The same day he signed the Ski Hill Liability Protection legislation, Gov. Scott Walker also signed into law 2011 Wis. Act 162, which provides immunity from liability to schools for a death or injury that occurs on school grounds when the death or injury results from a recreational activity held on the school grounds pursuant to a recreational agreement between the school board and an individual.

Specifically, the immunity under AB 497 is provided to school boards, school districts, and governing bodies of charter schools, as well as their officers, employees, and agents.

The term “recreational activity” includes “any indoor or outdoor physical activity, sport, team sport, or game, whether organized or unorganized, undertaken for exercise, relaxation, diversion, or pleasure.” The term “recreational agreement” refers to a “written authorization granted by the school to a person permitting public access to the school grounds for a recreational activity.”

The bill does provide an exception for “malicious acts” or “malicious failure to warn” against an unsafe condition.

The original bill was amended to include language providing immunity for volunteers under Wis. Stat. § 893.80. Under current law, § 893.80 imposes certain requirements and certain limitations on claims and damages in a lawsuit brought against a volunteer fire company, political corporation, governmental subdivision, or any officer, official, agent or employee.

As amended, Act 162 provides that an “agent” under § 893.80 also includes a “volunteer,” which is defined under the bill as a person who:

• Provides services or performs duties for, and with the express or implied consent of, a volunteer fire company, political corporation, or governmental subdivision or agency thereof;
• Is subject to the right of control of the volunteer fire company, political corporation, or governmental subdivision or agency thereof; and
• Is not paid a fee, salary, or other compensation by any person for the services or duties described above, other than reimbursement of expenses.

In addition, the bill provides that the procurement or maintenance of insurance or self-insurance by a volunteer fire company, political corporation, or governmental subdivision or agency, irrespective of the extent or type of coverage or the persons insured, shall not do any of the following:

• Constitute a waiver of the provisions of § 893.80; or
• Be relied upon to deny a person status as an officer, official, agent, or employee of the volunteer fire company political corporation, or governmental subdivision or agency that is procuring or maintaining the insurance or self-insurance.

This week, the Wisconsin Assembly passed Senate Bill 388, which expands the “assumption of risk” doctrine to protect ski operators who follow certain safety protocols from lawsuits. The bill will now be sent to the Governor for his signature.

The assumption of risk doctrine provides that when an individual engages in a potentially dangerous activity, that person does so with the knowledge that the activity contains the possibility of injury.

Current law provides that one who has assumed a risk and sustained injury or death from the activity may still recover damages from the responsible party even if the injured party failed to follow prescribed protocols.

Under SB 388, if a ski area operator follows certain safety precautions, the operator will not be responsible for any injuries an individual may suffer while skiing on the operator’s ski hill.

Below are just a few of the duties a ski operator must comply with to obtain liability protection:

• Provide a notice on the ticket or hill pass that the ski hill operator is not liable for any injuries.
• Post signs containing warnings reminding participants of the dangers of skiing. Signs must be at least 10 feet inside the area where tickets are sold, and on slopes, tubing areas, trails, and terrains.
• Provide copies of trail and ski area maps in the ticketing area.

If the ski operator follows these and other requirements, then he or she is not responsible for any injuries sustained by an individual who has assumed the risk of skiing. WCJC supported SB 388.