Municipality is immune from liability for defective highway or public sidewalk only when it has turned them over, at least in part, to recreational activities and when damages result from such activity. Bystery v. Village of Sauk City, 146 W (2d) 247, 430 NW (2d) 611 (Ct. App. 1988).
"Recreational activity" does not apply to random wanderings of young child which are not similar to activities listed in (1) (g). Shannon v. Shannon, 150 W (2d) 434, 442 NW (2d) 25 (1989).
State's role as trustee of public waters is equivalent to ownership, giving rise to recreational immunity. Sauer v. Reliance Insurance Company, 152 W (2d) 234, 448 NW (2d) 256 (Ct. App. 1989).
Indirect pecuniary benefits constitute "payment" under (6) (a). Douglas v. Dewey, 154 W (2d) 451, 453 NW (2d) 500 (Ct. App. 1990).
"Injury" under (1) (b) includes death. Moua v. Northern States Power Co., 157 W (2d) 177, 458 NW (2d) 836 (Ct. App. 1990).
By providing lifeguard, landowner does not assume duty to provide lifeguard services in non-negligent manner. Ervin v. City of Kenosha, 159 W (2d) 464, 464 NW (2d) 654 (1991).
For purposes of (4)(b) conduct is "malicious" when it is the result of hatred, ill will, revenge, or undertaken when insult or injury is intended. Ervin v. City of Kenosha, 159 W (2d) 464, 464 NW (2d) 654 (1991).
Immunity is not limited to injuries caused by defects in property itself, but applies to all injuries sustained during use. Johnson v. City of Darlington, 160 W (2d) 418, 466 NW (2d) 233 (Ct. App. 1991).
Young child's inability to intend to engage in recreational activity does not render landowner immunity inapplicable where activity is recreational in nature. Nelson v. Schreiner, 161 W (2d) 798, 469 NW (2d) 214 (Ct. App. 1991).
Illegal gambling conducted by club occupying city park land placed club outside protection of immunity statute. Lee v. Elk Rod & Gun Club Inc., 164 W (2d) 103, 473 NW (2d) 581 (Ct. App. 1991).
Party is not immune as occupant where evidence unequivocally shows intentional and permanent abandonment of premises had occurred. Mooney v. Royal Ins. Co., 164 W (2d) 516, 476 NW (2d) 287 (Ct. App. 1991).
Walking to or from non-immune activity does not change landowner's status. Hupf v. City of Appleton, 165 W (2d) 215, 477 NW (2d) 69 (Ct. App. 1991).
Sub. (2) (b) does not require a person injured by a wild animal to be engaged in a recreational activity for immunity to attach to property owner; a captive buck deer is a wild animal. Hudson v. Janesville Conservation Club, 168 W (2d) 436, 484 NW (2d) 132 (1992).
Claimed ignorance of and blatant failure to follow applicable regulations cannot be construed as reasonable diligence in discovering an injury where following the rule would have resulted in earlier discovery. Stroh Die Casting v. Monsanto Co. 177 W (2d) 91, 502 NW (2d) 132 (Ct. App. 1993).
Municipal pier was type of property intended to be covered by recreational immunity statute. Crowbridge v. Village of Egg Harbor, 179 W (2d) 565, 508 NW (2d) 15 (Ct. App. 1993).
Church which paid a fee to reserve park space including a ball diamond for a picnic where a "pickup" softball was played was not a sponsor of an organized team sport activity under sub. (1) (g). Weina v. Atlantic Mut. Ins. Co. 179 W (2d) 774, 508 NW (2d) 67 (Ct. App. 1993).
Visiting a neighbor to say hello is not a recreational activity under this section. Sievert v. American Family Mut. Ins. Co. 190 W (2d) 413, 528 NW (2d) 413 (1995).
Whether a person intended to engage in recreational activity is not dispositive in determining whether recreational activity is engaged in. The nature and purpose of the activity must be given primary consideration. Linville v. City of Janesville, 184 W (2d) 705, 516 NW (2d) 427 (1994).
Recreational immunity does not extend to activities of the land owner acting independently of its functions as owner; immunity did not apply to city paramedics providing service to an accident victim at a city park. Linville v. City of Janesville, 184 W (2d) 705, 516 NW (2d) 427 (1994).
