I was inspired to write this post after a lovely conversation with my roommates (for those of you that might not know, by “roomies/roommates” I mean my parents #Living@Home) who were up north skiing over winter break. Essentially, my roomies called me with a very urgent question regarding the law. “Son, it appears they are having us sign a ‘Waiver and Release’ form that is really long, with lots of statements in capital letters that really don’t make any sense. Is there a statute on point that requires companies to use the word NEGLIGENCE in all capital letters over 30,000 times? What do we DO!?!?” asked my confused father. Fresh off my Professor Anzivino contracts exam, I knew exactly how to respond.

“Dad, you guys are in Wisconsin correct?”

“Yes, we are in Wisconsin.”

“Excellent. Dad, Mom, as an aspiring law student, and in order to adhere to the heightened Ethical Code that comes with being a lawyer, please understand I cannot provide any legal advice… but I think you should read the contract and ski away!”

As many of you know or have faced in the past, my poor parents (who are both lay persons i.e. nonlawyers) were face-to-face with one of the most daunting and difficult features of contract law—the exculpatory clause. Although I wanted to tell my parents as bluntly as possible, “sign the contract,” I had to refrain in order to abide by the high ethical standards of my future profession. Nonetheless, we have all had experience with an exculpatory clause (contract of adhesion) before: rock climbing, skiing, roller blading or playing in the “ball pit” at Chucky Cheese. These contracts are usually long, usually time consuming, and usually full of dauntingly unfamiliar (for the layperson) boilerplate legal terms. Additionally, do these contracts not always come up at the worst times? You’re sitting around, sweating in your winter coat, buzzing to get on the hill, when an overworked ski instructor waltzes around the corner saying “before you can go out, please sign this stupid form.” In reality, us lawyers know these forms are not “stupid” but in fact, extremely important. Consequently, the nature and validity of these exculpatory clauses has been debated throughout the legal world for quite some time.

As I asked my father, it was important to know if he was signing the exculpatory clause in Wisconsin because the Wisconsin Supreme Court has yet to uphold the validity of an exculpatory clause. Said differently, every exculpatory clause brought before the Wisconsin Supreme Court has been voided as against public policy. This begs the question, is there any way a Wisconsin company/corporation can protect themselves from being sued? It appears not.

Pursuant to Wisconsin case law, exculpatory clauses are not favored because these clauses usually allow conduct below the acceptable standard of care afforded under tort law. Richards v. Richards (Wis. 1994). However, not all exculpatory clauses are automatically invalided against public policy. Many other states have enforced exculpatory clauses despite the factual situations around the covenant.

Accordingly, the Wisconsin Supreme Court has laid out 3 factors that must be present to uphold an exculpatory clause: (1) the language must not be overly broad or all-inclusive, (2) the clause must give the signer adequate notice of the waiver’s nature and significance, and (3) the clause must provide an opportunity to bargain over terms. (Richards). Consequently, one would assume a gifted Wisconsin lawyer could draft a valid exculpatory clause, adhering to these elements. However, this is not the case. Consistently, the Wisconsin Supreme Court has voided these clauses even when the three elements appear to be present.

For example, in Atkins v. Swimwest Family Fitness Ctr., (Wis. 2005), a son brought a wrongful death claim against a fitness gym after his mother was found dead in the facility’s three foot deep swimming pool. Prior to using the training pool, Ms. Atkins signed an exculpatory clause entitled “Waiver Release Statement.” (Atkins). Specifically, the exculpatory contract was printed on a 3 x 5 inch note card that used precisely defined language that was not overly broad, provided the signee and opportunity to bargain, and was entitled Waiver and Release. Prima facie, the exculpatory clause seems to possess all 3 elements. However, the Wisconsin Supreme Court voided the contract because the language “I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT” was too restrictive. As such, the word “fault” was deemed to be all-inclusive because it “encompassed too many situations.” (Atkins). One would assume (and maybe hope?) most people understand the word fault, and if for any reason they didn’t, would ask the manager of the fitness center to explain the term. However, maybe I am wrong.

Other exculpatory clauses have been treated similarly by the Wisconsin Supreme Court. See Richards, Atkins, and Yauger v. Skiing Enters (1996). Now I understand that Wisconsin has traditionally been a “pro little guy” state. However, I do think businesses should be given some sort of protection from being sued. I am just unconvinced that the Atkins situation merits the surviving child the ability to sue the Fitness gym for huge $bucks$ after his mother signed what appeared to be a valid exculpatory clause? I guess I can only hope and wait for Wisconsin to join other states and recognize the validity of one of these contracts. Businesses should be able to be protected as well!

Hopefully after this small analysis there is some understanding of the issues behind these clauses. If you are interested in more analysis or want more cases on point, please do not hesitate to contact me and I will provide you my first Memo and a list of Wisconsin cases. Also, I hope my point might be somewhat clear that my roomies were right to sign the contract, and go skiing. Special shout out to Professor Mazzie for providing us with such an interesting and unique topic in our first semester legal writing class!

With that being said, sorry for the delay between posts, apparently Law School has these things called exams? Who knew huh? I digress. Happy studying my friends (and grading for all you Professors). DO WELL!!!