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    Wisconsin Lawyer
    November 01, 2017

    As I See It
    Trouble by Design: Recreational Immunity Statute a Barrier to Justice

    Interpreting the scope of immunity granted by Wis. Stat. section 895.52 has long frustrated judges, lawyers, and their clients. For more than three decades, it has served as a barrier to justice for injured persons.

    James D. Rogers

    hot air balloon

    It was surprising to discover an article in the October Wisconsin Lawyer1 asserting that the Wisconsin Supreme Court’s “standards still favor injured parties” when interpreting the recreational immunity statute, Wis. Stat. section 895.52. There is irreconcilable tension between the author’s analysis of the statute’s broad scope and the article’s conclusion, which boldly appears in the headline. In fact, the accompanying sidebar confirms that the opposite is true by providing that “the recreational use statute is a powerful law that provides broad immunity to many landowners and other recreational-opportunity providers.”2 Reluctantly, I agree.

    The piece, which analyzes the supreme court’s 2016 decision in Roberts v. T.H.E. Insurance Co.,3offers valuable guidance to practitioners on the issues of liability waivers and recreational immunity law. That the court allowed the plaintiffs’ claim to proceed in Roberts,4 however, provides little evidence supporting the contention that Wisconsin favors plaintiffs when interpreting the recreational immunity statute.

    If anything, the Roberts opinion suggests the opposite. Justice Ziegler’s concurring opinion5 wisely cautioned those who argue the statute should go further. Justice Ziegler argued that the immunity offered by the statute is not absolute, specifically warning that it does not provide “indiscriminate immunity.”6 Justice Ziegler correctly analyzed that the prevailing trend in recreational immunity decisions is increasingly disconnected from the legislature’s intended purpose for enacting the statute: encouraging landowners to open land for recreational use.7 Her opinion then challenged the majority to remain faithful to the court’s previous holdings and not allow its analysis to collapse in favor of immunity.8

    I welcome this opportunity to balance the discussion of the current state of recreational immunity law in Wisconsin.

    Liability for Negligent Acts Was the Rule at Common Law

    Wisconsin common law on recreational use once overwhelmingly favored liability and took a dim view of immunity.9 As with other areas, the Wisconsin common law imposed a far-reaching duty of care to avoid foreseeable harm to others.10 While Wisconsin courts strictly construe statutes in derogation of the common law in favor of liability, courts will deviate from that approach in adherence to clearly expressed legislative intent.11

    A Brief History of Recreational Immunity in Wisconsin

    Wisconsin Statutes section 895.52 dramatically expanded protection for landowners. The legislature included an explicit statement of intent to the courts that it be “liberally construed in favor of property owners to protect them from liability.”12 The law also granted immunity to any activity that was substantially similar to what was then a nonexclusive list of 28 enumerated items.13

    James D. RogersJames D. Rogers, U.W. 2014, is the government affairs director for the Wisconsin Association for Justice.

    When the legislature enacted section 895.52 in 1984,14 the change closely followed two cases construing the previous statute, Wis. Stat. section 29.68,15 against granting immunity to allegedly negligent landowners.16 The previous law had received narrow construction, granting immunity only for landowners opening their land for activities typically reliant on “land in its natural undeveloped state.”17

    Courts Have Long Interpreted Wis. Stat. section 895.52 Expansively

    A statute is not made “plaintiff-friendly” simply because plaintiffs occasionally prevail.18 As we enter this statute’s fourth decade in operation, the case law demonstrates that Wisconsin courts have fulfilled the legislature’s mandate to construe the statute broadly in favor of immunity.19 Put another way, the disfavor of liability waivers is matched in the case law by consistent liberal application of the statute favoring immunity.20

    Moreover, this “powerful law” has been used to relieve landowners of common-law duties even in situations in which similar obligations are imposed by other statutes – and, as with school districts and municipalities, in which limitations on municipal liability already offer substantial protection.21 By definition, that leaves injured persons with no remedy despite a guarantee afforded by the Wisconsin Constitution.22

    The Weight of Statutory Complexity and Broad Application Falls on Injured Persons

    It is an understatement to indicate that the fact-driven analysis required by Wis. Stat. section 895.52 has been challenging to all parties.23 Justices of every persuasion have expressed frustration with the law at various times, sometimes prodding the legislature to revisit the statute’s more ambiguous provisions.24

    Despite these controversies, the court has never retreated from broad application in favor of immunity.

    While the court has adopted25 and refined26 an objective test for evaluating whether an activity is substantially similar to those enumerated in the statute, these changes hardly represent, nor have they produced, a sea change in outcomes in favor of plaintiffs.27 Meanwhile, justices have continued sounding the alarm in high-profile cases, noting that “proper”28 application produces “harsh”29 and “absurd”30 results.

