under ASTM standards. K2 also contends that pictures from the [*5] day of the accident show that Scott failed to tighten the helmet’s chinstrap. Id., ¶ 39.

Plaintiffs contend that the helmet did not actually meet ASTM standards. Plaintiffs’ theory is that the bottom rear of the helmet was excessively tapered at the test line. As a result of the tapering, the helmet did not afford sufficient protection against a blow such as the one Scott suffered. Plaintiffs also contend that the helmet was the right size for Scott.

ANALYSIS

K2 moves for summary judgment on the grounds that plaintiffs cannot prove that Scott’s K2 helmet was defective or that it caused Scott’s injuries. In connection with their opposition to K2’s motion, plaintiffs move to strike parts of K2’s expert evidence. The court begins with plaintiffs’ challenge to the expert evidence.

A. Plaintiffs’ motion to exclude expert evidence

Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the court must serve as a gatekeeper to ensure that proffered expert testimony meets the requirements of Federal Rule of Evidence 702. Essentially, the gatekeeping function consists of a three-part test: the court must ensure that the expert is qualified, that the expert’s opinions are based on reliable methods and reasoning, and that the expert’s opinions will assist the jury in [*6] deciding a relevant issue. Myers v. Ill. Cent. R. R. Co., 629 F.3d 639, 644 (7th Cir. 2010). The proponent of expert evidence bears the burden of establishing that the expert’s testimony is admissible. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

Plaintiffs move to strike aspects of the expert reports of P. David Halstead and Irving Scher. Although plaintiffs dispute Halstead’s qualifications, the main question is whether Halstead and Scher used reliable methodologies and reasoning. The admissibility inquiry undertaken by the court “must be ‘tied to the facts’ of a particular case.” Kumho, 526 U.S. at 150 (quoting Daubert, 509 U.S. at 591). The “critical inquiry” for admissibility is whether the opinion is rationally connected to the underlying data or “connected to the existing data ‘only by the ipse dixit of the expert.'” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 781, 732 Fed. Appx. 484 (7th Cir. 2017). Expert testimony that merely asserts a “bottom line” or provides testimony based on subjective belief or speculation is inadmissible. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).

1. P. David Halstead

P. David Halstead is the Technical Director of Southern Impact Research Center. Halstead conducted a series of drop tests to try to replicate the damage on Scott’s helmet, and thereby to determine the amount of force that the helmet and Scott experienced at the time of Scott’s fall. Dkt. 110, at 6. Halstead offers two main opinions: (1) [*7] that the helmet was not defective, and (2) that the helmet was out of place at the time of the accident. Plaintiffs move to strike three aspects of Halstead’s report. Dkt. 137, at 6-7.

First, plaintiffs move to strike Halstead’s opinion that the helmet was out of position at the time of the accident. Halstead expresses that opinion in various forms:

• “It is my opinion that Mr. Rogers’ injuries were caused by complex fall kinematics that resulted while his helmet was out of position (rotated slightly to the left and possibly higher on the right) exposing his temporal bone in the area he sustained the mastoid fracture.” Dkt. 110, at 7.

• “Mr. Rogers sustained his injuries when his partially helmeted head, with the mastoid area of the temporal bone exposed, made contact with a somewhat compliant surface such as snow substantially similar to the snow measured at Afton Alps.” Id. at 9.

• “The skull fracture is a result of functionally direct contact with the impact surface to the mastoid area.” Id.

• “Given the test results had the helmet been in position the skull fracture almost certainly would not have occurred.” Id.

The court agrees with plaintiff that Halstead has not shown that this opinion is [*8] rationally connected to underlying data.

Halstead conducted a series of drop tests using K2 Phase 08 helmets, the same model as Scott’s helmet. Id. at 6. Under the ASTM standards, a helmet must keep the user’s head from accelerating more than 300 g, meaning that the force of impact on the skull is equivalent to 300 times the force of gravity or less. Dkt. 124-13, at 3. Although these drop tests were not testing for ASTM compliance, Halstead used 300 g as a threshold for the helmet’s effectiveness. Halstead conducted eleven tests by dropping helmets on to a modular elastomer programmer (MEP), a rubber pad that is somewhat harder than packed snow. Dkt. 110, at 6. None of the drops resulted in an acceleration of more than 181 g or damaged the helmet in a way that resembled the damage to Scott’s helmet. So Halstead conducted three more tests using a harder, steel anvil. Id. at 6. One of these drops did crack the helmet, but the damage was still not as severe as Scott’s helmet.

Halstead opined that because his tests could not replicate the damage to Scott’s helmet, Scott’s helmet must not have been in place on Scott’s head at the time of the accident. Id. at 8-9. Halstead did not conduct any follow-up testing; he [*9] did not, for example, try dropping the helmet while it was out of place on the headform or try dropping the helmet without using a full-sized headform. Instead, Halstead scanned both the accident helmet and the most severely damaged test helmet with a laser. Id. After eyeballing the results of the laser scan, Halstead again concluded that the damage did not match and that therefore the helmet was not in place at the time of the accident. He opined specifically that the helmet rotated to the left, exposing the area where Scott’s skull was fractured.

Two factors that a court may consider regarding the admissibility of expert testimony are whether the expert “unjustifiably extrapolated from an accepted premise to an unfounded conclusion” and whether “the expert has adequately accounted for obvious alternative explanations.” Gopalratnam, 877 F.3d at 788 (quoting Fuesting v. Zimmer, Inc., 421 F.3d 528, 534-35 (7th Cir. 2005)). Both factors support striking Halstead’s opinion here. When Halstead’s test results failed to re-create the damage to Scott’s helmet, Halstead had a basis for concluding that Scott’s fall was in some way atypical. But he had no foundation to then extrapolate from these results that the helmet was therefore out of position. And he was even less justified [*10] in hypothesizing on the helmet’s exact orientation during the accident. Halstead did not confirm his hypothesis through additional testing, nor did he address alternative explanations for the damage to Scott’s helmet, such as the existence of a manufacturing defect or a weakening of the helmet through multiple impacts. And his use of laser scanning provided no additional details to support his hypothesis. Halstead simply picked one possible explanation for the test results and then assumed it was true. Halstead concedes that he is not an expert in the “full body kinematics” that are critical to understanding how Scott was injured. Dkt. 110, at 7.

Second, plaintiffs move to strike Halstead’s opinion regarding the speed and force of impact on Scott’s head at the time of the accident:

Based on biomechanical testing the likely impact speed of his head to the surface was 13-14 mph or higher, head accelerations were in the range of 170 g — 220 g with angular acceleration between 7000-8000 rad/sec2.

Dkt. 110, at 7. The court will strike this opinion. Rule 702 places the responsibility on the expert to explain how his methodologies support his opinions. Metavante, 619 F.3d at 761. Although not explicitly stated, Halstead appears [*11] to have adopted these numbers from the results of his tests on the MEP pad. Dkt. 110, at 6. But as Halstead emphasized in his report, the tests on the MEP pad were unable to replicate Scott’s accident. It is not clear why the speeds and forces of impact must nonetheless be correct, and Halstead does not provide an explanation.

Third, plaintiffs move to strike Halstead’s opinion regarding the helmet’s ability to protect against high-speed impact:

“As the biomechanical testing shows the helmet, at its thinnest, well below the test line is able to take an impact at nearly 14 miles per hour with a hemi anvil and still remain under 300g.”

Id. at 7. The court will not strike this opinion, which is based on the test results. Plaintiffs suggest that Halstead is not qualified to provide “biomechanical engineering opinions,” but in their reply brief, plaintiffs concede that Halstead is an experienced technician who is qualified to conduct the type of drop testing he performed. Dkt. 151, at 2.

The bottom line is that the court will consider Halstead’s drop testing analysis, but it will not consider his testimony that the helmet was out of place at the time of the accident.

