Patti J. Roberts and David Roberts, Plaintiffs-Appellants-Petitioners,
T.H.E. Insurance Company, Sundog Ballooning, LLC, Kerry M. Hanson and Jodi L. Hanson, Defendants-Respondents, Dean Health Plan, Inc., Defendant
Argument December 15, 2015
of a decision of the Court of Appeals. COURT: Circuit.
COUNTY: Dodge. JUDGE: Joseph G. Sciascia. (L.C. No.
plaintiffs-appellants-petitioners, there were briefs by
Timothy S. Knurr and Gruber Law Offices, LLC, Milwaukee and
oral argument by Timothy S. Knurr.
defendants-respondents, there was a brief by Ward I. Richter,
David G. Ress and Bell, Moore & Richter, S.C., Madison, WI
and oral argument by David G. Ress.
WALSH BRADLEY, J. ANNETTE KINGSLAND ZIEGLER, J. (concurring).
DAVID T. PROSSER, J. (concurring in part; dissenting in
part). REBECCA G. BRADLEY, J. (dissenting).
WALSH BRADLEY, J.
Wis.2d 391] [¶1] Petitioners, Patti and
David Roberts, seek review of an unpublished court of appeals
decision that affirmed the circuit court's order for
summary judgment, dismissing their claims. The court of
appeals determined that Wisconsin's recreational immunity
statute barred the petitioners' claims because Patti
Roberts was engaged in the recreational activity of hot air
ballooning at the time she was injured.
[¶2] Roberts argues that the respondents,
Sundog Ballooning, LLC, Kerry Hanson, Jodi Hanson, and T.H.E.
Insurance Company (collectively " Sundog" ) are not
entitled to immunity pursuant to Wis. Stat. § 895.52
because Sundog was not an owner under the statute. She
contends that Sundog was neither an " occupier" of
the land nor was the hot air balloon " property."
[¶3] In reply, Sundog asserts that even if
it were not entitled to immunity under Wis. Stat. §
895.52, Roberts' claims are barred because she signed a
waiver of liability form.
[¶4] We conclude that Sundog is not entitled
to recreational immunity pursuant to Wis. Stat. § 895.52
because it is not an owner under the statute. Sundog was not
an " occupier" of the land and the hot air balloon
was not " property" because it was not a "
structure."  [367 Wis.2d 392] Finally, we determine
that Sundog's waiver of liability form violates public
policy and is unenforceable as a matter of law. Accordingly,
we reverse the court of appeals and remand to the circuit
court for further proceedings.
[¶5] The relevant facts of this case are
undisputed. Patti J. Roberts was injured at a charity event
sponsored by Green Valley Enterprises (" Green
Valley" ). Beaver Dam Conservationists, LLC (" the
Conservationists" ) owned the shooting range where the
charity event was held.
[¶6] Sundog Ballooning, LLC was the owner
and operator of a hot air balloon providing tethered rides at
the event. Kerry and Jodi Hanson, the owners of Sundog,
donated hot air balloon rides to promote Green Valley's
[¶7] On the day of the event, Sundog set up
a display, a sign-up table and a waiting area for the ride.
The hot air balloon was tethered to two trees and a pick-up
truck. During rides, the balloon operator raised the balloon
to the length of the ropes and then lowered it back to the
[¶8] Patti Roberts and her family watched
the balloon rides and then entered the line to take a ride.
[367 Wis.2d 393] While in line, Sundog gave Roberts a waiver
of liability form that she was required to sign prior to
riding in the hot air balloon. Roberts signed the waiver
form, but never returned it to Sundog. The signed waiver form
was found on the event grounds after Roberts sustained her
[¶9] The liability waiver form states in
I expressly, willing, and voluntarily assume full
responsibility for all risks of any and every kind involved
with or arising from my participation in hot air balloon
activities with Company whether during flight preparation,
take-off, flight, landing, travel to or from the take-off or
landing areas, or otherwise.
Without limiting the generality of the foregoing, I hereby
irrevocably release Company, its employees, agents,
representatives, contractors, subcontractors, successors,
heirs, assigns, affiliates, and legal representatives (the
" Released Parties" ) from, and hold them harmless
for, all claims, rights, demands or causes of action whether
known or unknown, suspected or unsuspected, arising out of
the ballooning activities . . . .
