Brett K. Becker v. Nova Casualty Company

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 4, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP410 Cir. Ct. No. 2019CV9

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

BRETT K. BECKER AND ZACHARY G. HINTZE,

PLAINTIFFS-APPELLANTS,

V.

NOVA CASUALTY COMPANY AND GRANITE PEAK CORPORATION,

DEFENDANTS-RESPONDENTS,

BLUE CROSS BLUE SHIELD OF ILLINOIS AND UNITED HEALTHCARE
INS. CO.,

SUBROGATED DEFENDANTS.

APPEAL from an order of the circuit court for Marathon County:
MICHAEL K. MORAN, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.
No. 2024AP410

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Brett K. Becker and Zachary G. Hintze appeal an
order granting summary judgment to Nova Casualty Company and Granite Peak
Corporation.1 Becker and Hintze were injured while traversing a ski jump at
Granite Peak’s ski hill. Although they each signed an exculpatory agreement
before skiing, they argue that the agreement is unenforceable on public policy
grounds. They also argue that the exculpatory agreement does not bar their claims
against Granite Peak because there is a genuine issue of material fact as to whether
Granite Peak acted recklessly, as opposed to merely negligently. We reject Becker
and Hintze’s arguments and affirm.

BACKGROUND

¶2 On January 4, 2016, Becker and Hintze were seriously injured on a
ski jump called “Sky High” at a ski hill owned by Granite Peak. At the time of the
accidents, both Becker and Hintze were nineteen years old, were enrolled in
college, and were experienced skiers.

¶3 On the day of the accidents, Becker was injured first, at about
2:15 p.m. Following Becker’s accident, the Sky High jump was closed for a time
but was later reopened. Hintze’s accident then occurred at approximately
5:10 p.m. Following Hintze’s accident, Granite Peak shut down and redesigned

1
Throughout the remainder of this opinion, we refer to Granite Peak Corporation,
individually, as “Granite Peak.” We also refer to Granite Peak and its insurer, Nova Casualty
Company, collectively as “Granite Peak” when discussing arguments made or actions taken by
them in the underlying litigation and on appeal.

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the jump, doubling the length of the “deck”—that is, the beginning of the landing
area—from fifteen feet to thirty feet.

¶4 Prior to entering the ski area on the day of the accidents, Becker and
Hintze each signed a document entitled “Granite Peak Lift Ticket Release of
Liability & Parent Agreement 2015-2016” (hereinafter, “the Release”). We
discuss the Release’s terms in detail below. Becker and Hintze were each offered
the opportunity to avoid signing the Release by paying an additional fifteen
dollars, above the normal lift ticket price. Neither of them exercised that option.

¶5 Becker and Hintze filed suit against Granite Peak in January 2019,
asserting claims for ordinary negligence; for negligent hiring, training,
supervision, and/or retention; and for violating the Safe Place Statute, WIS. STAT.
§ 101.11 (2021-22).2 Their complaint also sought punitive damages.

¶6 Becker and Hintze ultimately filed a motion for declaratory
judgment, asking the circuit court to declare that the Release was unenforceable as
against public policy. Following briefing, the court denied the motion, concluding
that the Release was enforceable under the two-step test set forth in Roberts v.
T.H.E. Insurance Co., 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492. The court
also cited Schabelski v. Nova Casualty Co., 2022 WI App 41, 404 Wis. 2d 217,
978 N.W.2d 530, noting that in that case, the court of appeals upheld an
exculpatory agreement that was “nearly identical” to the Release.

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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¶7 After the circuit court denied Becker and Hintze’s motion for
declaratory judgment, Granite Peak moved for summary judgment, arguing that
the Release was enforceable and barred all of Becker and Hintze’s claims. In its
summary judgment brief, Granite Peak acknowledged that an exculpatory contract
“cannot release reckless or intentional acts.” Granite Peak asserted, however, that
Becker and Hintze’s complaint did not allege any reckless or intentional conduct.

¶8 In opposition to Granite Peak’s summary judgment motion, Becker
and Hintze again argued that the Release was unenforceable. In addition, Becker
and Hintze argued that the circuit court should deny Granite Peak’s summary
judgment motion because “liability waivers do not apply to recklessness and a jury
could reasonably find that Granite Peak acted recklessly under the facts.”
(Formatting altered.)

