Wisconsin finding more ways to invalidate releases, which makes writing a release difficult.
Posted: June 19, 2023 Filed under: Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Wisconsin | Tags: Bargain, Chair Lift, Chair Lift Rescue, Exclupatory Release, exculpatory, Exculpatory Agreement, Public Policy, Reckless, recklessness, Release Leave a commentThe release was found not to cover falling from a check lift because it did not speak to the issue of chair lift rescues.
Schabelski v. Nova Cas. Co. (Wis. App. 2022)
State: Wisconsin; Court of Appeals of Wisconsin, District II
Plaintiff: Kathleen A. Schabelski and Jay P. Schabelski, Plaintiffs-Appellants, Blue Cross Blue Shield of Illinois, a foreign corp. and Golden Rule Insurance Company, a foreign corp
Defendant: Nova Casualty Company, a foreign corp., Friedl Ski Ventures, LLC, a WI LLC and Alex James Fuhrman
Plaintiff Claims: (1) the alleged failure to have proper rescue equipment on hand; (2) allegedly inadequate training of resort employees to respond to a rider hanging from a lift chair; and (3) the purported lack of adequate written plans or procedures for responding to evacuating riders.
Defendant Defenses: Release
Holding: Split decision, voided the release for the main claims but upheld the defendant’s position on several minor issues.
Year: 2022
Summary
Wisconsin is limiting the scope of releases and requiring them to be specifically written to cover the specific risks of an activity. If that risk is not set forth in the release, the release will not provide a defense to that type of claim.
Wisconsin also requires the ability to bargain over a release. Either the opportunity to not sign a release or to negotiate parts of the release.
Facts
Jay has a bachelor’s degree in civil engineering and a master’s degree and runs a business that designs and manufactures soil testing equipment. Kathleen holds a bachelor’s degree in broadcast communications and a master’s degree in business administration and does accounting and human resources work for the business. Kathleen has had cerebral palsy since birth but received training from the Southeastern Wisconsin Adaptive Ski Program and became an experienced snowboarder. Before the accident, Kathleen had successfully boarded chair lifts “hundreds of times.”
The Schabelskis and their son arrived at Sunburst in the morning on February 28, 2016. They purchased lift tickets from an attendant in the gift shop because the ticket window was closed. The attendant presented them with a release and briefly showed them a second form that gave them the option to purchase health insurance for an additional fee, which they declined.
Immediately below these paragraphs are lines for up to six ticket holders to print and sign their names. The circuit court described the size of most of the printed text in the release as “small; like this — 8 point or smaller.” We are unable to determine the exact size of the text, but it appears smaller than the text in this opinion, which is printed in 13-point font.
Kathleen did not ask the attendant any questions about the release. The attendant did not discuss the “nature of [the] bullet points” in the release with the Schabelskis. Kathleen did not recall seeing or discussing the language in the release allowing customers to purchase a lift ticket without signing a release for an extra ten dollars.
Kathleen did not read the release “word for word” because it contained, in her words, “very fine print,” and she had never seen anyone do so before purchasing a ticket. But she believed she understood what the release meant based on her “prior knowledge of what a liability waiver typically contains”-namely, that such waivers “protect[] the ski hill if I am injured due to my own mistake.” Kathleen could have read the release “word for word” had she chosen to do so. Instead, she and Jay signed the release after a brief exchange with the attendant, who seemed to Kathleen to be more focused on their potential purchase of health insurance.
With lift tickets in hand, the Schabelskis hit the slopes. Kathleen used Chairlift No. 3 once without incident and then returned to that lift with Jay for another trip up the hill. Riders board the two-person chairs on the lift from the right side of the lift looking uphill.
That morning, Sunburst employee Alex Fuhrman was attending the lift. After Kathleen’s first run, which she described as “a little bit shaky,” Fuhrman asked her if it was her first time snowboarding, to which she responded by “point[ing] to the multiple tags that I had on my jacket and said ‘No, I’ve done this before.'” She also explained to him that she had a disability. According to Fuhrman, Kathleen was “a little bit shaky” each time she boarded, “but she always settled in before she started taking off upwards.”
Jay recalled that loud music was playing in the loading area that morning. Fuhrman did not specifically remember playing music that morning but did recall bringing a speaker to his work area at times. Sunburst did not prohibit employees from playing music in their work areas.
After their son boarded a chair, the Schabelskis moved into the loading position and waited for a chair to arrive behind them. Kathleen always rode chair lifts with another person, but did not usually require physical assistance once she was seated in the chair. She described the speed at which the lift was moving that morning as “on the slower side.”