[¶10] After signing the form, Roberts waited
in line for 20 to 30 minutes. During this time, strong winds
caused one of the balloon's tether lines to snap. As a
result, the untethered balloon moved toward the spectators in
line. Roberts was injured when she was struck by the
balloon's basket and knocked to the ground.
[¶11] The evidence submitted to the circuit
court demonstrated that defendant Kerry Hanson, the balloon
operator, had limited experience with tethered ballooning
before giving rides at Green Valley's event. Hanson
testified in his deposition that he should have [367 Wis.2d
394] obtained information regarding weather fronts in the
area. Had he known about the weather front on the day Roberts
was injured, Hanson testified that he would have suspended
[¶12] Hot air ballooning is governed by FAA
guidelines and rules. See, e.g., Fed. Aviation Admin., U.S.
Dep't. of Transp., Pub. No. FAA-H-8083-11A, Balloon
Flying Handbook 7-13 (2008). The FAA's safety
recommendations instruct the balloon operator to plan for the
failure of one or more of the tethered lines and have a
backup plan for safety. See id. at 7-14. In addition, the
operator should organize participants " far back"
from the balloon and tether lines. Id. At his
deposition, Hanson agreed that had he moved the sign-up table
and waiting line further back from the balloon, Roberts would
not have been injured.
[¶13] Roberts filed a lawsuit against
Sundog, alleging that its negligence caused her injuries.
Sundog moved the circuit court for summary judgment, arguing
that it is entitled to immunity under Wis. Stat. §
895.52 and that Roberts' claims were barred by the waiver
of liability form that she signed.
[¶14] The circuit court granted Sundog's
summary judgment motion, dismissing Roberts' claims and
concluding that Sundog was entitled to immunity under Wis.
Stat. § 895.52. It also determined that the waiver of
liability form Roberts signed was valid as a matter of law,
although an issue of fact remained as to whether she had
accepted the terms.
[¶15] On appeal, Roberts argued that Sundog
is not entitled to immunity because her injury was not
related to a condition associated with the land. Roberts
asserted that under Linville v. City of Janesville,
184 Wis.2d 705, 516 N.W.2d 427 (1994) and Kosky v.
Int'l Ass'n of Lions Clubs, 210 Wis.2d 463, 565
N.W.2d 260 [367 Wis.2d 395] (Ct.App. 1997), no immunity
attaches for negligent conduct unassociated with the land.
[¶16] The court of appeals rejected
Roberts' argument, determining that it was " based
on a misreading of the case law . . . which has no
application to the facts of this case."  See
Roberts v. T.H.E. Ins. Co., No. 2014AP1508, 2015 WI
App 37, 363 Wis.2d 656, unpublished slip op., ¶ 17 (Wis.
Ct.App. Mar. 26, 2015). It explained that this was " the
only argument that Roberts makes directed to the application
of Wis. Stat. § 895.." Id., ¶ 22.
The court of appeals did not address the validity of the
liability waiver form because its decision as to immunity
disposed of the appeal. Id., ¶ 2 n.2.
[¶17] Before this court, Roberts renews her
argument that Sundog's negligence was not connected to a
condition associated with the land. Because this court
ordered briefing on an additional issue, she also asserts
that Sundog is not entitled to immunity under Wis. Stat.
§ 895.52 because it is not an owner under the statute.
Roberts argues that Sundog was not an " occupier"
of the land and that the hot air balloon was [367 Wis.2d 396]
not " property" because it was not a "
structure." Sundog replies that even if it is not
entitled to immunity under Wis. Stat. § 895.52,
Roberts' claims are barred because she signed a waiver of
[¶18] In this case we are asked to review
the circuit court's grant of summary judgment. We review
grants of summary judgment applying the same methodology
employed by the circuit court. Belding v. Demoulin,
2014 WI 8, ¶ 13, 352 Wis.2d 359, 843 N.W.2d 373. Summary
judgment is appropriate if " there is no genuine issue
as to any material fact and  the moving party is entitled
to  judgment as a matter of law." Wis. Stat. §
[¶19] Here, there is no genuine issue of
material fact. Accordingly, we focus on whether the
application of Wis. Stat. § 895.52 bars Roberts'
claims. Statutory interpretation presents a question of law
that we review independently of the determinations rendered
by the circuit court and the court of appeals. State v.
