Does Wisconsin's Recreational Immunity Statute Protect Bicycle Clubs?
Wisconsin has a long history of promoting tourism and outdoor
activities. One of the great joys of living in Wisconsin is the
number of recreational opportunities available, including a
large number of well-kept bicycle trails. These trails are
developed and maintained by the cooperation of local and state
governments, and a number of bicycle clubs with dedicated
members who volunteer their time and energy to making Wisconsin
a bicycle friendly state. Wisconsin's Recreational Immunity
Statute, Wis. Stat. sec 895.52, is intended to promote
recreational activity in Wisconsin by making certain
organizations and individuals immune from liability for injuries
or death caused while a person is engaged in recreational
activities. Although the statute does not directly refer to
"bicycle clubs," it is likely that some bicycle clubs and
organizations fall within the umbrella of protection provided by
the law.
Who is Entitled to Immunity?
The Recreational Immunity Statute protects owners of certain
property, and their officers, employees and agents. The statute
defines "owner" to include a "person... governmental body, or
nonprofit organization that owns, leases or occupies property."
"Owner" also means "a nonprofit organization that has a
recreational agreement with another owner." A "recreational
agreement" is a written authorization granted by an owner to a
nonprofit organization that permits public access to the
property for recreational activities.
What is the Scope of Protection Provided by The Statute?
The Recreational Immunity Statute states that no owner (or any
of its agents) is liable to a person for death or injury caused
by a person engaging in a recreational activity on the owner's
property. It also provides that an owner has no duty to keep the
property safe for recreational activities, inspect the property,
or provide warnings of unsafe conditions.
The term "recreational activity" is defined very broadly in the
statute and has been given an expansive meaning by Wisconsin
courts. A "recreational activity" can include anything from
walking, horseback riding, sightseeing, snowmobiling, skiing, as
well as a number of other activities. Bicycling is specifically
listed as a "recreational activity" in the statute.
Are There Any Exceptions to Immunity?
The law contains a number of exceptions to the immunity it
provides for different classes of "owners." Among other
exceptions, the statute does not protect a non-profit
organization "for a death or injury caused by a malicious act or
malicious failure to warn against an unsafe condition" about
which the organization had knowledge. A "malicious act"
generally requires some form of ill-will towards another person
or intent to harm someone. The statute also carves out several
exceptions for private property owners who collect money for
certain recreational uses of their property. Immunity does not
apply if an injury is caused by an activity that has no
connection to recreational use of the land.
Are Bicycle Clubs Protected by the Statutes?
Wisconsin has a number of bicycle organizations that focus on
different aspects of the sport, including social riding clubs,
racing clubs, touring clubs, mountain bike clubs and trial
building/maintenance clubs. Whether a bicycle club is entitled
to recreational immunity depends on a number of factors,
including its status as a non-profit organization, and the
nature and extent of its activities.
Unfortunately, no case has directly addressed whether a bicycle
club is protected under the statute. However, three Wisconsin
cases involving snowmobile clubs suggest that some bicycle clubs
may fall within the protection afforded by the Recreational
Immunity Statute in certain circumstances. These cases suggest
that a club may be entitled to immunity if it is a non-profit
organization and either "occupies" property by conducting
regular maintenance and building activities or possesses a
"recreational agreement" with the property owner.
In the first case, [Leu v. Price County Snowmobile Trails Ass'n,
2005 WI App 81, 280 Wis. 2d 765, 695 N.W.2d 889 (2004AP1859)]
the Wisconsin Court of Appeals ruled that two snowmobiling
organizations were protected from liability under the
Recreational Immunity Statute when they were sued after a
snowmobile rider was killed by a tree falling across a
snowmobile trail. The Court concluded that the snowmobile clubs
were "occupiers," and therefore "owners," under the statute
because they contracted with the county to build and maintain
the snowmobile trail where the injury occurred and conducted
regular maintenance.
