MINNESOTA FIRE & CASUALTY INSURANCE COMPANY, a Minnesota corporation, Plaintiff-Respondent, v. PAPER RECYCLING OF LA CROSSE, a Wisconsin corporation and General Casualty Company, a Wisconsin corporation, Defendants-Appellants-Petitioners. Joyce A. DEVENPORT, Individually and as Personal Representative of the Estate of Daniel Raymond Devenport, Deceased, Plaintiff-Appellant, v. PAPER RECYCLING COMPANY, and Regent Insurance Company, Defendants-Respondents-Petitioners.
Nos. 99-0327, 99-0858
Supreme Court of Wisconsin
June 14, 2001
2001 WI 64; 627 N.W.2d 527
Oral argument December 4, 2000.
For plaintiff-appellant, Joyce A. Devenport, there was a brief by Dean R. Rohde and Bye, Goff & Rohde, Ltd., River Falls, and oral argument by Dean R. Rohde.
For plaintiff-respondent, Minnesota Fire & Casualty Insurance Company, there was a brief by Tony R. Krall, John F. Cook and Hanson, Lulic & Krall, Minneapolis, Minnesota, and oral argument by John F. Cook.
¶ 1. N. PATRICK CROOKS, J. The petitioner, Paper Recycling of La Crosse, Inc. (Paper Recycling), seeks review of an unpublished court of appeals decision. Two La Crosse County Circuit Court cases were consolidated for appeal purposes because the cases resulted from the same fact situation and presented the same issue. In the first case, the circuit court, Judge Dennis G. Montabon presiding, held that Paper Recycling was not entitled to recreational immunity under
¶ 2. In the second case, the circuit court, Judge Michael J. Mulroy presiding, held that Paper Recycling was entitled to recreational immunity because Devenport and his friends were engaged in a recreational activity. The circuit court, therefore, granted Paper Recycling‘s motion for summary judgment. The court of appeals affirmed Judge Montabon‘s decision
¶ 3. We hold that the boys, who were crawling through stacks of baled paper, lighting matches and starting fires, were not engaged in a recreational activity as defined by
I
¶ 4. On May 28, 1997, eleven-year-old Daniel Devenport (Devenport) was killed in a fire on commercial property leased to Paper Recycling. Paper Recycling, while operating a recycling facility on this property, stored stacks of baled paper in the outdoor yard of the property. The property, which was protected by a fence, was not open to the public. Devenport and two of his friends, who were also eleven-year-olds, entered Paper Recycling‘s property through an opening in the fence. Once inside the outdoor yard of Paper Recycling‘s property, Devenport and his friends began crawling around through spaces inside the stacks of baled paper that they imagined were tunnels. Within the interior of the stacks were large spaces that the boys imagined were rooms or forts to play in. One of the boys brought a box of matches that all three boys used to start fires inside the stacks. While inside one of the interior spaces, the boys noticed a fire in the space they had used to enter the stacks. Devenport‘s friends escaped the fire through a small opening in the stacks. Devenport was unable to escape and was killed in the fire.
¶ 5. Two lawsuits followed the fire and Devenport‘s death. In case number 99-0327, Minnesota Fire and Casualty Insurance Company sued Paper Recycling in a subrogation action to recover damages it paid to its insured, Royal Properties, who leased the property to Paper Recycling. Paper Recycling moved for summary judgment claiming recreational immunity under
¶ 6. In case number 99-0858, Devenport‘s mother, Joyce Devenport, sued Paper Recycling in a wrongful death action. Paper Recycling moved for summary judgment, again claiming recreational immunity because Devenport and his friends were engaged in a recreational activity. The circuit court granted Paper Recycling‘s motion, holding that the boys were engaged in a recreational activity as defined by
¶ 7. The Wisconsin Court of Appeals, District IV, consolidated the two cases for appeal. The court of appeals affirmed the circuit court in case number 99-0327 and reversed the circuit court in case number
II
¶ 8. The consolidated case requires us to determine whether Paper Recycling is entitled to summary judgment. We review a circuit court‘s decision to grant or deny a motion for summary judgment “by applying the standards set forth in sec. 802.08(2), Stats., in the same manner as the circuit court.” Shannon v. Shannon, 150 Wis. 2d 434, 441, 442 N.W.2d 25 (1989). A court shall grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
¶ 9. The issue presented by the instant case is whether Paper Recycling is entitled to recreational immunity in both lawsuits under
¶ 10. To determine whether Paper Recycling is entitled to recreational immunity in the two lawsuits, we must first determine whether the boys involved were engaged in a recreational activity. Sievert, 190 Wis. 2d at 628. The recreational immunity statute provides the following definition of recreational activity:
“Recreational activity” means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. “Recreational activity” includes, but is not limited to, hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports,
sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, and any other outdoor sport, game or educational activity, but does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.