Dinkins, 2012 WI 24, ¶ 28, 339 Wis.2d 78, 810
[¶20] In interpreting a statute we begin by
examining its language, giving words and phrases their
common, ordinary, and accepted meaning. State ex rel.
Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶
¶ 45-46, 271 Wis.2d 633, 681 N.W.2d 110. Statutory
language must be
interpreted reasonably to avoid absurd or unreasonable
results. Id., ¶ 46.
Wis.2d 397] [¶21] When the legislature has
expressly stated the purpose of a statute, the purpose is
relevant to the plain meaning interpretation of the statute.
See id., ¶ 48. " [A] plain-meaning interpretation
cannot contravene a textually or contextually manifest
statutory purpose." Id., ¶ 49.
[¶22] In examining an exculpatory contract,
we likewise apply the same summary judgment methodology as
employed by the circuit court. See Richards v.
Richards, 181 Wis.2d 1007, 1010-11, 513 N.W.2d 118
(1994) (citing Dobratz v. Thomson, 161 Wis.2d 502,
513, 468 N.W.2d 654 (1991)). The validity of an exculpatory
contract is reviewed as a matter of law. Id. at
[¶23] We begin our analysis with a brief
explanation of what is not in dispute. Neither party disputes
that Roberts was participating in a recreational activity at
the time she was injured because ballooning is listed in the
statutory definition of " recreational activity."
Wis. Stat. § 895.52(1)(g) defines " recreational
activity" as: [A]ny outdoor activity undertaken for the
purpose of exercise, relaxation or pleasure, including
practice or instruction in any such activity. "
Recreational activity" includes hunting, fishing,
trapping, camping,... ballooning, hang gliding, hiking . . .
." (emphasis added).
[¶24] Furthermore, " [t]he case law is
clear that a spectator who attends a recreational activity is
engaged in a recreational activity." Meyer v. School
Dist. [367 Wis.2d 398] Of Colby, 226 Wis.2d
704, 710, 595 N.W.2d 339 (1999); see also Linville,
184 Wis.2d at 717 (concluding that preparation for a
recreational activity that takes place at a recreational
facility that is open for public use is a " recreational
activity" as defined by Wis. Stat. § 895.52(1)(g)).
Given that Roberts was on recreational land open to the
public, watching the balloon rides as a spectator, and
preparing for the balloon ride by waiting in line, she was
engaged in a " recreational activity" as defined by
Wis. Stat. § 895.52(1)(g).
[¶25] Although Roberts does not dispute that
she was engaged in a recreational activity, she does contest
the issue of immunity. Roberts argues that Sundog is not
entitled to immunity as an occupier of the property where she
was engaged in a recreational activity.
[¶26] The recreational immunity statute Wis.
Stat. § 895.52 provides:
(2) NO DUTY; IMMUNITY FROM LIABILITY.
(a) Except as provided in subs. (3) to (6), no owner and no
officer, employee or agent of an owner owes to any person who
enters the owner's property to engage in a recreational
1. A duty to keep the property safe for recreational
2. A duty to inspect the property, except as provided under
3. A duty to give warning of an unsafe condition, use or
activity on the property.
(b) Except as provided in subs. (3) to (6), no owner and no
officer, employee, or agent of an owner is liable for the
death of, any injury to, or any death or injury caused by, a
person engaging in a recreational activity on the owner's
property . . . .
[367 Wis.2d 399] [¶27] Wis. Stat. §
895.52(1)(d)1 defines an " owner" as " [a]
person, including a governmental body or nonprofit
organization, that owns leases or occupies property."
Wis. Stat. § 895.52(1)(f) further defines
" property" as " real property and buildings,
structures and improvements thereon . . . ."
[¶28] The legislative purpose of the
recreational immunity statute is set forth in 1983 Wis. Act
418, § 1. Its stated purpose is to limit liability in
order to encourage property owners to open their lands to the
The legislature intends by this act to limit the liability of
property owners toward others who use their property for
recreational activities under circumstances in which the
owner does not derive more than a minimal pecuniary benefit.
