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
Sub. (1) (c) does not define nonprofit by referencing the chapter under which corporations were incorporated, either ch. 180 or 181, so that factor is not dispositive of the question. It would be an absurd result to read this section as making a for-profit organization out of an organization that throughout its existence has been governed by articles of incorporation that define it as a nonprofit, has been documented by state agencies as a nonprofit, and has been in compliance with IRS regulations as a nonprofit. De La Trinidad v. Capitol Indemnity Corporation, 2009 WI 8,
315 Wis. 2d 324,
759 N.W.2d 586,
07-0045.
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 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.
895.525 Annotation
Cheerleaders are immune from negligence actions because they participate in a recreational activity that includes physical contact between persons in a sport involving amateur teams. Cheerleading is a sport because a sport is an activity involving physical exertion and skill that is governed by a set of rules or customs. Cheerleaders are on amateur teams because a team is a group organized to work together and cheerleaders are a group dedicated to leading fan participation and taking part in competitions. Cheerleading involves a significant amount of contact among the participants that at times can produce a forceful interaction between the cheerleaders when one person is tossed high into the air and then caught by those same tossers. Noffke v. Bakke, 2009 WI 10,
315 Wis. 2d 350,
760 N.W.2d 156,
06-1886.
895.525 Annotation
Go Team! Wisconsin's Latest Recreational Immunity controversy. Condon. Wis. Law. June 2009.
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, 2010, 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, 2010. The operation of the sport shooting range continues to be a lawful use or legal nonconforming use notwithstanding any expansion of, or enhancement or improvement to, the sport shooting range.
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.
895.53
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,
281,
283,
289,
291,
292, or
323 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.
