PUBLISHED OPINION
Case No.: 95-0796
†Petition for
review filed.
Complete
Title
of
Case:LAVERN FISCHER
AND MARY FISCHER,
Plaintiffs-Appellants,†
v.
DOYLESTOWN FIRE DEPARTMENT,
VILLAGE OF DOYLESTOWN
AND GENERAL CASUALTY COMPANY OF WISCONSIN,
Defendants-Respondents.
Submitted
on Briefs: October 9, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: December 28, 1995
Opinion
Filed: December
28, 1995
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Columbia
(If
"Special" JUDGE: Richard
Rehm
so
indicate)
JUDGES: Gartzke,
P.J., Sundby and Vergeront, JJ.
Concurred:
Dissented: Sundby,
J.
Appellant
ATTORNEYSFor the plaintiffs-appellants the
cause was submitted on the briefs of Steven J. Schooler of Lawton
& Cates, S.C. of Madison.
Respondent
ATTORNEYSFor the defendants-respondents the
cause was submitted on the brief of Rick J. Mundt and Kim I. Moermond
of Winner, Wixson & Pernitz of Madison.
COURT OF
APPEALS DECISION DATED AND
RELEASED December
28, 1995 |
NOTICE |
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(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0796
STATE OF WISCONSIN IN
COURT OF APPEALS
LAVERN
FISCHER
AND
MARY FISCHER,
Plaintiffs-Appellants,
v.
DOYLESTOWN
FIRE DEPARTMENT,
VILLAGE
OF DOYLESTOWN
AND
GENERAL CASUALTY COMPANY OF WISCONSIN,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Columbia County: RICHARD REHM, Judge. Affirmed.
Before
Gartzke, P.J., Sundby and Vergeront, JJ.
VERGERONT,
J. LaVern and Mary Fischer appeal from
a summary judgment dismissing their personal injury claim against the
Doylestown Fire Department, the Village of Doylestown and General Casualty
Company of Wisconsin. The trial court
concluded that the fire department and the village were immune from liability
under Wisconsin's recreational use statute, § 895.52, Stats., because the Fischers were
engaged in a recreational activity and because both the fire department and the
village are governmental bodies. We
affirm.
The
following facts are not disputed.
LaVern Fischer was injured while he was attending the 1992 Doylestown
Firemen's Picnic, an event sponsored annually by the Doylestown Fire
Department. A bench he was sitting on
at the picnic collapsed. The picnic is
held at the Firemen's Park, which is owned by the Village of Doylestown. The incident occurred on the last day of the
event. The picnic is open to the public
and no general admission fee is charged.
The fire department sells food and drinks for a profit. There are also games and activities at the
event, including softball, horseshoes, a raffle, music, amusement rides, a
truck pull and bingo. Visitors are
required to pay a fee or purchase a ticket in order to participate in the games
and activities. There are also two
tents set up to provide visitors a shaded place to rest and socialize.
The
fire department made approximately $4,300 from the 1992 picnic, primarily from
the sale of food and beer, but also from the tickets sold for the
activities. The fire department uses
the money from the picnic to maintain the park and purchase park and fire
equipment. Money from prior picnics
paid for buildings in the park.
The
Fischers attended the event with their grandchildren in the morning on the day
of the injury. They returned in the
afternoon with their grandson to take him on the amusement rides, and that is
when the injury occurred. The rides
require the purchase of tickets. LaVern
also planned to attend the truck pull, which was in an enclosed area and
required a ticket. But he did not do so
because the gates were closed and the event was almost over by the time he got
there. The Fischers intended to
purchase their supper at the picnic.
When
reviewing a grant of summary judgment, we apply the same standards as the trial
court. Ervin v. City of Kenosha,
159 Wis.2d 464, 479, 464 N.W.2d 654, 660 (1991). We grant summary judgment if there are no genuine issues as to
any material fact and the moving party is entitled to judgment as a matter of
law. Section 802.08(2), Stats.
