WAIVER AND RELEASE OF LIABILITY FORM

THAT WAIVER AND RELEASE OF LIABILITY FORM THAT YOU SIGNED PRIOR TO ENGAGING IN AN ACTIVITY IS PROBABLY NOT WORTH THE PAPER THAT IT IS WRITTEN ON

In today’s world, many businesses and organizations require us to sign forms that waive liability if we are injured while engaging in the activity they are offering.  Waivers and releases signed before the injury occurs are generally known as “exculpatory agreements” and “exculpatory contracts”.  People may encounter the need to sign exculpatory agreements when signing children up to participate in youth sports or when engaging in recreational activities such as hot air balloon rides, using equipment at a health club or gym, buying a lift pass to go downhill skiing, renting equipment, going horseback riding or even using a swimming pool.  More recently, we see such waivers relating to potential COVID-19 exposure at businesses or facilities.

While signing an exculpatory agreement may discourage people from seeking legal advice, the fact is that such exculpatory agreements are largely unenforceable in Wisconsin. “Wisconsin case law does not favor [exculpatory] agreements.”  Atkins v. Swimfest Family Fitness Center, 2005 WI 4, ¶12, 277 Wis. 2d 303, 891 N.W.2d 334.  “While [the Wisconsin Supreme Court] has not held that an exculpatory contract is invalid per se, [it has] held that such a provision must be construed strictly against the party seeking to rely on it.”  Id.

In Wisconsin, exculpatory contracts have been found to be invalid if the waiver contains misrepresentations, broadly defines the location and actions covered or if it is ambiguous and uncertain.  Roberts v. T.H.E. Insurance Company, 2016 WI 20, ¶50, 367 Wis. 2d 386, 379 N.W.2d 492.

Exculpatory contracts are also void under Wisconsin’s public policy if the contract serves two purposes that are not clearly identified or distinguished, such as putting waiver language in a paragraph at the bottom of the health club contract.  The release is also unenforceable if it is very broad and all-inclusive.  This would include trying to release “all” liability or “all” damages regardless of whether it is caused by negligence or intentional acts.  Finally, if the release is in a standardized agreement printed on a standard form, offering little or no opportunity for the negotiation or free and voluntary bargaining, the waiver is likely void under public policy. Id., at ¶51.

While the exculpatory contract may not be enforceable to prevent someone from making a claim on an injury, it may reduce the ability to claim that the business or organization negligently failed to warn someone that an activity could be dangerous or result in injury.  Nonetheless, signing an exculpatory agreement prior to engaging in an activity may be the smallest obstacle to overcome in pursuing a claim.

Wisconsin’s statutes have accumulated a vast number of provisions that grant immunity from claims to many groups and individuals. The purpose of these immunity statutes appears to be to encourage property owners and others to offer activities to the public, but the statutes may present challenges to obtaining compensation for injuries caused by another’s negligence.

For example, other legal obstacles to overcome before a claim can be successfully made in certain situations include a property owner’s immunity from claims for someone suffering an injury while engaging in a recreational activity on the property (Wisconsin Statutes § 895.52), restrictions on civil liability and assumption of risk for participation in recreational activities (Wisconsin Statutes § 895.525) alpine skiing immunity (Wisconsin Statues § 895.526), sport shooting range immunity (Wisconsin Statutes § 895.527), horseback riding immunity (Wisconsin Statutes § 895.481), governmental immunity (Wisconsin Statutes § 893.80), private campground immunity (Wisconsin Statues § 895.59) and immunity for recreational activities on school property (Wisconsin Statutes § 895.523).

So even without having signed an exculpatory agreement or having the court find that the exculpatory agreement is invalid, there may be other legal issues to navigate in pursuing a claim.  Nevertheless, the real purpose of exculpatory contracts may be to make people think they have given up rights by signing the form and discourage them from taking the time to consult with an attorney about their injuries and potential claims.  Do not fall into the trap of assuming you waived your rights by signing an exculpatory contract before you or a loved one was injured.

If have been injured as a result of someone else’s negligence, don’t let the fact that you signed a waiver or release prior to engaging in the activity stop you from contacting a lawyer to discuss whether you have a potential claim.  Hale Skemp has a team of highly experienced attorneys that can review and advise you on your potential claim.