99-2987 Peterson v. Midwest Security Ins. Co.

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“Peterson … argues that the phrase ‘buildings, structures and improvements’ merely modifies ‘real property,’ so that a person who owns a building, structure or improvement but does not also own the underlying real property does not own ‘property’ within the meaning of the statute. He interprets the statute to create two categories of ‘property’: 1) real property, along with any buildings, structures, or improvements thereon; and 2) the waters of the state. He bases this interpretation on the lack of punctuation between the phrases ‘real property’ and ‘buildings, structures and improvements’ in the definition.

“We decline to give the absence of a comma such interpretive significance. Peterson’s punctuation-based interpretation operates to impose a requirement that does not appear on the face of the statute: that the owner of a building, structure or improvement implicated in a recreational injury must also own the underlying real property in order to own ‘property’ as that term is defined in the statute. But the statute does not say ‘”[p]roperty” means real property and buildings, structures and improvements thereon that are owned by the real property owner,’ and we cannot rewrite it in the exercise of interpreting it. See State v. Martin, 162 Wis. 2d 883, 907, 470 N.W.2d 900, 910 (1991)(‘Our task is to construe the statute, not to rewrite it by judicial fiat.’). According to the unambiguous language of the statute, a person who owns a ‘building, structure or improvement’ on real property owns ‘property’ under the statute, regardless of whether he also owns the underlying real estate. Where the language of a statute is clear and unambiguous, we do not look beyond it to ascertain its meaning.”

Affirmed.

CONCURRING OPINIONS: Prosser, J. “I support the majority’s conclusion that Wis. Stat. § 895.52 ‘does not require that the owners of “buildings, structures and improvements” also own the underlying real property in order to qualify for immunity.’ Majority op. at ¶4. This conclusion fairly reflects the intent of the legislature.”

DISSENTING OPINION: Bradley, J. “The essence of the majority opinion rests on its conclusion that this definition of property unambiguously creates three distinctly defined categories of property. Yet, the majority is able to reach this conclusion only by dismissing or ignoring rules of grammar and glossing over the ambiguity inherent in this definition. I conclude that the statute’s definition of property is ambiguous and that the majority’s bright-line, three-category interpretation conflicts with the legislative intent to provide immunity for outdoor activity.”

Review of a Decision of the Court of Appeals; Sykes, J.

Attorneys:

For Appellant: Daniel A. Rottier, Virginia M. Antoine, Madison

For Respondent: James W. Mohr, Jr., Hartford