¶9 The circuit court issued a written decision granting Granite Peak’s
summary judgment motion. At the outset, the court stated that it was not
“revisiting the validity or enforceability of” the Release, as that issue had “already
been decided.” Accordingly, the court stated that the only remaining question was
whether Granite Peak had acted recklessly, as liability for recklessness cannot “be
avoided by an exculpatory contract.” The court then concluded that Becker and
Hintze’s recklessness argument was not supported by the evidence they had
submitted. In particular, the court concluded that Becker and Hintze’s “proof does
not support the conclusion that Granite Peak consciously disregarded an
unreasonable and substantial risk of serious bodily harm to another.”

¶10 Consequently, the circuit court determined that the Release barred
all of Becker and Hintze’s claims against Granite Peak, and the court therefore
granted Granite Peak’s motion for summary judgment. The court subsequently

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entered an order dismissing all of Becker and Hintze’s claims, and this appeal
follows.

DISCUSSION

¶11 We independently review a grant of summary judgment, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where
“there is no genuine issue as to any material fact and … the moving party is
entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2). When
reviewing a circuit court’s summary judgment ruling, we construe the facts and all
reasonable inferences from those facts in favor of the nonmoving party.
Strozinsky v. School Dist. of Brown Deer, 2000 WI 97, ¶32, 237 Wis. 2d 19, 614
N.W.2d 443.

¶12 In this case, our review of the circuit court’s summary judgment
ruling also requires us to determine whether the Release is valid and enforceable.
“The validity of an exculpatory contract is reviewed as a matter of law.” Roberts,
367 Wis. 2d 386, ¶22.

I. Enforceability of the Release

¶13 “Wisconsin law does not favor exculpatory releases because ‘they
tend to allow conduct below the acceptable standard of care applicable to the
activity.’” Schabelski, 404 Wis. 2d 217, ¶27 (citation omitted). Consequently, we
“construe such releases strictly against those who seek to rely on them.” Id.

¶14 In Roberts, our supreme court identified a two-step process for
determining whether a release is enforceable. See Schabelski, 404 Wis. 2d 217,
¶28 (citing Roberts, 367 Wis. 2d 386, ¶49). First, we must examine the facts and

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circumstances surrounding the release to determine whether the release covers the
activity at issue. Id. “If the activity is not covered by the release, then the release
‘should be determined to be unenforceable in regard to such activity.’” Id.
(citation omitted). “If the release does cover the activity in question, then we
proceed to the second step of determining whether the release is enforceable under
public policy.” Id.

¶15 Here, Becker and Hintze do not dispute that the release covers the
activity in question—that is, their use of ski jumps at Granite Peak. We therefore
turn to the second step of the Roberts analysis—i.e., whether the release is
enforceable under public policy. “Public policy refers to the ‘principle of law
under which freedom of contract or private dealings is restricted by law for the
good of the community.’” Schabelski, 404 Wis. 2d 217, ¶29 (citation omitted).
When performing a public policy analysis, we must attempt “to balance the
tension between contract law, which seeks to protect the ability to ‘manage [one’s]
own affairs without government interference,’ and tort law, which seeks to deter
conduct below the standard of care and compensate persons injured by the
unreasonable conduct of others.” Id. (alteration in original; citation omitted).

¶16 Wisconsin courts have identified various principles that are relevant
to determining whether a release is enforceable under public policy. For instance,
the release “must clearly, unambiguously, and unmistakably inform the signer of
what is being waived” and “must alert the signer to the nature and significance of
what is being signed.” Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 84, 557
N.W.2d 60 (1996). Related to these factors, our supreme court has considered
whether an exculpatory agreement “is overly broad and all-inclusive”; whether the
agreement “serv[es] two functions” and does not require “a separate signature for
the exculpatory clause, thus not sufficiently highlighting that clause”; and whether

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the signer had an “opportunity to bargain or negotiate in regard to the exculpatory
language in question.” Atkins v. Swimwest Fam. Fitness Ctr., 2005 WI 4, ¶18,
277 Wis. 2d 303, 691 N.W.2d 334; see also Richards v. Richards, 181 Wis. 2d
1007, 1017-20, 513 N.W.2d 118 (1994).

