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COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 15, 1995 |
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 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0544
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
BETTY PICHELMAN,
WILLIAM
PICHELMAN, AND JEROME
FOODS,
Plaintiffs-Appellants,
v.
ARNOLD BARFKNECHT,
SYLVIA
BARFKNECHT, AND ALDEN
AND
BLACK BROOK MUTUAL
INSURANCE COMPANY,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Barron County:
JAMES C. EATON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Betty and William Pichelman appeal a
summary judgment dismissing their claim that arose when "Babe," a pet
raccoon, bit Betty's finger as she was delivering groceries to the home of her
friend, Sylvia Barfknecht. The circuit
court ruled Sylvia and her husband Arnold immune from liability under
§ 895.52, Stats.,[1]
as interpreted by our supreme court in Hudson v. Janesville Conservation
Club, 168 Wis.2d 436, 484 N.W.2d 132 (1992). Hudson held that a captive wild animal is still
within the immunity granted to property owners by § 895.52(2)(b),
providing that "no owner ... is liable ... for any injury resulting from
an attack by a wild animal." Id.
at 443-44, 484 N.W.2d at 135. Because
the Barfknechts' raccoon is a wild animal under the statute as interpreted in Hudson,
they are immune from liability and any negligence on their part is
irrelevant. We therefore affirm the
summary judgment dismissing the Pichelmans' lawsuit.
Our review of summary
judgment is de novo, that is, without deference to the circuit court's
decision. Brownelli v. McCaughtry,
182 Wis.2d 367, 372, 514 N.W.2d 48, 49 (Ct. App. 1994). We follow the same methodology as the
circuit court. Id.
Hudson
pointedly stated:
In
addition, although the question is not presented here, sec. 895.52(2)(b) would
also provide a property owner with immunity from liability to anyone injured by
a person engaging in a recreational activity, regardless of whether the injured
person was also engaged in a recreational activity at the time of the
injury. If the legislature had intended
that all injured persons be engaged in recreational activity at the time of
receiving their injury before immunity would be provided property owners by
sec. 895.52, the legislature could have done so.
Id. at
444, 484 N.W.2d at 135.[2]
The two-member dissent
in Hudson underscores the fact that the majority meant what it
said. The only dispute among the
justices was whether animals kept in captivity are "wild
animals." Justice Bablitch wrote:
I
have no quarrel with the majority's conclusion that the injured person does not
have to be engaged in "recreational activity" in order for a property
owner to be immune from liability for injury caused by a wild animal. ... The
majority shields the property owner from a duty of reasonable care by reading
the words "in captivity" into the immunity statute .... Given the
purpose of the statute, a captive animal should not be considered
"wild" simply because other members of its species run free and are
perceived as being unpredictable at times ....
Id. at
451, 484 N.W.2d at 138.[3]
The Barfknechts and
their insurer concede that their raccoon was a "wild animal"
according to Hudson:
"The fact that Babe was something of a pet does not take him out of
the category of ferae naturae. A
normally wild animal, even when held in captivity, is still a wild animal
within the meaning of the statute."
Hudson
interpreted § 895.52(2)(b), Stats.,
which provides in relevant part:
Recreational activities; limitation of
property owners' liability. ...
....
(2) No duty; immunity from
liability. ...
....
(b) Except
as provided in subs. (3) to (6), no owner and no officer, employe or agent of
an owner is liable for any injury to, or any injury caused by, a person
engaging in a recreational activity on the owner's property or for any
injury resulting from an attack by a wild animal. (Emphasis added.)
Hudson held
5-2 that the statute "unambiguously insulates property owners from
liability 'for any injury resulting from an attack by a wild
animal.'" Id. at
444, 484 N.W.2d at 135. The court
further stated that a person need not be engaged in a recreational activity
when injured by a wild animal in order for the property owner to be immune from
liability. Id.
In this case, the
Pichelmans attempt to distinguish Hudson on grounds that the
court had no occasion to apply the exceptions to immunity found in subs. (3) to
(6) of § 895.52, Stats., and
seek to apply subs. (6)(d)2 to the facts.
The latter subsection excepts from immunity injuries on private
residential property to a social guest who has been expressly and individually
invited by the owner for the specific occasion during which the injury occurs.[4] In order to qualify for this "social guest"
exception to immunity, the Pichelmans contend that the exceptions apply to all
property owners, without the necessity that the injured party engage in
recreational activity. We disagree.
The introductory
language to subs. (6) setting forth the exceptions to immunity provides in
plain language:
Liability;
private property. Subsection (2) does
not limit the liability of a private property owner or of an employe or agent
of a private property owner whose property is used for a recreational
activity if any of the following conditions exist[.]
