Prior to the excursion, the Poldarks were each asked to sign a personalized waiver, with spaces for specific names and dates, and were given the opportunity to ask questions about the waiver prior to the excursion. Warleggen never told the Poldarks that they could not participate without signing the release. If the Poldarks had any concerns with the waiver or felt uncomfortable agreeing to the terms, Mr. Warleggen was on hand to assist them or restructure the terms.
A waiver must give the signer an opportunity to bargain to be valid under public policy. Atkins v. Swimwest Family Fitness Ctr., 2005 WI 4, ¶ 26. A waiver cannot require a signer to adhere to the written form’s terms with little or no opportunity to bargain. Id. If a waiver is found to not give the opportunity to bargain or if it forces a signer to adhere to the terms, the waiver will be found to be invalid under public policy. Id. …show more content…
Atkins v. Swimwest Family Fitness Ctr., 2005 WI 4, ¶ 26. The court in Atkins found that because the plaintiff’s deceased mother was forced to sign the waiver if she wanted to swim and because she had little to no opportunity to bargain, the waiver was no valid under public policy. Id. ¶ 26. In Atkins, the plaintiff’s mother was part of a rehabilitation program that was visiting the defendant’s facility. Id. ¶ 4. The plaintiff’s mother was required by the desk attendee to sign a “Guest Registration” form and a “Waiver Release Statement” before swimming. Id. After swimming for a bit, the plaintiff’s mother was seen motionless in the water, and later pronounced dead when CPR failed to revive her. Id. ¶ 7. The court concluded that looking at the totality of the circumstances surrounding the waiver’s execution, the “Guest Registration” failed to meet public policy requirements because it was mandatory prior to entering the pool and she had no opportunity to bargain. Id. ¶ 26,