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COURT OF
APPEALS DECISION DATED AND
RELEASED January
30, 1997 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
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This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1299
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
BREIANNE
S. JOHNSON, a minor child by her
parent
and guardian, Julie Steinhoff and by
SHERI
LOCANTE, court-appointed Guardian ad Litem
for
Breianne S. Johnson; JULIE STEINHOFF,
CRAIG
STEINHOFF and FORREST JOHNSON,
Plaintiffs-Appellants,
BLUE CROSS & BLUE SHIELD UNITED
OF WISCONSIN,
Intervening Plaintiff,
v.
NATIONAL
FIRE INSURANCE COMPANY
OF
HARTFORD,
MURIEL
FINCH and
SECURA
INSURANCE,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Monroe County: STEVEN L. ABBOTT, Judge. Affirmed in part; reversed in part and
cause remanded.
Before Eich, C.J.,
Vergeront, and Roggensack, JJ.
EICH,
C.J. Six-year-old Breianne Johnson
sustained serious injuries when a draft horse on exhibit at the Monroe County
Fair kicked her in the head while she was walking down the aisle of an open-air
horse barn[1]
where exhibit animals were stabled.
Johnson and her parents (collectively "Johnson") sued National
Fire Insurance Company, which insured the Monroe County Agricultural Society
(the fair operator), Muriel Finch (the horse's owner), and Finch's insurer. Both Finch and National moved for summary
judgment on grounds that they were immune from suit under the provisions of the
recreational immunity law, § 895.52, Stats.[2] The trial court granted the motions and
dismissed Johnson's action, concluding that because Johnson was engaged in a
"recreational activity" when the injury occurred and because Finch and
the Society were entities entitled to immunity under the statute, Johnson's
lawsuit was barred.
Johnson
appeals from the summary judgment dismissing her action, arguing that the trial court erred in
concluding that she was participating in a recreational activity when injured,
and that Finch was an "owner," under the law.[3] She also claims that insofar as the statute
grants immunity to either Finch or the Society on the facts of this case, it is
unconstitutional. We conclude that
Johnson waived the constitutional argument by failing to raise it in the trial
court. We also conclude that, while
Johnson was engaged in a recreational activity when she was injured, Finch was
not an "owner" within the meaning of the statute. We therefore reverse the judgment insofar as
it dismisses the action against Finch and remand for further proceedings
consistent with this opinion. In all
other respects, we affirm.
I.
Preliminary Considerations
Summary
judgment is appropriate in cases in which no genuine issue of material fact
exists and the moving party has established his or her entitlement to judgment
as a matter of law. Germanotta v.
National Indem. Co., 119 Wis.2d 293, 296, 349 N.W.2d 733, 735 (Ct. App.
1984). In reviewing a summary judgment,
we apply the same methodology as the trial court, Green Spring Farms v.
Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987), and where, as
here, the issues involve the interpretation and application of statutes, only
legal questions are raised, which we review de novo. Silingo v. Village of Mukwonago,
156 Wis.2d 536, 539, 458 N.W.2d 379, 380 (Ct. App. 1990).
II.
"Recreational Activity"
The
first question is whether Johnson was engaged in a "recreational
activity" within the meaning of § 895.52, Stats., as she walked through the horse barn. Section 895.52(1)(g) defines the term as
"any outdoor activity undertaken for the purpose of exercise, relaxation
or pleasure," and it includes, but is not limited to:
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 and any
other outdoor sport, game or educational activity.
Id.
In
setting forth this list, the legislature stated that its intent was to
"provide[] examples of the kinds of activities that are meant to be
included [within the definition of recreational activity]," and that
"where substantially similar circumstances or activities exist, this
legislation should be liberally construed in favor of property owners to
protect them from liability." 1983 Wis. Act. 418, § 1.
In
determining whether an activity not specifically set forth in the statute is
"recreational," we employ an objective test which considers "all
social and economic aspects" of the particular activity. Silingo, 156 Wis.2d at 544,
458 N.W.2d at 382. "Relevant
considerations on this question include ... the intrinsic nature of the
activity, the type of service or commodity offered to the public, and the
activity's purpose and consequence."
