*1 Jerilyn Plaintiff-Appellant-Petitioner, Richards,
v. Richards, Leo Defendant, J. Inc., Company,
Monkem Defendant-Respondent. Supreme Court 10, argument No. 92-1690. Oral November 1993. Decided 8, 1994. March (Also 118.) reported in 513 N.W.2d *3 plaintiff-appellant-petitioner were there For the Erspamer Erspamer by Law David M. briefs by Amery argument David M. and oral Office, Erspamer. by defendant-respondent a brief there was
For the Dalrymple, Heathman, Coe, Coe & Mark Coe and E. argument Mark E. Zabel, S.C., and oral Rice Lake Coe. unpub- This is a review of an
ABRAHAMSON, J. January appeals filed on lished decision of the court affirming judgment for of the circuit court 20, 1993, a County, Judge. Brunner, Circuit Barron Edward R. summary judgment granted circuit court The dismissing Company, com- defendant, Monkem plaint signed by prejudice. It held that the form with plaintiff, exculpatory Jerilyn con- Richards, the was an contrary to not void or unenforceable as tract that was public policy. plaintiffs held that the claim It further injuries riding as a in a suffered while operated by husband, her Richards, truck Leo employer, Company, owned Monkem her husband's clearly contemplation parties at within the time the contract was executed. plaintiffs court thus foreclosed the claim as circuit appeals judg- affirmed the matter of law. The court of circuit court. reverse and remand for ment of the We proceedings. further *4 court the form the
The issue before this is whether plaintiff exculpatory executed constitutes a valid con- releasing against plaintiffs tract the claims Monkem thereby barring Company, this lawsuit. This issue judgment, summary arose a motion for and this 1010 reviewing affirming summary court a decision is judgment. Therefore standard of review is the same as the standard used the circuit to determine court grant summary judgment. whether the motion for Thomson, v. 2d 502, 513, Dobratz Wis. 468 N.W.2d (1991). exculpatory If an be contract is found to summary its face, invalid on the defendant's motion for judgment Thomson, will be denied. Dobratz v. 161 Wis. Thus, 2d at court whether, 526. this must determine as exculpatory law, a matter of the form a valid was con- plaintiffs tract that bars the claim.
We conclude that the form at here an issue is exculpatory public against policy. contract void as isAs prior case, often the neither a decision of court nor prior directly point. the facts of a case is on An exami- principles underlying nation of the determination validity exculpatory of contracts leads us to the exculpa- conclusion that the form is an unenforceable tory contract due to a three combination of factors. necessarily None these factors alone would invali- together they date the release; however, taken demand against pub- the conclusion contract is void as policy. purposes, lic First, the contract serves two clearly distinguished. Second, identified or the release extremely Third, broad and all-inclusive. the release agreement printed is in a standardized on the Com- pany's offering opportunity form, little or no negotiation voluntary bargaining. or free and
The facts relevant to our determination of the validity form as an contract are not dispute. February In of 1990, Leo Richards Company hired Monkem anas over-the-road truck Shortly plaintiff driver. thereafter, and her hus- possibility riding band discussed the of her aas *5 plaintiff passenger Before the could accom- with him. Company pany husband, however, her Monkem "Passenger required sign she a form entitled May 22, on or Authorization," and she did so about 1990. "Passenger Authorization" form used
The Company appears purposes. Monkem have two Company's authorization to First, it served as Monkem company Second, in a truck. it ride passenger's general claims serves as a against release of all Company. language of release "Passenger attempts to transform the Authorization" relieving Monkem form into an contract Company companies, partner- and all of its affiliated (as others) ships, corporations well as individuals and liability person signing for harm from and all to the Nathan, 205, 210, the form. See Merten v. 108 2dWis. (1982). The form N.W.2d reads as follows: Company, Inc. f~~Monkem ^ moiob CAnmcn A nunuNOloH ^
PASSENGERAUTHORIZATION 5/22/9Q HATE: AND OF FULE FINAL RELEASE COVERINGALL CLAIMS OR RIGHTS ACTION OF EVERT PAST, PRESENT OR
