Recreational Immunity

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WI Court of Appeals – District IV

Case Name: Jason Lyle Wahoske, et al., v. Hartford Fire Insurance Company, et al.,

Case No.: 2019AP2036

Officials: Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.

Focus: Recreational Immunity

In anticipation of annual hunting seasons beginning in 2009, each summer Robin Stibb would affix a tree stand that he owned to a tree on land owned by his parents. Then, about six months later, Stibb would take the stand down. In November 2017, a friend of Stibb’s, Jason Wahoske, was bow hunting from Stibb’s stand when Wahoske fell to the ground and was injured, resulting in this litigation.

Wahoske commenced the action by filing a products liability claim against Fleet Wholesale Supply Company LLC, Mills Fleet Farm LLC, and Hartford Fire Insurance Company (collectively, “Fleet Farm”), based in part on the allegation that Stibb had purchased the tree stand from a Mills Fleet Farm store. Fleet Farm filed a third-party action against Stibb and Rural Mutual Insurance Company (collectively, “the Stibb parties”), on the theory that Stibb had negligently maintained and installed the stand. Wahoske amended his complaint to state a direct action claim against Stibb’s insurer Rural Mutual. The Stibb parties moved for summary judgment on the ground that they are entitled to recreational immunity under WIS. STAT. § 895.52 (2017-18). The circuit court granted the motion.

Wahoske and Fleet Farm appeal. They contend that the Stibb parties are not entitled to recreational immunity for various reasons. We reject those arguments based on Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, 248 Wis. 2d 567, 636 N.W.2d 727, which addresses similar facts to those presented here and resolved them in favor of immunity. Under the reasoning in Peterson, as discussed in Roberts v. T.H.E. Ins. Co., 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492, the Stibb parties are entitled to immunity because at the time of the accident Stibb was the “owner” of a “structure,” namely a tree stand that was intended to remain in place for an extended period, which counts as “property” that was being used for a “recreational activity,” hunting. See WIS. STAT. § 895.52(1), (2). Accordingly we affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.