2. Irving Scher, Ph.D., P.E

Irving [*12] Scher is a biomechanical engineer at Guidance Engineering and Applied Research. Scher’s report includes two separate sets of conclusions that are relevant to summary judgment. First, Scher used computer models to determine the fit and looseness of the helmet that Scott wore. Second, Scher conducted a biomechanical engineering analysis to determine the “kinematics” of the accident—the movement of Scott’s body and ski equipment according to the laws of physics. Plaintiffs move to strike both sets of conclusions. Dkt. 137, at 7-8.

a. Helmet fit

Scher opines that the helmet was poorly fit and that it was loose enough to move out of place:

• “Mr. Roger’s head circumference at the hat line is approximately 57 centimeters. Because the head size recommended for the subject helmet ranges from 59 to 62, Mr. Rogers’ head was at or below the lower end of the subject helmet’s size.” Dkt. 107, ¶¶ 10-12.

• “At the level of the helmet brim there was at least 2 to 4 centimeters of free space between Mr. Rogers’ head and the helmet in the anterior-posterior direction, and the helmet had space to rotate 20 degrees clockwise and counter-clockwise.” Id. ¶ 13.

• “The subject helmet was not snugly fitted to Mr. [*13] Rogers’ head.” Id. ¶ 14.

These opinions are rationally connected to the reasonably reliable data that Scher considered; the court will not strike them.

Scher created a 3D computer model of Scott’s head from the CT scans on the night of Scott’s accident. Dkt. 112, at 15. Using this model, Scher calculated circumference of Scott’s head as 57 centimeters. Because the helmet that Scott purchased was recommended for head circumferences of 59 to 62 centimeters, Scher opined that Scott’s helmet was one size too large. Scher scanned an exemplar K2 helmet of the same size as Scott’s helmet. Within his computer modeling software, Scher placed the 3D model of the helmet on the 3D model of Scott’s head. Scher determined that there was at least 2.25 centimeters of free space between Scott’s head and the interior of the helmet, and that with this extra space the helmet could freely rotate 20 degrees clockwise and counterclockwise. Finally, Scher viewed photographs of Scott on the day of the accident and determined that Scott’s chin strap was “loose.” Id. at 16. Scher’s analysis of the helmet’s fit led Scher to conclude that it was possible for the helmet to move out of position and expose a portion of the [*14] posterior region of Scott’s head.

Plaintiffs contend that Scher’s analysis is unreliable because Scott’s head actually has a circumference of 60 centimeters, not 57 centimeters. Plaintiffs’ measurement comes from Tracy’s declaration that she measured Scott’s head with a tape measure. Dkt. 123, ¶¶ 7-8.3 Neither party adduces evidence showing that the other party’s measurement is manifestly incorrect, so the size of Scott’s head is a matter of genuine dispute.4 Such a dispute does not render Scher’s opinion inadmissible.

b. Kinematics analysis

Scher also offered opinions about how Scott fell and how he was injured, which Scher refers to as a “kinematics” analysis. He expresses those opinions as follows:

• “Mr. Rogers likely caught his ski edge, fell forward and leftward while rotating clockwise and continuing downhill, and contacted the left, posterior region of his helmeted head on his acromioclavicular joint and proximal humerus, a very rigid area of hard-packed snow, or both.” Dkt. 112, at 36.

• “Because the helmet was not snug on Mr. Rogers’s head and he did not adjust appropriately the chin strap, the subject helmet was able to (and did) move out of position during Mr. Rogers’s fall [*15] and subsequent head impact.” Id.

• “No snowsport helmet would be able to prevent the injuries sustained by Mr. Rogers in the subject accident.” Id.

• “The subject helmet rotated axially counterclockwise and rightwards on Mr. Rogers’ head during his fall such that his helmet was out of place and exposed a portion of the left posterior region of his head just prior to impact.” Dkt. 107, ¶ 9.

• “Mr. Rogers failed to properly tighten the subject helmet’s chin strap, which allowed the subject helmet to move out of position as he fell.” Id. ¶ 15.

• “Immediately before Mr. Rogers’ head contacted the ground, the subject helmet moved out of position, causing the point of impact to be below the helmet’s test line.” Id. ¶ 18.

• “In my professional opinion, any snow sport helmet with a similar fit and loose chin strap on Mr. Rogers’ head would have similarly moved relative to his head in the subject fall.” Id. ¶ 20.

The court will not consider these opinions because they are too speculative: there is simply not enough information about how Scott fell to support this analysis.

Based on the assumption that “catching an edge” is a common occurrence among skiers, and the location and severity of Scott’s [*16] injuries, Scher created a computer simulation using the computer program MADYMO. Scher ran several simulations in MADYMO, using different estimates for Scott’s speed and the conditions on the ski slope. Id. at 29. He tweaked the variables in the simulation until he was able to create a simulation that could result in injuries similar to Scott’s injuries. Then based on that simulation, he opined on Scott’s body movements as he fell, and the forces that Scott experienced when he hit the ground. Scher opines both that Scott’s helmet hit the ground below the test line, and that Scott hit the ground with such force that no helmet could have prevented Scott’s injuries.

Scher’s simulation, and the opinions based on it, are inadmissible because they are based on guesswork rather than the facts of Scott’s accident. An expert must show that he has sufficient data to use the methodology employed. See Gopalratnam, 877 F.3d at 781 (Rule 702 requires the underlying data to be both qualitatively and quantitatively sufficient to conduct the analysis). Opinions that are based on speculation are inadmissible. Metavante, 619 F.3d at 761. Here, there was no witness who could describe the moments leading up to the fall, no measurement or even estimate of Scott’s speed at the [*17] time of the fall, and no reliable evidence of Scott’s skiing abilities or style. The court will exclude the opinions expressed on pages 21 through 31 of Scher’s report. Dkt. 112.

Scher is free to testify that the helmet was loose and that it might have moved out of position. And he can testify that based on Halstead’s testing, and based on the literature regarding head injuries and ski accidents, it seems unlikely that a typical fall could have caused the injuries that occurred. But Scher cannot speculate that the helmet actually moved or opine on the exact location of the helmet at the time of impact.

B. K2’s motion for summary judgment

Plaintiffs bring claims under theories of strict product liability, negligence, breach of warranty, and loss of consortium. K2 moves for summary judgment on all of plaintiffs’ claims. The court will grant summary judgment on only the breach of warranty claims, which plaintiffs waive. Genuine disputes of material fact preclude summary judgment on the other claims.

1. Summary judgment standard

Summary judgment is appropriate only if there is no genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment, the court views all facts [*18] and draws all inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment will not be granted unless “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Sarver v. Experian Info. Sols., 390 F.3d 969, 970 (7th Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

2. Strict Product liability claim

Wisconsin product liability law is codified under Wisconsin Statute § 895.047.5 A product liability claim has five elements: (1) the product was defective; (2) the defect rendered the product unreasonably dangerous; (3) the defect existed when the product left the control of the manufacturer; (4) the product reached the consumer without substantial change; and (5) the defect caused the claimant’s damages. Wis. Stat. § 895.047(1). K2 contends that they are entitled to summary judgment because plaintiffs cannot show that the helmet had a defect that rendered it unreasonably dangerous and because plaintiffs cannot show that the alleged defect caused Scott’s injuries.

There are three different categories of defects under the statute: design defects, manufacturing defects, and warning defects. Plaintiffs concede that they do not have evidence of a manufacturing defect, but they bring alternative claims for defective design if the helmet was in place during the accident and [*19] defective warning if the helmet fell out of place before the impact. Under the first theory, plaintiffs must show that the helmet had a design defect that caused Scott’s injuries to be worse than they would have been without the defect. Under the second theory, plaintiffs must show that the helmet’s instructions did not warn users to tighten the chinstrap. K2 seeks summary judgment as to both theories.

a. Defective design

Defendants contend that plaintiffs cannot adduce evidence of a design defect and that, even if a defect exists, plaintiffs cannot show that it caused Scott’s injuries. The court will address each element in turn.

i. Unreasonably dangerous defect

Summary judgment is inappropriate when resolution of a claim requires the court to choose between opposing expert testimony. See Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008) (explaining that “in a case of dueling experts . . . it is left to the trier of fact . . . to decide how to weigh the competing expert testimony”). That is the case here. Both parties hired experts to test K2 helmets according to ASTM standards, but the experts disagree on the testing procedures and achieved different results.6

Under Wisconsin’s product liability statute, a product is defective in design [*20] if the “foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a).

