Immunity Case Analysis

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On its face, the court’s opinion appears unobjectionable — case law provides a number of considerations; and the court proceeds to consider each individually, deciding whether they weigh in favor of the plaintiff or the defendant.

However, in the context of the recreational immunity statute, this methodology fails in three respects: it subdivides one consideration into four separate ones; it fails to consider whether chaperoning others engaged in recreational activity is substantially similar to participating in those recreational activities; and it fails to consider the legislative purpose of the statute.

Reading the court’s progress through the factors is akin to being in the movie, “Groundhog Day”; the court is re-examining the same consideration over and over again.

The first four considerations the court examined are as follows: intrinsic nature of the activity; the purpose of the activity; the consequences of the activity; and intent of the user. The court found that each consideration weighs in favor of the plaintiff for the exact same reason: she was not walking on the trail for recreation, but to get from one building to another.

If the four considerations were genuinely independent, it would not be possible to decide each of them in favor of the same party, merely by repeating the same fact four times.

Supreme Court precedent also suggests that these four considerations were not meant to be examined collectively, rather than individually. Auman v School District of Stanley-Boyd, 2001 WI 125, 248 Wis.2d 548, 635 N.W.2d 762.

The court in Auman stated the standard as follows: “A court must consider the nature of the property, the nature of the owner’s activity, and the reason the injured person is on the property. A court should consider the totality of circumstances surrounding the activity, including the intrinsic nature, purpose, and consequences of the activity. A court should apply a reasonable person standard to determine whether the person entered the property to engage in a recreational activity. Finally, a court should consider whether the activity in question was undertaken in circumstances substantially similar ‘to the circumstances of recreational activities set forth in the statute.’ (cites omitted).” Auman, 635 N.W.2d at 767-768.

The standard as set forth in Aumun places all the circumstances surrounding the plaintiff’s activity into one consideration, among three others; it does not divide the plaintiff’s activity into four separate ones.

It is also noteworthy that, in Auman, the court did not even engage in a measured, step-by-step, analysis, but went directly to the final consideration. Because the plaintiff was a child injured during school hours, during a mandatory recess period, the court concluded she was not engaged in a recreational activity, within the meaning of the statute, even though she was engaged in an indisputably recreational activity (sledding). Id., at 768.

In contrast, in the case at bar, the court never even considered whether chaperoning others who are on property for recreational purposes is substantially similar to being on property for one’s own recreational purposes. Perhaps, it is not, but the question needs to be asked.

Another flaw in the methodology is apparent from reading the standard as put forth by the Supreme Court in Urban v. Grasser, 2001 WI 63, 243 Wis.2d 673, 627 N.W.2d 511, 516-517: “each case requires an examination of all the circumstances surrounding the activity, keeping in mind the legislative purpose. We have identified a number of those aspects: the intrinsic nature of the activity, the purpose of the activity, the consequences of the activity, and the intent of the user. An examination of prior cases interpreting Wis. Stats. sec. 895.52 also leads us to conclude that there are at least two other factors to take into account: the nature of the property and the intent (or lack thereof) of the property owner (cites omitted)(emphasis added).”

Although the court of appeals considered each aspect listed by the Supreme Court in Urban, at no point does the court do so “keeping in mind the legislative purpose” of the statute.

The legislative purpose is stated in Urban: “to encourage property owners to allow use of their lands for recreational activities by removing the potential for liability arising out of negligence actions brought against them by persons who use the land for such recreational purposes.” Urban, at 520, quoting Verdoljak v. Mosinee Paper Corp, 200 Wis.2d 624, 635, 547 N.W.2d 602 (1996).

The legislative purpose is clearly undermined if the property owner is only immune from liability for injuries incurred by those engaged in recreational activity, but can be sued by their chaperons.

The purpose is likewise undercut, if liability for a fall on the same path is contingent on whether the plaintiff was hiking or walking to a recreational activity at the time of the injury (immune), or is only walking to engage in a non-recreational activity at the time (not immune).

The ultimate fault for the incorrect result in this case rests not with the court, however, but the Legislature. As Justice Jon P. Wilcox noted in Urban, as well as in Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of LaCrosse, 2001 WI 64, pars. 60-61, 244 Wis.2d 290, 627 N.W.2d 527, the statute as written makes the plaintiff’s intent the sole criterion for immunity; consideration of the nature of the property, and the intent of the owner, are wholly judicial creations.

By placing the sole focus on the plaintiff’s activity, rather than the property, the statute fails to serve its stated purpose, because the property owner can only exercise control over the property, not the plaintiff‘s activity. To actually encourage a property owner to do a particular act, a statute must give him protection if he does that act, and not make liability contingent on factors he cannot control.

The court of appeals correctly noted the problem: “Had the Legislature intended a different rule, it could have easily so provided.” However, that is the position of the Wilcox dissent; the majority adopted a different rule, requiring consideration of the legislative purpose. By failing to consider that purpose, the court of appeals in the case at bar failed to apply the rul
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Nor is the majority rule in Grasser irreconcilable with the more recent decision in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis.2d 635, 681 N.W.2d 110, 125, which holds in relevant part: “Some statutes contain explicit statements of legislative purpose or scope … Accordingly, it cannot be correct to suggest, for example, that an examination of a statute’s purpose or scope or context is completely off-limits unless there is ambiguity. It is certainly not inconsistent with the plain-meaning rule to consider the intrinsic context in which statutory language is used; a plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose.”

As a final caveat, however, were this case (or any other recreational immunity case) to be reviewed in the Supreme Court, there exists a fair possibility that Urban and Minnesota Fire would be overturned, or limited to their facts, if the issue was presented. Of the four justices in the majority opinion in Urban, and the three justices in the plurality opinion in Minnesota Fire, two (Bablitch and Sykes) are no longer on the court.

Adherence to stare decisis was not a hallmark of the court’s most recent term; given the bare majority support for Urban even when it was decided, its continued vitality should be considered fair game by any attorney who loses a recreational immunity argument in the lower courts.

– David Ziemer

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David Ziemer can be reached by email.