Limited liability for nonprofit organizations is not unconstitutional on equal protection grounds. Szarzynski v. YMCA, Camp Minikani, 184 W (2d) 875, 517 NW (2d) 135 (1994).
Land need not be open for recreational use for immunity to apply under this section. The focus is on the activity of the person who enters on and uses the land. Immunity applies without regard to the owner's permission. Verdoljak v. Mosinee Paper Corp. 200 W (2d) 624, 547 NW (2d) 602 (1996).
An activity essentially recreational in nature will not be divided into component parts, at one moment recreational and at another not, in applying this section. Verdoljak v. Mosinee Paper Corp. 200 W (2d) 624, 547 NW (2d) 602 (1996).
That a local firemen's picnic generated profits which were used for park maintenance and improvements and the purchase of fire equipment did not result in the event being a commercial, rather than recreational, activity under this section. Fischer v. Doylestown Fire Department, 199 W (2d) 83, 549 NW (2d) 575 (Ct. App. 1995).
Wisconsin's Recreational Use Statute: Towards Sharpening the Picture at the Edges. 1991 WLR 491.
Wisconsin's Recreational Use Statute. Pendleton. Wis. Law. May 1993.
Participation in recreational activities. 895.525(1)(1)
The legislature intends by this section to establish the responsibilities of participants in recreational activities in order to decrease uncertainty regarding the legal responsibility for deaths or injuries that result from participation in recreational activities and thereby to help assure the continued availability in this state of enterprises that offer recreational activities to the public.
In this section, "recreational activity" means any 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, bowling, billiards, picnicking, exploring caves, nature study, dancing, bicycling, horseback riding, horseshoe-pitching, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, curling, throwing darts, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, participation in water sports, weight and fitness training, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature and any other sport, game or educational activity.
(3) Appreciation of risk.
A participant in a recreational activity engaged in on premises owned or leased by a person who offers facilities to the general public for participation in recreational activities accepts the risks inherent in the recreational activity of which the ordinary prudent person is or should be aware. In a negligence action for recovery of damages for death, personal injury or property damage, conduct by a participant who accepts the risks under this subsection is contributory negligence, to which the comparative negligence provisions of s. 895.045
A participant in a recreational activity engaged in on premises owned or leased by a person who offers facilities to the general public for participation in recreational activities is responsible to do all of the following:
Heed all warnings regarding participation in the recreational activity.
Maintain control of his or her person and the equipment, devices or animals the person is using while participating in the recreational activity.
Refrain from acting in any manner that may cause or contribute to the death or injury to himself or herself or to other persons while participating in the recreational activity.
A violation of this subsection constitutes negligence. The comparative negligence provisions of s. 895.045
apply to negligence under this subsection.
(4m) Liability of contact sports participants. 895.525(4m)(a)(a)
A participant in a recreational activity that includes physical contact between persons in a sport involving amateur teams, including teams in recreational, municipal, high school and college leagues, may be liable for an injury inflicted on another participant during and as part of that sport in a tort action only if the participant who caused the injury acted recklessly or with intent to cause injury.
Unless the professional league establishes a clear policy with a different standard, a participant in an athletic activity that includes physical contact between persons in a sport involving professional teams in a professional league may be liable for an injury inflicted on another participant during and as part of that sport in a tort action only if the participant who caused the injury acted recklessly or with intent to cause injury.
(5) Effect on related provision.
Nothing in this section affects the limitation of property owners' liability under s. 895.52
History: 1987 a. 377
; 1995 a. 223
NOTE: 1987 Wis. Act 377
, which created this section, has a prefatory note explaining the act.
This section codifies common law. It does not impose a greater duty of care on individuals than exists at common law. Rockweit v. Senecal, 197 W (2d) 409, 541 NW (2d) 742 (1995).
Liability exemption; tests for intoxication. 895.53(1)(a)
"Conservation warden" means a person appointed as a conservation warden by the department of natural resources under s. 23.10 (1)
Any person withdrawing blood at the request of a traffic officer, law enforcement officer or conservation warden for the purpose of determining the presence or quantity of alcohol, controlled substances, controlled substance analogs or any combination of alcohol, controlled substances and controlled substance analogs is immune from any civil or criminal liability for the act, except for civil liability for negligence in the performance of the act.