    Justices of every persuasion have expressed frustration with the law at various times, sometimes prodding the legislature to revisit the statute’s more ambiguous provisions.

    The most glaring example of the statute imposing harsh outcomes on a plaintiff remains Ervin v. City of Kenosha.31 In Ervin, two swimmers drowned at a city-operated beach. The plaintiffs alleged negligence both on the part of the city and the individual lifeguards, who panicked in the face of the situation and made no attempt to rescue. The city hired the lifeguards without proper interviews or skills testing.32 Ervin is not atypical, and is not even the only lifeguard case.33 Ervin is one of several examples of cases in which statutory immunity was granted over spirited dissents, qualifying concurrences, or general consternation at the process.34

    In more recent years, decisions have involved less outrageous underlying conduct but, in the view of many who represent plaintiffs, still challenge what a reasonable person likely views as “recreational activity.” Examples include cases invoking immunity against a grandmother injured while attempting to get in position to watch her grandson dive at a county pool35 and an employee injured in the parking lot adjacent to a site rented for a company picnic.36 These outcomes are just two of the many decisions expanding the law in favor of immunity.

    The Era of Expanding Immunity Has Long Been Upon Us

    It is insufficient to view recreational immunity law only in the context of Wis. Stat. section 895.52. Defendant landowners are increasingly likely to be protected by more than one immunity statute.37 In recent years, Wis. Stat. chapter 89538 has been expanded to include additional provisions that may offer overlapping protection in concert with Wis. Stat. section 895.52.39 Perhaps most significantly, provisions now offer immunity to for-profit entities, including sectors with substantial revenue.40

    Does the Statute Tip the Balance Too Far?

    The recreational immunity statute is a purposeful effort to protect landowners from liability for their negligent acts. It is a statute that, by its own terms, must be construed to grant immunity whenever possible. More bluntly, it exists to extinguish otherwise viable claims – a devastating impact on many Wisconsin citizens. The very existence of the now interlocking web of statutory immunity provisions and attendant complex case law makes the system less friendly to injured persons.

    Lastly, even if it were true that Wisconsin courts used “plaintiff-friendly” standards to evaluate the recreational immunity law, the statute would still work against injured persons. An obstacle evaluated by “friendly” standards is still an obstacle. The recreational immunity statute exists, by design, to protect landowners by serving as a robust roadblock against injured persons seeking justice – and there is no evidence of that changing any time soon.


    1 Alexander T. Pendleton, Recreational Liability: Plaintiff-friendly Standards Remain, 90 Wis. Law. 9 (Oct. 2017).

    2 Id.                                                 

    3 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492.

    4 Id. ¶ 17. Beyond the waiver issue, Roberts turned on whether a hot-air-balloon vendor “occupied” the land, consistent with section 895.52(1)(d) (defining owner), in this case the property where it had been commissioned to provide entertainment for a charity event.

    5 Id. ¶¶ 66-82.

    6 Id. ¶¶ 68-70, 73.

    7 Id. ¶ 67.

    8 Id. ¶ 68.

    9 LePoidevin v. Wilson, 111 Wis. 2d 116, 129, 330 N.W.2d 555 (1983).

    10 See Coffey v. City of Milwaukee, 7 Wis. 2d 526, 537-38, 247 N.W.2d 132 (1976) (discussing Wisconsin’s adoption of the dissenting view in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928)); see also Osborne v. Montgomery, 203 Wis. 223, 236, 234 N.W. 372 (1931) (adopting the Palsgraf minority view).

    11 Id.

    12 1983 Wis. Act 418, § 1 (Legislative Intent) (quoted at length in Ervin v. City of Kenosha, 159 Wis. 2d 464, 475-76, 464 N.W.2d 654 (1991)).

    13 See Wis. Stat. § 895.52(1)(g) (expanding and adding detail to the original 28-item list).

    14 1983 Wis. Act 418 (eff. May 15, 1984) (repealing Wis. Stat. § 29.68 (1981-82) and abrogating all previous court opinions construing the statute narrowly against granting immunity).

    15 Known colloquially as the “Berry Picking Statute.” Kruschke v. City of New Richmond, 157 Wis. 2d 167, 170, 458 N.W.2d 832 (Ct. App. 1990).

    16 LePoidevin, 111 Wis. 2d at 128; Quesenberry v. Milwaukee Cty., 106 Wis. 2d 685, 317 N.W.2d 468 (1982).

    17 Laesch v. L&H Indus. Ltd., 161 Wis. 2d 887, 900, 469 N.W.2d 655 (Ct. App. 1991) (narrowly construing Wis. Stat. § 29.68 (1981-82) against providing immunity to a contractor working to deconstruct an abandoned railroad right-of-way).