(1) a broad definition stating that a recreational activity is “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure,” (2) a list of 28 specific activities denominated as recreational, and (3) a second broad definition, directing that a recreational activity can be “any other outdoor sport, game or educational activity.”
190 Wis. 2d at 629. The first part‘s broad definition, providing that a recreational activity is “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure,” could be interpreted to include almost any outdoor activity. Id. Because every outdoor activity is not a recreational activity, we must construe the first part‘s broad definition in light of the second part‘s list of 28 specific recreational activities, and the third part‘s broad definition providing that a recreational activity is “any other outdoor sport, game or educational activity.” Id. We must therefore determine if the activity that Devenport and the other two boys were engaged in satisfies the statutory definition of recreational activity.
¶ 11. Joyce Devenport and Minnesota Fire & Casualty Insurance Company (Minnesota Fire) contend that the boys were not engaged in a recreational
¶ 12. Joyce Devenport and Minnesota Fire also suggest that the boys’ activity was not a recreational activity because it was not a traditional form of child‘s play. They compare the boys’ activity to the random wanderings of a three-year-old child near a lakeshore, an activity held not to be a recreational activity in Shannon. 150 Wis. 2d at 448. Both claim that the boys’ activity is like the activity in Shannon because both are activities in which children fail to understand the danger involved. Lastly, both argue that concluding that the boys were not engaged in a recreational activity is consistent with the purpose of the recreational immunity statute. According to both, the purpose of the recreational immunity statute is to encourage property owners to open their property for recreational activities, not to reward property owners for failing to prevent children from being drawn onto the dangerous conditions of commercial property.
¶ 13. Paper Recycling contends that the activity that Devenport and his friends were engaged in was a recreational activity. Paper Recycling argues that this activity satisfies the first part of the statutory definition for recreational immunity as “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure.” Paper Recycling also argues that this activ-
¶ 14. Paper Recycling argues that the activity that the boys were engaged in was an “outdoor activity undertaken for the purpose of exercise, relaxation or pleasure.” To support this argument, Paper Recycling relies on Kruschke v. City of New Richmond, 157 Wis. 2d 167, 458 N.W.2d 832 (Ct. App. 1990). In Kruschke, the court of appeals held that playing on a swing in a city park is a recreational activity. 157 Wis. 2d at 168. The court of appeals stated that its decision was consistent with the broad definition that had been given to the phrase recreational activity in previous Wisconsin cases. Id. at 172.
¶ 15. Paper Recycling also argues that the boys were playing a game that can be classified as “any other outdoor sport or game” under the third part of the statutory definition. To support this argument, Paper Recycling relies on Taylor v. City of Appleton, 147 Wis. 2d 644, 433 N.W.2d 293 (Ct. App. 1988). In Taylor, the court of appeals held that Taylor‘s activity of “playing catch with a football in a city park” was an “outdoor sport or game” that satisfies the third part‘s broad definition of recreational activity. 147 Wis. 2d at 646. Even though the court of appeals recognized that playing catch with a football “is of a different character from many of the activities listed in sec. 895.52(1)(g),” the court concluded that it is still a recreational activity. Id. at 647. Following the legislative intent for liberal construction of the statute, the court of appeals concluded that playing catch with a football in a city park
¶ 16. Paper Recycling further contends that the activity that the boys were engaged in satisfies the Linville test as substantially similar to the specific activities listed in the recreational immunity statute. For example, Paper Recycling suggests that Devenport and his friends imagined that they were playing in tunnels and forts, an activity substantially similar to the specific activity listed in the statute of exploring caves. In addition, Paper Recycling argues that Devenport and his friends had the intent to recreate by playing outdoor games after school and that this intent, combined with the objective nature of the activity, establishes that the boys were engaged in a recreational activity.
