Reining In The Risk: Exculpatory Agreements For Wisconsin-Based Equestrian Professionals
Updated: Sep 18
The interplay of case law and Wisconsin’s Equine Immunity Statute provides vital context for the enforceability of exculpatory agreements.
Business owners often ask customers to sign a document that waives the customer’s right to sue if the customer gets injured: that waiver is known as an exculpatory agreement. Such agreements are frequently encountered whenever there is any potential hazard present in the activity, such as bungee jumping, watersports, and skydiving. There is also an element of risk involved in equestrian-related activities, enough so that exculpatory agreements are quite common; however, these agreements rarely receive much attention or care, as many businesses assume they are easily enforced—or that they are entirely protected by various immunity statutes.
Wisconsin courts generally disfavor exculpatory agreements[1] and have historically found them to be contrary to public policy. This does not mean that business owners should throw caution to the wind and abandon their exculpatory agreements. To the contrary, the skepticism from Wisconsin courts should prompt business owners to closely examine their exculpatory agreements and be mindful of following best practices.
Recently, the Wisconsin Court of Appeals held that an exculpatory agreement signed by a snowboarder was enforceable.[2] In that case, the ski hill’s exculpatory agreement carefully addressed the requirements previously set forth in Wisconsin case law. This case demonstrates that exculpatory agreements can be enforceable if particular conditions are met, despite the scrutiny these agreements face in court. As a result, business owners should carefully examine their exculpatory agreements in order to protect their businesses from potential claims.
Drafting an exculpatory agreement so that it has a reasonable probability of being upheld by Wisconsin courts can be tricky. Business owners need to be mindful not to make their exculpatory agreements overbroad, as Wisconsin courts find overbroad agreements to be invalid. Under Wisconsin law, agreements are overbroad if they purport to release all claims because, in that instance, the release does not serve purposes which are clearly identified or distinguished and is therefore overbroad and all inclusive.[3] As a general concept, exculpatory agreements must not be so broad that they would “absolve the defendant from any injury to the plaintiff for any reason.”[4] Consistent with many other states, Wisconsin courts will not uphold exculpatory agreements that purport to release claims for willful, wanton, intentional, and reckless conduct by either explicitly stating so or implicitly through broad language referencing a release of all claims.[5] The public policy that underlies these decisions is sensible; allowing businesses to protect themselves from liability for intentional or reckless acts would encourage—or at a minimum permit—businesses to act with a flagrant disregard for safety.
The issue of whether an exculpatory agreement is considered overbroad goes beyond assessing the agreement’s release of intentional or reckless acts. Exculpatory agreements also must be narrowly tailored and cannot “too broadly define[] the location and actions covered.”[6] One way to address this is by including detailed bullet points identifying specifically what negligent acts are being released. For example, in Schabelski v. Nova Cas. Co., the recent Court of Appeals decision discussing the exculpatory agreement between the ski hill and snowboarder, the court upheld the ski hill’s exculpatory agreement that identified specific acts that it was releasing, such as chairlift loading and unloading.[7] Schabelski, however, is also a cautionary tale that businesses must closely consider what risks their business activities may expose customers to, as risks that are not specifically described will not be released.[8]
Wisconsin has a unique requirement that releasees must be afforded the opportunity to bargain over the terms of the exculpatory agreement.[9] The Wisconsin Supreme Court described this as essential to the freedom to contract, because it is “premised on a bargain freely and voluntarily made through a bargain process that has integrity.”[10] Somewhat confusingly, the decision to participate or decline to participate in the activity is not sufficient opportunity to bargain. Instead, there has to be something more. Unfortunately, courts have not clearly defined what constitutes that “something more” that would sufficiently satisfy the opportunity to bargain requirement. However, in Schabelski, the Court of Appeals held that presenting customers with an option of paying an additional fee to participate in the activity instead of signing the exculpatory agreement constitutes sufficient opportunity to bargain such that this concern is alleviated. Anecdotally, I have never once seen such a provision in liability waivers I have signed personally to participate in activities. Business owners should closely examine their exculpatory agreements to assess whether this requirement is being met.
Immunity Statutes
Several sports, equestrian sports included, have immunity statutes in Wisconsin.[11] These immunity statutes recognize the inherent risk associated with various activities and provide some protection for business owners, but they should not give business owners the impression that business owners do not have exposure for personal injury claims.
Wis. Stat. § 895.481, the Equine Immunity Statute, provides, in part, that:
(2) Except as provided in subs. (3) and (6), a person, including an equine activity sponsor or an equine professional, is immune from civil liability for acts or omissions related to his or her participation in equine activities if a person participating in the equine activity is injured or killed as the result of an inherent risk of equine activities.