K2 contends that plaintiffs have not shown any evidence of a design defect. But plaintiffs’ expert, Mariusz Ziejewski, provides evidence sufficient to support a reasonable jury verdict that a foreseeable risk of harm could have been reduced by the adoption of a reasonable alternative design. Ziejewski’s report states that due to tapering at the edge, the K2 helmet does not provide the protection required by ASTM standards when struck in the lower back. Dkt. 116; Dkt. 124-7. Ziejewski further states that other helmets without this tapering do provide the protection required by ASTM. This makes the K2 helmet more dangerous than helmets from K2’s competitors.

K2 argues that Ziejewski’s report is insufficient to establish a design defect because the report does not specifically opine that the design of the K2 helmet rendered it “not reasonably safe” or “unreasonably dangerous.” Dkt. 103, at 12. But an expert does not need to parrot the exact language [*21] used in the statute. See In re Zimmer NexGen Knee Implant Prods. Liab. Litig., 218 F. Supp. 3d 700, 725 (N.D. Ill. 2016), aff’d sub nom. In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746 (7th Cir. 2018) (“Plaintiffs are not required to put forth an expert to say the magic words . . . But Plaintiffs must provide sufficient evidence to allow a jury to reach that conclusion without resorting to speculation”) (applying Wisconsin law). A jury could use the evidence in the report to find that the increased danger posed by the K2 helmet’s tapering is unreasonable.

K2 also contends that to establish a design defect, plaintiffs must show that the K2 helmet failed the ASTM standards that were in effect at the time of manufacturing. K2 argues that Ziejewski instead tested the K2 helmet according to current ASTM testing procedures. Ziejewski concedes that he used the updated procedures, but he argues that it is more accurate than the old testing standard. Dkt. 124, ¶¶ 22-23. Plaintiffs need to show only that a reasonable alternative design would have eliminated the risk of harm. Ziejewski tested multiple helmets using the same test methods and concluded the K2 helmet failed where alternative designs did not.

The ASTM standards may be relevant, but they are not dispositive. If the ASTM standards were adopted by federal or state law, then K2 would be entitled [*22] to a rebuttable presumption that the helmet was not defective. Wis. Stat. § 895.047(3)(c). But the ASTM standards are only voluntary. Compliance with voluntary standards at the time of manufacturing may be evidence that K2 behaved reasonably, in defense of plaintiffs’ negligence claim. See Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d 992, 997 (W.D. Wis. 2006) (citing Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir. 2004)). So, at trial, K2 can raise this defense in response to plaintiffs’ negligence claim. But it is only a piece of evidence that the jury may weigh when deciding whether defendants met their duty to exercise reasonable care. Id.

ii. Causation

K2 also contends that it is entitled to summary judgment because the helmet was out of place at the time of impact, so plaintiffs cannot show that any alleged defect caused Scott’s injuries. The location of the helmet at the time of the accident is sharply and genuinely disputed, so that theory provides no basis for granting summary judgment to K2.

Nevertheless, K2 contends that even if the helmet was in place, it is still entitled to summary judgment because no helmet could have prevented Scott’s injury because preexisting injuries made him particularly vulnerable. This theory provides no basis for granting summary judgment to K2 either.

K2 adduces some evidence that Scott had suffered [*23] previous head injuries. Dkt. 144, ¶¶ 45-50. But K2 has scant evidence that the prior injuries were serious ones. More important, K2 does not adduce any evidence to support the outlandish statement in its brief that “no helmet would have been able to prevent the injuries he sustained on December 31, 2015.” Dkt. 103, at 10. K2’s own proposed findings of fact undermine this idea:

Had Mr. Rogers not been wearing a helmet, his brain injury would have been at least as severe if not more severe than it was on December 331, 2015, leaving him with worse permanent residuals or traumatic brain injury, or could have even adversely impacted his survival.

Dkt. 144, ¶ 51. K2 also says that plaintiffs’ expert Ziejewski “concedes that an alternative design would not have prevented Mr. Rogers from suffering a traumatic brain injury or a subdural hematoma in the subject incident.” Dkt. 103, at 11 (citing Dkt. 144, ¶ 28). As plaintiffs point out, K2 has grossly misstated the substance of Ziejewski’s deposition testimony in this proposed fact. Ziejewski testified that a properly designed helmet would have prevented a subdural hematoma, a level 4 injury. Ziejewski acknowledged that even with a properly designed [*24] helmet, “mild traumatic brain injury” was still a possible or likely outcome. Dkt. 122, at 28:21-29:25.

b. Defective Instructions

Plaintiffs’ alternative theory is that if the helmet slipped out of place before impact, it slipped because of defective instructions. Under Wisconsin’s product liability statute, a product is defective because of inadequate instructions or warnings if “foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe.” Wis. Stat. § 895.047(1)(a). Plaintiffs do not need to show that Scott actually read the instructions to prove causation. When a product is missing an adequate warning, the missing warning is a substantial factor in causing injury if a reasonable person would have heeded the warning and as a result avoided injury. Michaels, 411 F. Supp. 2d at 1006 (citing Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805, 817-18 (Ct. App. 1999)). There is a presumption that any missing instructions would have been read, and therefore a presumption of causation. Id.

Throughout its briefing, K2 contends that the looseness of Scott’s chinstrap was a factor that caused the helmet to slip out of place. Plaintiffs contend [*25] that any mistake by Scott in tightening his chinstrap was caused by the fitting instructions included with the helmet. The helmet’s instructions state that the helmet should be snug and that after adjusting the straps and pads, “the skin on your forehead should move with the helmet.” Dkt. 145, ¶ 10. The instructions do not include specific directions on the tightness of the chinstrap. A reasonable jury could find that this instruction does not warn consumers that they need to tighten the chinstrap in addition to adjusting the pads and comfort liner.

K2 contends that plaintiffs are required to adduce expert testimony regarding the effectiveness of product warnings. Dkt. 103, at 15. But K2 cites no case in which expert testimony was required to show that a warning was defective. Under Wisconsin law, expert testimony is required only if the court finds that “the underlying issue is not within the realm of the ordinary experience of mankind.” State v. Kandutsch, 2011 WI 78, ¶ 28, 336 Wis. 2d 478, 799 N.W.2d 865 (internal quotations omitted). And Wisconsin courts have declined to require expert testimony in cases involving much more complex issues than these fitting instructions. See Lindeman v. Mt. Olympus Enterprises, Inc., No. 14-cv-435, 2015 U.S. Dist. LEXIS 105756, 2015 WL 4772925, at *3 (W.D. Wis. Aug. 12, 2015) (collecting cases). [*26] Here, the instructions are written in plain language, and the act of reading and following instructions is well within the ordinary experience of mankind.

The court denies K2’s motion for summary judgment on the defective instructions claim.

3. Negligence claim

Plaintiffs also bring a claim for negligence. To sustain this claim, plaintiffs must prove (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant’s breach of the duty of care and the plaintiff’s injury, and (4) actual loss or damage resulting from the injury. Smaxwell v. Bayard, 2004 WI 101, ¶ 32, 274 Wis. 2d 278, 682 N.W.2d 923. In Wisconsin, a manufacturer’s duty of care includes the duty to safely design the product so it is fit for its intended purpose, and the duty to conduct adequate inspections and tests to determine the extent of defects. Wis. Civil Jury Instructions § 3200(2).