¶17 We begin our analysis by setting forth the material terms of the
Release. The Release is a single-page document bearing the title “GRANITE
PEAK LIFT TICKET RELEASE OF LIABILITY & PARENT
AGREEMENT 2015-2016” in capital letters and bold type at the top of the page.
Immediately below the title, the Release states in capital letters and bold
type: “PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A
RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL
RIGHTS.” Underneath that admonition, the Release states:

I understand that skiing in its various forms, including
snowboarding, involves risks, dangers, and hazards that
may cause serious personal injury or death and that injuries
are a common and ordinary occurrence. Risks include, but
are not limited to, changes in terrain, weather and snow
surfaces, ice, moguls, bare spots, rocks, stumps, debris,
fences, posts, trees, lift equipment and towers, the operation
of chairlifts, and chairlift loading, riding, and unloading
operations, including the presence or absence of restraint
bars on the chairs, light poles, signs, buildings, ramps,
roads and walkways, terrain features, including rails, boxes,
corrugated pipes, cylinders, dance floors, wall rides, rollers,
and table tops and other jumps, including their height, the
location of the start point, and the angle of their approaches
and the angle and length of their take-off ramps and landing
areas, and other terrain features, padded and non-padded
obstacles, snowmaking, grooming, and snowmobile
equipment and operations, and collisions with other persons
and other natural and man-made hazards, including
collisions with people and obstacles adjacent to and off the
skiable terrain, such as snowmaking pipes, hydrants, guns,
wands, and other snowmaking equipment, rocks and trees,
and improperly-adjusted and malfunctioning equipment. I
acknowledge the risks in the sport of skiing can be greatly
reduced by taking lessons, abiding by the Skier

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Responsibility Code (known as Your Responsibility Code),
obeying the Wisconsin Skier Safety Act, and using
common sense.

¶18 The next paragraph of the Release addresses the signer’s release of
Granite Peak from liability for personal injury caused by Granite Peak’s
negligence with respect to particular activities. Specifically, the Release states:

In consideration of the purchase of a lift ticket for Granite
Peak and use of its facilities, I RELEASE AND FULLY
DISCHARGE Granite Peak Corporation, its owners,
officers, shareholders, agents, and employees
(collectively the “GRANITE PEAK RELEASEES”)
from any liability resulting from any personal injury to
myself, including death, which is caused by any
NEGLIGENT ACT OR OMISSION of any GRANITE
PEAK RELEASEE with respect to:

 the design, location, construction, inspection, and
maintenance of trails, ski runs, and slopes, including
their grooming and modifications to their natural
steepness and pitches;

 the design, location, construction, inspection, and
maintenance of rails, boxes, tube jams, table tops,
step-up and step-down jumps, and other jumps,
including their height, their start location, the angle of
their approaches and the angle and length of their
take-off ramps and landing areas;

 grooming, snowmaking, and snowmobile equipment
and operations;

 the operation of chairlifts, and chairlift loading, riding,
and unloading operations, including the presence or
absence of restraint bars on the chairs;

 the padding or non-padding of natural and man-made
obstacles and hazards on, adjacent to, or off the skiable
terrain;

 the posting or failure to post warnings, signs, and the
construction of fences or other barriers, including the
selection of the construction materials, or the failure to
construct fences or other barriers;

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 the classification and labeling of trails, ski runs, and
terrain features; and

 the presence of snowmaking pipes, hydrants, guns,
wands, other snowmaking equipment, light posts, rocks,
and trees adjacent to the ski runs.

I accept full responsibility for any personal injury which
may result from my participation in the sport, and I hereby
HOLD HARMLESS the GRANITE PEAK RELEASEES
for any personal injury sustained by me, including death,
caused by the negligence of any GRANITE PEAK
RELEASEE while participating in the sport. I agree not to
bring any action or lawsuit against any GRANITE
PEAK RELEASEE for any personal injury caused by
the NEGLIGENCE of any GRANITE PEAK
RELEASEE.

¶19 The Release then clarifies that, in accordance with Wisconsin law,
“nothing in this Release should be construed as releasing, discharging, or waiving
any claims I may have for reckless or intentional acts on the part of any
GRANITE PEAK RELEASEE.” The Release further provides:

I understand that for a fee of $15.00 per person per day in
addition to the normal lift ticket price, Granite Peak offers
an optional lift ticket that does not require me to sign a
Release of Liability. In signing this Release of Liability, I
acknowledge I am aware of this option offered by Granite
Peak and hereby waive my right to purchase the same.

¶20 Finally, immediately above the signature lines, the Release states in
capital letters and bold type:

I HAVE CAREFULLY READ THIS LIFT TICKET
RELEASE OF LIABILITY AND UNDERSTAND ITS
CONTENTS. I AM AWARE THAT BY SIGNING
THIS RELEASE OF LIABILITY, I AM WAIVING
CERTAIN LEGAL RIGHTS, INCLUDING THE
RIGHT TO SUE GRANITE PEAK CORPORATION,
ITS OWNERS, OFFICERS, SHAREHOLDERS,
AGENTS OR EMPLOYEES FOR CERTAIN
CLAIMS.

