Drafting Exculpatory Agreements

Many of the reported cases regarding exculpatory agreements involve athletic events and personal injury claims. Thus, the following suggestions are geared toward such events, but the suggestions also would apply generally to other settings. Attorneys called upon to draft exculpatory agreements for organizations sponsoring athletic events may want to consider the following suggestions:

Be specific. Specify the:

• event's name, date and location (but be careful that the geographic area covered by the release is not too narrowly described);
  
  
• participant's activity and commonly associated dangers;
  
  
• entity or entities being released; and
  
  
• classification of person doing the releasing (draft different forms for participants, volunteers, spectators, and so on).

Make the release conspicuous.

• Label it a "RELEASE OF LIABILITY" or something equally clear.
  
  
• Follow the suggestions regarding conspicuousness set forth in Yauger. ¹
  
  
• Separate application sections from release sections.
  
  
• Consider how the release would appear if reprinted in a supreme court decision. ²

Be truthful. Any misstatement of material fact will void the agreement. ³

Do not be overbroad.

• Overbroad exculpatory agreements are especially susceptible to being held invalid. ⁴
  
  
• State that the release does not waive liability for intentional or reckless acts, as such claims cannot be waived, but do expressly state the release waives claims for negligence. ⁵
  
  
• Do not use legal jargon. "A valid exculpatory contract must be clear, unambiguous and unmistakable to the layperson." ⁶
  
  
• Provide signature lines for each person who could make a claim.
  
  
• Have spouses of participants release loss of consortium claims (or, if not possible, understand such claims probably cannot be released by the participant alone). ⁷
  
  
• If minors are participants, consider having both minors and parents sign the release (and advise the organization that the enforceability of such agreements is uncertain). ⁸

Consider including an indemnification clause.

• An indemnification clause may provide some protection to the organization, especially where loss of consortium or minors' claims are involved.
  
  
• If including indemnification language, indicate this in the section heading.

Consider circumstances of release signing.

• A release is more likely to be held invalid if presented "at the gate" or when time is short. ⁹
  
  
• Consider prohibiting "day of" registration, especially for endurance events such as a marathon or triathlon.
  
  
• Consider providing additional information (such as an informational brochure discussing dangers and suggesting guidelines for minimum training) especially to "first-timers."
  
  
• Give participants an opportunity to examine the facility or racecourse before signing the release.

Endnotes

¹ Yauger v. Skiing Enter. Inc., 206 Wis. 2d 75, 86 n.2, 557 N.W.2d 60, 64 (1996).

² Several supreme court decisions include a photocopy of the release as an attachment. See id. at 89, 557 N.W.2d at 66; Arnold v. Shawano County Agric. Soc'y, 111 Wis. 2d 203, 206, 330 N.W.2d 773, 775 (1983); Richards v. Richards, 181 Wis. 2d 1007, 1012, 513 N.W.2d 113, 120 (1994).

³ Merten v. Nathan, 108 Wis. 2d 205, 214, 321 N.W.2d 173, 178 (1982); Cadek v. Great Lakes Dragaway Inc., 58 F.3d 1209, 1212 (7th Cir. 1995).

⁴ Richards at 1015, 513 N.W.2d at 121.

⁵ Id.

⁶ Yauger, 206 Wis. 2d at 85, 557 N.W.2d at 64 (emphasis added).

⁷ See Arnold at 214-15, 330 N.W.2d at 779 (one spouse may not release another spouse's consortium claim); but see Hammer v. Road America Inc., 614 F. Supp. 467, 472 (E.D. Wis. 1985)(suggesting that assumption of risk clause might act to bar loss of consortium claim, because contributory negligence is a defense in a loss of consortium action) aff'd mem. 793 F.2d 1296 (7th Cir. 1986).

⁸ See Yauger at 503, 538 N.W.2d at 841, rev'd on other grounds, 206 Wis. 2d at 88 n.3, 557 N.W.2d at 65; see also Matter of Anderson, 17 Wis. 2d 380, 17 N.W.2d 360 (1962)(noting although it is not uncommon for defendants to make settlement agreements directly with a minor's parents, defendants who do such are "taking a calculated risk," and courts generally will not enforce such settlement and release agreements); Halbam v. Lemke, 99 Wis. 2d 241, 198 N.W.2d 562 (1980)(minor's contracts for nonnecessities are voidable at the minor's option); ß 807.01, Stats. (requiring court approval of post-injury release and settlement agreements); Arnold, 111 Wis. 2d at 214-15, 330 N.W.2d at 779 (one spouse cannot release the other spouse's loss of consortium claims).

⁹ Eder v. Lake Geneva Raceway Inc., 187 Wis. 2d 596, 606, 523 N.W.2d 429, 432 (Ct. App. 1994).

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