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    Wisconsin Lawyer
    October 01, 2017

    Recreational Liability: Plaintiff-friendly Standards Remain

    The supreme court’s 2016 Roberts decision shows that the justices disagree on the limits of the recreational liability statute, but overall their standards still favor injured parties, especially in situations in which waivers are deficient, in substance or process.

    Alexander T. Pendleton

    hotair balloon

    The Wisconsin Supreme Court’s 2016 decision in Roberts v. T.H.E. Insurance Co.1 is its most significant decision on recreational liability since its 2005 decision in Atkins v. Swimwest Family Fitness Center2 (addressing waiver agreements) and its 1994 decision in Linville v. City of Janesville3(interpreting the recreational use statute, Wis. Stat. section 895.52). While it has been suggested that the court has become more business friendly over the last decade, the Roberts decision shows that the court remains overall plaintiff friendly when it comes to recreational liability.

    The Roberts decision addressed two main issues: 1) how should the terms “owns, leases or occupies property” in Wis. Stat. section 895.52(1)(d) be interpreted; and 2) whether the waiver at issue in the Roberts case was void on public policy grounds.

    While the plaintiffs won before the supreme court on both issues, the decision shows the justices are highly divided on how the recreational use statute should be interpreted. The justices were split 4-3 on the statute portion of the decision, with some – as members of the court have done before – calling for the statute to be revisited and revised by the legislature.4 The waiver-law portion of the decision, while not breaking new ground regarding the standard to be applied, shows that the court is not backing away from the plaintiff-friendly standard the court previously announced in Atkins and prior waiver cases. Lawyers who advise clients on waiver and recreational liability issues ignore the Roberts ruling at their and their clients’ peril.

    The Ballooning Accident at Issue

    The Roberts case arose out of an unusual recreational event. Patti Roberts attended a charity event at which free tethered-balloon rides were offered.5 Roberts got in line for a ride and “[w]hile in line, [the balloon owner] gave Roberts a waiver of liability form that she was required to sign prior to riding in the hot air balloon.”6 She signed the form, but while she was standing in line waiting to hand the signed form back and go for her ride, strong winds arose, which caused the balloon to become partially untethered.7 The gondola of the balloon then swung in the wind and struck and injured Roberts.8 The plaintiffs (Roberts and her husband) sued the balloon operator-owners (hereinafter the operators), alleging negligence.9

    Lower Court Proceedings

    The defendants sought summary judgment based on the recreational use statute and the waiver agreement Roberts had signed.10 The circuit court granted summary judgment, ruling the statute barred the plaintiffs’ claims.11 In dictathe circuit court also ruled that the terms of the waiver were valid as a matter of law, but that a fact issue precluded summary judgment in the defendants’ favor, because there was an issue as to whether the plaintiff had delivered the signed waiver form to the operators.12

    Alexander (Sandie) T. PendletonAlexander (Sandie) T. Pendleton, Minnesota 1987, operates Pendleton Legal S.C., Milwaukee, and writes on waiver law (and other recreational liability law issues).

    In a unanimous decision,13 the court of appeals affirmed the circuit court’s dismissal of the plaintiffs’ case based solely on the statute and therefore did not take up the issue of the waiver.14 The court of appeals (in an unpublished and fairly short decision) indicated that the plaintiffs did not contest that the balloon operators were “occupiers” (and thus “owners”) of the real property, as those terms are defined in Wis. Stat. section 895.52(1)(d).15

    As to the one statute-related argument the plaintiffs raised at the court of appeals level, they argued the statute did not grant immunity to the defendants because “nothing about the land ... caused Roberts’ injuries”16 (relying on such cases as the supreme court’s 1994 decision in Linville17 and the court of appeals’ 1997 decision in Kosky v. International Ass’n of Lions Clubs18). The court of appeals rejected the plaintiffs’ argument, finding it to be a misreading of the case law.19

    The supreme court granted the plaintiffs’ petition for review. At the supreme court, the plaintiffs renewed the argument they had made at the lower level regarding Linville and Kosky. Unusually, the supreme court ordered additional briefing from the parties as to whether the balloon operators should be considered “occupiers” and therefore “owners” under the statute.20

