Sept. 14, 2022 – A liability release that covered chairlift loading and unloading did not apply to a claim that ski hill employees were negligent in failing to rescue a woman from a chairlift, the Wisconsin Court of Appeals has ruled.

In Schabelski v. Nova Casualty Company, 2021AP1174 (June 30, 2022), the Court of Appeals District II also held that the acts and omissions of a ski hill employee that preceded the woman’s loading on the chairlift were covered by the release.

Judge Lisa Neubauer wrote the majority opinion, joined by Judge Lori Kornblum. Judge Shelley Grogan concurred in part and dissented in part.

Experienced Snowboarder

Jay and Kathleen Schabelski went to Sunburst Winter Sports Park (Sunburst) in Kewaskum on Feb. 28, 2016. Kathleen Schabelski was an experienced snowboarder who had boarded chairlifts hundreds of times.

The Schabelskis bought lift tickets from an employee in the Sunburst gift shop. The employee gave the Schabelskis a liability release, which they signed.

Under the terms of the one-page release, the Schabelskis acknowledged that skiing and snowboarding were hazardous activities capable of causing serious injuries and death.

The Schabelskis also released Sunburst from any liability that resulted from a variety of acts and omissions, including the operation of chairlifts and chairlift loading, riding, and unloading operations.

Left Hanging

After her first trip down the hill, Kathleen made her way to the chair lift with Jay for another ride on the chairlift.

Alex Fuhrman, the Sunburst employee who was operating the chairlift, testified that Kathleen was “a little bit shaky” the two times she boarded the chairlift, “but always settled in before she started taking off upwards.” The second time she boarded the lift, Kathleen told Furhman that she had a disability.

When a chair came around, Jay boarded with no problem. But Kathleen was able to get only part-way on the chair and was left dangling as the chair began its ascent.

The Schabelskis yelled at Fuhrman to stop the chairlift. After trying to help Kathleen onto the chair, Fuhrman ran back to the lift station and stopped the lift.

Another employee came out, saw Kathleen, and said “I need to get a ladder” before walking back. A third employee came out with an implement that, according to Kathleen, wasn’t tall enough to rescue her; that employee walked away also.

After ten minutes of dangling from the chairlift, Kathleen fell to the ground and was injured.

Summary Judgment and Appeal

In February 2019, the Schabelskis filed a negligence lawsuit against Friedl Ski Ventures, LLC (Friedl) – the company that owns Sunburst, the company’s insurer, and Fuhrman in Washington County Circuit Court.

Friedl filed for summary judgment. In their opposing brief, the Schabelskis claimed that Sunburst’s rescue attempts and its response to Kathleen’s plight on the chairlift were not covered by the liability release.

The circuit court granted Friedl’s motion. The Schabelskis appealed.

Rescue is not Unloading

In her opinion for the majority, Judge Neubauer explained that under Wisconsin Court of Appeals precedent, liability releases are disfavored because they allow conduct that falls below the acceptable standard of care.

Additionally, she explained, Wisconsin courts strictly construe a liability release against the party asserting the release.

Friedl argued that the rescue was covered by the wording in the release about chairlift loading and unloading. But Neubauer reasoned that the rescue was not covered by the release.

“However, rescuing or providing aid to imperiled lift riders is not specifically mentioned in any of the categories,” Judge Neubauer wrote. “We do not believe [the phrase ‘unloading operations’] clearly expresses the parties’ intent to release claims for the negligent rescue of a rider in Kathleen’s circumstances.”

Consequently, Neubauer explained, the Schabelskis had set forth sufficient facts to survive summary judgment.

Conduct was not Reckless

The Schabelskis also alleged that Sunburst and Fuhrman were negligent by their acts and omissions that occurred before Fuhrman stopped the lift.

Specifically, they alleged that Fuhrman:

• didn’t hear their initial shouts to stop the lift because he was playing loud music;

• failed to slow the chair down before it hit Kathleen’s legs in the regular course of boarding,

• was shoveling snow as the Schabelskis boarded the lift; and

• didn’t immediately stop the lift.

Judge Neubauer reasoned that all of that alleged conduct was covered by the release.

The Schabelskis also alleged that Fuhrman’s acts and omissions before the lift was stopped were reckless.

Judge Neubauer noted that under Wisconsin law, a liability release does not apply to excuse reckless conduct. But Fuhrman’s acts and omissions were not reckless, Neubauer explained.

While Fuhrman observed Kathleen looking shaky and knew she had a disability, she had also told Fuhrman that she’d been on a chairlift before. And Fuhrman had seen her board the lift on her first trip up the hill.

“Given these facts, boarding the lift chair did not present ‘an unreasonable and substantial risk of serious bodily harm’ to Kathleen,” Judge Neubauer wrote.

The court of appeals reversed the circuit court’s order in and remanded the case.

Dissent: Rescue Was Covered by Release

Judge Grogan explained that she disagreed with the majority’s holding that Sunburst’s rescue efforts were not covered by the liability release.

If Sunburst had been negligent in rescuing Kathleen from an act unrelated to the chairlift – say, extricating her from a ravine that she’d fallen into – such an act might not be covered by the release, Judge Grogan argued.

“But, the negligent ‘rescue’ involved here was covered because it was with respect to chairlift operations/loading/riding/unloading operations,” Grogan wrote.