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. 895.53(1)(a)
(a) "Conservation warden" means a person appointed as a conservation warden by the department of natural resources under
s. 23.10 (1).
895.53(2)
(2) 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.
895.53(3)
(3) 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).
895.53 History
History: 1983 a. 535;
1983 a. 538 s.
256; Stats. 1983 s. 895.53;
1985 a. 331;
1995 a. 448;
2005 a. 155.
895.54
895.54
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) or
(6m) or
980.11. This section does not apply to willful or wanton acts or omissions.
895.54 History
History: 1991 a. 269;
1993 a. 479.
895.55
895.55
Liability exemption; oil discharge control. 895.55(1)(a)
(a) "Damages" means those damages specified in
33 USC 2702 (b) (2) and includes the cost of assessing those damages.
895.55(1)(b)
(b) "Discharge" means, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying or dumping.
895.55(1)(c)
(c) "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.
895.55(1)(e)
(e) "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.
895.55(1)(f)
(f) "Person" means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency or federal agency.
895.55(1)(g)
(g) "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.
895.55(1)(h)
(h) "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.
895.55(2)
(2) Notwithstanding any provision of
s. 93.57,
299.11,
299.13,
299.31,
299.43,
299.45,
299.51,
299.53 or
299.55,
subchs. II and
IV of ch. 30,
ch. 29,
166,
281,
283,
289,
291 or
292 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:
895.55(2)(a)
(a) 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.
895.55(2)(b)
(b) 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.
895.55(3)
(3) The immunity under
sub. (2) does not extend to any person:
895.55(3)(a)
(a) Who is required to act under
s. 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.
895.55(3)(b)
(b) Whose act or omission involves gross negligence or reckless, wanton or intentional misconduct.
895.55(3)(c)
(c) Who causes personal injury or wrongful death.
895.55(4)
(4) A person under
sub. (3) (a) is liable for any damages or removal costs that another person is immune from under
sub. (2).
895.55(5)
(5) Nothing in this section affects the responsibility of a person under
sub. (3) (a) to fulfill that person's requirements under
s. 292.11.
895.555
895.555
Civil liability exemption; anhydrous ammonia. 895.555(1)(1)
Liability exemption. Except as provided under
sub. (2), any person who owns, maintains, or installs anhydrous ammonia equipment, as defined in
s. 101.10 (1) (b), or who uses anhydrous ammonia for any legal purpose is immune from any civil liability for acts or omissions relating to the anhydrous ammonia equipment or to anhydrous ammonia that cause damage or injury to an individual, if that damage or injury occurs during the individual's violation of
s. 101.10 (3) (c),
(d),
(e), or
(f).
895.555(2)
(2) Exception. A person is not immune from civil liability under
sub. (1) if the damage or injury is caused by the person's reckless or wanton acts or omissions or by acts or omissions intended by the person to cause damage or injury.
895.555 History
History: 2001 a. 3;
2005 a. 14,
155.
895.56
895.56
Liability exemption; handling of petroleum-contaminated soil under contract with the department of transportation. 895.56(1)(a)
(a) "Person" means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency, as defined in
s. 1.12 (1) (b), or federal agency.
895.56(1)(b)
(b) "Petroleum-contaminated soil" means soil contaminated with material derived from petroleum, natural gas or asphalt deposits, including gasoline, diesel and heating fuels, liquified petroleum gases, lubricants, waxes, greases and petrochemicals.
895.56(2)
(2) A person is immune from liability arising under
s. 292.11 and from any liability for the removal or remedying of petroleum-contaminated soil or for damages resulting from the person's actions or omissions relating to petroleum-contaminated soil if all of the following apply:
895.56(2)(a)
(a) The acts or omissions by the person occurred while performing a contract entered into under
s. 84.06 (2), including acts or omissions by any person who has a direct contractual relationship with the prime contractor, as defined in
s. 779.01 (2) (d), under a contract entered into under
s. 84.06 (2) to perform labor or furnish materials.
895.56(2)(b)
(b) In the course of performing a contract described in
par. (a), petroleum-contaminated soil was encountered on the property on which the contracted activity is taking place, and the petroleum-contaminated soil cannot be avoided in performing the contract.
895.56(2)(c)
(c) The acts or omissions involving petroleum-contaminated soil on the property were required by reasonably precise specifications in the contract entered into under
s. 84.06 (2), and the acts or omissions conformed to those specifications, or were otherwise directed by the department of transportation or by the department of natural resources.
895.56(3)
(3) Subsection (2) does not apply to any person to whom any of the following applies:
895.56(3)(a)
(a) The person brought petroleum-contaminated soil onto the property or otherwise caused the initial contamination of the property with a hazardous substance, as defined in
s. 292.01 (5).
895.56(3)(b)
(b) The person's act or omission constitutes gross negligence or involves reckless, wanton or intentional misconduct.
895.56(3)(c)
(c) The person fails to warn the department of transportation or the department of natural resources about the presence of petroleum-contaminated soil encountered at the site, if the petroleum-contaminated soil was reasonably known to the person but not to the department of transportation or to the department of natural resources.
895.56(3)(d)
(d) The person is under a previous or separate contract with a state agency, as defined in
s. 1.12 (1) (b), solely to remove or remedy petroleum-contaminated soil or hazardous substances on the property.
895.56(3)(e)
(e) The person causes personal injury or wrongful death.