¶ 17. Lastly, Paper Recycling argues that the recreational immunity statute provides blanket immunity and that any limitation of that immunity would hinder the purpose of the statute. To support this argument, Paper Recycling relies on Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 547 N.W.2d 602 (1996). In Verdoljak, we held that the recreational immunity statute protected Mosinee Paper Corporation (Mosinee) from a lawsuit filed by a motorcyclist who was injured on its property, despite the fact that Mosinee opened its property for hunting and fishing, but not for motorcycling. 200 Wis. 2d at 631. In that case, we recognized that limiting the applicability of the recreational immunity statute to property owners who open their property for all recreational activities would defeat the statute‘s purpose of encouraging property owners to open their lands for recreational
¶ 18. The activity that the boys were engaged in, crawling through stacks of baled paper, while lighting matches and starting fires, is not included in the second part of the immunity statute‘s definition which lists 28 specific recreational activities. Nor is the activity of the boys included, specifically, in the third part‘s broad definition providing that a recreational activity is “outdoor sport, game or educational activity.”
¶ 19. It is argued that we should construe the first part of the statutory definition providing that a recreational activity is “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure” to include the boys’ activity. This activity was an outdoor activity and one of the boys stated that the purpose of the activity was to play. However, every outdoor activity for the stated purpose of exercise, relaxation or pleasure could be included within this definition. Sievert, 190 Wis. 2d at 629. Because every outdoor activity is not a recreational activity, we must construe the first broad part of the definition in light of the second part‘s 28 specific activities and the third part‘s broad definition. Id.
¶ 20. As noted, our analysis does not end because the activity the boys were engaged in is not specifically listed in
The legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit. While it is not possible to specify in a statute every activity which might constitute a recreational activity, this act provides examples of the kinds of activities that are meant to be included, and the legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability. The act is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.683 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.
Accordingly, we will liberally construe the recreational immunity statute in favor of property owners when the activity in question is not specifically listed but “is substantially similar to the activities listed in the statute or whe[n] [the] activity is undertaken in circumstances substantially similar to the circumstances of a recreational activity.” Sievert, 190 Wis. 2d at 631.
¶ 21. We must therefore determine whether the activity that the boys were engaged in was “substantially similar to the activities listed in the statute or whether [the activity was] undertaken in circumstances substantially similar to the circumstances of a recreational activity.” Id. at 631. In Linville, the court of appeals applied the following test that this court has adopted in making that determination:
The test requires examination of all aspects of the activity. The intrinsic nature, purpose and consequence of the activity are relevant. While the injured person‘s subjective assessment of the activity is relevant, it is not controlling. Thus, whether the injured person intended to recreate is not dispositive, but why he was on the property is pertinent.
184 Wis. 2d 705, 716, 516 N.W.2d 427 (1994)(citing Linville v. City of Janesville, 174 Wis. 2d 571, 579–80, 497 N.W.2d 465 (Ct. App. 1993)). The Linville test is an objective test. 184 Wis. 2d at 713. This test requires a court to apply a reasonable person standard to determine whether a property user‘s activity is recreational based on the totality of the circumstances surrounding the activity.