K2 contends that plaintiffs have not adduced evidence of “specific acts of negligence.” Dkt. 103, at 17. But plaintiffs can rely on the same evidence used to establish their product liability claims. Although negligence and product liability are alternative theories of liability, there is significant overlap between the two. See Krien v. Harsco Corp., 745 F.3d 313, 317 (7th Cir. 2014) (“[A] [*27] claim of strict products liability is much like a negligence claim because it requires proof either that the product was unreasonably dangerous or, what amounts to the same thing, that it was defective”). Plaintiffs’ expert testimony from Ziejewski is sufficient to create a material dispute regarding whether K2 breached its duty to design a product that was safe for skiers.

4. Breach of warranty claim

K2 moves for summary judgment on plaintiffs’ claims for breach of warranty on two grounds. Dkt. 103, at 17-18. First, K2 contends that under Austin v. Ford Motor Co., claims for breach of warranty cannot be brought when the plaintiff has a tort claim. See 86 Wis.2d 628, 273 N.W.2d 233, 240 (1979) (“[I]t is inappropriate to bring an action for breach of warranty where a tort remedy is sought”). Second, K2 contends that there is no privity of contract between plaintiffs and K2. See St. Paul Mercury Ins. Co. v. Viking Corp., 539 F.3d 623, 626 (7th Cir. 2008) (Wisconsin law requires privity of contract between parties before liability can be founded on breach of express or implied warranty).

Plaintiffs have not substantively responded to either of these arguments. Dkt. 137, at 52-53. Failure to respond to an argument can result in waiver or forfeit of a claim. Nichols v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D. Wis. 2007) (collecting cases). Because plaintiffs did not [*28] respond to K2’s arguments regarding privity or the ability to bring warranty claims in a tort case, the court will grant summary judgment for K2 on plaintiffs’ claims for breach of warranty.

5. Loss of consortium claim

K2 moves for summary judgment on Tracy’s loss of consortium claim because it is derivative of Scott’s injuries. Because the court denies summary judgment on Scott’s product liability and negligence claims, it will also deny summary judgment on Tracy’s claim for loss of consortium.

K2 also moves to dismiss Tracy’s claim on the ground that plaintiffs have not properly pleaded loss of consortium in their amended complaint. Plaintiffs’ amended complaint does not include “loss of consortium” as an independent cause of action, but it does include allegations that “Plaintiff Tracy Rogers . . . has been deprived of the services, society, companionship and consortium of Scott Rogers as a proximate result of his enhanced injuries.” Dkt. 32, ¶ 23. K2 contends that this is insufficient under the plausible pleading standard of Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

Plaintiffs’ allegations are sufficient to state a claim. Even post-Iqbal, Federal Rule of Civil Procedure 8 requires only “adequate notice of the scope of, and basis for” the asserted claims. [*29] Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir. 2015) (citing Vincent v. City Colleges of Chi., 485 F.3d 919, 923 (7th Cir.2007)). Here, K2 had adequate notice that Tracy was seeking relief for loss of consortium as a result of the enhanced injuries caused by the K2 helmet.

C. Additional motions and requests for relief

As a final matter, plaintiffs ask the court to deny certain requests by K2 that plaintiffs contend were improperly included in K2’s summary judgment reply. Dkt. 149. Some of the “motions” to which plaintiffs refer are objections to allegedly inadmissible evidence—objections that K2 is allowed to raise during summary judgment. For example, K2 objects that the declarations from Tracy and Ziejewski, first produced with plaintiffs’ summary judgment opposition, are untimely expert testimony. Dkt. 143, at 3-10. There is nothing improper about K2 making these objections in its summary judgment reply. (The court has overruled the objection to Tracy’s declaration, and it has not considered the Ziejewski declaration. Whether the Ziejewski evidence will be allowed at trial will be addressed later at the final pretrial conference.)

But K2 requests two additional forms of relief in its reply brief. First, K2 contends that plaintiffs should be sanctioned for spoliation because Tracy adjusted the helmet’s [*30] comfort liner and therefore altered it from its condition at the time of the accident. Dkt. 143, at 7-8 fn. 7. Second, K2 contends that plaintiffs did not disclose the existence of Scott’s ski goggles and must be ordered to turn them over. Id. at 8.

A party may not raise new issues in a reply brief. See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009). In any event, both of K2’s requests for additional relief are undeveloped. The spoliation arguments are relegated to a footnote. And both requests misconstrue the history of this case. K2’s own experts previously removed the helmet’s comfort lining at issue. Dkt. 112, at 10-11. And K2 was already aware of Scott’s goggles, Dkt. 130 (Tracy dep. 33:9-17), and Halstead included a pair of goggles as a factor in his testing. Dkt. 110, at 4. The court will deny K2’s requests for additional relief, thus granting plaintiffs’ request.

ORDER

IT IS ORDERED that:

1. Plaintiffs motion to exclude the opinion testimony of K2’s experts, Dkt. 139, is GRANTED in part and DENIED in part, as provided in this opinion.

2. Defendant K2’s motion for summary judgment, Dkt. 102, is DENIED for the most part. The motion is GRANTED only with respect to plaintiffs’ claims for breach of warranty.

3. Plaintiffs Scott Rogers and [*31] Tracy Rogers’ motion, Dkt. 149, for summary denial of K2’s motions is GRANTED in part. The court denies defendant K2’s motions to produce ski goggles and to sanction plaintiffs for spoliation.

4. Pursuant to the parties’ stipulation, Dkt. 250, all claims as to defendants Lexington Insurance Company and AIG Europe Limited are DISMISSED without prejudice.

Entered December 28, 2018.

BY THE COURT:

/s/ JAMES D. PETERSON

District Judge


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

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

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

State: Wisconsin, Supreme Court of Wisconsin

Plaintiff: Patti J. Roberts and David Roberts

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

Plaintiff Claims: Negligence

Defendant Defenses: Recreational Use Statute & Release

Holding: for the Plaintiff

Year: 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Releases are also void if they fail to:

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

Finally releases can be void if:

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Wisconsin, recreational Use Statute, Release, Bargain, Public Policy,

 


Wisconsin Recreational Use Statute

Wisconsin Recreational Use Statute

Chapter 895.  Damages, Liability, and Miscellaneous Provisions Regarding Actions in Courts 

Subchapter II Exemptions From, and Limitations On, Liability

Go to the Wisconsin Code Archive Directory

Wis. Stat. § 895.52  (2016)

895.52.  Recreational activities; limitation of property owners’ liability.

(1) DEFINITIONS.

In this section:

            (ag) “Agricultural tourism activity” means an educational or recreational activity that takes place on a farm, ranch, grove, or other place where agricultural, horticultural, or silvicultural crops are grown or farm animals or farmed fish are raised, and that allows visitors to tour, explore, observe, learn about, participate in, or be entertained by an aspect of agricultural production, harvesting, or husbandry that occurs on the farm, ranch, grove, or other place.

            (ar) “Governmental body” means any of the following:

            1. The federal government.

            2. This state.

            3. A county or municipal governing body, agency, board, commission, committee, council, department, district or any other public body corporate and politic created by constitution, statute, ordinance, rule or order.

            4. A governmental or quasi-governmental corporation.

            5. A formally constituted subunit or an agency of subd. 1., 2., 3. or 4.

            (b) “Injury” means an injury to a person or to property.

            (c) “Nonprofit organization” means an organization or association not organized or conducted for pecuniary profit.

            (d) “Owner” means either of the following:

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

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

            (e) “Private property owner” means any owner other than a governmental body or nonprofit organization.

            (f) “Property” means real property and buildings, structures and improvements thereon, and the waters of the state, as defined under s. 281.01 (18).

            (g) “Recreational activity” means any 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, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle or utility terrain vehicle, operating a vehicle, as defined in s. 340.01 (74), on a road designated under s. 23.115, recreational aviation, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, participating in an agricultural tourism activity, sport shooting and any other outdoor sport, game or educational activity. “Recreational activity” does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.