We do not decide issues of fact when reviewing summary judgment motions,
but simply determine if there is a dispute of material fact. Ervin, 159 Wis.2d at 480, 464
N.W.2d at 661. Even if there are no
disputed issues of material fact, if reasonable alternative inferences can be
drawn from the facts, summary judgment is not appropriate. Id. at 478-79, 464 N.W.2d at
660.
The
Fischers contend that the trial court erroneously granted summary judgment to
the defendants because the undisputed facts raise conflicting inferences as to
whether the event was recreational, and therefore within the protection of
§ 895.52, Stats., or commercial.
Section
895.52(2)(b), Stats., provides
that, with certain exceptions, "no owner ... is liable for any injury to
... a person engaging in a recreational activity on the owner's
property."
Section 895.52(1)(g) defines "recreational activity" as:
[A]ny outdoor activity undertaken for the purpose of
exercise, relaxation or pleasure, including practice or instruction in any such
activity. "Recreational
activity" 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, but does not include any organized team sport activity
sponsored by the owner of the property on which the activity takes place.
The
Fischers rely on Silingo v. Village of Mukwonago, 156 Wis.2d 536,
458 N.W.2d 379 (Ct. App. 1990), in arguing that conflicting reasonable
inferences entitle them to a trial. In Silingo,
we held that summary judgment had been improperly granted because there was a
disputed issue of material fact as to whether an event called "Maxwell
Street Days," an outdoor flea market, was a recreational activity covered
by the statute. We concluded that the
intrinsic nature of the flea market, where over one hundred vendors offered
their wares for sale to the public, raised an inference that the event was
commercial. On the other hand, we
concluded that the "community flavor" of the event, the donation of
the site by the village, and the sponsorship motivation of the American Legion,
even in the face of its profit opportunity, raised an inference that the event
was recreational. Silingo,
156 Wis.2d at 544-45, 458 N.W.2d at 383.
In
Silingo, we adopted an objective test to determine whether an
activity is "recreational":
[This test] requires that all social and economic
aspects of the activity be examined.
Relevant considerations on this question include, without limitation,
the intrinsic nature of the activity, the type of service or commodity offered
to the public, and the activity's purpose and consequence.
Silingo, 156 Wis.2d at 544, 458 N.W.2d at 382 (emphasis in original).
Applying
this test to the undisputed facts here, we conclude there are no conflicting
inferences as there were in Silingo. Even though refreshments and activities were sold at the
Firemen's Picnic, it is not reasonable to infer that the intrinsic nature of
the picnic was commercial in the way that a flea market is. As we noted in Silingo, one
purpose of the flea market was to offer the vendors' merchandise for sale to
the public and provide the opportunity for the public to transact business with
the vendors. Silingo, 156
Wis.2d at 544-45, 458 N.W.2d at 383. We
noted that an economic relationship between seller and potential buyer was
clearly at work, as in a mall or store, but in a less formal setting. Id. at 545, 458 N.W.2d at
383. That is not the case at the
Firemen's Picnic. People coming to the
picnic are coming for the purpose of "exercise, relaxation or pleasure." See § 895.52(1)(g), Stats.
The activities engaged in at the picnic--eating, drinking, playing and
observing games--are substantially similar to several examples listed in §
895.52(1)(g), such as "sight-seeing," "picnicking" and
"any other outdoor ... game."
In
Hall v. Turtle Lake Lions Club, 146 Wis.2d 486, 431 N.W.2d 696
(Ct. App. 1988), we held that a community fair sponsored by the Lions Club
offering an agricultural show, concessions, carnival rides and a demolition
derby was a recreational event under the statute. Id. at 488, 431 N.W.2d at 697. We therefore affirmed the trial court's
grant of summary judgment in favor of the Lions Club.
The
Fischers argue that Hall is distinguishable because there was no
evidence in Hall of a profit-making motive by the sponsor, as
there is here. According to the
Fischers, the fire department's profit motive creates a reasonable inference
that the event is commercial rather than recreational in nature. We do not agree. The profits earned by the fire department are used to pay for
maintenance of the park, and to purchase park equipment and fire
equipment. These are not profits in the
ordinary commercial sense of the word.
