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Recreational Immunity Case Analysis

Wisconsin case law has long held that fairgoers are engaged in a recreational activity, and cannot defeat a property owner’s recreational immunity by arguing they are not. Hall v. Turtle Lake Lions Club, 146 Wis.2d 486, 431 N.W.2d 696 (Ct.App.1988). The decision in the case at bar is just one of many in a long line of rejections of attempts to evade that holding via one means or another.

However, while the court devoted the lion’s share of its discussion to the “recreational activity” question, the stronger argument for the plaintiffs is the one that the court devoted but one paragraph to rejecting — that the negligent activity in question did not relate to the condition or maintenance of land, and thus, is not within the ambit of recreational immunity.

In the case of Kosky v. International Association of Lions Clubs, 210 Wis.2d 463, 565 N.W.2d 260 (Ct.App.1997), a volunteer at a festival was injured while helping with the fireworks display. He brought suit, and the defendants claimed recreational immunity.

The court rejected the defense, however, concluding, “the activities of [defendants] were related to setting of temporary firing tubes for explosive fireworks and the establishment of a process relating to the loading and cleaning of said tubes, and to supervise and train workers such as Kosky regarding a dangerous process of loading and cleaning explosive devices. These allegedly negligent activities are neither connected directly to the land nor related to the condition or maintenance of the land.” Kosky, 210 Wis.2d at 476-477.

In support of its holding, the court of appeals quoted extensively from Linville v. City of Janesville, 184 Wis.2d 705, 516 N.W.2d 427 (1994), noting that the purpose of recreational immunity is to immunize people or municipalities “in their capacities as landowners,” and concluding, “Extending immunity to landowners for negligently performing in a capacity unrelated to the land or to their employees whose employment activities have nothing to do with the land will not contribute to a landowner’s decision to open the land for public use.” Kosky, at 476 (quoting Linville, at 719).

In the case at bar, the negligent activity alleged was allowing hundreds of domestic animals to be brought on to the property, without having an adequate system to safely dispose of the feces.

The court holds that the “injury was directly related to the condition of the condition or maintenance of the … property,” but does not explain in what way, or how immunizing the negligent conduct protects the landowners “in their capacities as landowners.” The negligence here arguably concerns only their negligent conduct in running a fair, not owning land.

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The case is easily distinguishable from Hall. In Hall, a fairgoer stepped in a hole in the ground during a fair held at a public park. Recreational immunity in such a case makes perfect sense. People who go to public parks know, or should know, that the parks are not going to have the smooth terrain of a manicured back yard. For the purposes of the recreational immunity statute to be served, the owner must have immunity for conditions of the land; he must be exempt from such traditional premise liability suits.

The case at bar, however, is no traditional premise liability suit. It has nothing to do with how the defendants took care of the land, but whether they had a reasonable means in place to remove the waste of the animals that would be brought on the land specifically for the fair. As such, the case is a good candidate for reversal should review be sought in the Wisconsin Supreme Court.

– David Ziemer

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David Ziemer can be reached by email.

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