Will this release or liability waiver actually protect us in Wisconsin?
A release is not void by category in Wisconsin: the Supreme Court of Wisconsin has not held an exculpatory clause invalid per se, but it construes one strictly against the party seeking to rely on it, and only if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendant from liability will the contract be enforceable. Beyond that there is no single test; the court invalidates exculpatory contracts on a combination of factors. In Richards the Supreme Court of Wisconsin held a release void as against public policy because of three factors, none of which alone would necessarily invalidate the release: the contract served two purposes, not clearly identified or distinguished; the release was extremely broad and all-inclusive; and the release was in a standardized agreement printed on the company's form, offering little or no opportunity for negotiation or free and voluntary bargaining. Atkins held Swimwest's waiver void by applying the factors from Yauger and Richards together, Yauger asking whether the waiver clearly, unambiguously and unmistakably informs the signer of what is being waived, and whether the form looked at in its entirety alerts the signer to the nature and significance of what is being signed, and added a drafting point: using the word 'fault' did not make clear to the signer that she was releasing others from intentional, as well as negligent, acts.
The trap
Every one of the three Richards factors describes an ordinary commercial form, and it is not settled that you need more than one: Atkins acknowledged in a footnote that Yauger had treated the presence of a single objectionable characteristic as sufficient while Richards said no factor alone would necessarily have warranted invalidation, and it declined to decide the point because every factor was present. Atkins found the waiver overly broad and all-inclusive, found that a form serving two functions and not requiring a separate signature failed to highlight the waiver so that it was uncertain whether the signer was fully notified about the nature and significance of the document, and found the lack of any opportunity to bargain itself contrary to public policy: the signer would not have been allowed to swim had she refused. Note the reach of these two decisions before relying on them: both involve an individual signing a provider's standard form, not a negotiated allocation of risk between businesses, and neither states a rule for a commercial limitation-of-liability clause. Note also what losing a release costs: both cases reversed summary judgment for the drafter rather than merely striking words, and in Atkins the consequence was that the derivative wrongful-death claim went forward.
11 authorities
The words that state the rule
An examination of the principles underlying the determination of the validity of exculpatory contracts leads us to the conclusion that the form is an unenforceable exculpatory contract due to a combination of three factors. None of these factors alone would necessarily invalidate the release; however, taken together they demand the conclusion that the contract is void as against public policy. First, the contract serves two purposes, not clearly identified or distinguished. Second, the release is extremely broad and all-inclusive. Third, the release is in a standardized agreement printed on the Company's form, offering little or no opportunity for negotiation or free and voluntary bargaining.
The words that state the rule
We conclude that the exculpatory language in Swimwest's form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word "fault" on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts.
The words that state the rule
Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy.
The words that state the rule
Second, the form, serving two functions and not requiring a separate signature for the exculpatory clause, thus not sufficiently highlighting that clause, does not provide the signer adequate notification of the waiver's nature and significance.
The words that state the rule
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. Yauger, 206 Wis. 2d at 81 ; Merten, 108 Wis. 2d at 210-11 .
The words that state the rule
We have consistently held that "[o]nly if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable." Id. at 520 (citing Arnold, 111 *318 Wis. 2d at 213 ).
The words that state the rule
In Yauger, this court based its determination of the enforceability of an exculpatory clause on two grounds: "First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed." Yauger, 206 Wis. 2d at 84 .
The words that state the rule
Applying the factors from Yauger and Richards , we hold that Swimwest's exculpatory clause is in *316 violation of public policy. 7 First, this exculpatory waiver, which uses the word "fault," is overly broad and all-inclusive. Yauger, 206 Wis. 2d at 85-86 ; Richards, 181 Wis. 2d at 1017-18 . Second, the form, serving two functions and not requiring a separate signature for the exculpatory clause, thus not sufficiently highlighting that clause, does not provide the signer adequate notification of the waiver's nature and significance. Yauger, 206 Wis. 2d at 86-87 . Third, there was little or no opportunity to bargain or negotiate in regard to the exculpatory language in question. Richards, 181 Wis. 2d at 1019 . 8 Under this framework, the waiver in question is unenforceable as against public policy.
The words that state the rule
We acknowledge that Yauger v. Skiing Enters., Inc., , 206 Wis. 2d 76 , 557 N.W.2d 60 (1996) and Richards place different weight on the public policy factors used to invalidate exculpatory clauses. See Rose v. Nat'l Tractor Pullers Ass'n, Inc., 33 F. Supp. 2d 757, 765 (1998). In Yauger, for example, "the presence of a single objectionable characteristic (was) sufficient to justify invalidating an exculpatory agreement." Id. On the other hand, in Richards , the court stated that "none of these factors alone would necessarily have warranted invalidation of the exculpatory contract." Richards, 181 Wis. 2d at 1020 ; see Rose, 33 F. Supp. at 765. Because all of the factors listed in those cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause.
The words that state the rule
While caselaw does establish that wrongful death claims are derivative to any claim Wilson could have maintained, see Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 646 , 284 N.W.2d 318 (1979), having found the exculpatory clause unenforceable as against public policy, Swimwest is no longer shielded from liability, since Wilson could have brought a claim against it. Accordingly, Swimwest must now face the derivative wrongful death claim filed by her son, Benjamin Atkins.
The words that state the rule
Accordingly, we conclude that the document contravenes public policy and is void and unenforceable. The decision of the court of appeals is reversed and the cause remanded for proceedings not inconsistent with this opinion. By the Court. — The decision of the court of appeals is reversed and the cause remanded to the circuit court.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.