Dobratz v. Thomson
| Citation | 468 N.W.2d 654,161 Wis.2d 502 |
| Decision Date | 01 May 1991 |
| Docket Number | No. 88-2320,88-2320 |
| Parties | Brenda DOBRATZ, Personally and as Special Administrator of the Estate of her deceased husband, Mark Dobratz, Plaintiffs-Respondents-Cross Appellants-Petitioners, v. Gregg THOMSON, State Farm Fire and Casualty Company, Ron Abraham, West Bend Mutual Insurance Company, James C. Cooney, Transamerica Insurance Company, Thomas Smith, State Farm Fire and Casualty Company, Jeff Thomson, Brian Hahn, Sheboygan Falls Mutual Insurance Company, Defendants-Appellants-Cross Respondents, Blue Cross/Blue Shield United of Wisconsin, Defendant. |
| Court | United States State Supreme Court of Wisconsin |
John E. Shannon, Jr., Russell T. Golla, argued, and Anderson, Shannon, O'Brien, Rice & Bertz, on the briefs, Stevens Point, for plaintiffs-respondents-cross appellants-petitioners.
Michael S. Siddall, argued, and Herrling, Clark, Hartzheim & Siddall, Ltd., on the brief, Appleton, for defendants-appellants-cross respondents.
There are two issues in this case. The first is whether the exculpatory contract at issue here is void and unenforceable as contrary to public policy. The second issue is, if the exculpatory contract is not void and unenforceable as contrary to public policy, are its terms nevertheless so unclear and ambiguous as to render the contract unenforceable as a matter of law.
This is a summary judgment case arising out of events that caused the death of Mark Dobratz. He died from injuries he suffered in a waterski show sponsored and performed at no charge for the general public by Webfooter Water Shows, Inc. ("Webfooter" or "the club"), a nonprofit corporation operating as a waterski club. Mark Dobratz was skiing in the show, on July 3, 1985, as a member of Webfooter, which he had officially joined in either December 1984 or January 1985. The director of the show described him as a "beginner" waterskier.
The record indicates that Webfooter's 1985 season included giving two shows a week as well as participating in state and national tournaments, starting in early June and ending in early September of that year. These shows and tournaments were to take place at at least seven different locations in Wisconsin. The record indicates that audience members were always admitted free of charge.
The July 3, 1985, show, conducted at Fremont, Wisconsin, on the Wolf River, included an opening series of stunts which, taken as a whole, the club allegedly had not previously performed for an audience, although the club members apparently had practiced individually the several stunts comprising the series. The series, which was later described as "very dangerous" by at least one club member, involved six club skiers being towed by a single boat who were to discard their skis and continue skiing barefoot. Those skiers, continuing to ski, were to be met and passed in part of the "stage" area by a second boat and ten club skiers approaching from the opposite direction. As they were being towed by the first boat, Mark Dobratz and the other skiers attempting the barefoot maneuver failed in the stunt and fell into the water. Although the driver of the approaching second boat was aware that skiers from the first boat had fallen, he continued to drive the boat into the "stage" area. The boat struck and injured Mark, who was still in the water. He died a few hours later.
Mark Dobratz's widow, Brenda Dobratz, both as personal representative of her husband's estate and in her own capacity, filed suit in a timely manner in the circuit court for Waupaca county. Her suit named club officers and various club members who participated in the show and alleged causal negligence on their part. She also sued the driver of the second boat, Gregg Thomson, alleging causal negligence and reckless conduct on his part. Specifically, she asserted three causes of action: (1) a claim for wrongful death under sec. 895.03 and 895.04, Stats.; (2) a claim for conscious pain and suffering under sec. 895.01; and (3) a claim for loss of consortium experienced by her after the collision and prior to her husband's death. Webfooter itself was not named in the suit, and, because the club did not carry any applicable insurance, no Webfooter insurance carrier could be named in the suit. However, the individual defendants' personal or homeowner's liability policies covered liability for damages caused by any negligence on their part, and those insurers were joined as parties.