Id. Applying this
test, we conclude that the trial court did not err in holding that Johnson was
engaged in a recreational activity as a matter of law.
In Hall v. Turtle
Lake Lions Club, 146 Wis.2d 486, 488, 431 N.W.2d 696, 697 (Ct. App.
1988), we held that a fair sponsored by a local service club involved
activities "substantially similar" to the statutory listing of
"nature study," "sight-seeing" and other "educational
activity," as to make it a recreational activity under § 895.52, Stats.
Johnson attempts to distinguish the fair in Hall based
on its "hometown" nature as "an agricultural show involving
cattle, carnival rides and booths," id., asserting that the
Monroe County Fair—which she claims is a large-scale event with gross receipts
in excess of $500,000—is much more of a commercial enterprise. And she suggests that, at a minimum, a
factual issue exists as to whether the Monroe fair was something altogether
different from a local "fair": in other words, a "pure
money-making" activity.
We
are not persuaded. First, the fact that
the Monroe County Fair turned a profit does not in itself convert what may
otherwise be a recreational activity into a commercial enterprise for purposes
of the recreational immunity statute. Fischer
v. Doylestown Fire Dep't, 199 Wis.2d 83, 90, 543 N.W.2d 575, 578 (Ct.
App. 1995). Second, the activities at
the Monroe fair included animal exhibits, 4-H and natural science displays,
carnival rides, home furnishing exhibits and cooking contests. On this record, we conclude, as we did in Hall,
that the activities undertaken at the Monroe fair are sufficiently similar to
the examples set forth in the statute to render the fair—and Johnson's
attendance thereat—sufficiently similar to the statutory examples to meet the
"recreational activity" test.
Johnson
disagrees. Stressing the
"outdoor activity" language in the statute, she claims that because
she was inside a structure at the time of the accident, our decision in Lee
v. Elk Rod & Gun Club, Inc., 164 Wis.2d 103, 473 N.W.2d 581 (Ct.
App. 1991), confirms the existence of a factual issue as to whether her walk
through the horse barn was an indoor or outdoor activity, and the case is thus
inappropriate for resolution on summary judgment.
First, whether one is engaged in a
recreational activity at a given time is, as Johnson herself acknowledges, a
question of law for the court. Sievert
v. American Family Mut. Ins. Co., 180 Wis.2d 426, 435, 509 N.W.2d 75,
80 (Ct. App. 1993), aff'd, 190 Wis.2d 623, 528 N.W.2d 413 (1995). Second, her reliance on Lee is
misplaced. The issue in that case was
whether a man patronizing a commercial gambling enterprise at the site of an
ice fishing contest was engaged in a recreational activity. We held that he was not, concluding that an
illegal activity such as gambling could not be "recreational" as a
matter of law. Id. at
109, 473 N.W.2d at 584. We never
considered in Lee the point for which Johnson cites the case to
us here: whether the plaintiff's gambling activities were "sufficiently
distinguishable from the fishing contest so as to require a factual
determination whether they constitute recreational activity." Id.
Beyond that, we agree with Finch that neither
§ 895.52, Stats., nor
relevant case law requires that the injury occur outdoors in order for the law
to apply. The statute applies to
"property" that is used for recreational activities, and
§ 895.52(1)(f) defines that term to include "buildings, structures
and improvements." As we said in Kruschke
v. City of New Richmond, 157 Wis.2d 167, 171, 458 N.W.2d 832, 834 (Ct.
App. 1990), by employing that definition, "the legislature has indicated
its intent that activities are not to be excluded [from the coverage of the
statute] merely because they involve facilities provided by the property
owner."[4] Johnson's presence in the open-air horse
barn at the fair did not change the otherwise recreational nature of her
activity to something else.
III. Finch As an
"Owner"
Johnson
next argues that Finch should not be considered an "owner" within the
meaning of the statute because she only leased a small "stall" area
in the barn, and that limited occupancy did not extend into the aisle outside
the stall where Johnson was standing when she was injured. As a result, says Johnson, the protections
of § 895.52, Stats., do not
extend to Finch.