¶ 22. We begin the analysis, in regard to the application of the Linville test, with the intrinsic nature of the activity. Nature is defined as “[t]he essential characteristics and qualities of a person or thing.” The American Heritage Dictionary 1204 (3d ed. 1992). The essential characteristic of the boys’ activity was involvement in mischievous conduct. The boys were inside the stacks of baled paper, lighting matches and starting fires. According to a statement taken in an interview with one of the surviving boys, Devenport, at the time that a fire was discovered, was “sitting in the corner in one of the rooms” within the baled paper.4 The determination that the boys were engaged in mis-
¶ 23. Before we analyze the purpose and consequence of the activity, the examination of the intrinsic nature of the activity also requires consideration of the nature of the property upon which the activity takes place. Linville, 184 Wis. 2d at 717. The nature of the property can be an important part of the determination of whether the activity is recreational.5 For example, in Linville the nature of the property was a significant factor in the determination that the activity in question was recreational. Id. Kelly Linville and her son David were taken to a pond in a van driven by Walter Hadden to look at potential fishing spots. Id. at 711-12. The City of Janesville owned the pond, which was used for recreational purposes. Id. at 712. When the van became stuck in the mud, Kelly Linville got out and tried to push it out. Id. She was unable to move the van and it sank in the mud, drowning David Linville and
¶ 24. While the nature of the property can be a significant factor in the determination of whether an activity is recreational, it is not dispositive. Sievert, 190 Wis. 2d at 623. In Sievert, we determined that the activity of walking onto a boat dock to greet a neighbor was not a recreational activity. Id. at 633. We made this determination based on the intrinsic nature and purpose of the activity. Id. The fact that the activity took place on property used for recreational purposes, a boat dock, did not change the non-recreational activity of greeting a neighbor into a recreational activity.6 Id. at 632.
¶ 25. In the present case, there is nothing in the intrinsic nature of the boys’ activity that was substantially similar to a recreational activity. As stated above, the nature of the boys’ activity was that they were engaged in mischievous conduct while no one was around. As was the case in Linville, the nature of Paper Recycling‘s property is crucial to our examination of the nature of the boys’ activity. 184 Wis. 2d at 717.7 The nature of the property was a commercial site used for a business purpose. In addition, the property was not open to the public for recreational use. While we recognize that intent is not dispositive (see Linville, 184 Wis. 2d at 717), there is nothing in the record to indicate that Paper Recycling intended that its property would be a recreational property or would be used for recreational activities. In fact, the record indicates that Paper Recycling intended that its property would be used only for commercial activities, evidenced by the fence Paper Recycling erected around its property to keep people away from the commercial materials, such as the paper bales, stored in the outside yard.
The fact that we do not focus on or rely exclusively on the nature of the property does not mean that we exclude the nature of the property from the analysis.
¶ 27. The next step in the analysis is to examine the purpose of the boys’ activity. This part of the Linville test must also be judged by an objective standard. Purpose is defined as “[t]he object toward which one strives or for which something exists; an aim or a goal.” The American Heritage Dictionary 1471 (3d ed. 1992). The goal of the boys’ activity was to light matches and to start fires. There is nothing in the purpose of this activity, lighting matches in order to start fires, that is substantially similar to any of the recreational activities listed in the statute.
¶ 28. Next in the analysis we look at the consequence of the boys’ activity. As was the case with the nature and purpose of the activity, the consequence of the activity must be judged by an objective standard. Consequence is defined as “[s]omething that logically or naturally follows from an action or condition.” The American Heritage Dictionary 401 (3d ed. 1992). What naturally followed from the boys’ activity was that a fire started, destroying Paper Recycling‘s property and tragically killing Devenport. In fact, it was an almost certain consequence that a fire would start when the
¶ 29. The Linville test also requires us to consider the boys’ subjective assessment of the activity. Devenport and his friends did have the intent to play in the stacks of baled paper. While this subjective intent is relevant to the analysis of whether the activity was recreational, it is not controlling. Linville, 184 Wis. 2d at 716. Intent does not change the intrinsic nature, purpose and consequence of the activity. Id. at 717. The fact that Devenport and his friends intended to play does not change their non-recreational activity into a recreational one. Consequently, the activity that the boys were engaged in does not satisfy the Linville test for a recreational activity.
¶ 30. While we recognize the legislative intent to give a broad definition to the phrase recreational activity, we also recognize that there are limits to this definition. As stated above, not every outdoor activity is a recreational activity. Sievert, 190 Wis. 2d at 629. Likewise, not every form of child‘s play is a recreational activity. Previous Wisconsin cases have concluded that some forms of child‘s play, like playing on a swing in
¶ 31. By applying an objective, reasonable adult standard, we conclude that the conduct that Devenport and his friends were engaged in, crawling through stacks of baled paper, while lighting matches and starting fires, is not a recreational activity. A reasonable adult would not consider crawling around lighting fires to be a recreational activity. Crawling around lighting fires is not a game, nor is it based on competition, rules or strategy. It is just an inherently dangerous activity that is not objectively a recreational activity.
