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Here is a great article written by Attorney Tim Fenner of Axley in Madison, WI.


 

Waivers of Liability: Are they worth the paper they are written on?

Tim Fenner • 608.283.6733 • tfenner@axley.com

Waivers of liability are a fact of life. You sign up your kids for swimming lessons or tennis lessons or some sort of parks and recreation activity, and you invariably are confronted with a "waiver of liability" form, releasing the particular organization from liability from any injury your child may sustain during the activity. You rent a boat or an all-terrain vehicle or a snowmobile, and you are confronted with a waiver of liability in favor of the business supplying the boat, ATV or snowmobile. The point is there are many businesses that provide products and services to the public, on the premise that by having their customer execute a waiver of liability, the businesses are limiting their exposure for liability and attendant damages. But are they?

I have read many waiver of liability forms. Most are incredibly broad and all-inclusive; and if these waivers are enforced literally, the business would never have any liability for the particular activity. Over the last several years, there has been significant litigation in Wisconsin concerning the enforceability of waivers of liability. In the year 2005, the Wisconsin Supreme Court observed: "Indeed, each exculpatory contract (i.e., waiver of liability) that this court has looked at in the past 25 years has been held unenforceable." See Rainbow Country Rentals and Retail, Inc. v. Ameritech Publishing, Inc., 205 Wis. 153 at paragraph 35. Throughout this last 25-year period, the courts have repeatedly said that waivers of liability clauses are and will continue to be looked at with disfavor. Waivers of liability (i.e., an exculpatory clause) are not invalid per se. Rather, provisions of any such waiver must be closely scrutinized and strictly construed against the party seeking to rely on it.

Recently, the Wisconsin Court of Appeals issued a decision in Brooten v. Hoist Fitness Systems, Inc., et al. (Appeal No. 2012 AP 1940). In that case, an individual was injured at a fitness center when a weight bench he was using, failed. The bench collapsed because a component had not been properly installed, and the supporting bolts had not been tightened. The injured person brought a common-law negligence, safe place and strict liability claim against the fitness center. The fitness center required every one of its customers to sign a waiver form before they were permitted to use the facility and the equipment. The waiver was very comprehensive. The customer acknowledged inherent risks and dangers associated with the fitness activities; that the activities could result in personal injury; and that the customer assumed such risks, but nevertheless desired to participate in the fitness activities. The customer agreed to release, waive and discharge, as well as hold harmless, defend and indemnify the fitness center from any claims, actions or losses for bodily injury which may arise out of the customer’s use of any equipment or participation in these activities. The question before the Court of Appeals was whether or not the waiver was enforceable. The Court held that it was not. Generally, exculpatory clauses have been analyzed on principles of contract law and on public policy grounds. However, the contractual analysis has been de-emphasized; and waivers are generally reviewed on the basis of whether or not it is contrary to public policy. In the case before it, the Court concluded that the fitness center’s liability waiver was contrary to public policy and therefore void and unenforceable. In reaching this conclusion, the court noted the following:

continued

1. The waiver was presented to the customer on a take-it or leave-it basis. The law in Wisconsin is that the form itself must provide an opportunity to the customer to "bargain." The absence of an opportunity to bargain in regard to the term of an exculpatory clause is a significant factor suggesting a violation of public policy.

2. The waiver was impermissibly broad and all-inclusive. It is well-settled law that an exculpatory clause can only release claims of "negligence." It cannot, under any circumstances, bargained for or not, preclude claims based upon "reckless or intentional conduct." The waiver before the court was broad and applied to causes of action "…caused by negligence or any other cause." This would suggest a release for claims based upon reckless or intentional conduct. Further, the release required the customer to both "defend and indemnify" the fitness center. This went beyond just simply a mere release.

3. Finally, the court indicated that the waiver was unenforceable because it exceeded the contemplation of the parties. The court specifically indicated: "We are satisfied that an ordinary consumer would not contemplate that "defend and indemnify" language buried in the middle of a form’s text would require him or her to provide a legal defense for (the fitness center) and to pay (the fitness center’s) share of damages in the event a third party sued (the fitness center).

For the foregoing reasons, the waiver was held unenforceable.

For those businesses that use waiver of liability forms, it is essential that the form be appropriately drafted. With respect to drafting, the only advice I could give is that "less is more." Do not try to make your waivers of liability forms all-inclusive covering everything and anything under the sun. By doing so, you run into the trap of being overbroad. The focus should be on negligence and negligence alone. Further, do you really need to have an "indemnity" and a "defend" clause in the waiver? Isn’t the release of liability sufficient? Finally, with the requirement that there be an opportunity for "bargaining," you are going to have to be creative and develop some sort of bargaining proposal or format. For example, if I am a business renting an all-terrain vehicle, I could charge one rate if the waiver is signed and another rate (presumably significantly higher) if a waiver was not signed. The customer would be given the opportunity to choose and therefore, perhaps, "bargain" as contemplated in the court decisions. The bottom line is that waivers of liability are incredibly difficult to enforce. More often than not, courts declare them to be unenforceable. If you or your clients are going to be using such waivers, it is essential that your waivers be drafted in a manner that will at least facially comply with the requirements established by Wisconsin courts.

For more information contact Tim Fenner at 608.283.6733 or tfenner@axley.com.

Posted 9:04 AM  View Comments

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