WEA Property & Casualty Insurance v. Krisik
841 N.W.2d 290
Wis. Ct. App.2013Background
- In January 2007, John Beam and his brother-in-law Ronald Krisik were cutting trees near Beam Road; Krisik was using a chainsaw when a ladder shift caused severe arm injuries.
- The injury occurred on property adjacent to land titled to a neighbor (or possibly the town); Beam did not hold legal title but had used and maintained the parcel for over 30 years.
- WEA Property & Casualty (Beam’s homeowner insurer) sued for a declaratory judgment that Beam and WEA Property were immune under Wisconsin’s recreational immunity statute, Wis. Stat. § 895.52.
- District court granted summary judgment for WEA Property; Krisik challenged (1) whether he was engaged in a “recreational activity” and (2) whether Beam was an “owner” because he lacked title or express permission.
- Krisik contested use of an affidavit from Beam (who later died) as hearsay and sought reconsideration; the court denied relief and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Krisik was engaged in a “recreational activity” when injured | Krisik: he was primarily performing non-cutting tasks that day and was cutting branches as a favor, not for recreation | WEA: cutting/removing wood is specifically enumerated as a recreational activity under § 895.52(1)(g) | Court: Cutting wood is enumerated; Krisik was engaged in a recreational activity |
| Whether Beam was an “owner” under § 895.52(1)(d)1 | Krisik: Beam lacked legal title and therefore wasn’t an owner or occupant; affidavit is hearsay and disputed | WEA: Beam occupied the property by actual, long-term use and maintenance, which qualifies as ownership under the statute | Court: Beam occupied the land (long-term use/maintenance) and therefore is an “owner” for immunity purposes |
| Whether occupant status requires express permission from title owner | Krisik: occupancy requires express permission; without it Beam was a trespasser | WEA: statute and precedents define occupant by actual use; no express permission requirement | Court: Rejected permission requirement; statutory purpose and caselaw support occupancy by sustained use |
| Admissibility of Beam’s affidavit after his death | Krisik: affidavit is hearsay; lack of cross-examination undermines reliance | WEA: affidavit supports occupancy; court relied on undisputed facts and statutory definitions | Court: Did not meaningfully develop hearsay holding on appeal; treated facts as undisputed and affirmed immunity |
Key Cases Cited
- Kruschke v. City of New Richmond, 157 Wis. 2d 167 (establishes de novo review for statutory legal questions)
- Mooney v. Royal Ins. Co. of America, 164 Wis. 2d 516 (activities enumerated in statute treated as recreational)
- Held v. Ackerville Snowmobile Club, Inc., 300 Wis. 2d 498 (recreational immunity requires recreational activity and owner status)
- Linville v. City of Janesville, 174 Wis. 2d 571 (objective test for non-enumerated recreational activities)
- Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345 (fishing as enumerated recreational activity)
- Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486 (definition of occupant as actual use without title)
- Bethke v. Lauderdale of La Crosse, Inc., 235 Wis. 2d 103 (occupation by actual use of common areas)
- Kautz v. Ozaukee County Agric. Soc’y, 276 Wis. 2d 833 (policy behind recreational immunity)
- Peterson v. Midwest Sec. Ins. Co., 248 Wis. 2d 567 (hunting as enumerated recreational activity)
- Kosky v. Int’l Ass’n of Lions Clubs, 210 Wis. 2d 463 (Linville test applied to activities substantially similar to enumerated ones)