DESCRIPTION FUTURE. AGE, I/HE BEING MTSELF/OURSELVES, OF LAWFUL FOR HEIRS, ADMINISTRATORS, HT/GUR SUCCESSORS, EXECUTORS, ASSIGNS, AND HERERT FULLY AND FOREVER AN RELEASE SAID DISCHARGE THE MONKEM AND COMPANY,INC., AFFILIATED, ALL OR ASSOCIATED, COMPANIES, SUBSIDIARY PARTNERSHIPS, INDIVIDUALS AND OR CORPORATIONS ALL OTHER FIRMS, AND PERSON, CORPORATIONS, AND THEIR HEIRS, ADMINISTRATORS, EXECUTORS, ' AND ANY SUCCESSORS, AND ALL ASSIGNS FROM CAUSES ACTIONS, ACTIONS, OF CLAIM AND DEMANDS OF WHATSOEVERKIND OR NATUREON ACCOUNTOF ANY AND ALL KNOWNAND UNKNOW! INJURIES, LOSSES, AND DAMAGESRY OR ME/US HY/OUR PROPERTYSUSTAINED OR RECEIVED A WHILE PASSENGER AND EQUIPMENT, IN ANY ALL VEHICLES, OR WHILE LOCATEDON ANY/ALL MONKEM INC.,/JOPLIN HIWAY, INC. PROPERTY COMPANY. IT IS EXPRESSLY UNDERSTOODAND AGREEDTHAT THIS IS RELEASE TO INTENDED COVER AND DOES COVER NOT HOW ONLY KNOWN INJURIES, ALL LOSSES AND DAMAGES, BUT ANY FUTURE INJURIES, AND LOSSES DAMAGESNOT KNOWN NOW OR BUT ANTICIPATED, WHICH MAY LATER DEVELOP DISCOVERED, OR BE INCLUDING THE ALL EFFECTS AND CONSEQUENCES THEREOF. PERMISSION IS GRANTED JERILYN BY MONKEM RICHARDS COMPANY, jo FOR INC. ¡N ABE PASSENGER MONKEM COMPANY, INC./JOPUN HIWAY TNC./BURLINGTON MOTOR- CARRIER LEASING VEHICLE UNIT NUMBER42A24 FOR A PERIOD STARTING 6/1/SO ANO ENDING THIS . PERMISSIONS 3/1/30 GIVEN ONLY UPON FULL UNDERSTANDDHTOF- THE ABOVE RELEASE ANO IS ACCEPTEDANO EXECUTEDAND ACKNOWLEDGEDBY OF SIGNATURE THE PERSON BELOW: ABSOLUTELYNO DRIVING PRIVILEGES
SIGHED Í SrS/FZ . ^ PASSENGER INFORMATION TIRTVEjf Simaros HEIGHT: f E°Tíí51wí;lu' WEIGHT: SCíhatSET^-'J&iLWrTc RICHARDS- HAIR C0OIH: ~ WIFE EYE. „A„ COLOR: OR. LIC. *,w„„ eJ'a/ «V ss ’ ?*{-' n ?-q'tf'f t.(. mc-CaJL-t C.L. HU- CARLEY, DI CARLEY. UIRLCIOR OF RISK HflT OR OAVE BROWN. DIRECTOR OF SAFETY A SIGNED COPY HOST BE RETURNEDTO MONKEMWITHIN 10 DAYS OF ISSUANCE. V. P.O.Box (cid:127) Joplin,Missouri64802 [*] (417)624-5634 asking for the an insert addition, the form contains
In eye weight, height, passenger's color, color, hair security number. number, and social license driver's plaintiff appropriate was about the information The signed Leo The release was on the form. inserted passenger, Jerilyn driver, Richards as as Richards Management McCarley, Director of Risk C.L. Company. Monkem accompanied plaintiff her 14, 1990, the
On June trips. truck, of his scheduled When on one husband plaintiff negotiating overturned, the curve, a left injuries pinned as The she sustained inside the vehicle. for the current of this accident are the basis a result lawsuit. principles applicable to the determination recently validity set contracts were Thomson, 161 Wis. 2d the court in Dobratz v.
forth
*7
(1991),
incorpo-
468
654
which
502, 514-20,
N.W.2d
principles
explained, and elaborated on the
set
rated,
e.g.,
See,
Discount Fabric
in several earlier cases.
forth
Telephone Co.,
587,
117 Wis. 2d
345
House v. Wisconsin
(1984) (contract
liability
releasing
of tele-
N.W.2d 417
company
negligent
phone
for
omission of ad from
Agr. Socy,
yellow pages);
Shawano Co.
111
Arnold v.
(1983) (contract releasing
203, 330
773
Wis. 2d
N.W.2d
driver),
liability of race track to
overruled on other
grounds,
Spring
Kersten,
Green
Farms v.
136 Wis. 2d
(1987);
Nathan,
314,
1014
principles
nowWe
reiterate several of the
from
these cases which are
to
relevant
the case at bar.
Exculpatory
contracts are not favored
the law
they
accept-
because
tend to allow conduct below the
applicable
activity.
able
standard
care
to the
Exculpatory
automatically
not,
contracts
however,
are
contrary
public policy.
void and unenforceable as
Agr. Socy,
Arnold v. Shawano Co.
111
2d 203, 209,
Wis.
(1983),
grounds,
Thomson,
502, 520, 468
161 Wis. 2d
N.W.2d
striking
overly
court,
down an
broad
a unanimous
release, stated that "this court will not favor an excul
general
patory
in its
contract that is broad
terms."
reviewing
exculpatory agreement
In
an
for viola-
attempts
public policy, a court
to
tion of
accommodate
principles
between the
of contract and tort
the tension
agreement.
inherent in such an
The law of
law that are
principle
on the
of
contract is based
of freedom con-
people
manage
tract;
should be able to
their own affairs
government interference.
of
without
Freedom contract
bargain freely
premised
voluntarily
is
through
on a
made
bargaining process
integrity.
that has
Con-
protects justifiable expectations
tract
law
and the
security of transactions. The law of torts is directed
compensation
injuries
of individuals for
result-
toward
ing from the unreasonable conduct of another. Tort law
"prophylactic" purpose
preventing
also serves
harm;
future
imposing liability
tort law seeks to deter certain conduct
acceptable
for conduct below the
Nathan,
205,
standard of care. Merten v.
108 Wis. 2d
(1982).
