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Claim not barred by recreational immunity

By: dmc-admin//November 2, 2005//

Claim not barred by recreational immunity

By: dmc-admin//November 2, 2005//

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A chaperon at an educational retreat was not engaged in recreational activity during a slip and fall, so her premises liability claim is not barred by sec. 895.52, the Wisconsin Court of Appeals held on Oct. 25.

Camp Whitcomb/Mason is a rural camping and retreat facility near Hartland. Approximately 25,000 persons use the camp every year.

Unifest 2000 was a school field trip, sponsored by the NAACP of Mequon, that took place Feb. 5-7, 2000. Kathleen Rintelman was a chaperon for the event.

What the court held

Case: Rintelman v. American National Life Ins. Co. of Texas, No. 2004AP2669.

Issue: Where a chaperon of recreational activities fell while walking from one building to another for utilitarian reasons, rather than to enjoy the scenery, does the recreational immunity statute bar a negligence suit against the property owner?

Holding: No. Even though the property was suited for, and used for, recreational activity, the plaintiff was not engaged in a recreational activity at the time of the injury, and did not enter the property for a recreational purpose.

Counsel: Kenneth R. Nowakowski, Milwaukee; Steven F. Stanaszak, Milwaukee, for appellant; Michael P. Russart, Milwaukee; Stephen W. Pasholk, Brookfield, for respondent.

After the bathrooms and showers in building in which she was staying malfunctioned, Rintelman had to walk to a different lodge. On the way, she slipped and fell, and was injured.

Rintelman brought suit against a number of defendants, who moved for summary judgment pursuant to the recreational immunity statute. Milwaukee County Circuit Court Judge Thomas R. Cooper granted the motion. Rintelman appealed, and the court of appeals reversed in a decision by Judge Ralph Adam Fine.

The recreational immunity statute excepts owners of liability to persons who enter the owners’ property for recreational activities.

Urban v. Grasser, 2001 WI 63, 243 Wis. 2d 673, 627 N.W.2d 511, lists six factors to consider in determining whether the statute applies: the intrinsic nature of the activity; the purpose of the activity; the consequences of the activity; the intent of the user; the nature of the property; and the intent (or lack thereof) of the property owner. A final factor is the reason the plaintiff was on the property.

The first two factors — the intrinsic nature of the activity, and the purpose of the activity — the court found weighed against immunity, concluding as to each that the undisputed evidence is that Rintelman “was not walking for exercise or to enjoy the scenery.” Instead, she was walking to move from one building to another.

The court also concluded that the third consideration — the consequences of the activity — also weighs against immunity, distinguishing Linville v. City of Janesville, 184 Wis.2d 705, 516 N.W.2d 427 (1994).

In Linville, the Supreme Court applied immunity, even though the plaintiffs were not injured while engaged in a recreational activity, because they were preparing to engage in one — fishing, in that case.

Distinguishing Linville, the court wrote, “Unlike the situation in Linville, where the projected consequence (cut short by the drownings) of the visit to the pond was fishing, the undisputed evidence here is that the only projected consequence (cut short by her fall) of Mrs. Rintelman’s walking on the path where she was injured was to move from one building to another in connection with her duties as a volunteer Unifest-2000 chaperon. Mov-ing from one building to another is not a ‘recreational activity’ unless it is inextricably connected to an activity that is recreational. … there is no summary-judgment evidence that Mrs. Rintelman was at Camp Whitcomb/Mason to participate in recreational activity. Thus, the consequences-of-the-activity consideration supports her contention that the statute does not apply.”

Likewise, the court found that the fourth consideration — intent of the user — weighed against immunity, reasoning, “the uncontested summary-judgment material is that Mrs. Rintelman was not ‘hiking’ or even walking for exercise, or strolling through the woods to enjoy the scenery. Thus, the intent-of-the-plaintiff consideration supports her contention that the statute does not apply.”

The court concluded that only two considerations — the nature of the property, and the intent of the property’s owner — weigh in favor of immunity, finding that the property is not only suited for recreational activity, but that is its actual use.

Finally, the court found that Rintelman was not on the property for a recreational purpose.

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Case Analysis

The court reasoned, “Although most if not all of the other persons attending Unifest 2000 at Camp Whitcomb/Mason may have been there at least in part to p
articipate in recreational activities, the summary-judgment record is devoid of any evidence that that is why Mrs. Rintelman was there. The only evidence in the summary-judgment record is that she was there as a volunteer chaperon and that she did not participate in any of the recreational activities — either planned or unplanned.”

The court concluded with the following discussion: “mere presence on property suitable for recreational activity when a plaintiff is injured does not, ipso facto, make applicable Wis. Stat. sec. 895.52. Indeed, the statute in haec verba requires that the ‘person … enter[] the owner’s property to engage in a recreational activity.’ Had the legislature intended a different rule, it could have easily so provided. As we have seen, if there were evidence that Mrs. Rintelman was participating in recreational activities while at Unifest 2000, there might be an issue whether the walk during which she fell was so inextricably connected with those activities to make the statute applicable. As we have seen, however, the defendants have the burden of proving the applicability of sec. 895.52. and here there is nothing in the summary-judgment record that would permit a jury to find that Mrs. Rintelman attended Unifest 2000 at Camp Whitcomb/Mason ‘to engage in a recreational activity’ (citations, footnote omitted).”

Accordingly, the court reversed.

Click here for Case Analysis.

David Ziemer can be reached by email.

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