While it is not possible to specify in a statute every
activity which might constitute a recreational activity, this
act provides examples of the kinds of activities that are
meant to be included, and the legislature intends that, where
substantially similar circumstances or activities exist, this
legislation should be liberally construed in favor of
property owners to protect them from liability . . . . 1983
Wis. Act 418, § 1.
cases have explained, " the impetus for this law is the
continual shrinkage of the public's access to
recreational land in the ever more populated modern
world." Hall v. Turtle Lake Lions Club, 146
Wis.2d 486, 489, 431 N.W.2d 696 (Ct.App. 1988).
[¶29] In reply, Sundog argues that it is
entitled to recreational immunity because Roberts was injured
at an event similar to those in prior cases. Sundog asserts
that it is entitled to immunity as an " occupier"
of the land, for the same reasons that the producer of a fair
or event qualifies for recreational immunity. Prior cases
[367 Wis.2d 400] interpreting Wisconsin's recreational
immunity law have concluded that the producer of a fair or
event " occupied" property. See, e.g.,
Id., at 490; Lee v. Elk Rod & Gun Club,
Inc., 164 Wis.2d 103, 106, 473 N.W.2d 581 (Ct.App.
1991); Weina v. Atlantic Mut. Ins. Co., 179 Wis.2d
774, 777 n.2, 508 N.W.2d 67 (Ct.App. 1993).
[¶30] As Sundog's counsel aptly argued,
Wisconsin courts have concluded private organizations hosting
an event on land they did not own are entitled to
recreational immunity. In Hall, the plaintiff was injured
when he stepped in a hole on the grounds of the Turtle Lake
Village Park during a fair sponsored by the Turtle Lake Lions
Club. 146 Wis.2d at 487. The Lion's Club was not the
titled owner of the land on which it held the fair.
Id. at 490. The court of appeals concluded that the
Lions Club was entitled to recreational immunity as a "
landowner" that allowed Hall entry for "
recreational activity." Id. at 487-89.
[¶31] Likewise, in Lee, the plaintiff was
injured when he slipped and fell on icy ground beneath a tent
erected by the Elk Rod & Gun Club for a fishing contest on
Bugle Lake. 164 Wis.2d at 105. Lee explained that "
[t]he club, as an occupant of the city park land, is treated
as a landowner for purposes of recreational immunity."
Id. at 107 (citing Hall,
146 Wis.2d at 490-91).
[¶32] Again, in Weina, the plaintiff was
injured playing softball at a church picnic held at a public
park. 179 Wis.2d at 776. The plaintiff sued both the church
and the teammate who hit the injurious baseball. Id.
Granting summary judgment in favor of the church, the circuit
court denied the teammate's motion for summary judgment.
Id. at 777 n.1. The court of [367 Wis.2d 401]
appeals affirmed the circuit court's judgment that the
church, as the event organizer, was entitled to immunity.
Id. at 779.
[¶33] This case is different from prior
cases, however, because Roberts did not bring claims against
the event producer or owner of the property. Green Valley
Enterprises, not Sundog, produced the charity event where
Roberts was injured. The Conservationists, not Sundog, was
the owner of the property where the event took place. None of
the prior cases interpreting Wis. Stat. § 895.52 has
granted immunity to a third party not responsible for opening
up the land to the public.
[¶34] The distinction between Sundog and the
producer of a fair or event is supported by case law
analyzing the definition of " occupy" in the
context of the statute's policy. In Doane v.
Helenville Mut. Ins. Co., 216 Wis.2d 345, 355, 575
N.W.2d 734 (Ct.App. 1998), the court of appeals held that the
owner of an ice shanty was not an occupier under Wis. Stat.
§ 895.52. As Doane explained, " occupy" is
defined as " to take and hold possession."
Id. at 354 (citing Webster's New Collegiate
Dictionary 794 (8th ed. 1974)). The term " occupy,"
as it is used in Wis. Stat. § 895.52, has been defined
as " requiring a degree of permanence, as opposed to
mere use." Id. (citations ommitted).