    The Wisconsin Supreme Court’s Holding

    The supreme court reversed the court of appeals, holding that the plaintiffs’ claims were not barred by 1) the recreational use statute (primarily because the balloon operators did not occupy – and therefore were not an owner of – the land where the incident occurred, as those terms are defined in the statute); or 2) the waiver Roberts signed (because the terms of that waiver were unenforceableas a matter of law on public policy grounds).21 Because neither the statute nor the signed waiver barred the plaintiffs’ claims, the court remanded the case to the circuit court for further proceedings on the plaintiffs’ negligence claims.22

    What is Recreational Liability Law?

    Recreational liability law governs liability arising out of recreational activities. While it overlaps with some other fields of law (contract, tort, sports, worker’s compensation, insurance, and so on), it is distinct from those fields. Topics that are covered by or involved in the field of recreational liability law include such issues as:

    • The enforceability of recreation-related waiver agreements;

    • The assumption-of-risk doctrine;

    • The ability of parents or guardians to enter into enforceable waiver agreements on behalf of minors;

    • The ability of a person to enter into enforceable waiver agreements on behalf of the person’s spouse, heirs, or estate;

    • Indemnification issues in the context of recreational claims;

    • Common-law tort issues (such as distinctions between negligent behavior versus reckless behavior or intentional-tort behaviors);

    • Statutes relating to recreational activities and landowners’ duties and immunities relating to recreational activities (for example, the recreational use statute, Wis. Stat. section 895.52, and similar laws in other states);

    • Issues of consent to contact or injury (such as are involved in boxing, football, hockey, and other contact sports);

    • The ability of public entities (such as schools) to rely on waivers;

    • The role of courts as opposed to the other individuals and entities (such as referees, leagues, and sports-governing bodies) who set standards and rules of behavior “on the field”;

    • Issues of consent to use photographs (or other recordings) of event participants;

    • Liability for a failure to rescue or to provide adequate treatment, or for providing treatment without consent, in a recreational context;

    • The enforceability of “back-of-the-ticket” limitation-of-liability terms (including, but not limited to, the applicability of the “baseball rule” to spectator-injury claims);

    • Volunteer and nonprofit immunity statutes (such as the Volunteer Protection Act of 1997, codified at 42 U.S.C. §§ 14501-14505); and

    • Insurance coverage for recreational events and claims.

    Justices’ Contrasting Views on Definition of “Occupy” Property

    Justice Ann Walsh Bradley authored the decision of the court, but only three other justices (Justice Gableman, Justice Abrahamson, and Justice Ziegler) joined the court’s decision on the recreational use statute issue.23

    The key portion of the decision regarding the statute is the question whether each balloon operator was a “person … that … occupies property” as the term “occupies” is used in Wis. Stat. section 895.52(1)(d).24

    To the three dissenting justices, this was a simple, straightforward issue. The dissenting justices first noted or bemoaned the fact that the court had made central the occupy issue, when at both the circuit and appellate court levels the plaintiffs did not dispute that the balloon operators occupied the property.25 The dissenters described in detail the extent to which the operators possessed and used a portion of the property that day, including noting that the operators “took possession of a large, wide-open space” during the event and flagged and roped off the whole area (facts not stated in the majority opinion), parked a truck in their area, and tied the balloon to the truck and two trees in the area.26

    Under a plain-meaning analysis, to the dissenters this clearly made the operators occupants of the property for purposes of the recreational use statute.27 The dissenters rejected the suggestion made by Justice Ann Walsh Bradley that a prior court of appeals decision (the 1998 decision in Doane v. Helenville Mutual Insurance Co.28) imposed a “degree of permanence” element to the test for who occupies property.29

    To the majority, the “occupies” issue was not so simple. Three key points underpin the majority’s reasoning on the issue:

    • Relying on Doane, the majority held that the term “occupy” as used in the statute requires “a degree of permanence as opposed to mere use.”30

    • To determine whether a person occupies property, “[the court] must consider whether immunity will encourage landowners to open the land for public use.”31

    • The court must be cognizant of where to draw “a logical stopping point for immunity,” otherwise absurd results would be reached.32