211-212, 214,
This dual
is not made clear
designated
in the
contract;
title
the
the form is
merely
"Passenger
as a
Authorization."
written
clearly
terms
state that the document is a release of
liability.
person signing
duty
A
a document has a
to
writing.
read it
know the
the
and
contents of
State
Casualty
Co.,
Farm Fire &
Co. v. Home Ins.
88 Wis. 2d
(Ct.
1979).
App.
124, 129,
confusion circumstances, under these senger's Company liability release of the from should carefully distinguished have been identified and from Company's authorization for a ride along. Identifying distinguishing clearly and between arrangements pro those two contractual could have important protection against signatory's vided agreement inadvertent the release. extremely
Second, the release broad and all- purports inclusive. It intentional, reckless, to excuse negligent only by Company conduct not but Inc.) entity (Joplin Hiway, affiliated, another all subsidiary companies, partnerships, associated, or corporations, persons, individuals, or and all other corporations. although passen- firms or ger's Further, Company's release is combined with the *10 plaintiff specified authorization to the to ride in a Com- pany during specified period, vehicle the release does injury plaintiff may not refer to an the sustain while riding passenger specified Company as a in the vehicle during specified period. purports the time It to release Company liability any injury the plaintiff from for and all to the plaintiff any
while the is a in vehi- (not necessarily Company) any cle one owned at plaintiff any Company time and while the property is on and all any at The release, time. unlike the authori- specified zation, is not limited to a vehicle or to a specified period. Company time Had the intended that liability plaintiff it be released from to the while she riding Company was with her husband in the truck during period Company is authorized, that says. very what the release breadth of the release questions meaning raises about its and demonstrates unreasonably one-sidedness; its it favorable to the Company, the drafter of the contract. respect overly
With
to
releases,
broad
three lines of
developed. College
cases have
In
Mobile Home Park &
Sales v.
Hoffmann,
514,
Wis. 2d
Third, this contract is a standardized Company's printed form which offers little or no on opportunity negotiation voluntary or free and bar- According Company gaining. record, to the when plaintiff the form to the its cover letter did forwarded *11 not her that the document was a release of all advise legal significance claims and did not advise her of the signing employee attached to her of the document. The employees Company handbook authoriza- advised passenger along tion was needed for a to ride but did employees to not advise that the would have against Company. release all claims the printed The fact that a release is in standardized a enough not, itself, However, form is to invalidate it. plaintiffs opportunity discussing the negotiating lack of for an significant
the contract is when considered plans with the breadth of the release. If her to ride with go plaintiff simply her husband to forward, were the had to adhere to the terms of the written form. While Company had time and resources to draft the provisions plan plaintiff effect, their did not. plaintiff opportunity
Had the been afforded the to negotiate might release, a she have declined to release Company liability from for intentional or reckless negligence, liability actions or the or driver's from for equipment. Company proba- its defective Because the bly family allowing derives some benefit from members join improving employee road, drivers on the such as Company might necessarily morale, not have rejected proposals such out of hand. said,
As we have none of these factors alone would necessarily have warranted invalidation of the excul- patory contract. Under the circumstances the case at bar, a combination of these factors demonstrate that principle adherence to the of freedom of contract is not heavily principle compen- law, favored. The of tort persons injuries resulting sate for from unreasonable prevails. Accordingly, another, conduct of we conclude public policy that the document contravenes and is void appeals and unenforceable. The decision of the court of proceedings reversed and cause remanded opinion. inconsistent with this By appeals the Court.—The decision of the court is reversed and the cause remanded to the circuit court. (Mr. (dissenting).
DAY, J. Leo J. Richards Rich- ards) employ was a truck driver of Monkem (Mrs. Company, trucking company. Jerilyn Richards Richards), wife, his wished to travel in the truck with during trips. Mr. Richards one of his The release at signed by issue was Mrs. Richards and her husband as allowing a condition for Mrs. Richards to travel with *12 her husband while he drove a truck owned Monkem Company. clearly The release broad, but it was contemplation parties within the that the release injury riding an to Mrs. would cover Richards while as during by in truck an accident caused negligence. her husband's majority opinion lists three reasons which
purportedly require invalidation of the release as a
(1)
given
matter of law. The reasons
are:
"the contract
purposes,
clearly
serves two
identified or distin-
(2)
guished";
extremely
"the release is
broad and all-
(3)
agree-
inclusive";
"the releáse is in a standardized
printed
Company's
offering
form,
ment
on the
little or
opportunity
negotiation
voluntary
no
for
or free and
bargaining."
I
releases are not
strictly.
and,
therefore,
favored
will be construed
Society,
County Agr.
Arnold v. Shawano
111 Wis. 2d
(1983);
Thomson,
203, 209,
The first reason for invalidating against "public policy" the release as is purposes." that the release "serves two 181 Wis. 2d at legal 1011. There is no such "rule," however. No authority by anyone, parties is cited neither the nor the majority opinion, support simply, to Quite such a rule. appears majority this "rule" for the first time in the opinion. legal Moreover, this new "rule" conflicts with precedent practical purpose. and no serves majority opinion disapproves
The the fact that the only against release serves not to release claims company but that it also serves to document the com- pany's passenger. authorization of a However, a present release circumstances is best viewed as permission condition that must granted. met be before is permission given Since is not until the condi- necessarily met, tion is the release must serve two purposes. By definition, it serves both to release claims satisfy permission. signed and to a condition for merely release documents that the condition has been met. practice quite Many
This
is
common.
cases have
enforced releases which serve both to release claims
permission
granted
document that
has been
upon satisfaction of the condition. For instance, most
jurisdictions routinely enforce releases which were the
granting permission
applicants
condition for
participants in races and other recreational activities.
