Summer in Wisconsin: A Recreational Immunity Update
Summer is here in Wisconsin, and with it brings rising temperatures, sunshine, and all manner of outdoor activities. Although Wisconsin enjoys four distinct seasons, summer presents Wisconsinites and guests of our state with their best chance to get outside and engage in their favorite recreational pursuits. These pursuits, however, are not enjoyed without risk. People sustain unfortunate injuries during recreational activities, and, as a result, owners of recreational property often confront unwelcome personal injury lawsuits. So, as summer arrives in Wisconsin, it brings with it not only a great chance for people to get outside and enjoy their favorite recreational activities, it also presents members of the defense bar with an excellent opportunity to review the recreational immunity statute and two recent Wisconsin court cases applying it.
The first, Wilmet v. Liberty Mutual Ins. Co.,1 represents a victory for the defense bar, as the court of appeals ruled that supervising someone engaged in a recreational activity is itself a recreational activity. The second, John Y. Westmas v. Selective Insurance Company of South Carolina,2 a fully-briefed appeal currently pending before the Wisconsin Supreme Court, will determine whether an independent contractor is entitled to recreational immunity under one of the statutory definitions of “owner.” The purpose of this Article is to explain the components of a recreational immunity defense and assess the potential impact of the Wilmet and Westmascases.
II. The Recreational Immunity Statue and Its Application
Wisconsin’s recreational immunity statute, Wis. Stat. § 895.52, immunizes landowners from liability for negligence in the maintenance and repair of their property when a person is injured while engaged in a recreational activity on the owner’s land. Specifically, § 895.52 provides:
(a) ... [N]o owner and no officer, employee, or agent of an owner owes to any person who enters the owner’s property to engage in recreational activity:
1. A duty to keep the property safe for recreational activities;
2. A duty to inspect the property;
3. A duty to give warning of an unsafe condition, use or activity on the property.
(b) … [N]o owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property.3
The impetus behind the law is simple. As the world becomes increasingly crowded, the public’s access to recreational land shrinks.4 The law seeks to encourage landowners to open their property to recreational use by removing potential causes of action by property users against property owners.5 Thus, the recreational immunity statute accomplishes two important policy goals—it promotes public access to recreational grounds, and it also provides a powerful defense against liability for landowners who accommodate the public’s use of their land.
Application of the recreational immunity defense is a multi-step process. The first step is to determine whether the plaintiff was engaged in a recreational activity at the time of his or her injury. The next step is to determine whether the defendant qualifies as an “owner” of the land where the injury occurred, and whether the defendant’s alleged negligent acts had some connection to the recreational activity for which the land was being used.
Despite its scope, the recreational immunity statute’s protections are not absolute. The statute includes several exclusions to coverage. For example, parties who act maliciously in causing injury to people engaged in recreational activities or landowners engaged in “profit-making” ventures are not immune under the statute. Moreover, the statute itself has been the subject of intense litigation to define the boundaries of what constitutes a “recreational activity,” the types of “owners” covered under the statute, and the types of negligent conduct immunized by the statute. Wisconsin courts have struggled and continue to struggle with applying the statute’s protections to varied factual scenarios as they attempt to balance the legislature’s intent in keeping the statute’s protections broad while imposing reasonable limitations on its application.
This balancing act has been on display in both Wilmet and Westmas, which are discussed below.