Kathleen, Jay, and Fuhrman gave deposition testimony about what happened next. Their accounts differ in two principal respects. The first is whether Fuhrman “bumped” the lift chair just before the Schabelskis boarded. A lift attendant “bumps” a chair by stalling it as it reaches a rider, which briefly slows the chair to prevent it from hitting the backs of the rider’s legs. Bumping also tilts the chair slightly, allowing the rider to sit down in the chair as it arrives at the rider’s position. When the attendant releases the chair, it swings forward slightly and plants the rider in the seat. Fuhrman received training on how to bump chairs at Sunburst.
According to Kathleen, Jay boarded the lift chair safely when it reached them but she was only able to get herself partially on the chair and was left “dangling” as it continued to move forward. Kathleen did not know why she was unable to seat herself fully on the chair and did not recall whether Fuhrman bumped the chair before it reached them.
According to Jay, Fuhrman did not bump the chair as the Schabelskis attempted to board. Jay testified that Fuhrman was shoveling snow onto the path between the waiting area and the loading area as he and Kathleen attempted to board, but later acknowledged that he “d[id]n’t really know where the lift attendant was” when they boarded.
Fuhrman denied shoveling snow when the Schabelskis were boarding, though he did acknowledge shoveling between passenger boardings. Fuhrman testified that “whenever [Kathleen] boarded I was paying complete attention, because I was a little nervous about the way she boarded.” Fuhrman also testified that he bumped the chair for her on the run on which she fell and was “fairly certain” that he “bumped the chair every time for her, because it made me nervous the way she boarded the chair. It took extra long for her to get settled.”
The second area of dispute between Fuhrman and the Schabelskis concerns what happened after the lift chair left the loading area and began moving up the hill. As the chair moved forward with Kathleen only partially on board, she “was very surprised, because typical procedure is the lift is stopped immediately.” She and Jay yelled, “Stop” as he held onto her. Then, according to Kathleen, instead of stopping the lift immediately when he recognized that there was a problem, [Fuhrman] ran out and asked, “Do you want me to stop the lift” as I’m dangling from it, getting higher and higher off the ground. And of course we immediately say “Yes.” But by the time he runs back and stops the lift I’m between 15 and 20 feet off the ground. Kathleen estimated that Fuhrman ran ten to fifteen feet to ask her if she wanted him to stop the lift, at which point she was “[p]artially seated, hanging on desperately.”
Fuhrman disputed the Schabelskis’ claim that they began yelling for the lift to be stopped almost immediately after they boarded, though he did acknowledge “a small possibility” that he did not hear them because of the music playing in the loading area. Fuhrman testified that he watched the Schabelskis depart the loading area “to see if she would get settled in.” As Kathleen started “to gain some air and did not settle in at the usual comfortable time that I watched her settle in,” Fuhrman asked if she was all right and if she wanted him to stop the lift. According to Fuhrman, Jay responded, “No, we’ll be all right.” Fuhrman continued to watch the Schabelskis and eventually tried to “push up on her snowboard to give that upward pressure to sink her up and back into the chair.” When that proved unsuccessful, Fuhrman asked again if Kathleen needed the lift stopped and Jay said, “Yeah, stop the lift.” Fuhrman testified that he “immediately ran right back to the station and hit the button” and the lift slowed to a stop.
Fuhrman and Kathleen estimated that she hung on to the chair for around ten minutes before she fell to the ground. In that time, two other employees came over to where Kathleen was located. According to Kathleen, the first employee walked over “very slowly,” looked up at her and said “I need to get a ladder,” and walked back. A second employee then came over with, in Kathleen’s words, “something that clearly was not going to be tall enough to do the job.”[3] According to Kathleen, the second employee said “Oh, that’s not going to work,” and left. She did not see Fuhrman after the lift came to a stop.
Sunburst did not have a “protocol” for situations like the one in which Kathleen found herself. Chairlift evacuations are overseen by Sunburst management and are performed by management, ski patrol, other employees and, if necessary, the Kewaskum Fire Department. Sunburst did not have “catch nets” on its premises because its owner deemed them dangerous to use. Sunburst did not attempt to use ropes and a seat to lower Kathleen off the lift because it would only use that method if the chairlift was not operational and could not be restored to operation using a secondary emergency motor. According to an expert witness for the Schabelskis, it is “standard custom and practice” for mountain resorts in North America to provide evacuation training and equipment to lift attendants and to have “rescue devices immediately available at the loading area” to evacuate misloaded passengers.