CAUTION: READ BEFORE SIGNING!

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No. 2024AP410

THIS DOCUMENT AFFECTS YOUR LEGAL
RIGHTS AND WILL BAR YOUR RIGHT TO SUE!

¶21 When considered in its entirety, the Release clearly and
unambiguously informed Becker and Hintze of what was being waived and alerted
them to the significance of what was being signed. See Yauger, 206 Wis. 2d at 84.
As an initial matter, the Release repeatedly informed Becker and Hintze that it was
a release of liability. It expressly directed them—in two places, and in capital
letters and bold type—to read the document before signing.

¶22 Furthermore, the Release informed Becker and Hintze that skiing
involves risks, dangers, and hazards that may cause personal injury. It then listed
a number of specific risks and stated that Becker and Hintze “acknowledge[d]”
that those risks could be reduced by taking certain actions.

¶23 Next, the Release stated, in bold type, that Becker and Hintze
released Granite Peak from liability for personal injury caused by “any negligent
act or omission” of Granite Peak with respect to specific activities listed in eight
separate bullet points. One of those bullet points specifically referred to “the
design, location, construction, inspection, and maintenance of … step-down
jumps, and other jumps, including their height, their start location, the angle of
their approaches and the angle and length of their take-off ramps and landing
areas.”3 After listing those specific activities, the Release stated, in bold type, that
Becker and Hintze agreed not to bring any action or lawsuit against Granite Peak
for any personal injury caused by its negligence. The Release then specifically

3
The circuit court determined that the Sky High jump was a step-down jump, and
Becker and Hintze do not argue otherwise on appeal.

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clarified that Becker and Hintze were not releasing any claims against Granite
Peak based on its intentional or reckless conduct.

¶24 Finally, the Release stated, in capital letters and bold type, that
Becker and Hintze had read the Release and were aware that, by signing it, they
were “waiving certain legal rights, including the right to sue Granite Peak … for
certain claims.” (Formatting altered.) Immediately before the signature lines, the
Release stated: “THIS DOCUMENT AFFECTS YOUR LEGAL RIGHTS
AND WILL BAR YOUR RIGHT TO SUE!”

¶25 These provisions clearly and unambiguously informed Becker and
Hintze that they were waiving their right to sue Granite Peak to recover for
personal injuries caused by Granite Peak’s negligence with respect to certain,
enumerated activities, including Granite Peak’s design, location, construction,
inspection, and maintenance of step-down jumps. The Release also alerted Becker
and Hintze to the significance of what was being signed by using capital letters
and bold type to emphasize important provisions, by repeatedly stating that the
document was a release of liability and affected their legal rights, and by twice
cautioning Becker and Hintze to read the document before signing it.

¶26 Moreover, we note that the Release served a single function—that is,
releasing Granite Peak from liability for personal injuries resulting from Granite
Peak’s negligence related to certain, enumerated activities. Unlike the exculpatory
contract in Atkins, the Release did not “serv[e] two functions” without requiring
“a separate signature for the exculpatory clause.” See Atkins, 277 Wis. 2d 303,
¶18.

¶27 Furthermore, the record shows that Becker and Hintze had an
“opportunity to bargain or negotiate in regard to the exculpatory language in

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question.” See id. As noted above, the Release specifically informed Becker and
Hintze that, for an additional fee, they could purchase “an optional lift ticket that
[would] not require [them] to sign a Release of Liability.” In Schabelski, this
court concluded that a form release sufficiently afforded customers the opportunity
to bargain when it “allowed them to select one of two sets of terms: (1) the base
ticket price in exchange for the release or (2) a higher ticket price with no release.”
Schabelski, 404 Wis. 2d 217, ¶61. That is precisely what happened here.

¶28 Becker and Hintze nevertheless argue that the Release is
unenforceable on public policy grounds for three reasons. First, they contend that
Granite Peak’s conduct created an unreasonable risk of harm and that the Release
is unenforceable when viewed in conjunction with Granite Peak’s history of
accidents. This argument fails because Becker and Hintze cite no legal authority
directly supporting it. In particular, they cite no legal authority supporting their
assertion that the Release was required “to alert skiers to the high number of
injuries on the jumps at Granite Peak and on the jump in question.”