Both sides moved for summary judgment, the defendants seeking dismissal of the action on grounds that Mark Dobratz, by signing the exculpatory contract, had released all of the defendants from liability for negligence in connection with the show. Brenda Dobratz, on the other hand, sought a ruling that the exculpatory contract was invalid on public policy and other grounds.
Brenda Dobratz submitted an affidavit of Jeff Thomson, Webfooter's president, and the testimony from the deposition of Brian Hahn, the director of the waterski show, portions of which relate at least indirectly to Mark's receiving and signing the contract. In his affidavit, Jeff Thomson stated that "[a]ll club members, as well as Mark Dobratz, fully understood that the reason for this release was because of the club's lack of insurance coverage for injuries caused to show participants or club members caused by the club or other participants or club members." In his deposition, Hahn stated that it was his practice "to explain [the release] to everybody before they sign it ... and we normally, when we hand it out, say the reason we have a release is because of our insurance, because of the bind with the insurance."
The circuit court, the Honorable Philip M. Kirk, Judge, rejected the parties' respective motions for summary judgment. In denying the motions from the bench, the court stated that there existed genuine issues of material fact. Specifically, the court stated that there was an important dispute as to the number of times that the ill-fated water show "stunt" had been practiced prior to the accident. The court also found that there was an issue of fact as to whether the parties, when they signed the release, contemplated the type of "stunt" that was performed and the risks associated with performing it. The defendants appealed and Brenda Dobratz cross-appealed.
The court of appeals issued a decision which it subsequently vacated on its own motion. Then, in Dobratz v. Thomson, 155 Wis.2d 307, 455 N.W.2d 639 (1990), the court of appeals determined that the exculpatory contract was not contrary to public policy or void on any other ground. Thus, the court of appeals concluded the contract was enforceable. The court of appeals held as a matter of law that Brenda Dobratz's action was barred in all respects except for her claim for lack of consortium and any claim based on reckless conduct by Gregg Thomson as driver of the boat that struck Mark Dobratz. Thus, affirming in part and reversing in part the trial court's order, the court of appeals remanded the case for further proceedings. Brenda Dobratz petitioned for review.
Sometime after joining Webfooter, Mark signed an exculpatory contract with the club. 1 The precise circumstances as to how and when Mark received the exculpatory contract are not clear from the record. However, the record indicates that Van Lyssel, Webfooter's membership chairman, handed out a copy of the same contract to each club member. It also indicates that Lyssel told club members that the contract constituted a "release" that each of them should read and sign. The record indicates that this took place in either January or February 1985 or at a club meeting in April 1985. The record does not indicate that any club member personally discussed with Mark Dobratz any legal significance attaching to one's signing such a contract.
Although the date that Mark Dobratz signed the contract is not indicated anywhere in the record, it is clear that each club member, including Mark, was required to sign the contract before participating in any Webfooter practices or shows, whether on land during winter and spring or on water beginning in late May 1985. The record does clearly indicate that Mark Dobratz signed the contract well before the start of the 1985 show and tournament season. It is averred and uncontroverted that when Mark Dobratz signed the contract, neither he nor anyone else knew or could predict any particular show "stunt" in which he eventually might participate during the 1985 season.
* * * * * *
There is a standard methodology which a trial court follows when faced with a motion for summary judgment. Green Spring Farms v. Kersten, 136 Wis.2d 304, 314, 401 N.W.2d 816 (1987), citing Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473 (1980). The first step of that methodology requires the court to examine the pleadings to determine whether a claim for relief has been stated and a material issue of fact presented. Grams, 97 Wis.2d at 338, 294 N.W.2d 473. If a claim for relief has been stated, the inquiry then shifts to the moving party's affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment under sec. 802.08, Stats. Id. To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the plaintiff. Id. If the moving party has made a prima facie case for summary judgment, the court must examine the affidavits and other proof of the opposing party to determine whether there exist disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial. Id. Under sec. 802.08(2), Stats., summary judgment must be entered:
'if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the...
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