As a business owner, it’s essential to protect your business from liability. Whether you own a gym, resort, recreational facility, daycare, dance studio, rent boats, kayaks, bikes, other outdoor activity equipment, or offer event space for weddings and other parties, there are many circumstances when you may want to use a liability waiver. Many insurance carriers require customer experience type businesses to utilize waivers. Some public libraries even require them for their Makerspace activities.
But liability waivers present a more complex legal question than many Wisconsin business owners may realize. There are specific ways that liability waivers must be drafted, or else Wisconsin courts will categorically label them unenforceable and useless to business owners.
Although waivers are contracts between a company and the signer, Wisconsin courts have held them unenforceable on public policy grounds. In particular, courts have rejected waivers that are overbroad, entirely one-sided, “take it or leave it” type agreements that do not allow a signer the opportunity to negotiate the terms.
Business owners must beware of cookie-cutter, one-size-fits-all, liability waivers because they may not account for Wisconsin specific law and therefore run the risk of being unenforceable in Wisconsin. As an example, a company with a national presence may find that the waiver it uses at a site in another state is unenforceable in Wisconsin, even thought it is enforceable in the other state.
What’s the Point? Are They Even Worth It?
Yes, they are, when drafted correctly. Wisconsin court rulings on liability waivers have provided Wisconsin attorneys guidance on what makes certain liability waivers acceptable versus unacceptable. What we know is that a liability waiver must be appropriately drafted to even stand a chance in court. To maximize enforceability a wavier must be as narrowly tailored to your business and its specific risks as possible. A waiver must specifically define what liability is being waived and cannot force customers to accept its terms. Instead, the waiver must offer an opportunity to bargain. A company cannot waive liability for everything and anything. A company cannot avoid liability for intentional or reckless conduct, for creating a dangerous condition, or for doing something intentionally to hurt its customers.
Wisconsin Court of Appeals Recently Upheld Liability Waiver: Drafting Points from Becker and Hintze v. Nova
The Wisconsin Court of Appeals’ recent decision in Becker v. Nova Casualty Company, 2024AP410 (per curiam), offers lessons for drafting enforceable recreational liability waivers. The court upheld the Granite Peak ski hill’s waiver, emphasizing clarity and conspicuousness. Note too that there appears to have been a bona fide opportunity for the consumer to participate in the activity, but not sign the waiver by paying an additional fee. This is important based on other Wisconsin court decisions. Here are five drafting points drawn from the Becker court’s analysis:
- Explicit About Negligence: The Becker waiver clearly released Granite Peak from liability for negligence. A waiver should unambiguously state that the signer is releasing the business from claims arising from the signer’s own negligence related to the activity.
- Conspicuously Present the Release: The court noted the importance of the waiver being readily apparent. Avoid burying the release or combining with other contracts. Use headings, bold text, and a separate signature line specifically for the liability waiver.
- Define the Activity: The Becker and Hintze waiver covered the use of the ski jump at issue in the case. Specifically name the activities covered by the release.
- Do Not Release Intentional or Reckless Conduct: A waiver should expressly exclude any waiver of intentional or reckless conduct.
- Avoid Overly Broad Language: Overly broad generic waivers can be struck down on public policy grounds.
The Becker decision shows that Wisconsin courts allow liability waivers, but they continue to be scrutinized. Consulting legal counsel familiar with Wisconsin law is essential to craft a waiver that meets current standards.
Integrated Approach to Liability Waivers
When drafted properly, liability waivers can be a great tool in any Wisconsin business owners’ toolbox. Liability waivers can help limit what clients and customers may claim your business is responsible for related to some accidents and injuries. They also can address situations where there is customer misconduct or misuse of equipment to provide protection, recoupment, and counter claims. We cannot know how many claims businesses avoid due to a well drafted waiver.
Liability waivers are no substitute for a business having safety processes and programs in place to protect its operations, equipment, and customers. Wisconsin business owners need to view waivers as a component of the business’s overall integrated systems to safeguard the business.
If you are interested in utilizing a liability waiver, you should contact an attorney to draft your waiver in accordance with Wisconsin law.