Wisconsin Supreme Court sounds the death of standard form waivers in Wisconsin? 2005 WI 4 / No. 03-2487
This case is bad news for waiver forms in WI.
In this case, a woman registered as a guest and swam at a local pool. The registration form / card included this waiver language:
WAIVER RELEASE STATEMENT
I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS.
She later drowned in a 4 foot deep lap pool with lifeguards on duty, and the son sued for wrongful death.
The Court invalidated waiver because
(1) the term "fault" was overbroad because it could include negligent / intentional / reckless acts
(2) On conspicuousness grounds , since the provision was not contained in its own document, but was included in a registration form, and because the type, even though in caps, was the same size as all of the other type on the form, and therefore not set off / conspicuous enough, and
(3) because there was no opportunity for the deceased to bargain over the terms.
What's worse is that in regard to (3) above, in the Supreme Court's opinion, it seems that even if you include language re: opportunity to bargain, that if the arrangement is basically a "take it or leave it" / adhesion contract situation, that the Court would also likely decline to enforce the waiver. The paragraphs from the opinion are set out below.
¶25. We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form. According to the deposition testimony of Swimwest employee Kleinert, Wilson had an opportunity to read the form and ask questions. She was told that the form included a waiver, and allegedly took her time reading the card. This information alone, however, is not sufficient to demonstrate a bargaining opportunity. The form itself must provide an opportunity to bargain. See Richards, 181 Wis.2d at 1019.
¶26. We were faced with an analogous situation in Richards. In that case, the plaintiff was forced to choose between signing a standardized waiver or not riding with her husband in his employer's truck. The court invalidated the contract, in part, because she "simply had to adhere to the terms of the written form." Id. We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain. Id. Similarly, Wilson was without an opportunity to negotiate in regard to the standard exculpatory language used in the form. She was forced to either sign the form or not swim at Swimwest.9 We hold, therefore, that such an exculpatory clause, where there is no opportunity to bargain in regard to its terms, presents another significant factor in the analysis of public policy.
Swimwest Case - 2005 WI 4
In this case, a woman registered as a guest and swam at a local pool. The registration form / card included this waiver language:
WAIVER RELEASE STATEMENT
I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS.
She later drowned in a 4 foot deep lap pool with lifeguards on duty, and the son sued for wrongful death.
The Court invalidated waiver because
(1) the term "fault" was overbroad because it could include negligent / intentional / reckless acts
(2) On conspicuousness grounds , since the provision was not contained in its own document, but was included in a registration form, and because the type, even though in caps, was the same size as all of the other type on the form, and therefore not set off / conspicuous enough, and
(3) because there was no opportunity for the deceased to bargain over the terms.
What's worse is that in regard to (3) above, in the Supreme Court's opinion, it seems that even if you include language re: opportunity to bargain, that if the arrangement is basically a "take it or leave it" / adhesion contract situation, that the Court would also likely decline to enforce the waiver. The paragraphs from the opinion are set out below.
¶25. We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form. According to the deposition testimony of Swimwest employee Kleinert, Wilson had an opportunity to read the form and ask questions. She was told that the form included a waiver, and allegedly took her time reading the card. This information alone, however, is not sufficient to demonstrate a bargaining opportunity. The form itself must provide an opportunity to bargain. See Richards, 181 Wis.2d at 1019.
¶26. We were faced with an analogous situation in Richards. In that case, the plaintiff was forced to choose between signing a standardized waiver or not riding with her husband in his employer's truck. The court invalidated the contract, in part, because she "simply had to adhere to the terms of the written form." Id. We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain. Id. Similarly, Wilson was without an opportunity to negotiate in regard to the standard exculpatory language used in the form. She was forced to either sign the form or not swim at Swimwest.9 We hold, therefore, that such an exculpatory clause, where there is no opportunity to bargain in regard to its terms, presents another significant factor in the analysis of public policy.
Swimwest Case - 2005 WI 4
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