"Owner," as defined in
§ 895.52(1)(d), Stats.,
includes any person who "owns, leases, or occupies property." Johnson, pointing out that she was not
within the delineated boundaries of Finch's stall at the time she was injured,
but was in an adjoining walkway three to four feet from its outer edge, argues
that, on those facts, Finch cannot and should not be considered to have
"occupied" the precise area where the injury occurred. Finch, on the other hand, contends that
because the stall area she had been assigned was only eight feet deep, and
because the horse was of such a size that it could be within the stall area and
still strike someone standing in the adjoining aisle by extending its rear legs
in a kicking motion, her "occupancy" of the stall must be construed
as extending beyond the stall's boundaries to the limits of the horse's
"reach." Again, Johnson
claims that, at a minimum, this controversy raises factual issues best left for
resolution at trial.
We
disagree. We do not believe that Finch,
as one of many exhibitors at the fair, can be considered an "owner"
within the meaning of the recreational immunity law.
We
begin with the "presum[ption] that the legislature intends for a statute
to be interpreted in a manner that advances the purposes of the statute." Verdoljak
v. Mosinee Paper Corp., 200 Wis.2d 624, 635, 547 N.W.2d 602, 606
(1996).
The
underlying purpose of § 895.52, Stats.,
has been the subject of frequent comment in the cases and in legal
periodicals. The law was enacted to
"encourage landowners who might otherwise withhold their land from the use
of others to make their land available [to the public] for recreational
activities." Bystery v.
Village of Sauk City, 146 Wis.2d 247, 252, 430 N.W.2d 611, 613 (Ct.
App. 1988). It represents an attempt by
the legislature to influence the use of land by changing traditional tort-law
principles, and its enactment was a response to a "growing `crisis in
outdoor recreation' within the state," Richard A. Lehmann, Liability of
Landowner to Persons Entering for Recreational Purposes, 1964 Wis. L. Rev. 705, 712-13 (quoted source
omitted)—in particular, a recognition of "the continual shrinkage of the
public's access to recreational land in an ever more populated
world." Sievert, 180
Wis.2d at 436, 509 N.W.2d at 80.
At [the time the law was enacted] there was insufficient
public recreational land to meet an increasing demand. This demand came both from the growing
metropolitan population of Wisconsin and from recreational visitors from
neighboring states whose tourist business the legislature naturally wanted to
foster. The Wisconsin [L]egislature
hoped that enacting a recreational use statute would encourage Wisconsin's many
private landowners to open their land for public recreation.
Stuart J. Ford, Wisconsin's Recreational Use Statute:
Towards Sharpening the Picture at the Edges, 1991 Wis. L. Rev. 491, 499.
Section 895.52, Stats., attempts to achieve that goal
by granting owners or occupiers of land immunity from liability for personal
injuries suffered by those who are pursuing recreational activities on that
land. Its underlying theory is, of
course, that a landowner is more likely to welcome public recreational users
when he or she knows that the recreational users are there at their own
risk. 1991 Wis. L. Rev. at 491.
It
is true, as Finch points out, and as we have noted above, that in amending the
law in 1984, the legislature added a statement of intent indicating that it is
to be "liberally construed in favor of property owners to protect them
from liability," 1983 Wis. Act 418, § 1.
But we do not consider that language to control the outcome of this
case. First, considered in context, the
"liberal construction" admonition appears to relate solely to the
inquiry into whether a particular activity is "recreational"[5]—a
separate issue which we have already resolved.
Additionally, one commentator pointed out that the provision is unique
among all similar legislation in the United States and it has been criticized
as "misdirect[ing] ... attention away from ... the very policy that
justifies the statute's existence," which is, of course, "to
encourage private landowners to open land for recreational use." 1991 Wis.
L. Rev. at 499, 502.[6]
In
this case, the public-policy considerations underlying § 895.52, Stats., would not be advanced one whit
by extending its coverage to an exhibitor who leases an eight-foot horse stall
from the operators of a county fair—whether the injury complained of occurred
precisely inside the leased space or in an area immediately adjacent
thereto. Such an exhibitor is simply
not the type of person or entity the legislature intended to immunize from
liability for negligent acts in exchange for permission to allow members of the
public to engage in recreational activities on his or her property. Johnson was injured while she was attending
the Monroe County Fair, and while we have not been informed of the identity of
the owner of the underlying land, there is no question that the enterprise
"occupying" the property—the fair—was the Monroe County Agricultural
Society.
