Wisconsin Property Owners Liability for Recreational Activity Injuries
Stat. 895.52(2), renders a property owner immune from liability for injury suffered or caused by any person "engaging in recreational activity" on the owner's property.
The term "recreational activity" is defined in 895.52(1)(g) as follows:
Wisconsin Stat. 895.52, Recreational activities; limitation of property, provides in part:
(2) NO DUTY; IMMUNITY FROM LIABILITY.
(a) Except as provided in subs. (3) to (6), no owner and no officer, employe(e) or agent of an owner owes to any person who enters the owner's property to engage in a recreational activity:
A duty to keep the property safe for recreational activities.
A duty to inspect the property, except as provided under s. 23.115 (2).
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(e) or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner's property or for any death or injury resulting from an attack by a wild animal.
"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 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, sport shooting and any other outdoor sport, game or educational activity.
"Recreational activity" does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.
In Sievert v. American Family Mut. Ins. Co., 190 Wis. 2d 623, 528 N.W.2d 413 (1995), the supreme court characterized Wis. Stat. 895.52(1)(g) as containing:
(1) a broad definition stating that a recreational activity is "any outdoor activity" undertaken for the purpose of exercise, relaxation or pleasure";
(2) a list of 28 specific activities denominated as recreational; and (3) a second broad definition, directing that a recreational activity can be "any other outdoor sport, game or educational activity."
Id. at 629. TheSievert court, referring to the declaration of legislative purpose accompanying the statute, pointed out that the "list" contained in 895.52(1)(g) was intended only to provide examples of recreational activity, and that the statute should apply not only to the listed activities, but also to activities "substantially similar" to them. Id. at 630.
And the court pointed to the test set forth in Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), as the appropriate means of determining "whether an activity is substantially similar to the activities listed in the statute or whether an activity is undertaken in circumstances substantially similar to the circumstances of a recreational activity." Sievert at 631.
The Linville test considers both the purpose and nature of the activity and the user's intent; and it requires examining "all aspects" of the particular 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.
Thus, whether the injured person intended to recreate is not dispositive, but why he was on the property is pertinent. Id. at 716.
According to Linville, such a test-which pays primary consideration to the nature of the activity, rather than the property-user's subjective intent-achieves two goals: first, it "comports with the focus of the statute, which is the user's activity rather than the user's state of mind," and second, it "furthers the goal of the recreational immunity statute by encouraging landowners to open their land by according them a degree of certainty regarding their potential liability for injuries occurring on their land." Id.