Roberts v. T.H.E. Ins. Co.

• Decision Date: 30 March 2016
• Docket Number: No. 2014AP1508.,2014AP1508.
• Citation: 367 Wis.2d 386,879 N.W.2d 492
• Parties: Patti J. ROBERTS and David Roberts, Plaintiffs–Appellants–Petitioners, v. T.H.E. INSURANCE COMPANY, Sundog Ballooning, LLC, Kerry M. Hanson and Jodi L. Hanson, Defendants–Respondents, Dean Health Plan, Inc., Defendant.
• Court: Wisconsin Supreme Court

367 Wis.2d 386

879 N.W.2d 492

Patti J. ROBERTS and David Roberts, Plaintiffs–Appellants–Petitioners,

v.T.H.E. INSURANCE COMPANY, Sundog Ballooning, LLC, Kerry M. Hanson and Jodi L. Hanson, Defendants–Respondents,Dean Health Plan, Inc., Defendant.

No. 2014AP1508.

Supreme Court of Wisconsin.

Argued Dec. 15, 2015.

Decided March 30, 2016.

For the plaintiffs-appellants-petitioners, there were briefs by Timothy S. Knurr and Gruber Law Offices, LLC, Milwaukee and oral argument by Timothy S. Knurr.

For the defendants-respondents, there was a brief by Ward I. Richter, David G. Ress and Bell, Moore & Richter, S.C., Madison, WI and oral argument by David G. Ress.

ANN WALSH BRADLEY

, J.

¶ 1 Petitioners, Patti and David Roberts, seek review of an unpublished court of appeals decision that affirmed the circuit court's order for summary judgment, dismissing their claims.¹ The court of appeals determined that Wisconsin's recreational immunity statute barred the petitioners' claims because Patti Roberts was engaged in the recreational activity of hot air ballooning at the time she was injured.²

¶ 2 Roberts argues that the respondents, Sundog Ballooning, LLC, Kerry Hanson, Jodi Hanson, and T.H.E. Insurance Company (collectively “Sundog”) are not entitled to immunity pursuant to Wis. Stat. § 895.52

because Sundog was not an owner under the statute. She contends that Sundog was neither an “occupier” of the land nor was the hot air balloon “property.”³

¶ 3 In reply, Sundog asserts that even if it were not entitled to immunity under Wis. Stat. § 895.52

, Roberts' claims are barred because she signed a waiver of liability form.

¶ 4 We conclude that Sundog is not entitled to recreational immunity pursuant to Wis. Stat. § 895.52

because it is not an owner under the statute. Sundog was not an “occupier” of the land and the hot air balloon was not “property” because it was not a “structure.”

⁴ Finally, we determine that Sundog's waiver of liability form violates public policy and is unenforceable as a matter of law. Accordingly, we reverse the court of appeals and remand to the circuit court for further proceedings.

I.

¶ 5 The relevant facts of this case are undisputed. Patti J. Roberts was injured at a charity event sponsored by Green Valley Enterprises (“Green Valley”). Beaver Dam Conservationists, LLC (“the Conservationists”) owned the shooting range where the charity event was held.

¶ 6 Sundog Ballooning, LLC was the owner and operator of a hot air balloon providing tethered rides at the event. Kerry and Jodi Hanson, the owners of Sundog, donated hot air balloon rides to promote Green Valley's charity event.

¶ 7 On the day of the event, Sundog set up a display, a sign-up table and a waiting area for the ride. The hot air balloon was tethered to two trees and a pick-up truck. During rides, the balloon operator raised the balloon to the length of the ropes and then lowered it back to the ground.

¶ 8 Patti Roberts and her family watched the balloon rides and then entered the line to take a ride.

While in line, Sundog gave Roberts a waiver of liability form that she was required to sign prior to riding in the hot air balloon. Roberts signed the waiver form, but never returned it to Sundog. The signed waiver form was found on the event grounds after Roberts sustained her injuries.

¶ 9 The liability waiver form states in part:

I expressly, willing, and voluntarily assume full responsibility for all risks of any and every kind involved with or arising from my participation in hot air balloon activities with Company whether during flight preparation, take-off, flight, landing, travel to or from the take-off or landing areas, or otherwise.

Without limiting the generality of the foregoing, I hereby irrevocably release Company, its employees, agents, representatives, contractors, subcontractors, successors, heirs, assigns, affiliates, and legal representatives (the “Released Parties”) from, and hold them harmless for, all claims, rights, demands or causes of action whether known or unknown, suspected or unsuspected, arising out of the ballooning activities....

¶ 10 After signing the form, Roberts waited in line for 20 to 30 minutes. During this time, strong winds caused one of the balloon's tether lines to snap. As a result, the untethered balloon moved toward the spectators in line. Roberts was injured when she was struck by the balloon's basket and knocked to the ground.

¶ 11 The evidence submitted to the circuit court demonstrated that defendant Kerry Hanson, the balloon operator, had limited experience with tethered ballooning before giving rides at Green Valley's event. Hanson testified in his deposition that he should have obtained information regarding weather fronts in the area. Had he known about the weather front on the day Roberts was injured, Hanson testified that he would have suspended the ride.