Wis.2d 402] [¶35] Underlying the Doane
decision was the same statutory policy at issue here. As
Doane explained, to define the owner of the ice shanty as an
occupier " would not further the policy which underlies
the statute, i.e., of opening as much property as possible
for recreational use, because the lake was already held in
trust for public recreational purposes, such as
fishing." Id. at 355. Here, as in Doane,
defining Sundog as an " occupier" would not further
the policy underlying the statute because the
Conservationists' property was already open for public
[¶36] The Linville court also explained that
we must consider whether immunity will encourage landowners
to open the land for public use:
The benefits of granting immunity, i.e., encouraging
landowners to open their lands to the public, comes from
immunizing people or municipalities in their capacities as
landowners . . . . Extending immunity to landowners for
negligently performing in a capacity unrelated to the land .
. . will not contribute to a landowner's decision to open
the land for public use.
184 Wis.2d 705, 516 N.W.2d 427.
[¶37] Here, it was Green Valley and the
Conservationists__ not Sundog__ that were responsible for
opening the land to the public. The Conservationists allowed
Green Valley to host an event on the land. Green Valley was
responsible for organizing the event and bringing people onto
the land. Sundog provided hot air balloon rides on land that
was owned by the Conservationists and occupied by Green
Valley. Immunizing Sundog would have no effect on whether the
public had access to private land, because Sundog is not
responsible for opening the land to the public.
[¶38] We also find Linville instructive in
determining the logical stopping point for immunity. In [367
Wis.2d 403] Linville, the court analyzed whether granting
immunity to city paramedics could create limitless immunity
for all medical services provided for injuries sustained
while recreating. 184 Wis.2d 705, 516 N.W.2d 427.
" Such services could conceivably take place days or
even weeks after the recreational activity, at facilities far
removed from the site of recreation, and by persons in no way
connected to the land on which the accident occurred."
Id. at 720. " Such a result is absurd, leaves
immunity limitless, and therefore could not have been
intended by the legislature." Id.
[¶39] Wis. Stat. § 895.52 " was
not enacted to provide indiscriminate immunity for landowners
without regard to possible consequences." Id.
at 719 (quoting Ervin v. City of Kenosha, 159 Wis.2d
464, 477, 464 N.W.2d 654 (1991)). Extending immunity to
Sundog could lead to limitless immunity. Sundog is not the
owner of the land. It is not occupying the land as an event
organizer and is therefore not responsible for opening up the
land to the public. If Sundog__ who has no connection to the
land __is granted immunity, there will be no stopping point
to recreational immunity.
[¶40] For example, what if Roberts brought a
claim against the manufacturer of the hot air balloon that
injured her? What if the tether that broke loose was due to a
fault in the manufacture of the balloon, rather than the
wind? Should the balloon manufacturer, which had no
connection to opening the land to the public, be immunized
because ballooning is a recreational activity?
[¶41] Granting immunity to third parties
that are not responsible for opening up the land to the
public is unsupported by our prior case law. In addition, it
would create an absurd result with no logical [367 Wis.2d
404] stopping point that does nothing to further the
legislative purpose of the statute. Accordingly, we conclude
that Sundog is not entitled to recreational immunity under
Wis. Stat. § 895.52 because it was not an "
occupier" of the land.
[¶42] Next, Sundog argues that it is
entitled to immunity not only as an " occupier" of
real property, but also as an owner of " property"
because the hot air balloon is a structure pursuant to Wis.
Stat. § 895.52(1)(f). " Property" means real
property and buildings, structures and improvements thereon.
Wis. Stat. § 895.52(1)(f).
[¶43] The term " structure" is not
defined in Wis. Stat. § 895.52, and is therefore given
its common and ordinary meaning. Peterson v. Midwest Sec.
Ins. Co., 2001 WI 131, ¶ 16, 248 Wis.2d 567, 636
N.W.2d 727. A " structure" is " something
constructed," or " something made up of a number of
parts that are held or put together in a particular
way." Id. (citing American Heritage Dictionary
of the English Language, 1782 (3d ed. 1992)). "
Structure" is also defined as " [a]ny construction,
or any production or piece of work artificially built up or
composed of parts joined together in some definite
manner." Id. (citing Black's Law
Dictionary, 1424 (6th ed. 1991)).
