Case Law Update: Bifurcation on Issues of Liability and Damages/Recreational Immunity - Social Guest Exception

WDC Journal Edition: December 2001
By: Civil Trial Counsel of Wisconsin

Waters v. Pertzborn
___ Wis.2d ___, 627 N.W.2d 497 (2001)
Decided June 14, 2001

Christopher Waters, 10 years old, had been playing with Kathleen Pertzborn, 11 years old, at the Waters' home. At some point in the afternoon the two children left to go to the Pertzborn home. Christopher testified at a deposition that Kathleen suggested they go to her house. The children began sledding down a hill in the Pertzborn's front yard. At the base of the hill, the Pertzborn property abuts Hilltop Drive. Diane Pertzborn, Kathleen's mother, admonished the children not to sled down the hill without anyone watching for cars. Later that day, Diane Pertzborn called Kathleen in for supper. Diane and Kathleen believed Christopher had gone home even though the children made plans to go to the schoolyard to sled following dinner. Christopher stayed on the property and eventually began to sled down the hill. On one of his sled rides, he crossed onto Hilltop Drive and was struck by a passing vehicle.

Christopher brought suit against the Pertzborns and their insurer. The defendants moved for summary judgment alleging the recreational immunity statute applied to the situation. The plaintiff argued that the "social guest" exception applied because Christopher had been expressly and individually invited to the Pertzborns by Kathleen. The defendants also moved for a bifurcated trial. The trial court denied the summary judgment motion indicating there was a genuine issue of material fact as to whether the "social guest" exception applied. The trial court also granted the motion to bifurcate the issues of liability and damages. The court made clear the issues would be decided by different juries.

The supreme court determined that the trial court was precluded by statute from bifurcating the issues of liability and damages. The supreme court reviewed the legislative history of Wis. Stats. 805.05(2) and noted the statute does not provide for bifurcation of issues and the omission was intentional. In addition, Wis. Stats. 805.09(2) requires that a valid jury verdict requires agreement by 5/6 of the jurors on all issues necessary to sustain a claim.

The supreme court sustained the trial court's ruling that there were issues of material fact with regard to whether the recreational immunity statute applied. Recreational immunity protects a property owner from liability to or caused by a person engaging in recreational activity on the owner's property. The "social guest" exception invalidates the immunity to invited social guests under certain circumstances. The supreme court determined that Kathleen Pertzborn had the authority to invite Christopher since she was a resident of the property. Even though the Pertzborns did not realize Christopher was waiting for Kathleen to finish dinner, they did know the children intended to go to the schoolyard following dinner and that created a reasonable inference for a jury to conclude that Kathleen understood Christopher was waiting for her outside. The fact that the accident occurred on the road and not on the Pertzborn's property did not invalidate the "social guest" exception. Christopher was injured while engaged in the continuous act of sledding that began on the Pertzborn property. Therefore, the social guest exception extends beyond the property in a case such as this.