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2010AP316 Milton, et al. v. Washburn County, et al.

By: WISCONSIN LAW JOURNAL STAFF//March 1, 2011//

2010AP316 Milton, et al. v. Washburn County, et al.

By: WISCONSIN LAW JOURNAL STAFF//March 1, 2011//

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Torts
Recreational immunity

A snowmobile club’s failure to remove a directional sign is not a malicious act resulting in the loss of recreational immunity.

“Milton and Hoffman argue the Club’s conduct was so certain to cause injury that a jury could infer they were aware injury was practically certain to result. We disagree. Our supreme court has frequently cited an example from Prosser’s Law of Torts to illustrate the type of situation where a jury may infer an actor’s awareness that its conduct is substantially certain to cause harm: [Intent] must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does …. The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. Pachucki v. Republic Ins. Co., 89 Wis. 2d 703, 711, 278 N.W.2d 898 (1979) (quoting William Prosser, Law of Torts 31-32 (4th ed. 1971)); see also Loveridge v. Chartier, 161 Wis. 2d 150, 168, 468 N.W.2d 146 (1991); Raby v. Moe, 153 Wis. 2d 101, 111, 450 N.W.2d 452 (1990). According to Milton and Hoffman, the Club acted maliciously by grooming the access trail, failing to keep the gate open, and either putting up or failing to remove the Outback Bar directional sign. Milton and Hoffman also allege the Club maliciously failed to warn of the dangerous condition its conduct created. Unlike firing a bullet into a dense crowd, these actions are not so certain to cause injury that a reasonable jury could infer the Club was aware of a substantially certain risk of harm. Therefore, a jury could not conclude the Club intended to harm Milton and Hoffman.”
Affirmed.

Recommended for publication in the official reports.

2010AP316 Milton, et al. v. Washburn County, et al.

Dist. III, Washburn County, Harrington, J., Peterson, J.

Attorneys: For Appellant: Rohde, Dean R., River Falls; Heidt, Martha H., River Falls; For Respondent: Misfeldt, Thomas J., Eau Claire; Steffes, Ryan, Eau Claire

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