See, Hammer
Supp.
America, Inc.,
v. Road
614 F.
467,
(E.D.Wis.
(7th
1985),
aff'd.,
F.2d 1296
Cir.
1986);Arnold, 111
2d at 213 n.4. Both Arnold and
Wis.
Nathan,
Mrs. the release docu- invalid as a matter of law because satisfy requirements ment served to federal also for. passengers authorized to accom- information about pany above, as there However, truck drivers. discussed signed suggests a release is no rule of law which may any purposes. not be used serve number Nor why containing a document is there reason may sig- release other information from the solicit natory long so as the release itself remains clear. majority opines prevent that "to confusion passenger's
under circumstances, these release Company liability carefully from should have been distinguished Company's identified and from the along." authorization for a to ride 181 Wis. However, 2d at 1017. besides the fact that there was no evidence of confusion in the record, there is no basis in fact or in law even claim confusion in this case. clearly by
First, the release itself was a release its terms, and its function as a release was not obscured separate asking the addition of a section for identifica- passenger. tion information about the The "PASSENGER AUTHORIZATION" is a one- page consisting document of two sections. The first sec- tion is entitled: "FULL AND FINAL RELEASE ..." body body followed of the release. The occupies approximately of % release page and is capital lettering. written in The word "RELEASE" appears no less than four times the release. In fact, single no other word with more than four letters appears more often in the release than the word *15 only "RELEASE"; the name "MONKEM COMPANY" appears many as times as the word "RELEASE" in the release. The title to the release uses the word signature "RELEASE"; the final sentence before the portion of the release uses the word "RELEASE"; and appears the word prominently "RELEASE" in both intervening paragraphs the two of the release. The just final sentence of the release, located above the space passenger applicant where the and driver are to sign, states: "THIS PERMISSION IS GIVEN ONLY UPON FULL UNDERSTANDING OF THE ABOVE RELEASE AND IS ACCEPTED AND EXECUTED AND ACKNOWLEDGED BY SIGNATURE OF THE PERSON BELOW:". Both Mrs. Richards and her hus- space appropriate signed the release the band immediately following that statement. document, entitled, of the
The second section INFORMATION," is located in "PASSENGER right document. It consists hand corner of the lower eye height, weight, entry color, hair blanks for security num- and social color, driver's license number square passenger. occupies less than two of the It ber clearly space This section is inches of on the document. if neutral, not innocuous.
Any presence passenger infor- claim that the anyone believing into that mation section could confuse release is com- ceased to be a the rest of the document pletely especially when It is untenable untenable. alleged by did not such as Mrs. Richards who someone passenger information section. read or fill-out the even See, 1, footnote number infra. majority that the facts relevant The concedes validity of the release are the determination of the undisputed dispute. facts 1011. Those 181 Wis. 2d at following: include the it was claims in her brief
Mrs. Richards diligence by "undisputed despite reasonable agreement, plaintiff purpose she of this to find out agreement not know and not advised that did exculpatory contract." And she claims that she was an through efforts to find out the reason for "went evidently agreement." however, Her did not "efforts," depo- reading Mrs. Richards' include the release itself. testimony did not read much sition indicates that she carefully parts those of the document and did not read may asking Her efforts did not include she have read.1 company any questions indicating any dis- or even following excerpts deposition. are from Mrs. Richards' *16 29-30). (Record, 12:26-27,
satisfaction with release. Her efforts did Q: you complete top And read the document from to bottom?
A: No.
Q: complete you You didn't read the did document. What read you and what did not read? basically top you A: That it was it. From the can tell and from Passenger memo a it was Authorization down here my signature that I to make needed where name was typed. Q: you paragraph commencing Did read the first with 'Full and ending final release' with the word 'future'? may A: I have.
Q: you paragraph commencing And did read second with ending 'property'? 'I/we' with enough A: didn't I understand it read it.
Q: Well, you did read it? not, thing. A: I can't recall for sure if I read or it the whole Q: you paragraph commencing Did read the third with the expressly' ending 'consequences words 'It is with words thereof? parts A: I don't if recall I read what for all or exact sure of of the document. Q: right. Likewise, commencing Paragraph All with the granted' ending 'person words 'Permission with the words below:'? attorney]: [Mrs. Okay. previously, Richards' Same answer as you you that don't know if it or read not? A: Yes. I don't know ....
Q: youDo concerning know who inserted the information right-hand portion on that's lower third of the document? No, I A: don't.
Q: your handwriting? Is A: doI not believe it is ....