Analysis: making sense of the law based on these facts.
This is an interesting and to some extent scary case. When a decision says the state strictly construes releases, it means the state reviews them because they are written by one party and usually not a negotiated contract. Generally, it means nothing legally. In this case, Wisconsin has gotten serious in its review and releases and whether or not a release will be upheld.
Wisconsin law does not favor exculpatory releases because “they tend to allow conduct below the acceptable standard of care applicable to the activity.” Wisconsin courts construe such releases strictly against those who seek to rely on them.
Wisconsin also has a very unique two-step procedure for determining the validity of a release.
First, we must “examin[e] the facts and circumstances of the agreement to determine if it covers the activity at issue.” If the activity is not covered by the release, then the release “should be determined to be unenforceable in regard to such activity If the release does cover the activity in question, then we proceed to the second step of determining whether the release is enforceable under public policy.
The first step is not to determine the validity of the release but to determine if the release covers the injury or claim the plaintiff is complaining about. Meaning, the release must specifically identify that injury as covered by the release. Then the release is reviewed to determine if it violates public policy under Wisconsin law.
Public Policy is defined in reference to releases as:
Public policy refers to the “principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.” In undertaking the public policy analysis, we attempt to balance the tension between contract law, which seeks to protect the ability to “manage [one’s] own affairs without government interference,” and tort law, which seeks to deter conduct below the standard of care and compensate persons injured by the unreasonable conduct of others.
First when examining the release to determine if it covers the claimed injury the language used to describe the test appears to be the same as any other court.
In determining whether a specific activity is covered by an exculpatory release, we focus on whether the risk of that act was within the parties’ contemplation when the release was signed.
In most states, the above statement does the release inform the person signing it that they are giving up their right to recover for injuries they may receive. In Wisconsin, this test is: did the release identify the injuries in the release.
The release at issue in this case is more specific than that in Arnold insofar as it contains nine bulleted statements that describe categories of conduct to which it applies. However, rescuing or providing aid to imperiled lift riders is not specifically mentioned in any of the categories. Friedl argues that the specific injury-causing act need not be specified in the release and maintains that the phrase “unloading operations” is broad enough to cover the efforts to rescue Kathleen.
Only the nine items listed in the bullet points would be covered in the release at question. Here the court then interpreted the nine bullet points to determine that falling off a chair lift was not covered under the release. The bullet points only identified loading and unloading.
The release does not define “unloading,” but as relevant here, its ordinary meaning is “to take off” or “to take the cargo from.” Unload, Webster’s Third New International Dictionary (unabr. 1993); (“dictionary definitions are dispositive of the ordinary meanings ascribed to contract terms”). In the context of riding a chair lift, “unloading” can reasonably be understood to refer to the process by which a rider gets off the lift at a designated point along the lift’s path, just as “loading” can reasonably be understood to refer to the process of getting on the lift at a designated point along the path. Both processes connote a degree of intention and orderliness. Riders intend to board and exit a lift at points along the lift path designed for those activities. Lift attendants provide assistance as needed to enable riders to accomplish both tasks safely and in an orderly fashion.
Then the court reviewed all aspects of riding a chairlift, loading, and unloading to determine that loading and unloading a chairlift do not include rescuing someone from a chairlift.
Since the plaintiff’s injuries came from failure to rescue? the release did not cover her claims.
One would not necessarily think of efforts to rescue a rider in danger of falling off a halted chair lift as “unloading” that rider. Such efforts lack the regularity and orderliness of normal “loading” and “unloading operations.” Instead, they are dictated by the circumstances giving rise to the need for rescue. In addition, as the Schabelskis point out, Sunburst appears to treat unloading and rescue operations as distinct activities. Whereas lift attendants like Fuhrman provide assistance with loading and unloading, Sunburst’s management oversees “chairlift evacuation,” which is performed “by management, ski patrol, all employees, and also the Kewaskum Fire Department” when necessary.
Because the release did not contemplate chairlift rescues then the injuries the plaintiffs received were not covered by the release.