The Firemen's Picnic is, in many ways, the community's way of paying for
public services.
Under
§ 895.52(6)(a), Stats.,
private landowners lose their immunity if they collect money, goods or services
in excess of $2,000 for recreational activities during the year in which the
injury occurs. The only economic limit
placed upon a governmental body seeking immunity under § 895.52 is that the
governmental body acting as an owner may not claim immunity when the owner
charges an admission fee for spectators.
Section 895.52(4)(a); Nelson v. Schreiner, 161 Wis.2d 798,
805, 469 N.W.2d 214, 217-18 (Ct. App. 1991).
The exclusion of private landowners who collect above $2,000 annually
demonstrates that a profit earned by a governmental body does not, in itself,
convert a recreational event into a commercial one.[1]
Although
there are distinctions between the undisputed facts here and those in Hall,
they do not warrant a different result.
We conclude that the facts do not raise conflicting inferences. The trial court did not err in holding that,
as a matter of law, the Fischers engaged in a recreational activity by
attending the Firemen's Picnic.
The
Fischers next argue that there is a disputed issue of material fact relating to
the status of the fire department as a governmental body. They contend that the fire department is not
a governmental body, but rather a private property owner[2]
that is not immune from liability because it receives more than $2,000 annually
for the recreational activities on its property. Section 895.52(6)(a), Stats.
Section
895.52(1)(a)3 and 4, Stats.,
defines a governmental body to include a "county or municipal governing
body, agency, board, commission, committee, council, department, district or any
other public body corporate and politic created by constitution, statute,
ordinance, rule or order" and a "governmental or quasi-governmental
corporation." The definition also
includes a "formally constituted subunit or an agency [of either of those
entities just listed]." Section
895.52(1)(a)5. It is not disputed that
the village is a municipal governing body within the meaning of §
895.52(1)(a)3. The issue is the
relationship between the village and the fire department.
The
undisputed facts are that the village provides funding to the fire department,
pays firefighters for the calls on which they are sent, and approves the
election of the fire chief. The fire
department submits an annual budget to the village and the village then
includes approved purchases in the village budget. The fire department does not pay a fee to use the park for the
picnic. However, a fee is charged by
the fire department for others to use the park. These fees go into the fire department's budget. The Fischers' own submissions show that the
fire department is not a volunteer fire company organized under ch. 213, Stats., or a non-profit corporation
organized under ch. 181, Stats.,
or a corporation organized under ch. 180, Stats.
The
only reasonable inference from this record is that the fire department is a
subunit or agency of the village within the meaning of § 895.52(1)(a)5, Stats.
It
is true that the fire department functions independently of the village in that
it sets its own meetings, conducts its own monthly fire drills, determines its
training needs, and organizes the picnic.
But these facts are not sufficient to create a dispute concerning
whether the fire department is a subunit or agency of the village.
The
Fischers also argue that there is an issue of fact regarding the fire
department's status as a governmental unit because of the defendants' response
to the Fischers' request for admission.
The request stated:
That defendant,
Doylestown Fire Department, is a department of the Village of Doylestown with
its principal address for correspondence in Wisconsin Dells, Wisconsin 53965 at
1172 Gale Drive.
The response to this request was "Deny."
Counsel
for the defendants stated at the hearing on defendants' motion for summary
judgment that defendants denied the request for admission because it contained
an incorrect address. The trial court
accepted this explanation, although it stated that the denial to "some
extent skirted the intention of the inquiry."[3]
The
trial court noted that the Fischers' complaint made the same allegation as that
contained in the request to admit. The
only negligent acts alleged in the complaint were those attributed to the fire
department. Presumably the Fischers
wished to establish that the fire department was a "department" of
the village in order to hold the village liable. The answer denied this allegation based on lack of information
and belief. But the defendants also asserted
as an affirmative defense in their answer that the fire department is not a
proper party and lacks the capacity to be sued. As the trial court noted, the defendants proceeded throughout as
if the village and the fire department were the same party. Their position never was that the fire
department was not a subunit or agency of the village. The Fischers do not assert that the denial
misled them.