    On the first point, the majority implied (but did not expressly state) that the balloon operators’ use of the property that day did not reach a sufficient “degree of permanence” to constitute occupancy; frustratingly for lawyers, the majority provided no guidelines as to how that element should be applied in future cases.33

    As to the second point, the majority found that the balloon operators did not open the land to the public, as that had already been done by the landowner, its permittee (the overall organizer of the charity event), or both.34 Because of this, finding the operators to be occupiers would do nothing to advance what the majority considered to be the overall purpose of the statute (to encourage landowners to open their property for recreational purposes at little or no charge).35

    As to the third point, the majority said that finding the operators to be occupants would lead to absurd results; for example, the majority argued that if it were to find the balloon operators had immunity, then the balloon manufacturer would also have immunity.36

    Justice Ziegler filed a lengthy concurrence on the recreational use statute issue, agreeing the statute did not bar the plaintiffs’ claims and arguing that the majority’s decision did not go far enough, especially in light of the court’s prior decision in Linville v. City of Janesville.37 The two lengthy dissents largely were directed at rebutting Justice Ziegler’s comments.38

    Justices’ Nearly Unanimous View on Waiver Law

    As to whether the waiver Roberts signed was void on public policy grounds, six justices found the waiver was unenforceable based on the standards articulated in cases such as Atkins.39 The seventh (Justice Rebecca Grassl Bradley) indicated that given her view that the statute provided complete immunity to the operators, it was unnecessary for the supreme court to consider the waiver.40

    The majority found that the waiver violated public policy for three reasons: 1) the waiver was overly broad and all inclusive; 2) it was ambiguous; and 3) it was a “standard agreement printed on the company’s form,” and the company gave Roberts “no opportunity to bargain or negotiate in regard to the exculpatory language in question.”41

    Problematic Elements of Roberts for Practitioners

    From a practitioner’s or recreational-provider’s standpoint, there are several problematic elements to the majority’s decision regarding the recreational use statute.

    First,the majority read into the statute three elements (“degree of permanence” and so on) that are not present in the statute’s text. This seems to be at odds with the mandate the legislature provided when it adopted the statute, indicating that courts generally should liberally interpret the statute in favor of immunity.42

    Second, the dissenting justices are correct that the “degree of permanence” element taken by the majority from Doane is not supported by Wisconsin case law before Doane,43and worse, the “degree of permanence” element is vague, and the majority decision does nothing to flesh it out for lawyers or the lower courts. What quantum of “permanence” is required to constitute “occupy,” as opposed to “mere use” or “mere possession”? The majority provided no guidance.

    Third,the majority used a hypothetical regarding manufacturers and product liability to support its reasoning that it cannot extend immunity to the balloon operators in Roberts; it said such an extension “could lead to limitless immunity.”44 The majority ignored that in its hypothetical the balloon manufacturer would absolutely not be entitled to immunity under the statute because after the manufacturer sold the product to the operators, in no way could the operators’ taking the balloon onto another’s property be considered as the manufacturer occupying the property. The dissenting justices rightly criticized the majority’s use of a hypothetical that is completely untethered to the language and history of the recreational use statute.45

    Waiver Agreements in Wisconsin: High Standards, Abysmal Compliance

    Like online “terms and conditions of service” and software end-user license agreements that practically nobody reads before clicking “yes,” waiver forms regarding recreational activities are ubiquitous in Wisconsin. Parents and even casual participants in recreational activities may be asked to sign several or even dozens per year. Such agreements are often carelessly drafted and deployed, distributed, and signed. Given this, it is not uncommon to encounter attitudes that either they bar all claims or they bar no claims. Both views are incorrect.

    The Wisconsin Supreme Court has indicated that waivers can never bar all claims (and to attempt to do such almost ensures a waiver will be held void).46 The supreme court has also said many times that while waivers are disfavored in Wisconsin, they are not per se invalid but must meet a very high standard.47 Based on decisions such as Roberts, it appears that many users of waivers (and possibly many lawyers) continue to ignore what the Wisconsin courts have said and continue to draft waivers and deploy them in a manner that falls short of those very high standards. This has resulted in liability that might otherwise have been avoided.