¶ 32. We are not persuaded that the boys’ activity is substantially similar to exploring caves, or any other of the specific activities listed in the recreational immunity statute. The labeling of the activity that the boys were engaged in as exploring caves or playing in tunnels and forts depends solely on the boys’ subjective characterization. When we consider the intrinsic nature, purpose and consequence of the activity, as the Linville test instructs, we do not find the activity that Devenport and his friends were engaged in to be substantially similar to exploring caves. Stacks of baled paper are not substantially similar to caves. Crawling around while lighting matches and starting fires is not substantially similar to exploring. There is nothing about the intrinsic nature, purpose and consequence of the activity that is substantially similar to any of the activities listed in the statute. While the boys’ charac
¶ 33. We therefore conclude that the activity that Devenport and his friends were engaged in was not a recreational activity. This activity does not satisfy the definition of recreational activity set forth in
¶ 34. We also consider the effect of our decision in the present case on the common law doctrine of attractive nuisance. The doctrine of attractive nuisance is a phase of the law of negligence that describes a property owner‘s liability to a trespassing child. Christians v. Homestake Enters., Ltd., 101 Wis. 2d 25, 28 n.1, 303 N.W.2d 608 (1981). In short, the doctrine of attractive nuisance imposes a duty upon possessors of property “to keep those parts of their land on which they know, or ought to know, children are likely to be present, free from artificial conditions which involve an unreasonable risk of bodily injury or death to children.” Id. at 30 n.2 (citations omitted).8 Our decision in the present
case affects the doctrine of attractive nuisance because the recreational immunity statute provides that a possessor of property has no liability under attractive nuisance to a child using the property for a recreational activity.
¶ 35. By concluding that Devenport and his friends were not engaged in a recreational activity, we do not eliminate consideration of the doctrine of attractive nuisance under such circumstances. All children would likely characterize the activity of trespassing onto commercial property to play around dangerous, artificial conditions as a recreational activity. If we were to agree, that the subjective play of children on commercial property is a recreational activity, then possessors of commercial property would have no liability towards trespassing children. The inevitable result of that conclusion would be that possessors of commercial property would have no incentive to keep children from being drawn onto their property by dangerous artificial conditions. Consequently, possessors of commercial property would have less reason to monitor their property and prevent children from trespassing.
¶ 36. In summary, we hold that Paper Recycling is not entitled to recreational immunity under
By the Court.—The decision of the court of appeals is affirmed.
¶ 37. ANN WALSH BRADLEY, J. (concurring). When interpreting a statute we must discern the intent of the legislature. This rule of statutory construction sounds simple. Yet, the gulf between the statutory language of
¶ 38. When enacting the recreational immunity statute, did the legislature intend that it apply to an industrial yard? Did the legislature intend that it provide immunity from liability in virtually all cases involving the outdoor activities of children? Because I agree with the majority‘s answers to these questions, I join the opinion. I write separately to emphasize the lack of a coherent statutory purpose and scheme that frustrates our application of the statute.
¶ 39. The statute as written is difficult to apply. Its laundry list of specific “recreational activities” couched between two sweeping generalizations of what that term means is at the same time all-encompassing
¶ 40. We have maintained that the purpose of the recreational immunity statute is to serve the public policy of encouraging landowners to open their property to recreational use. However, as the dissent correctly notes, the legislature‘s change in its perception of the statute has effectively divorced this public policy from the application of the statute. As a result of the legislative sea change, the statute serves simply to further the goal of relieving landowners from liability, bar none.
¶ 41. With relief from liability as the only purpose of the statute, what is our guiding light in construing the statute? Where do we draw the lines?
¶ 42. The answer supposedly lies in the amorphous definition of “recreational activity.” This case illustrates the deficiencies of such an approach. As we strain to identify the controlling principles, the parties engage in fruitless debate over whether playing in bales of paper is sufficiently analogous to “exploring caves” so as to entitle the defendant to immunity. We could avoid such artificial distinctions if we were able to address the policy of encouraging landowners to open their property to recreational activities. How can that policy be served by providing immunity to the owner of an industrial yard who allegedly has failed to take adequate precautions against the potential for intruding children?