We
emphasize that we are not asked on this appeal to determine whether the Society
is an "owner" or "occupant" within the meaning of the
statute, and we do not decide that question.
The Society's immunity was resolved in the trial court and is not before
us here. We make the point simply to
emphasize that immunizing a fair exhibitor—who paid the fair operator for the
privilege of being there—from responsibility for negligent acts bears no
relation to the purposes of the recreational immunity law. And it bears noting that, in Hall,
we held that an entity in much the same position as the Society occupies in
this case—a local service club sponsoring a "fair" on city-owned
land—was an "occupier" of that land within the meaning of the
law. Hall, 146 Wis.2d at
490, 431 N.W.2d at 698.
We
conclude, therefore, that Finch was not an "owner" under the statute
and reverse the trial court's contrary determination.
IV. Constitutional Challenge
Finally, Johnson argues
that, as applied, the statute is unconstitutional on equal protection
grounds. She never raised the issue in
the trial court, however, and we generally decline to consider arguments raised
for the first time on appeal. Evjen
v. Evjen, 171 Wis.2d 677, 688, 492 N.W.2d 361, 365 (Ct. App. 1992).[7] No costs are awarded to either party on this
appeal.
By
the Court.—Judgment affirmed
in part and reversed in part and cause remanded.
Recommended
for publication in the official reports.
[2] The statute, with limited exceptions not
applicable here, provides that "no owner ... owes to any person who enters
the owner's property to engage in a recreational activity ... [a] duty to keep
the property safe for recreational activities ... [a] duty to inspect the
property ... [or] [a] duty to ... warn[] of an[y] unsafe condition, use or
activity on the property." Section
895.52(2), Stats.
[3] Johnson does not challenge the trial court's
ruling as to the immunity of the Monroe County Agricultural Society.
[4] We have also recognized that the statute
applies to both natural and artificially created conditions. Kruschke, 157 Wis.2d at 171,
458 N.W.2d at 834; see also Sauer v. Reliance Ins. Co.,
152 Wis.2d 234, 241, 448 N.W.2d 256, 259 (Ct. App. 1989).
[5] The legislative statement, in full, reads as
follows:
The
legislature intends by this act to limit the liability of property owners
toward others who use their property for recreational activities under
circumstances in which the owner does not derive more than a minimal pecuniary
benefit. While it is not possible to
specify in a statute every activity which might constitute a recreational
activity, this act provides examples of the kinds of activities that are
meant to be included, and the legislature intends that, where substantially
similar circumstances or activities exist, this legislation should be liberally
construed in favor of property owners to protect them from liability. The act is intended to overrule any previous
Wisconsin supreme court decisions interpreting section 29.68 of the statutes if
the decision of more restrictive than or inconsistent with the provisions of
this act.
1983 Wis. Act. 418, § 1 (emphasis added).
[6] Ford notes that, in several instances,
the
unique and sweeping statement of legislative intent enacted with the statute
has caused troubling, and arguably unfair, decisions in the courts. A class of recreational plaintiffs is
emerging to whom denial of a cause of action against a landowner's [or
occupier's] negligence is not clearly furthering the policy objectives of
recreational use legislation.
1991 Wis. L. Rev.
at 493.
[7] We see no reason to depart from that rule in
this case. Johnson concedes that the
supreme court rejected an equal protection challenge to the recreational
immunity law in Szarzynski v. YMCA, Camp Minikani, 184 Wis.2d
875, 517 N.W.2d 135 (1994), expressly holding that "[i]nclusion of
nonprofit organizations in ... sec. 895.52, Stats., is not a violation of the
equal protection clauses of the United States and Wisconsin Constitutions
...." Id. at 879-81,
517 N.W.2d at 136-37 (footnote omitted).
Johnson's argument appears to us to be that, despite Szarzynski,
the statute ought not to be applied to this particular nonprofit
organization; yet she puts forth no facts to support the argument other than
the attendance and gross receipts figures for the 1992 Monroe County Fair.
Johnson
has waived her constitutional argument and she has not persuaded us that she
should be relieved of that waiver.