[¶44] Sundog relies on Peterson, in which
this court held that the owner of a tree stand was entitled
to immunity as the owner of a " structure" on real
property. Id., ¶ 4. Peterson adopted the court
of appeals' decision in Doane.
Peterson, 248 Wis.2d 567, ¶
20. The Doane court identified three categories of [367
Wis.2d 405] property that qualify owners for immunity: (1)
real property; (2) buildings, structures and improvements
thereon; and (3) waters of the state.
Doane, 216 Wis.2d at 352. Sundog
argues that like the tree stand in Peterson, the hot air
balloon is a structure because it was constructed or put
together in a particular way and made up of parts joined
[¶45] Although it may have been made up of
parts joined together, the hot air balloon ride was not
constructed on real property. In Peterson, the tree stand was
permanent and built or constructed on the real property. See
Peterson, 248 Wis.2d 567, ¶
¶ 5-7. The hot air balloon in this case was transient
and designed to be moved at the end of the day. It was also
not designed to remain in one place. The balloon was tethered
to two trees and a pick-up truck because of the manner in
which Sundog was using it on the day of the event. Thus, we
conclude that the hot air balloon is not a structure as that
term is applied in Wis. Stat. § 895.52(1)(f).
[¶46] Accordingly, we conclude that Sundog
is not entitled to recreational immunity under Wis. Stat.
§ 895.52 because it is not an owner under the statute.
Sundog was not an " occupier" of the land and the
hot air balloon was not " property" because it is
not a " structure."
[¶47] Having determined that Sundog is not
entitled to immunity under Wis. Stat. § 895.52, we must
address whether Roberts' claims are barred by
Sundog's exculpatory release. Sundog argues that the
waiver of liability form that Roberts signed is valid under
Wis.2d 406] [¶48] Wisconsin case law does
not favor exculpatory agreements. See, e.g., Atkins v.
Swimwest Family Fitness Center, 2005 WI 4, ¶ 12,
277 Wis.2d 303, 691 N.W.2d 334. " While this court has
not held that an exculpatory clause is invalid per se, we
have held that such a provision must be construed strictly
against the party seeking to rely on it." Id.,
¶ 12 (citing Yauger v. Skiing Enters., Inc.,
206 Wis.2d 76, 81, 557 N.W.2d 60 (1996); Merten v.
Nathan, 108 Wis.2d 205, 210-11, 321 N.W.2d 173 (1982)).
[¶49] Our analysis of an exculpatory
contract begins with examining the facts and circumstances of
the agreement to determine if it covers the activity at
issue. Atkins, 277 Wis.2d 303,
¶ 13 (citing Arnold v. Shawano County Agric.
Soc'y, 111 Wis.2d 203, 211, 330 N.W.2d 773 (1983),
overruled on other grounds). If the contract covers the
activity, we proceed to a public policy analysis, "
which remains the 'germane analysis' for exculpatory
clauses." Id., ¶ 13 (citing
Yauger, 206 Wis.2d at 86). "
We generally define public policy as 'that principle of
law under which freedom of contract or private dealings is
restricted by law for the good of the community.'"
Id., ¶ 14 (quoting
Merten, 108 Wis.2d at 213).
[¶50] This court has found an exculpatory
agreement to be invalid if it contains misrepresentations, if
it too broadly defines the location and actions covered, or
if it is ambiguous and uncertain. See, e.g.,
Merten, 108 Wis.2d at 214-15; see also Arnold,
111 Wis.2d at 211-13; Dobratz, 161
Wis.2d at 526. Our prior decisions have also set forth the
factors to apply in analyzing whether a contract is void as a
matter of law.
Wis.2d 407] [¶51] In Richards, 181 Wis.2d
1007, 513 N.W.2d 118, the plaintiff was injured while
accompanying her husband on a trip. The waiver in Richards
was both an application for permission to be a passenger and
a release of all claims against the trucking company.
Id. at 1012. Richards held that the contract was
void as against public policy because: (1) the contract
served two purposes which were not clearly identified or
distinguished; (2) the release was extremely broad and
all-inclusive; and (3) the release was in a standardized
agreement printed on the Company's form, offering little
or no opportunity
for negotiation or free and voluntary bargaining.