Patti J. Roberts v. T.H.E. Insurance Company , 367 Wis. 2d 386 ( 2016 )

2016 WI 20
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1508
COMPLETE TITLE: Patti J. Roberts and David Roberts,
Plaintiffs-Appellants-Petitioners,
v.
T.H.E. Insurance Company, Sundog Ballooning,
LLC, Kerry M.
Hanson and Jodi L. Hanson,
Defendants-Respondents,
Dean Health Plan, Inc.,
Defendant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 363 Wis. 2d 656, 862 N.W.2d 656)
(Ct. App. 2015 – Unpublished)
OPINION FILED: March 30, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 15, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dodge
JUDGE: Joseph G. Sciascia
JUSTICES:
CONCURRED: ZIEGLER, J. concurs.
CONCURRED/DISSENTED: PROSSER, J., joined by ROGGENSACK, C.J. concur
and dissent.
DISSENTED: BRADLEY, R.G., J., joined by PROSSER, J.
(except footnote 4) dissent.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs by Timothy S. Knurr and Gruber Law Offices, LLC,
Milwaukee and oral argument by Timothy S. Knurr.
For the defendants-respondents, there was a brief by Ward
I. Richter, David G. Ress and Bell, Moore & Richter, S.C.,
Madison, WI and oral argument by David G. Ress.
2016 WI 20
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1508
(L.C. No. 2013CV391)
STATE OF WISCONSIN : IN SUPREME COURT
Patti J. Roberts and David Roberts,
Plaintiffs-Appellants-Petitioners,
v.
FILED
T.H.E. Insurance Company, Sundog Ballooning,
LLC, Kerry M. Hanson and Jodi L. Hanson, MAR 30, 2016
Defendants-Respondents, Diane M. Fremgen
Clerk of Supreme Court
Dean Health Plan, Inc.,
Defendant.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 ANN WALSH BRADLEY, J. Petitioners, Patti and David
Roberts, seek review of an unpublished court of appeals decision
that affirmed the circuit court's order for summary judgment,
dismissing their claims.1 The court of appeals determined that
1
Roberts v. T.H.E. Ins. Co., No. 2014AP1508, unpublished
slip op., (Wis. Ct. App. Mar. 26, 2015) (affirming order of
(continued)
No. 2014AP1508
Wisconsin's recreational immunity statute barred the
petitioners' claims because Patti Roberts was engaged in the
recreational activity of hot air ballooning at the time she was
injured.2
¶2 Roberts argues that the respondents, Sundog
Ballooning, LLC, Kerry Hanson, Jodi Hanson, and T.H.E. Insurance
Company (collectively "Sundog") are not entitled to immunity
pursuant to Wis. Stat. § 895.52 because Sundog was not an owner
under the statute. She contends that Sundog was neither an
"occupier" of the land nor was the hot air balloon "property."3
¶3 In reply, Sundog asserts that even if it were not
entitled to immunity under Wis. Stat. § 895.52, Roberts' claims
are barred because she signed a waiver of liability form.
¶4 We conclude that Sundog is not entitled to
recreational immunity pursuant to Wis. Stat. § 895.52 because it
is not an owner under the statute. Sundog was not an "occupier"
of the land and the hot air balloon was not "property" because
summary judgment entered by the circuit court for Dodge County,
Joseph G. Sciascia, J., presiding).
2
Although Patti's husband, David Roberts, is also a
petitioner, we will refer to Patti Roberts as the lone
petitioner for ease of discussion.
3
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
No. 2014AP1508
it was not a "structure."4 Finally, we determine that Sundog's
waiver of liability form violates public policy and is
unenforceable as a matter of law. Accordingly, we reverse the
court of appeals and remand to the circuit court for further
proceedings.
I.
¶5 The relevant facts of this case are undisputed.
Patti J. Roberts was injured at a charity event sponsored by
Green Valley Enterprises ("Green Valley"). Beaver Dam
Conservationists, LLC ("the Conservationists") owned the
shooting range where the charity event was held.
¶6 Sundog Ballooning, LLC was the owner and operator of a
hot air balloon providing tethered rides at the event. Kerry
and Jodi Hanson, the owners of Sundog, donated hot air balloon
rides to promote Green Valley's charity event.
¶7 On the day of the event, Sundog set up a display, a
sign-up table and a waiting area for the ride. The hot air
balloon was tethered to two trees and a pick-up truck. During
4
Roberts also argues that Sundog is not entitled to
immunity under Wis. Stat. § 895.52 because Sundog's negligence
was not associated with a condition of the land. We need not
reach this argument because we conclude that Sundog was not an
owner under the statute. The issue of whether a party's
negligence is associated with a condition of the land applies
only if that party is an owner under the statute. See, e.g.,
Linville v. City of Janesville, 184 Wis. 2d 705, 719, 516 N.W.2d
427 (1994); see also Kosky v. Int'l Ass'n of Lions Clubs, 210
Wis. 2d 463, 475, 565 N.W.2d 260 (Ct. App. 1997).
3
No. 2014AP1508
rides, the balloon operator raised the balloon to the length of
the ropes and then lowered it back to the ground.
¶8 Patti Roberts and her family watched the balloon rides
and then entered the line to take a ride. While in line, Sundog
gave Roberts a waiver of liability form that she was required to
sign prior to riding in the hot air balloon. Roberts signed the
waiver form, but never returned it to Sundog. The signed waiver
form was found on the event grounds after Roberts sustained her
injuries.
¶9 The liability waiver form states in part:
I expressly, willing, and voluntarily assume full
responsibility for all risks of any and every kind
involved with or arising from my participation in hot
air balloon activities with Company whether during
flight preparation, take-off, flight, landing, travel
to or from the take-off or landing areas, or
otherwise.
Without limiting the generality of the foregoing, I
hereby irrevocably release Company, its employees,
agents, representatives, contractors, subcontractors,
successors, heirs, assigns, affiliates, and legal
representatives (the "Released Parties") from, and
hold them harmless for, all claims, rights, demands or
causes of action whether known or unknown, suspected
or unsuspected, arising out of the ballooning
activities . . . .
¶10 After signing the form, Roberts waited in line for 20
to 30 minutes. During this time, strong winds caused one of the
balloon's tether lines to snap. As a result, the untethered
balloon moved toward the spectators in line. Roberts was
injured when she was struck by the balloon's basket and knocked
to the ground.
4
No. 2014AP1508
¶11 The evidence submitted to the circuit court
demonstrated that defendant Kerry Hanson, the balloon operator,
had limited experience with tethered ballooning before giving
rides at Green Valley's event. Hanson testified in his
deposition that he should have obtained information regarding
weather fronts in the area. Had he known about the weather
front on the day Roberts was injured, Hanson testified that he
would have suspended the ride.
¶12 Hot air ballooning is governed by FAA guidelines and
rules. See, e.g., Fed. Aviation Admin., U.S. Dep't. of Transp.,
Pub. No. FAA-H-8083-11A, Balloon Flying Handbook 7-13 (2008).
The FAA's safety recommendations instruct the balloon operator
to plan for the failure of one or more of the tethered lines and
have a backup plan for safety. See id. at 7-14. In addition,
the operator should organize participants "far back" from the
balloon and tether lines. Id. At his deposition, Hanson agreed
that had he moved the sign-up table and waiting line further
back from the balloon, Roberts would not have been injured.
¶13 Roberts filed a lawsuit against Sundog, alleging that
its negligence caused her injuries. Sundog moved the circuit
court for summary judgment, arguing that it is entitled to
immunity under Wis. Stat. § 895.52 and that Roberts' claims were
barred by the waiver of liability form that she signed.
¶14 The circuit court granted Sundog's summary judgment
motion, dismissing Roberts' claims and concluding that Sundog
was entitled to immunity under Wis. Stat. § 895.52. It also
determined that the waiver of liability form Roberts signed was
5
No. 2014AP1508
valid as a matter of law, although an issue of fact remained as
to whether she had accepted the terms.
¶15 On appeal, Roberts argued that Sundog is not entitled
to immunity because her injury was not related to a condition
associated with the land. Roberts asserted that under Linville
v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994)
and Kosky v. Int'l Ass'n of Lions Clubs, 210 Wis. 2d 463, 565
N.W.2d 260 (Ct. App. 1997), no immunity attaches for negligent
conduct unassociated with the land.
¶16 The court of appeals rejected Roberts' argument,
determining that it was "based on a misreading of the case
law . . . which has no application to the facts of this case."5
See Roberts v. T.H.E. Ins. Co., No. 2014AP1508, unpublished slip
op., ¶17 (Wis. Ct. App. Mar. 26, 2015). It explained that this
was "the only argument that Roberts makes directed to the
application of Wis. Stat. § 895.[52]." Id., ¶22. The court of
appeals did not address the validity of the liability waiver
5
This Court has previously expressed its concern that the
recreational immunity statue is often difficult to apply and has
recommended that the legislature reexamine this statute. See,
e.g., Auman v. School Dist. Of Stanley-Boyd, 2001 WI 125, ¶11,
248 Wis. 2d 548, 635 N.W.2d 762 ("This court has wrestled with
applying the recreational immunity statute . . . since its
enactment. . . . We continue to be frustrated in our efforts to
state a test that can be applied easily because of the seeming
lack of basic underlying principles in the statute."); see also
Urban v. Grasser, 2001 WI 63, ¶12, 243 Wis. 2d 673, 627 N.W.2d
511 ("Circuit courts, the court of appeals, and this court have
wrestled with recreational immunity since the legislature first
provided for such immunity under the law. We have all been
frustrated by the seeming lack of basic underlying principles in
our efforts to state a test that can be easily applied.").
6
No. 2014AP1508
form because its decision as to immunity disposed of the appeal.
Id., ¶2 n.2.
¶17 Before this court, Roberts renews her argument that
Sundog's negligence was not connected to a condition associated
with the land. Because this court ordered briefing on an
additional issue, she also asserts that Sundog is not entitled
to immunity under Wis. Stat. § 895.52 because it is not an owner
under the statute. Roberts argues that Sundog was not an
"occupier" of the land and that the hot air balloon was not
"property" because it was not a "structure." Sundog replies
that even if it is not entitled to immunity under Wis. Stat.
§ 895.52, Roberts' claims are barred because she signed a waiver
of liability form.
II.
¶18 In this case we are asked to review the circuit
court's grant of summary judgment. We review grants of summary
judgment applying the same methodology employed by the circuit
court. Belding v. Demoulin, 2014 WI 8, ¶13, 352 Wis. 2d 359,
843 N.W.2d 373. Summary judgment is appropriate if "there is no
genuine issue as to any material fact and [] the moving party is
entitled to [] judgment as a matter of law." Wis. Stat.
§ 802.08(2).
¶19 Here, there is no genuine issue of material fact.
Accordingly, we focus on whether the application of Wis. Stat.
