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COURT OF
APPEALS DECISION DATED AND
RELEASED SEPTEMBER
11, 1996 |
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. 95-2795
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
DAVID
L. MESSMAN,
Plaintiff-Appellant,
v.
KETTLE
RANGE SNOW
RIDERS,
INC., and
GENERAL
CASUALTY COMPANY
OF
WISCONSIN,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Manitowoc County: FRED H. HAZLEWOOD, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
ANDERSON,
P.J. David L. Messman appeals from an order for
summary judgment dismissing his negligence action against Kettle Range Snow
Riders, Inc., and its insurer, General Casualty Company of Wisconsin
(collectively, Kettle Range). The trial
court concluded that Kettle Range was entitled to recreational immunity under §
895.52, Stats.,[1]
and dismissed the action. We agree, and
we therefore affirm.
The
material facts are undisputed. On March
2, 1994, Messman was riding his snowmobile on the Manitowoc County snowmobile
trail, east of County Highway O (the Manitowoc Trail). Messman’s snowmobile struck portions of a
fallen tree which extended onto the marked and groomed portion of the trail and
he sustained injuries.
The
Manitowoc Trail is located on property which is owned by the state of
Wisconsin, and Manitowoc County has a land use agreement with the state
regarding the trail. In turn, Manitowoc
County had a contract with Kettle Range, a nonprofit corporation, for
snowmobile trail maintenance services.
The contract required Kettle Range to groom the trail, cut and contour
roadside snowbanks, replace lost or damaged trail signs, and maintain and clean
up the trail. Kettle Range was to
receive payment for the maintenance services for the entire season at a cost
not to exceed $4240. The contract was
in effect from December 6, 1993, through March 31, 1994.
On
March 8, 1995, Messman filed this action against Kettle Range and its
insurer. Messman alleged that Kettle
Range was negligent in failing to: (1) warn snowmobilers of the danger of the
trail; (2) remove the danger from the snowmobile trail; (3) maintain the
snowmobile trail in a safe condition; (4) adequately supervise the trail to
prevent dangerous conditions; and (5) make the trail as safe as the nature of
the premises would reasonably permit in violation of § 101.11, Stats.
Kettle
Range denied the allegations and moved for summary judgment contending that
there were no genuine issues of material fact.
Kettle Range argued that it was immune from liability pursuant to §
895.52, Stats., Wisconsin’s
recreational immunity statute. The
trial court agreed and granted Kettle Range’s summary judgment motion and
dismissed Messman’s complaint with prejudice.
Messman appeals.
On
review of an order for summary judgment, the appellate court owes no deference
to the trial court. Waters v.
United States Fidelity & Guaranty Co., 124 Wis.2d 275, 278, 369
N.W.2d 755, 757 (Ct. App. 1985).
Summary judgment methodology has been oft-repeated and we need not do so
here. See, e.g., Grams v. Boss, 97 Wis.2d 332, 338-39, 294
N.W.2d 473, 476-77 (1980).
Messman’s
complaint stated a claim for common law negligence against Kettle Range and
Kettle Range’s answer placed the claim in dispute. Kettle Range also asserted affirmative defenses, including an
allegation that the claim was barred by § 895.52, Stats. Kettle Range
submitted an affidavit in support of its claim and Messman submitted an
affidavit in opposition.
The
trial court concluded that Kettle Range was “an occupant or an owner ¼ and entitled to the
protection of the statute.” The trial
court reasoned that the immunity extended to contractors who perform
recreational services for persons or entities who are clearly owners of the
land.
Messman
maintains that the trial court erroneously granted summary judgment to Kettle
Range because the undisputed facts raise conflicting inferences as to whether
Kettle Range was a private vendor performing fee-based contractual obligations,
whether it had abandoned the recreational land under Mooney v. Royal Ins.
Co., 164 Wis.2d 516, 476 N.W.2d 287 (Ct. App. 1991), or whether its
conduct constituted a malicious failure to warn under § 895.52(5), Stats., thus precluding immunity. In the alternative, Messman argues that he
is a third-party beneficiary to the contract and should be permitted to sue for
breach of contract.[2]
Section
895.52(2)(a)1 and 3, Stats., provides,
with certain exceptions, that “no owner ¼ owes to any person ¼ engage[d] in a recreational activity ¼ [a] duty to keep the
property safe for recreational activities ¼ [or] to give warning of an unsafe condition, use or
activity on the property.”[3] An owner includes a nonprofit organization
that occupies the property. Section
895.52(1)(d).
Messman
argues that while Kettle Range was “a non-profit organization,” it functioned
like an independent contractor with a commercial interest because it
“provid[ed] paid services at commercial rates under a written contract” and
therefore it should not be permitted immunity.
We disagree.