    Many lawyers serve their communities either on governmental or nonprofit boards. It is not uncommon for such lawyers to be asked to take a quick look at a waiver the entity plans to use, and such requests are often made shortly before an event. The Roberts decision should serve as a reminder that great caution is advisable when a lawyer receives such a request.

    Lawyers who undertake to draft, review, or redraft waivers should keep in mind that 1) waivers are disfavored under Wisconsin law;48 2) recreational activities involve risks that can lead to death or serious and permanent injuries; 3) because of this, the enforceability or unenforceability of a waiver can lead to a completely waived claim, or alternatively, substantial liability for an event organizer (and others); and 4) the standards the Wisconsin courts have articulated for waivers are very high.

    No one waiver form can work for all events. Waiver forms should be carefully tailored to the event and activity at issue, and careful attention must be given to the issue of bargaining and how the waiver is deployed. Caution is advised for drafters and users of waivers.

    Six Lessons for Lawyers from the Roberts Decision

    Here are six practice tips for lawyers whose clients might have or be subject to injury claims based on their involvement in or provision of recreational opportunities.

    1) Planning for Obtaining Recreational Use Statute Immunity.

    As previously noted in the Wisconsin Lawyer by this author,49 the recreational use statute is a powerful law that provides broad immunity to many landowners and other recreational-opportunity providers. But the statute is complex, and people who want to obtain its protections should become familiar with its detailed requirements and consider structuring their operations to optimize their chances of gaining the protections of the statute. The balloon owner-operator in Roberts did not do this.

    There were several simple, low-cost steps that the balloon owner-operatorcould have taken and that would have clearly resulted in it being immune from liability. For example, if the owner-operator had structured itself as a nonprofit organization, it could have obtained a simple written agreement with the landowner, constituting a “Recreational Agreement” (as that term is defined in Wis. Stat. section 895.52(1)(h)). If the owner-operator had done so, it would have obtained immunity.

    Even if not organized as a nonprofit, if the owner-operator had entered into a simple written agreement that provided a right of occupancy and defined the terms of the occupancy, that likely also would have changed the outcome in Roberts. Landowners and recreational-opportunity providers (and importantly their insurers) who ignore recreational-use-statute planning increase the chances that potential immunity will be lost and unnecessary liability incurred.

    2) Wisconsin Remains Hostile to Waivers.

    Wisconsin law (compared to the law in most other states) is decidedly hostile to the enforceability of waiver agreements.50 Some have speculated that the supreme court might be open to backing away from the very plaintiff-friendly standard for waivers set by the court in Atkins (and in prior cases), given that in several other areas of the law over the last several years the court has been issuing decisions more favorable to businesses (see, e.g., Star Direct51). Roberts shows that the current justices have not backed down from the Atkins standard. As there is no sign they are going to weaken that standard any time soon, lawyers (and recreational-opportunity providers) must comply with it.

    3) “Bargaining” Remains a Requirement.

    Roberts is another decision in which a Wisconsin court indicated that for a waiver to be enforceable, bargaining must be involved in the process that led to the signed waiver agreement.52 But the justices again did not flesh out exactly what amount of bargaining is sufficient.53 Lawyers can surmise from the decisions that “none” is an insufficient amount, but the justices again provided no guidance as to what a sufficient bargaining process would be or whether the absence of bargaining alone can make a waiver void.

    The very brief comments regarding bargaining in Roberts54 do not bode well for the enforceability of online waiver agreements, a type of agreement that is being increasingly used in Wisconsin, especially when it comes to mass-athletic events (for example, marathons, triathlons, or the Birkebeiner cross-country ski race).

    A prior article by this author in the Wisconsin Lawyer provided suggestions as to how lawyers can address the bargaining element,55 but the adequacy of those suggestions remains uncertain until a Wisconsin court actually fleshes out the element and articulates what “sufficient” bargaining would be. It would also be helpful for lawyers if the supreme court in the future were to make it clear that the test in these cases is a multifaceted and holistic analysis, and that the absence or flaw as to one element of the public policy analysis (for example, the bargaining element) does not necessarily or automatically void the waiver in question.