(3) The immunity under sub. (2) does not apply if the person seeking immunity does any of the following:
(a) Provides equipment or tack that he or she knew or should have known was faulty and the faulty equipment or tack causes the injury or death.
(b) Provides an equine to a person and fails to make a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided based on the person's representations of his or her ability.
(c) Fails to conspicuously post warning signs of a dangerous inconspicuous condition known to him or her on the property that he or she owns, leases, rents or is otherwise in lawful control of or possession.
(d) Acts in a willful or wanton disregard for the safety of the person.
(e) Intentionally causes the injury or death.
(3m) A person whose only involvement in an equine activity is as a spectator shall not be considered to be participating in the equine activity.
Paragraph 2 of the Equine Immunity Statute sets forth the broad application of the immunity statute and explains that it applies to people, including professionals and sponsors related to their participation in equestrian sports.
The exceptions to the immunity statute are of particular importance to equestrian professionals. First, the statute does not preclude claims for faulty equipment that the professional knew or should have known was faulty. This might include broken billet straps or reins. Second, and likely of greater concern to equestrian professionals, is the exception that relates to a person who “fails to make a reasonable effort to determine the ability of the person to safely engage in an equine activity or to safely manage the particular equine provided based on the person’s representations of his or her abilities.”[12] Interestingly, the statute does not explicitly address whether immunity extends to any assessments the professional may have the participant undertake in order to determine the participant’s ability to safely engage in the activity, and it is unclear how Wisconsin courts would handle such a case. This exception highlights the importance of following the best practices for exculpatory agreements.
Boarding facilities and—in particular—show grounds should also consider that the statute does not provide immunity for persons whose involvement is as a spectator only.[13] While from a practical perspective the risk of a spectator being injured at a horse show or boarding facility is relatively minimal, it certainly exists, and facilities should consider whether they want spectators to sign an exculpatory agreement as well.
Another interesting and open-ended question is whether a lessor of a horse could be liable for a claim related to the negligent assessment of a rider’s ability before leasing a horse to a rider. Leasing horses, both on and off property and on a short term or long-term basis, is extremely common. Based on the plain language of the immunity statute, a lessor may be exposed to potential liability in this regard. Individuals who lease out their horses may consider asking lessors to sign exculpatory agreements along with their lease agreements to cover this potential risk. This also probably applies for horses on sales trials.
Given the nuanced landscape of Wisconsin law surrounding exculpatory agreements and the limitations of immunity statutes, equestrian professionals are urged to revisit and update their agreements to align with best practices. By doing so, they can mitigate potential legal risks and protect their business.
[1] As of 2005, the Wisconsin Supreme Court had considered six exculpatory agreement cases in 25 years and each time found the agreement to be unenforceable. Alexander T. Pendleton, Enforceable Exculpatory Agreements: Do They Still Exist? 78 Wis. Law. 16 (August 2005).
[2] Schabelski v. Nova Cas. Co., 2022 WI App 41, 404 Wis. 2d 217, 978 N.W.2d 530 (exculpatory agreement was enforced but only with respect to the specific scope described in the agreement).
[3] Roberts v. T.H.E. Ins. Co., 2016 WI 20, ¶ 50, 367 Wis. 2d 386, 879 N.W.2d 492.
[4] Id. ¶ 58 (internal alterations omitted).
[5] Brooten v. Hickok Rehab. Servs., LLC, 2013 WI App 71, ¶ 10, 348 Wis. 2d 251, 831 N.W.2d 445 (“It is well-settled that an exculpatory clause … cannot, under any circumstances … preclude claims based on reckless or intentional conduct.”)
[6] Roberts, 367 Wis. 2d 386, ¶ 50.
[7] Schabelski, 404 Wis. 2d 217, ¶ 38.
[8] Id. ¶ 34.
[9] Richards v. Richards, 181 Wis. 2d 1007, 1019, 513 N.W.2d 118 (1994)
[10] Id. at 1016.
[11] Examples include Wis. Stat. § 895.527 (limitations on liability for sport shooting ranges) and Wis. Stat. § 895.526 (limitations on liability for alpine sports).
[12] Wis. Stat. § 895.481(3)(b).
[13] Wis. Stat. § 895.481(3m).
RACHEL POTTER
ATTORNEY AT HUSCH BLACKWELL
Rachel Potter is a commercial litigator in Husch Blackwell’s Milwaukee office. An avid competitive equestrian, she is well-versed in both the legal and practical aspects of risk assessment for equestrian businesses and has experience representing both plaintiffs and defendants in personal injury cases.
This article is from the September issue of Equine Business Magazine