§ 895.52 bars Roberts' claims. Statutory interpretation
presents a question of law that we review independently of the
determinations rendered by the circuit court and the court of
7
No. 2014AP1508
appeals. State v. Dinkins, 2012 WI 24, ¶28, 339 Wis. 2d 78, 810
N.W.2d 787.
¶20 In interpreting a statute we begin by examining its
language, giving words and phrases their common, ordinary, and
accepted meaning. State ex rel. Kalal v. Circuit Court for Dane
Cty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110.
Statutory language must be interpreted reasonably to avoid
absurd or unreasonable results. Id., ¶46.
¶21 When the legislature has expressly stated the purpose
of a statute, the purpose is relevant to the plain meaning
interpretation of the statute. See id., ¶48. "[A] plain-
meaning interpretation cannot contravene a textually or
contextually manifest statutory purpose." Id., ¶49.
¶22 In examining an exculpatory contract, we likewise
apply the same summary judgment methodology as employed by the
circuit court. See Richards v. Richards, 181 Wis. 2d 1007,
1010-11, 513 N.W.2d 118 (1994) (citing Dobratz v. Thompson, 161
Wis. 2d 502, 513, 468 N.W.2d 654 (1991)). The validity of an
exculpatory contract is reviewed as a matter of law. Id. at
1011.
III.
¶23 We begin our analysis with a brief explanation of what
is not in dispute. Neither party disputes that Roberts was
participating in a recreational activity at the time she was
injured because ballooning is listed in the statutory definition
of "recreational activity." Wis. Stat. § 895.52(1)(g) defines
"recreational activity" as: [A]ny outdoor activity undertaken
8
No. 2014AP1508
for the purpose of exercise, relaxation or pleasure, including
practice or instruction in any such activity. "Recreational
activity" includes hunting, fishing, trapping, camping,...
ballooning, hang gliding, hiking . . . ." (emphasis added).
¶24 Furthermore, "[t]he case law is clear that a spectator
who attends a recreational activity is engaged in a recreational
activity." Meyer v. School Dist. Of Colby, 226 Wis. 2d 704,
710, 595 N.W.2d 339 (1999); see also Linville, 184 Wis. 2d at
717 (concluding that preparation for a recreational activity
that takes place at a recreational facility that is open for
public use is a "recreational activity" as defined by Wis. Stat.
§ 895.52(g)). Given that Roberts was on recreational land open
to the public, watching the balloon rides as a spectator, and
preparing for the balloon ride by waiting in line, she was
engaged in a "recreational activity" as defined by Wis. Stat.
§ 895.52(g).
A.
¶25 Although Roberts does not dispute that she was engaged
in a recreational activity, she does contest the issue of
immunity. Roberts argues that Sundog is not entitled to
immunity as an occupier of the property where she was engaged in
a recreational activity.
¶26 The recreational immunity statute Wis. Stat. § 895.52
provides:
(2) NO DUTY; IMMUNITY FROM LIABILITY.
(a) Except as provided in subs. (3) to (6), no owner
and no officer, employee or agent of an owner owes to
9
No. 2014AP1508
any person who enters the owner's property to engage
in a recreational activity:
1. A duty to keep the property safe for
recreational activities.
2. A duty to inspect the property, except as
provided under s. 23.115(2).
3. A duty to give warning of an unsafe
condition, use or activity on the property.
(b) Except as provided in subs. (3) to (6), 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 . . . .
¶27 Wis. Stat. § 895.52(1)(d)1 defines an "owner" as "[a]
person, including a governmental body or nonprofit organization,
that owns leases or occupies property." Wis. Stat.
§ 895.52(1)(f) further defines "property" as "real property and
buildings, structures and improvements thereon . . . ."
¶28 The legislative purpose of the recreational immunity
statute is set forth in 1983 Wis. Act 418, § 1. Its stated
purpose is to limit liability in order to encourage property
owners to open their lands to the public:
The legislature intends by this act to limit the
liability of property owners toward others who use
their property for recreational activities under
circumstances in which the owner does not derive more
than a minimal pecuniary benefit. 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 . . . . 1983 Wis. Act 418, § 1.
10
No. 2014AP1508
As our cases have explained, "the impetus for this law is the
continual shrinkage of the public's access to recreational land
in the ever more populated modern world." Hall v. Turtle Lake
Lions Club, 146 Wis. 2d 486, 489, 431 N.W.2d 696 (Ct. App.
1988).
¶29 In reply, Sundog argues that it is entitled to
recreational immunity because Roberts was injured at an event
similar to those in prior cases. Sundog asserts that it is
entitled to immunity as an "occupier" of the land, for the same
reasons that the producer of a fair or event qualifies for
recreational immunity. Prior cases interpreting Wisconsin's
recreational immunity law have concluded that the producer of a
fair or event "occupied" property. See, e.g., Id., at 490; Lee
v. Elk Rod & Gun Club, Inc., 164 Wis. 2d 103, 106, 473
N.W.2d 581 (Ct. App. 1991); Weina v. Atlantic Mut. Ins. Co., 179
Wis. 2d 774, 777 n.2, 508 N.W.2d 67 (Ct. App. 1993).
¶30 As Sundog's counsel aptly argued, Wisconsin courts
have concluded private organizations hosting an event on land
they did not own are entitled to recreational immunity. In
Hall, the plaintiff was injured when he stepped in a hole on the
grounds of the Turtle Lake Village Park during a fair sponsored
by the Turtle Lake Lions Club. 146 Wis. 2d at 487. The Lion's
Club was not the titled owner of the land on which it held the
fair. Id. at 490. The court of appeals concluded that the
Lions Club was entitled to recreational immunity as a
"landowner" that allowed Hall entry for "recreational activity."
Id. at 487-89.
11
No. 2014AP1508
¶31 Likewise, in Lee, the plaintiff was injured when he
slipped and fell on icy ground beneath a tent erected by the Elk
Rod & Gun Club for a fishing contest on Bugle Lake. 164 Wis. 2d
at 105. Lee explained that "[t]he club, as an occupant of the
city park land, is treated as a landowner for purposes of
recreational immunity." Id. at 107 (citing Hall, 146 Wis. 2d at
490-91).
¶32 Again, in Weina, the plaintiff was injured playing
softball at a church picnic held at a public park. 179 Wis. 2d
at 776. The plaintiff sued both the church and the teammate who
hit the injurious baseball. Id. Granting summary judgment in
favor of the church, the circuit court denied the teammate's
motion for summary judgment. Id. at 77 n.1. The court of
appeals affirmed the circuit court's judgment that the church,
as the event organizer, was entitled to immunity. Id. at 779.
¶33 This case is different from prior cases, however,
because Roberts did not bring claims against the event producer
or owner of the property. Green Valley Enterprises, not Sundog,
produced the charity event where Roberts was injured. The
Conservationists, not Sundog, was the owner of the property
where the event took place. None of the prior cases
interpreting Wis. Stat. § 895.52 has granted immunity to a third
party not responsible for opening up the land to the public.6
6
Wis. Stat. § 895.52(2) grants immunity to officers,
employees, or agents of an owner. Because the parties in this
case did not argue or brief the issue of whether Sundog was an
officer, employee, or agent of either the Conservationists or
(continued)
12
No. 2014AP1508
¶34 The distinction between Sundog and the producer of a
fair or event is supported by case law analyzing the definition
of "occupy" in the context of the statute's policy. In Doane v.
Helenville Mut. Ins. Co., 216 Wis. 2d 345, 355, 575 N.W.2d 734
(Ct. App. 1998), the court of appeals held that the owner of an
ice shanty was not an occupier under Wis. Stat. § 895.52. As
Doane explained, "occupy" is defined as "to take and hold
possession." Id. at 354 (citing Webster's New Collegiate
Dictionary 794 (8th ed. 1974)). The term "occupy," as it is
used in Wis. Stat. § 895.52, has been defined as "requiring a
degree of permanence, as opposed to mere use." Id. (citations
ommitted).
¶35 Underlying the Doane decision was the same statutory
policy at issue here. As Doane explained, to define the owner
of the ice shanty as an occupier "would not further the policy
which underlies the statute, i.e., of opening as much property
as possible for recreational use, because the lake was already
held in trust for public recreational purposes, such as
fishing." Id. at 355. Here, as in Doane, defining Sundog as an
"occupier" would not further the policy underlying the statute
because the Conservationists' property was already open for
public recreational purposes.
Green Valley, we do not address it. We need not address issues
that have not been raised or argued by the parties. See, e.g.,
State v. Steffes, 2013 WI 53, ¶28, 347 Wis. 2d 683, 832 N.W.2d
101.
13
No. 2014AP1508
¶36 The Linville court also explained that we must
consider whether immunity will encourage landowners to open the
land for public use:
The benefits of granting immunity, i.e., encouraging
landowners to open their lands to the public, comes
from immunizing people or municipalities in their
capacities as landowners . . . . Extending immunity
to landowners for negligently performing in a capacity
unrelated to the land . . . will not contribute to a
landowner's decision to open the land for public use.
184 Wis. 2d 705.
¶37 Here, it was Green Valley and the Conservationists——
not Sundog——that were responsible for opening the land to the
public. The Conservationists allowed Green Valley to host an
event on the land. Green Valley was responsible for organizing
the event and bringing people onto the land. Sundog provided
hot air balloon rides on land that was owned by the
Conservationists and occupied by Green Valley. Immunizing
Sundog would have no effect on whether the public had access to
private land, because Sundog is not responsible for opening the
land to the public.
¶38 We also find Linville instructive in determining the
logical stopping point for immunity. In Linville, the court
analyzed whether granting immunity to city paramedics could
create limitless immunity for all medical services provided for
injuries sustained while recreating. 184 Wis. 2d 705. "Such
services could conceivably take place days or even weeks after
the recreational activity, at facilities far removed from the
site of recreation, and by persons in no way connected to the
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No. 2014AP1508
land on which the accident occurred." Id. at 720. "Such a
result is absurd, leaves immunity limitless, and therefore could
not have been intended by the legislature." Id.
¶39 Wis. Stat. § 895.52 "was not enacted to provide
indiscriminate immunity for landowners without regard to
possible consequences." Id. at 719 (quoting Ervin v. City of
Kenosha, 159 Wis. 2d 464, 477, 464 N.W.2d 654 (1991)).
Extending immunity to Sundog could lead to limitless immunity.
Sundog is not the owner of the land. It is not occupying the
land as an event organizer and is therefore not responsible for
opening up the land to the public. If Sundog——who has no
connection to the land——is granted immunity, there will be no
stopping point to recreational immunity.
¶40 For example, what if Roberts brought a claim against
the manufacturer of the hot air balloon that injured her? What
if the tether that broke loose was due to a fault in the
manufacture of the balloon, rather than the wind? Should the
balloon manufacturer, which had no connection to opening the
land to the public, be immunized because ballooning is a
recreational activity?
¶41 Granting immunity to third parties that are not
responsible for opening up the land to the public is unsupported
by our prior case law. In addition, it would create an absurd
result with no logical stopping point that does nothing to
further the legislative purpose of the statute. Accordingly, we
conclude that Sundog is not entitled to recreational immunity
15
No. 2014AP1508
under Wis. Stat. § 895.52 because it was not an "occupier" of
the land.