Q: you Did you may read that it was a release all claims that against have Company riding passenger? Monkem as a A: I'm not sure. *17 reading
include the memo from the company carefully, her efforts did not include contacting Director of Risk referred to in the Management [stu- employee Thus, dent] handbook. when the majority opinion that "it is not clear to argues reasonably of a signer form entitled Authorization' that 'Passenger the docu- ment would be the reality passenger's agreement (and others) release the from Company liability," 2dWis. at 1017 it refers to no more than Mrs. Richards herself remembers reading carefully, the first namely, two words at the of the document. top
Q: you Did understand that this authorization was also a you release of future causes of action or future claims that may against Company riding passen- have Monkem for as a ger being injured riding passenger or while as a with Monkem? A: I didn't it understand to mean that.
Q: you prior signing regard Did seek assistance this with portions you've you to the that indicated that did not understand? No, A: I did not.
Q: though you So even didn't understand some of the contents authorization, you signed anyway? this went ahead and it A: ..Yes ..
Q: you Richards, your husband, Did discuss with Mr. the fact Passenger [the only Authorization] not released or you authorized to ride as a but released claims you may being injured riding pas- for have while as a senger with Mr. Richards a Monkem vehicle? it, A: I did mention to him that I didn't understand and he had someone, secretary Monkem, talked to a or someone at just just signed she go said that it needed to be before I could with him was what I from understood what he had told me from the conversation with her. Q: you secretary? Did talk to the No,
A: I did not. appeals agree when it concludes
I
the court of
with
"Jerilyn's
that she did not understand
assertions
that,
signed
language
exculpatory contract but
it
anyway
Failure
to invalidate its effect.
are insufficient
generally
will
to read or understand a contract
validity
protect
because a court will not
affect its
steps
person
her
fails to take reasonable
own
who
protection."
Richards,
908,
Richards v.
173 Wis. 2d
*18
(Wis.
(Table),
App.), p. 2,
Nor is credible imply somehow confused. As or that Mr. Richards was deposition Passenger indicates, he knew that the his He that the Authorization contained release. knew required Company Monkem release was because involving passengers. about accidents He worried signing admits that he did not read the release before anyone he not it, and admits that he did ask at Company clarify Monkem it for no him. There is clear that he read the evidence student handbook care- fully any issue, as to this much that he was, less or way been, could have that this confused was a release. Rather he admits that all drivers knew ahead of time requirements.2 clearly, about the Thus, if Mrs. Rich- following excerpts depo are from Mr. Leo J. Richards' 26-27). (Record, 11:23-24, sition. passenger] [the Was reference made to
Q: authorization [form]? Well, by you A: we knew federal law that had to have a rider's permit any passenger, they for and mentioned that we would get only passengers they have to and one would family. authorize was immediate was confused because ards she relied Mr. upon Richards' of the release explanations really without the release and without reading asking company clarification, for that is her fault, and not confusion Monkem or the caused structure or wording document, as a matter of law.
The second reason
given
invalidation
release
majority
is that
the release is
opinion
broad
"extremely
and all-inclusive."
Q: Company] purpose [Monkem And did indicate a for that authorization? A: Yeah.
Q: purpose you? What was that that was communicated to they high percentage A: Well because have a of accidents of vehicle, passengers getting they in and out of the had to sign release, they also had to have a doctor's state- they're physically ment that able to climb in and out of the vehicle.... Q: secretary Safety Company] [at Did the in the Office Monkem *19 explain purpose they they that the reason that —or required [the authorization] to be executed? you Passenger A: No. No. All drivers know that have to have a you yourself, you Authorization. Even if own the vehicle still have to make one out. Q: signing agreement Prior to that or that authorization did you opportunity have an to read it? it, glanced legal jumbo, you A: I at it's but all mumbo know Q: Okay. you question anybody concerning Did its contents prior signing to it? A: No.
Q: you signed agreement though you So even didn't under- stand what it said? Well, only thing my A: I looked at was to see that truck right, number and stuff was and that's about all....
1029 matically against public policy. as This court held void Arnold, 211, 111 2d at that the rule on broad Wis. general exculpatory "Excul- releases is as follows: and general patory agreements in terms that are broad only those claims that are within the contem- will bar plation parties when the contract was executed."3 emphasized
It that Richards does must be Mrs. not argue that the release was so obtuse that it could not be argues Rather, understood. Mrs. Richards that it release should be invalid because is overbroad. Mrs. "[i] complains simply impossible t that, Richards parties contemplate scope for the and breadth of damages purported they and actions that were releasing." may true, That be but this case does any hypotheticals, involve bizarre and the rule is that parties clearly will be held what was contem- plated in the situation. grounds, Springs
3Arnold was overruled on other
Green
(1987).
Kersten,
304, 317,
Farms v.
