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Abstract

Across the country, lawyers have searched for the magic formula to draft an exculpatory contract that would successfully exculpate their client in the event someone was injured while participating in a recreational activity sponsored by the client. Some examples of events would include snow skiing, swimming at a guest-only pool, horseback riding, white-water rafting, camping, running in a marathon, visiting a haunted house at Halloween, or a myriad of other events. The uniform standard by which the enforceability of these exculpatory clauses is measured is whether the exculpatory contract is against public policy.

The public policy of any state can be discerned by examining the various statutes passed by the legislature in that particular state. Many states have passed laws that provide immunity from civil liability for the sponsor of various recreational activities provided the sponsor complies with enumerated statutory requirements. This Article examines all the recreational statutes enacted in Wisconsin to discern Wisconsin’s public policy on the enforceability of exculpatory contracts.

The legislature has made clear that absent an overriding public purpose (opening up one’s land for free public use) the legislature is loath to grant civil immunity for a sponsor’s negligent conduct that causes injury to another. The public policy of tort law to provide just compensation to one who has been injured supersedes the contract principle of the party’s freedom of contract. However, even though the public policy is not to permit exculpation for a sponsor’s negligence, it is equally clear that the legislature does permit exculpation for the inherent risks in that activity. Therefore, the primary task of the lawyer in drafting an enforceable exculpatory contract is to clearly specify in the contract those risks inherent to the activity and be able to prove that the participant was aware of those risks at the time of contracting.

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