Chapter 895

895.52 Annotation Illegal gambling conducted by a club occupying city park land placed the club outside the protection of the immunity statute. Lee v. Elk Rod & Gun Club, Inc., 164 Wis. 2d 103, 473 N.W.2d 581 (Ct. App. 1991).

895.52 Annotation A party is not immune as an occupant when evidence unequivocally shows intentional and permanent abandonment of the premises has occurred. Mooney v. Royal Insurance Co. of America, 164 Wis. 2d 516, 476 N.W.2d 287 (Ct. App. 1991).

895.52 Annotation Walking to or from a non-immune activity does not change a landowner’s status. Hupf v. City of Appleton, 165 Wis. 2d 215, 477 N.W.2d 69 (Ct. App. 1991).

895.52 Annotation Sub. (2) (b) does not require a person injured by a wild animal to be engaged in a recreational activity for immunity to attach to the property owner. A captive deer is a wild animal. Hudson v. Janesville Conservation Club, 168 Wis. 2d 436, 484 N.W.2d 132 (1992).

895.52 Annotation A municipal pier was the type of property intended to be covered by the recreational immunity statute. Crowbridge v. Village of Egg Harbor, 179 Wis. 2d 565, 508 N.W.2d 15 (Ct. App. 1993).

895.52 Annotation A church that paid a fee to reserve park space, including a ball diamond, for a picnic where a “pickup” softball was played was not a sponsor of an organized team sport activity under sub. (1) (g). Weina v. Atlantic Mutual Insurance Co., 179 Wis. 2d 774, 508 N.W.2d 67 (Ct. App. 1993).

895.52 Annotation Whether a person intended to engage in recreational activity is not dispositive in determining whether recreational activity is engaged in. The nature and purpose of the activity must be given primary consideration. Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994).

895.52 Annotation Recreational immunity does not extend to activities of the landowner acting independently of its functions as owner. Immunity did not apply to city paramedics providing service to an accident victim at a city park. Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994).

895.52 Annotation Limited liability for nonprofit organizations is not unconstitutional on equal protection grounds. Szarzynski v. YMCA, 184 Wis. 2d 875, 517 N.W.2d 135 (1994).

895.52 Annotation Visiting a neighbor to say hello is not a recreational activity under this section. Sievert v. American Family Mutual Insurance Co., 190 Wis. 2d 623, 528 N.W.2d 413 (1995).

895.52 Annotation That a local firefighters’ picnic generated profits that were used for park maintenance and improvements and the purchase of fire equipment did not result in the event being a commercial, rather than recreational, activity under this section. Fischer v. Doylestown Fire Department, 199 Wis. 2d 83, 543 N.W.2d 575 (Ct. App. 1995), 95-0796.

895.52 Annotation Land need not be open for recreational use for immunity to apply under this section. The focus is on the activity of the person who enters on and uses the land. Immunity applies without regard to the owner’s permission. Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 547 N.W.2d 602 (1996), 94-2549.

895.52 Annotation An activity essentially recreational in nature will not be divided into component parts, at one moment recreational and at another not, in applying this section. Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 547 N.W.2d 602 (1996), 94-2549.

895.52 Annotation Recreational immunity does not attach to a landowner when an act of the landowner’s officer, employee, or agent that is unrelated to the maintenance or condition of the land causes injury to a recreational land user. Kosky v. International Ass’n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), 96-2532.

895.52 Annotation A portable ice shanty located on a frozen lake does not qualify as recreational “property,” and its presence on the lake is insufficient to establish its owner as an “occupant” of the lake entitled to recreational immunity. Doane v. Helenville Mutual Insurance Co., 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998), 97-1420.

895.52 Annotation Walking for exercise through a park on the way to do errands was a recreational activity. Lasky v. City of Stevens Point, 220 Wis. 2d 1, 582 N.W.2d 64 (Ct. App. 1998), 97-2728.

895.52 Annotation To find immunity under this section, the court must examine not only the plaintiff’s reason for being on the property, but also the activity taking place on the property. While a spectator’s presence at a school football game is recreational, the exception from landowner immunity for injuries incurred in recreational activities for sponsors of organized sports extends to spectators, not just participants. Meyer v. School District, 226 Wis. 2d 704, 595 N.W.2d 339 (1999), 98-0482.