136 Wis. 2d
N.W.2d
exculpatory
The rule as concerns overbroad
clauses in Arnold
Dobratz,
Dobratz,
523,
was reaffirmed in
1030 proper question Thus the in this context is what clearly contemplated by parties. clearly Was it contemplated that the release would cover Monkem? clearly contemplated Was it the release would injured cover an accident in which Mrs. Richards was riding while as a in the truck? And was it clearly contemplated prevent that this release would recovering against company Mrs. Richards from negligence by acts of driving caused her husband while questions Monkem's truck? The answer to each of these "yes." questions may These be determined as a matter of In Leonhard, law. Plummer v. 686, Wis. 2d 692, 172 (1969), citing (1952), N.W.2d § 76 C.J.S. Release 72 normally this court noted that the determination of the parties intent scope to a release, and the of a questions jury. release, are of fact for the However, the meaning, legal construction, and effect of a release are questions for determination the court, where there ambiguity is no in the instrument, or where the evi undisputed. dence in connection with the release is Specifically, the construction of a written release as operating discharge particular claims is a determi nation made See, § the court. 76 C.J.S. Release 72 (1952); Arnold, 111 Wis. 2d at 212. question,
As to the first Mrs. Richards admits liability release is clear in its intent to release as to "Obviously," Monkem. Mrs. Richards writes in her purports negligence brief, "the release itself to excuse only employer, on behalf of Leo Richards' Monkem Company, purports liability but in addition to release separate entity on 'Joplin behalf of some known as Hiway, complaint point Inc.'" Her at that is that the identity Joplin Hiway, given, Inc., etc., is not scope might therefore the of the release is I overbroad. *21 agree release to the of the as that enforcement may may per- not be entities or or undefined unknown That of this release. is an under the terms missible open question. fact the release "obvi- However, the that clearly ously" that was Monkem means covered by contemplated parties therefore be the and should that to extent. enforced question, argued Mrs. Richards
As to the second language of the could cover an the broad release that hypothetical situa- unlimited number bizarre almost again, However, and is therefore invalid. while tions beyond will not be extended those situa- the release clearly by parties, contemplated the the rule of tions applied those situations Arnold is it will be contemplated. clearly clearly covers The release the riding injured in which the while situation happened precisely truck, in the and this is what Richards. Mrs. agree question, I to the with the court of
As third clearly contemplated appeals and conclude that it was obviously against release that the covered claims spouse's negligent company upon driving. based Richards, 908, 1993 Richards v. 173 Wis. 2d at WL (Wis. App.), p. (Unpublished Opinion). 2, Applying Arnold, the rule of releáse should be clearly enforced to the extent it covers situations con- agree templated parties. I the circuit with court appeals clearly and court of that Mrs. Richards contem- plated injury that the release would cover an sustained riding pas- while Mrs. Richards was in the truck as a during senger an accident caused her husband's negligence, Monkem, least, at would be covered. why majority
How avoids rule of Arnold is unclear. Arnold establishes that clauses, while not favored, will be enforced to the they clearly contemplated by extent cover situations parties executing Accordingly, the release. the fact Arnold, ambiguous that the release in was broad and did not result in invalidation of the release. Instead, summary judgment the court in Arnold remanded the spe- case to the circuit court to determine whether the cific accident which occurred was within the contemplation parties to the release. *22 say questions
The
in
court Arnold did not
that all
clearly contemplated
of what was
must be returned to
the circuit court when a release is
broad
its terms.
contrary,
explicitly
Quite to the
the court
noted that
types
may reasonably
certain
of situations
be con-
contemplated by
parties.
cluded were
The release
activity
racing.
in Arnold concerned the
The court
noted that "it would be reasonable to assume that this
exculpatory
preclude liability
contract was intended to
things
negligent
for such
as
maintenance of the track
negligent driving
participant
or the
of another driver
Arnold,
.
only
. .."
Precisely analysis applied the same should be present Clearly parties case. here must be held contemplated inju- to have that the release would cover by ries riding sustained Mrs. Richards while as a passenger during an accident caused her husband's negligence. clearly contemplated That much was and should be enforced to that extent. Had Mrs. Richards way, injured then we would have other some
been clearly contem- that situation confront whether regardless plated case. Thus But that is not our or not. engaged many hypotheticals to avoid are of how subsequent to Arnold Arnold, and the cases that case exculpatory contracts will rule that stand for the still clearly they cover situations to the extent be enforced parties. contemplated Dobratz nor Neither repealed rule. that basic other decision has majority for the statement cites Dobratz that is an contract court will not favor "this agree. general However, I in its terms." broad general say releases does not that broad Dobratz contrary, Dobratz, 161 Wis. 2d Quite to the are invalid. explicitly the anal- Arnold and endorses 521, at cites to ysis oíArnold. and conclusion pro- College Park & Sales does Mobile Home
Nor
legitimate
rule oí Arnold. The
basis to avoid the
vide
majority
College
&
Mobile Home Park
claims
present
pertinent" to
situation than
Sales is "more
majority
However, the
Arnold.
First,
there is
inherently
presumptively wrong
or
with releases writ-
ten in standardized forms is without foundation. There
plenty
authority
of
that standardized contracts will
strictly
against
be read
and will be construed
(Second)
e.g.
etc. see
drafter,
Restatement
Torts
(Second)
§ 496B,
D;
Comments C and
Restatement
§ 195,
Contracts
authority
However,
Comment B.
there is no
inherently
cited that a standardized form is
presumptively
or
even
invalid in this context or
Again,
appears
other.