¶ 44. Given the difficulties inherent in the statute as currently drafted, I believe it is time that the legislature revisit it. A coherent purpose and scheme are needed to provide guidance, consistency, and reason to our application of the statute. I urge the law revision committee and the revisor of statutes to exercise their statutory duties under
¶ 45. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this opinion.
¶ 46. JON P. WILCOX, J. (dissenting). I respectfully dissent. I would conclude that the boys’ activity constituted a “recreational activity” under
¶ 47. The legislature intended
A
¶ 48. First, rather than examining the totality of the circumstances surrounding the boys’ activity, the majority focuses its analysis almost entirely upon a single momentary diversion from that activity. This marks a sharp break from precedent.
¶ 49. In Linville, this court first set forth its analytical framework for examining whether an activity is a “recreational activity,” as defined by
¶ 50. On review of the subsequent lawsuit against the city, this court explained that the test to determine whether a property user is engaged in a recreational activity “is one which considers the purpose and nature of the activity in addition to the user‘s intent. . . . The test requires examination of all aspects of the activity.” Id. at 716 (emphasis added). In light of this test, while examining the facts of the case, we did not focus our analysis on the fact that at the time immediately surrounding the accident, the persons were pushing their van out of mud—an activity probably not within the scope of
¶ 51. Linville illustrates that recreational activities are defined by the totality of the circumstances surrounding the property user‘s primary activity. Temporary diversions from the primary activity do not alter the purpose and nature of the activity for purposes of
¶ 52. In the present case the majority abandons the Linville analysis. The majority predicates its holding on the fact that at the time immediately surrounding the accident at issue, the boys had lit fires. However, the record indicates that this was not the boys’ primary activity.
¶ 53. The only two documents in the record that provide insight regarding the boys’ activity on May 28, 1997, are affidavits by Ronald Murray and Andy Barney, the boys who accompanied Daniel Devenport onto Paper Recycling‘s premises.3 Ronald Murray‘s affidavit provides in pertinent part:
After school on May 28, 1997 I got together with Danny Devenport and Andy Barney and we decided to enter the business premises of Paper Recycling through a hole in the fence around the business.
There were large bales of paper stacked in the yard and we liked to play among the bales of paper. We had found that there were tunnels among the paper bales and we could crawl through the tunnels and reach forts or rooms within the stacks of paper bales where we could play games. Our purpose in entering the premises that day was to play among the bales of paper.
On May 28, 1997 the three of us entered through the hole in the fence. There was no one around and we began playing among the bales of paper. I had with me that day a box of stick matches and all three of us played with the matches among the bales of paper. We all lit matches and lit small fires in the paper.
After a time we proceeded down one of the tunnels in the paper bales and spent some time in a fort or room among the bales. We then noticed that there was fire at the far end of the tunnel in the area where we had previously been lighting the matches.
Andy Barney‘s affidavit provides substantially the same account:
Prior to May 28, 1997, Danny Devenport, Ron Murray and I would occasionally play at the business premises of Paper Recycling. There were large bales of paper stacked in the yard at Paper Recycling, and we liked to play among the bales of paper. The bales of paper were stacked so that there were tunnels through which we would crawl to reach forts or rooms within the stacks of paper bales where we played games.
On May 28, 1997, Danny Devenport, Ron Murray and I went to the business premises of Paper Recycling after school to play amongst the bales of paper. On that day, the three of us entered through an opening in the fence. There was no one around and we began to play among the bales of paper.
Ron Murray had brought a box of stick matches that day, and all three of us played with the matches among the bales of paper. After a time, we proceeded down one of the tunnels in the paper bales and spent some time in a fort or room among the bales. It was then that we noticed that there was a fire at the far end of the tunnel in the area where we had been previously playing.
¶ 54. These documents indicate that the primary purpose and nature of the boys’ activity was climbing and playing among the paper bales. To be sure, the boys lit fires on Paper Recycling‘s premises. However, the evidence shows that they did so only as a temporary diversion before crawling into another “room” and continuing their primary activity.
¶ 55. I recognize that, as the majority notes, the boys’ affidavits are subjective. And I agree with the majority that in general, although a property user‘s subjective intent is relevant, it is not controlling as to whether he or she is engaged in a recreational activity. However, in the present case, the boys’ affidavits are the only relevant evidence before this court. Consequently, the court necessarily should have based its ruling on the evidence in the affidavits.
