March 30, 2016 – The state supreme court has ruled that a woman injured by a runaway hot air balloon can pursue negligence claims against the operator even though she signed a liability waiver and despite the state’s recreational immunity statute.
In Roberts v. T.H.E Insurance Company, 2016 WI 20 (March 30, 2016), the Wisconsin Supreme Court reversed (4-3) an appeals court decision, which had concluded that recreational immunity barred the negligence claim against the hot air balloon operator.
A majority consisting of Justices Ann Walsh Bradley, Shirley Abrahamson, Michael Gableman, and Annette Ziegler concluded that recreational immunity did not apply, and the liability waiver form at issue was overbroad and void as a matter of public policy.
Justice Rebecca Bradley wrote a dissenting opinion. She said recreational immunity applied to the hot air balloon operator as an “occupier” of the property at issue.
Justice David Prosser, joined by Chief Justice Patience Roggensack, agreed with the majority that the liability waiver was unenforceable but agreed with the dissent that immunity applied.
Runaway Hot Air Balloon
In 2011, Patti Roberts attended a charity event sponsored by Green Valley Enterprises at a shooting range owned by Beaver Dam Conservationists LLC. Sundog Ballooning LLC, owned by a married couple, donated tethered hot air balloon rides at the event.
Sundog co-owner Kerry Hanson tethered a hot air balloon to two trees and pick-up truck. He let passengers rise to a certain height before returning them to ground level. Patti Roberts and her family signed up for the ride and signed a waiver of liability.
It said participants assumed responsibility “for all risks of any and every kind involved with or arising from my participation in hot air balloon activities.” It released Sundog from any and all claims arising out of the ballooning activities.
As she was waiting in line, strong winds caused a tether line to snap. The untethered balloon hurled towards those waiting in line, and Roberts was injured when the balloon’s basket struck her and knocked her to the ground. She filed a lawsuit for negligence.
Sundog’s Hanson said he had limited experience with tethered balloon rides, did not check weather reports, and would have suspended the ride if he had checked.
The Dodge County Circuit Court also heard about Federal Aviation Administration (FAA) guidelines, which govern hot air ballooning.
The FAA guidelines say operators must plan for the failure of one or more tethered lines, and keep participants “far back” from tethered lines. Hanson admitted that the waiting line was too close, and Roberts’s proximity was a direct result of her injuries.
However, Sundog argued that the claims were barred because Roberts signed the liability waiver and Sundog had recreational immunity under Wis. Sta. section 895.52, which gives property owners immunity when others use their property for recreation.
The circuit court granted summary judgment to Sundog. An appeals court affirmed, rejecting Roberts’s argument that recreational immunity only protects “owners” and only applies when negligence is connected to a condition associated with the land.
Recreational Immunity Does Not Apply
A supreme court majority concluded that recreational immunity did not apply while distinguishing cases where an injured party sought tort claims against the property owner, or a non-owner that is lawfully “occupying” land to host an event.
The majority noted that the purpose of Wisconsin’s recreational immunity statute is to encourage private property owners to open their land for public recreational activities, but immunity has limits and Sundog was not a protected entity in this case.
“Sundog provided hot air balloon rides on land that was owned by the Conservationists and occupied by Green Valley,” wrote Justice Ann Walsh Bradley.
“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.”
The majority opinion said granting recreational immunity to third parties like Sundog as an “occupier” would create an absurd result “with no logical stopping point that does nothing to further the legislative purpose of the statute.”
The majority also rejected Sundog’s argument that since immunity applies to owners offering “structures” for recreation, it applies to hot air balloons as “structures.”
“[W]e conclude that the hot air balloon is not a structure as that term is applied in Wis. Stat. § 895.52(1)(f),” Justice A.W. Bradley wrote.
Liability Waiver No Good
The majority also concluded that the liability waiver that Roberts signed did not bar the negligence lawsuit, because the liability waiver violated public policy.
Roberts signed the waiver but never returned it. It was found on the event grounds after the accident. The majority did not address that issue – whether it was invalid because she did not return it to Sundog – instead concluding that it was “unenforceable as a matter of law because it fails to satisfy the factors set forth in our prior case law.”
The majority noted that the waiver was overly broad and all-inclusive, and was not clear whether waiting in line for the hot air balloon ride was covered by the waiver. It also said the standard form provided no opportunity for Roberts to bargain or negotiate its terms.
Concurrence
Justice Annette Ziegler wrote a sole concurrence. She agreed that Sundog did not have recreational immunity and the liability waiver was unenforceable.
She suggested that an entity with recreational immunity could still be liable for the negligent performance of another function, like the operation of an air balloon business.
“Simply stated, while the policy behind the statute is to encourage landowners to open their land to the public, the recreational immunity statute does not cloak a negligent actor with immunity no matter what they do,” Justice Ziegler wrote.
Dissent
Justice Rebecca Bradley wrote a dissenting opinion. She said Sundog was “occupying” the property, based on the plain meaning of that term. Thus, it was considered an “owner” and entitled to recreational immunity against the negligence lawsuit.
“This conclusion comports with the legislative purpose of recreational immunity and would not, as the majority fears, result in the limitless application of the recreational immunity statute,” Justice R. Bradley wrote.
If the purpose of the statute is to encourage private property owners and occupiers to open up their land for public use, the majority’s decision could do the opposite, she said.
“Declining to recognize Sundog’s statutory immunity will discourage organizations such as Sundog from donating recreational activities at charity events for fear of incurring liability, which, in turn, will reduce sponsorship of such events by organizations because they will have less recreational options – if any at all – to draw attendance,” she wrote.
In a footnote, R. Bradley also disagreed that hot air balloons could not be “structures” for purposes of recreational immunity. But she said Sundog’s “structure” argument failed because Roberts never entered the alleged structure (the hot air balloon).
Because of her conclusion that Sundog was considered an “occupier” of property and protected by recreational immunity, R. Bradley did not consider the waiver issue.
Concurrence/Dissent
Justice David Prosser, joined by Chief Justice Patience Roggensack, wrote separately, concurring in part and dissenting in part. Justice Prosser agreed with the majority that the liability waiver was unenforceable because it violated public policy.
However, he joined with R. Bradley’s dissent in concluding that Sundog had recreational immunity because Sundog “occupied” the property where the injury occurred.
“[T]he Hansons completely controlled one section of the property for their ballooning operation,” Prosser wrote. “They not only ‘used’ the space but also governed the space during the time they were authorized to be there. In sum, they occupied the property.”
“In sum, the majority opinion seriously misinterprets the meaning of ‘owner’ in the statute,” wrote Justice Prosser, noting that third-party “agents” are also immune.
He said he would not hesitate to side with the injured party if “the statute provided a reasonable means to do so,” and urged the legislature to review the statute.
