895.52(6)(c)
(c) The death or injury is caused by a malicious act of the private property owner or of an employee or agent of a private property owner.
895.52(6)(d)
(d) The death or injury occurs on property owned by a private property owner to a social guest who has been expressly and individually invited by the private property owner for the specific occasion during which the death or injury occurs, if the death or injury occurs on any of the following:
895.52(6)(e)
(e) The death or injury is sustained by an employee of a private property owner acting within the scope of his or her duties.
895.52(7)
(7) No duty or liability created. Except as expressly provided in this section, nothing in this section or
s. 101.11 nor the common law attractive nuisance doctrine creates any duty of care or ground of liability toward any person who uses another's property for a recreational activity.
895.52 Note
NOTE: 1983 Wis. Act 418, which created this section, contains a statement of "legislative intent" in section 1.
895.52 Annotation
A municipality is immune from liability for a defective highway or public sidewalk only when the municipality has turned the highway or sidewalk over, at least in part, to recreational activities and when damages result from recreational activity. Bystery v. Village of Sauk City,
146 Wis. 2d 247,
430 N.W.2d 611 (Ct. App. 1988).
895.52 Annotation
"Recreational activity" does not apply to random wanderings of a young child that are not similar to activities listed in sub. (1) (g). Shannon v. Shannon,
150 Wis. 2d 434,
442 N.W.2d 25 (1989).
895.52 Annotation
The state's role as trustee of public waters is equivalent to ownership, giving rise to recreational immunity. Sauer v. Reliance Insurance Company,
152 Wis. 2d 234,
448 N.W.2d 256 (Ct. App. 1989).
895.52 Annotation
Indirect pecuniary benefits constitute "payment" under sub. (6) (a). Douglas v. Dewey,
154 Wis. 2d 451,
453 N.W.2d 500 (Ct. App. 1990).
895.52 Annotation
By providing a lifeguard a landowner does not assume a duty to provide lifeguard services in a non-negligent manner. Ervin v. City of Kenosha,
159 Wis. 2d 464,
464 N.W.2d 654 (1991).
895.52 Annotation
For purposes of sub. (4) (b), conduct is "malicious" when it is the result of hatred, ill will, or revenge, or is undertaken when insult or injury is intended. Ervin v. City of Kenosha,
159 Wis. 2d 464,
464 N.W.2d 654 (1991).
895.52 Annotation
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 Wis. 2d 418,
466 N.W.2d 233 (Ct. App. 1991).
895.52 Annotation
A young child's inability to intend to engage in recreational activity does not render landowner immunity inapplicable when the activity is recreational in nature. Nelson v. Schreiner,
161 Wis. 2d 798,
469 N.W.2d 214 (Ct. App. 1991).
895.52 Annotation
Illegal gambling conducted by a club occupying city park land placed the club outside the protection of the immunity statute. Lee v. Elk Rod & Gun Club Inc.
164 Wis. 2d 103,
473 N.W.2d 581 (Ct. App. 1991).
895.52 Annotation
A party is not immune as an occupant when evidence unequivocally shows intentional and permanent abandonment of the premises had occurred. Mooney v. Royal Ins. Co.
164 Wis. 2d 516,
476 N.W.2d 287 (Ct. App. 1991).
895.52 Annotation
Walking to or from a non-immune activity does not change a landowner's status. Hupf v. City of Appleton,
165 Wis. 2d 215,
477 N.W.2d 69 (Ct. App. 1991).
895.52 Annotation
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 the property owner. A captive deer is a wild animal. Hudson v. Janesville Conservation Club,
168 Wis. 2d 436,
484 N.W.2d 132 (1992).
895.52 Annotation
A municipal pier was the type of property intended to be covered by the recreational immunity statute. Crowbridge v. Village of Egg Harbor,
179 Wis. 2d 565,
508 N.W.2d 15 (Ct. App. 1993).
895.52 Annotation
A church that 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 Mutual Ins. Co.
179 Wis. 2d 774,
508 N.W.2d 67 (Ct. App. 1993).
895.52 Annotation
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 Wis. 2d 705,
516 N.W.2d 427 (1994).
895.52 Annotation
Recreational immunity does not extend to activities of the landowner 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 Wis. 2d 705,
516 N.W.2d 427 (1994).
895.52 Annotation
Limited liability for nonprofit organizations is not unconstitutional on equal protection grounds. Szarzynski v. YMCA, Camp Minikani,
184 Wis. 2d 875,
517 N.W.2d 135 (1994).
895.52 Annotation
Visiting a neighbor to say hello is not a recreational activity under this section. Sievert v. American Family Mut. Ins. Co.