To summarize, our task is to determine whether the parties contemplated release of the activity at issue, which we do by strictly construing the release’s terms to determine whether they “clearly, unambiguously, and unmistakably inform the signer” that liability for the activity at issue is being waived. (citing “the well established principle that exculpatory contracts are construed strictly against the party seeking to rely on them”). Here, the Schabelskis have set forth facts on summary judgment to support their assertion that Friedl failed to have proper training, a proper plan and proper equipment to evacuate or rescue skiers who are hanging from a lift. This failure is alleged to be a cause of Kathleen’s injuries separate and distinct from any negligence in Friedl’s operation of the chairlift.
This analysis was then reinforced by quotes from Wisconsin Supreme Court decisions on the specificity of what a release must cover.
Our supreme court has repeatedly made clear that the terms of the release must be specific in describing the risks for which the signer is releasing liability. We conclude that the release did not “clearly, unambiguously, and unmistakably” inform the Schabelskis that they were releasing Friedl from liability for a negligent rescue attempt in the event they found themselves in danger of falling from a lift chair.
What other issues could you experience once you load the lift and leave the loading area, other than falling out of the lift or not being properly recued from the lift. Since the release must be construed narrowly and did not cover rescue from a chairlift, the plaintiff’s claims were not barred by the release.
The next claim was the actions leading up to falling out of the chairlift were claimed to be negligent also. Those actions were covered by the release because they fell within the definition of chair lift loading.
We agree that the Schabelskis’ negligence claim is within the scope of the release to the extent it is predicated on Fuhrman’s actions before the chairlift stopped. Even if a jury were to find that Fuhrman was playing loud music, did not bump the Schabelskis’ chair, shoveled snow while they boarded, and delayed in stopping the lift, those acts are covered by the release because they are part of “the operation of chairlifts” and “chairlift loading.”
The court then looked at the recklessness claim. Wisconsin law does not allow, like some states, a release to stop a claim based on recklessness.
“It is well-settled that an exculpatory clause … cannot, under any circumstances … preclude claims based on reckless or intentional conduct.”
The Court then defined recklessness under Wisconsin law.
Recklessness “contemplates a conscious disregard of an unreasonable and substantial risk of serious bodily harm to another.” “Conduct which creates a high risk of physical harm to another is substantially greater than negligent conduct. Mere inadvertence or lack of skill is not reckless conduct.”. Whether Fuhrman’s conduct meets the standard for recklessness is a question of law.
The court then examined skiing and the plaintiff’s conduct and experience skiing. Examining those facts, the court found the actions of the employees of the defendant were not reckless.
Before the ride on which Kathleen fell, she told Fuhrman that she had a disability and he had observed her being “a little bit shaky” when boarding the chair lift. However, Kathleen also informed Fuhrman that she had boarded a lift before, and he had seen that she was able to “settle in” to the lift chair on at least one prior trip. Kathleen also described the speed at which the lift was moving that morning as “on the slower side.” Given these facts, boarding the lift chair did not present “an unreasonable and substantial risk of serious bodily harm” to Kathleen.
Court went on find that there was absolutely no showing recklessness by the employee working at the lift.
Assuming that Fuhrman was playing music in the loading area, did not bump the slow-moving lift chair before the Schabelskis boarded, and did not initially hear them yell for the lift to be stopped, the Schabelskis acknowledge that Fuhrman did ask if they wanted the lift stopped and that he stopped the lift when they said, “Yes.” When alerted that Kathleen may not have loaded properly, Fuhrman took action to confirm if she needed assistance and stopped the lift when asked to do so. That he may not have bumped the lift chair or stopped the lift as quickly as he could have shows, at most, “inadvertence, or simple negligence” rather than a conscious disregard for Kathleen’s safety.
The next discussion concerned Wisconsin’s definition of public policy, the second step to determine the validity of the release. Since failed the first test, it did not need to review whether or not the release met the second test.
Attempting to cover more than ordinary negligence under Wisconsin law will void a release. This is called overbreadth; the document attempts to reach too far to accomplish its goal and is overly broad and thus void. So, any release that attempts to use a release to protect against reckless behavior by the defendant is void.
An exculpatory release violates public policy when its terms purport to shield a defendant from liability for any reason. [O]ur supreme court refused to enforce a one-paragraph release that insulated a fitness center from liability without regard to “fault” because that term was “broad enough to cover a reckless or an intentional act.”
The Supreme Court of Wisconsin held that the language in a release used for hot air ballooning was void because it went too far.
…language in a release requiring persons wishing to ride in a hot air balloon to “assume full responsibility for all risks of any and every kind involved with or arising from … participation in hot air balloon activities” and to hold certain parties harmless “for[] all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the ballooning activities” was overbroad because it would protect the released parties from liability “for any activity for any reason, known or unknown.”
