Patti J. Roberts v. T.H.E. Insurance Company
879 N.W.2d 492, 367 Wis. 2d 386, 2016 WI 20 (2016)
Rule of Law:
Wisconsin's recreational immunity statute does not apply to a hot air balloon operator who is neither an 'occupier' of the land with a sufficient degree of permanence nor an owner of 'property' (a 'structure') within the statutory definition; furthermore, a liability waiver is unenforceable if it is overly broad, printed on a standard form, and offers no meaningful opportunity for negotiation, thereby violating public policy.
Facts:
- Green Valley Enterprises sponsored a charity event at a shooting range owned by Beaver Dam Conservationists, LLC.
- Sundog Ballooning, LLC, owned and operated a hot air balloon, providing free tethered rides at the event, which Kerry and Jodi Hanson had donated to promote the charity event.
- Sundog set up a display, a sign-up table, and a waiting area for the rides, tethering the hot air balloon to two trees and a pick-up truck.
- Patti Roberts and her family entered the line to take a balloon ride.
- While in line, Sundog gave Patti Roberts a waiver of liability form to sign prior to riding in the hot air balloon, which she signed but never returned.
- During Roberts' wait, strong winds caused one of the balloon's tether lines to snap, allowing the untethered balloon basket to strike Roberts, knocking her to the ground and causing injuries.
- Kerry Hanson, the balloon operator, had limited experience with tethered ballooning and testified he would have suspended the ride had he known about the weather front.
- FAA safety recommendations instruct balloon operators to plan for tether line failure and organize participants 'far back' from the balloon and lines, which Hanson admitted he did not do sufficiently.
Procedural Posture:
- Patti Roberts filed a lawsuit against Sundog Ballooning, LLC, Kerry Hanson, Jodi Hanson, and T.H.E. Insurance Company in circuit court, alleging negligence.
- Sundog moved the circuit court for summary judgment, arguing it was entitled to immunity under Wis. Stat. § 895.52 and that Roberts' claims were barred by the waiver of liability form she signed.
- The circuit court granted Sundog's motion for summary judgment, dismissing Roberts' claims, concluding that Sundog was entitled to immunity under Wis. Stat. § 895.52 and that the waiver of liability form was valid (though a fact issue remained as to whether Roberts had accepted its terms).
- Roberts appealed the circuit court's decision to the Wisconsin Court of Appeals.
- The Wisconsin Court of Appeals affirmed the circuit court's grant of summary judgment, determining that the recreational immunity statute barred Roberts' claims and did not address the validity of the liability waiver form.
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Issue:
1) Is a hot air balloon operator considered an 'owner' under Wisconsin's recreational immunity statute, either as an 'occupier' of the land or as an owner of 'property' (a 'structure')? 2) Is a liability waiver form enforceable as a matter of law when it is overly broad, non-negotiable, and not clearly accepted?
Opinions:
Majority - Ann Walsh Bradley
No, Sundog is not entitled to recreational immunity, and its waiver of liability form is unenforceable. Sundog was not an 'occupier' of the land because it lacked the requisite degree of permanence, and its activities did not involve opening the land to the public, which is the statute's primary purpose (citing Doane v. Helenville Mut. Ins. Co. and Linville v. City of Janesville). The hot air balloon was not 'property' because it was not a 'structure' permanently constructed on real property, unlike the tree stand in Peterson v. Midwest Sec. Ins. Co.. Furthermore, the waiver of liability is void as a matter of law because it is overly broad and all-inclusive, covers 'any activity for any reason, known or unknown,' and was a standard form offering no opportunity for negotiation, thereby violating public policy as established in Richards v. Richards, Yauger v. Skiing Enters., Inc., and Atkins v. Swimwest Family Fitness Center.
Dissenting - Rebecca G. Bradley
Yes, Sundog is entitled to recreational immunity because it meets the statutory definition of an 'owner' by 'occupying' the property, and Patti Roberts was engaged in a recreational activity on that property. The plain meaning of 'occupies' includes actual use of the property, which Sundog demonstrated by setting up the tethered hot air balloon operation with designated areas. This interpretation aligns with the statute's broad legislative purpose to encourage recreational activities, not just the opening of land by title owners (Peterson v. Midwest Sec. Ins. Co., Hall v. Turtle Lake Lions Club). Denying immunity would discourage organizations like Sundog from donating recreational activities at charity events, thereby reducing public access to recreational options. The Doane 'degree of permanence' interpretation of 'occupies' was a misapplication of prior precedent and should not be controlling.
Concurring - Annette Kingsland Ziegler
Yes, I agree with the majority that Sundog is not entitled to recreational immunity and that the waiver is unenforceable. I concur separately to emphasize that, even if Sundog were an owner, recreational immunity should not extend to negligence in capacities unrelated to land ownership, such as the operation of its hot air balloon business. Drawing on Linville v. City of Janesville and Kosky v. Int'l Ass'n of Lions Clubs, the statute's purpose is to encourage landowners to open their land, not to shield businesses from liability for their operational negligence. This maintains a crucial 'division of functions' to prevent indiscriminate immunity, ensuring that while property owners are protected for offering land access, business owners are still accountable for their specific services.
Concurring-in-part-and-dissenting-in-part - David T. Prosser
I concur with the majority that Sundog's waiver of liability is unenforceable but dissent regarding recreational immunity. Yes, Sundog does meet the statutory definition of an 'owner' because it 'occupied' the property by taking possession of and controlling a specific section of the land for its balloon operation, even if temporarily. This is consistent with cases like Hall v. Turtle Lake Lions Club, and the statute's language does not impose an unwarranted 'degree of permanence' requirement for occupancy, as Doane v. Helenville Mut. Ins. Co. incorrectly implied. The majority's focus on whether Sundog 'opened the land' to the public is a misinterpretation, as the statute extends immunity to 'officers, employees or agents' of owners who may not directly control land access. Justice Ziegler's 'division of functions' argument, while rational, is contrary to established precedent like Ervin v. City of Kenosha and Wirth v. Ehly, which held that recreational immunity applies to both active and passive negligence of landowners, not just 'condition of the premises' issues.
Analysis:
This case significantly narrows the application of Wisconsin's recreational immunity statute, particularly regarding who qualifies as an 'owner' (specifically an 'occupier' or owner of 'property/structure'). It clarifies that a temporary setup and operation, even with permission, may not constitute sufficient 'occupancy' or a 'structure' for immunity purposes. Furthermore, the decision provides a strong reaffirmation of public policy against overly broad, non-negotiable liability waivers, setting clear standards for their unenforceability. Future cases involving recreational businesses operating on others' land will need to carefully consider whether they meet the heightened 'occupier' or 'structure' definitions, and all businesses will face stricter scrutiny of their liability waivers.