B.
¶42 Next, Sundog argues that it is entitled to immunity
not only as an "occupier" of real property, but also as an owner
of "property" because the hot air balloon is a structure
pursuant to Wis. Stat. § 895.52(1)(f). "Property" means real
property and buildings, structures and improvements thereon.
Wis. Stat. § 895.52(1)(f).
¶43 The term "structure" is not defined in Wis. Stat. §
895.52, and is therefore given its common and ordinary meaning.
Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶16, 248 Wis. 2d
567, 636 N.W.2d 727. A "structure" is "something constructed,"
or "something made up of a number of parts that are held or put
together in a particular way." Id. (citing American Heritage
Dictionary of the English Language, 1782 (3d ed. 1992)).
"Structure" is also defined as "[a]ny construction, or any
production or piece of work artificially built up or composed of
parts joined together in some definite manner." Id. (citing
Black's Law Dictionary, 1424 (6th ed. 1991)).
¶44 Sundog relies on Peterson, in which this court held
that the owner of a tree stand was entitled to immunity as the
owner of a "structure" on real property. Id., ¶4. Peterson
adopted the court of appeals' decision in Doane. Peterson, 248
Wis. 2d 567, ¶20. The Doane court identified three categories
of property that qualify owners for immunity: (1) real property;
(2) buildings, structures and improvements thereon; and (3)
16
No. 2014AP1508
waters of the state. Doane, 216 Wis. 2d at 352. Sundog argues
that like the tree stand in Peterson, the hot air balloon is a
structure because it was constructed or put together in a
particular way and made up of parts joined together.
¶45 Although it may have been made up of parts joined
together, the hot air balloon ride was not constructed on real
property. In Peterson, the tree stand was permanent and built
or constructed on the real property. See Peterson, 248 Wis. 2d
567, ¶¶5-7. The hot air balloon in this case was transient and
designed to be moved at the end of the day. It was also not
designed to remain in one place. The balloon was tethered to
two trees and a pick-up truck because of the manner in which
Sundog was using it on the day of the event. Thus, we conclude
that the hot air balloon is not a structure as that term is
applied in Wis. Stat. § 895.52(1)(f).
¶46 Accordingly, we conclude that Sundog is not entitled
to recreational immunity under Wis. Stat. § 895.52 because it is
not an owner under the statute. Sundog was not an "occupier" of
the land and the hot air balloon was not "property" because it
is not a "structure."
IV.
¶47 Having determined that Sundog is not entitled to
immunity under Wis. Stat. § 895.52, we must address whether
Roberts' claims are barred by Sundog's exculpatory release.
Sundog argues that the waiver of liability form that Roberts
signed is valid under Wisconsin law.
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No. 2014AP1508
¶48 Wisconsin case law does not favor exculpatory
agreements. See, e.g., Atkins v. Swimwest Family Fitness
Center, 2005 WI 4, ¶12, 277 Wis. 2d 303, 691 N.W.2d 334. "While
this court has not held that an exculpatory clause is invalid
per se, we have held that such a provision must be construed
strictly against the party seeking to rely on it." Id., ¶12
(citing Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81, 557
N.W.2d 60 (1996); Merten v. Nathan, 108 Wis. 2d 205, 210-11, 321
N.W.2d 173 (1982)).
¶49 Our analysis of an exculpatory contract begins with
examining the facts and circumstances of the agreement to
determine if it covers the activity at issue. Atkins, 277 Wis.
2d 303, ¶13 (citing Arnold v. Shawano County Agric. Soc'y, 111
Wis. 2d 203, 211, 330 N.W.2d 773 (1983), overruled on other
grounds). If the contract covers the activity, we proceed to a
public policy analysis, "which remains the 'germane analysis'
for exculpatory clauses." Id., ¶13 (citing Yauger, 206 Wis. 2d
at 86). "We generally define public policy as 'that principle
of law under which freedom of contract or private dealings is
restricted by law for the good of the community.'" Id., ¶14
(quoting Merten, 108 Wis. 2d at 213).
¶50 This court has found an exculpatory agreement to be
invalid if it contains misrepresentations, if it too broadly
defines the location and actions covered, or if it is ambiguous
and uncertain. See, e.g., Merten, 108 Wis. 2d at 214-15; see
also Arnold, 111 Wis. 2d at 211-13; Dobratz, 161 Wis. 2d at 526.
18
No. 2014AP1508
Our prior decisions have also set forth the factors to apply in
analyzing whether a contract is void as a matter of law.
¶51 In Richards, 181 Wis. 2d 1007, the plaintiff was
injured while accompanying her husband on a trip. The waiver in
Richards was both an application for permission to be a
passenger and a release of all claims against the trucking
company. Id. at 1012. Richards held that the contract was void
as against public policy because: (1) the contract served two
purposes which were not clearly identified or distinguished; (2)
the release was extremely broad and all-inclusive; and (3) the
release was in a standardized agreement printed on the Company’s
form, offering little or no opportunity for negotiation or free
and voluntary bargaining. Id. at 1011.
¶52 In Yauger, 206 Wis. 2d 76, an 11-year old skier was
killed when she struck a concrete ski lift tower pylon. Prior
to the ski season, her father signed an "application" for a
season family lift ticket. Id. at 79. The application stated:
"I agree that [] [t]here are certain inherent risks in skiing
and that we agree to hold [the ski resort] harmless on account
of any injury incurred . . . on the [ski resort] premises." Id.
at 79. "Inherent risks" and "premises" were not defined. Id.
at 84-85.
¶53 The Yauger court unanimously concluded that the
agreement was void as against public policy because: (1) it
failed to clearly, unambiguously, and unmistakably explain to
the signatory that he was accepting the risk of Hidden Valley’s
negligence; and (2) the form when considered in its entirety
19
No. 2014AP1508
failed to alert the signer to the nature and significance of the
document being signed. Id. at 78.
¶54 More recently in Atkins, this court considered the
enforceability of an exculpatory agreement after a swimmer
drowned in a lap pool at a fitness center. Atkins, 277 Wis. 2d
303. As a condition of being allowed to use the center, the
swimmer had to complete a guest registration and waiver release
statement form. Id., ¶3. The form was preprinted on a five and
one-half inch square card, and the entire card was printed in
capital letters of the same size, font, and color. Id., ¶4.
¶55 Atkins held that the waiver was invalid, noting that
"Wisconsin case law does not favor [exculpatory] agreements,"
and "such a provision must be construed strictly against the
party seeking to rely on it." Id., ¶12. The Atkins court
adopted a combination of the Yauger and Richards factors in its
decision: (1) the waiver was overly broad and all-inclusive; (2)
the form served two functions and did not provide the signer
adequate notification of the waiver's nature and significance;
and (3) there was little or no opportunity to bargain or
negotiate in regard to the exculpatory language in question.
Id., ¶18; see also Alexander T. Pendleton, Enforceable
Exculpatory Agreements: Do They Still Exist?, 78 Wis. Law. 16,
46 (Aug. 2005).
¶56 Turning to the release at issue in this case, it is
undisputed that Sundog required Roberts to sign a waiver prior
to riding in the hot air balloon. Roberts signed the waiver
while she was waiting in line for the ride, but never returned
20
No. 2014AP1508
it. The signed waiver was found on the event grounds after she
was injured by the hot air balloon.
¶57 Sundog argues that Roberts read the release,
understood its importance, and understood she was waiving her
right to bring a negligence claim. It also asserts that Roberts
had the opportunity to bargain and ask questions, but failed to
do so. Roberts counters that she never accepted the liability
waiver form because she never returned it to Sundog. She also
argues that the waiver is void as a matter of law because it
violates public policy.
¶58 We agree with Roberts that the waiver of liability
form is unenforceable as a matter of law because it fails to
satisfy the factors set forth in our prior case law. Because
the waiver is void as a matter of law, we need not address the
question of whether Roberts accepted the agreement.7
¶59 First, Sundog's exculpatory waiver is overly broad and
all-inclusive. As our prior cases have explained, an agreement
cannot be so broad "that it would absolve [the defendant] from
any injury to the [plaintiff] for any reason." Richards, 181
Wis. 2d at 1015 (citing College Mobile Home Park & Sales v.
Hoffman, 72 Wis. 2d 514, 521-22, 241 N.W.2d 174 (1976)).
¶60 The waiver in this case would absolve Sundog for any
activity for any reason, known or unknown:
I expressly, willing, and voluntarily assume full
responsibility for all risks of any and every kind
7
Additionally, we do not address whether the question of
Roberts' "acceptance" presents a question of fact or law here.
21
No. 2014AP1508
involved with or arising from my participation in hot
air balloon activities with Company whether during
flight preparation, take-off, flight, landing, travel
to or from the take-off or landing areas, or
otherwise.
Without limiting the generality of the foregoing, I
hereby irrevocably release Company, its employees,
agents, representatives, contractors, subcontractors,
successors, heirs, assigns, affiliates, and legal
representatives (the "Released Parties") from, and
hold them harmless for, all claims, rights, demands or
causes of action whether known or unknown, suspected
or unsuspected, arising out of the ballooning
activities...
Not only is the waiver overly broad, it is not clear whether
waiting in line for the ride is something Roberts would have
contemplated as being covered by the waiver, especially because
she was not required to return the waiver before she got into
the line.
¶61 Second, the release was a standard agreement printed
on the company's form, offering Roberts no opportunity to
bargain or negotiate in regard to the exculpatory language in
question. See Richards, 181 Wis. 2d at 1011. "Freedom of
contract is premised on a bargain freely and voluntarily made
through a bargaining process that has integrity." Id. at 1016.
¶62 Sundog concedes that the waiver of liability was a
standard form. In order to ride the balloon, Roberts was told
she would have to sign "this document." Sundog did not discuss
the content of the waiver or any of the risk associated with
ballooning activities or watching others ride with Roberts.
There was also no pre-flight meeting as referenced in the
agreement. Roberts was not asked if she had any complaints or
22
No. 2014AP1508
concerns with the waiver and she did not have an opportunity to
negotiate the terms of the waiver.
¶63 Thus, the liability waiver form is void as a matter of
law. It is overly broad, printed on a standard form, and Sundog
did not provide Roberts with an opportunity to bargain over the
terms of the contract. As our prior case law demands, we will
not uphold a waiver of liability that violates public policy.
V.
¶64 In sum, we conclude that Sundog is not entitled to
recreational immunity under Wis. Stat. § 895.52 because it is
not an owner under the statute. Sundog was not an "occupier" of
the land and the hot air balloon was not "property" because it
was not a "structure."
¶65 Accordingly, we reverse the court of appeals and
remand to the circuit court for further proceedings.
By the Court. – The decision of the court of appeals is
reversed and the cause is remanded to the circuit court for
further proceedings.