    But until further clarity is provided, the bargaining factor remains solidly in Wisconsin waiver law (unlike the law of any other state), and lawyers who fail to address the issue of bargaining in their waiver agreements substantially increase their clients’ chances that courts will not enforce their waivers.

    4) Any Waiver that Attempts to Bar All Liability Is Very Likely Void.

    The Wisconsin courts have on multiple occasions indicated that a waiver will be invalidated if it attempts to bar all liability.56 Yet the courts and lawyers in this field continue to see waivers that attempt to do exactly that. Given how many times Wisconsin courts have said that such overly broad waivers are void, any lawyer who drafts such a waiver, or who fails properly to carve out liability that cannot be waived, is likely committing malpractice.

    Waivers in Wisconsin (like other important legal agreements, such as noncompete agreements after Star Direct57) are subject to complex, demanding standards; any layperson, business, or insurer that attempts to draft a waiver without the assistance of a lawyer familiar with the Wisconsin waiver cases is likely to create an unenforceable waiver.

    5) Proper Deployment of a Waiver Remains Essential.

    Even if a waiver is perfectly worded, that does not mean it will be enforced. While the supreme court in Roberts found the wording of the waiver defective, it should be noted that the circuit court was also not willing to enforce the waiver at the summary-judgment stage, because of factual disputes regarding whether Roberts had actually delivered (and therefore accepted) the offered waiver agreement.58

    Lawyers should advise clients that use waivers that there are many ways a perfectly worded waiver can be rendered void, if the client is not careful in the way it words the waiver document and is not careful as to the process it follows for offering, receiving, and retaining waivers. This is true regardless of whether the client is using a waiver printed on paper or an online version or process.

    6) Rigorous Investigation and Case Selection Process.

    Most plaintiffs’ counsel know the importance of investigation when it comes to case selection. One lesson from the Roberts decision is that just because a client signed a waiver does not necessarily mean that the client does not have a valid claim. The terms of the waiver should be carefully reviewed against such decisions as Roberts and Atkins to determine whether the waiver is void or at least arguably so. Similarly, the circumstances surrounding the offer, signing, and delivery of the waiver form should be investigated. Questions to ask include:

    • Was the form offered on a take-it-or-leave-it basis?59

    • Was the waiver offered well before the event (when there was time for review and contemplation) or “at the gate” (with little opportunity for review and contemplation)?60

    • Does the form itself (and the circumstances of signing) indicate there was an “opportunity for bargaining”?61

    Also, plaintiffs’ counsel should give careful consideration to whether a potential defendant meets all the required elementsunder one or more of the separate immunity provisions in the recreational use statute.62 Even if facially under existing case law a defendant would appear to have immunity, given the supreme court’s splintered views on some sections of the statute, counsel should carefully consider whether a nonfrivolous argument can be made for the modification or reversal of existing case law.63

    Meet Our Contributors

    What attracted you to recreational liability law?

    Alexander (Sandie) T. PendletonI was asked to draft some waiver agreements for athletic organizations. I’d been signing waivers for years as a runner and cyclist, and I discovered early on that many (if not most) were really poorly written. When I was asked to draft some, I found out that Wisconsin waiver law is very demanding (and in several ways unclear). There’s a tension in this area of the law. Recreational claims involving waivers are where two great bodies of law (contract law and tort law) meet and gnash together like tectonic plates. Which set of policies will prevail? Society’s interest in allowing personal liberty (and adventure), the private ordering of relationships, and freedom of contract? Or society’s interest in deterring risky or negligent behavior, and seeing that those injured due to another’s negligence are compensated?

    Recreational injury cases can be tough cases for lawyers and judges, not just legally, but emotionally. Here you have someone (often a young person) engaged in a recreational activity (something that was supposed to be fun) and in the course of such, the person was seriously injured (or even killed). With some judges and jurors that leads to feelings of sympathy, with others, feelings of indifference (often arising out of an attitude of “it was a risk, you were careless, what did you expect?”). Recreational liability law is one way judges try to provide some predictability and objectivity to the resolution of such cases.

