Chapter 895

895.52 Annotation An occupant under sub. (1) (d) 1. includes persons who, while not owners or tenants, have the actual use of land. Occupant includes one who has the actual use of property without legal title, dominion, or tenancy. In order to give meaning to “occupies,” the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner. Milton v. Washburn County, 2011 WI App 48, 332 Wis. 2d 319, 797 N.W.2d 924, 10-0316.

895.52 Annotation By including “cutting or removing wood” within the definition of “recreational activity,” the legislature made a policy choice that engaging in the activity of “cutting or removing wood” is a recreational activity. In cases in which an individual is injured while engaging in an activity specifically enumerated under the statute, courts have determined that the activity is “recreational,” without examining the various aspects or the purposes of the activity. WEA Property & Casualty Insurance Co. v. Krisik, 2013 WI App 139, 352 Wis. 2d 73, 841 N.W.2d 290, 11-1335.

895.52 Annotation For purposes of this section, sub. (1) (d) 1. defines an “owner,” as a person that owns, leases, or occupies property. It is not the rule that one occupies property for purposes of the recreational immunity statute only when there is express permission to enter the property. WEA Property & Casualty Insurance Co. v. Krisik, 2013 WI App 139, 352 Wis. 2d 73, 841 N.W.2d 290, 11-1335.

895.52 Annotation Case law makes clear that the act of walking to or from an immune activity constitutes recreational activity. Carini v. ProHealth Care, Inc., 2015 WI App 61, 364 Wis. 2d 658, 869 N.W.2d 515, 14-1131.

895.52 Annotation Recreational immunity applies when a temporary condition is placed upon the land. The length of time the allegedly negligent unsafe condition is present does not matter. A temporary, artificial condition may constitute a “condition” of the land under sub. (2) (a) 3. Carini v. ProHealth Care, Inc., 2015 WI App 61, 364 Wis. 2d 658, 869 N.W.2d 515, 14-1131.

895.52 Annotation The defendant hot air balloon company was not entitled to recreational immunity because the defendant was not an “occupier” of land under sub. (1) (d) 1. None of the prior cases interpreting this section has granted immunity to a third party not responsible for opening up the land to the public. Defining the defendant as an “occupier” would not further the policy of opening as much property as possible for recreational use because the land was already open for public recreational purposes. Roberts v. T.H.E. Insurance Co., 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492, 14-1508.

895.52 Annotation The defendant hot air balloon company was not an owner of property under sub. (1) (d) 1. as the balloon was not a structure and not “property” under sub. (1) (f). The hot air balloon ride was not constructed on real property. It was transient, designed to be moved at the end of the day, and not designed to remain in one place. Roberts v. T.H.E. Insurance Co., 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492, 14-1508.

895.52 Annotation “Supervising” other persons, who are themselves engaged in recreational activities, is a “recreational activity” within the meaning of sub. (1) (g). Such supervision involves actively overseeing or directing the performance of the recreational activity of another. Thus, “supervision” is akin to, and subsumed within, “practice” and “instruction” in a recreational activity, which the legislature specifically identified as giving rise to immunity. Wilmet v. Liberty Mutual Insurance Co., 2017 WI App 16, 374 Wis. 2d 413, 893 N.W.2d 251, 15-2259.

895.52 Annotation Each recreational immunity case poses an intensely fact-driven inquiry. The court applies a multi-factor test to ascertain whether a particular activity is “substantially similar” to those enumerated in the statute, including: 1) the activity’s intrinsic nature; 2) the purpose of the activity; 3) the activity’s consequences; 4) the property user’s intent and reason for being on the property; 5) the nature of the property; and 6) the property owner’s intent. Wilmet v. Liberty Mutual Insurance Co., 2017 WI App 16, 374 Wis. 2d 413, 893 N.W.2d 251, 15-2259.

895.52 Annotation This section does not define the term “agent.” An agent is one who acts on behalf of and is subject to reasonably precise control by the principal for the tasks the person performs within the scope of the agency. An agent may be either an employee or an independent contractor. An independent contractor may or may not be an agent. Whether an independent contractor is an agent is a fact-specific inquiry. In this case, there was no evidence that the property owner either controlled the details of the contractor’s work or formulated any reasonably precise specifications for that work. The contractor was not the owner’s agent for purposes of this section. Westmas v. Creekside Tree Service, Inc., 2018 WI 12, 379 Wis. 2d 471, 907 N.W.2d 68, 15-1039. But see Lang v. Lions Club of Cudahy Wisconsin, Inc., 2020 WI 25, 390 Wis. 2d 627, 939 N.W.2d 582, 17-2510.