895.52 Annotation An attendee at a fair who was injured while attempting to capture a runaway steer was engaged in recreational activity. There is no “Good Samaritan” exception to the recreational immunity provided by this section. Schultz v. Grinnell Mutual Reinsurance, Co., 229 Wis. 2d 513, 600 N.W.2d 243 (Ct. App. 1999), 98-3466.

895.52 Annotation Immunity for nonprofit organizations is not limited to those that act in the public interest and gratuitously open their land to the general public. It is not a violation of equal protection to treat “non-charitable” nonprofit organizations differently than private property owners. Bethke v. Lauderdale of La Crosse, Inc., 2000 WI App 107, 235 Wis. 2d 103, 612 N.W.2d 332, 99-1897.

895.52 Annotation Although individual condominium unit owners held title to an undivided interest in common areas, a condominium association was an occupant and therefore an owner under sub. (1) (d). Bethke v. Lauderdale of La Crosse, Inc., 2000 WI App 107, 235 Wis. 2d 103, 612 N.W.2d 332, 99-1897.

895.52 Annotation An “owner” under sub. (1) (d) 1. includes an “occupant.” A child who is an occupant is capable of extending an invitation that triggers the social guest exception under sub. (6) (d). A guest’s continuous act that begins on an owner’s property but propels the guest a few feet from the property where an injury occurs compelled the conclusion that sub. (6) (d) must be construed to allow for the extension of the social guest status to the injuries suffered. Waters v. Pertzborn, 2001 WI 62, 243 Wis. 2d 703, 627 N.W.2d 497, 99-1702.

895.52 Annotation The owner of property subject to an easement is an “owner” under sub. (1) (d). The plaintiff’s walking across the easement to gain access to a boat was recreational as the walk was inextricably connected to recreational activity. The plaintiff user of the easement, who was granted the right to use it by a third-person holder of the easement, was not a social guest of the land owner under sub. (6) (d) expressly and individually invited to use the property. The fact that the easement owner granted the right of use as part of the sale of the boat did not render the landowner exempt from immunity under sub. (6) (a). Urban v. Grasser, 2001 WI 63, 243 Wis. 2d 673, 627 N.W.2d 511, 99-0933.

895.52 Annotation This section is liberally construed in favor of property owners when the activity in question is not specifically listed but is substantially similar to listed activities or when the activity is undertaken in circumstances substantially similar to the circumstances of a recreational activity. Minnesota Fire & Casualty Insurance Co. v. Paper Recycling of La Crosse, 2001 WI 64, 244 Wis. 2d 290, 627 N.W.2d 527, 99-0327.

895.52 Annotation Because a child’s subjective assessment of recreational activity could include every form of child’s play, an objective, reasonable adult standard must be applied to determine whether a child’s play is recreational. Crawling through stacks of baled paper at an industrial site while lighting matches and starting fires was not recreational activity. Minnesota Fire & Casualty Insurance Co. v. Paper Recycling of La Crosse, 2001 WI 64, 244 Wis. 2d 290, 627 N.W.2d 527, 99-0327.

895.52 Annotation The nature of property can be a significant factor in determining whether an activity is recreational, although it is not dispositive. That a commercial site is used only for a business purpose that is not open to the public, as indicated by a fence to keep people away, argues against childrens’ mischievous conduct on the premises being substantially similar to a recreational activity. Minnesota Fire & Casualty Insurance Co. v. Paper Recycling of La Crosse, 2001 WI 64, 244 Wis. 2d 290, 627 N.W.2d 527, 99-0327.

895.52 Annotation A suit by an elementary school student injured while playing during a mandatory school recess was not barred by this section because the student did not enter the school property to engage in a recreational activity, but for education purposes in order to comply with the state’s compulsory attendance and truancy laws. Auman v. School District, 2001 WI 125, 248 Wis. 2d 548, 635 N.W.2d 762, 00-2356.

895.52 Annotation A deer stand is a “structure” under sub. (1) (f). A structure or improvement need not be owned by the owner of the underlying land to constitute “property” under sub. (1) (f). Peterson v. Midwest Security Insurance Co., 2001 WI 131, 248 Wis. 2d 567, 636 N.W.2d 727, 99-2987.