¶ 56. Nevertheless, the majority ignores the affidavits and concludes that “[t]he goal of the boys’ activity was to light matches and start fires.” Majority op. at ¶ 27. Not only is there no evidence in the record to support such a proposition, but the boys’ affidavits directly contradict this conclusion.
¶ 57. The affidavits, the sole evidence on point, show that the boys’ primary activity was climbing and playing among the paper bales. Thus, had the majority properly applied Linville to the evidence in the record and focused on the boys’ primary activity—climbing
B
¶ 58. The majority opinion also is problematic because it gives great weight to the nature of Paper Recycling‘s property. This ignores the plain text of
¶ 59.
¶ 60. That
¶ 61. In May 1984 the legislature repealed
[T]he newly created statute [
§ 895.52 ] is essentially a complete rewrite, containing none of the previous references to ‘open[ing] land‘. . . .The unambiguous language of the [new] recreational use statute sets the following precondition for immunity—that the injury be to or caused by “a person engaging in a recreational activity on the owner‘s property.”
Verdoljak, 200 Wis. 2d at 633-34 (quoting
¶ 62. Despite this overwhelming authority to the contrary, the majority asserts that the nature of property can be a “significant factor” to
¶ 63. As explained above, the evidence in Linville showed that several persons who allegedly were examining property in preparation to fish there the following day drowned while pushing a van out of mud. Id. at 712, 717. But because the persons drowned while dislodging the van and not while fishing, this court examined the nature of the property to determine whether it supported the allegations that the person intended to fish there the next day. Id. That is, this court examined the nature of the property only insofar as it evidenced the credibility of the witnesses’ account of the events leading to the accident. We did not consider the nature of the property as defining the activity.
¶ 64. In the present case, the nature of Paper Recycling‘s premises supports the boys’ accounts that they were climbing and playing prior to the fire. It is undisputed that the property contained large bales of paper. It further is undisputed that between these bales of paper, there were spaces in which the boys could climb and play. Thus, to the extent that Linville suggests that this court should consider the nature of Paper Recycling‘s premises, the nature of the property lends credence to the boys’ descriptions of the events at issue.
¶ 65. Nevertheless, the majority looks beyond the nature of the property as evidence of the credibility of the boys’ affidavits and considers the nature of the property as defining the boys’ activity. The majority explains that the closed, industrial “nature of Paper Recycling‘s property is crucial to our examination of the nature of the boys’ activity.”8 Majority op. at ¶ 25.
Hence, it reasons that the nature of Paper Recycling‘s property transmogrifies the boys’ climbing and playing from a recreational activity into something else.
¶ 66. The majority‘s reasoning is counterintuitive for at least four reasons. First, the majority‘s reasoning contravenes the general canons of statutory construction. “It is a well-recognized rule of statutory construction that nontechnical words and phrases are to be construed according to their common and ordinary usage.” Ervin, 159 Wis. 2d at 483-84 (citation omitted). Pursuant to this rule, the enumerated “recreational activities” in
¶ 67. However, under the majority‘s “nature of the property” analysis, the enumerated activities in
¶ 68. Second, the majority‘s reasoning creates artificial distinctions between activities to which
¶ 69. Third, the majority‘s analysis could lead to absurd and unreasonable results. In accordance with the majority‘s analysis, if a person is injured in an area intended for recreating—such as a park—he or she may not pursue a claim for the injuries. On the other hand, if a person is injured during the same activity in an area where the activity is dangerous, prohibited, or even illegal—such as an industrial lot—he or she may sue the property owner. Thus, the majority‘s analysis affords greater rights to persons who engage in their activities in dangerous, “non-recreational” areas than it does to persons who exercise caution, discretion, and common sense. Contra Verdoljak, 200 Wis. 2d at 636 (“We reject the notion that the recreational use statute could confer greater protection to a trespasser than to one who was lawfully using the premises. . . .“).
