Facts
- Michael Yauger bought a family season ski pass from Hidden Valley Ski Area, operated by Skiing Enterprises, Inc.
- To obtain the pass, he signed a preprinted “Application” containing a paragraph stating the family acknowledged “inherent risks in skiing” and agreed to hold the ski area “harmless” for “any injury” to a family member on the premises.
- The exculpatory language was embedded within a multi-paragraph form, was not typographically set apart, and required no separate initials or signature for the waiver paragraph.
- On March 7, 1993, the Yaugers’ 11-year-old daughter, Tara, died while skiing after striking the unpadded concrete base of a chairlift tower.
- The parents sued for wrongful death based on negligence, alleging the ski area failed to pad or otherwise protect the tower base.
- The ski area asserted the waiver barred the negligence claim.
Issues
- Whether the exculpatory clause in the season-pass application was valid and enforceable to bar the wrongful death negligence action.
- Whether the clause was void as against public policy because it failed to clearly inform the signer of the rights waived and failed to reasonably attract the signer’s attention to its legal significance.
Decision
- The Wisconsin Supreme Court reversed summary judgment for the ski area and reversed the court of appeals.
- The court held the exculpatory clause was void as against public policy and unenforceable to bar the negligence-based wrongful death claim.
- The case was remanded for trial on the ski area’s negligence and the decedent’s contributory negligence.
Legal Principles
- Exculpatory clauses are disfavored and closely scrutinized because they can permit conduct below the acceptable standard of care.
- To be enforceable, an exculpatory clause must clearly, unambiguously, and unmistakably inform the signer that claims for the drafter’s own negligence are being released.
- The document must also provide a fair opportunity for the signer to become meaningfully informed, including presentation that reasonably draws attention to the waiver’s nature and significance.
- Ambiguities in exculpatory language, especially purporting to release negligence liability, are construed strictly against the drafter.
- General references to “inherent risks” and generic “hold harmless” language, without clear reference to negligence and without conspicuous presentation, may be insufficient to waive negligence claims.
Conclusion
The court refused to enforce the ski area’s season-pass waiver because it did not plainly communicate that negligence claims were being relinquished and because its placement and formatting did not reasonably alert a consumer that substantial legal rights were being surrendered; the wrongful death negligence claim therefore could proceed to trial.