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  • July 01, 2015

    Summertime Liability Issues: The Legal Risks of Fun in the Sun

    Summer is here. For many, it's the best time of the year. But as lawyers know all too well, summertime is also a high season of liability risks. In this article, learn about some of the legal issues that spring to life when summertime is in full swing.

    Joe Forward

    child with sparkler

    July 1, 2015 – Mom wants to go horseback riding. Dad wants to host a pool party. Grandma wants to go boating, and little Timmy wants to light bottle rockets. These activities usually happen in summer, creating liability issues for lawyers and their clients.

    This article provides a brief overview of some summer liability issues, starting with liability waivers generally used to limit liability for accidents that occur during physical activities with some risk. The question is: are these waivers always binding?

    The article also highlights premises liability for landowners and homeowners, including swimming pool owners, and discusses boating and firework laws in Wisconsin.

    Liability Waivers

    From summer camps to swimming pools, from horseback riding to parasailing, and from skydiving to rock climbing, business owners often attempt to limit their exposure to liability for injuries, death, or property damage through “waivers of liability.”

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Many people sign them without another thought, until something bad actually happens. What if an instructor or operator was negligent? What if a lifeguard was reckless? What if a camp counselor was incompetent?  In Wisconsin, waivers of liability are closely scrutinized and could be held unenforceable, based on what the contract says.

    For instance, in Mettler v. Nellis, 2005 WI App 73, 280 Wis.2d 753, 695 N.W.2d 861, a state appeals court ruled that a liability waiver did not bar a family from suing a horseback riding instructor for injuries a 15-year-old girl sustained while riding a horse.

    Wis. Stat. section 895.481, equine professionals, including riding instructors, are generally immune from liability because of the inherent risks associated with equine activities. But exceptions may apply. For example, horseback riding instructors can still be liable if they don’t make a reasonable effort to determine someone’s riding ability.

    In Mettler, the family argued that an exception applied. In addition, the family claimed that the “liability waiver” they signed was unenforceable because it violated public policy. The court agreed, ruling that the liability waiver could not be used to bar a negligence lawsuit.

    The court noted that “exculpatory clauses, such as those contained in the releases, are not favored in Wisconsin,” are “closely scrutinized,” and are “void if they violate public policy.” In this case, the court concluded that the waiver violated public policy.

    “Because the releases are broad and all-inclusive, do not clearly inform the signer of what was being waived and do not, when viewed in their entirety, alert the Mettlers to the significance of what they were signing, the releases are void as against public policy,” a three-judge panel ruled, noting such clauses cannot release all conduct.

    The conclusion was the same in another case – Brooten v. Hickock Rehabilitation Services LLC, 2013 WI App 71, 348 Wis.2d 251, 831 N.W.2d 445 – in which a plaintiff argued a gym was liable for injuries he sustained while lifting weights, even though the plaintiff signed a liability waiver that released the gym from such negligence claims.

    Two lessons here: First, business owners who use liability waivers should ensure they are not overbroad in violation of public policy. Second, those who have signed liability waivers are not always barred from seeking legal recourse if they are injured. Note: courts in other states may treat liability waivers differently than Wisconsin courts do.

    Premises Liability?

    What if your client is hosting pool party at their own home and someone is injured in the pool. Or, your client has a pool and some trespassing kids are injured while pool-hopping around the neighborhood. In general, this is a matter of premises liability.

    Landowner’s have a reasonable duty of care to persons who are invited to be there. But under Wis. Stat. section 895.529, “a possessor of real property owes no duty of care to a trespasser.” Under that statute, landowners may still be liable if willfully, wantonly, or recklessly causing injury or death to trespassers, unless force was used in self-defense.

    In the case of a pool party with invited guests, a court would likely consider the contributory negligence, if any, of the parties involved under section 895.045, applying the applicable duty of care with the “obvious danger rule” lurking in the background.

    Under the obvious danger rule, a homeowner could be relieved of liability for injury or death that results from dangers that should be obvious to ordinary persons. This has come up in the context of people sustaining injury from diving into shallow water.

    But there’s also the attractive nuisance doctrine, allowing lawsuits against landowners who maintain artificial, inherently dangerous conditions that attract children, including swimming pools. Homeowners can be liable if they don’t take reasonable, precautionary steps to eliminate the danger, such as using a proper fence to deter pool access.

    In McWilliams v. Guzinski, 71 Wis.2d 57, 237 N.W.2d 437, the Wisconsin Supreme Court held that “an insufficiently guarded swimming pool maintained in a residential area may be inherently dangerous to a child four years of age,” allowing a lawsuit based on attractive nuisance to proceed. A four-year-old neighbor drowned in the pool.