The court then went through the release sentence by sentence and determined that the release did not reach past the specific nine points set forth in the release.
That is to say, the Schabelskis (1) agree to release the “SUNBURST RELEASEES” from liability for certain, specified negligent conduct; (2) agree to comply with the release by holding the “SUNBURST RELEASEES” harmless from such negligence liability; and (3) agree not to sue the “SUNBURST RELEASEES” for the negligent conduct that has been released.
That being said, the review generated this statement by the court.
Even if the inclusion of the word “any” in the paragraph following the bulleted statements might make the scope of the release uncertain, we would be obliged to construe the release strictly against Friedl and limit it to the specific activities listed in the bulleted statements.
The simple addition of the word “any” in defining the risks outlined in the release would have voided the release for being overly broad.
The final argument of the plaintiff was misrepresentation. As set forth above, under Wisconsin law the plaintiff has the right to pay more to not sign a release or to negotiate the terms of the release. In this case, for $10.00 more the plaintiffs could have not signed a release.
The attendant at the gift shop where the transaction occurred told the plaintiff that the extra $10.00 was for purchasing additional health insurance. The plaintiff argued this was intentional misrepresentation.
The Schabelskis suggest that the gift shop attendant mistakenly described the second form she showed to them as one relating to the purchase of additional health insurance, when in fact the second form gave them the opportunity to pay an extra $10.00 fee and not sign a release of liability. Thus, the Schabelskis argue they may have been misled into believing that their chance to bargain was about purchasing insurance, rather than signing or not signing the release.
However, this argument did not fly because the release the plaintiff signed mentioned this fact, that for an additional $10.00 the plaintiff did not have to sign a release. Since they signed the release, they read the release under Wisconsin law and therefore the document informed the plaintiff of the actual facts.
The Schabelskis would have known about the availability of a “no release” lift ticket by reading the release before they signed it. As it stands, having signed the release, they are presumed to have read it and understood its contents. (“those who sign written instruments are presumed to know their contents and their legal effect” (citation omitted)).
The opportunity to bargain was also raised as a way to void the release by the Plaintiffs. Even though there was no opportunity to bargain, the opportunity to pay more money and not sign the release is equal to that opportunity and distinguishes that claim.
The release is expressly limited to negligence and specifically disclaims application to reckless or intentional conduct. Moreover, the Sunburst release was not presented to customers on a take-it-or-leave-it basis: persons wishing to ski or snowboard at Sunburst could sign the release or pay an extra $10.00 for a non-release lift ticket. The release afforded customers an opportunity to bargain because it allowed them to select one of two sets of terms: (1) the base ticket price in exchange for the release or (2) a higher ticket price with no release. Because the form itself alerted customers to the availability of release and no-release options, it afforded the Schabelskis an opportunity to bargain.[
The court did raise several points in its analysis that did not rise to the level of a legal argument but obviously were important enough to be added to the discussion.
First was the issue that the release allowed up to six people to sign the release.
Immediately below these paragraphs are lines for up to six ticket holders to print and sign their names.
Second was the issue of the size of the print. Three times the court pointed out that the print size was extremely small.
The circuit court described the size of most of the printed text in the release as “small; like this — 8 point or smaller.” We are unable to determine the exact size of the text, but it appears smaller than the text in this opinion, which is printed in 13-point font.
Kathleen did not read the release “word for word” because it contained, in her words, “very fine print,” and she had never seen anyone do so before purchasing a ticket.
Although the font was small, Kathleen testified that she could have read the release “word for word.”
There was a dissent in this decision which would have upheld the release for all claims of the plaintiff.
So Now What?
Writing a release to satisfy Wisconsin law has always been difficult, not it appears to have become almost impossible.
- The release must be specific in what it covers It must cover specific issues that are clearly identified in the document.
- The release cannot be overly broad. It cannot reach too far in its attempt to cover issues beyond ordinary negligence.
- The plaintiff has the right to negotiate the release or to bargain or pay more money to not sign a release
- The release will not be interpreted to cover any other claims other than those specifically and narrowly defined in the release.
- Perhaps the type and font of the release cannot be too small.
What is so confusing is Wisconsin allows a parent to sign way a minor’s right to see. Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1
On another point, $10.oo is not enough to avoid signing a release!
For other decisions interpreting Wisconsin law on releases see:
Wisconsin decision has left the status of release law in Wisconsin in jeopardy
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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