However, in the second case, [Mooney v. Royal Insurance Co. of
America, 164 Wis. 2d 516, 476 N.W.2d 287 (Ct. App. 1991)
(1990AP2445)] the Court of Appeals ruled that a snowmobile club
that held a fundraising race on a town lake was not protected
from liability when a snowmobiler was injured a few days after
the race when he collided with an obstacle left on the course.
Although the club had a permit to conduct the race, it did not
have a recreational agreement and did not lease the land or
regularly maintain it. The club tried to argue that it was an
"occupier" of the lake because it conducted the race a few days
before the injury. The Court of Appeals rejected this argument
and concluded the club was not an "occupier," as it used the
lake only for the race and had "abandoned" the premises by the
time of the injury.
Finally, in the third case , [Held v. Ackerville Snow Club, 2007
WI App 43, 300 Wis.2d 498, 730 N.W.2d 428 (2006AP914)] the Court
of Appeals ruled that a snowmobile club was immune from
liability when a snowmobiler collided with a piece of trail
maintenance equipment that the club left on a trail. The injured
party argued that there should be no immunity because the club
did not have a recreational agreement with the property owner
and was not actively maintaining the trail at the time of
injury. The court disagreed and ruled that the club was immune
from liability as an "occupier" because it conducted regular
trail maintenance and it maintained more than a "transient"
presence on the property. The court stated that it did not
matter that the club was not actively conducting maintenance
work at the time of injury.
The language of Wisconsin's Recreational Immunity Statute and
these three cases suggest that a bicycle club may be entitled to
immunity if it is a non-profit organization and it either:
1. "Occupies" recreational land by regularly building and
maintaining bicycle trails and maintains more than a
"transient" presence on the property; or
2. Possesses a recreational agreement with a local
governmental entity permitting public access to
recreational property for bicycling activities
Under these criteria, it is unlikely that a road riding or
touring club that periodically uses public roadways for club
rides would be protected under the Recreational Immunity
Statute. Occasional use of a public road likely would not
satisfy the occupancy requirement. Also, unless the road has
been withdrawn entirely from transportation purposes, it likely
would not constitute "recreational property."
On the other hand, a non-profit mountain biking club that builds
and/or maintains bicycle trails in a county park may be
protected if it has an agreement with the governmental entity
that owns the recreational property or if it conducts regular
trail maintenance. A good argument can be made that a bicycle
club that regularly maintains a trail system and/or has an
agreement with the landowner should be treated similarly to the
snowmobile clubs in the cases discussed above.
Although a non-profit bicycle club can qualify for immunity by
either "occupying" the land through regular trail maintenance or
by obtaining a "recreational agreement" with the landowner, a
club may want to meet both conditions to ensure protection under
the statute. In order to prove that a club "occupies" land, it
may want to keep a regular log of its building/maintenance
activities and the number of people involved, so that there is
proof that it maintains more than a "transient" presence on the
property. In the end, whether a particular club is entitled to
immunity will depend upon the specific facts of each case and
the nature of the club's activities. Wisconsin courts have
cautioned that "recreational use cases are fact intensive and
that it is possible for a sporting club to be an owner in one
situation and a similar sporting club to fall outside of the
definition of owner in another."
The Recreational Immunity Statute
is not a Substitute for Common Sense
Just because a bicycle club and its members may be entitled to
protection under the Recreational Immunity Statute does not mean
that they should throw caution into the wind when building or
maintaining trails or perform shoddy work. Although a bicycle
club may ultimately win a lawsuit based on the Recreational
Immunity Statute, immunity from liability does not prevent
people from being injured or lawsuits from being filed. While
the statute states there is no duty to inspect, warn, or keep
recreational property safe, the best way for a bicycle club to
avoid a lawsuit is to construct safe trails, conduct regular
maintenance, and warn of hazards so that no one is hurt in the
first place and everyone can safely enjoy the sport.