The Pichelmans would
interpret the phrase "whose property is used for a recreational
activity" to apply only to the employe or agent of a property owner and
not to the private property owner individually. This is an untenable construction of the statute. Under their interpretation, a property owner
who invited a social guest to the premises under para. (d), would lose immunity
even where the injured party was engaged in no recreational immunity; the
employes or agents of that same property owner would be liable under the same
facts. Absent any reasonable
explanation, we decline to interpret the legislative intent to hold employes
and agents liable where their employer or principals are immune.
Further, such an
interpretation is contrary to the statement in Hudson that the
result would be the same "regardless of whether the injured party was also
engaged in recreational activity at the time of the injury." Id. at 444, 484 N.W.2d at 135.
Because the Pichelmans'
reading of the exception language is contrary to its plain meaning, and because
Hudson declared that immunity applies to all owners where the
injury is the result of an injury caused by a wild animal, including those held
in captivity, the circuit court properly granted summary judgment.
We recognize that the
statute holding a property owner who keeps a wild animal in captivity immune
may grant greater protection to that person than is accorded the keeper of a
domestic animal. We note, however, that
there is no constitutional attack upon the statute as interpreted in Hudson. If, as the Pichelmans argue, it is bad
policy to render a negligent keeper of a wild animal immune from negligence for
injuries caused a social guest not engaged in recreational activity, we
respectfully suggest the only remedy is a change in legislation or the holding
in Hudson, a decision binding upon this court.[5]
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
[1]
The relevant portion of the recreational immunity statute reads as
follows:
(2) No duty; immunity from
liability. (a) Except as provided in
subs. (3) to (6), no owner and no officer, employe or agent of an owner owes to
any person who enters the owner's property to engage in a recreational
activity:
1. A duty to keep the property safe for
recreational activities.
2. A duty to inspect the property, except as provided under s.
23.115 (2).
3. A duty to give warning of an unsafe condition, use or activity on
the property.
(b) Except as provided in subs. (3) to (6), no owner and no officer,
employe or agent of an owner is liable for any injury to, or any injury caused
by, a person engaging in a recreational activity on the owner's property or for
any injury resulting from an attack by a wild animal.
....
(6) Liability; private property.
Subsection (2) does not limit the liability of a private property owner or of
an employe or agent of a private property owner whose property is used for a
recreational activity if any of the following conditions exist:
....
(d) The injury occurs on property owned by a private property owner
to a social guest who has been expressly and individually invited by the
private property owner for the specific occasion during which the injury
occurs, if the injury occurs on any of the following:
....
2. Residential property.
[2] Presumably, the question of recreational immunity was not presented in Hudson v. Janesville Conservation Club, 168 Wis.2d 436, 484 N.W.2d 132 (1992), because the plaintiff was helping his uncle perform his chores as caretaker of a deer park for whom he was employed. Similarly, it is undisputed in this case that Betty was not engaged in recreational immunity when she delivered groceries at her friend's request.
[3] Because Hudson v. Janesville Conservation Club, 168 Wis.2d 436, 484 N.W.2d 132 (1992), extends immunity to property owners, whether Betty was contributorily negligent when she allegedly twice shook the bag at Babe before he bit her is not relevant.
[4] Because we reject the Pichelmans interpretation of the statute, we need not address the potential factual dispute whether Betty was a social guest when she came upon the premises. Apparently she was delivering milk and cookies purchased pursuant to a "share" program whereby the members obtained groceries at a reduced price. Sylvia was a member and Betty worked at the store from which the groceries were purchased. The principals, however, were also social friends.
[5]
The Pichelmans make reference to Ollhoff v. Peck, 177
Wis.2d 719, 503 N.W.2d 323 (Ct. App. 1993).
That case upheld a jury verdict finding a plaintiff 90% causally
negligent for injuries he suffered when he reached into a pond to pet a musky
at a petting zoo and was bitten. Id. at 722, 503 N.W.2d at
324. Peck did not address
Hudson v. Janesville Conservation Club, 168 Wis.2d 436, 484
N.W.2d 132 (1992), and makes no mention of the provisions of § 895.52, Stats.
Presumably the issue was not raised by the parties in the trial court or
on appeal. Further, if the issue had been raised, it would appear that the
musky was a wild animal in captivity and, according to Hudson,
the result would have been the same.
We noted in Peck the treatises and foreign state case law that indicates that the possessors of wild animals are strictly liable for physical harm caused by the animals. Id. at 723, 503 N.W.2d at 324.