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99-0327 Minnesota Fire & Casualty o. v. Paper Recycling of La Crosse

By: dmc-admin//June 18, 2001//

99-0327 Minnesota Fire & Casualty o. v. Paper Recycling of La Crosse

By: dmc-admin//June 18, 2001//

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“The activity that the boys were engaged in, crawling through stacks of baled paper, while lighting matches and starting fires, is not included in the second part of the immunity statute’s definition which lists 28 specific recreational activities. Nor is the activity of the boys included, specifically, in the third part’s broad definition providing that a recreational activity is ‘outdoor sport, game or educational activity.’…

“In the present case, there is nothing in the intrinsic nature of the boys’ activity that was substantially similar to a recreational activity. As stated above, the nature of the boys’ activity was that they were engaged in mischievous conduct while no one was around. … The nature of the property was a commercial site used for a business purpose. In addition, the property was not open to the public for recreational use. …

“What naturally followed from the boys’ activity was that a fire started, destroying Paper Recycling’s property and tragically killing Devenport. In fact, it was an almost certain consequence that a fire would start when the boys were lighting matches in stacks of baled paper. There is nothing in this terrible consequence that is substantially similar to any of the recreational activities listed in the statute. …

“By applying an objective, reasonable adult standard, we conclude that the conduct that Devenport and his friends were engaged in, crawling through stacks of baled paper, while lighting matches and starting fires, is not a recreational activity. A reasonable adult would not consider crawling around lighting fires to be a recreational activity. Crawling around lighting fires is not a game, nor is it based on competition, rules or strategy. It is just an inherently dangerous activity that is not objectively a recreational activity.”

Affirmed.

CONCURRING OPINION: Bradley, J., with whom Abrahamson, Ch. J. “When enacting the recreational immunity statute, did the legislature intend that it apply to an industrial yard? Did the legislature intend that it provide immunity from liability in virtually all cases involving the outdoor activities of children? Because I agree with the majority’s answers to these questions, I join the opinion. I write separately to emphasize the lack of a coherent statutory purpose and scheme that frustrates our application of the statute.”

DISSENTING OPINION: Wilcox, J., with whom Prosser, J., joins. “I respectfully dissent. I would conclude that the boys’ activity constituted a “recreational activity” under Wis. Stat. sec. 895.52 (1995-96)9 and, for this reason, sec. 895.52 immunizes Paper Recycling from liability. Therefore, I believe that this court should have ruled that summary judgment in favor of Paper Recycling is appropriate.”

99-0327 Minnesota Fire & Casualty o. v. Paper Recycling of La Crosse

Court of Appeals, Crooks, J.

Attorneys:

For Appellant: Joyce A. Davenport, Dean R. Rohde, River Falls

For Respondent: James G. Curtis, La Crosse,

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