"rule,"
this
if it is to be that,
majority opinion.
the first time in the
effectively
rule,
Such a
which would
ban standard-
prior
Many,
releases,
ized
also conflicts with
case law.
if
all,
of the cases in which releases have been
pre-printed
enforced involve
and standardized forms.
instance, Arnold,
For
1035 gest nature of the release was that the standardized much less that stan- reservations, the source itself presumptively agreements are somehow dardized invalid. against proposed rule standardized
Nor does majority opinion purpose. practical forms have a Company "[w]hile explains the time and had that plan provisions effect, their to draft resources plaintiff I find no 2d at 1007. not." Wis. the legal did why company practical should not reason
or provisions and to draft the the "time and resources take plan hope that all drafters effect." We should their seriously sug- circumspection. Is it would use such acceptable gested had it the release would be more paper? hurriedly piece improvised of blank on a been company policy public if the could be favored Would provisions thought prove gave effect of the it no to the incorrectly planned prove effect it if it could had or Again, assuming public policy provisions? required violated, all that is is that otherwise it It enforced to the extent release be clear. will be clearly contemplated by parties. covers what imposition "bargaining" require- of a Second, the legal foundation in this context and makes ment has no practical will sense. It is true that the courts little bargaining compensate for the weaker sometimes power However, cases. of certain actors in contract typically special limited to situations these cases are special instance, as this court areas of the law. For explains Arnold, 210: Wis. 2d at variety a of other situations
"There are courts have refused to enforce which They include: grounds public policy. contracts on liability from tort for harm caused excusing party intentionally recklessly; excusing employer or an *25 liability from an employee injury to for in the course employment; of his relieving party charged a with great a performing importance service of the pub- to lic; excusing a party invoking exculpation who possesses advantage bargaining a decisive in strength." unequal bargaining strength
Arnold does include analysis as a factor. § the However, source for this is (Second) of the Restatement Contracts which of unequal bargaining strength does not list as an inde- (Second) pendent Similarly, factor. the Restatement of § "disparity 496B, J, Torts Comment also mentions the bargaining power," special of but limits this to factor contexts in which involved, there are other factors part instance, when there is no "free choice" on the of plaintiff owing "exigencies" the to the "necessities" and of the situation. any jurisdiction No cases are cited—from —which
suggest parties the that mere fact the a that to contract possess unequal bargaining strength means that no exculpatory permissible. clauses or releases are When applied unequal bargaining strength court this has the rationale, as Discount Co., Fabric House v. Wis. Tel. (1984), rejected 117 Wis. 587, 345 2d N.W.2d it bargain unequal In House, view. Discount Fabric the (and to) ing explicitly factor was linked to limited public service context of the situation:
This
private
clause in this
contract
against public policy
parties
in that
are not on
equal bargaining terms telephone company
public
has created
publication
interest
in the
yellow
pages
requires
which
the telephone
company perform
private duty
its
to the ad sub-
scriber without
be
negligence
damages,
or
held for
(emphasis supplied). Id.
The court
nature of the service:
"indispensable"
com-
yellow pages
telephone
publishing
In
if
great,
a service of
engaged
performing
pany is
and it holds
essential, importance
public
to the
give
public
reasonable
service
willing
itself out as
yellow pages.
in the
apply
place
ads
to all who
possesses a decisive advan-
telephone company
strength. Id.
Accordingly,
applies
a pub-
to the
context. Monkem is
present
providing
lic
or
a
Mrs.
fulfilling
public duty
permitting
service
Richards
to ride with her husband. Monkem is not
a market
transaction. Nor is this
sense
entering
any
a
for Mrs. Richards. The
"necessity"
majority opinion
"
plans
[i]f
that,
laments
her
to ride with her husband
go
plaintiff simply
were to
forward,
had to adhere
the terms
the written form."
As this such, created if ment, that, it be is issued without ascertainable majority explain standards. has failed to when or why newly bargaining requirement created is to be applied begin opinion explain and the does not how it applied. applied something it to be Is because of point majority implies Monkem At has done? one bargaining requirement applied is to be company "probably because derives some benefit" *27 from pure speculation However, a situation. besides the fact that this is
(Mrs. this), Richards never claims is any speculate there situation which one could party "probably that one or another derives some bene- Clearly fit"? such a rule would know no boundaries. again, any jurisdiction And, there no law cited from suggesting anything or source even close to a "rule" just "probably that because someone party derives some ben- party efit" that that must "afford" the other an "equal opportunity negotiate." to
Perhaps newly bargaining require- created applied something ment is because of Mrs. Richards assuming might release, she had read the have done— suggests point majority that, At one of course. opportunity plaintiff "[h]ad to been afforded the might negotiate release, have declined to release she liability Company from for intentional or reckless Ironically, however, 1020. . . 181 Wis. 2d at actions not need to be "declined" because claims would such already anyway. they a rule There is are unenforceable against releasing claims for intentional or reckless in those rule is to decline enforcement actions. That If release as a whole. instances, not to invalidate the injured by equip- defective Richards had been Mrs. question then, would have to address the ment, we type clearly contemplated by of risk was whether that parties However, or not. the mere fact that one can might hypothetical not be covered think of some which that the release as a whole is invalid. does not mean have no so, the rule Arnold would Were meaning. practitioner court left a clue Both are without equal it means to "afford" Mrs. Richards "the as to what opportunity negotiate First, a release." it is unclear why "opportunity negotiate" when, or how this company spouse- should be "afforded." Is the to ask all they negotiate? applicants if wish to On the facts of the say present case it makes little sense to that Mrs. Rich- "opportunity" ards was not "afforded" an when she really any- failed to read the release and never asked company any questions one at the about the release any and did not even indicate dissatisfaction with the company. why majority release to the How and can the imply company somehow failed to "afford" "opportunity" requested Mrs. Richards when she never "opportunity"? such *28 "negotiate" Second, what does it in mean to this company context, and how the would ensure that the negotiations "equal"? compe- were we to Are assess the tency negotiate of Mrs. Richards to and assume that compensated deficiencies must somehow be for in company? substance the What if Mrs. Richards is negotiation an offered entire brochure on skills but just really it, fails to read she as failed to the read one page suggested company Or release? is it that the appoint help someone to Mrs. Richards draft a counter- proposal? company negotiate good Must the then —in faith, might willing course—about which terms ofits own release it drop "negotiations"?
