Atkins v. Swimwest Family Fitness Center
2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334 (2005)
Rule of Law:
An exculpatory clause is unenforceable as contrary to public policy if it is overly broad and all-inclusive, fails to adequately notify the signer of the nature and significance of the rights being waived (e.g., due to dual-purpose form or inconspicuousness), and provides the signer no opportunity to bargain over its terms.
Facts:
- Dr. Charis Wilson visited Swimwest Family Fitness Center to use the lap pool as part of a physical therapy and rehabilitation program.
- Swimwest employee Arika Kleinert informed Wilson that as a non-member, she was required to complete a guest registration card and pay a fee before swimming.
- Kleinert presented Wilson with a five and one-half inch by five and one-half inch card that combined guest registration information with a 'Waiver Release Statement,' all printed in uniform capital letters, size, and font.
- The 'Waiver Release Statement' included language stating: 'I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS.'
- The card had only one signature line at the bottom, following both the registration and the waiver, which Wilson signed without asking any questions.
- Wilson was later observed swimming the sidestroke in the lap pool by Karen Kittelson, a part-owner of Swimwest, and the lifeguard on duty.
- Another Swimwest employee, Elizabeth Proepper, spotted Wilson lying motionless underwater near the bottom of the pool, prompting Karen Kittelson to pull her out and administer CPR.
- Wilson died at the hospital the following day, May 4, 2001, with drowning listed as the official cause of death on the coroner's report.
Procedural Posture:
- Benjamin Atkins, a minor, filed a wrongful death action through his guardian ad litem against Swimwest Family Fitness Center, Karen Kittelson, and West Bend Mutual Insurance Company in Dane County Circuit Court, alleging negligence in the operation and management of the pool facility.
- The circuit court (Honorable Michael N. Nowakowski presiding) granted Swimwest's motion for summary judgment, concluding that the guest registration and waiver form signed by Dr. Charis Wilson constituted a valid exculpatory provision that released Swimwest from liability.
- Atkins appealed the circuit court's decision to the Wisconsin Court of Appeals.
- The Wisconsin Court of Appeals (Judges Charles E. Dykman, Margaret J. Vergeront, and Paul B. Higginbotham) certified the appeal to the Wisconsin Supreme Court to clarify Wisconsin law concerning the enforceability of exculpatory clauses in standard liability release forms.
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Issue:
Does an exculpatory clause in a standardized waiver form violate public policy and thus become unenforceable if it uses overly broad language like 'fault,' is presented on a dual-purpose form without highlighting the waiver, and offers no opportunity for the signer to bargain?
Opinions:
Majority - N. Patrick Crooks, J.
Yes, an exculpatory clause in a standardized waiver form violates public policy and is unenforceable when it is overly broad, all-inclusive, fails to clearly communicate the specific rights being waived and the document's nature and significance, and is presented without an opportunity to bargain. The court applied a public policy analysis drawing from its precedents in Yauger v. Skiing Enterprises, Inc. and Richards v. Richards. First, the waiver was deemed overly broad and all-inclusive because the word 'fault' was ambiguous and susceptible to a broader interpretation than just negligence, potentially covering intentional or reckless acts. The court emphasized that if Swimwest intended to release itself from negligent acts, it should have explicitly included the word 'negligence' for clarity. Second, the form failed to provide adequate notice of the waiver's nature and significance because it served two purposes (guest registration and liability waiver), was not conspicuous (uniform font, size, and color throughout), and lacked a separate signature line for the exculpatory clause, making it difficult to distinguish. Third, Dr. Wilson had no opportunity to bargain over the standardized exculpatory language; she was forced to either sign the form as presented or be denied access to the pool, which the court found contrary to public policy. Since the exculpatory clause is unenforceable, Swimwest is not shielded from liability, and Benjamin Atkins, as Wilson's son, is entitled to pursue his wrongful death claim, which is derivative of any claim Wilson could have maintained.
Dissenting - Jon E Wilcox, J.
No, the exculpatory clause should be enforced because the majority's application of public policy factors is overly strict and will effectively render most exculpatory agreements unenforceable, creating an unclear and unworkable standard. The dissent argued that the term 'fault,' as understood by a layperson, clearly means 'mistake' or 'error' and thus unambiguously covers negligent conduct, especially when read in context with the 'hold harmless' language. It stated that expecting a business to list every conceivable form of negligence or use legal jargon like 'negligence' runs contrary to the principle that waivers should be readable and free of legalese. The dissent also contended that the waiver was conspicuous, as it was the only complete sentence language on a small, five and one-half inch by five and one-half inch card, set off by a separate heading, and immediately preceding the signature line, making its nature and significance clear despite serving a dual purpose. Finally, the dissent strongly criticized the 'opportunity to bargain' requirement, noting its impracticality for recreational businesses that rely on standardized forms and high customer volume, arguing that the only meaningful 'bargaining' tool for a consumer is the choice to frequent another business.
Concurring - Patience Drake Roggensack, J.
I agree with the decision to reverse and remand this matter, but I write separately because the majority's elevation of the lack of an opportunity to bargain to a separate, dispositive factor for invalidating waivers is an unnecessary expansion of the law, and the question of what risks Wilson contemplated should be a question of fact for a jury. The concurrence asserted that while an opportunity to bargain is desirable, prior case law, specifically Yauger, did not establish it as an independent component necessary for a waiver's validity, but rather as a fact to consider in evaluating the clarity and scope of the release. By making it a distinct and potentially sufficient ground for invalidation, the majority makes it nearly impossible for many recreational businesses to limit liability by contract, which could lead to increased lawsuits and fewer facilities. Furthermore, the concurrence argued that the question of whether Wilson contemplated the specific possibility of her own death, given her swimming ability, the pool's depth, and autopsy findings suggesting a 'dry drowning' possibly unrelated to aspiration, presents material factual questions. These questions about the parties' contemplation of specific risks should be determined by a jury, not decided on summary judgment or as a matter of law on appeal, before evaluating the waiver's effect on liability.
Analysis:
This case significantly tightens the enforceability of exculpatory clauses in Wisconsin, particularly in recreational settings. By emphasizing the requirements of clarity, conspicuousness, and opportunity to bargain, the court makes it substantially more difficult for businesses to insulate themselves from negligence claims through standardized waivers. Future litigants challenging or defending such clauses will have to meticulously examine the language, presentation, and context of the waiver, with a strong presumption against enforceability if any of the identified deficiencies are present. This decision reinforces consumer protection by ensuring that individuals are fully aware of and have a genuine choice in waiving their rights, thereby promoting greater accountability for negligence in industries involving public safety.