23
No. 2014AP1508.akz
¶66 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the opinion of the court because I agree that Sundog is not
entitled to recreational immunity under Wis. Stat. § 895.52
(2013-14) and that Sundog's waiver of liability form is
unenforceable. The court appropriately does not reach the
questions of whether Roberts' injuries arose from a condition or
maintenance of the land and, if not, whether Linville v. City of
Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), and Kosky v.
International Ass'n of Lions Clubs, 210 Wis. 2d 463, 565
N.W.2d 260 (Ct. App. 1997), preclude the attachment of immunity
to Sundog under § 895.52, see majority op., ¶4 n.4, because
resolution of that issue is not necessary to the disposition of
this case.
¶67 I feel compelled to comment briefly on the condition-
or-maintenance issue so that the position set forth by the court
of appeals below is not read as the only possible view of the
matter. Simply stated, while the policy behind the statute is
to encourage landowners to open their land to the public, the
recreational immunity statute does not cloak a negligent actor
with immunity no matter what they do.
¶68 Unlike the court of appeals below, I conclude that
there is a patent "division of functions" at play in this case.
Roberts v. T.H.E. Ins. Co., No. 2014AP1508, unpublished slip
op., ¶20 (Wis. Ct. App. Mar. 26, 2015). Put differently,
Sundog's "immunity for its functions as [occupier] of
recreational land cannot shelter its liability for negligently
1
No. 2014AP1508.akz
performing another function," namely the operation of its hot
air balloon business. Linville v. City of Janesville, 184
Wis. 2d 705, 711 516 N.W.2d 427 (1994). This conclusion is
consistent with Linville, Kosky, and the recreational immunity
statute.
¶69 Wisconsin Stat. § 895.52(2)(b) states in part, "[N]o
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 . . . ." Despite the broad
nature of this language, we concluded in Linville that an
"owner" under the statute might sometimes function in a capacity
unrelated to its ownership of land, and that the owner should
not be immunized against claims that the owner engaged in
negligent conduct when operating in that capacity. Linville,
184 Wis. 2d at 720-21. Hence, a municipal owner of a pond in
which a four-year-old boy drowned despite the efforts of
paramedics employed by the owner was immune under § 895.52 from
claims that its pond was negligently maintained, but not immune
from claims that it negligently performed in its capacity as
provider of paramedic services. Id.
¶70 This conclusion followed from our recognition that
"[t]he policy behind the statute is to encourage property owners
to open their lands for recreational activities by removing a
property user's potential cause of action against a property
owner's alleged negligence." Id. at 715. We reasoned that Wis.
Stat. § 895.52 "was not enacted to provide indiscriminate
immunity for landowners without regard to possible consequences"
2
No. 2014AP1508.akz
and that "[e]xtending immunity to landowners for negligently
performing in a capacity unrelated to the land . . . will not
contribute to a landowner's decision to open the land for public
use." Id. at 719 (citation omitted).
¶71 The court of appeals applied Linville just a few years
later when an individual who suffered injuries assisting in the
detonation of fireworks for a display sued the owner of land on
which the fireworks display occurred, alleging that the owner
had negligently managed the display. Kosky v. Int'l Ass'n of
Lions Clubs, 210 Wis. 2d 463, 468-70, 476-77, 565 N.W.2d 260
(Ct. App. 1997). The court of appeals concluded, relying on
Linville, that the landowner——which was an "occupie[r]" under
the recreational immunity statute——was not immune because the
allegedly negligent activities of the owner and its employees
related to the detonation of fireworks, not "the condition or
maintenance of the land" which it owned. Id. at 468, 470 n.3,
476-77. "[R]ecreational immunity," the court determined, "does
not attach to the landowner when an act of the landowner's
officer, employee or agent that is unrelated to the condition or
maintenance of the land causes injury to a recreational land
user." Id. at 475.
¶72 In the instant case, Roberts cites Linville and Kosky
and argues that Sundog's alleged negligence——the use of an
"improper tethering system" and the decision "to proceed with a
tethered balloon event in the face of a known storm/gust front"—
—did not relate to a condition of the land. Therefore, Roberts
argues, immunity does not attach. In dismissing this argument,
3
No. 2014AP1508.akz
the court of appeals declared: "Roberts identifies
no . . . division of functions here. Rather, as stated above,
Roberts sued Sundog as owner of property on which Patti Roberts
was engaging in a recreational activity." Roberts, unpublished
slip op., ¶20.
¶73 This conclusion is perplexing, because there is a
clear potential division of functions in this case: Sundog the
property owner (occupier) and Sundog the hot air balloon company
owner.1 The approach taken by the court of appeals below leads
to the "indiscriminate immunity" against which we warned in
Linville, upsetting the balance struck by the Legislature in
both ensuring the protection of the public and incentivizing
landowners to allow access to their land. Linville, 184 Wis. 2d
at 719; see Ervin v. City of Kenosha, 159 Wis. 2d 464, 478, 464
N.W.2d 654 (1991).
¶74 Wisconsin Stat. § 895.52 protects property owners who
open their land to the public, but it does not necessarily
provide a shield to business owners who are negligent in the
operation of their business. See § 895.52(1)(d)1. (defining
"[o]wner" to mean, inter alia, "[a] person . . . that owns,
leases or occupies property" (emphasis added)). Indeed, it is
the partial purpose of § 895.52's sister statute, § 895.525
("Participation in recreational activities; restrictions on
civil liability, assumption of risk"), "to help assure the
1
The division of functions is only "potential" because, as
explained, Sundog is not actually an owner under Wis. Stat.
§ 895.52(1)(d). See majority op. ¶4.
4
No. 2014AP1508.akz
continued availability in this state of enterprises that offer
recreational activities to the public." Wis. Stat. § 895.525(1)
(emphasis added). These enterprises are nowhere mentioned in
§ 895.52, which does not pertain to them.
¶75 The Linville and Kosky courts recognized that Wis.
Stat. § 895.52 grants recreational immunity, not sovereign
immunity, and that the protections offered by § 895.52 end when
a landowner performs negligently in a capacity unrelated to the
individual's ownership of the land. These considerations govern
here.
¶76 A hypothetical helps illustrate. One of the many
pleasant diversions included in Wis. Stat. § 895.52(1)(g)'s
definition of "[r]ecreational activity" is "rock-climbing."
§ 895.52(1)(g). If a landowner in northern Wisconsin owns a
piece of property with a cliff on it and wishes, out of the
goodness of her heart, to allow the local weekend rock-climbers'
club to use the cliff for practice, the legislature has
determined via § 895.52 that she should not be penalized if, for
example, an unfortunate climber plummets to his death from the
cliff. This seems reasonable enough, as a grant of such
immunity encourages the landowner to open the land to climbers
without fear of negative repercussions. See Linville, 184 Wis.
2d at 715. On the other hand, imagine that the landowner
decides to capitalize on her property's attraction and opens an
outdoor rock-climbing business, providing training, ropes, and
safety equipment to climbers. Under the interpretation of the
statute espoused by the court of appeals, if the landowner
5
No. 2014AP1508.akz
should decide to continue allowing the unsuspecting local club
to climb for free, or opens up her land for a charity event, she
can operate her business negligently with respect to the club or
to the eventgoers——snapping ropes, cracked helmets, improper
training——without fear.
¶77 This hypothetical is not much different than the
current case: in both instances there is a potential
landowner/occupier who provides access to land but who also
allegedly negligently provides recreational activity services on
that land.
¶78 The scope of immunity provided by this reading of Wis.
Stat. § 895.52 is potentially enormous, but there is a more
reasonable interpretation: the one applied in Linville and
Kosky. Assuming that Sundog could be characterized as an
"owner" under § 895.52(1)(d)——and the opinion of the court
correctly concludes that it can not, see majority op. ¶4——then
it is immune insofar as it is sued in its capacity as "owner" of
the patch of land on which it was offering free balloon rides.
It is not immune, however, insofar as it is sued in its capacity
as owner of a hot air balloon company. This is the division of
functions that the court of appeals found lacking. Just as
holding the cliff-owner in the hypothetical liable for snapping
ropes, cracked helmets, and improper training will not
discourage the owner from allowing climbers to use the cliff
without the involvement of her business, failing to grant Sundog
immunity as a business operator will not discourage it from
6
No. 2014AP1508.akz
"opening" its land for recreational activities (that is,
activities not conducted by Sundog).
¶79 In fairness, application of the statute to facts such
as these produces some cognitive dissonance, because, had Sundog
been found to be an "occupie[r]," it would not really be a
property owner in the sense that most people are used to
thinking about that phrase. Sundog would only be a property
owner under the recreational immunity statute because it
"occupie[d]" the Conservationists' land, and it was only
occupying the Conservationists' land because it wanted to offer
free balloon rides. But it must be remembered that we are
essentially thinking of two Sundogs for purposes of the
Linville/Kosky analysis: business owner Sundog, which provides
hot air balloon rides, and occupier Sundog, which stands on the
sidelines and watches the eventgoers happily use "its" property
free of charge.
¶80 Importantly, and contrary to what Roberts seems to
argue, this interpretation should not be misconstrued to mean
that immunity under Wis. Stat. § 895.52 extends only to injuries
associated with the physical land itself, e.g., injuries from
holes in the ground. Wisconsin Stat. § 895.52(2)(b) provides
immunity to owners for any "death of, any injury to, or any
death or injury caused by, a person engaging in a recreational
activity on the owner's property." § 895.52(2)(b) (emphases
added). But the fact remains that immunity is extended to the
"owner," i.e. the property owner——not to, for instance, a
business operator also on that property. Thus, if someone is
7
No. 2014AP1508.akz
accidentally shot while hunting on a landowner's property, the
landowner is seemingly immune from suit against her as landowner
(even though the bullet is not "associated" with a condition of
the land). But if the landowner also operates a hunting supply
shop on the land, opens the land for a charity event, and
proceeds to provide negligently-maintained firearms to
participants, it might be that recreational immunity would not
attach to the entity in its capacity as a business owner.
¶81 Ultimately, because Sundog is not an "owner" under
Wis. Stat. § 895.52(1)(d), the question of whether it operated
in two distinct capacities at the charity event is not relevant
to the outcome of this case. However, the court of appeals
should not be the only word on this important question, which is
wisely left unanswered by the opinion of the court.2
2
Justice Prosser's partial concurrence criticizes my post-
Linville analysis through use of a pre-Linville case, Ervin v.
City of Kenosha, 159 Wis. 2d 464, 464 N.W.2d 654 (1991) (and,
even more daringly, through use of a pre-1983 Wis. Act 418 case,
Wirth v. Ehly, 93 Wis. 2d 433, 287 N.W.2d 140 (1980)).
Concurrence, ¶¶125, 127. The partial concurrence notes that the
author of Linville was also the sole dissenter from Ervin.
Concurrence, ¶128. If the question is whether Linville eroded
any of the principles in Ervin, one would think this fact
hinders rather than helps the partial concurrence's case.