895.52 Annotation The definition of “occupy” in the context of this section is “to take and hold possession.” A tree trimming company that moved from temporary location to temporary location for the limited purpose of trimming trees that did not have authority to open up the land to the public and that could not be said to have taken and held possession of the property was not an occupier and thus not a statutory owner of the property for purposes of this section. Westmas v. Creekside Tree Service, Inc., 2018 WI 12, 379 Wis. 2d 471, 907 N.W.2d 68, 15-1039.

895.52 Annotation Discussing what constitutes an agency relationship for purposes of recreational immunity under sub. (2). Lang v. Lions Club of Cudahy Wisconsin, Inc., 2020 WI 25, 390 Wis. 2d 627, 939 N.W.2d 582, 17-2510.

895.52 Annotation The Exculpatory Contract and Public Policy. Anzivino. 102 MLR 747 (2019).

895.52 Annotation Wisconsin’s Recreational Use Statute: Towards Sharpening the Picture at the Edges. Ford. 1991 WLR 491.

895.52 Annotation Minnesota Fire & Casualty Insurance Co. v. Paper Recycling of La Crosse: Why Property Owners Should Fear the Mischief of Boys at Play and Wisconsin Supreme Court Justices at Work. Salvo. 2002 WLR 999.

895.52 Annotation Wisconsin’s Recreational Use Statute. Pendleton. Wis. Law. May 1993.

895.52 Annotation Recreational Liability: Plaintiff-friendly Standards Remain. Pendleton. Wis. Law. Oct. 2017.

895.52 Annotation As I See It: Trouble by Design: Recreational Immunity Statute a Barrier to Justice. Rogers. Wis. Law. Nov. 2017.

895.523 895.523 Recreational activities in a school building or on school grounds; limitation of liability.

895.523(1) (1) Definitions. In this section:

895.523(1)(a) (a) “Governing body of a charter school” means the person that operates a charter school established under s. 118.40 (2) or (2m) or the entity that operates a charter school established under s. 118.40 (2r) or (2x).

895.523(1)(b) (b) “Injury” means an injury to a person or to property.

895.523(1)(c) (c)

895.523(1)(c)1. 1. Except as provided in subd. 2., “recreational activity” means all of the following:

895.523(1)(c)1.a. a. Any indoor physical activity, sport, team sport, or game, whether organized or unorganized, undertaken for the purpose of exercise, relaxation, diversion, education, or pleasure.

895.523(1)(c)1.b. b. Any outdoor activity undertaken for the purpose of exercise, relaxation, or pleasure, including practice or instruction in any such activity. In this subd. 1. b., “outdoor activity” includes hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, sport shooting, and any other outdoor sport, game, or educational activity.

895.523(1)(c)2. 2. “Recreational activity” does not include any indoor or outdoor organized team sport or activity organized and held by a school district, school board, or governing body of a charter school.

895.523(1)(d) (d) “Recreational agreement” means a written authorization granted by a school board or the governing body of a charter school to a person that permits public access to all or a specified part of the school grounds for the purpose of any recreational activity and that satisfies the requirements under sub. (5).

895.523(1)(e) (e) “School board” means the school board or board of school directors in charge of the public schools of a school district.

895.523(1)(f) (f) “School building” means a building designed for and used as a school by a school district, by a school board, or by the governing body of a charter school.

895.523(1)(g) (g) “School grounds” means real property, and any school buildings, accessory buildings, structures, and improvements thereon, owned, leased, or rented by a school district, by a school board, or by the governing body of a charter school and used primarily for public school purposes.

895.523(1)(gm) (gm) “Spectator” means a person who attends or watches a recreational activity but does not engage or participate in or intend to engage or participate in the recreational activity.

895.523(1)(h) (h) “Sport” means an activity requiring physical exertion and skill and which, by its nature and organization, is competitive and includes a set of rules for play.

895.523(2) (2) No duty; immunity from liability.

895.523(2)(a) (a) Except as provided in sub. (3), no school district, no school board, no governing body of a charter school, and no officer, employee, or agent of a school board or of a governing body of a charter school, owes to any person who enters the school grounds of the school board or of the governing body of a charter school to engage or participate in a recreational activity held pursuant to a recreational agreement any of the following:

895.523(2)(a)1. 1. A duty to keep the school grounds safe for the recreational activity.

895.523(2)(a)2. 2. A duty to inspect the school grounds.

895.523(2)(a)3. 3. A duty to give warning of an unsafe condition, use, or activity on the school grounds.

