COURT OF APPEALS DECISION DATED AND FILED September 16, 2008 David R. Schanker Clerk of Court of Appeals |
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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. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
and CROSS-APPEAL from a judgment and orders of the circuit court for
Before
¶1 PER CURIAM. The Lions Club of Gleason Area, Inc., and its insurer appeal a judgment, entered on a jury’s verdict, in favor of Russell Mason and his family for injuries Mason sustained while at an event on the Club’s property. The Club further appeals orders denying its motion for summary judgment and to change verdict answers. Mason[1] cross-appeals an order reducing to zero the amount of damages the jury awarded for Deborah Mason’s nursing services.
Background
¶2 On August 28, 2004, the Masons attended a “mud bog” racing event held on the Club’s property. A mud bog involves vehicles racing through a pit of mud as far and as fast as possible, sometimes at speeds up to forty-five miles per hour. Some vehicles make it through the pit; others get stuck in the mud.
¶3 Originally, when vehicles became stuck, a volunteer would wade into the mud and attach a chain to the vehicle so it could be towed from the pit. In 2001, a new procedure was implemented. At the starting area, one end of a 300-foot cable would be attached to the back of the racing vehicle. The other end, which includes a steel hook, would be dragged behind the vehicle during the race. If the vehicle became stuck, the free end could be attached to a “pole skidder” used to pull the vehicle from the pit. If the vehicle did not get stuck, it would either be driven back to the start position to return the cable or the cable would be removed from the race vehicle and attached to the skidder, which would pull the cable back to the starting position.
¶4 The skidder was owned and operated by Jim Forster. Forster remained in the driver’s seat while an assistant hooked and unhooked the cable from the skidder.[2] On the day of Mason’s injury, Forster and the assistant were working with Todd Catlin. Catlin had many duties during the races, including signaling drivers to the start position, attaching the cable to vehicles about to race, checking timing equipment, giving directions to Forster and the assistant, and signaling the race start.
¶5 Mason was injured when, for some reason, the cable did not remain free behind one of the racing trucks. It is unclear whether the cable remained hooked to the skidder when a new race began or if the cable had been loose on the ground but became caught on the skidder. As the driver raced, the cable became taut and snapped. The cable flew into the crowd, hitting Mason in the head. He suffered head, neck, and spinal injuries.
¶6 Mason brought suit for damages including past and future pain and suffering, past and future medical expenses, and loss of earning capacity. Deborah and the children brought loss of society and companionship claims. The suit initially named only the Club and its insurer, but later added Catlin and his insurer.
¶7 The Club moved for summary judgment on the basis of recreational immunity. It asserted it was a non-profit owner and Mason was a spectator under the recreational immunity statute, Wis. Stat. § 895.52.[3] The court denied the motion, concluding recreational immunity did not apply because the Club did more than simply open its land to use.[4] The jury ultimately concluded the Club and the assistant were each fifty percent negligent. Further, the jury concluded that Catlin, Forster, and the assistant were all servants of the Club. The jury awarded approximately $210,543 to Mason, $2,978 to Deborah, and $1,000 to each of the children. The jury also awarded $10,000 for nursing services Deborah provided to Mason.
¶8 The Club filed a motion after verdict seeking to change the jury’s answers on the master-servant questions relating to Catlin and the assistant. The court denied the motion. The Club also argued the court should find, as a matter of law, that recreational immunity applied. The court disagreed because it had already determined immunity was inapplicable and, the court opined, mud racing was not the type of activity contemplated by the legislature in enacting the recreational immunity statute. The court did, however, grant the Club’s motion to vacate the award for Deborah’s nursing services. The court concluded there was no evidence to support the award and reduced it to zero.
Discussion
I. Recreational Immunity
¶9 The first question is whether the Club is entitled to recreational immunity under Wis. Stat. § 895.52(2)(b), which provides, in relevant part: “Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner’s property ....” The Club asserts the statute “provides blanket immunity to land owners who open up their land for recreational purposes.” It contends Mason “would have to show that the cable break and his subsequent injury was the direct result of some malicious act of the Lions Club”[5] or that the injury was not caused by a recreational activity. Mason asserts recreational immunity only applies when negligent conduct relates to the condition of the land itself and the Club is reading only an isolated part of the statute.
¶10 Whether the recreational immunity statute applies to bar Mason’s
claim is a question of law we review de novo.