            (h) “Recreational agreement” means a written authorization granted by an owner to a governmental body or nonprofit organization permitting public access to all or a specified part of the owners property for any recreational activity.

            (hm) “Recreational aviation” means the use of an aircraft, other than to provide transportation to persons or property for compensation or hire, upon privately owned land. For purposes of this definition, “privately owned land” does not include a public-use airport, as defined in s. 114.002 (18m).

            (i) “Residential property” means a building or structure designed for and used as a private dwelling accommodation or private living quarters, and the land surrounding the building or structure within a 300-foot radius.

(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 owners property to engage in a recreational activity:

            1. A duty to keep the property safe for recreational activities.

            2. A duty to inspect the property, except as provided under s. 23.115 (2).

            3. A duty to give warning of an unsafe condition, use or activity on the property.

            (b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owners property or for any death or injury resulting from an attack by a wild animal.

(3) LIABILITY; STATE PROPERTY.

            Subsection (2) does not limit the liability of an officer, employee or agent of this state or of any of its agencies for either of the following:

            (a) A death or injury that occurs on property of which this state or any of its agencies is the owner at any event for which the owner charges an admission fee for spectators.

            (b) A death or injury caused by a malicious act or by a malicious failure to warn against an unsafe condition of which an officer, employee or agent knew, which occurs on property designated by the department of natural resources under s. 23.115 or designated by another state agency for a recreational activity.

(4) LIABILITY; PROPERTY OF GOVERNMENTAL BODIES OTHER THAN THIS STATE.

            Subsection (2) does not limit the liability of a governmental body other than this state or any of its agencies or of an officer, employee or agent of such a governmental body for either of the following:

            (a) A death or injury that occurs on property of which a governmental body is the owner at any event for which the owner charges an admission fee for spectators.

            (b) A death or injury caused by a malicious act or by a malicious failure to warn against an unsafe condition of which an officer, employee or agent of a governmental body knew, which occurs on property designated by the governmental body for recreational activities.

(5) LIABILITY; PROPERTY OF NONPROFIT ORGANIZATIONS.

            Subsection (2) does not limit the liability of a nonprofit organization or any of its officers, employees or agents for a death or injury caused by a malicious act or a malicious failure to warn against an unsafe condition of which an officer, employee or agent of the nonprofit organization knew, which occurs on property of which the nonprofit organization is the owner.

(6) LIABILITY; PRIVATE PROPERTY.

            Subsection (2) does not limit the liability of a private property owner or of an employee or agent of a private property owner whose property is used for a recreational activity if any of the following conditions exist:

            (a) The private property owner collects money, goods or services in payment for the use of the owners property for the recreational activity during which the death or injury occurs, and the aggregate value of all payments received by the owner for the use of the owners property for recreational activities during the year in which the death or injury occurs exceeds 2,000. The following do not constitute payment to a private property owner for the use of his or her property for a recreational activity:

            1. A gift of wild animals or any other product resulting from the recreational activity.

            2. An indirect nonpecuniary benefit to the private property owner or to the property that results from the recreational activity.

            3. A donation of money, goods or services made for the management and conservation of the resources on the property.

            4. A payment of not more than 5 per person per day for permission to gather any product of nature on an owners property.

            5. A payment received from a governmental body.

            6. A payment received from a nonprofit organization for a recreational agreement.

            7. A payment made to purchase products or goods offered for sale on the property.

            (b) The death or injury is caused by the malicious failure of the private property owner or an employee or agent of the private property owner to warn against an unsafe condition on the property, of which the private property owner knew.

            (c) The death or injury is caused by a malicious act of the private property owner or of an employee or agent of a private property owner.

            (d) The death or injury occurs on property owned by a private property owner to a social guest who has been expressly and individually invited by the private property owner for the specific occasion during which the death or injury occurs, if the death or injury occurs on any of the following:

            1. Platted land.

            2. Residential property.

            3. Property within 300 feet of a building or structure on land that is classified as commercial or manufacturing under s. 70.32 (2) (a) 2. or 3.

            (e) The death or injury is sustained by an employee of a private property owner acting within the scope of his or her duties.

(7) NO DUTY OR LIABILITY CREATED.

Except as expressly provided in this section, nothing in this section, s. 101.11, or s. 895.529 nor the common law attractive nuisance doctrine creates any duty of care or ground of liability toward any person who uses anothers property for a recreational activity.


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.


Wisconsin decision has left the status of release law in Wisconsin in jeopardy. Decision also brought in new defenses to releases in the state

This decision worked hard to defeat not only this release, but all releases in Wisconsin, even though the dissent laid out great arguments why the majority’s decision was not based on any business principle. Even a concurring opinion thought the majority decision was too broad.

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Date of the Decision: January 19, 2005

Plaintiff: Benjamin Atkins, a minor, as the only surviving child of Charis Wilson, deceased, by Alexander Kammer, guardian ad litem

Defendant: Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company

Plaintiff Claims:

Defendant Defenses: Release

Holding: for the Plaintiff

In this decision, the Wisconsin Supreme Court set release law back in the state. The decision, Atkins v. Swimwest violated a release on numerous grounds that would not hold up in other states. In a decision that may invalidate all releases in Wisconsin, the Court ruled that a release used by a swim club in conjunction with the registration statement was invalid as against public policy.

The plaintiff was the only surviving heir of the deceased and a minor. Consequently, the plaintiff was represented by a guardian ad litem. This is a person appointed by the court to represent the minor. The guardian ad litem may or may not be an attorney.

The decedent went to the defendant’s swimming pool for physical therapy. She entered the pool that day and was observed swimming a sidestroke up and down the length of the pool. Soon thereafter she was observed at the bottom of the pool. She was rescued, and CPR was started. She was transported to a hospital where she died the next day.

The decedent was not a member of the swim club, so she was required to sign a guest registration/release form. The form was titled “Guest Registration.” The form was a five 1/2 inch by five 1/2 inch card with release language that the court characterized as standardized. The card also required written personal information. The waiver information was below the registration information. The waiver language was:

I agree to assume all liability for myself without regard to fault, while at Swimwest Family Fitness Center. I further agree to hold harmless Swimwest Fitness Center, or any of its employees for any conditions or injury that may result to myself while at the Swimwest Fitness Center. I have read the foregoing and understand its contents.

The trial court dismissed the case based on the release. The appellate court certified the case to the Supreme Court of Wisconsin. Certified means they passed the case on up without a decision.

Summary of the case

The court first had a problem with the term fault. The term was described as overly broad. The court explained the term was not defined enough to indicate to the parties (the deceased) the exact legal claims that would be barred by the release. The court found the term fault could also cover intentional acts which the court specifically stated would violate public policy and consequently, void the release.

The court stated, “We have consistently held that “only if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable.” From this, statement appears the court wants the specific possible risks to be enumerated; however, that is an impossible job for most recreational activities.

The Supreme Court then looked at the Public Policy issues. The court called the public policy test a balancing test. The court required a balancing of the needs of the parties to contract versus the needs of the community to protect its members. No other court has balanced the issue of a release for a recreational activity this way. No other decision has surmised that the needs of the community include protecting individual members from freedom to contract. The court did not even consider the issue that the purpose of swimming by the decedent was for medical care: her physical therapy which might have had some public policy basis.

The court examined the release’s language in a two-step process. “First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived.  Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed.” The court stated the release served two purposes: (1) as a sign-in sheet for the facility and (2) as a release and therefore, did not meet the test they created.

In another statement the court stated, there was nothing conspicuous about the release language in the form. While other courts across the nation have continuously berated release writers about hiding the release language, wanting them to make sure the language was not hidden. Here the court goes one step further and wants the release language to be quite apparent and pointed out to the reader.

In one of the wildest statements in a court decision, the Supreme Court of Wisconsin stated that the decedent did not contemplate drowning.

…Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.

Although you might look at slipping on the wet deck or stubbing your toe as you entered the water, what other possible risks exist in swimming other than drowning?