    Alexander (Sandie) T. Pendleton, Pendleton Legal S.C., Milwaukee.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email Check out our writing and submission guidelines.


    1 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492.

    2 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334.

    3 184 Wis. 2d 705, 516 N.W.2d 427 (1994).

    4 Roberts, 2016 WI 20, ¶ 130, 367 Wis. 2d 386 (Prosser, J., concurring in part, dissenting in part); see also id. ¶¶ 144-145 (R.G. Bradley, J., dissenting); see also id. ¶ 16 n.5 (majority opinion) (while not directly calling again for the legislature to revise the recreational use statute, Justice Ann Walsh Bradley noted: “This Court has previously expressed its concern that the recreational immunity statute is often difficult to apply and has recommended that the legislature reexamine this statute”) (citing Auman v. School Dist. Of Stanley-Boyd, 2001 WI 125, ¶ 11, 248 Wis. 2d 548, 635 N.W.2d 762; Urban v. Grasser, 2001 WI 63, ¶ 12, 243 Wis. 2d 673, 627 N.W.2d 511).

    5 Roberts, 2016 WI 20, ¶¶ 5-7, 367 Wis. 2d 386. A “tethered balloon ride” involves passengers getting into a balloon gondola that is connected to the ground by ropes, and then “the balloon operator raise[s] the balloon to the length of the ropes and then lower[s] it back to the ground.” Id.

    6 Id. ¶ 8.

    7 Id. ¶¶ 8, 10.

    8 Id. ¶ 10.

    9 Id. ¶ 13.

    10 Id.

    11 Id. ¶ 14.

    12 Id.

    13 Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WL 1333686 (Wis. Ct. App. Mar. 26, 2015), rev’d, 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492.

    14 Roberts, 2015 WL 1333686, ¶ 2.

    15 Id. ¶ 16.

    16 Id. ¶¶ 17-22.

    17 184 Wis. 2d 705, 516 N.W.2d 427 (1994).

    18 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997).

    19 Roberts, 2015 WL 1333686, ¶ 17.

    20 Roberts, 2016 WI 20, ¶ 17, 367 Wis. 2d 386.

    21 Id. ¶ 4.

    22 Id.

    23 The majority decision was written by Justice Ann Walsh Bradley and was joined in completely by Justice Abrahamson and Justice Gableman, and also by Justice Ziegler (who also wrote a separate concurrence). The three dissenting justices on the court’s recreational use statute holding were Chief Justice Roggensack, Justice Prosser, and Justice Rebecca Grassl Bradley (hereinafter, the “dissenters”).

    24 Roberts, 2016 WI 20, ¶¶ 25-41, 367 Wis. 2d 386.

    25 Id. ¶¶ 92-97 (Prosser, J. concurring in part, dissenting in part); see also ¶¶ 132 n. 3. (R.G. Bradley, J., dissenting).

    26 Compare id. ¶ 7 (the majority’s statement of facts regarding the operator’s use of the property) with id. ¶ 98 (Prosser, J., concurring in part, dissenting in part), ¶ 135 (R.G. Bradley, J., dissenting).

    27 Id. ¶ 98 (Prosser, J., concurring in part, dissenting in part), ¶¶ 134-136 (R.G. Bradley, J., dissenting).

    28 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998).

    29 Roberts, 2016 WI 20, ¶¶ 99-105, 367 Wis. 2d 386 (Prosser, J., concurring in part, dissenting in part).

    30 Id. ¶ 34 (quoting Doane, 216 Wis. 2d at 354, 575 N. W.2d 373).

    31 Id. ¶ 36.

    32 Id. ¶¶ 38-40.

    33 See id. ¶¶ 33-35.

    34 Id. ¶ 37.

    35 Id.

    36 Id. ¶¶ 40-41.

    37 Id. ¶¶ 66-82.

    38 Id. ¶¶ 84, 116-129 (Prosser, J., concurring in part, dissenting in part); ¶ 146 (R.G. Bradley, J., dissenting).

    39 See id. ¶¶ 47-63 (majority opinion), ¶ 66 (Ziegler, J. concurring on the unenforceability of the waiver), ¶ 83 (Prosser, J., concurring on the unenforceability of the waiver, which concurrence is joined in by Chief Justice Roggensack). Compare id. ¶ 7 (the majority’s statement of facts regarding the operator’s use of the property) with id. ¶ 98 (Prosser, J., concurring in part, dissenting in part), ¶ 135 (R.G. Bradley, J., dissenting).