Although
the defendants did not file a motion to amend their denial to the request to
admit, the trial court's analysis and comments on this point show that it
declined to treat the denial as a concession by the defendants that the fire
department is not a subunit or agency of the village. The lack of a formal motion in these circumstances is not fatal. See Schmid v. Olsen,
111 Wis.2d 228, 235 n.3, 330 N.W.2d 547, 551 (1983) (unnecessary for a party
seeking to amend or withdraw admission to make a formal motion). Whether to permit a party to amend a
response to a request to admit is within the trial court's discretion. Id. at 237, 330 N.W.2d at
551. We conclude the trial court did
not erroneously exercise its discretion in relieving defendants from the effect
of the denial insofar as it concerned the relationship between the fire
department and the village.
By the Court.—Judgment affirmed.
No. 95-0796(D)
SUNDBY,
J. (dissenting). The
question presented in this case is: Is
a village volunteer fire department immune from liability under the
Recreational Activities Statute, § 895.52, Stats., for its negligent infliction of personal injury on a
person who attends its annual "picnic" whose "primary and sole
purpose" is to raise money for the fire department?
I
conclude that under the tests we must apply to determine whether an activity is
a "recreational activity" as defined in § 895.52(1)(g), Stats., by the Wisconsin Supreme Court
in Linville v. City of Janesville, 184 Wis.2d 705, 716, 516
N.W.2d 427, 430-31 (1994), the trial court should have granted plaintiffs'
summary judgment that the Doylestown Volunteer Fire Department's annual
"picnic" was not a "recreational activity." Therefore, I respectfully dissent.
Section
895.52(2)(a), Stats., provides:
Except as provided in subs. (3) to (6), no
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.
Fischer
claims that the fire department was negligent in constructing a bench for
seating patrons of the "picnic" which collapsed when he sat on it.
An
"owner" includes "a governmental body ... that owns, leases or
occupies property."
Section 895.52(1)(d)1, Stats. I agree with the majority that the volunteer
fire department is an "owner" for purposes of § 895.52. Of course, the defendant, Village of
Doylestown, is a governmental body.
Section
895.52(1)(g), Stats., provides:
"Recreational
activity" means any outdoor activity undertaken for the purpose of
exercise, relaxation or pleasure, including practice or instruction in any such
activity. "Recreational
activity" 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, but does not include any organized team sport activity
sponsored by the owner of the property on which the activity takes place.
The
supreme court has said that in determining whether an activity is a
"recreational activity," we must apply a test consistent with the
purpose of the statute. Linville,
184 Wis.2d at 715-16, 516 N.W.2d at 430.
The purpose of the statute is set out in Section 1 of 1983 Wis. Act 418.[4] The supreme court stated:
A test which is consistent with the purpose of
the statute is one which considers the purpose and nature of the activity in
addition to the user's intent. Such a
test was adopted by the court of appeals in this case:
The test requires examination of all aspects of the
activity. The intrinsic nature, purpose
and consequence of the activity are relevant.
While the injured person's subjective assessment of the activity is
relevant, it is not controlling. (cites
omitted). Thus, whether the injured
person intended to recreate is not dispositive, (cites omitted), but why he was
on the property is pertinent. (cites
omitted).
184 Wis.2d at 716, 516 N.W.2d at 430.
It
is admitted by the fire department that the "intrinsic nature, purpose and
consequence" of its annual "picnic" is to raise money for the
operation of the fire department. The
fire chief, Steven Langsdorf, testified that the "picnic" produced
the department's "total budget."
The "picnic" had been an annual event conducted by the fire
department in the village park for thirty-one years. A "large part" of the department's meetings is devoted
to planning the "picnic" and administering the funds raised. The "picnic" at which plaintiff
LaVern Fischer was injured grossed approximately $8000 and "netted"
approximately $4300.
