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Warleggen's Waiver Case Study

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Warleggen’s waiver is valid under public policy because it clearly, unambiguously, and unmistakably informed the Poldarks of what was being waived. The injuries sustained by the Poldarks are consistent with those injuries covered within the waiver they signed prior to spelunking. The waiver covers Mr. Poldark’s injuries within the “RISKS ASSOCIATED WITH THE SPELUNKING . . .” language of the text.
A waiver must clearly, unambiguously, and unmistakably inform a signer of what is being waived. Atkins v. Swimwest Family Fitness Ctr., 2005 WI 4 ¶ 18. A waiver must be unambiguous as to which rights are waived. Yauger v. Skiing Enterprises, INC., 206 Wis. 2d 76, 557 N.W.2d 60. A waiver may only release claims of negligence, and cannot preclude claims …show more content…

Warleggen’s waiver distinguishes itself from the waiver in Roberts in that Warleggen’s waiver includes activity leading up to spelunking and cave tours, like the “car or van travel to and from the site”, while also including the phrase “ordinary negligence” directly in the types of risks that are included in spelunking. In Roberts, it was unclear to the court if the waiver covered activities before and after entering the hot air balloon. Unlike in Brooten, Warleggen’s waiver does not followed the term “negligence” with “OR ANY OTHER CAUSE.” Warleggen’s decision to omit that phrase precludes the possibility for an overly broad interpretation, like construing the waiver to release incidents involving recklessness and intentional conduct. If the waiver was overly broad and extended beyond ordinary negligence, the clause would be invalid under public policy. The waiver also includes “… ALL RISK[S] ASSOCIATED WITH SPELUNKING OR CAVING EXCURSION…,” which would seem to cover reckless or intentional conduct, but the sentence preceding it describes what “spelunking or caving excursion” activities are and clearly states only “ordinary negligence” is included. The waiver sets out the common activities included in spelunking and cave excursions, while also specifically covering the activities that are common to spelunking. Furthermore, the waiver language “Risks include, but are not limited to. . .” advised the Poldarks that there were other risks to contemplate, distinguishing itself from the Atkins’ waiver which made it difficult to ascertain what was in the plaintiff’s and the defendant’s contemplation. Warleggen’s waiver is clear as to what is covered; it is unambiguous as to what key terms mean; and it is unmistakable as to the injuries suffered by the Poldarks and the injuries that are covered. Since the waiver meets the requirements set forth,

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