Patti J. Roberts v. T.H.E. Insurance Company
879 N.W.2d 492
Wis.2016Background
- Patti Roberts was injured when a tethered hot-air balloon operated by Sundog Ballooning struck her at a charity event held on land owned by Beaver Dam Conservationists and produced by Green Valley Enterprises.
- Sundog donated and operated tethered rides, set up a fenced-off ride area, sign-up table, and gave Roberts a standard waiver to sign while she waited in line; the signed form was not turned in but was later found on the grounds.
- The tether line snapped during strong winds; the operator had limited tethering experience and admitted he should have checked weather and moved the waiting line farther back.
- Sundog moved for summary judgment asserting recreational immunity under Wis. Stat. § 895.52 and alternatively that Roberts’ signed waiver barred her claims; the circuit court and court of appeals granted immunity (appellate decision unpublished).
- The Wisconsin Supreme Court reversed: it held Sundog is not an "owner" under § 895.52 (not an occupier and balloon not a "structure") and that the liability waiver is unenforceable as against public policy; the case was remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sundog is an "owner" entitled to recreational immunity under Wis. Stat. § 895.52 (occupier) | Roberts: Sundog did not "occupy" the property and thus is not an owner under the statute | Sundog: it occupied and controlled a portion of the event grounds (like fair producers) and thus is an owner/occupier entitled to immunity | Court held Sundog was not an owner: prior immunity for event producers does not extend to third parties who merely provide activities and do not open the land to the public; "occupy" requires the statutory relationship and policy connection to opening land. |
| Whether the hot air balloon is "property" (a "structure") under § 895.52 | Roberts: balloon not a structure on real property and so not covered as "property" | Sundog: balloon is constructed of joined parts and therefore a structure qualifying as "property" | Court held the balloon is not a "structure" for § 895.52 because it was transient, not constructed on or permanently affixed to the real property. |
| Whether Roberts’ signed waiver bars her negligence claim | Roberts: waiver unenforceable and she never returned it so did not accept it | Sundog: waiver valid, Roberts read and accepted it, so it bars suit | Court held the standard-form waiver is unenforceable as a matter of law: overly broad, all-inclusive, printed on a standard form with no meaningful opportunity to bargain or adequate notice; public-policy factors require strict construction against enforcement. |
Key Cases Cited
- Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994) (immunity for owners does not extend to negligent acts performed in a capacity unrelated to ownership)
- Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998) ("occupy" interpreted to require a degree of permanence; owner of transient ice shanty not an occupier)
- Peterson v. Midwest Sec. Ins. Co., 248 Wis. 2d 567, 636 N.W.2d 727 (2001) (definition of "structure" and treatment of tree stand as a structure for immunity analysis)
- Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 431 N.W.2d 696 (Ct. App. 1988) (event producer occupying public park may qualify as an occupier for immunity)
- Kosky v. Int'l Ass'n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997) (immunity does not attach when landowner’s negligent act is unrelated to condition/maintenance of the land)
- Ervin v. City of Kenosha, 159 Wis. 2d 464, 464 N.W.2d 654 (1991) (broad discussion of legislative purpose; immunity applied to lifeguard-related claims)
- Richards v. Richards, 181 Wis. 2d 1007, 513 N.W.2d 118 (1994) (factors for invalidating exculpatory agreements: multiple purposes, overly broad release, standardized non-negotiable form)
- Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 557 N.W.2d 60 (1996) (waiver void where it failed to clearly and unmistakably alert signer to assumption of risk of operator’s negligence)
- Atkins v. Swimwest Family Fitness Ctr., 277 Wis. 2d 303, 691 N.W.2d 334 (2005) (adopted combined Richards/Yauger factors to void a standard-form waiver)