00-2356 Auman, a minor v. School District of Stanley-Boyd

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“Trista entered the school property for educational purposes as required by the state’s compulsory school attendance and truancy laws. Furthermore, her participation in recess activities was required as part of the school district’s curriculum. Therefore, Trista was not engaging in a recreational activity under the statute.”

Even though the child’s activity, sliding down a snow-pile, was similar to one of the listed activities in the recreational immunity statute, tobogganing, the circumstances surrounding Trista’s sliding down the snow pile are not substantially similar to the circumstances of the voluntary recreational activities set forth in Wis. Stat. sec. 895.52(1)(g) because attendance at recess was mandatory.

“Applying our established fact-specific test, we conclude that the defendants in this case are not immune from liability under the recreational immunity statute. We reverse the circuit court’s order dismissing the complaint and remand the cause to the circuit court for further proceedings not inconsistent with this court’s holding.”

The order of the circuit court is reversed and the cause is remanded to the circuit court.

CONCURRING OPINION: Wilcox, J., with whom Crooks, J., joins. “I agree with the majority’s reasoning and holding in this case. I write separately only because I think that the majority has failed to discuss a particularly strong reason for not immunizing schools under the recreational immunity statute. That is the existence of statutes requiring that school buildings and grounds be kept in good repair which demonstrate the legislature’s support for upholding the duty of reasonable care for schools and school districts.

“These statutes, which direct schools and school districts to keep their property safe and healthful, are in conflict with the recreational immunity statute, which would provide that the school, as a property owner, does not owe, ‘to any person who enters the [school’s] property to engage in a recreational activity . . . [a] duty to keep the property safe for recreational activities . . . [a] duty to inspect the property, . . . [or a] duty to give warning of an unsafe condition, use or activity on the property.’

“When statutes conflict, we must attempt to reconcile them if possible. [Citation] Here, the simplest and most obvious way to reconcile these statutes is to find, as the majority does, that the legislature could not have intended to consider mandatory recess a ‘recreational activity’ under § 895.52, … and that the recreational immunity statute therefore does not apply.”

On Certification by the Court of Appeals, Abrahamson, Ch. J.

Attorneys:

For Appellant: Ann N. Knox-Bauer, Stanley

For Respondent: Joel L. Aberg, Thomas J. Graham Jr., Eau Claire