Wisconsin Supreme Court Narrows Scope of Recreational Immunity and Strikes Down Another Liability Waiver
Under Wisconsin’s recreational immunity statute, Wis. Stat. § 895.52, landowners or occupiers of land open to the public for recreational activities are generally immune from liability for injuries sustained by individuals participating in recreational activities on such land. However, a recent decision by the Wisconsin Supreme Court, Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20, narrows the scope of the recreational immunity statute. The decision also reaffirms Wisconsin’s tough standards for enforcing liability waivers.
Sundog Ballooning offered hot air balloon rides at a charity event sponsored by Green Valley Enterprises that was held at a shooting range owned by Beaver Dam Conservationists. Patti Roberts was injured while waiting in line for a hot air balloon ride when one of the balloon tethers gave way and the balloon collided with her. She signed a liability waiver in which she “assume[d] full responsibility for all risks of any and every kind involved with or arising from [her] participation in hot air balloon activities” and waived “all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the ballooning activities.”
Roberts filed suit against Sundog and its insurer, T.H.E. Insurance Company, claiming that her injuries resulted from Sundog’s negligence in failing to properly tether the balloon and failing to keep a safe distance between the balloon and the participants waiting in line. Sundog moved for summary judgment, claiming it was immune from liability under the recreational immunity statute and that Roberts’ claim was barred by the liability waiver. The circuit court granted the motion, concluding that the recreational immunity statute applied and that the liability waiver was valid on its face. The court of appeals affirmed the circuit court’s ruling that the recreational immunity statute applied, but it did not address the validity of the liability waiver. Roberts sought review with the Wisconsin Supreme Court. The Wisconsin Supreme Court accepted review and reversed.
The Wisconsin Supreme Court began its analysis by noting that there was no dispute that Roberts was involved in a “recreational activity” at the time she was injured. Nor was there any dispute that Roberts was on land that was open to the public for recreational activities. However, the Wisconsin Supreme Court agreed with Roberts that the recreational immunity statute did not apply because Sundog was not an “occupier” of the shooting range; rather, it was merely operating a proprietary business on the property on a single occasion. The Court ruled that the recreational immunity statute does not apply to a third party who is not responsible for opening the land to the public. The Court reasoned that Sundog was merely “using” and not “occupying” the land as an event organizer and “had no connection to the land.” Also, the balloon was not a “structure.” The Court stated that, in order to be an “occupier,” some degree of permanence was required. The Court distinguished previous case law on which Sundog relied as not involving similar factual circumstances.
The Court also concluded that the liability waiver Roberts signed was unenforceable because it did not comply with the requirements for enforceable waivers set forth in previous cases. Specifically, the Court ruled that the liability waiver was unenforceable because it was overly broad, as it applied to any and all claims, did not specify that it covered injuries suffered while waiting in line, and did not indicate that Roberts had an opportunity to bargain over the terms of the liability waiver.
The decision in this case is consistent with previous case law governing liability waivers. In order to be enforceable, among other items, a waiver must be limited in scope, apply only to claims of negligence, indicate what specific risks it pertains to, and indicate that the signatory had an opportunity to bargain over the terms of the contract. As the waiver in this case did not meet these requirements, it is no surprise that the court concluded it was unenforceable.
However, the court’s decision represents a narrowing of the protections afforded under Wisconsin’s recreational immunity statute. Previous cases did not draw a distinction between businesses that were merely “using” recreational property versus those who were “occupying” the property. Under the court’s decision in this case, a vendor who appears on a transitory basis at an outdoor event in which recreational activities are occurring is not entitled to protection under the recreational immunity statute. One area of ambiguity not discussed by the court is how its decision will pertain to volunteer groups such as snowmobile, skiing, and bicycling clubs who do not have a permanent presence on public land but nonetheless build, groom, and maintain trails on a regular, ongoing basis.