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  • WisBar News
    February 28, 2017

    Recreational Immunity Applies to Injured Supervisors, not Just Participants

    Joe Forward


    Feb. 28, 2017 – A grandmother tripped on a doorstep while rushing to stop her grandson from jumping off the high dive at a city-owned swimming pool. Recently, a state appeals court ruled that the city was entitled to recreational immunity from any lawsuit.

    In August 2012, Carol Wilmet dropped off her grandchildren at a swimming pool owned by the City of De Pere. She watched them swim from outside the pool’s fenced perimeter.

    However, she quickly entered the pool premises to stop her grandson from using the high dive with no lifeguards present. She tripped while walking toward the high dive, and subsequently sued the city for negligence and a violation of the safe place statute.

    But the city invoked recreational immunity under Wis. Stat. section 895.52(2), which says municipalities and other owners of property used for recreational purposes don’t have a duty to inspect the property, keep it safe, or warn of unsafe conditions.

    As such, recreational property owners cannot be liable, under section 895.52(2)(b) for injuries to persons “engaging in a recreational activity on the owner’s property.”

    This last phrase is important because Carol Wilmet argued that she was not “engaging in a recreational activity” when she was rushing to stop her grandchild. The city argued that supervising her grandson, who was engaged in recreation, was sufficient.

    The circuit court ruled the city was entitled to recreational immunity, concluding that it applies to people who are supervising recreational activities, though not participating.

    In Wilmet v. Liberty Mutual Ins. Co., 2015AP2259 (Feb. 28, 2017), a three-judge panel for the District III Wisconsin Court of Appeals affirmed that decision.

    “[T]he recreational activities of the person being supervised do become part and parcel of the supervisor’s activities and, importantly for recreational immunity purposes, his or her reason for being present on the property,” wrote Judge Thomas Hruz.

    “Hence, contrary to the Wilmets’ argument, the recreational activity of the supervisee also becomes the recreational activity of the supervisor – even if the supervisor is not ‘recreating’ in the same sense as his or her pupil.”

    The panel noted a statement of legislative intent which says the recreational immunity statute should be construed liberally to protect recreational property owners.

    “Immunizing property owners from those engaged in a recreational activity while leaving such owners susceptible to liability for those actively supervising or instructing such activity would run counter to the legislation,” Judge Hruz noted.

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