190 Wis. 2d 413,
528 N.W.2d 413 (1995).
895.52 Annotation
That a local firefighter's picnic generated profits that 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 Wis. 2d 83,
549 N.W.2d 575 (Ct. App. 1995),
95-0796.
895.52 Annotation
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 Wis. 2d 624,
547 N.W.2d 602 (1996),
94-2549.
895.52 Annotation
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 Wis. 2d 624,
547 N.W.2d 602 (1996),
94-2549.
895.52 Annotation
Recreational immunity does not attach to a landowner when an act of the landowner's officer, employee, or agent that is unrelated to the maintenance or condition of the land causes injury to a recreational land user. Kosky v. International Association of Lions Clubs,
210 Wis. 2d 463,
565 N.W.2d 260 (Ct. App. 1997),
96-2532.
895.52 Annotation
A portable ice shanty located on a frozen lake does not qualify as recreational "property," and its presence on the lake is insufficient to establish its owner as an "occupant" of the lake entitled to recreational immunity. Doane v. Helenville Mutual Insurance Co.
216 Wis. 2d 345,
575 N.W.2d 734 (Ct. App. 1998),
97-1420.
895.52 Annotation
Walking for exercise through a park on the way to do errands was a recreational activity. Lasky v. City of Stevens Point,
220 Wis. 2d 1,
582 N.W.2d 64 (Ct. App. 1998),
97-2728.
895.52 Annotation
To find immunity under this section, the court must examine not only the plaintiff's reason for being on the property, but also the activity taking place on the property. While a spectator's presence at a school football game is recreational, the exception from landowner immunity for injuries incurred in recreational activities for sponsors of organized sports extends to spectators, not just participants. Meyer v. School District of Colby,
226 Wis. 2d 704,
595 N.W.2d 339 (1999),
98-0482.
895.52 Annotation
An attendee at a fair who was injured while attempting to capture a runaway steer was engaged in recreational activity. There is no "Good Samaritan" exception to the recreational immunity provided by this section. Schultz v. Grinnell Mutual Reinsurance, Co.
229 Wis. 2d 513,
600 N.W.2d 243 (Ct. App. 1999),
98-3466.
895.52 Annotation
Immunity for nonprofit organizations is not limited to those that act in the public interest and gratuitously open their land to the general public. It is not a violation of equal protection to treat "non-charitable" nonprofit organizations differently than private property owners. Bethke v. Lauderdale of LaCrosse, Inc. 2000 WI App 107,
235 Wis. 2d 103,
612 N.W.2d 332,
99-1897.
895.52 Annotation
Although individual condominium unit owners held title to an undivided interest in common areas, a condominium association was an occupant and therefore an owner under sub. (1) (d). Bethke v. Lauderdale of LaCrosse, Inc. 2000 WI App 107,
235 Wis. 2d 103,
612 N.W.2d 332,
99-1897.
895.52 Annotation
The owner of property subject to an easement is an "owner" under sub. (1) (d). The plaintiff's walking across the easement to gain access to a boat was recreational as the walk was inextricably connected to recreational activity. The plaintiff user of the easement, who was granted the right to use it by a 3rd-person holder of the easement, was not a social guest of the land owner under sub. (6) (d) expressly and individually invited to use the property. The fact that the easement owner granted the right of use as part of the sale of the boat did not render the landowner exempt from immunity under sub. (6) (a). Urban v. Grasser, 2001 WI 63,
243 Wis. 2d 673,
627 N.W.2d 511,
99-0933.
895.52 Annotation
An "owner" under sub. (1) (d) 1. includes an "occupant." A child who is an occupant is capable of extending an invitation that triggers the social guest exception. under sub. (6) (d). A guest's continuous act that begins on an owner's property but propels the guest a few feet from the property where an injury occurs compelled the conclusion that sub. (6) (d) must be construed to allow for the extension of the social guest status to the injuries suffered. Waters v. Pertzborn, 2001 WI 62,
243 Wis. 2d 703,
627 N.W.2d 497,
99-1702.
895.52 Annotation
This section is liberally construed in favor of property owners when the activity in question is not specifically listed but is substantially similar to listed activities or when the activity is undertaken in circumstances substantially similar to the circumstances of a recreational activity. Minnesota Fire & Casualty Insurance Co. v. Paper Recycling of LaCrosse, 2001 WI 64,
244 Wis. 2d 290,
627 N.W.2d 527,
99-0327.
895.52 Annotation
Because a child's subjective assessment of recreational activity could include every form of child's play, an objective, reasonable adult standard must be applied to determine whether a child's play is recreational. Crawling through stacks of baled paper at an industrial site while lighting matches and starting fires was not recreational activity. Minnesota Fire & Casualty Insurance Co. v. Paper Recycling of LaCrosse, 2001 WI 64,
244 Wis. 2d 290,
627 N.W.2d 527,
99-0327.
