SAM Magazine—Milwaukee, Wis., July 18, 2022—In a claim involving an unseated passenger who fell from a lift at Sunburst Ski Hill, the Wisconsin Court of Appeals recently ruled that the waiver signed at the time the plaintiff purchased her lift ticket could be enforced for part of the plaintiff’s claim because the day-pass release included bifurcated ticket pricing. Wisconsin law views exculpatory releases with disfavor, making the decision notable.

“This ruling is absolutely critical—not just for the 31 Wisconsin ski areas, but in Oregon where we had a recent $15 million jury verdict from a mountain bike [case] that was, in part, resulting from that state’s law, which does not enforce releases,” explained National Ski Areas Association (NSAA) director of risk and regulatory affairs Dave Byrd. Other ski states that don’t enforce waivers or releases of liability include Vermont, New York, and Virginia, among others.

He credits “this huge legal victory” to Wisconsin ASDA (Association of Ski Defense Attorneys) attorney Tom Terwilliger, who helped pioneer the bifurcated release in the state. 

While there is a strong precedent of invalidating releases in Wisconsin because signers were not afforded an opportunity to bargain over the release terms, in the case of Schabelski vs. Friedl Skiing Ventures, the plaintiff had the option of either signing the release—thus waiving her right to sue for negligence—or paying an extra $10 to not sign a release at the time she purchased her ticket. As such, the appellate court ruled in a June 30 decision that “the release afforded customers an opportunity to bargain …” and was therefore enforceable for part of the plaintiff’s claim.

“It is crystal clear from the ruling that the court would not have upheld the release if the $10 bifurcation option were not offered to skiers,” said Brian Johnson, an ASDA attorney in Minnesota who was not involved in the case. “This court ruling further underscores the importance of offering bifurcated releases to assure that the courts will honor our releases.”

“We will use the Wisconsin ruling as an important foundation in Oregon and elsewhere where we are proposing legislation based on the same legal idea that if you give the guest a choice to pay a small amount more to avoid waiving their right to sue, that ‘opportunity to bargain’ could lead to the enforcement of releases,” said Byrd.

He observed that the proliferation of e-commerce solutions has made it increasingly easy for ski areas to offer bifurcated ticket pricing without stymieing ticket window throughput. “Ski areas really need to invest in these e-commerce and e-waiver systems to take advantage of this great Wisconsin ruling,” he said.   

For more on release loss and the potential of bifurcated releases, see SAM’s discussion with Johnson in “Who’s at Fault Here?” (SAM, July 2022).