¶ 70. And fourth, the majority‘s analysis may suggest to property owners such as Paper Recycling to remove fences, barricades, and other protective devices in order to give their lands the appearance of a “recreational area.” Owners who maintain such protections run the risk of owning what the majority may deem “non-recreational property” and, thus, being held liable for users’ injuries. But if the owners give their properties—regardless of danger—the appearance of a “recreational area,” they less likely will be subjected to lawsuits. Cf. Ervin, 159 Wis. 2d at 477 (“If liability were imposed on landowners for negligence in failing to provide adequate safety measures, it would encourage landowners to provide no safety measures.“).
II
¶ 72. I recognize that proper application of
¶ 73. In sum, I believe that had the majority properly applied
¶ 74. In refusing to grant summary judgment for Paper Recycling, the majority has contravened the purpose and text of
¶ 75. I am authorized to state that Justice DAVID T. PROSSER joins this dissent.
Notes
All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated.
(2) No duty; immunity from liability. (a)...no owner and no officer, employe or agent of an owner owes to any person who enters the owner‘s property to engage in a recreational activity:
- A duty to keep the property safe for recreational activities.
- A duty to inspect the property...
- A duty to give warning of an unsafe condition, use or activity on the property.
(b) ..no owner and no officer, employe or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner‘s property or for any death or injury resulting from an attack by a wild animal.
In footnote 4 of the majority opinion, the majority references the transcript of a recorded statement by Andy Barney, which it characterizes as evidence regarding the purpose and nature of the boys’ activity. That document states in pertinent part:
[Q] What was Danny Devenport doing before you noticed the fire in the paper bails [sic]?
[A] He was sitting in a corner in one of the rooms.
[Q] How long had he been sitting in one of the rooms before you noticed the fire?
[A] Five minutes.
The majority is correct insofar as it explains that this transcript does not demonstrate that the boys were engaged in a recreational activity. However, this transcript also fails to indicate what the boys had been doing more than five minutes before the fire. That is, it contains no evidence of what the boys’ primary activity was.
The majority seems to suggest that because
Although this court may not tap legislative history to show that a statute is ambiguous, we may use legislative history to support a conclusion that a statute is clear on its face. Seider v. O‘Connell, 2000 WI 76, ¶¶ 51-52, 236 Wis. 2d 211, 612 N.W.2d 659.
Liability of landowners. (1) Safe for entry; no warning. An owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others for hunting, fishing, trapping, camping, hiking, snowmobiling, berry picking, water sports, sight-seeing, cutting or removing wood, climbing of observation towers or recreational purposes, or to give warning of any unsafe condition or use of or structure or activity on the premises to persons entering for such purpose. . . .
It appears that the legislature included this language in part to show its dissatisfaction with this court‘s decision in LePoidevin v. Wilson, which, while narrowing the scope of
[T]his bill is to do away with some of the great uncertainty of our present landowner liability law. This is particularly important because of the Supreme Court‘s 1983 decision in LePoidevin v. Wilson, 111 Wis. 2d 116.
A plaintiff claiming a cause of action for attractive nuisance must establish the following elements:
(1) . . .that the former [possessor of real estate] maintained, or allowed to exist, upon his land, an artificial condition which was inherently dangerous to children being upon his premises....
(2) . . .that he knew or should have known that children trespassed or were likely to trespass upon his premises....
(3) . . .that he realized or should have realized that the structure erected or the artificial condition maintained by him was
(4) . . .that the injured child, because of his youth or tender age, did not discover the condition or realize the risk involved in going within the area, or playing in close proximity to the inherently dangerous condition....
(5) . . .that safeguards could reasonably have been provided which would have obviated the inherent danger without materially interfering with the purpose for which the artificial condition was maintained....
Christians v. Homestake Enters., Ltd., 101 Wis. 2d 25, 44, 303 N.W.2d 608 (1981)(citations omitted).
The majority even goes so far as to suggest that the subjective intent of a landowner to open his or her property to
In Linville, this court held that the subjective intent of the property user is relevant to whether a particular activity falls within the scope of
Indeed, in Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 628, 547 N.W.2d 602 (1996), this court specifically rejected the proposition that
“The ordinary and common meaning of a word may be established by definition of a recognized dictionary.” Ervin v. City of Kenosha, 159 Wis. 2d 464, 483-84, 464 N.W.2d 654 (1991) (citation omitted).