895.52 Annotation
The nature of property can be a significant factor in determining whether an activity is recreational, although it is not dispositive. That a commercial site is used only for a business purpose that is not open to the public, as indicated by a fence to keep people away, argues against childrens' mischievous conduct on the premises being substantially similar to a recreational activity. Minnesota Fire & Casualty Insurance Co. v. Paper Recycling of LaCrosse, 2001 WI 64,
244 Wis. 2d 290,
627 N.W.2d 527,
99-0327.
895.52 Annotation
A deer stand is a "structure" under sub. (1) (f). A structure or improvement need not be owned by the owner of the underlying land to constitute "property" under sub. (1) (f). Peterson v. Midwest Security Insurance Co. 2001 WI 131,
248 Wis. 2d 567,
636 N.W.2d 727,
99-2987.
895.52 Annotation
A suit by an elementary school student injured while playing during a mandatory school recess was not barred by this section because the student did not enter the school property to engage in a recreational activity, but for education purposes in order to comply with the state's compulsory attendance and truancy laws. Auman v. School District of Stanley-Boyd, 2001 WI 125,
248 Wis. 2d 548,
635 N.W.2d 762,
00-2356.
895.52 Annotation
Sponsorship under sub. (1) (g) contemplates a relationship between the person or organization paying for or planning the project or activity and the intended beneficiary and envisions a relationship between the sponsor and the activity resulting in financial benefits to the sponsor. That a city sponsored one soccer association did not mean it was a sponsor of all organized soccer team activities on city fields. Miller v. Wausau Underwriters Insurance Co. 2003 WI App 58,
260 Wis. 2d 581,
659 N.W.2d 494,
02-1632.
895.52 Annotation
As long as one of the purposes for engaging in the activity is recreation the statute attaches and bars a claim. Kautz v. Ozaukee County Agricultural Society, 2004 WI App 202,
276 Wis. 2d 833,
689 N.W.2d 771,
03-3281.
895.52 Annotation
That plaintiff's claim was she was injured when she became infected with E Coli as a result of climbing on farm equipment and not as a result of an activity on land or improvements to land was irrelevant. Whether or not the equipment was property within the meaning of this section, the injuring mechanism was not the farm equipment, but rather the bacteria from animal waste tracked onto the equipment from the defendant's real property and was directly related to the condition or maintenance of the defendant's real property. Kautz v. Ozaukee County Agricultural Society, 2004 WI App 202,
276 Wis. 2d 833,
689 N.W.2d 771,
03-3281.
895.52 Annotation
An owner under sub. (1) (d) 1. includes a person who has the actual use of the property without legal title, dominion, or tenancy and encompasses a resident of land who is more transient than either a lessee or an owner. An owner under sub. (1) (d) 2. is a governmental body or nonprofit organization that has a written authorization granted by an owner permitting public access to the owner's property for any recreational activity. It would be unreasonable to allow a snowmobile association immunity if it were granted an easement directly, but disallowing it if the easement went first to a government entity, which then arranged with the association to manage, maintain, and construct the trails necessary for recreational access. Leu v. Price County Snowmobile Trails Association, Inc. 2005 WI App 81,
280 Wis. 2d 765,
695 N.W.2d 889,
04-1859.
895.52 Annotation
Walking may or may not be a recreational activity under the statute, depending on the circumstances. Mere presence on property suitable for recreational activity when a plaintiff is injured does not, ipso facto, make this section applicable. Although the injured person's subjective assessment of the activity is pertinent, it is not controlling. A court must consider the nature of the property, the nature of the owner's activity, and the reason the injured person is on the property. A court should consider the totality of circumstances surrounding the activity, including the intrinsic nature, purpose, and consequences of the activity. Rintelman v. Boys & Girls Clubs of Greater Milwaukee, Inc. 2005 WI App 246,
288 Wis. 2d 394,
707 N.W.2d 897,
04-2669.
895.52 Annotation
The legislature did not enact this section to stop landowners from engaging in negligent behavior, but to induce property owners to open their land for recreational use. Recreational users are to bear the risk of the recreational activity. Held v. Ackerville Snow Club, 2007 WI App 43,
300 Wis. 2d 498,
730 N.W.2d 428,
06-0914.
895.52 Annotation
This section does not distinguish between active and passive negligence. Claims for passive negligence, such as a snowmobile club's alleged failure to retrieve grooming equipment from a trail, were no more viable than claims for active negligence, such as an alleged decision to leave the disabled equipment partially on the trail in a blind curve. All of the acts alleged were related to the condition or maintenance of the snowmobile trail. Held v. Ackerville Snow Club, 2007 WI App 43,
300 Wis. 2d 498,
730 N.W.2d 428,
06-0914.