    18 A line of cases holding activity in question to be outside the bounds of the statute begins with Shannon v. Shannon, 150 Wis. 2d 434, 442 N.W.2d 25 (1989). More recent opinions include Minnesota Fire & Casualty v. Paper Recycling of La Crosse, 2001 WI 125, 248 Wis. 2d 290, 627 N.W.2d 762.

    19 See Ervin, 159 Wis. 2dat 475-76 (construing the statute liberally to protect landowners); see also Mark L. Thomsen, Wisconsin’s Recreational Use Statute: Does the Present Statute Reflect a Fair Balance Between the Public’s Right to Use Land and the Rights of Injured Victims, The Verdict, Vol. 14:3, pp. 8-15 (Summer 1991) (collecting cases demonstrating the harsh results of strict application of the statute); see also John Becker, Recreational Immunity in Wisconsin (Nevin Publishing Co., 2007).

    20 See id.

    21 See, e.g., Auman v. School Dist. of Stanley-Boyd, 2001 WI 125,
    ¶¶ 24-26, 248 Wis. 2d 548, 635 N.W.2d 762 (Wilcox, J., concurring).

    22 Wis. Const. art. I, § 9.

    23 See, e.g., Bystery v. Village of Sauk City, 146 Wis. 2d 247, 430 N.W.2d 611 (Ct. App. 1988) (evaluating what constitutes property under Wis. Stat. section 895.52(1)(g)); Hudson v. Janesville Conservation Club, 168 Wis. 2d 438, 484 N.W.2d 138 (1992) (granting immunity after holding that deer held in captivity akin to domestic animal constituted “wild animal” under Wis. Stat. section 895.52(2)(b)).

    24 See, e.g., Urban v. Grasser, 2001 WI 63, ¶ 61, 243 Wis. 2d 673, 627 N.W.2d 511 (Abrahamson, C.J., dissenting) (expressing “frustration” with applying the law to complex facts appearing in every dispute); Minnesota Fire, 2001 WI 125, ¶ 72, 248 Wis. 2d 290 (Wilcox, J., dissenting) (noting the “proper application” of the statute can impose “harsh” results by denying remedy to the injured).

    25 See Linville v. Citv of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994) (adopting an objective, multifactor test originally set out in Silingo v. Village of Mukwonago, 156 Wis. 2d 536, 458 N.W.2d 379 (Ct. App. 1990)).

    26 See Rintelman v. Boys & Girls Club of Greater Milwaukee, 2005 WI App 246, 288 Wis. 2d 394, 707 N.W.2d 897 (discussing the refinement of the multifactor test adopted in Linville).

    27 See, e.g., Wilmet v. Liberty Mut. Ins. Co., 2017 WI App 16, 374 Wis. 2d 413, 893 N.W.2d 251; Carini v. ProHealth Care Inc., 2015 WI App 61, 364 Wis. 2d 658, 869 N.W.2d 515.

    28 Minnesota Fire, 2001 WI 125, ¶ 72, 248 Wis. 2d 290 (Wilcox, J., dissenting).

    29 Id.

    30 See, e.g., Ervin, 159 Wis. 2d at 485 (Bablitch J. dissenting).

    31 Ervin, 159 Wis. 2d 464.

    32 Id. at 472.

    33 See Thomsen, supra note 19 (collecting cases involving negligent lifeguards or beach injuries).

    34 See Hudson v. Janesville Conservation Club, 168 Wis. 2d 438, 484 N.W.2d 132 (1992) (granting immunity to landowner after holding that captive deer was wild animal under the statute).

    35 Wilmet, 2017 WI App 16, 374 Wis. 2d 413.

    36 Carini, 2015 WI App 61, 364 Wis. 2d 658.

    37 It is also worth noting that among the most frequent defendants in cases addressing the statute are school districts, whose exposure to damages is greatly reduced already by Wis. Stat. section 893.80.

    38 Immunity provisions are generally, though not exclusively, in subchapter II of Wis. Stat. chapter 895 (Exemptions From, And Limitations On, Liability).

    39 E.g., Wis. Stat. § 893.80 (municipal immunity, as in Ervin, 159 Wis. 2d 464). For a list of early cases featuring both municipal immunity and section 895.52, see Thomsen, supra note 19; but more recent immunity statutes include, for example, Wis. Stat. section 895.5265 (providing immunity for placing large wooden structures near, at times secured to the shore with steel cables, on the shoreline of inland lakes to promote fish habitat).

    40 See, e.g., Wis. Stat. § 895.526 (providing immunity to ski hills for alpine sports (including immunity for activities in all seasons)) and Wis. Stat. § 895.524 (participation in an agricultural tourism activity, whether or not for profit).

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