895.523(2)(b) (b) Except as provided in sub. (3), no school district, no school board, no governing body of a charter school, and no officer, employee, or agent of a school board or of a governing body of a charter school, is liable for the death of, any injury to, or any death or injury caused by, a person engaging or participating in a recreational activity held pursuant to a recreational agreement and taking place on the school grounds of the school board or of the governing body of a charter school.

895.523(3) (3) Liability. Subsection (2) does not limit the liability of a school district, a school board, a governing body of a charter school, or an officer, employee, or agent of the school board or of the governing body of a charter school for any of the following:

895.523(3)(a) (a) A death or injury caused by a malicious act or by a malicious failure to warn against an unsafe condition of which an officer, employee, or agent of the school board or of the governing body of a charter school knew, which occurs on the school grounds of the school board or of the governing body of a charter school designated for use in a recreational agreement and being used by a person for a recreational activity held pursuant to the recreational agreement.

895.523(3)(b) (b) The death of or injury to a spectator that occurs on the school grounds of the school board or of the governing body of a charter school designated for use in a recreational agreement during the recreational activity.

895.523(3)(c) (c) The death of or injury to a person participating in a recreational activity involving any of the following pursuant to a recreational agreement:

895.523(3)(c)1. 1. A weight room.

895.523(3)(c)2. 2. A swimming pool.

895.523(3)(c)3. 3. Gymnastic equipment.

895.523(4) (4) No duty or liability created. Except as expressly provided in this section, nothing in this section or s. 101.11 nor the common law attractive nuisance doctrine creates any duty of care or ground of liability toward any person who uses school grounds to engage or participate in a recreational activity held pursuant to a recreational agreement.

895.523(5) (5) Recreational agreement. Each recreational agreement shall include all of the following:

895.523(5)(a) (a) A description of the recreational activity or activities to be held on the school grounds pursuant to the agreement.

895.523(5)(b) (b) The time and place of the recreational activity or activities.

895.523(5)(c) (c) Any eligibility requirements for participation in the recreational activity or activities.

895.523(5)(d) (d) Whether and, if so, to what extent participants who are minors will be supervised.

895.523(5)(e) (e) A clear statement describing a participant’s assumption of risk.

895.523 History History: 2011 a. 162; 2015 a. 55.

895.524 895.524 Participation in an agricultural tourism activity; limitations on civil liability, assumption of risk.

895.524(1) (1) Definitions. In this section:

895.524(1)(a) (a) “Agricultural tourism activity” means an educational or recreational activity that takes place on a farm, ranch, grove, or other place where agricultural, horticultural, or silvicultural crops are grown or farm animals or farmed fish are raised, and that allows members of the general public, whether or not for a fee, to tour, explore, observe, learn about, participate in, or be entertained by an aspect of agricultural production, harvesting, or husbandry that occurs on the farm, ranch, grove, or other place.

895.524(1)(b) (b) “Agricultural tourism provider” means a person who operates, provides, or demonstrates an agricultural tourism activity.

895.524(1)(c) (c) “Participant” means an individual, other than an agricultural tourism provider, who observes or participates in an agricultural tourism activity.

895.524(1)(d) (d) “Property” means the real property where an agricultural tourism activity takes place and the buildings, structures, and improvements on that real property.

895.524(1)(e) (e) “Risk inherent in an agricultural tourism activity” means a danger or condition that is an integral part of an agricultural tourism activity, including all of the following:

895.524(1)(e)1. 1. The surface and subsurface conditions of land and the natural condition of vegetation and water on the property.

895.524(1)(e)2. 2. The unpredictable behavior of wild, domestic, or farm animals on the property.

895.524(1)(e)3. 3. The ordinary dangers of structures or equipment ordinarily used where agricultural, horticultural, or silvicultural crops are grown or farm animals or farmed fish are raised.

895.524(1)(e)4. 4. The possibility that a participant in an agricultural tourism activity may act in a negligent manner, including by failing to follow instructions given by the agricultural tourism operator or by failing to exercise reasonable caution while engaging in the agricultural tourism activity, that may contribute to the injury to that participant or to another participant.

895.524(2) (2) Immunity from liability.

895.524(2)(a) (a) Subject to par. (b), an agricultural tourism provider is immune from civil liability for injury to or the death of an individual who is participating in an agricultural tourism activity on property owned, leased, or managed by the agricultural tourism provider if all of the following apply:

895.524(2)(a)1. 1. The participant is injured or killed as a result of a risk inherent in an agricultural tourism activity.