Regardless, there is no need to attempt to divine the meaning of
Linville's authorship, because my analysis is not "squarely at
odds" with Ervin. Concurrence, ¶125.
(continued)
8
No. 2014AP1508.akz
This is because the City of Kenosha's ("the City") actions
in Ervin were arguably performed in its capacity as property
owner rather than, for instance, in its capacity as a business
owner. The facts underlying that case took place at a beach
owned by the City of Kenosha and "staffed by four lifeguards
employed and trained by the City." Ervin, 159 Wis. 2d at 469-
70. In the summer of 1987, two minors drowned in the water off
the beach. Id. at 468-69. The City was sued, among other
things, for the alleged negligence of its lifeguards and for its
own allegedly negligent hiring and failure to train them. Id.
at 471-72. This court held that the City was immune from such
allegations under the recreational immunity statute. Id. at
469.
Returning to my earlier hypothetical, Ervin is analogous to
a circumstance in which a cliff-owner (or somebody hired by the
cliff-owner) stands by and watches while a climber using the
cliff for free plummets to her death. Nothing in Ervin indicates
that the City was stepping outside of its role as landowner
(indeed, it had not formally interviewed its lifeguards or even
provided its lifeguards with "skills testing [or] lifeguard,
first-aid or rescue training"). Id. at 471. Put differently,
although the Ervin court seemingly rejected an "active/passive
negligence distinction" with respect to landowners' negligence
under the recreational immunity statute, the court said nothing
about the operation of the statute when landowners act in a non-
proprietary capacity. See, e.g., id., at 476-77 ("If liability
were imposed on landowners for negligence in failing to provide
adequate safety measures, it would encourage landowners to
provide no safety measures." (emphases added)). That came
later, in Linville. As opposed to Ervin, wherein the City had
"gratuitously" provided a few "lifeguards" without "skills
testing [or] lifeguard, first-aid or rescue training" to stand
post on the single parcel of property at issue, id., 471-77, the
City of Janesville operated a team of paramedics which provided
city-wide services and which had little to do with the ownership
of the municipal pond in particular. See State v. Linville, 184
Wis. 2d 705, 720-21, 516 N.W.2d 427.
While I understand the partial concurrence's reading of
Linville and find it to be a reasonable one in isolation, it is
at odds with a principal expositor of Linville, Kosky v.
International Ass'n of Lions Clubs, 210 Wis. 2d 463, 565
N.W.2d 260 (Ct. App. 1997). Justice Prosser would need to
overrule a substantial amount of law to arrive at his
interpretation of the recreational immunity statute.
9
No. 2014AP1508.akz
¶82 For the foregoing reasons, I respectfully concur.
10
No. 2014AP1508.dtp
¶83 DAVID T. PROSSER, J. (concurring in part; dissenting
in part). This case involves an unfortunate accident that
occurred at a charity event in Beaver Dam on July 30, 2011. I
agree with the majority opinion that "Sundog's waiver of
liability form violates public policy and is unenforceable as a
matter of law." Majority op., ¶4. However, I also agree with
the dissenting opinion of Justice Rebecca G. Bradley that
"Sundog meets the statutory requirements to obtain recreational
immunity because: (1) it falls within the definition of 'owner,'
which includes 'a person . . . that . . . occupies property;'
and (2) Patti Roberts engaged in a recreational activity on the
property occupied by Sundog." Dissent, ¶132. Consequently, I
join the dissenting opinion of Justice Rebecca Bradley except
for footnote 4.
¶84 My purpose in writing is to reinforce the inexorable
logic of Justice Bradley's dissent and respond to the
concurrence of Justice Ziegler.
¶85 Wisconsin Stat. § 895.52 reads in part as follows:
(2) NO DUTY; IMMUNITY FROM LIABILITY. (a)
Except as provided in subs. (3) to (6), no owner
and no officer, employee or agent of an owner owes to
any person who enters the owner's property to engage
in a recreational activity:
. . . .
3. A duty to give warning of an unsafe
condition, use or activity on the property.
(b) Except as provided in subs. (3) to (6), no
owner and no officer, employee or agent of an owner is
liable for . . . any injury to . . . a person engaging
in a recreational activity on the owner's
property . . . .
1
No. 2014AP1508.dtp
¶86 Critical to the interpretation of this statute is the
definition of "owner."
"Owner" means either of the following:
1. A person, including a governmental body or
nonprofit organization, that owns, leases or occupies
property.
2. A governmental body or nonprofit
organization that has a recreational agreement with
another owner.
Wis. Stat. § 895.52(1)(d).
¶87 In this case, we should analyze three different
entities: (1) Beaver Dam Conservationists, LLC; (2) Green Valley
Enterprises; and (3) Sundog Ballooning, LLC (and its owners,
Kerry M. Hanson and Jodi L. Hanson) (Sundog).
¶88 "Beaver Dam Conservationists, LLC . . . owned the
shooting range where the charity event was held." Majority op.,
¶5. The shooting club was thus an owner.
¶89 The shooting club donated use of its property to Green
Valley Enterprises, a charitable organization, which opened the
property free to the public as part of a charitable fundraiser.
Of course, Green Valley could not have opened up the property to
the public if Beaver Dam Conservationists had not "opened up"
the property for Green Valley's charitable event.
¶90 Green Valley was an "owner" under Wis. Stat.
§ 895.52(1)(d)1. because it occupied the property with the
permission of an owner. In addition, it was an owner under
(d)2. if it signed "a recreational agreement" with Beaver Dam
2
No. 2014AP1508.dtp
Conservationists.1 Whether Green Valley actually signed a
"recreational agreement" is not known.
¶91 The principal issue in this court is whether Sundog
also is an "owner" by virtue of occupying the property.
¶92 This was not the principal issue in the circuit court.
In fact, this was not an issue at all in the circuit court. In
its motion for summary judgment, Sundog explained at length that
it was an "owner" under the statute because it occupied the
property.
¶93 The plaintiffs did not dispute this contention. The
plaintiffs instead took a different position:
The liability of the Defendant in this case has
absolutely nothing to do with the condition of the
land, any structures upon it, or use of the land
itself by the Plaintiffs or the Defendant.
. . . .
Negligent acts or decisions not directed at the
condition of the land are not entitled to immunity.
¶94 The Dodge County Circuit Court, Joseph G. Sciascia,
Judge, wrote the following: "The [plaintiffs] do not dispute
that the plaintiff was on the property for a recreational
purpose. The plaintiff raises the issue of whether or not the
statute applies in this case because the injury was caused by an
1
"Recreational agreement" is defined in Wis. Stat.
§ 895.52(1)(h) to mean "a written authorization granted by an
owner to a governmental body or nonprofit organization
permitting public access to all or a specific part of the
owner's property for any recreational activity."
3
No. 2014AP1508.dtp
act unrelated to the condition or maintenance of the
land . . . ."
¶95 Whether Sundog occupied the property was not an issue
in the court of appeals either. The court's opinion stated:
Roberts does not contest that Sundog was
occupying, and therefore was an "owner" of, "property"
on which Patti Roberts was engaging in "recreational
activity." See Wis. Stat. § 895.52(1)(d), (f), (g).
Roberts also does not dispute that "the activity
giving rise to [Patti Roberts'] injury was a
'recreational activity' as defined by the statute,"
that is, ballooning.
Roberts v. T.H.E. Ins. Co., No. 2014AP1508, unpublished slip
op., ¶16 (Wis. Ct. App. Mar. 26, 2015) (alteration in original).
¶96 The reason why "occupies" is the principal issue in
this court is because this court made it the principal issue by
asking the parties to brief it. The court's order granting
review stated in part:
IT IS FURTHER ORDERED that the parties' briefs shall
address the following additional issue:
Whether the defendants/respondents Sundog Ballooning,
LLC, Kerry M. Hanson, and Jodi L. Hanson, were
"occupiers" of the property in question for purposes
of the recreational immunity statute at the time of
the accident in question. See Wis. Stat.
§ 895.52(1)(d); see also Doane v. Helenville Mut. Ins.
Co., 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998).
¶97 This court has broad authority to ask that additional
issues be briefed, but the court should be careful not to fault
a party for failing to supply complete evidence on an issue that
was not contested, or chide a party for not arguing or briefing
an issue that was not necessary because of the party's success
4
No. 2014AP1508.dtp
in circuit court on a more encompassing issue. See Majority
op., ¶33 n.6.
¶98 As I see it, Sundog took possession of a large, wide-
open space at the recreational property of Beaver Dam
Conservationists at the express invitation of Green Valley
Enterprises. Its balloon was tethered to two trees and a pickup
truck that was brought into and parked on the property. The two
trees and truck formed a triangle with the large balloon in the
middle. The Hansons flagged off the whole area. They set up a
display and a sign-up table for the balloon ride, and they
designated a waiting area for people to line up for a ride. In
short, the Hansons completely controlled one section of the
property for their ballooning operation. They "filled up" the
space. They not only "used" the space but also governed the
space during the time they were authorized to be there. In sum,
they occupied the property.
¶99 In Doane, the court of appeals said, "An occupant is
one who has actual possession of the property, but is more
transient than either a lessee or an owner with legal title."
Doane, 216 Wis. 2d at 351 (citing Hall v. Turtle Lake Lions
Club, 146 Wis. 2d 486, 491, 431 N.W.2d 696 (Ct. App. 1988)).
This, in essence, is the rule applied in multiple cases. There
can really be no dispute that Sundog satisfied the test of
"occupies" under this rule.
¶100 The Doane court added, however, that "'occupancy,' in
the statutory sense, signifies a degree of permanence, as
opposed to the mere use of the property in question." Id.
5
No. 2014AP1508.dtp
(citing Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d
1193, 1197 (7th Cir. 1987)). The Doane court later stated:
"Occupy" is defined as "to take and hold
possession." Webster's New Collegiate Dictionary 794
(8th ed. 1974). That definition could imply
possession for some unstated period of time or it
could be understood in a way in which time is not
relevant. Therefore, reasonable persons could differ
in their assessments of whether Ehle "occupied" a
portion of the lake with his shanty within the meaning
of the statute. However, occupy, as used in § 895.52
Stats., has been defined by this court as requiring a
degree of permanence, as opposed to mere use. See
Hall, 146 Wis. 2d at 491, 431 N.W.2d at 698 (citing
Smith, 823 F.2d at 1197).
Id. at 354 (emphasis added).
¶101 The court of appeals reached the correct decision in
Doane, but it did so, at least in part, for the wrong reason.
The Hall case never discussed "a degree of permanence" because
Hall never quoted that portion of the Seventh Circuit's opinion.
Hall clearly sidestepped the "permanence" part of the Seventh
Circuit's opinion and instead quoted language that the Seventh
Circuit had quoted from the underlying District Court decision.
The language quoted from the District Court's decision made
absolutely no reference to "permanence." Until Doane, no
Wisconsin case had ever used the phrase "degree of permanence."
