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Exculpatory contracts are not favored by the law because they tend to allow conduct below the acceptable standard of care. However, exculpatory contracts are not automatically void and unenforceable. Rather, a court closely examines whether such agreements violate public policy and construes them strictly against the party seeking to rely on them.
The father signed an application for a family ski pass which stated that there were certain inherent risks in skiing and that it was agreed that the ski resort would be held harmless on account of any injury incurred by the signatory or his family member on the ski resort premises. The minor died from injuries sustained when she allegedly collided with the concrete base of a chair lift tower at the end of a ski run. The parents of the deceased minor, challenged the decision of a Wisconsin court of appeals, which held that a liability waiver signed by the father effectively relieved defendant ski resort of liability for its alleged negligence in the death of the minor.
Was the exculpatory contract signed by the father valid?
The court held that as a matter of law, the waiver was void as against public policy and, therefore, the clause did not bar the parents' claim against the ski resort. The waiver failed to clearly, unambiguously and unmistakably inform the signer that he was waiving all claims against the ski resort due to its negligence, where it did not use the word "negligence" and the term "inherent risks in skiing" was ambiguous. In addition, the form failed to clearly and unequivocally communicate to the signer the nature and significance of the document being signed, where the form was entitled "application" and there was nothing conspicuous about the paragraph containing the waiver.