Failure to require safety course is not negligence

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Parents are immune for the negligent operation of ATVs by their children on property they own, the Wisconsin Court of Appeals held on Nov. 6.

In 2004, Aaron R. Hardy, the son of Donald and Tonna Hardy, was operating an all-terrain vehicle on property owned by Tonna, when he collided with Gary L. Hoefferle.

Hoefferle accepted $50,000 from the Hardys’ insurer, and signed a “Loy Release/ Covenant Not to Sue.”

Donald, Tonna, and Aaron brought suit against Hoefferle, alleging negligence. The claims of Donald and Tonna were dismissed, but Aaron’s claim remained. Hoefferle counterclaimed against Donald and Tonna, seeking contribution, alleging that Donald and Tonna were negligent for not requiring Aaron to wear a helmet, and for not requiring Aaron to take an ATV safety course.

Summary Judgment

Taylor County Circuit Court Judge Gary L. Carlson granted summary judgment on the counterclaim in favor of the Hardys, holding that the Loy release precluded the action, and that Hoefferle’s claims were barred by statute.

Hoefferle appealed, but the court of appeals affirmed in a decision by Judge Edward R. Brunner.

Because the court found that Hoefferle’s claims for contribution fail on the merits, it declined to address the effect of the Loy release.

The court first concluded that Hoefferle could not assert hat Donald and Tonna were negligent in not requiring Aaron to wear a helmet at the time of the accident.

Section 895.049 provides, in relevant part: “[F]ailure by a person who operates … an all-terrain vehicle … to use protective headgear shall not reduce recovery for injuries or damages by the person or the person’s legal representative in any civil action. This section does not apply to any person required to wear protective headgear under s. 23.33(3g) or 347.485(1).”

Although minors generally must wear a helmet, sec. 23.33(g)(d) provides that a helmet is not required if an ATV “is being operated by a person on land under the management and control of the person’s immediate family.”

Appellate Interpretation

The court interpreted the statutes to not only bar a reduction of recovery for injuries, but also to bar Hoefferle from even asserting the parents’ failure to require Aaron to wear one as negligence in a contribution action.

The court noted that, pursuant to sec. 901.053, Aaron’s failure to wear a helmet would not be admissible evidence. The court concluded, “Where evidence of a person’s failure to wear a helmet is not admissible at trial, it would be impossible for that failure to constitute negligence. The circuit court was therefore correct to conclude that the survival of Hoefferle’s counterclaim could not rest upon Aaron’s failure to wear a helmet.”

The court next concluded that Hoefferle could not assert negligence based on Donald and Tonna’s failure to require Aaron to undergo ATV safety certification.

The court found that while sec. 23.33(5) requires certain persons to obtain an ATV safety certificate (including minors), it contains an exemption for minors operating an ATV on property under the management and control of a member of the driver’s immediate family.

The court thus opined, “Where a person is not required to obtain a safety certificate, we conclude that person cannot be negligent for failing to do so. Hoefferle essentially implies that a jury should be given the opportunity to supplant the legislature’s policy judgment on who should obtain a safety certificate. We disagree.”

Accordingly, the court affirmed.

Case analysis

The decision is problematic, with regard to the court’s holding that the parents’ failure to require their son to take a safety course cannot be claimed as contributory negligence.

The problem arises because the court’s paraphrasing of sec. 23.33(5)(c) lacks a critical word — “exclusively.”

The court wrote, “Aaron was not required to obtain the safety certificate because he was operating the ATV on property under the management and control of his mother, Tonna.”

What the subsection says, however, is as follows: “Paragraphs (a) and (b) do not apply to a person who operates an all-terrain vehicle exclusively on land under the management and control of the person’s immediate family. …(emphasis added).”

At the time of the accident, Aaron was operating the ATV on land owned by his mother.

However, there is nothing in the opinion to suggest that Aaron “exclusively” operated the ATV on land owned by his mother.

Perhaps Aaron did operate the ATV only on his mother’s property, and the issue is therefore irrelevant in this case. In addition, at no point in Hoefferle’s brief does he emphasize the word “exclusively,” so, the court cannot be faulted for not doing so either.

Nevertheless, in future cases, the statute could easily be misconstrued, as a result of the court’s paraphrasing of the statute, without including the word “exclusively.”

The way the opinion states the holding of the case, parents who indisputably allowed their minor child to ride an ATV at will, regardless of whether the parents own the property, would be immune from liability, as long as the accident happens to occur on their property, even though that is not the intent of the statute.

There is another difference between the issue of the helmet law and the safety course provisions that requires further discussion.

Section 895.049 — providing that it cannot be evidence of negligence to not wear a helmet — is contained in Chapter 895, “Damages, Recovery, and Miscellaneous Provisions Regarding Actions in Court.” The mere presence of the statute in this chapter evinces clear legislative intent to limit liability.

Section 23.33, however, is a safety statute, in a chapter devoted to natural resources.

The general rule is that failure to comply with a safety statute is negligence per se.

Totsky v. Riteway Bus Serv., Inc., 2000 WI 29, par. 25, 233 Wis.2d 371, 607 N.W.2d 637.
However, there is no corollary to that general rule to the effect that, if there is no violation of a safety statute, then there can be no negligence, period. However, the court’s analysis suggests that there is.

So, while the court seems to have got the helmet issue correct, problems with its discussion of the safety course discussion make the case a good candidate for further review in the Supreme Court.

Of course, many people would not consider the lia
bility rules involving minors involved in ATV accidents to be an issue of statewide importance warranting further re-view. However, the other issue on which the circuit court decided this case (which the court of appeals did not address) is of importance to all litigators.

The circuit court held that, by accepting $50,000 from the Hardys’ insurer, and executing a “Loy Release/Covenant Not to Sue,” he is barred from seeking contribution from Donald and Tonna Hardy in their son Aaron’s lawsuit against him.

However, language in the Supreme Court’s opinion in Loy v. Bunderson, 107 Wis.2d 400, 320 N.W.2d 175 (1982), suggests that the covenant has no such effect.

In Loy, the court wrote, “A covenant not to sue is to be distinguished from a release in that it is not a present abandonment or relinquishment of the right or claim but is merely an agreement not to sue on an existing claim. It does not extinguish the cause of action.

As between the parties to the agreement, the final result is the same in both cases. The difference is primarily in the effect as to third parties, and is based mainly on the fact that in the case of a release there is an immediate release or discharge, whereas in the other case there is merely an agreement not to prosecute a suit. A covenant not to sue is nothing but a contract, and should be so construed.” Id., 320 N.W.2d at 186-187(quoting 66 Am.Jur.2d, Release, sec. 2, p. 679).”

In this case, Hoefferle is not seeking to prosecute a suit, but only assert a claim for contribution. Thus, the Loy release arguably does not bar him from doing so.

So, if the Supreme Court were to grant certiorari in this case, the court’s opinion would likely not be limited to ATV accidents involving minors, but would have a significant effect on settlements generally.