¶102 The Hall case involved a Lions Club in Turtle Lake
that sponsored a fair on the grounds of the Turtle Lake Village
Park. The Village granted the Lions permission to use the park.
The Hall court said: "[W]hen a third party such as the Lions
Club produces a fair on the land of another, it 'occupies' the
land within the intended definition." Hall, 146 Wis. 2d at 490.
6
No. 2014AP1508.dtp
Then the court quoted language that the Seventh Circuit had
quoted from the underlying District Court decision in Smith:
[O]ccupant include[s] persons who, while not owners or
tenants, have the actual use of land.. . . . While
"occupant" includes [an] owner and lessee, it also
means one who has the actual use of property without
legal title, dominion or tenancy. In order to give
meaning to [occupies], the term should be interpreted
to encompass a resident of land who is more transient
than either a lessee or an owner.
Id. at 491 (alterations in original)(quoting Smith, 823 F.2d at
1197, which had quoted Smith v. Sno Eagles Snowmobile Club,
Inc., 625 F. Supp. 1579, 1582 (E.D. Wis. 1986)).
¶103 If the Doane case is controlling, it substantially
changed the law in Wisconsin, disregarding prior court of
appeals precedent, when it quoted from the Seventh Circuit's
independent analysis in Smith, rather than language quoted from
the District Court's underlying decision.
¶104 In the Seventh Circuit case, the losing party, Smith,
relied on Labree v. Millville Manufacturing, Inc., 481 A.2d 286
(N.J. Super. Ct. App. Div. 1984), a New Jersey case in which a
contractor was sued after excavating land as part of the
construction of a highway. Smith, 823 F.2d at 1196-97. "The
excavation and transfer of sand and gravel resulted in the man-
made creation of a twenty acre lake in which people swam on an
informal basis." Id. at 1197. David Labree later dove into the
lake and hit his head, rendering him a quadriplegic. Id. The
contractor, who was sued after he had left the land, claimed
recreational immunity under a New Jersey statute. The New
Jersey court said:
7
No. 2014AP1508.dtp
We believe use of the word "occupant" in the
statute signifies an intent to provide immunity for an
entity with a degree of permanence in the occupancy,
not merely one who is using the property, as was the
case with Gaskill. [Gaskill] "occupied" the property
not really as one in occupancy but rather as one
removing dirt and gravel from it.
Id. (alterations omitted)(quoting Labree, 481 A.2d at 291).
¶105 The Seventh Circuit opinion in Smith borrowed the
"degree of permanence" language from the New Jersey court and
used it against the losing party. But it is very doubtful that
the Seventh Circuit intended to create a "degree of permanence"
test for "occupants." Indeed, the Seventh Circuit favorably
referred to the language from the underlying District Court
opinion, quoted in Hall, when explaining that if the court "were
to circumscribe and interpret 'occupant' as one in actual
possession or exclusive control the term would be
indistinguishable from owner." Smith, 823 F.2d at 1198. Our
court of appeals should not have embraced the phrase "degree of
permanence" as established Wisconsin law to bootstrap its
decision in Doane.
¶106 This court cannot adopt the "permanence" test from the
Seventh Circuit decision without overruling Hall and numerous
other cases, and also effectively ruling that Green Valley
Enterprises did not "occupy" the property. If a "permanence"
test disqualifies Sundog, it would disqualify Green Valley
Enterprises as well because Green Valley did not own or lease
the property——it occupied the property. Green Valley's few
extra hours of occupancy at the shooting range cannot
8
No. 2014AP1508.dtp
realistically be viewed as being more "permanent" than Sundog's
occupancy.
¶107 The majority's decision to disqualify Sundog from any
status as an "owner" and send this case back for trial does not
end the immunity issue. If Green Valley is still considered an
occupant, we must anticipate that Sundog will assert that it was
Green Valley's "agent" under Wis. Stat. § 895.52(2)(a) and (b).
There is no definition of "agent" in the recreational immunity
statute, meaning that the circuit court may resort to a
dictionary. "Agent" is defined as (1) one that acts or has the
power or authority to act, or (2) one empowered to act for or
represent another. American Heritage Dictionary of the English
Language 33 (3d ed. 1992).
¶108 Kerry Hanson explained in his deposition that he and
his wife lived in Rhinelander but had family ties to Beaver Dam.
In fact, his sister, Kristin Hanson, was manager for agency
development for Green Valley Enterprises. Kerry Hanson
testified as follows:
Q. How was it that it came about that you were going
to be involved in this event in the first place?
. . . .
A. --the head of the Green Valley Enterprises, a
business that services special needs people, was
actually in the neighborhood, saw my balloon tethered.
He employs my sister, who is a marketing director for
Green Valley Enterprises. He saw it and said, wow,
what a cool thing; maybe we could use that at our
fundraiser to increase awareness, and I believe that
began the process.
Q. And eventually it was agreed that you would do
that.
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No. 2014AP1508.dtp
Correct?
A. Right.
Q. And it's my understanding that you were donating
your services that day?
A. Right.
¶109 In other depositions, witnesses testified that
Sundog's balloon rides were advertised as an attraction for
Green Valley Enterprises' fundraising event.
¶110 Under the circumstances, it would be rather difficult
to conclude that Sundog was not an "agent" of Green Valley
Enterprises if Green Valley was an "owner."
¶111 The "agent" of an "owner" is immune under the statute.
However, the majority's conceptual dilemma is that any "agent"
in this situation is likely to be "a third party not responsible
for opening up the land to the public," Majority op., ¶33, which
the majority now deems essential to qualifying for immunity:
"Here . . . defining Sundog as an 'occupier' would not further
the policy underlying the statute because the Conservationists'
property was already open for public recreational purposes."
Id., ¶35.
¶112 The majority opinion adds, "Immunizing Sundog would
have no effect on whether the public had access to private land,
because Sundog is not responsible for opening the land to the
public." Id., ¶37.
¶113 This analysis would appear to deny immunity to any
"officer, employee or agent" who did not "open up the land" to
the public.
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No. 2014AP1508.dtp
¶114 This analysis also is deficient because it ignores the
fact that people often come to a property because they have been
attracted by the promise of recreational activities there.
Example: the Roberts family came to the shooting range, in part,
because they heard there would be balloon rides. If
organizations and people providing bona fide recreational
activities are stripped of recreational immunity because they
did not "open up the land to the public," they will have to
rethink whether they are willing to participate in such
activities.
¶115 In sum, the majority opinion seriously misinterprets
the meaning of "owner" in the statute.
¶116 As noted above, the Robertses contended at trial that
recreational immunity must be linked to a "condition of the
land, any structures upon it, or use of the land itself." See
supra, ¶93. Justice Ziegler's concurrence champions this
proposition by relying on Linville v. City of Janesville, 184
Wis. 2d 705, 516 N.W.2d 427 (1994), and Kosky v. International
Ass'n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App.
1997).
¶117 Linville is the tragic case in which a man took a
mother and her four-year-old son to a city-owned pond in
Janesville. The man intended to take the boy fishing, and he
was checking out fishing spots for the next day. Through a
series of bizarre events, the man drove his van too close to the
water, got stuck in mud, then inadvertently drove the van into
the water where he and the boy drowned. Plaintiffs sued the
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No. 2014AP1508.dtp
city claiming that the city's paramedics were negligent in their
rescue of the boy and negligent in providing medical services to
the boy. The city defended with a claim of recreational
immunity under Wis. Stat. § 895.52.
¶118 This court first struggled with the question of
whether the three people at the pond were engaging in a
"recreational activity" at the time two of them died. The court
said they were. But that did not settle the question of whether
the city could claim recreational immunity for the alleged
negligence of its paramedics in the rescue effort.
¶119 The court determined that the city could not assert
recreational immunity for the alleged negligence of its
paramedics because it was virtually coincidental that the
alleged negligence of the paramedics occurred at a city-owned
recreational site and came after a mishap in recreational
activity for which the city bore no responsibility.
¶120 The court said: "The City's immunity for its functions
as owner of recreational land cannot shelter its liability for
negligently performing another function." Linville, 184
Wis. 2d at 711.
¶121 In discussing this conclusion, the court observed: "We
must determine whether this statute immunizes the paramedics and
the City simply because the paramedics are employees of the City
which owns the Pond." Id. at 718.
[G]ranting immunity to the landowner when the
landowner and the employer of the negligent employee
are functioning in two different capacities and are
therefore not the same entity in the eyes of the law
would produce absurd consequences. . . . To interpret
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No. 2014AP1508.dtp
the language of sec. 895.52(2)(b), Stats., to include
injury resulting from negligent rescue and treatment
by the paramedics in this case, would produce absurd
consequences.
Id. at 719. The court continued: "The paramedics provide
emergency medical treatment in every part of the City, no matter
the situs. Thus the City's rescue attempts and medical
treatment are separate and apart from the City's ownership of or
activities as owner of recreational land." Id. at 721.
¶122 The Linville court bolstered its analysis by repeated
reference to the purported purpose of the recreational immunity
statute, e.g., property owners should be encouraged to open up
land to the public. In my view, this discussion of policy was
not necessary to a limitation of immunity and is not relevant
when dealing with public land that is intended for use by the
public.2
2
Kosky v. International Ass'n of Lions Clubs, 210
Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), also is cited in
Justice Ziegler's concurrence. This case requires close
examination.
Kosky involved a man whose hands were badly injured as he
was participating in a three-person team detonating "explosive
fireworks" at the annual Fourth of July fireworks celebration in
Land O'Lakes, Wisconsin. Kosky sued the Land O'Lakes Lions Club
and other sponsors of the show, as well as several co-workers.
The defendants claimed recreational immunity under Wis. Stat.
§ 895.52.
(continued)
13
No. 2014AP1508.dtp
In his brief to the court of appeals, the plaintiff
asserted that the "extra-hazardous activity of detonating
explosive fireworks" was not a "recreational activity" protected
under Wis. Stat. § 895.52. (capitalization and title case
omitted.) He also asserted that although he had ties to the
area, he came from Niles, Illinois, at the specific request of
the Land O'Lakes Lions Club "to perform work tasks with a team
of people detonating explosive fireworks." He declared that he
personally was not engaging in recreational activity because he
was working, not watching the fireworks.
The court of appeals rejected Kosky's argument that the
detonation of fireworks could not be a recreational activity
because it is an inherently dangerous, extra-hazardous activity.
Kosky, 210 Wis. 2d at 474. On the other hand, the court was not
willing to say that the detonation of fireworks was a
recreational activity in the circumstances presented. Instead,
the court concluded that "recreational immunity does not attach
to the landowner when an act of the landowner's officer,
employee or agent that is unrelated to the condition or
maintenance of the land causes injury to a recreational land
user." Id. at 475.
The Kosky court quoted from Linville: "Extending immunity
to landowners for negligently performing in a capacity unrelated
to the land or to their employees whose employment activities
have nothing to do with the land will not contribute to a
landowner's decision to open the land for public use." Id. at
476 (quoting Linville, 184 Wis. 2d at 719).