    40 Id. ¶ 132 n. 4 (R.G. Bradley, J., dissenting).

    41 Id. ¶¶ 58-63.

    42 See 1983 Wis. Act 418, § 1 (“this legislation should be liberally construed in favor of property owners to protect them from liability”). The recreational use statute was first enacted in 1963. Wis. Laws 1963, Chap. 89. Initially, a number of court decisions gave a narrow interpretation to the statute, on the grounds that its grant of immunity was in derogation of common law. See, e.g., Copeland v. Larson, 46 Wis. 2d 337, 347, 174 N.W.2d 745, 750 (1970); Garfield v. United States, 297 F. Supp. 891, 899 (W.D. 1969). In response to such cases, in 1983 the legislature amended the statute to add the above mandate regarding liberal construction.

    43 Roberts, 2016 WI 20, ¶¶ 100-106, 367 Wis. 2d 386 (Prosser, J., concurring in part, dissenting in part).

    44 Id. ¶ 40.

    45 Id. ¶ 145 (Prosser, J., concurring in part, dissenting in part).

    46 See Atkins, 2005 WI 4, ¶ 19, 277 Wis. 2d 303; Brooten v. Hickok Rehab. Servs. LLC, 2013 WI App 71, ¶ 10, 348 Wis. 2d 251, 831 N.W.2d 445.

    47 Roberts, 2016 WI 20, ¶ 12, 367 Wis. 2d 386 (“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.”) (citing Yauger v. Skiing Enters. Inc., 206 Wis. 2d 76, 557 N.W.2d 60 (1996), and Richards v. Richards, 181 Wis. 2d 1007, 513 N.W.2d 118 (1994)).

    48 Roberts, 2016 WI 20, ¶ 48, 367 Wis. 2d 386.

    49 See Alexander T. Pendleton, Wisconsin’s Recreational Use Statute: Wide Open Spaces and Wide Open Immunity, 66 Wis. Law. 14 (May 1993).

    50 See Alexander T. Pendleton, Drafting Waiver-of-Liability Agreements in Wisconsin: It’s Not Getting Any Easier, WisBar News (May 16, 2013); Enforceable Exculpatory Agreements: Do They Still Exist?, 78 Wis. Law. 10 (Aug. 2005) (cited at paragraph 55 of the Roberts decision); Alexander T. Pendleton, Enforceable Exculpatory Agreements, 70 Wis. Law. 10 (Nov. 1997).

    51 Star Direct Inc. v. Dal Pra, 2009 WI 76, 319 Wis. 2d 274, 767 N.W.2d 898.

    52 Roberts, 2016 WI 20, ¶¶ 61-63, 367 Wis. 2d 386 (“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.”).

    53 Id.

    54 Id.

    55 See Alexander T. Pendleton, Enforceable Exculpatory Agreements: Do They Still Exist?, 78 Wis. Law. 10 (Aug. 2005).

    56 See Atkins, 2005 WI 4, ¶ 19, 277 Wis. 2d 303; Brooten, 2013 WI App 71, ¶ 10, 348 Wis. 2d 251.

    57 Star Direct, supra n. 51.

    58 Roberts, 2016 WI 20, ¶ 14, 367 Wis. 2d 386.

    59 See Brooten, 2013 WI App 71, ¶ 9; 348 Wis. 2d 251 (citing Atkins, 2005 WI 4, ¶ 25, 277 Wis. 2d 303).

    60 See Eder v. Lake Geneva Raceway Inc., 187 Wis. 2d 596, 606, 523 N.W.2d 429 (Ct. App. 1994).

    61 See Roberts, 2016 WI 20, ¶¶ 61-63, 367 Wis. 2d 386.

    62 Wis. Stat. § 895.52.

    63 Wis. Stat. § 802.05(2)(b).

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