A. What Is a Recreational Activity?
The statutory definition of “recreational activity” is multifaceted. The term is generally defined as “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity.”6 The statute then enumerates 29 specific activities considered to be recreational.7 In keeping with the legislature’s broad intent for the statute, there is also a “catchall” provision adding “any other outdoor sport, game or educational activity” to the definition.8 The legislature offered the following explanation when it passed the statute:
While it is not possible to specify in a statute every activity which might constitute a recreational activity, this act provides examples of the kinds of activities that are meant to be included, and the legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability….9
The legislature’s attempt to create a broad definition of “recreational activity” is clear. However, the line between recreational and non-recreational activities under Wis. Stat. § 895.52 has vexed litigants and resulted in more litigation than any other portion of the statute. To assist in this determination, the Wisconsin Supreme Court, in Linville v. City of Janesville,10 adopted what essentially amounts to a totality of the circumstances test:
The test requires examination of all aspects of the activity. The intrinsic nature, purpose and consequence of the activity are relevant. While the injured person’s subjective assessment of the activity is relevant, it is not controlling. Thus, whether the injured person intended to recreate is not dispositive, but why he was on the property is pertinent.11
In other words, each recreational immunity case “poses an intensely fact-driven inquiry.”12 The recent Wilmet case demonstrates this. In Wilmet, Mrs. Wilmet brought her grandchildren to a city-owned pool in De Pere. After dropping them off, she remained outside the premises, supervising her grandchildren from behind the fenced perimeter of the pool as they swam. Mrs. Wilmet’s grandson shouted to her that he was going to jump off the high dive. Mrs. Wilmet observed that there were no lifeguards on duty, so she told her grandson to wait, entered the pool premises without paying the entry fee, and went immediately from the entrance through the locker room and toward the high dive. It was not Mrs. Wilmet’s intention to swim at the pool or to linger on the premises following her grandson’s dive. Unfortunately for Mrs. Wilmet, she tripped on a cement doorstop and injured herself as she walked toward the diving board.
The Wilmets filed suit against the city alleging violation of the safe place statute (Wis. Stat. § 101.11), negligence, and negligence per se. The city invoked the recreational immunity statute and filed for summary judgment on each claim, arguing that Mrs. Wilmet’s activity of supervising her grandson was sufficient to qualify her activity as “recreational” under the statute. The Wilmets opposed the city’s motion on the basis that Mrs. Wilmet was simply walking to get from one place to another and not, for example, to exercise or enjoy the scenery.13
The circuit court agreed with the city and granted its motion for summary judgment. On appeal, the court of appeals affirmed, holding that “‘supervising’ other persons, who are themselves engaged in recreational activities, is a ‘recreational activity’ within the meaning of Wis. Stat. § 895.52(1)(g).”14 In particular, the court concluded that supervising others who are engaged in recreational activities involves an active oversight function, including directing one or more individuals engaging in the activity.15 Thus, the court reasoned that “supervision” was “substantially similar” to “practice” and “instruction” in a recreational activity, which the legislature specifically included within the ambit of the statutory definition.16 In so ruling, the court noted that extending the definition of recreational activity to include individuals who are supervising those engaged in a recreational activity comports with the well-documented broad legislative purpose of the statute.17
The implication of Wilmet is that Wisconsin courts continue to favor a liberal construction of the definition of “recreational activity” under the statute. Wilmet is clear in its adherence to the legislature’s intent to construe the definition of recreational immunity liberally in favor of protecting property owners from liability. Of course, such decisions remain intensely fact-driven and subject to the totality of the circumstances test articulated in Linville and its progeny. Fortunately for property owners and government entities, Wisconsin courts tend to interpret the definition of recreational activity broadly and find in favor of immunity for property owners.
B. Who Is an "Owner" Under the Statute?
The next step in the analysis is to determine whether the defendant qualifies as an “owner” under the statute. The statute provides, in relevant part, that “no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property.”18 “Owner” is defined to include “[a] person … that owns, leases or occupies property.”19 Although seemingly straightforward, this prong of the analysis, like the definition of “recreational activity,” has engendered a torrent of litigation to address varied factual scenarios.
1. The Scope of Land Ownership
One of the focuses of litigation has been where one’s land ownership ends. For example, in Waters v. Pertzborn,20 the Wisconsin Supreme Court held that a “continuous act” that begins on a landowner’s property but propels the person engaged in recreation beyond the property warrants the extension of the statute to treat the nearby land as owned by the landowner.21
In Waters, a child suffered severe injuries from a sledding accident after the force and power of his sled propelled him off private property owned by his friend’s parents and into the middle of a street where he was struck by a passing car.22 The defendants did not own the land where the injury occurred. The injured boy’s parents sued the landowners for negligence. The landowners raised the recreational immunity defense. The plaintiffs countered the recreational immunity defense by arguing that the social guest exception applied, which requires that the plaintiffs establish the defendants’ ownership interest of the land where the accident occurred.23 The Wisconsin Supreme Court ruled that the force and speed of the continuous act of sledding necessitated the extension of the defendants’ ownership interest to cover the street as though it was owned by the defendants for the purposes of the statute.24 The court stated that a contrary interpretation would lead to absurd and unreasonable results.25 Consequently, the court ruled that the plaintiffs could proceed under the social guest exception.26 Thus, ownership can extend to land for which the defendant does not hold title.