To support this conclusion, Linville cited Ervin v. City of
Kenosha, 159 Wis. 2d 464, 472-76, 464 N.W.2d 654 (1991), for the
following proposition: "The legislature, in sec. 895.52, Stats.,
granted immunity to landowners with respect to the condition of
the land and to the landowners' (or its employees') actions with
respect to the land." Linville, 184 Wis. 2d at 718.
As will be seen, this statement is not an accurate
description of Ervin. Moreover, it does not take into account
that lessees and occupiers and persons with a recreational
agreement cannot "open the land" until the actual landowner puts
them in a position to open the land. It also fails to
acknowledge that public land is normally open to the public
already.
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No. 2014AP1508.dtp
¶123 Justice Ziegler's concurrence builds on Linville and
would state the law as follows:
(1) While the policy of the recreational immunity statute
encourages landowners to open their land to the
public, the recreational immunity statute does not
cloak negligent actors with immunity no matter what
they do. Justice Ziegler's concurrence, ¶67.
(2) A "person" who owns, leases, occupies, or has a
"recreational agreement" to use recreational property
is not sheltered from liability for "negligently
performing" another function such as operating or
otherwise participating in a "recreational activity,"
as defined in Wis. Stat. § 895.52(1)(g). See id.,
¶69. An "owner" under the statute "might sometimes
function in a capacity unrelated to its ownership of
the land, and that . . . owner should not be immunized
against claims that the owner engaged in negligent
conduct when operating in that capacity." Id.
¶124 Justice Ziegler writes that the "municipal owner of a
pond in which a four-year-old boy drowned despite the efforts of
paramedics employed by the owner was immune under § 895.52 from
claims that its pond was negligently maintained, but not immune
from claims that it negligently performed in its capacity as
provider of paramedic services." Id. (emphasis added).
¶125 Justice Ziegler's summary of the law is squarely at
odds with the court's discussion in Ervin v. City of Kenosha,
159 Wis. 2d 464, 464 N.W.2d 654 (1991). In that case, two
15
No. 2014AP1508.dtp
youths drowned at a public beach owned and operated by the City
of Kenosha. The youths' parents sued the City for negligently
hiring and failing to properly train and instruct lifeguards,
and for the lifeguards' alleged negligent performance at the
time of the drownings. This court was confronted with arguments
about separating the City's ownership of the land from its
operation and oversight of the beach by its lifeguards. The
court concluded that "the City is immune from
liability . . . for its negligence in hiring or failing to
properly train the lifeguards, [and] for the lifeguards'
negligent performance." Ervin, 159 Wis. 2d at 469.
¶126 The Ervin court's opinion reads in part:
The parents argue that sec. 895.52(2), Stats., does
not immunize the City from liability for the
lifeguards' negligence or for its own negligent hiring
and failure to train them. The parents contend that
the City's conduct represented "active" negligence,
and that the statute was intended to immunize only
"passive" or "condition of the premises" negligence.
We disagree because: (a) the plain language of the
statute does not support this contention, (b)
Wisconsin case law permits immunity under the
recreational use statute for both active and passive
negligence, and (c) legislative intent clearly
supports granting immunity for both active and passive
negligence.
Id. at 472.
¶127 The Ervin court also quoted approvingly from this
court's decision in Wirth v. Ehly, 93 Wis. 2d 433, 287
N.W.2d 140 (1980):
The statute does not contemplate that the land subject
to public recreational use shall remain static. Since
the purpose of the statute was to open land for
recreational use, it would be inconsistent for the
statute to provide protection only if the owner or
16
No. 2014AP1508.dtp
occupant does not perform any potentially negligent
activities on the land.
Ervin, 159 Wis. 2d at 475 (alteration omitted) (quoting Wirth,
93 Wis. 2d at 446).
¶128 It should be noted that the only justice who dissented
in Ervin was Justice William Bablitch, the author of the
Linville opinion. In his dissent, Justice Bablitch wrote:
By placing unqualified lifeguards on a public
beach, the City of Kenosha . . . created a trap for
the unwary. The presence of the lifeguards created
the perception of a safe condition that was not
justified. I do not agree with the majority that the
recreational use statute exempts owners of
recreational property from liability when the actions
of the owner create a perception of safety that does
not in reality exist. The legislature could not have
intended such an absurd result.
Id. at 485 (Bablitch, J., dissenting). In Justice Bablitch's
Linville opinion, the court did not overrule Ervin.
¶129 In her concurrence, Justice Ziegler formulates a
rational policy of limited recreational immunity, but that
policy would require this court to overrule a number of cases
including Ervin and Wirth, disregard controlling language in the
statute, and clean up internal inconsistencies in her own
concurring opinion. If we were to assume the correctness of a
strict separation of functions analysis, that separation would
apply irrespective of whether the separation affects an owner, a
lessee, an occupier, a recreational agreement holder, or an
officer, employee, or agent of an owner. Neither the
concurrence nor the majority opinion has confronted the
consequences of such a change in the law.
17
No. 2014AP1508.dtp
¶130 I would not hesitate for a moment supporting the
unfortunate victim of this balloon accident if the statute
provided a reasonable means to do so. I do not hesitate now to
recommend that the legislature promptly review the recreational
immunity statute. I respectfully dissent, however, from any
notion that the court itself should rewrite the statute to reach
a desirable objective.
¶131 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this opinion.
18
No. 2014AP1508.RGB
¶132 REBECCA G. BRADLEY, J. (dissenting). I would affirm
the court of appeals1 and hold that Sundog2 is immune from
liability under Wisconsin's recreational immunity statute, Wis.
Stat. § 895.52(2).3 Sundog meets the statutory requirements to
obtain recreational immunity because: (1) it falls within the
definition of "owner," which includes "a person . . . that . . .
occupies property," and (2) Patti Roberts engaged in a
recreational activity on the property occupied by Sundog. See
Wis. Stat. § 895.52(1)(d)1., (2)(b). By actually using the land
during a charity event, Sundog meets the ordinary and accepted
meaning of "occupies." This conclusion comports with the
legislative purpose of recreational immunity and would not, as
the majority fears, result in the limitless application of the
recreational immunity statute. As a result, I respectfully
dissent from the majority opinion because a plain reading of the
1
Roberts v. T.H.E. Ins. Co., No. 2014AP1508, unpublished
slip op. (Wis. Ct. App. March 26, 2015).
2
Sundog refers to the Respondents: Sundog Ballooning, LLC,
Kerry Hanson, Jodi Hanson, and T.H.E. Insurance Company. See
majority op., ¶2.
3
Whether Sundog met the statutory definition of an "owner"
in Wis. Stat. § 895.52(1)(d)1. was not an issue before the court
of appeals. In our order granting the petition for review, this
court ordered the parties to brief and address that issue.
1
No. 2014AP1508.RGB
statute demonstrates Sundog is entitled to recreational
immunity.4
¶133 Subject to exceptions not applicable in this case,
property "owners," as defined by Wis. Stat. § 895.52(1)(d)1.-2.,
are immune from liability for injuries sustained as a result of
4
Because Sundog is entitled to recreational immunity, I
would not reach the issue of whether the waiver of liability
violates public policy.
Similarly, because I conclude that recreational immunity
applies to Sundog, it is unnecessary to decide whether Sundog
qualifies for recreational immunity based on its argument that
the hot air balloon constitutes "property" under Wis. Stat.
§ 895.52(1)(f). I disagree, however, with the majority's
conclusion that because the hot air balloon was not "constructed
on real property" it fails to meet the definition of property in
the statute. See majority op., ¶45. Although the majority's
structure analysis could be read to require that the structure
be built or put together on site, the majority suggests that for
purposes of recreational immunity, a structure must be
permanently affixed to real property. This requirement is not
found in the text of the recreational immunity statute, but the
majority imposes the requirement based on Peterson v. Midwest
Sec. Ins. Co., 2001 WI 131, ¶17, 248 Wis. 2d 567, 636 N.W.2d
727. Peterson held that a tree stand used for hunting
constituted a structure within the meaning of Wis. Stat.
§ 895.52(1)(f). Id., ¶4. The majority asserts that unlike
Sundog's hot air balloon, "the tree stand was permanent and
built or constructed on the real property." Majority op., ¶45.
This differentiation between a hot air balloon and a tree stand,
however, should not determine whether Sundog's hot air balloon
meets the common and ordinary meaning of the word "structure."
Based on the statutory language alone, Sundog's alternative
argument for recreational immunity fails because Patti Roberts
did not ever enter or get on the hot air balloon, which is
required by the recreational immunity statute. See Wis. Stat.
§ 895.52(2)(a)(making recreational immunity available to owners
when a person "enters the owner's property"); see also Wis.
Stat. § 895.52(2)(b)(making recreational immunity available to
owners when "a person engag[es] in a recreational activity on
the owner's property") (emphases added).
2
No. 2014AP1508.RGB
recreational activities that occur on their property. See Wis.
Stat. § 895.52(2). The parties dispute whether Sundog meets the
statutory definition of an "owner" to qualify it for
recreational immunity. Applicable here is § 895.52(1)(d)1.,
which defines an owner as: "A person, including a governmental
body or nonprofit organization, that owns, leases or occupies
property" (emphasis added).5 There is no assertion that Sundog
owns legal title to the property or that it leased the property
in question. The only way that Sundog meets the statutory
definition of "owner" is if Sundog "occupies [the] property."
See § 895.52(1)(d)1.
¶134 Unlike "owner," the word "occupies" is not defined in
the recreational immunity statute. However, the plain,
ordinary, and accepted meaning of "occupies" can be readily
determined by reference to the dictionary definition of an
"occupant." An occupant is "[o]ne that resides in or uses a
physical space." Occupant, The American Heritage Dictionary of
the English Language 1218 (5th ed. 2015). This definition
indicates that a person who occupies property is one who has
actual use of the property.
¶135 Here, Sundog donated tethered, hot air balloon rides
at a charity event sponsored by Green Valley Enterprises. To
provide this recreational ballooning activity, Sundog set up the
tethered hot air balloon on property legally owned by Beaver Dam
5
It is not disputed that Sundog Ballooning, LLC qualifies as
"a person" in the definition of "owner" found in Wis. Stat.
§ 895.52(1)(d)1.
3
No. 2014AP1508.RGB
Conservationists, LLC. It used both ropes and flags to
designate an area surrounding the hot air balloon. These facts
show that Sundog actually used the property to provide a
recreational activity, ballooning, (specifically mentioned by
Wis. Stat. § 895.52(1)(g)) when Patti Roberts sustained
injuries. This actual use of the property meets the plain,
common, and ordinary meaning of "[a] person . . . that . . .
occupies property." See Wis. Stat. § 895.52(1)(d)1. Therefore,
Sundog meets the definition of a statutory owner as one who
occupied the property and therefore is entitled to recreational
immunity.
