Yauger v. Skiing Enterprises, Inc., 94-2683

• Decision Date: 19 December 1996
• Docket Number: No. 94-2683,94-2683
• Citation: 557 N.W.2d 60,206 Wis.2d 76
• Parties: Michael YAUGER and Brenda Yauger, Plaintiffs-Appellants-Petitioners, v. SKIING ENTERPRISES, INC., d/b/a Hidden Valley Ski Area, a Wisconsin corporation and Investors Insurance Company of America, a foreign corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 60

557 N.W.2d 60

206 Wis.2d 76

Michael YAUGER and Brenda Yauger, Plaintiffs-Appellants-Petitioners, v. SKIING ENTERPRISES, INC., d/b/a Hidden Valley Ski Area, a

Wisconsin corporation and Investors Insurance

Company of America, a foreign

corporation, Defendants-Respondents.

No. 94-2683.

Supreme Court of Wisconsin.

Argued Sept. 4, 1996.

Decided Dec. 19, 1996.

For the plaintiffs-appellants-petitioners there were briefs by Gary L. Bendix, John M. Bruce and Savage, Gregorski, Webster, Stangel, Bendix & Bruce, S.C., Manitowoc and oral argument by John M. Bruce.

For the defendants-respondents there was a brief by Thomas B. Hartley and Guttormsen, Hartley & Guttormsen, Kenosha and oral argument by Thomas B. Hartley.

Amicus curiae brief was filed by Robert L. Jaskulski and Domnitz, Mawicke, Goisman & Rosenberg, S.C., Milwaukee for the Wisconsin Academy of Trial Lawyers.

Amicus curiae brief was filed by Gregory J. Strasser and Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau for the Civil Trial Counsel of Wisconsin.

WILLIAM A. BABLITCH, Justice.

Michael and Brenda Yauger (the Yaugers), seek review of a court of appeals' decision holding that a liability waiver signed by Michael Yauger effectively relieved Skiing Enterprises, Inc., d/b/a/ Hidden Valley (Hidden Valley) of liability for its alleged negligence in the death of the Yauger's then eleven-year-old daughter, Tara. Hidden Valley argues that the exculpatory clause unambiguously relieves them from liability for the type of accident which gave rise to this litigation. The Yaugers argue that the ambiguity in the language of the exculpatory contract renders it unenforceable, and therefore it does not protect Hidden Valley from a negligence claim. We conclude that the exculpatory contract signed by Michael Yauger is void as against public policy for two reasons: (1) it failed to clearly, unambiguously, and unmistakably explain to him that he was accepting the risk of Hidden Valley's negligence; (2) the form looked at in its entirety failed to alert the signer to the nature and significance of the document being signed. Accordingly, we reverse and remand.

The relevant facts are not in dispute. On October 8, 1992, Michael Yauger purchased a 1992-93 season family ski pass at Hidden Valley's ski shop. The application form asked for the name, age, and relationship of his family members. He filled in the names of his daughters, eight-year-old Felicia, and ten-year-old Tara, and his wife, Brenda Yauger. Immediately following the space provided for this information was the clause in question (see Appendix for reproduced application form). It provided:

In support of this application for membership, I agree that:

1. There are certain inherent risks in skiing and that we agree to hold Hidden Valley Ski Area/Skiing Enterprises Inc. harmless on account of any injury incurred by me or my Family member on the Hidden Valley Ski Area premises.

There was nothing conspicuous about the paragraph containing the waiver. It was one paragraph in a form containing five separate paragraphs. Although the waiver paragraph was the first paragraph of text, it did not stand out from the rest of the form in any manner. It did not require a separate signature.

On March 7, 1993, Tara was skiing at Hidden Valley Ski Area when she allegedly collided with the concrete base of a chair lift tower at the end of a ski run. She died from injuries sustained in the collision.

The Yaugers filed a wrongful death suit in circuit court alleging that Hidden Valley negligently failed to pad the side of the lift tower. Hidden Valley filed a motion for summary judgment based upon the exculpatory clause contained in the application for the season family ski pass signed by Michael Yauger. The circuit court for Manitowoc County, Allan J. Deehr, Circuit Judge, granted the motion for summary judgment, finding the exculpatory clause valid and binding on both Michael and Brenda Yauger. The court of appeals held that the exculpatory contract barred the Yaugers from suing Hidden Valley for negligence, and upheld the summary judgment finding that the term "inherent risks in skiing" plainly and simply described the risk of colliding with a fixed object while skiing. Yauger v. Skiing Enterprises, Inc., 196 Wis.2d 485, 499, 538 N.W.2d 834 (1995). We disagree.

This case presents one issue: whether, as a matter of public policy, the form Michael Yauger signed bars the Yauger's claim against Hidden Valley.