The
majority concludes that the trial court did not err in holding that, as a
matter of law, Fischer was engaged in a recreational activity when he attended
the "picnic." Maj. op. at
7. In Silingo v. Village of
Mukwonago, 156 Wis.2d 536, 458 N.W.2d 379 (Ct. App. 1990), we held that
whether an activity is a "recreational activity" is a question of
fact. We held that the trial court improperly
granted summary judgment because there was a disputed issue of material fact as
to whether "Maxwell Street Days," an outdoor flea market, was a
recreational activity. In the Comment
cited by the supreme court in Linville, 184 Wis.2d at 715, 516 N.W.2d
at 430, the author likewise concludes that under the objective test adopted in Silingo,
when an allegedly recreational activity does not appear as an enumerated
activity in § 895.52(1)(g), Stats.,
it is a question of fact whether that activity is "substantially
similar" to the other listed activities.
Stuart J. Ford, Comment, Wisconsin's Recreational Use Statute: Towards Sharpening the Picture at the Edges,
1991 Wis. L. Rev. 491, 519. I do not believe, however, that the
Commentator intended to opine that the ultimate question is a question
of fact. It is hornbook law that if the
facts are undisputed, the question of whether those facts fulfill a statutory
standard is a question of law. Lifedata
Medical Servs. v. LIRC, 192 Wis.2d 663, 670, 531 N.W.2d 451, 454 (Ct.
App. 1995).
I agree with the
majority that the facts necessary to determine whether the fire department's
"picnic" was a "recreational activity" are undisputed and
thus, we are presented with a question of law.
However, I disagree with the majority's conclusion and would hold that
on the undisputed facts, the fire department's "picnic" was not a
"recreational activity."
The
majority reached its conclusion without considering the purpose of the
Recreational Activities Law. In Linville,
the court stated that the purpose behind § 895.52, Stats., is found in the statement of legislative intent in
1983 Wis. Act 418 as follows:
Legislative intent. The
legislature intends by this act to limit the liability of property owners
towards 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 is more restrictive than or inconsistent with the provisions of
this act.
Linville, 184 Wis.2d at 714-15, 516 N.W.2d at 430.
When
the activity is not specifically enumerated in § 895.52(1)(g), Stats., whether the activity is
"recreational" is inherently ambiguous. When a statute is ambiguous, we first resort to the language of
the statute. See State v.
Ahrling, 191 Wis.2d 398, 403, 528 N.W.2d 431, 433 (1995). The declaration of intent is, of course, a
part of the law even though it appears only in the session laws. In my opinion, the declaration of intent in
1983 Wis. Act 418 is the most important part of the Recreational Activities
Law. First, it tells us that if the
activity is not included in the enumeration, it may constitute a
"recreational activity ... where substantially similar circumstances or
activities exist." (Emphasis added.) I conclude that the department's
profitmaking "picnic" is not an activity "substantially
similar" to the enumerated activities.
Second,
the declaration of legislative intent states that: "The legislature intends by this act to limit the liability
of property owners towards others who use their property for recreational
activities under circumstances in which the owner does not derive more than
a minimal pecuniary benefit."
1983 Wis. Act 418 (emphasis added).
The revenues derived from the department's annual "picnic" are
its life-blood. Finally, the
legislative history supports a construction of the statute which limits the
statutory immunity to the gratuitous offering by a landowner of the use of his
or her property. The Comment offers as
a definition of "recreational use" "any recreational activity
that a visitor might want to pursue on someone else's land, where the landowner
has no fundamental objection to the activity but is likely to deny permission
solely to avoid potential liability for accidents arising out of the
activity." 1991 Wis. L. Rev. at 492. The Comment approves of our use of
"minimal pecuniary benefit" in Douglas v. Dewey, 154
Wis.2d 451, 453 N.W.2d 500 (Ct. App. 1990), to conclude that the phrase
"[gives] rise to a tenor of granting statutory immunity only to landowners
whose permission to use the land was gratuitous." 1991 Wis.
L. Rev. at 513.
Mr.
Ford questions why the drafters of the 1984 Act chose the language that now
appears as the statement of legislative intent. Id. at 507.