¶136 This conclusion is consistent with the legislative
purpose of the recreational immunity statute: to "limit the
liability of property owners toward others who use their
property for recreational activities under circumstances in
which the owner does not derive more than a minimal pecuniary
benefit." 1983 Wis. Act 418, § 1. This statement of
legislative purpose is often summarized as "encourag[ing]
landowners to open up their land for recreational activity."
Ervin v. City of Kenosha, 159 Wis. 2d 464, 477, 464 N.W.2d 654
(1991) (emphasis added); see majority op., ¶28. The purpose of
the recreational immunity statute, however, is much broader as
evidenced by the legislature's decision to include in its
definition of "owner" both lessees and occupiers of property.
In interpreting the meaning of "property" defined by Wis. Stat.
§ 895.52(1)(f), we reached a similar conclusion: "[I]t is
abundantly clear from the language of the statute and the
4
No. 2014AP1508.RGB
statement of legislative intent that the purpose of the statute
is broader, and recreational immunity is not in fact limited
only to landowners." Peterson v. Midwest Sec. Ins. Co., 2001 WI
131, ¶22, 248 Wis. 2d 567, 636 N.W.2d 727.
¶137 This broad legislative purpose, evidenced by the
legislative policy statement read in conjunction with the
statutory text refutes the majority's claim that "[i]mmunizing
Sundog would have no effect on whether the public had access to
private land, because Sundog is not responsible for opening the
land to the public." See majority op., ¶37.
¶138 Here, Sundog provided the recreational ballooning
activity free of cost to members of the public who attended the
charity event. Depriving Sundog of immunity because Green
Valley and the Conservationists, rather than Sundog, "opened"
the land to the public, creates a distinction between Sundog on
the one hand, and Green Valley and the Conservationists on the
other, that is not only unsupported by the broad legislative
purpose of the recreational immunity statute but wholly absent
from the statutory definition of the term "owner." Furthermore,
the creation of this unsupported distinction ignores the fact
that the Conservationists allowed Green Valley to hold an event
that included a recreational ballooning activity provided by
Sundog. Sundog's participation in the charity event undoubtedly
encouraged the public to attend the event and, in some
instances, take part in the recreational ballooning activity.
Declining to recognize Sundog's statutory immunity will
discourage organizations such as Sundog from donating
5
No. 2014AP1508.RGB
recreational activities at charity events for fear of incurring
liability, which, in turn, will reduce sponsorship of such
events by organizations because they will have less recreational
options——if any at all——to draw attendance. Ultimately, public
access to private land will be reduced. This runs counter to
the legislative purpose of the recreational immunity statute.
¶139 As further support for its decision to treat Sundog
differently than Green Valley and the Conservationists, the
majority indicates that prior case law has not granted immunity
to a "third-party" organization such as Sundog. See majority
op., ¶33. Simply because the appellate courts apparently have
not previously been presented with a similar fact pattern does
not eliminate immunity created by the statute. Sundog satisfies
the requirements of the statute and therefore is entitled to the
immunity it provides.
¶140 Further, the majority does not explain how its
conclusion——that an organization such as Sundog that did not
open land to the public cannot "occupy" the property——accounts
for the plain, ordinary, and accepted meaning of the term
"occupies." See majority op., ¶41. Although the majority
opinion references the "requiring a degree of permanence, as
opposed to mere use" definition of "occupies" utilized by the
court of appeals in Doane v. Helenville Mut. Ins. Co., 216 Wis.
2d 345, 354, 575 N.W.2d 734 (Ct. App. 1998), majority op., ¶34,
it fails to apply the Doane definition to the facts of this case
and fails to address the fact that the court of appeals has used
differing definitions of "occupies," as explained below, when
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determining whether an individual or group meets the definition
of "owner" in Wis. Stat. § 895.52(1)(d)1.
¶141 On several occasions, the court of appeals has
addressed the meaning of "occupies" in the definition of "owner"
under Wis. Stat. § 895.52(1)(d)1. and concluded that "occupies"
requires actual use of the property. In Hall v. Turtle Lake
Lions Club, 146 Wis. 2d 486, 490-91, 431 N.W.2d 696 (Ct. App.
1988), the court of appeals adopted a definition of "occupies"
from a case decided by the Seventh Circuit Court of Appeals:
[O]ccupant include[s] persons who, while not owners or
tenants, have the actual use of land . . . . While
"occupant" includes [an] owner and lessee, it also
means one who has the actual use of property without
legal title, dominion or tenancy. In order to give
meaning to [occupies], the term should be interpreted
to encompass a resident of land who is more transient
than either a lessee or an owner.
Id. at 491 (citing Smith v. Sno Eagles Snowmobile Club, Inc.,
823 F.2d 1193, 1197 (7th Cir. 1987))(quoting Smith v. Sno Eagles
Snowmobile Club, Inc., 625 F. Supp. 1579, 1582 (E.D. Wis.
1986)).6 Subsequent cases have cited Hall and relied on its
definition of "occupies property." See Leu v. Prince Cty.
Snowmobile Trails Ass'n, Inc., 2005 WI App 81, ¶¶11-13, 280 Wis.
2d 765, 695 N.W.2d 889; Mooney v. Royal Ins. Co. of Am., 164
Wis. 2d 516, 521-22, 476 N.W.2d 287 (Ct. App. 1991); Lee v. Elk
6
Although Smith v. Sno Eagles Snowmobile Club, Inc., 823
F.2d 1193 (7th Cir. 1987), applied Wis. Stat. § 29.68, the
precursor to Wis. Stat. § 895.52, both statutes grant
recreational immunity to owners, lessees, and occupants.
Compare Wis. Stat. § 29.68(1)(1981-82) with Wis. Stat.
§ 895.52(1)(d)1. and (2) (2013-14).
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Rod & Gun Club, Inc., 164 Wis. 2d 103, 107, 473 N.W.2d 581 (Ct.
App. 1991).
¶142 However, in Doane, the court of appeals determined
that "occupies property" within the definition of "owner" under
Wis. Stat. § 895.52(1)(d)1. requires some degree of permanence
in addition to actual use of the property. Doane, 216 Wis. 2d
at 351. The court of appeals recently applied the some degree
of permanence definition of "occupies" from Doane in WEA
Property & Cas. Ins. Co., 2013 WI App 139, ¶21, 352 Wis. 2d 73,
841 N.W.2d 290.
¶143 The majority, however, fails to apply the some degree
of permanence definition of Doane to the facts of this case.
Instead, it compares this case to Doane by focusing on the
purpose underlying the recreational immunity statute——to open up
land for recreation. Majority op., ¶35. Doane involved the
owner of an ice shanty on a lake already open for public
recreational purposes, who was not present at the invitation of
the titled owner or lessee but who was simply using public
waters as any member of the public could. See Doane, 216 Wis.
2d at 348, 353-54. An entirely different situation is presented
here, where Sundog, the owner of a hot air balloon, was invited
to occupy land for purposes of attracting members of the public
to a charity event by offering the recreational activity of
ballooning. The majority likens Sundog to the owner of the ice
shanty because the Conservationists' property, like the lake in
Doane, was already open for public recreational purposes;
therefore, the majority reasons, recognizing immunity "'would
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not further the policy which underlies the statute, i.e., of
opening as much property as possible for recreational
use . . . .'" Majority op., ¶35 (citing Doane, 216 Wis. 2d at
355). The majority's analogy fails because in Hall, 146 Wis. 2d
at 487, the Turtle Lake Lions Club was immunized from liability
for an injury occurring on the grounds of a public park and in
Lee, 164 Wis. 2d at 107, the Elk Rod & Gun Club was considered a
"landowner" under the recreational immunity statute as an
occupant of a city park. The recreational immunity statute
simply does not restrict immunity to occupiers of land that is
not already open to the public.
¶144 The definition of "occupies" adopted in Hall comports
with the plain, ordinary, and accepted meaning of the word as
well as the legislative purpose of the recreational immunity
statute. There is no temporal requirement embedded in the
definition of occupy. The broad definition of "owner," which
expressly encompasses a person that "occupies" property, is not
limited to those who "host" or "organize" an event on the land.
The recreational immunity statute immunizes a person that "owns,
leases or occupies property"; the statute does not restrict
immunity to only those occupiers who are event "hosts" or
"organizers," a limitation the majority invents in this case.
In an apparent attempt to further narrow the scope of
recreational immunity beyond the words of the statute, the
majority reads into the statute language that simply is not
present. Whether recreational immunity should be further
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limited is a policy judgment for the legislature and not this
court to make.
¶145 Furthermore, I am not persuaded by the majority's
conclusion that granting recreational immunity to Sundog would
result in the limitless application of Wis. Stat. § 895.52(2).
See majority op., ¶¶38-40. A plain meaning interpretation of
"occupies property," requires actual use of the land. For
example, in Mooney, 164 Wis. 2d at 522-23, the court of appeals
held that a snowmobile club that had left the property following
the conclusion of an event did not meet the definition of an
occupier and could not receive recreational immunity. The same
would be true of a hot air balloon manufacturer because the
manufacturer is not located on the property at the event using
the land, and therefore is not an "occupier." It should go
without saying that the recreational immunity statute does not
extend to the manufacturer of Sundog's balloon yet the majority
uses this example to create an unnecessary limiting principle by
stirring unfounded fears that otherwise "there will be no
stopping point to recreational immunity" despite statutory
language that plainly restricts immunity to those who own, lease
or occupy property. See majority op., ¶39. Of course, the
manufacturer of Sundog's balloon fits none of these categories.
The legislature created a stopping point. It is not this
court's role to second-guess the legislature's policy judgments
by moving the mark.
¶146 Finally, the majority relies on Linville v. City of
Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), to declare a
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new limiting principle for recreational immunity. Majority op.,
¶¶38-39. In Linville, the court declined to extend immunity to
city paramedics providing services for injuries sustained during
a recreational activity, noting that such services could take
place days or weeks after the event and away from the site of
the recreational activity. Linville, 184 Wis. 2d at 711, 720.
Specifically, relying on Linville, the majority asserts that
Sundog has "no connection to the land" and therefore should not
qualify for recreational immunity. Majority op., ¶39. The use
of Linville and this particular limiting principle is perplexing
in two respects. First, the majority's reliance on Linville
implicitly addresses the Roberts's alternative argument——that an
injury must arise from a condition associated with the land——
despite the majority opinion's pronouncement that it does not
decide this issue. See majority op., ¶4 n.4. Second, not only
was Sundog present on the land during the charity event, but its
hot air balloon was literally connected to the land by ropes
that tethered the hot air balloon to two trees (and a truck) on
the property. Unlike the paramedics in Linville, Sundog was the
entity actually providing the recreational activity, notably one
that is specifically mentioned as a "recreational activity" in
the recreational immunity statute. See 895.52(1)(g).
¶147 I would affirm the court of appeals and hold that
Sundog is entitled to recreational immunity under Wis. Stat.
§ 895.52.
¶148 For the foregoing reasons, I respectfully dissent.
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¶149 I am authorized to state that Justice DAVID T. PROSSER
joins this dissent except for footnote 4.
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