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  • August 15, 2022

    Appeals Court Decision Teaches Lessons on Waiver Agreements

    A recent Wisconsin appeals court decision shows how challenging is for a defendant to convince a court to enforce waiver-of-liability agreements. Alexander Pendleton discusses lessons on crafting waiver agreements that can be learned from the decision.

    Alexander T. Pendleton

    A Wisconsin ski resort received a mixed decision from the Wisconsin Court of Appeals in Schabelski v. Nova Casualty Company.1 The decision provides some important lessons regarding releases in Wisconsin, and again shows how challenging it can be to convince a Wisconsin court to dismiss a personal injury claim entirely based on a waiver agreement.

    Background: Experienced Skier Agrees to a Waiver, Falls from Chairlift

    Kathleen Schabelski went to a small, Wisconsin ski area (Sunburst Ski Resort), and was presented with two options. She could agree to the resort’s standard waiver agreement and pay the resort’s regular lift ticket price, or she could pay a slightly higher lift ticket price, and ski at the resort without signing a waiver agreement. Schabelski chose to sign the waiver and pay the regular price.

    Included in the waiver agreement was a clause that indicated she agreed to waive all claims she might someday have against the resort arising out of the resort’s negligence relating to several risks, including the risks associated with “the operation of chairlifts, and chairlift loading, riding, and unloading operations, including the presence or absence of restraint bars on the chairs.”

    After one of her downhill runs, Schabelski went to get on one of the chairlifts, but had trouble getting “settled” onto the chairlift’s seat. As the chair proceeded up and away from the loading area, she ended up dangling from the chairlift some 20 feet off the ground before the operator stopped the lift. Efforts were made to get her either back on the chair properly, or down. But after hanging from the chairlift for approximately 10 minutes (while rescuers searched for a ladder that was long enough), she fell from the chair and suffered injuries.

    She commenced suit, alleging the resort’s negligence caused her injuries. Her expert opined that it was standard custom and practice for ski resorts to provide evacuation training and equipment to lift attendants, and to have “rescue devices immediately available at the loading area” to evacuate misloaded passengers.

    Based on this, in the expert’s opinion, the resort’s failure to provide such training and equipment and have such rescue devices immediately available was negligence and a cause of the plaintiff’s injuries.

    After discovery occurred, the resort moved for summary judgment based on the waiver agreement Schabelski had signed on the day of the incident, and the trial court granted the motion.

    Alexander T. (Sandie) Pendleton Alexander T. Pendleton, Minnesota 1987, is a Milwaukee-based business lawyer and litigator with Pendleton Legal, S.C..

    On Appeal: Ski Resort Wins on Most Issues, But Loses on ‘Negligent Rescue’

    On appeal, the three-judge panel issued a split decision. The majority upheld most of the trial court’s decision, but found that the trial court had erred when it dismissed the skier’s claims for “negligent rescue.” In the majority’s view, the waiver agreement did not “clearly, unambiguously, and unmistakably” inform the skier that she was releasing the resort from liability for a negligent rescue attempt.

    The dissenting judge would have affirmed the trial court’s dismissal of all the skier’s claims. The dissent found the following disclaimer language sufficiently specific to cover the incident that caused the plaintiff’s injuries: “the operation of chairlifts, and chairlift loading, riding, and unloading operations, including the presence or absence of restraint bars on the chairs.”

    The majority ruled in the resort’s favor on several other issues, including holding that:

    • the waiver agreement was well-enough drafted to cover the skier’s claims relating to any alleged negligence by the chairlift operator in loading the plaintiff (as opposed to attempting to rescue the plaintiff); and

    • the plaintiff’s allegations of wrongdoing were merely claims of negligence, and failed to reach that level of “recklessness.”

    Because the court had ruled that the waiver agreement was well-enough drafted to cover the skier’s negligent-loading claims, as required by such Supreme Court decisions as Atkins v. Swimwest Family Fitness Center, the court proceeded to do a public policy analysis to determine if enforcement of that portion of the waiver would be barred on public policy grounds.

    In that analysis, the court held in favor of the resort and rejected the plaintiff’s arguments that the waiver was unenforceable:

    • for being “overbroad;”

    • due to a resort employee’s alleged misrepresentations regarding a separate offered agreement; and

    • due allegedly to failing to provide the plaintiff an “opportunity to bargain.”

    On the bargaining issue, Schabelski is significant in that it is the first decision of any Wisconsin appellate court where a court has found that the waiver in question provided a sufficient “opportunity to bargain”2

    [The resort’s waiver] 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 [per day] 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 [Schabelski] an opportunity to bargain.

    Lesson 1: Negligent Rescue and Specific Language

    The Schabelski decision is a thorough decision, and is not a per curiam decision, so it will likely be designated for publication. If and when it becomes a published decision, it will be binding precedent on Wisconsin trial courts.

    Either way, there are several lessons that providers can glean from the decision in Schabelski.

    First, Schabelski emphasizes the importance of having a well-crafted, and specific waiver agreement. The majority faults the resort for failing to have its waiver agreement specifically indicate that participants were giving up claims related to “negligent rescue.” To the majority, it was not enough that the agreement waived claims for “the operation of chairlifts, and chairlift loading, riding, and unloading operations, including the presence or absence of restraint bars on the chairs.”

    Providers often do not want to get “overly” specific in their waiver agreements, so as to not make the agreement too long, or too “scary” as to the risks associated with their offerings. Also, contract drafters in non-waiver agreement situations are advised to use “catch all” language (sometimes including the words such as “including but not limited to,” if they are going to refer to specific items to be including in the preceding broad language).