In reviewing a decision affirming summary judgment, we apply the same standard applied by the circuit court when it granted the motion for summary judgment. Richards v. Richards, 181 Wis.2d 1007, 1011, 513 N.W.2d 118 (1994); see Dobratz v. Thomson, 161 Wis.2d 502, 512-13, 468 N.W.2d 654 (1991)(describing the step by step analysis for reviewing the grant of a summary judgment pursuant to Wis. Stat. § 802.08(2)). If the court finds an exculpatory contract void as against public policy, it will deny the defendant's motion for summary judgment. Dobratz at 512-13, 468 N.W.2d 654. Interpretation of a contract is a question of law which we review de novo. Eder v. Lake Geneva Raceway, 187 Wis.2d 596, 610, 523 N.W.2d 429 (1994). If the exculpatory contract is void as a matter of law, then it would be inappropriate to grant the defendants' summary judgment motion insofar as there remains a material issue of fact. We conclude that, as a matter of law, the form Michael Yauger signed was void as against public policy and, therefore, the clause does not bar the Yauger's claim against Hidden Valley.

Exculpatory contracts are not favored by the law because they tend to allow conduct below the acceptable standard of care. Richards, 181 Wis.2d at 1015, 513 N.W.2d 118. However, exculpatory contracts are not automatically void and unenforceable. Id. Rather, a court closely examines whether such agreements violate public policy and construes them strictly against the party seeking to rely on them. Id.

Wisconsin law on exculpatory contracts has recently been thoroughly reviewed. Richards; Dobratz, 161 Wis.2d at 514-520, 468 N.W.2d 654; Arnold v. Shawano County Agr. Society, 111 Wis.2d 203, 330 N.W.2d 773 (1983), overruled on other grounds, Green Spring Farms v. Kersten, 136 Wis.2d 304, 317, 401 N.W.2d 816 (1985). There is no need to reiterate the basic principles here. An examination of these three most recent cases involving exculpatory contracts as a defense to a negligence action leads us to the conclusion that the form signed by Michael Yauger is void as against public policy.

These cases, in different ways, involved an exculpatory clause that failed to disclose to the signers exactly what rights they were waiving. In the first case, Arnold, the court held an exculpatory contract unenforceable because the accident that occurred was not "within the contemplation of the parties" when they signed the exculpatory agreement. In contrast, in Dobratz, the court struck down on summary judgment a broad release on the ground that it was ambiguous and unclear, and that, as a matter of law, no contract was formed. Finally, in Richards, the court concluded that the exculpatory contract was void as against public policy because its overbroad, general terms created ambiguity and uncertainty as to what the signer was releasing.

The first case involved an accident during a stock car race at a county race track. Arnold. The plaintiff, a driver in the race, sustained severe brain damage when, after crashing through the guardrail surrounding the racetrack, racetrack rescue personnel sprayed chemicals into his burning car, creating toxic chemical fumes. As a condition precedent to participating in the race, the driver had signed an agreement releasing defendants from liability from damages "whether caused by the negligence [of defendants] or otherwise" while he was in the "restricted area." Arnold, 111 Wis.2d at 212, 330 N.W.2d 773 (footnote omitted). Concluding that the law does not favor exculpatory contracts, the court closely scrutinized this agreement and strictly construed it against the party seeking to rely on it. Id. at 209, 330 N.W.2d 773. The court examined the facts and circumstances of the agreement to determine whether it expressed the intent of the parties with particularity and thus assured certainty to the parties involved. Although this contract specifically referred to the defendants' negligence, the court concluded that while injuries from negligent track maintenance may have been waived, a negligent rescue operation was not within the contemplation of the parties when they executed the agreement and therefore, the contract was unenforceable.

Next, in Dobratz, while participating in a water ski show as a member of the Webfooter's Water Ski Club, Mark Dobratz was killed when one of the motorboats in the show ran over him. The circuit court rejected his widow's wrongful death claim because of the exculpatory form signed by Dobratz prior to joining the club. The form provided: [the signer] "knew the risk and danger to myself and property while upon said premises or while participating or assisting in this event, so voluntarily and in reliance, upon my own judgment and ability, and I there by assume all risk for loss, damage or injury (including death) to myself and my property from any cause whatsoever." Dobratz, 161 Wis.2d at 511, 468 N.W.2d 654 (emphasis added).

Holding that the contract was unenforceable, the court explained that because particular provisions in the contract were "very broad and general" it was unclear whether the activities that took place immediately after Mark Dobratz fell into the water and up until the time he was injured were to be included within "the event," or whether, alternatively, they constituted something akin to the rescue operations in Arnold that were not clearly covered under the exculpatory contract. Specifically, the court concluded that the contract failed to define several...