The Wisconsin Supreme Court has considered personal injury exculpatory agreements five times in the last 15 years, and each time has found the language used insufficient. A lawyer can create an enforceable exculpatory agreement, but the lawyer must draft such an agreement carefully and give consideration to the circumstances surrounding the signing. The tension between contract and tort law Exculpatory agreements are contracts made before an injury occurs that relieve a party from liability. This area of the law is like a geologic fault line where the great legal tectonic plates of tort law and contract law come together under great pressure. Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity.
Contract law protects justifiable expectations and the security of transactions.
The law of torts is directed toward compensation of individuals for injuries resulting from the unreasonable conduct of another. In trying to accommodate tort and contract concepts, the courts have announced several general rules. The supreme court also has stated often that there are certain circumstances in which an exculpatory agreement will never be enforceable. With these general rules and concepts in mind, this article now turns to how the supreme court has applied these rules in specific personal injury cases. While the statement was true when the school originally drafted the form, it was false when the student signed the release.