¶29 Instead, Becker and Hintze cite Richards, claiming that case requires
us to consider “the totality of the factors and issues involved” when determining
whether a release is enforceable. However, nothing in Richards requires a court
to consider whether a release informed customers of prior injuries or accidents.
Instead, the Richards court concluded that the release in that case was
unenforceable because: (1) it served two purposes, which were not clearly
identified or distinguished; (2) it was “extremely broad and all-inclusive”; and
(3) it was a standard agreement on a printed form, which “offer[ed] little or no
opportunity for negotiation or free and voluntary bargaining.” Id. at 1011. The
factors that rendered the release in Richards unenforceable are not present here.

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¶30 Second, and relatedly, Becker and Hintze claim that the Release is
misleading because it fails to inform skiers that Granite Peak’s jumps are
“especially dangerous.” (Formatting altered.) In support of this assertion, Becker
and Hintze cite Eder v. Lake Geneva Raceway, Inc., 187 Wis. 2d 596,
523 N.W.2d 429 (Ct. App. 1994). That case, however, is materially
distinguishable.

¶31 In Eder, the plaintiffs were injured while watching a motorbike race
at Lake Geneva Raceway when one of the vehicles left the racetrack and struck
them. Id. at 601-03. Before the race, both plaintiffs had signed a document
purporting to release the track owner from liability for personal injury “whether
caused by the negligence of the releasees or otherwise while the undersigned is in
or upon the restricted area.” Id. at 602-03. We concluded that the release was
unenforceable because the undisputed facts showed that neither plaintiff had a
“meaningful opportunity” to read the release before signing it and because the
plaintiffs were not “given answers in response to their inquiries about the form.”
Id. at 606. We held that, “at a minimum, the plaintiffs should have had an
opportunity to read and ask questions about the terms releasing liability.” Id. at
607.

¶32 We also concluded that, when signing the release, the plaintiffs
“could [not] have contemplated … the risk of a motorbike leaving the track and
injuring them, even if they had read the form.” Id. at 609. We noted that the
plaintiffs had never been to the racetrack before the accident and “could not have
inspected the racetrack grounds before signing because they were not allowed into
the grounds unless they signed the form.” Id. We therefore concluded “that the
bargain [would] not be enforced simply because of the dangerous nature of the
sport. Significant familiarity with the dangers involved plus knowledge of the

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terms of the release are necessary conditions precedent. These conditions are
lacking here.” Id. at 609-10.

¶33 Eder is materially distinguishable because, unlike the plaintiffs in
that case, there is no evidence that Becker and Hintze were not given the
opportunity to read the Release and ask questions regarding its terms before
signing it. Moreover, while the plaintiffs in Eder had no reason to anticipate the
risk of a motorbike leaving the track and injuring them, here, the Release
specifically informed Becker and Hintze that ski jumps—including step-down
jumps like the one at issue in this case—involve “risks, dangers, and hazards that
may cause serious personal injury or death” and that “injuries are a common and
ordinary occurrence.” Furthermore, it is undisputed that both Becker and Hintze
were experienced skiers at the time of their accidents. In addition, Hintze
specifically testified at his deposition that he knew on the day of his injury that he
could “get hurt” while traversing a ski jump. On this record, there is no basis to
conclude that Becker and Hintze lacked “[s]ignificant familiarity with the dangers
involved” in traversing ski jumps, even if they were not specifically aware of the
number of accidents that had previously occurred on Granite Peak’s jumps.4 See
id. at 610.

4
Becker and Hintze also assert that, similar to the plaintiffs in Eder v. Lake Geneva
Raceway, Inc., 187 Wis. 2d 596, 523 N.W.2d 429 (Ct. App. 1994), they had no opportunity to
“inspect the runs or the landing areas before signing” the Release. However, Becker and Hintze
have provided no record citation in support of this assertion. In particular, they cite no evidence
showing that they asked to perform an inspection before signing the Release and were denied the
opportunity to do so.

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No. 2024AP410

¶34 Third, Becker and Hintze argue that the Release is overly broad and
ambiguous. In support of this argument, they focus on the paragraph of the
Release that states:

I accept full responsibility for any personal injury which
may result from my participation in the sport, and I hereby
HOLD HARMLESS the GRANITE PEAK RELEASEES
for any personal injury sustained by me, including death,
caused by the negligence of any GRANITE PEAK
RELEASEE while participating in the sport. I agree not to
bring any action or lawsuit against any GRANITE
PEAK RELEASEE for any personal injury caused by
the NEGLIGENCE of any GRANITE PEAK
RELEASEE.

Becker and Hintze argue that this language is “confusing” and “purports to release
Granite Peak from liability for any reason.”