His Comment tracks the legislative history of the bill which ultimately
became 1983 Wis. Act 418, noting that the bill began in the Assembly but was
dropped. Id. at 508. The Comment tracks the 1983 legislative
history in footnotes 64 through 72 at pages 507-09. A reading of that legislative history is a must if one is to
understand the Recreational Activities Law.
The legislative history shows that the Senate added the statement of
legislative intent (there was no statement of intent in the Assembly Bill) to
respond to some of the ambiguities which the sponsors of the legislation and
the drafters saw in § 29.68, Stats.,
1963, and the Assembly Bill. The
memoranda and correspondence in the legislative record of SB 408 show that the
sponsors and drafters were concerned that the Assembly Bill did not adequately
define the recreational activities which the landowner could allow without
liability.
The
representative of the Ice Age Trail stated in a letter of October 11, 1983, to
the principal Senate sponsor, Senator David Helbach, that the "definition
of `recreational use' does, and I am afraid, always will cause trouble. We will have to do the best we can and leave
the rest up to the courts." In a
November 30, 1983 letter to Senator Helbach, the Department of Natural
Resources' counsel stated that, "[t]he definition of `recreational
purpose' continues to concern me."
Drafting record of 1983 Wis. Act 418, LRB-4028/2.
The
drafting file also included a draft of a possible "Public Access
Act," drafted by Professor W. Church (Private
Lands and Public Recreation: A Report
and Proposed New Model Act on Access, Liability and Trespass). Drafting record of 1981 SB 817. In that Act, Professor Church suggested a
very simple definition of "recreational use" to "include[] any
activity undertaken for exercise, education, relaxation, or pleasure on land
owned by another." 1991 Wis. L. Rev. at 537. That is substantially the first line of the
definition of "recreational activity" in § 895.52(1)(g), Stats., except that the word
"activity" was modified by the word "outdoor."
I
believe the legislative history makes clear that the legislature was unwilling
to eliminate the enumeration of "recreational activit[ies]"
presumably out of fear that the courts would vitiate the legislature's intent
by too broad a construction of "recreational activity." The legislature's concern in this respect is
traceable to the origins of Wisconsin's Recreational Activities Law. The impetus for § 29.68, Stats., 1963, came from The Forest
Industries Information Committee of Wisconsin representing industrial forest
owners who had suffered severe damage to forest reproduction from excessively
large deer herds. Note, Torts-Statutes-Liability
of Landowner to Persons Entering for Recreational Purposes, 1964 Wis. L. Rev. 705, 709. The forest owners began a successful
campaign to invite deer hunters to use their lands. Id.
However, they became concerned that their active solicitation of hunters
exposed them to liability to hunters injured on their land, particularly those
who used the narrow and hazardous timber roads and trails. Id.
Section
29.68, Stats., 1963, did not
entirely accomplish its purpose because of the broad construction given by the
courts to the exception for "willful" failure to warn entrants
against a dangerous condition existing on the land. Further, despite the statute, the Wisconsin Supreme Court
continued to give the term "valuable consideration," which vitiated immunity, a construction so
broad that the conferring of almost any benefit upon the landowner or a
mutuality of interest of the landowner and the entrant destroyed immunity. See Copeland v. Larson,
46 Wis.2d 337, 347, 174 N.W.2d 745, 750 (1970).
The
original intent of the legislature is now so distant that it is difficult to
recall that the original purpose of the recreational use immunity statute was
to eliminate the "invitation" theory of landowner liability and
substitute therefor the "economic-benefit" theory. See Douglas v. Dewey,
154 Wis.2d at 460-62, 453 N.W.2d at 504-05.
In Douglas, we concluded that, in § 895.52, Stats., the "legislature abandoned
the invitation theory and adopted a pecuniary-benefit approach, with the caveat
that the pecuniary benefit to the owner for the use of his or her property must
be actual, not merely potential." Id.
at 461, 453 N.W.2d at 504-05. We also
concluded that the legislature intended to overrule those cases holding that a
landowner was liable if there was any benefit to the landowner from the
visitor's entry including a mere mutuality of interest between the owner and
the visitor. See id.
at 461, 453 N.W.2d at 505. This
interpretation of the legislative history is binding on us.