¶ 12 Hot air ballooning is governed by FAA guidelines and rules. See, e.g., Fed. Aviation Admin., U.S. Dep't. of Transp., Pub. No. FAA–H–8083–11A, Balloon Flying Handbook 7–13 (2008). The FAA's safety recommendations instruct the balloon operator to plan for the failure of one or more of the tethered lines and have a backup plan for safety. See id. at 7–14. In addition, the operator should organize participants “far back” from the balloon and tether lines. Id. At his deposition, Hanson agreed that had he moved the sign-up table and waiting line further back from the balloon, Roberts would not have been injured.

¶ 13 Roberts filed a lawsuit against Sundog, alleging that its negligence caused her injuries. Sundog moved the circuit court for summary judgment, arguing that it is entitled to immunity under Wis. Stat. § 895.52

and that Roberts' claims were barred by the waiver of liability form that she signed.

¶ 14 The circuit court granted Sundog's summary judgment motion, dismissing Roberts' claims and concluding that Sundog was entitled to immunity under Wis. Stat. § 895.52

. It also determined that the waiver of liability form Roberts signed was valid as a matter of law, although an issue of fact remained as to whether she had accepted the terms. ¶ 15 On appeal, Roberts argued that Sundog is not entitled to immunity because her injury was not related to a condition associated with the land. Roberts asserted that under Linville v. City of Janesville, 184 Wis.2d 705, 516 N.W.2d 427 (1994)

and Kosky v. Int'l Ass'n of Lions Clubs, 210 Wis.2d 463, 565 N.W.2d 260(Ct.App.1997), no immunity attaches for negligent conduct unassociated with the land.

¶ 16 The court of appeals rejected Roberts' argument, determining that it was “based on a misreading of the case law ... which has no application to the facts of this case.”⁵ See Roberts v. T.H.E. Ins. Co., No.2014AP1508, unpublished slip op., ¶ 17, 2015 WL 1333686 (Wis.Ct.App. Mar. 26, 2015)

. It explained that this was “the only argument that Roberts makes directed to the application of Wis. Stat. § 895.[52].” Id., ¶ 22. The court of appeals did not address the validity of the liability waiver form because its decision as to immunity disposed of the appeal. Id., ¶ 2 n. 2.

¶ 17 Before this court, Roberts renews her argument that Sundog's negligence was not connected to a condition associated with the land. Because this court ordered briefing on an additional issue, she also asserts that Sundog is not entitled to immunity under Wis. Stat. § 895.52

because it is not an owner under the statute. Roberts argues that Sundog was not an “occupier” of the land and that the hot air balloon was not “property” because it was not a “structure.” Sundog replies that even if it is not entitled to immunity under Wis. Stat. § 895.52

, Roberts' claims are barred because she signed a waiver of liability form.

II.

¶ 18 In this case we are asked to review the circuit court's grant of summary judgment. We review grants of summary judgment applying the same methodology employed by the circuit court. Belding v. Demoulin, 2014 WI 8, ¶ 13, 352 Wis.2d 359, 843 N.W.2d 373

. Summary judgment is appropriate if “there is no genuine issue as to any material fact and [ ] the moving party is entitled to [ ] judgment as a matter of law.” Wis. Stat. § 802.08(2).

¶ 19 Here, there is no genuine issue of material fact. Accordingly, we focus on whether the application of Wis. Stat. § 895.52

bars Roberts' claims. Statutory interpretation presents a question of law that we review independently of the determinations rendered by the circuit court and the court of appeals. State v. Dinkins, 2012 WI 24, ¶ 28, 339 Wis.2d 78, 810 N.W.2d 787.

¶ 20 In interpreting a statute we begin by examining its language, giving words and phrases their common, ordinary, and accepted meaning. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶¶ 45–46, 271 Wis.2d 633, 681 N.W.2d 110

. Statutory language must be interpreted reasonably to avoid absurd or unreasonable results. Id., ¶ 46.

¶ 21 When the legislature has expressly stated the purpose of a statute, the purpose is relevant to the plain meaning interpretation of the statute. See id., ¶ 48. “[A] plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose.” Id., ¶ 49.

¶ 22 In examining an exculpatory contract, we likewise apply the same summary judgment methodology as employed by the circuit court. See Richards v. Richards, 181 Wis.2d 1007, 1010–11, 513 N.W.2d 118 (1994)

(citing Dobratz v. Thomson, 161 Wis.2d 502, 513, 468 N.W.2d 654 (1991) ). The validity of an exculpatory contract is reviewed as a matter of law. Id. at 1011, 513 N.W.2d 118.

III.

¶ 23 We begin our analysis with a brief explanation of what is not in dispute. Neither party disputes that Roberts was participating in a recreational activity at the time she was injured because ballooning is listed in the statutory definition of “recreational activity.” Wis. Stat. § 895.52(1)(g)

defines “recreational activity” as: [A]ny outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including...