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 "Injury" under sub. (1) (b) includes death. Moua v. Northern States Power Co. 157 Wis. 2d 177, 458 N.W.2d 836 (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 where 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 where 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 Claimed ignorance of, and a 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 Wis. 2d 91, 502 N.W.2d 132 (Ct. App. 1993).
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 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 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 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).
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).
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).
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 464, 565 N.W.2d 260 (Ct. App. 1997).
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 344, 575 N.W.2d 734 (Ct. App. 1998).
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).
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).
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).
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.
895.52 Annotation Although individual condominium unit owners held title to an undivided interest in common owners, 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.
895.52 Annotation Wisconsin's Recreational Use Statute: Towards Sharpening the Picture at the Edges. 1991 WLR 491.
895.52 Annotation Wisconsin's Recreational Use Statute. Pendleton. Wis. Law. May 1993.
895.525 895.525 Participation in recreational activities.
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) (4)Responsibilities of participants.
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)1. 1. Act within the limits of his or her ability.
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 History History: 1987 a. 377; 1995 a. 223, 447; 1997 a. 242.
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).
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).
895.527 895.527 Sport shooting range activities.
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(5)(a) (a) Section 167.30, 941.20 (1) (d) or 948.605 or any rule promulgated under those sections regulating or prohibiting the discharge of firearms.
895.527(5)(b) (b) Section 66.092 (3) (b) [s. 66.0409 (3) (b)] or any ordinance or resolution.
895.527 Note NOTE: The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
895.527(5)(c) (c) Any zoning ordinance that is enacted, or resolution that is adopted, under s. 59.69, 60.61, 60.62, 61,35 or 62.23 (7) that is related to noise.
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 History History: 1997 a. 242.
895.53 895.53 Liability exemption; tests for intoxication.
895.53(1)(1) In this section:
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(1)(b) (b) "Traffic officer" has the meaning specified in s. 340.01 (70).
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.
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 wilful 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)(1) In this section:
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)(d) (d) "National contingency plan" means the plan prepared and published under 33 USC 1321 (d).
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(1)(i) (i) "State contingency plan" means the plan prepared and published under s. 292.11 (5).
895.55(2) (2) Notwithstanding any provision of s. 299.11, 299.13, 299.31, 299.41, 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).
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