The next major blow to releases in general was the bargaining argument. The court stated the release was void because there was no opportunity for the decedent to bargain over the release language.

We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form.

We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain.

The term bargain means the court wants possible signors of releases to be able to negotiate the exculpatory language out of the release. As argued by the dissent, (judge who disagrees with the majority opinion) this would require every firm to hire an attorney to negotiate each release with each patron. As a condition of insurance, most providers of recreational insurance and/or health club insurances are requiring that every participant sign a release. If a participant does not sign a release and the release is a policy condition, there will be no insurance available to defend a claim.

Even if you could purchase insurance without using a release, at what cost would not having a release be worth? Based on two cases that have occurred, the person who is injured is the person who did not sign the release. So the cost of not have a patron sign a release is equal to their possible claims. If you want to join the health club and sign a release the cost is $79.00 per month with a $100 membership fee. If you want to join without signing a release, the cost is $89.00 a month with a $5 million-dollar membership fee.

The failure bargain to remove the release language was a violation of public policy. How? The court does not enumerate, nor do the concurrence and the dissent provide much additional information; however, both the concurrence and the dissent recognize the fallacy of the bargain requirement.

In the one point of illumination, court summed up their decision in the last paragraph:

In summary, we conclude that the exculpatory language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim.  The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

The dissent is a well-thought-out argument about what is good and bad about the release and what is very bad about the majority’s opinion; however, the dissent, a minority of one, has no real value.

So Now What?

The solution to this issue is to use the word negligence. Negligence has a specific legal definition and specifically/legally defines the parameter of the release. The only specific statement from the decision that could be considered directional in writing releases was the statement that the word release should have been used in the form.

Why not? Why risk having your release thrown out because you failed to put in one additional sentence.

The next problem was the release was part of a registration form. The court included this as a reason the release did not meet its public policy test. This problem would have been resolved if the release was on a separate sheet of paper and clearly marked with a heading and/or notice above the signature line that the document was a release.

The court then went on in this vein and stated the exculpatory language in the release should have been highlighted or been more visible to someone signing the release.

From this decision, in Wisconsin you must!

1.                  Your release must be on a separate and distinct piece of paper.

2.                You release must be identified and clearly state it is a release.

3.                The release must use the magic word “negligence” to be valid.

4.                You need to list all of the possible injuries or risks that can befall the signor of the release.

5.                 Your release must be read by the parties and there should be a notice in the release that the signor read, understood and signed the release with the intention to give up their right to sue for injuries or death.

If you can, you should see if you can provide:

6.                The opportunity for your patron to buy their way out of the release.

7.                 References to other competitors where a guest may be able to go to have a similar opportunity without signing a release.

8.                8.  Make sure your insurance is up to date and adequate for the value of your business and your risk.

Always in any business.

9.                Make sure your corporate records are up to date. If you are not incorporated or an LLC get incorporated now!

10.            10.         Look into separating assets from operations in separate corporations or LLC’s and divide your business into separate, smaller entities to protect the business.

11.              11. Look into asset protection planning for your personal assets.

What do you think? Leave a comment.

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Yauger v. Skiing Enterprises, Inc., 196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022

Yauger v. Skiing Enterprises, Inc., 196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022

Michael Yauger and Brenda Yauger, Plaintiffs-Appellants, v. Skiing Enterprises, Inc., d/b/a Hidden Valley Ski Area, a Wisconsin corporation, and Investors Insurance Company of America, a foreign corporation, Defendants-Respondents.

No. 94-2683

COURT OF APPEALS OF WISCONSIN

196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022

July 12, 1995, Oral Argument

August 23, 1995, Opinion Released

August 23, 1995, Opinion Filed

PRIOR HISTORY: [***1] APPEAL from a judgment of the circuit court for Manitowoc County: ALLAN J. DEEHR, Judge.

DISPOSITION: Affirmed.

COUNSEL: On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Gary L. Bendix and John M. Bruce of Savage, Gregorski, Webster, Stangel & Bendix, S.C. of Manitowoc. There was oral argument by John M. Bruce.

On behalf of the defendants-respondents, there was a brief and oral argument by Thomas B. Hartley of Guttormsen, Hartley & Guttormsen of Kenosha.

JUDGES: Before Anderson, P.J., Brown and Snyder, JJ.

OPINION BY: BROWN

OPINION

[**836] [*490] BROWN, J. We are asked to gauge whether the exculpatory contract in this case is void as against public policy. Here, Brenda and Michael Yauger brought a wrongful death action against Hidden Valley Ski Area after their eleven-year-old daughter, Tara, was killed when she struck the concrete base of a ski lift tower. The trial court dismissed the claim finding that the [*491] Yaugers’ contract with Hidden Valley for a season pass contained a valid exculpatory clause. The Yaugers now reassert their challenge that [***2] it is void.

The following facts were taken from the appellate record consisting of the pleadings, affidavits and depositions. On October 8, 1992, Michael Yauger submitted an application for a family season pass at Hidden Valley. This form is reproduced at the end of the opinion. The pass cost roughly $ 720. Although only Michael signed the application, his wife and two daughters (then ages ten and eight) were named on the form. Depositions reveal that Michael submitted the application in person at the Hidden Valley Ski Shop.

The Yauger family was familiar with Hidden Valley. Michael had skied there approximately sixty times in the three seasons prior to the accident, and Tara had skied there about fifty times prior to her accident. The record also shows that the Yauger family had a season pass at the resort the prior year.

On March 7, 1993, Tara suffered her fatal accident. The exact facts surrounding her death are unsettled, but the record currently suggests that she struck the side of a concrete base of a ski lift tower. The Yaugers sued Hidden Valley that October, claiming that this support was not adequately padded.

After limited discovery, Hidden Valley and its insurer [***3] sought summary judgment on grounds that the exculpatory release within the Yaugers’ contract for a season pass barred them from bringing this claim since it arose out of the “certain inherent risks in skiing.” The Yaugers responded that the clause was invalid as against public policy because it was not knowingly entered into by each of the Yaugers, was ambiguous and overbroad and also attempted to encompass protections provided under Wisconsin’s safe-place law.

[*492] The trial court granted Hidden Valley’s motion. It focused its analysis on the phrase “certain inherent risks in skiing” and reasoned that it covered the type of injury that killed Tara, namely, the risk that a skier will collide with a stationary object. It also rejected the Yaugers’ argument that Brenda Yauger was not bound by the exculpatory clause, finding that her express endorsement was not necessary since she received the benefit of the season pass.

We are reviewing a grant of summary judgment; thus, § 802.08(2), STATS., governs [**837] the analysis. See Decade’s Monthly Income and Appreciation Fund v. Whyte & Hirschboeck, S.C., 164 Wis. 2d 227, 230, 474 N.W.2d 766, 767 (Ct. App. 1991), aff’d, 173 Wis.2d 665, [***4] 495 N.W.2d 335 (1993). [HN1] Summary judgment is appropriate when there are no material issues of fact and the moving party is entitled to judgment as a matter of law. Id. Moreover, this appeal concerns the interpretation of a contract which appellate courts address de novo. Id. at 230-31, 474 N.W.2d at 767. Therefore, to defeat Hidden Valley’s motion for summary judgment the Yaugers must show that material facts are in dispute, or that the trial court erred in its analysis of the exculpatory clause. See id. at 230-31, 474 N.W.2d at 767.

We first turn to the analysis of the season pass and its exculpatory clause. Wisconsin law does not favor these agreements and courts therefore examine with care the facts of each case to ascertain whether enforcement will contravene public policy. See Merten v. Nathan, 108 Wis. 2d 205, 210-11, 321 N.W.2d 173, 176 (1982). The goal is to strike a balance between conflicting principles of contract and tort law. See id. at 211, 321 N.W.2d at 177. [HN2] Freedom of contract suggests that [*493] courts should abstain from interfering in people’s relationships and personal affairs. See id. On [***5] the other hand, tort law recognizes that those responsible for causing harm through negligence should bear the cost of the harm and should not be allowed to circumvent this duty through contract. See id. at 211-12, 321 N.W.2d at 177.