be to what if, And despite very negotiations skilled and fair on both sides, agrees accept Mrs. Richards nevertheless to the full majority opinion implies release. The that this result presumptively suspect.... questions be would problems these new "rules" raise are visible without end or solution. disagree majority's
Third, I with comments about employee the cover letter handbook. The majority opinion does not claim that the cover letter or (student) employee any way handbook were affirmatively misleading. majority opin- However, the suggest ion does that one or both of these materials explained extraneous release should have majority opinion release Mrs. Richards law. The [Mrs. states that the "cover letter did not advise Rich- ards] that the document was a release of all claims and significance legal did not her advise attached to signing her document." 181 Wis. 2d at 1019. majority opinion complains Likewise, "employee employees Company handbook advised passenger along authorization was needed for a to ride employees but did not advise that the would *29 against Company." 181 the to release all claims have 1019. Wis. 2d at implies majority opinion written, the
Thus, as require standardized clause would otherwise clear an explain the matter extraneous non-standardized not the law. the clause. That is and effect of contents employee extrane- handbook are letter and The cover only they the are relevant such, the release. As ous to original clarify they or confuse the could either extent might clear, then, there the release is itself release. If employee question or the cover letter of whether be together clause, the made handbook, when read with case, on the facts of this However, release unclear. the were neutral cover letter and the handbook both the factually a cover There is no law that accurate.4 reemphasize accompanies a release must letter which accompanies is a release when the that the document it any is there itself makes that clear. Nor document "legal sig- explain requirement that a cover letter the accompanies of the document it when nificance" Finally, there is no reason document itself is clear. responsibil- employee handbook must assume this the ity, especially presented it to Mrs. since carefully, if at all. Richards, and she did not read it long do not Thus, so as these extraneous materials Jerilyn Richards The cover letter was addressed to Mrs. you sign where indicated on and read as follows: "Both of should yellow copy the enclosed the attached form. Please return the on the truck with envelope keep original to this office and please you you questions, at all If have contact us." times. merely stating that a entry employee The in the handbook was eligibil possible. It described the authorization was applying ity requirements process and made clear that through Management of would be handled the Director of Risk company. from release, detract then the release stands on its own.
Finally, majority opinion attempts to charac- necessary this terize result as to "accommodate" the principles between the "tension contract and tort exculpatory agreements. law" which is inherent in principle "prevails" Wis. 2d at 1016. of tort law majority opinion explains, instance, this because "imposte] liability persons we should on whose conduct (emphasis sup- creates an risk unreasonable of harm." plied) *30 present 181 2d However, Wis. at 1015. in the context, it is not Monkem who "creates" an unreasona- harm, of ble risk brought but rather it is Mrs. Richards who being by requesting the risk into authorization passenger to in be a truck, the and it was Mrs. Rich- through ards' husband who caused the accident his negligence.5 company only attempt- own Monkem ing protect passenger- to itself from claims in which a spouse employer-owner sues the on the basis of the spouse-driver's negligence. allowing passengers Since entirely company is within the discretion of the is and (hence generally not favored Federal law the requirement), surely against authorization it is not public policy company position a in Monkem's being demand a release claims related to a gives spouse-passenger it before authorization for the accompany spouse-driver. the Afterall, Monkem was House, It was noted in Discount Fabric 600, 2d at Wis. clauses are not provi favored because "such However, sions tend to a induce want of care . . ." in this instance, hint, there allegation, certainly is no no and no show ing, Company's that Monkem level care in diminished or connection with the release otherwise. Nor would there be any incentive to company reduce the level of care because others, driver, particular. would still be liable to all and to the in by granting permis- doing Richards a favor Mr. & Mrs. accompany her Richards to for Mrs. husband sion the truck. sweeping release of this condemnation coupled
majority opinion, the refusal to however, with aspects which were of the release even those enforce companies such Richards, Mrs. leaves "obvious"to even might a valid to how one craft Monkem clueless as as might reading majority opinion, one After release. only may if be executed a valid release conclude that only company if the standardized, the document only planned if document, the effect of has not says more once in each "RELEASE" than document explana- copy paragraph, only if of the release and an correspondence to included in all of the release are tion signatory prospective materials and in all other might into the which fall as student handbooks such applicant, spouse-passenger prospective of a hands provides finally, only company for real and if the and, spouse-passenger applicants. "bargaining" for effective ignores past majority opinion our Because my opin- precedents creates new "rules" that are unnecessary unwise, I dissent. ion to state that JUSTICESSteinmetz
I am authorized *31 dissenting in this join opinion. and WILCOX