¶35 This court recently rejected the same argument in Schabelski, a case
involving a nearly identical release that contained the same language quoted in ¶34
of this opinion. See Schabelski, 404 Wis. 2d 217, ¶48. In Schabelski, we
concluded that the release, as a whole, was not overly broad or ambiguous. First,
we noted that the release “expressly applie[d] only to negligent conduct” and
specifically stated that it should not be construed as releasing any claims based on
reckless or intentional acts. Id., ¶50.

¶36 Second, we reasoned that “rather than asking participants to assume
all risks associated with skiing or snowboarding at [the defendant ski hill], the
release specifically identifie[d] the categories of negligent conduct which it
cover[ed] in the bulleted statements.” Id., ¶51. We rejected the plaintiffs’
argument that the same language quoted in ¶34 of this opinion rendered the release
ambiguous or overly broad as to which specific rights and claims were being
released. We explained that that language

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consists of two sentences that memorialize complementary
obligations that ensure compliance with the release. In the
first sentence, the [plaintiffs] agree to hold the [releasees]
harmless for injuries caused by the releasees’ negligence.
In the second sentence, the [plaintiffs] promise not to bring
a lawsuit against any of the [releasees] for injuries caused
by the releasees’ negligence.

When read together with the preceding paragraph that
contains the actual promise to release from liability, these
two sentences impose obligations that correspond to, and
are coterminous with, the release obligation. That is to say,
the [plaintiffs] (1) agree to release the [releasees] from
liability for certain, specified negligent conduct; (2) agree
to comply with the release by holding the [releasees]
harmless from such negligence liability; and (3) agree not
to sue the [releasees] for the negligent conduct that has
been released.

Id., ¶¶53-54. Our decision in Schabelski forecloses Becker and Hintze’s claim
that the language quoted in ¶34 of this opinion renders the Release ambiguous or
overly broad as to which rights and claims are being released.

¶37 In support of their ambiguity argument, Becker and Hintze also cite
the language at the end of the Release stating that the signer acknowledges
waiving “certain legal rights” and the right to sue Granite Peak for “certain
claims.” (Formatting altered.) Becker and Hintze emphasize that the Release fails
to define the phrases “certain legal rights” and “certain claims.” We agree with
Granite Peak, however, that when those phrases are read in context with the rest of
the Release, the only reasonable interpretation is that they refer to the right to
bring claims against Granite Peak for its negligence with respect to the activities
specifically listed in the eight bullet points earlier in the Release.

¶38 Becker and Hintze also claim that the Release is overly broad
because its first full paragraph lists “at least fifty-five types of hazards” that are
“risks” covered by the Release. (Formatting altered.) Becker and Hintze,

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No. 2024AP410

however, misread the paragraph in question. The first full paragraph of the
Release merely informs the signer that skiing involves certain risks, which may
cause serious personal injury or death. That paragraph does not purport to release
Granite Peak from liability for each of the risks listed therein. Instead, the next
paragraph of the Release specifically sets forth the activities for which the signer
releases Granite Peak from liability for its negligence—i.e., the activities
enumerated in the eight bullet points.

¶39 For all of these reasons, we conclude that the Release is enforceable
and therefore bars Becker and Hintze’s claims based on Granite Peak’s alleged
negligence. We therefore turn to Becker and Hintze’s argument that the circuit
court erred by granting Granite Peak summary judgment because there is a
genuine issue of material fact as to whether Granite Peak engaged in reckless, as
opposed to merely negligent, conduct.

II. Recklessness

¶40 It is undisputed that an exculpatory contract may not release a party
from tort liability for reckless conduct. See Kellar v. Lloyd, 180 Wis. 2d 162, 183,
509 N.W.2d 87 (Ct. App. 1993). Recklessness “contemplates a conscious
disregard of an unreasonable and substantial risk of serious bodily harm to
another.” Id. at 184. “Conduct which creates a high risk of physical harm to
another is substantially greater than negligent conduct. Mere inadvertence or lack
of skill is not reckless conduct.” Schabelski, 404 Wis. 2d 217, ¶43 (citation
omitted).

¶41 Whether a defendant’s conduct “fulfills a recklessness standard is a
question of law,” which we review de novo. Kellar, 180 Wis. 2d at 183. In the
summary judgment context, this requires us to determine whether the facts, and

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any reasonable inferences from those facts, when viewed in the light most
favorable to the plaintiff, would permit a reasonable jury to conclude that the
defendant acted recklessly. See Werdehoff v. General Star Indem. Co., 229
Wis. 2d 489, 511, 600 N.W.2d 214 (Ct. App. 1999); Schabelski, 404 Wis. 2d 217,
¶¶45-46.