A review of the recent supreme court cases on this issue indicates that there are two aspects to the question of whether an exculpatory contract violates public policy. In Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991), the court cited with approval § 195 of the RESTATEMENT (SECOND) OF CONTRACTS (1979), which sets out a series of situations in which an exculpatory contract would violate public policy. Id. at 515-16, 468 N.W.2d at 658-59 (citing Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 210-11, 330 N.W.2d 773, 777 (1983)). The first element tests the effect of the exculpatory clause, e.g., does it exempt an employer from suits by an employee. See id. 1

1 This two-prong analysis was also discussed in Discount Fabric House v. Wisconsin Telephone Co., 117 Wis. 2d 587, 602, 345 N.W.2d 417, 424-25 (1984), where the court faced a challenge to an exculpatory release that served to cover any errors in telephone directory advertising. The court explained that the analysis of such contracts involves an assessment of the “commercial reasonableness” of the terms (substantive) and the relationship between the parties during negotiations (procedural). Id.

[***6] The Yaugers’ assertion that the exculpatory clause in Hidden Valley’s season pass application contravenes the safe-place statute, § 101.11, STATS., fits this line of analysis. In further support of this argument they cite Meyer v. Val-Lo-Will Farms, Inc., 14 Wis. 2d 616, 111 [*494] N.W.2d 500 (1961), for the proposition that a for-profit winter sports park was subject to the safe-place law. In substance, they argue that the exculpatory clause violates public policy because it seeks to relieve Hidden Valley of the duty imposed by the statute. See RESTATEMENT (SECOND) OF CONTRACTS § 195(2)(c). 2 The trial court rejected this argument, reasoning that the safe-place statute did not create a special cause of action, but established a higher duty of care for what would ordinarily be addressed through common law negligence.

2 The applicability of the safe-place statute, § 101.11, STATS., in situations where frequenters challenge exculpatory contracts was raised, but left unanswered, in Kellar v. Lloyd, 180 Wis. 2d 162, 178-81, 509 N.W.2d 87, 93-94 (Ct. App. 1993).

[***7] While we agree with the trial court’s result, a different analysis is appropriate. Moreover, we need not decide the issue of whether the safe-place law imposed a special statutory duty on Hidden Valley. We hold that even if the statute does apply, a potential defendant may still bargain for an exclusion.

As noted above, the supreme court has endorsed § 195 of the RESTATEMENT (SECOND) OF CONTRACTS. See Merten, 108 Wis. 2d at 212-13, 321 N.W.2d at 177-78. 3 [*495] The [**838] official comment to this section, however, suggests that the enumerated standards are not a litmus test for these agreements; it states: “the rigor of this rule may, however, be mitigated by a fairly bargained for agreement to limit liability to a reasonable agreed value in return for a lower rate.” RESTATEMENT (SECOND) OF CONTRACTS § 195 cmt. a.

3 We recognize that the exact status of RESTATEMENT (SECOND) OF CONTRACTS § 195 (1979), is somewhat clouded. In Dobratz v. Thomson, 161 Wis. 2d 502, 515-16, 468 N.W.2d 654, 658-59 (1991), the court expressly quoted all the subsections after noting that it had originally “referred with approval” to them in Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 210-11, 330 N.W.2d 773, 777 (1983). When one examines the Arnold opinion, however, it includes only a general reference to the RESTATEMENT. Indeed, the rule in § 195(2)(c), which provides the basis for the Yaugers’ argument, was not referred to in the discussion. See Arnold, 111 Wis. 2d at 210-11, 330 N.W.2d at 777. Moreover, in the supreme court’s most recent exploration of these issues, the majority opinion made no reference to § 195, although it did reaffirm its confidence in the Dobratz decision. Richards v. Richards, 181 Wis. 2d 1007, 1014, 513 N.W.2d 118, 121 (1994). We have located a federal district court case in which the various subsections of § 195 were found to be a component of Wisconsin law and formed the basis for voiding an exculpatory contract. See RepublicBank Dallas, N.A. v. First Wisconsin Nat’l Bank, 636 F. Supp. 1470, 1473 (E.D. Wis. 1986) (voiding clause exempting liability for harm arising out of reckless or intentional acts). We thus find that § 195 continues to be a valid component of Wisconsin common law.

[***8] The process envisioned by the drafters of this comment aptly describes the transaction between the Yaugers and Hidden Valley. The Yaugers wanted a discount on their skiing. The resort was a willing supplier, but recognized that the increase in days skied would directly increase the risk of an accident and the potential for a damages claim. Hidden Valley therefore sought a release from liability. Gauging the deal at the time when the parties entered into the contract, we cannot say that the exchange was totally unreasonable. The Yaugers obtained their discount, but lost the right to bring a claim arising out of an accident which may never have occurred. Here, freedom of contract requires that we not delve deeper into the merits of this agreement. [*496] See Merten, 108 Wis. 2d at 211, 321 N.W.2d at 177. 4

4 Of course the above analysis certainly does not summarize all the concerns of the bargaining parties. The Yaugers and Hidden Valley were also making allowances for the risk that there would be no snow that season. The key to understanding our analysis, however, is to recognize that courts rarely are able to do a better job of writing contracts than the parties themselves.

[***9] The second prong of the public policy question entails examining the circumstances surrounding the bargaining process. See Dobratz, 161 Wis. 2d at 516 n.2, 468 N.W.2d at 659. For example, in Richards v. Richards, 181 Wis. 2d 1007, 1010, 513 N.W.2d 118, 119 (1994), 5 the supreme court was asked to review an exculpatory contract signed by a passenger in a commercial, long-haul truck. The plaintiff was married to a driver employed by the defendant and was asked to sign a “passenger authorization” before joining her husband on the road. Id. at 1012, 513 N.W.2d at 119. Within the form was a clause releasing the defendant from liability for any harm that might occur during her travels. Id. Still, the wife brought suit after she and her husband were involved in an accident. The lower courts found that the release was valid and granted summary [*497] judgment for the defendant. Id. at 1010, 513 N.W.2d at 119.

5 We discuss Richards in detail because it represents the supreme court’s most recent analysis of how flaws in the specific terms of an agreement, or the circumstances of the bargaining process, may serve as grounds for voiding an exculpatory agreement. For other examples, see Merten v. Nathan, 108 Wis. 2d 205, 214-15, 321 N.W.2d 173, 178 (1982) (release invalidated because defendant misrepresented a fact during the negotiation process), and Eder v. Lake Geneva Raceway, 187 Wis. 2d 596, 610-11, 523 N.W.2d 429, 434 (Ct. App. 1994) (release clause found to be ambiguous).

[***10] After its review of the contract, however, the supreme court found it to be void as contrary to public policy. Id. at 1011, 513 N.W.2d at 119. The majority pointed to three aspects of the agreement, which together led to this conclusion. First, the contract served two purposes. The court emphasized that the exculpatory clause was not distinguishable from other components of the document. It reasoned that highlighting the release provision would have provided greater protection for the signing party. See id. at 1017, 513 N.W.2d at 122.

Next, the court found that the contract was over-inclusive. It applied not only to the [**839] defendant, but also to all of its affiliates. Moreover, it did not delineate the nature of claims that would be excluded, such as those arising from negligence but not from intentional acts. Also, the time period through which the exclusion would apply was not limited. The majority found that the contract was lopsided in favor of the defendant and should therefore be construed against the company. See id. at 1017-18, 513 N.W.2d at 122.

Finally, the court noted that the release was embodied in a standard form contract, and the defendant [***11] did not inform the plaintiff of the purpose and effect of the authorization. This suggested that there was little or no opportunity to dicker about the terms. Id. at 1019, 513 N.W.2d at 123.