2. "Occupiers" and "Agents" as "Owners"
Recreational immunity not only extends to landowners, but also to their agents and to a “person … that ... occupies property.”27 Predictably, the terms “agent” and “occupies” are frequently litigated subjects, as neither is expressly defined (and, as the defined term “recreational activity” demonstrates, even defined terms are not safe from litigation regarding their interpretation).
In fact, the meaning of the words “agent” and “occupies” is currently on appeal before the Wisconsin Supreme Court in the Westmas case.28 In Westmas, Jane Westmas was struck and killed by a tree branch cut by Creekside Tree Service, Inc. (Creekside), as she and her son walked along a public shoreline path through the property of Conference Point, a faith-based conference and retreat center. The path was free-of-charge and open to the public for recreational purposes. Conference Point had contracted with Creekside to trim and remove overgrown trees from the path. Creekside had only been on the property for a couple of days, moving from location to location to trim the trees identified in its contract with Conference Point, but in that time had cut the tree limb that ultimately struck and killed Westmas. The Westmas estate sued Creekside and its insurer. The Walworth County Circuit Court granted summary judgment to the defendants on recreational immunity grounds.
The estate appealed. On appeal, it was undisputed that Westmas was killed while engaged in a recreational activity on the public shoreline path. The only point of dispute was whether Creekside was entitled to recreational immunity under the statute.
The estate argued on appeal that the circuit court had erred in concluding that Creekside was entitled to recreational immunity on the grounds that Creekside (1) was an “agent” of Conference Point and (2) was an “occupie[r]” of the Conference Point property, and thus statutorily an “owner” of the property. The court of appeals agreed with the estate and reversed, concluding that recreational immunity did not immunize Creekside from liability for its negligence.
Noting that the neither the statute nor Wisconsin case law defined the term “agent,” the court of appeals in Westmas looked to its recent holding in a governmental immunity case, Showers Appraisals, LLC v. Musson Bros.,29 for guidance. Showers held that a contractor is an agent of a government entity and therefore entitled to immunity under Wis. Stat. § 893.80 when it is shown that the government entity had “the right to control the tasks performed by the contractor with ‘reasonably precise specifications,’” and the contractor “followed those specifications.”30 Under the Showers court’s view of agency, a contractor is not an agent, however, if it retains significant control over the “alleged injury-causing action.”31
Applying Showers, the Westmas court concluded that Conference Point did not significantly control Creekside’s work with the “reasonably precise specifications” required to be an agent. Specifically, although Conference Point told Creekside what it wanted and envisioned, the faith center did not retain any control over or otherwise supervise how Creekside went about the work or implemented safety measures. Accordingly, the court of appeals ruled that Creekside was not Conference Point’s agent for purposes of Wis. Stat. § 895.52.
The Westmas court then turned to whether Creekside could be considered an “owner” under the statute on the grounds that it “occupied” the premises. As with “agent,” the term “occupies” is also not defined in the recreational immunity statute, so the court looked to the Wisconsin Supreme Court’s recent decision in Roberts v. T.H.E. Ins. Co.32 for guidance.
In Roberts, the owner/operator of a hot air balloon donated rides at a charity event. The plaintiff sued the hot air balloon company, who was neither the sponsor of the event nor the landowner, after a tethering line broke free and struck her while she waited in line. The circuit court granted the hot air balloon company summary judgment on recreational immunity grounds and the court of appeals affirmed.