895.52 Annotation Sponsorship under sub. (1) (g) contemplates a relationship between the person or organization paying for or planning the project or activity and the intended beneficiary and envisions a relationship between the sponsor and the activity resulting in financial benefits to the sponsor. That a city sponsored one soccer association did not mean it was a sponsor of all organized soccer team activities on city fields. Miller v. Wausau Underwriters Insurance Co., 2003 WI App 58, 260 Wis. 2d 581, 659 N.W.2d 494, 02-1632.

895.52 Annotation As long as one of the purposes for engaging in the activity is recreation, the statute attaches and bars a claim. Kautz v. Ozaukee County Agricultural Society, 2004 WI App 203, 276 Wis. 2d 833, 688 N.W.2d 771, 03-3281.

895.52 Annotation That the plaintiff’s claim was that the plaintiff was injured when the plaintiff became infected with E Coli as a result of climbing on farm equipment and not as a result of an activity on land or improvements to land was irrelevant. Whether or not the equipment was property within the meaning of this section, the injuring mechanism was not the farm equipment, but rather the bacteria from animal waste tracked onto the equipment from the defendant’s real property and was directly related to the condition or maintenance of the defendant’s real property. Kautz v. Ozaukee County Agricultural Society, 2004 WI App 203, 276 Wis. 2d 833, 688 N.W.2d 771, 03-3281.

895.52 Annotation An owner under sub. (1) (d) 1. includes a person who has the actual use of the property without legal title, dominion, or tenancy and encompasses a resident of land who is more transient than either a lessee or an owner. An owner under sub. (1) (d) 2. is a governmental body or nonprofit organization that has a written authorization granted by an owner permitting public access to the owner’s property for any recreational activity. It would be unreasonable to allow a snowmobile association immunity if it were granted an easement directly, but disallow it if the easement went first to a government entity, which then arranged with the association to manage, maintain, and construct the trails necessary for recreational access. Leu v. Price County Snowmobile Trails Ass’n, 2005 WI App 81, 280 Wis. 2d 765, 695 N.W.2d 889, 04-1859.

895.52 Annotation Walking may or may not be a recreational activity under the statute, depending on the circumstances. Mere presence on property suitable for recreational activity when a plaintiff is injured does not, ipso facto, make this section applicable. Although the injured person’s subjective assessment of the activity is pertinent, it is not controlling. 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 the circumstances surrounding the activity, including the intrinsic nature, purpose, and consequences of the activity. Rintelman v. Boys & Girls Clubs of Greater Milwaukee, Inc., 2005 WI App 246, 288 Wis. 2d 394, 707 N.W.2d 897, 04-2669.

895.52 Annotation The legislature did not enact this section to stop landowners from engaging in negligent behavior, but to induce property owners to open their land for recreational use. Recreational users are to bear the risk of the recreational activity. Held v. Ackerville Snowmobile Club, 2007 WI App 43, 300 Wis. 2d 498, 730 N.W.2d 428, 06-0914.

895.52 Annotation This section does not distinguish between active and passive negligence. Claims for passive negligence, such as a snowmobile club’s alleged failure to retrieve grooming equipment from a trail, were no more viable than claims for active negligence, such as an alleged decision to leave the disabled equipment partially on the trail in a blind curve. All of the acts alleged were related to the condition or maintenance of the snowmobile trail. Held v. Ackerville Snowmobile Club, 2007 WI App 43, 300 Wis. 2d 498, 730 N.W.2d 428, 06-0914.

895.52 Annotation Sub. (1) (c) does not define nonprofit by referencing the chapter under which corporations were incorporated, either ch. 180 or 181, so that factor is not dispositive of the question. It would be an absurd result to read this section as making a for-profit organization out of an organization that throughout its existence has been governed by articles of incorporation that define it as a nonprofit, has been documented by state agencies as a nonprofit, and has been in compliance with Internal Revenue Service regulations as a nonprofit. De La Trinidad v. Capitol Indemnity Corp., 2009 WI 8, 315 Wis. 2d 324, 759 N.W.2d 586, 07-0045.

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.