99-0933 Urban v. Grasser and Heritage Mutual Insurance Co.

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Plaintiff had to cross defendant’s property because it was the only legal means of access to his boat.

“The sole purpose of Urban’s walk over David’s property was to gain access to his boat to use for recreational purposes. Throughout the weekend, including the day on which his injury occurred, he carried various items from his automobile to the boat for purposes of cleaning it and preparing it for future trips. Indeed, preparing the boat in this manner is one part of using the boat for pleasure and recreation. During this time, he and his family members also crossed David’s property to partake in a party on the boat. In addition, Urban crossed the property to practice driving his boat for a short time on the day he was injured. This particular activity – driving the boat – is specifically enumerated in the definition of ‘recreational activity’ as ‘water sports.’ On the whole, these activities were undertaken for relaxation or pleasure. Urban’s walk was recreational because Urban needed to cross the property to engage in recreational activities on his boat. David’s property was the only legal means available to access the boat. The walk was an integral part of these activities. …

“The sole purpose of Urban’s walk over David’s property was to gain access to his boat to use for recreational purposes. Throughout the weekend, including the day on which his injury occurred, he carried various items from his automobile to the boat for purposes of cleaning it and preparing it for future trips. Indeed, preparing the boat in this manner is one part of using the boat for pleasure and recreation. During this time, he and his family members also crossed David’s property to partake in a party on the boat. In addition, Urban crossed the property to practice driving his boat for a short time on the day he was injured. This particular activity – driving the boat – is specifically enumerated in the definition of “recreational activity” as “water sports.” On the whole, these activities were undertaken for relaxation or pleasure. Urban’s walk was recreational because Urban needed to cross the property to engage in recreational activities on his boat. David’s property was the only legal means available to access the boat. The walk was an integral part of these activities.”

Judgment affirmed.

CONCURRING OPINION, Wilcox, J. “I agree with the majority’s conclusion that Wis. Stat. sec. 895.52 (1995-96)5 confers immunity upon David Grasser. However, for the reasons expressed in my dissent to Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of LaCrosse, 2001 WI 64, ___ Wis. 2d ___, ___ N.W.2d ___, I do not join the majority’s conclusion that courts examining whether a particular activity falls within the scope of sec. 895.52 must consider the nature of the property on which the activity occurs and the subjective intent of the property owner to open his or her property to recreational activity.”

DISSENTING OPINION: Abrahamson, Ch., J, with whom Bradley, J., joins “Today’s decision extends immunity for recreational activity on one owner’s property to the owner of adjacent property that the injured plaintiff walked across in order to get to his automobile after leaving the land upon which he engaged in recreational activity. Because I conclude that this extension of immunity is not justified under Wis. Stat. sec. 895.52, I dissent.”

Kenosha County, Wagner-Malloy, J.; Bablitch, J.

Attorneys:

For Appellant: David P. Wilk, Robert L. Jaskulski, Kenosha

For Respondent: Arthur P. Simpson, Milwaukee