Kosky v. International Ass’n of Lions Clubs, 210
¶11 The recreational immunity statute exists to encourage
landowners “to open their property to the public for recreational use” as
public access to recreational land shrinks in an increasingly crowded
world. Held v. Ackerville Snowmobile
Club, Inc., 2007 WI App 43, ¶8, 300
¶12 The Club argues there is no distinction between “passive” or
“condition of the land” negligence and “active” negligence. See
Ervin
v. City of
¶13 Here, Mason’s injury had nothing to do with the maintenance or
condition of the Club’s property. He did
not, for example, slip and fall in the mud.
Instead, Mason was injured because of negligent organization,
supervision, and execution of a race. The
cable that injured Mason has no connection to the maintenance or condition of
the land: it exists solely because of the race, solely to rescue racing
vehicles. Cf. Kosky, 210
II. Master-Servant Relationship
¶14 The Club also argues there was insufficient evidence to give
the master-servant question to the jury, much less to sustain its verdicts. Jury instruction is committed to the trial court’s
discretion. White v. Leeder, 149
¶15 A servant is one “employed to perform service for another in
his affairs and who, with respect to his physical conduct in the performance of
the service, is subject to the other’s control or right to control.” Kerl v. Dennis Rasmussen, Inc., 2004
WI 86, ¶19, 273
¶16 The concept of the master’s liability springs from the notion
that, within the time of service, the master has control over the servant’s physical
activities.
¶17 Here, the jury found that Catlin and the assistant were
servants of the Club.[9] There is evidence supporting the finding that
Catlin and the assistant were servants, as well as evidence supporting a
finding they were not. We do not disturb
a jury’s verdict if any credible evidence supports it. Johnson v. Neuville, 226
¶18 In this case, signs advertised the mud bog race as “sponsored by” the Lions Club, or stated that the Club “presents” the bog. People in the community knew the event as the Lions Club Mud Bog. In fact, the minutes of some Club meetings refer to it as “our” bog. The Club collected admission to the races and sold concessions there. The Club had also erected the spectator area and owned the cable in question. From this evidence, the jury could infer that the Club sponsored the event and made the rules, and thus controlled the people working at the bog, such as Catlin and the assistant, and could have directed Catlin to stop using the cable in an unsafe manner. The evidence sufficiently warranted the master-servant instruction, and adequately supported a finding that Catlin and the assistant were servants.
III. Cross-Appeal on Nursing
Services
¶19 The jury awarded $10,000 for nursing services Deborah provided to Mason. The court struck the award after concluding Mason provided no evidence on which to base the award. Mason asserts the jury is entitled to rely upon its common knowledge. We disagree.
¶20 For certain pecuniary losses, such as the value of housekeeping
or cooking, it appears that juries are not
held to hard and fast methods of calculating these services’ values, but
instead may use common knowledge and judgment.
Redepenning v. Dore, 56
¶21 Here, there is no evidence of the value of nursing services or
the cost of employing others. This is a particularly
complicating factor here because, while the accident occurred in rural
By the Court.—Judgment and orders affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.
[1] Although all four Masons are parties on appeal, we generally refer to Mason in the singular because only Russell was injured; his family’s claims are derivative.
[2] This person’s identity was unknown at trial. We refer to the individual as “the assistant.”
[3] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[4] The court also concluded there was a question of fact as to whether the racing was a team sport, see Wis. Stat. § 895.52(1)(g), but this determination is irrelevant to our decision on appeal.
[5] Wisconsin Stat. § 895.52(5) provides that subsec. (2) does not limit non-profit organizations’ liability if the injury is caused by a malicious act.
[6] We focus on this aspect because it is undisputed that the Club owns the property in question and that the mud bog race itself was a recreational activity.
[7] This is not an entirely accurate distinction between active and passive negligence. See, e.g., Held v. Ackerville Snowmobile Club, Inc., 2007 WI App 43, ¶13, 300 Wis. 2d 498, 730 N.W.2d 428 (claim based on passive failure to retrieve equipment from trail as viable as claim based on active decision to leave equipment there).
[8] To
the extent there is any conflict between Ervin v. City of Kenosha, 159
[9] The determination that the assistant, who was found 50% negligent, is a servant of the Club effectively made the Club liable for 100% of the damages.