The Yaugers cite Richards and raise a number of arguments, each suggesting that they and Hidden Valley were not on equal footing when they entered into this agreement. The many issues they raise can be distilled into three central points. First, the Yaugers contend that the release clause, which was a single [*498] term in the season pass application, was never pointed out to Michael before he completed and signed the form. See Richards, 181 Wis. 2d at 1019, 513 N.W.2d at 123. They further assert that summary judgment was inappropriate because Hidden Valley presented no evidence on this issue.

We are not persuaded. This agreement was signed in October, at least one month prior to the skiing season. There was no sense of urgency. Michael could have taken the form home for further consideration. In addition, the Yaugers had purchased a season pass for the prior year. Therefore, Michael had a source of knowledge from which to draw comparisons. Compare Eder v. Lake [***12] Geneva Raceway, 187 Wis. 2d 596, 609, 523 N.W.2d 429, 433 (Ct. App. 1994)(noting that parties signing the release were not allowed onto the racetrack grounds until they signed the release form).

Next, the Yaugers assert that the language within the exculpatory clause is ambiguous. It specifically addressed “certain inherent risks in skiing.” They question what constitutes these “inherent risks” and whether the clause only applies to a “certain” number of these dangers. In addition, they note that Hidden Valley did not provide any evidence which would identify these risks. The Yaugers also raise concerns that the clause (which is composed of a single sentence) reads to limit Hidden Valley’s liability for any injury occurring on the premises. They stress that this could be reasonably interpreted as an attempt to limit the resort’s liability for any accident on the premises, such as a slip and fall in the restaurant. See Richards, 181 Wis. 2d at 1017-18, 513 N.W.2d at 122.

The trial court concluded that the terminology covered the obvious dangers in skiing, viz, falling down or [*499] colliding with another skier or a fixed object, and that the “any injury” language was limited [***13] to those harms arising out of these risks. We agree.

[HN3] Whether a contract is ambiguous is a question of law. Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653, 656 (Ct. App. 1990). We test whether the term is reasonable or fairly susceptible of more than one construction. Id. [HN4] A clause is not ambiguous, however, merely because its language is general or broad. See Wilke v. First Federal Savs. & Loan Ass’n, 108 Wis. 2d 650, 654, 323 N.W.2d 179, 181 (Ct. App. 1982).

This was a contract between Hidden Valley and a season pass holder. The contracting skier, therefore, could reasonably be expected to have some knowledge about the sport. The Yaugers’ interest in skiing is further demonstrated by their willingness to commit over seven hundred dollars to skiing that season. 6 The record also reveals that the Yaugers had a similar pass at the resort the prior year. We are thus hesitant to accept their arguments that such language would lead to confusion among parties executing these agreements. The language is plain and simple. It aptly describes the risks that [**840] arise whenever one’s skis are in contact with the slope. 7

6 The season pass was not refundable.

[***14]

7 Very similar language can be found in Wisconsin’s recreational responsibility law. See § 895.525(3), STATS. (“A participant in a recreational activity … accepts the risks inherent in the recreational activity ….”) (emphasis added). Moreover, several states have adopted specific skier responsibility laws which codify these terms. For example, Colorado law provides, in part:

“Inherent dangers and risks of skiing” means those dangers or conditions which are an integral part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

COLO. REV. STAT. ANN. § 33-44-103(10) (West Supp. 1994) (emphasis added).

Further discussion of these laws, and judicial efforts in providing interpretation, are set forth in Arthur N. Frakt and Janna S. Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 IDAHO L. REV. 227 (1991-92).

[***15] [*500] Finally, the Yaugers argue that the exculpatory clause should be held void because it was “not clearly identified or distinguished.” See Richards, 181 Wis. 2d at 1017, 513 N.W.2d at 122.

The trial court noted that although the exculpatory language was not highlighted, there was no indication that it was disguised and therefore did not provide grounds for rendering the agreement void. Indeed, the clause is set out in a separate paragraph.

Any break in text requires the reader to pause and thus provides a moment for reflection.

The face of the application does not otherwise suggest that Hidden Valley was trying to trick season pass holders into signing away their rights. It was an application form. Not only did the applicants have to sign the agreement, but they had to furnish information [*501] such as their address, age, other family member names, etc. In sum, the form and application process provided ample opportunity for Michael to consider the terms of the agreement.

We have addressed a variety of concerns about the exculpatory clause of the season pass contract. Although no single point is troublesome enough to render the clause void, Richards suggests that [***16] courts may consider all these aspects together when making a determination about the effects of public policy. See id. at 1011, 513 N.W.2d at 119. But even the totality of the circumstances presented here does not warrant that this contract be set aside. The contracting process simply does not raise any concern of overreaching by the party seeking to be released from liability. 8

8 The Yaugers raised one other challenge to the exculpatory clause relating to the contract language. They assert that under Hortman v. Otis Erecting Co., 108 Wis. 2d 456, 463, 322 N.W.2d 482, 485-86 (Ct. App. 1982), an agreement which indemnifies a party for its own negligence must specifically include the term “negligence.” As the defendants contend, however, this specific argument was not presented to the trial court and is therefore waived on appeal. See, e.g., Bank One, Appleton, N.A. v. Reynolds, 176 Wis. 2d 218, 222, 500 N.W.2d 337, 339 (Ct. App. 1993).

We now turn to the second issue presented. [***17] Although we have found that the exculpatory clause serves as a bar to the Yaugers’ claim, Brenda nonetheless asserts that it should not run against her individually since she did not expressly acknowledge these terms, nor did she authorize her husband to execute a contract releasing these claims. In support of her argument, she draws an analogy to Arnold v. Shawano County Agri. Soc’y, 111 Wis. 2d 203, 214-15, 330 N.W.2d 773, 779 (1983), where the court held that a [*502] spouse’s claim for consortium rights is not defeated by a valid exculpatory contract running against the deceased.

In dismissing this claim the trial court distinguished Arnold, stating:

In this case the plaintiff Brenda Yauger did not sign the application, but the application was made on her behalf and for her [**841] benefit, which is not the factual situation in Arnold. And she is specifically identified and money is specifically paid for her membership, for her use, and the use of her daughter ….

Although we agree in substance with the trial court’s analysis, we feel it necessary to elaborate further. We add that Brenda’s claim is barred by the exculpatory clause because it is so intertwined [***18] with that of her husband, and thus it was reasonable for Hidden Valley to assume that Michael was acting on her behalf when he executed the agreement.

The Yaugers’ claim has three components: loss of consortium, Tara’s medical expenses and the cost of her funeral. See § 895.04(4), STATS. The right to pursue a claim for these losses accrues to Michael and Brenda as the “parents of the deceased.” See id. This is not a situation in which one parent’s recovery is limited or barred by his or her negligence. See § 895.04(7). This distinction recently was addressed in Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 561, 514 N.W.2d 399, 403 (1994), where the court noted: “the right to sue and recover damages under the wrongful death statute must be distinguished from the ownership and allocation of the recovery itself.”

Brenda alleges that she never authorized her husband to enter into this exculpatory clause (and bargain [*503] away her right to pursue a potential claim), nor was she aware of its effects. Nevertheless, she shared equally in the benefits that arose to her family, and the face of the application form would suggest that all [***19] named parties are bound by its terms.

Although there is little case law applying the principles of agency in transactions between married persons and third parties, Smart v. Estate of Ford, 23 Wis. 2d 60, 65-66, 126 N.W.2d 573, 576 (1964), summarized the Wisconsin rule that third parties may reasonably believe that one spouse had authority to act on behalf of the other. Here, we are dealing with the Yaugers’ joint interest in the companionship of their beloved daughter. Michael completed the season pass application on behalf of his whole family and paid the appropriate sum. Absent any evidence that Brenda informed Hidden Valley that she was not bound by this agreement, the Yaugers should both be held by the terms of the application.

By the Court.–Judgment affirmed.

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