The
legislature did not retain "valuable consideration" as the yard stick
to gauge immunity or liability. Id.
at 462, 453 N.W.2d at 505. We said that
plainly, the legislature did not intend to expand the landowner's liability for
recreational use of his or her land as the Copeland court's
construction of "valuable consideration" required. Id. One of the decisions of the Wisconsin Supreme Court the
legislature may have intended to overrule was Quesenberry v. Milwaukee
County, 106 Wis.2d 685, 317 N.W.2d 468 (1982). In that case, the court held that plaintiffs
who were injured playing golf on Milwaukee County's golf course stated a claim
against Milwaukee County because golf courses did not come within the scope of
§ 29.68, Stats., 1963. The court noted that the statute had been
amended after its enactment by several amendments adding specific activities as
"recreational purposes." Id.
at 692, 317 N.W.2d at 471-72.
Therefore, the court refused to give a broad construction to the term
"recreational purposes." The
court applied the rule of statutory construction, ejusdem generis, and
concluded that a "common feature of the enumerated words is that they are
the type of activity that one associates being done on land in its natural
undeveloped state ...." Id.
at 693, 317 N.W.2d at 472.
As
is usually the case with the development and enactment of controversial
legislation, 1983 Wis. Act 418 was a compromise. The legislature rejected "valuable consideration" but
required a "minimal pecuniary benefit" as the sine qua non of
immunity. It rejected the ejusdem
generis rule in favor of a qualifying phrase that an activity would be
recreational where "substantially similar" circumstances or
activities to the enumerated activities exist.
Plainly, the legislature believed that by these changes it was
overruling Copeland and Quesenberry. However, the legislature was unwilling to go
with a definition of "recreational activity" or "recreational
use" as broad as that Professor Church suggested in the Public Access Act.
It
has been suggested that the legislature intended that the courts give a liberal
construction to "recreational activity." The statement of legislative intent provides that: "[W]here substantially similar
circumstances or activities exist, this legislation should be liberally
construed in favor of property owners to protect them from liability." (Emphasis added.) Before the rule of liberal construction may be applied, the court
must first find that an unenumerated activity is substantially similar to an
enumerated activity. The legislature
did not intend that the courts give a liberal construction to the definition of
"recreational activity"; in fact, the converse is true. See 1991 Wis. L. Rev. at 522-23.
In
Bystery v. Village of Sauk City, 146 Wis.2d 247, 252, 430 N.W.2d
611, 613 (Ct. App. 1988), we said that the declaration of legislative intent in
1983 Wis. Act 418 "shows that the purpose of sec. 895.52 is the same as
former sec. 29.68: to encourage
landowners who might otherwise withhold their land from the use of others to
make their land available for recreational activities." By including municipalities in the
protection of § 895.52, Stats.,
the legislature has encouraged them to provide for the residents and the public
a variety of outdoor activities. We
said that an example was where a municipality has withdrawn a highway or
sidewalk from transportation uses, in whole or in part, and devoted it to
recreational activities as defined in § 895.52(1)(g), a street fair, for
example. However, the legislature did
not intend that a governmental body should be immune from liability where it
provides outdoor recreational activities for a substantial pecuniary
benefit. Therefore, I conclude that in
order to constitute a "recreational activity," the pecuniary benefit
to a governmental body must be "minimal." Because that is not the case here, I respectfully dissent.
[1] We address the Fischers' argument that the
fire department is not a governmental entity later in the opinion.
[2] A "private property owner" is
defined as any owner other than a governmental body or nonprofit
organization. Section 895.52(1)(e),
Stats. An "owner" includes any person, governmental body or
nonprofit organization that owns, leases or occupies property. Section 895.52(1)(d).
[3] Section 804.11(1)(b), Stats., provides that the denial of a
request to admit must "fairly meet the substance of the requested
admission, and when good faith requires that a party qualify an answer or deny
only a part of the matter of which an admission is requested, the party shall
specify so much of it as is true and qualify or deny the remainder."