On appeal to the Wisconsin Supreme Court, the appellant renewed her argument that the hot air balloon company was not an “occupier” of the land for purposes of the statute. The supreme court gave the term “occupies” its common dictionary meaning: “to take hold and possession.”33 The court explained that, while the term “occupies” should be interpreted to encompass a resident of the land who is more transient than either a lessee or an owner, the court read “a degree of permanence, as opposed to mere use” into the term.34 In defining the term, the supreme court in Roberts reversed and ruled against the hot air balloon company, stating that to grant immunity to third parties who are not responsible for opening up the land to the public would be inconsistent with the legislative intent behind the statute.
Applying Roberts, the Westmas court held that Creekside’s presence did not rise to the requisite degree of permanence to warrant occupier status. The court reasoned that an occupier would be expected to have “more than a temporary presence on the property,” as well as “some level of control over those who may enter upon it and for what purpose.” Accordingly, the court of appeals in Westmas ruled that Creekside could not be said to have “taken and held possession,” and thus could not qualify as an occupier and as a statutory owner of the property for purposes of Wis. Stat. § 895.52.35
As stated, Westmas is currently before the Wisconsin Supreme Court. The issues are the same as before the court of appeals and are fully briefed. It will be interesting to see how the court rules.
Wisconsin’s recreational immunity law immunizes individuals and entities against liability for injuries sustained while engaging in recreational activities on the landowner’s property. The legislature is unequivocal in its support for a broad interpretation of this statute. Recent case law indicates that courts continue to construe the statute liberally, but as the recent Westmas decision demonstrates, the courts likewise feel that some reasonable limits on the statute’s coverage are appropriate. Nevertheless, although far from absolute in its coverage, Wisconsin’s recreational immunity statute is a useful defense to liability for landowners, and developments with respect to the statute are something that every defense attorney working in the field of personal injury should follow closely.
Sam Mitchell is an associate at Coyne, Schultz, Becker & Bauer, S.C. in Madison. He can be contacted at firstname.lastname@example.org.
1 2017 WI App 16, 374 Wis. 2d 413, 893 N.W.2d 251.
2 2016 WI App 92, 392 Wis. 2d 683, 889 N.W.2d 178. The Westmas case, Appeal No. 2015AP001039, is now pending before the Wisconsin Supreme Court and has been fully briefed.
3 Wis. Stat. § 895.52(2)(a)-(b).
4 Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 489, 431 N.W.2d 696 (Ct. App. 1988).
5 Held v. Ackerville Snowmobile Club, Inc., 2007 WI App 43, ¶ 8, 300 Wis. 2d 498, 730 N.W.2d 428.
6 Wis. Stat. § 895.52(1)(g).
9 1983 Wis. Act 418, § 1 (emphasis added).
10 184 Wis. 2d 705, 516 N.W.2d 427 (1994).
11 Id. at 716.
12 Auman v. Sch. Dist., 2001 WI 125, ¶ 12, 248 Wis. 2d 548, 635 N.W.2d 672.
13 The Wilmets relied on Rintelman v. Boys & Girls Clubs of Greater Milwaukee, Inc., 2005 WI App 246, 288 Wis. 2d 394, 707 N.W.2d 897, for the proposition that such walking was not a recreational activity under the statute.
14 Wilmet, 374 Wis. 2d 413, ¶ 25.
15 Id., ¶¶ 17-19.
17 Id., ¶ 21.
18 Wis. Stat. § 895.52(2)(b) (emphasis added).
19 Wis. Stat. § 895.52(1)(d)1.
20 2001 WI 62, 243 Wis. 2d 703, 627 N.W.2d 497.
21 Id., ¶¶ 49-50.
22 Id., ¶¶ 4-7.
23 The social guest exception is found in Wis. Stat. § 895.52(6)(d).
26 Id., ¶ 50.
27 Wis. Stat. § 895.51(1)(d)1, (2)(b) (emphasis added).
28 The Westmas case before the Wisconsin Supreme Court is Appeal No. 2015AP001039.
29 2013 WI 79, ¶ 31, 350 Wis. 2d 509, 835 N.W.2d 226.
30 Id., ¶ 37.
31 Id., ¶ 51.
32 2016 WI 20, ¶ 27, 367 Wis. 2d 386, 879 N.W.2d 492.
33 Id., ¶¶ 34-35.
34 Id., ¶ 34.
35 392 Wis. 2d 683, ¶¶ 28-29.