    Tip 1: Inform your client to put an adequate fence around their pool (most municipalities require fences around pools anyway), and ensure they take precautions to eliminate the dangers associated with other artificial conditions. Trampolines comes to mind.

    Tip 2: Summertime can be a time for teenage mischief, including underage drinking. If you think social host parents cannot be liable for damages, injury, or death caused by underage drinkers, read Mark Hinkston’s article, “Prom and Graduation Time: What Parents Should Know About Liability for Underage Drinking.”

    Note on Recreational Immunity: Under Wis. Stat. section 895.52, some persons and entities don’t have a duty to keep property safe for recreational activities, or a duty to inspect the property or give warning of unsafe conditions that may exist on the property. This recreational immunity applies to governmental bodies and nonprofit organizations.

    Thus, if someone is injured through activities on government property or property owned by a nonprofit organization, the law generally bars a lawsuit against the government or nonprofit organization, even if there is no warning about the condition causing the injury.

    Boating Liability

    Wisconsinites love boating, and why wouldn’t they? But with boating fun comes the risk of liability. A handbook on Wisconsin Boating Laws, which covers registration and titling, required equipment, and navigation rules, among other things.

    The handbook notes that under Wis. Stat. section 30.681, it’s illegal to operate a “motorboat” with a blood alcohol concentration (BAC) of 0.08 percent or more, and those under age 21 violate the intoxicated boating law with a BAC of any amount.

    First-time offenders are subject to a fine up to $300. Repeat offenders face maximum fines between $1,000 and $2,000, and jail time between five days and six months.

    It gets worse if someone is injured when operating a motorboat while intoxicated. If someone is injured, the intoxicated boat driver faces a fine up to $2,000 and jail time between 30 days and one year. That’s in addition to any civil liability claims.

    Don’t be fooled, sailors, a “motorboat” is defined as “any boat equipped with propulsion machinery, whether or not the machinery is the principal source of propulsion.” Thus, sailboats with motors are “motorboats.”

    In 2014, state wardens and municipal patrol officers issued 184 citations for boating while intoxicated, according to the Wisconsin Department of Natural Resources.

    Another 505 individuals were cited for negligent driving, and 729 people received citations for violating boating navigation rules. There were 117 reported boating accidents and nine deaths in 2014. Interestingly, 45 percent of injury or death victims were fishing when the accident occurred; 20 percent were skiing or wakeboarding.

    Hot tip: Like drivers on roads, boaters are now subject to a “move over” law on Wisconsin waterways, requiring a “slow-no-wake” within 100 feet of patrol or emergency vessels displaying emergency lights. Failing to slow down could result in a $250 fine.

    Firework Liability

    It may not seem like it around the July 4 holiday, but fireworks are illegal to use or possess in Wisconsin without a permit, and local governments can impose stricter laws. For instance, Milwaukee bans the use of fireworks outright. Permits are not available.

    But there’s another issue: parental liability.

    It’s the Fourth of July, and where is your 12-year-old son? Hopefully not with the neighbor kid lighting fireworks. Because under Wis. Stat. section 167.10, parents can receive fines up to $1,000 for letting minors possess or use fireworks, and can be liable for any damages caused by a minor’s use of fireworks with a parent’s consent.

    Just imagine: Little 12-year-old Timmy lights a bottle rocket. It hasn’t rained in weeks. The sparks ignite a bush, the bush ignites a deck, and the deck ignites the neighbor’s house. Dad was preoccupied with the Brewers v. Reds and nodded his head “yes” but didn’t really hear Timmy ask if he could go outside and light a bottle rocket.

    Now Dad’s lawyer is in court arguing that the statute requires a parent to “consent” to a minor’s use of fireworks, and Dad did not actually “consent” to Timmy’s use of fireworks. In the alternative, the lawyer may argue that this bottle rocket was not a “firework.”

    The second argument might be particularly difficult, though, because under section 167.10(1), a firework is “anything manufactured, processed or packaged for exploding, emitting sparks or combustion which does not have another common use.”

    If Dad were listening, he could have told little Timmy that he could not light a bottle rocket, but he could light a sparkler, smoke bomb, or confetti sprayer. Those novelties are not considered “fireworks,” and anyone can use or possess them without a permit.

    What if the family is camping on the Fourth of July and little Timmy lights a bottle rocket that starts a forest fire? Bigger trouble. Aside from fines, under Wis. Stat. section 26.21(1), private landowners affected by forest fires can sue for double damages and attorney’s fees in cases where someone negligently starts a forest fire.

    For more on firework law, read “Brushing up on Fireworks Law in Wisconsin.”

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