The
supreme court has determined that despite any minimal pecuniary benefits
received from a particular recreational activity, it is nevertheless rational
to include nonprofit organizations under the cloak of recreational immunity
because it serves to open more Wisconsin recreational land to the public. Szarzynski v. YMCA, Camp Minikani,
184 Wis.2d 875, 888, 517 N.W.2d 135, 140 (1994). The reason for limiting the liability of a nonprofit organization
is that
it ¼ is not formed for
the purpose of pecuniary profit. The
profit it seeks is for the purpose of passing a benefit on to those for whom
the organization exists. ¼ [A] nonprofit organization may profit monetarily ¼ but the profit is
intended and must benefit the charitable purposes for which it was formed.
Id. Accordingly, the fact that
Kettle Range was paid $3775 under the contract does not automatically convert
its nonprofit, recreational status to that of an independent commercial
contractor.[4]
Messman
also argues that unlike the snowmobile clubs in Smith v. Sno Eagles
Snowmobile Club, Inc., 823 F.2d 1193 (7th Cir. 1987), Kettle Range was
not an “occupant” for the purposes of immunity. Messman attempts to distinguish Smith on two
grounds. First, Messman contends that
Kettle Range, which contracted for the snowmobile services, was more analogous
to the independent contractor in Labree v. Millville Mfg., Inc.,
481 A.2d 286 (N.J. Super. Ct. App. Div. 1984), than to the nonprofit snowmobile
clubs in Smith. We
disagree.
Kettle
Range, which contracted to provide grooming and maintenance services for the
public snowmobile trail, is virtually indistinguishable from the defendants in Smith. In Smith, the Seventh Circuit
considered whether two snowmobile organizations qualified as occupants under §
29.68, Stats. 1981, Wisconsin’s
former recreational use statute. Smith,
823 F.2d at 1193-94. The snowmobile
clubs had permission from the landowners to construct, groom and maintain
snowmobile trails in the Eagle River, Wisconsin area. Id. at 1194.
The plaintiff was injured on one of the trails constructed and
maintained by the clubs. Id.
The
Seventh Circuit agreed with the district court’s finding that even though the
clubs were not in actual possession or exclusive control of the land, the clubs
nevertheless qualified as occupants and were immune from liability. Id. at 1198. The court based the clubs’ immunity on the
fact that they did not enter upon the land for “commercial gain (as they are
non-profit) but only to build a recreational snowmobile trail for use by the
public.” Id. at
1197. They had permission to and
intended to construct, maintain and groom the public trail, illustrating
“occup[ancy] ¼ with a degree of permanence.” Id. The court
concluded that “to the extent they constructed and groomed” the trail, they
were “properly classified as occupants.”
Id. at 1198.
Similarly,
Kettle Range had a contract to provide grooming and maintenance services on the
recreational snowmobile trail for use by the public. It is undisputed that Kettle Range was a nonprofit organization
whose purpose was to “serve the interests of snowmobile owners ¼ [by] perform[ing]
all desirable and lawful functions for the successful operation of the club and
in the general public interest.” In
addition, Kettle Range obtained permission, through its service contract, to
maintain and groom the public snowmobile trail for Manitowoc County. We conclude, like the court in Smith,
that to the extent Kettle Range maintained and groomed the trail, it was
properly classified as an occupant and was entitled to immunity.
Messman
further contends that “[t]he real distinction both Smith and Labree
make ¼ is the commercial
nature of the occupation, not the actual conduct of the occupants.” Messman concedes in his brief that the
“‘occupation’ in Smith is ¼ similar to the ‘occupation’ here, [but argues that] the
fee-for-services contract underlying Kettle Range’s ‘occupation’ puts it in an
entirely different category. Its
presence is commercial rather than recreational.” We have already addressed and dismissed Messman's concerns
regarding Kettle Range's purported “commercial contract.”
However,
Messman has also mischaracterized the distinction in Smith and Labree. The issue in Smith was not
whether the activity was a “volunteer” or “commercial” venture. Rather, the Smith court
addressed the appellants' narrow definition of “occupants” and their assertion
that Labree supported this interpretation.
In
the process of concluding that this interpretation would “negate and defeat the
very intent of the Wisconsin legislature to open up as much land as possible,”
the Seventh Circuit also distinguished Labree. Smith, 823 F.2d at
1197-98. The defendant in Labree
was an independent contractor whose business profited from the excavation of
sand and gravel which were to be used in the construction of a highway
bed. Labree, 481 A.2d at
288. Although not part of the contract,
the excavation resulted in the creation of a twenty-acre lake which was
informally used by the public for swimming and bathing. Id. The plaintiff suffered a diving injury at
the lake and was rendered a quadriplegic. Id.
The
Smith court made the following distinctions: (1) the Labree defendant
entered the land as part of a business agreement and for commercial gain;
(2) the Labree defendant never occupied the property “‘with a
degree of permanence,’ [because] the contractor simply removed sand and gravel
from the land pursuant to its contractual obligations;” and (3) “[t]he creation
of the lake was not intended to be part of the commercial venture.” Smith, 823 F.2d at 1197
(emphasis added). The Labree
defendant used the property to remove the sand and gravel, not to create the
twenty-acre lake which was used for recreational activities. Smith, 823 F.2d at 1197. In contrast, the snowmobile clubs utilized
the property, according to their agreements, to construct, maintain and groom
the recreational trails. Id. Herein lies the distinction between Labree
and Smith, as well as Labree and the case at
bar. It is clear that Labree
does not provide the support which Messman is seeking.