Any employer of the person under sub. (2)
or any hospital where blood is withdrawn by that person has the same immunity from liability under sub. (2)
History: 1983 a. 535
; 1983 a. 538
; Stats. 1983 s. 895.53; 1985 a. 331
; 1995 a. 448
Liability exemption; notification of release.
A person is immune from any liability regarding any act or omission regarding the notification of any applicable office or person under s. 51.37 (10)
, 304.06 (1)
, 971.17 (4m)
. This section does not apply to wilful or wanton acts or omissions.
History: 1991 a. 269
; 1993 a. 479
Liability exemption; oil discharge control. 895.55(1)(a)
"Damages" means those damages specified in 33 USC 2702
(b) (2) and includes the cost of assessing those damages.
"Discharge" means, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying or dumping.
"Federal on-scene coordinator" means the federal official designated by the federal environmental protection agency or the U.S. coast guard to coordinate and direct responses under the national contingency plan.
"Oil" means petroleum, hydrocarbon, vegetable or mineral oil of any kind or in any form and includes oil mixed with wastes other than dredged spoil.
"Person" means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency or federal agency.
"Removal" means the containment and elimination of oil from water, shorelines and beaches or the taking of other actions, including disposal, as may be necessary to minimize or mitigate damages to public health and welfare, including to fish, shellfish, wildlife and public or private property, shorelines and beaches.
"Removal costs" means the costs of removal that are incurred after an oil discharge occurs or, if there is a substantial threat of an oil discharge, the costs to prevent, minimize or mitigate an oil discharge.
"State contingency plan" means the plan prepared and published under s. 144.76 (5)
The bracketed language indicates the correct cross-reference. Section 144.76 (5) was renumbered by 1995 Wis. Act 227
Notwithstanding any provision of ch. 29
, subchs. II
and IV of ch. 30
, subchs. II
of ch. 144
, ch. 147
or 166 [s. 299.11
, ch. 29
, subchs. II
and IV of ch. 30
, ch. 166
or subch. II of ch. 295
], or any other provision of this chapter, a person is immune from liability for damages resulting from the person's acts or omissions and for the removal costs resulting from the person's acts or omissions if all of the following conditions are met:
The bracketed language indicates the correct cross-reference. Chapters 144 and 147 were renumbered by 1995 Wis. Act 227
Those acts or omissions were taken while rendering assistance, advice or care related to the threat of an oil discharge into the navigable waters of this state or related to the removal of oil resulting from an oil discharge into the navigable waters of this state.
The assistance, advice or care was consistent with the national contingency plan or the state contingency plan or was otherwise directed by the federal on-scene coordinator or the secretary of natural resources.
The immunity under sub. (2)
does not extend to any person:
Who is required to act under s. 144.76 (3)
[292.11 (3)] because the person possessed or controlled the oil that was initially discharged into the navigable waters of this state or caused the initial discharge or initial threat of discharge of the oil into the navigable waters of this state.
The bracketed language indicates the correct cross-reference. Section 144.76 (3) was renumbered by 1995 Wis. Act 227
Whose act or omission involves gross negligence or reckless, wanton or intentional misconduct.
Who causes personal injury or wrongful death.
A person under sub. (3) (a)
is liable for any damages or removal costs that another person is immune from under sub. (2)
Nothing in this section affects the responsibility of a person under sub. (3) (a)
to fulfill that person's requirements under s. 144.76
The bracketed language indicates the correct cross-reference. Section 144.76 was renumbered by 1995 Wis. Act 227
History: 1995 a. 192
Damages; unauthorized release of animals. 895.57(2)
A person who intentionally releases an animal that is lawfully confined for scientific, farming, companionship or protection of persons or property, recreation, restocking, research, exhibition, commercial or educational purposes, acting without the consent of the owner or custodian of the animal, is liable to the owner or custodian of the animal for damages, which shall include the costs of restoring the animal to confinement.
(3) Subsection (2)
does not apply to any humane officer, local health officer, peace officer, employe of the department of natural resources while on any land licensed under s. 29.52
or designated as a wildlife refuge under s. 29.57 (1)
or employe of the department of agriculture, trade and consumer protection if the officer's or employe's acts are in good faith and in an apparently authorized and reasonable fulfillment of his or her duties.
Government employer retaliation prohibited. 895.65(1)(a)
"Disciplinary action" means any action taken with respect to an employe which has the effect, in whole or in part, of a penalty.
"Employe" means any person employed by any governmental unit except: