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Recreational immunity bars fairgoer suit

Anderson

“Brenna’s injury was directly related to the condition or maintenance of the Agricultural Society’s real property and the Kautzes’ first challenge to recreational immunity fails.”

Hon. Daniel P. Anderson
Wisconsin Court of Appeals

The Wisconsin Court of Appeals held on Sept. 29 that recreational immunity bars a claim based on a property owner’s failure to properly handle animal waste.

In 2001, Brenna Kautz and her father, Andrew, attended the Ozaukee County Fair, which is organized and operated annually by the Agricultural Society. Brenna was two years old at the time. Andrew was employed as a technical writer for Simplicity Manufacturing, a manufacturer of lawn and garden equipment. According to Andrew, he went to the fair for three reasons: (1) to view the small tractors on display, (2) to take Brenna to the fair to have fun and (3) to see if anyone was showing honey.

Andrew took Brenna to the lawn tractor display area, and she was able to climb around the tractors. Later, Andrew purchased Brenna a scoop of ice cream and they sat down at a picnic table. Prior to eating the ice cream, Andrew wiped Brenna’s hands with a diaper wipe.

Nevertheless, after leaving the fair, Brenna become severely ill with an E. coli infection and was hospitalized. The Kautzes brought suit against the Agricultural Society and Ozaukee County, alleging that the Agricultural Society and the County were negligent in failing to properly dispose of animal waste at the fairgrounds.

The Kautzes claimed that due to the Agricultural Society’s and the County’s negligence, contaminated runoff from animal wash areas was stepped in by fair attendees and tracked onto the farm equipment displays. The Kautzes alleged that Brenna came into contact with the E. coli bacteria while she was climbing on the lawn tractors displayed at the fair.

What the court held

Case: Kautz v. Ozaukee County Agricultural Society, No. 03-3281.

Issue: Under the recreational immunity statute, does the owner’s failure to remove animal waste from a county fair relate to the condition of the land?

Is a county fairgoer engaged in a recreational activity under the statute?

Holdings: Yes. The failure to properly handle waste relates to the condition or maintenance of the property.

Yes. Even if the fairgoer’s purposes weren’t wholly recreational, the statute applies.

Counsel: Michael J. Hanrahan, Milwaukee; Mary L. Richards, Milwaukee, for appellant; James S. Smith, Brookfield; Samuel J. Leib, Milwaukee, for respondent.

The Agricultural Society and the County moved for summary judgment, arguing that they were immune from liability under the recreational immunity statute, sec. 895.52. The court granted summary judgment in favor of both defendants. The Kautzes appealed only from the dismissal of their claim against the Agricultural Society, but the court of appeals affirmed in a decision by Judge Daniel P. Anderson.

Maintenance of Property

The court first held that the negligence alleged by the Klutzes — failure to properly dispose of animal waste at the fairgrounds — was related to the condition or maintenance of the land, rejecting the Kautzes that, because Brenna was injured by climbing on the farm equipment, her injuries were not a result of an activity on the land or improvements to the land.

The court reasoned, “The Kautzes wrongly focus on the farm equipment Brenna climbed on as being the instrument of her injury. The Kautzes’ complaint alleges that Brenna became infected because fair attendees stepped into runoff from animal wash areas and then tracked the animal waste onto farm equipment displays. The Kautzes further complain that the Agricultural Society was negligent in maintaining the property so as to prevent infection of other fair attendees. Thus, the injuring mechanism is not the farm equipment Brenna was playing on, but rather, it is the bacteria from the animal waste that was tracked onto the equipment from the Agricultural Society’s real property. If Brenna had gotten E. coli from a picnic bench or a playhouse, it could not be said that her injury came from the bench or the playhouse. Rather, it would be from the failure of the Agricultural Society to properly handle the animal waste that had accumulated on the ground. We, therefore, conclude that Brenna’s injury was directly related to the condition or maintenance of the Agricultural Society’s real property and the Kautzes’ first challenge to recreational immunity fails.”

Recreational Activity

The court next held that Brenna was engaged in a recreational activity, and therefore, their second challenge to application of the statute must also fail.

The Kautzes conceded that one of the purposes for attending the fair was for recreation — for Brenna to have fun and enjoy the fair. Thus, even though another reason may have been for her father to examine competitors’ farm equipment, the statute applies.

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Case Analysis

The court concluded, “even though the Kautzes may have had a purpose for their attendance at the fair besides having fun and enjoying the fair offerings, this does not mean that their attendance at the fair cannot be recreational for purposes of the statute. As long as one of the purposes for engaging in the activity is recreation, as it concededly was here, the statute attaches and bars their claim.”

The court further found that its interpretation is consistent with the legislative intent of liberally construing the statute in favor of the landowner to encourage landowners to open their land to the public.

Accordingly, the court affirmed the grant of summary judgment in favor of the Agricultural Society.

Click here for Case Analysis.

David Ziemer can be reached by email.

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