895.52 Annotation
Wisconsin's Recreational Use Statute: Towards Sharpening the Picture at the Edges. 1991 WLR 491.
895.52 Annotation
Minnesota Fire & Casualty Insurance Co. v. Paper Recycling of LaCrosse: Why Property Owners Should Fear the Mischief of Boys at Play and Wisconsin Supreme Court Justices at Work. Salva. 2002 WLR 999.
895.52 Annotation
Wisconsin's Recreational Use Statute. Pendleton. Wis. Law. May 1993.
895.525
895.525
Participation in recreational activities; restrictions on civil liability, assumption of risk. 895.525(1)
(1)
Legislative purpose. 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.
895.525(2)
(2) Definition. 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 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, sport shooting and any other sport, game or educational activity.
895.525(3)
(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 shall apply.
895.525(4)(a)(a) 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:
895.525(4)(a)2.
2. Heed all warnings regarding participation in the recreational activity.
895.525(4)(a)3.
3. Maintain control of his or her person and the equipment, devices or animals the person is using while participating in the recreational activity.
895.525(4)(a)4.
4. 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.
895.525(4)(b)
(b) A violation of this subsection constitutes negligence. The comparative negligence provisions of
s. 895.045 apply to negligence under this subsection.
895.525(4m)
(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.
895.525(4m)(b)
(b) 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.
895.525(5)
(5) Effect on related provision. Nothing in this section affects the limitation of property owners' liability under
s. 895.52.
895.525 Note
NOTE: 1987 Wis. Act 377, which created this section, has a prefatory note explaining the act.
895.525 Annotation
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 Wis. 2d 409,
541 N.W.2d 742 (1995),
93-1130.
895.525 Annotation
Sub. (3) does not mean that all who ski are negligent under all circumstances. Sub. (3) and (4) when read together impose an obligation of ordinary care on a skier to avoid foreseeable harms, including adherence to the conditions enumerated in sub. (4). Ansani v. Cascade Mountain, Inc.
223 Wis. 2d 39,
588 N.W.2d 321 (Ct. App. 1998),
97-3514.
895.527
895.527
Sport shooting range activities; limitations on liability and restrictions on operation. 895.527(1)
(1) In this section, "sport shooting range" means an area designed and operated for the use and discharge of firearms.
895.527(2)
(2) A person who owns or operates a sport shooting range is immune from civil liability related to noise resulting from the operation of the sport shooting range.
895.527(3)
(3) A person who owns or operates a sport shooting range is not subject to an action for nuisance or to zoning conditions related to noise and no court may enjoin or restrain the operation or use of a sport shooting range on the basis of noise.
895.527(4)
(4) Any sport shooting range that exists on June 18, 1998, may continue to operate as a sport shooting range at that location notwithstanding any zoning ordinance enacted under
s. 59.69,
60.61,
60.62,
61.35 or
62.23 (7), if the sport shooting range is a lawful use or a legal nonconforming use under any zoning ordinance enacted under
s. 59.69,
60.61,
60.62,
61.35 or
62.23 (7) that is in effect on June 18, 1998.
895.527(5)
(5) Any sport shooting range that exists on June 18, 1998, may continue to operate as a sport shooting range at that location notwithstanding all of the following:
895.527(6)
(6) A city, village town or county may regulate the hours between 11:00 p.m. and 6:00 a.m. that an outdoor sport shooting range may operate, except that such a regulation may not apply to a law enforcement officer as defined in
s. 165.85 (2) (c), a member of the U.S. armed forces or a private security person as defined in
s. 440.26 (1m) (h) who meets all of the requirements under
s. 167.31 (4) (a) 4.
895.527(7)
(7) A person who is shooting in the customary or a generally acceptable manner at a sport shooting range between the hours of 6:00 a.m. and 11:00 p.m. is presumed to not be engaging in disorderly conduct merely because of the noise caused by the shooting.
895.527 Annotation
This section does not prohibit the application of a zoning ordinance to a sport shooting range unless the range was a lawful use under the ordinance as of June 18, 1998. Town of Avon v. Edgar Oliver, 2002 WI App 97,
253 Wis. 2d 647,
644 N.W.2d 260,
01-1851.
895.527 Annotation
Cheerleading is not a contact sport within the meaning of sub. (4m). The use of the term "contact sports" in the title to sub. (4m) is significant. "Contact sport" is normally used to describe sports in which opposing players make aggressive and sometimes injury-causing contact, such as football and hockey. Noffke v. Bakke, 2008 WI App 38,
308 Wis. 2d 410,
748 N.W.2d 195,
06-1886.
895.53
895.53
Civil and criminal liability exemption; tests for intoxication.