¶42 In the circuit court, in support of their recklessness argument, Becker
and Hintze relied on a “Summary of Prior Ski Patrol Reports at Granite Peak”
from December 7, 2011, through April 9, 2016. Becker and Hintze also submitted
an affidavit of Larry Heywood, a “ski hill management and safety expert.”
Heywood averred that Granite Peak “has a long history of an unusually large
number of ski jump injuries on its jumps.” More specifically, Heywood averred
that “in the four years preceding [Becker’s and Hintze’s] injuries, there were
372 injuries on jumps at Granite Peak that were serious enough for ski patrol to be
called to provide emergency medical services to the injured skiers, including a
tragic fatality on one of its ski jumps.” Based on Heywood’s review of incident
reports from the “days and weeks leading up to” Becker’s and Hintze’s accidents,
he also averred that “there were 3 prior ski jump injuries on” the Sky High jump
“all caused by the prior ski jumpers overshooting the landing area resulting in
head injuries.”

¶43 Heywood also opined that the Sky High jump “was originally
negligently designed, was inherently dangerous, and was unsafe.” He cited the
fact that Granite Peak had doubled the length of the deck following Hintze’s
accident as “further proof that the original design of the jump fell below industry
standards.” He opined that Granite Peak’s failure to “take corrective action to
the … jump prior to” Becker’s and Hintze’s injuries “resulted in a disregard for
[Becker’s and Hintze’s] rights to safety and health.” He further opined that had

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No. 2024AP410

Granite Peak taken corrective action before Becker’s and Hintze’s accidents, “this
tragedy could have been avoided.”

¶44 The circuit court concluded that Becker and Hintze’s evidence did
not permit a conclusion that Granite Peak had acted recklessly. The court noted
that Becker and Hintze’s “recklessness argument relied on the number of accidents
that had occurred on the jump where both of them were injured.” The court
concluded, however, that Becker and Hintze’s recklessness argument was not
supported by the evidence they had submitted. The court explained that Becker
and Hintze

referred to “eight prior injuries on this jump in the same
week,” but during the week in which [they] were
injured …, the summary of ski patrol reports lists only
three prior incidents. Even counting back a week from
[Becker’s and Hintze’s] injuries …, the summary lists only
seven prior incidents.

And it does say “incidents”—to label them all as “injuries”
is not necessarily warranted. (For instance, the description
of the second incident on January 2nd says merely “fell
upon landing,” so to say that anything was injured in that
incident beyond the skier’s pride is to add facts not
contained in the exhibit.)

The court also noted that while Becker and Hintze “asserted that there were three
prior ski jump injuries on the same jump that resulted from overshooting the
landing, and that all three had head injuries,” “the summary of ski patrol reports
does not support that assertion. It mentions only two incidents of overshooting the
landing, and it does not describe the severity of the injuries, if any.” Additionally,
for one of those incidents, the ski patrol report merely stated that the skier “came
down on his back” without mentioning a head injury.

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No. 2024AP410

¶45 The circuit court further reasoned that, “even if there were as many
injuries as [Becker and Hintze] assert, the number of injuries is of limited
evidentiary value, given that the mere fact of an injury tells us nothing about its
cause.” The court explained: “[T]he summary of the first incident on January 2nd
is illustrative: ‘caught edge, fell on top of jump.’ So, too, is the second incident
on January 3rd: ‘attempted to stop unsuccessfully prior to jump, fell upon
landing.’ Granite Peak cannot be responsible for errors by other skiers.”

¶46 On this record, the circuit court concluded that Granite Peak’s
conduct did not “rise above the level of negligence (if that), and thus [fell] short of
qualifying as reckless.” The court explained that the evidence submitted by
Becker and Hintze did not “support the conclusion that Granite Peak consciously
disregarded an unreasonable and substantial risk of serious bodily harm to
another.”

¶47 We agree with the circuit court’s analysis. Becker and Hintze rely
on the summary of ski patrol reports and on Heywood’s affidavit. But Heywood
simply looked at the ski patrol reports from Granite Peak and counted the number
of “incidents” that were reported on its jumps. Heywood did not consider the
particular jump that each skier was using at the time of each incident. As such, he
did not analyze the design of the jumps involved in the reported incidents—not all
of which occurred on the jump at issue in this case. More importantly, Heywood
did not attempt to analyze the causes of any of the incidents. For instance, he did
not consider the skill of each individual skier, the speed at which each skier took
the jump, whether the skier was attempting a trick beyond his or her ability, or
whether the skier took the jump at the wrong angle.