In
the alternative, Messman argues that, unlike Smith, here there is
a genuine issue of material fact concerning whether Kettle Range abandoned the
recreational land as articulated in Mooney, 164 Wis.2d at 520,
476 N.W.2d at 289. This argument is
equally unpersuasive.
Mooney involved a nonprofit snowmobile club which had received
permission to hold a snowmobile speed race on Lake Minoqua. Id. at 519, 476 N.W.2d at
288. After the race, the club removed
the flags and other race equipment from the lake. The members also attempted to flatten the track area back to its
natural state, but several mounds of plowed ice remained after the
clean-up. Id. at 519-20,
476 N.W.2d at 288. The club president
testified that after the clean-up, the club had completed all of its activities
on the lake and had no plans to return.
Id. at 519, 476 N.W.2d at 288. Consequently, Mooney was injured when his snowmobile hit one of
the remaining mounds of ice. Id.
The
Mooney court determined that the club had abandoned the
recreational property. Id.
at 522, 476 N.W.2d at 289. The court
reasoned that “[w]hile an ‘occupant’ need not be in actual possession or
exclusive control, he cannot totally abandon the premises. ¼ [T]he club [in Mooney] had
concluded all of its activities ¼ before the accident occurred and did not intend to
return.” Id. (citation omitted).
The
club pressed the court to establish a bright-line rule that an occupant
remained in possession of the recreational property until the lease had
expired. Id. The court declined to extend immunity in
situations where “the evidence unequivocally show[ed] an intentional and
permanent abandonment of the premises.”
Id. at 523, 476 N.W.2d at 290. However, the court noted that “where the evidence of abandonment
is ambiguous and reasonably susceptible to conflicting intentions ¼ immunity may extend
for the length of a lease or a permit.”
Id.
Here,
the evidence does not establish that Kettle Range intentionally and permanently
abandoned the trail. In fact, the
evidence demonstrates quite the opposite.
Kettle Range submitted the affidavit of Lester Tetzlaff, vice president
of Kettle Range, in which he stated “[O]n February 28, 1994, I performed the
grooming of the trail in question ¼ [and] it was my intention to return to the snowmobile
trail to perform additional grooming work.”
Kettle Range's contract was in effect through March 31, 1994. Even though the service records indicate
that February 28, 1994, was the last day that Kettle Range performed any
grooming or maintenance on the trail, this does not negate Kettle Range’s
stated intention to return to the trail to conduct further grooming. At best, the evidence is somewhat “ambiguous
and reasonably susceptible to conflicting intentions,” in which case Kettle
Range’s immunity should be extended to the end of the contract. See Mooney, 164 Wis.2d
at 523, 476 N.W.2d at 290. We so hold.
We
agree with the trial court and hold that it properly found
under § 895.52, Stats.,
that Kettle Range, a nonprofit snowmobile club, was an occupant to the extent
it maintained and groomed the Manitowoc Trail.
We also hold that the trial court properly found that Kettle Range had
not yet abandoned its responsibilities to maintain the Manitowoc Trail. We affirm the trial court’s grant of summary
judgment in favor of Kettle Range since there was no genuine issue of material
facts and Kettle Range was entitled to judgment as a matter of law.
By
the Court.—Order affirmed.
Not
recommended for publication in the official reports.
[1] Section 895.52, Stats., was amended effective May 1,
1996, by 1995 Wis. Act 223, § 1-7, to codify the decision of Moua v.
Northern States Power Co., 157 Wis.2d 177, 458 N.W.2d 836 (Ct. App.
1990). The amendments do not affect our
analysis of the issues presented here for review.
[2] There is nothing
in the record to indicate that a claim based upon malicious failure to warn or
breach of contract was pleaded or argued below. A theory of relief neither pleaded nor argued to the trial court
will not be considered on appeal. A
party cannot attack an adverse summary judgment by attempting to amend its
complaint on appeal. Stern v.
Credit Bureau, 105 Wis.2d 647, 654-55, 315 N.W.2d 511, 515-16 (Ct. App.
1981). We will not address Messman's
contentions of malicious failure to warn or his breach of contract claim.
[4] The record does
not include any facts which establish that Kettle Range used the profits from
the contract for anything other than nonprofit purposes, as outlined in the
bylaws. Messman attempts to categorize
Kettle Range as an independent contractor based upon the bidding process, the
specificity of the contract and the payment received, but these facts are
irrelevant as long as the profits were used to benefit the purposes for which
the organization was formed. See
Szarzynski v. YMCA, Camp Minikani, 184 Wis.2d 875, 888, 517
N.W.2d 135, 140 (1994). An appellate
court’s review is limited to those parts of the record made available to
it. See State v. Pettit,
171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992).