    The majority decision in Schabelski suggests that general, broad language will not be enforced, and that only specific language is sufficient. As such, providers (and their counsel) should consider what risks exist as to their operations, and in their waiver agreements inform participants of those risks (in what might be referred to as the preliminary “notice of risks and assumption of risk” section of a waiver agreement, which typically comes before the actualy "waiver" section of the waiver agreement), and ensure that the waiver section “clearly, unambiguously, and unmistakably” informs participants that they are releasing the provider from liability as to injuries caused by specific identified risks.

    It is somewhat surprising that the resort in Schabelski failed to refer expressly to the risks associated with negligent rescue, and failed to have participants agree that they were waiving claims associated with negligent rescue. It is foreseeable that on occasion skiers are going to have to be rescued, and it is foreseeable that on occasion such rescues will not go perfectly, and injuries will occur.

    There is also a well-known 1983 Wisconsin Supreme Court decision (Arnold v. Shawano County Agricultural Society) in which a racetrack’s waiver was held unenforceable (at least as to the injuries caused by negligent rescue efforts), due to the waiver’s failure to indicate the driver was agreeing to give up claims for negligent rescue.

    If one defines “rescue” as including the obtaining or providing of emergency first aid, it is difficult to imagine an active recreational activity where there would not on occasion arise a need for “rescue” efforts. Given such and the majority decision in Schabelski, providers who organize recreational opportunities should ensure that their waiver agreements clearly and specifically have participants expressly waive claims relating to negligent rescue.

    Lesson​ 2: Addressing Bargaining

    Many Wisconsin providers still fail to address in their waivers the issue of bargaining, or to have their waiver forms provide an “opportunity for bargaining.” Providers should review their waiver agreement forms to ensure those documents at least address the issue of bargaining, and should contact their lawyers if they do not, so that defect can be immediately fixed.

    Also, Schabelski provides a “judicial blessing” on the “two-price method” of addressing bargaining. If a provider’s waiver does not use that method, the provider should contact an attorney to discuss whether the provider should adopt a “two-price method” of dealing with bargaining, and if so, how that method should be incorporated into the provider’s operations and contracting process.

    The Supreme Court’s decision in Atkins indicates that the “form itself” should provide an opportunity for bargaining, and that requirement is a factor unique to Wisconsin law (compared to waiver law in other states).

    Addressing bargaining in a waiver and implementing a “two-price method” approach raises a host of questions that a provider should discuss with an attorney well-versed in this area of the law. Such questions relate not just to how a waiver is drafted, but also to how the waiver (and options) are presented to the potential participant and how providers’ employees (or volunteers) deal with questions from potential participants about the options. That is, because even if the “form itself” provides an opportunity for bargaining, communications by employees or volunteers as they register participants can result in a waiver agreement being held void.

    Lesson 3​: Operational Risk Management Programs

    Finally, the Schabelski case raises operational risk management issues for providers. The decision emphasizes the importance of providers having:

    • written emergency response procedures;

    • adequate equipment readily available to respond promptly to foreseeable emergencies; and

    • staff members who receive regular training so as to increase the chance they know the procedures and how to use properly the equipment.

    Such risk management programs are routinely created and followed at many recreational facilities (e.g., pools and other aquatic centers). If the ski resort in Schabelski had such written policies and followed them, the plaintiff might not have been injured or might not have had a basis for claiming the resort was negligent.

    Conclusion: Demanding Standards

    Compared to courts in other states, Wisconsin courts have some of the most demanding standards when it comes to the review and enforcement of waiver agreements. Schabelski is one more in a long line of decisions in Wisconsin indicating that waiver agreements must be very carefully drafted, and tailored to the risks involved.

    If that is not done, it is unlikely that a Wisconsin court will enforce the waiver in question.

    This article was originally published on the State Bar of Wisconsin’s Agriculture Law and Rural Practice Blog of the Solo/Small Firm & General Practice Section. Visit the State Bar sections or the Solo/Small Firm & General Practice Section webpages to learn more about the benefits of section membership.

    Endnotes

    1 Schabelski v. Nova Casualty Co., 2022 WI App 41, __ Wis. 2d __, __ N.W.2d __.​

    2 The author has discussed this “bargaining” issue in several articles on waivers that have been published in the Wisconsin Lawyer. See Alexander Pendleton, Recreational Liability: Plaintiff Friendly Standards Remain, 90 Wis. Law. 15(2017); Alexander Pendleton, Drafting Waiver-of-Liability Agreements in Wisconsin: It’s Not Getting Any Easier, WisBar News (May 16, 2013); Alexander Pendleton, Enforceable Exculpatory Agreements: Do They Still Exist?, 78 Wis. Law. 10 (Aug. 2005); Alexander Pendleton, Enforceable Exculpatory Agreements, 70 Wis. Law. 10 (Nov. 1997).In those articles (especially in those articles after the Wisconsin Supreme Court’s decision in Atkins v. Swimwest Family Fitness Center), the author has noted that the courts have indicated that “the [waiver] form itself must provide an opportunity for bargaining,” but the courts have failed to provide any guidance as to what such would entail, or what amount or type of bargaining would be sufficient. In the absence of any guidance from the courts, in such prior articles, the authors suggested that providers structure their waiver agreements and operations so that the participant is offered the option of two prices to participate (a regular “with waiver” price, and a higher “without waiver” price). The waiver in question in Schabelski used the same “two-price method” suggested in such after-Atkins articles.





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