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No. 2024AP410

¶48 As Granite Peak correctly notes, “[t]he fact [that] a skier is injured
on a jump tells us nothing about the design[,] construction or maintenance of the
jump or … the cause of the accident.” We agree with Granite Peak and the circuit
court that, without additional information regarding the circumstances surrounding
the reported incidents, the mere number of incidents that were reported on Granite
Peak’s jumps would not permit a reasonable jury to conclude that Granite Peak
acted recklessly—as opposed to merely negligently—with respect to the design,
construction, and maintenance of the Sky High jump.

¶49 Becker and Hintze argue that the circuit court’s analysis was flawed
because the court failed to draw all reasonable inferences in their favor. We
disagree. The court accepted Becker and Hintze’s evidence regarding the number
of prior incidents that had occurred on Granite Peak’s ski jumps. The court simply
concluded that their evidence, given the deficiencies discussed above, was
insufficient to establish recklessness as a matter of law. Stated differently, the
court concluded that Becker and Hintze’s evidence would not permit a reasonable
jury to conclude that Granite Peak acted recklessly. See Werdehoff, 229 Wis. 2d
at 511. For the reasons explained above, we agree with the court’s conclusion in
that regard.

¶50 Becker and Hintze also argue that the circuit court improperly placed
the burden on them to prove, on summary judgment, that Granite Peak’s conduct
was not reckless. Again, we disagree. As the moving party, it was Granite Peak’s
responsibility to make a prima facie case for summary judgment. See Preloznik v.
City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). On
appeal, Becker and Hintze do not develop any argument that Granite Peak failed to
do so. As a result, the burden shifted to Becker and Hintze “to prove that there
[were] no genuine issues of material fact” as to whether Granite Peak acted

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No. 2024AP410

recklessly. See Central Corp. v. Research Prods. Corp., 2004 WI 76, ¶19,
272 Wis. 2d 561, 681 N.W.2d 178. As explained above, the evidence submitted
by Becker and Hintze failed to meet that standard.

¶51 Becker and Hintze also argue that Heywood’s opinion created a
genuine issue of material fact regarding whether Granite Peak acted recklessly.
They cite Mettler ex rel. Burnett v. Nellis, 2005 WI App 73, ¶11, 280 Wis. 2d
753, 695 N.W.2d 861 (citation omitted), where this court stated, “[A]t summary
judgment, an ‘affidavit setting forth the expert’s opinion is evidence of a factual
dispute’ as long as ‘the opinion is expressed on a matter that is appropriate for
expert opinion and the affiant is arguably an expert....’”5

¶52 As noted above, however, to survive summary judgment, the
nonmoving party must show the existence of a genuine issue of material fact.
WIS. STAT. § 802.08(2); Central Corp., 272 Wis. 2d 561, ¶19. A factual issue is
genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87,
¶32, 236 Wis. 2d 435, 613 N.W.2d 142. As already explained, Heywood’s
opinion would not have permitted a reasonable jury to conclude that Granite Peak
acted recklessly. As such, it did not create a genuine issue of material fact
requiring a trial.

5
In support of their argument that Heywood’s opinion created a genuine issue of
material fact, Becker and Hintze also cite an unpublished, per curiam opinion that was issued by
this court in 1990. That citation clearly violates WIS. STAT. RULE 809.23(3). We admonish
Becker and Hintze’s attorney that future violations of the Rules of Appellate Procedure may
result in sanctions. See WIS. STAT. RULE 809.83(2).

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No. 2024AP410

¶53 Finally, Becker and Hintze repeatedly emphasize the fact that,
following Hintze’s accident, Granite Peak doubled the length of the deck for the
Sky High jump. However, “[w]hen, after an event, measures are taken which, if
taken previously, would have made the event less likely to occur, evidence of the
subsequent measures is not admissible to prove negligence or culpable conduct in
connection with the event.” WIS. STAT. § 904.07 (emphasis added). Becker and
Hintze cite no legal authority to support a conclusion that evidence of Granite
Peak’s modification of the Sky High jump following Hintze’s accident would have
been admissible to show that Granite Peak acted recklessly.

¶54 Based upon the foregoing, we conclude the circuit court properly
determined that Becker and Hintze failed to present sufficient evidence to
establish the existence of a genuine issue of material fact regarding whether
Granite Peak acted recklessly. Consequently, the court properly granted Granite
Peak’s motion for summary judgment and dismissed all of Becker and Hintze’s
claims.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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