895.524(2)(a)2. 2. The agricultural tourism provider posts and maintains, in a clearly visible location at each entrance to the property where the agricultural tourism activity takes place or at the location of each agricultural tourism activity, a sign that contains the following notice in black lettering, each letter a minimum of one inch in height, on a white background: “Notice: A person who observes or participates in an agricultural tourism activity on this property assumes the risks inherent in the agricultural tourism activity. Risks inherent in the agricultural tourism activity may include conditions on the land, the unpredictable behavior of farm animals, the ordinary dangers associated with equipment used in farming operations, and the potential that a participant in the agricultural tourism activity may act in a negligent way that may contribute to injury or death. The agricultural tourism provider is not liable for the injury or death of a person involved in an agricultural tourism activity resulting from those inherent risks.”

895.524(2)(b) (b)

895.524(2)(b)1. 1. Subject to subd. 2., an agricultural tourism provider is not immune from civil liability for injury to or the death of a participant if any of the following applies:

895.524(2)(b)1.a. a. The agricultural tourism provider acts with a willful or wanton disregard for the safety of the participant. In this subd. 1. a., “willful or wanton disregard” means conduct committed with an intentional or reckless disregard for the safety of others, such as by failing to exercise ordinary care to prevent a known danger or to discover a danger.

895.524(2)(b)1.b. b. The agricultural tourism provider intentionally causes the participant’s injury or death.

895.524(2)(b)2. 2. Any person who asserts that the acts or omissions of an agricultural tourism provider satisfy the elements under subd. 1. a. or b. has the burden of proving that assertion by clear and convincing evidence.

895.524(3) (3) Appreciation of conditions and risk of participation in an agricultural tourism activity. A participant in an agricultural tourism activity engaged in on property owned or leased by an agricultural tourism provider who offers facilities to the general public for participation in agricultural tourism activities accepts the risks inherent in the agricultural tourism activity of which the ordinary prudent person is or should be aware.

895.524(4) (4) Effect on related provision. Nothing in this section affects the limitation of a property owner’s liability under s. 895.52.

895.524 History History: 2013 a. 269.

895.524 Annotation The Exculpatory Contract and Public Policy. Anzivino. 102 MLR 747 (2019).

895.525 895.525 Participation in recreational activities; restrictions on civil liability, assumption of risk.

895.525(1) (1) Legislative purpose. The legislature intends by this section to establish the responsibilities of participants in recreational activities in order to decrease uncertainty regarding the legal responsibility for deaths or injuries that result from participation in recreational activities and thereby to help assure the continued availability in this state of enterprises that offer recreational activities to the public.

895.525(2) (2) Definitions. In this section:

895.525(2)(a) (a) “Agricultural tourism activity” means an educational or recreational activity that takes place on a farm, ranch, grove, or other place where agricultural, horticultural, or silvicultural crops are grown or farm animals or farmed fish are raised, and that allows visitors to tour, explore, observe, learn about, participate in, or be entertained by an aspect of agricultural production, harvesting, or husbandry that occurs on the farm, ranch, grove, or other place.

895.525(2)(b) (b) “Recreational activity” means any activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. “Recreational activity” does not include participating in an alpine sport at a ski area, as those terms are defined in s. 167.33, but includes hunting, fishing, trapping, camping, bowling, billiards, picnicking, exploring caves, nature study, dancing, bicycling that is not biking, as defined in s. 167.33 (1) (ar), horseback riding, horseshoe-pitching, bird-watching, motorcycling, operating an all-terrain vehicle or utility terrain vehicle, recreational aviation, as defined in s. 895.52 (1) (hm), ballooning, curling, throwing darts, hang gliding, hiking, sleigh riding, snowmobiling, skating, participation in water sports, weight and fitness training, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, participating in an agricultural tourism activity, sport shooting, and participating in an alpine sport outside a ski area, as those terms are defined in s. 167.33, and any other sport, game or educational activity.

895.525(3) (3) Appreciation of risk. A participant in a recreational activity engaged in on premises owned or leased by a person who offers facilities to the general public for participation in recreational activities accepts the risks inherent in the recreational activity of which the ordinary prudent person is or should be aware. In a negligence action for recovery of damages for death, personal injury or property damage, conduct by a participant who accepts the risks under this subsection is contributory negligence, to which the comparative negligence provisions of s. 895.045 shall apply.

895.525(4) (4) Responsibilities of participants.

895.525(4)(a) (a) A participant in a recreational activity engaged in on premises owned or leased by a person who offers facilities to the general public for participation in recreational activities is responsible to do all of the following:

895.525(4)(a)1. 1. Act within the limits of his or her ability.

895.525(4)(a)2. 2. Heed all warnings regarding participation in the recreational activity.

895.525(4)(a)3. 3. Maintain control of his or her person and the equipment, devices or animals the person is using while participating in the recreational activity.