Does Wisconsin’s Recreational Immunity Statute Protect Bicycle Clubs?

June 21, 2010

Wisconsin has a long history of promoting tourism and outdoor activities. One of the great joys of living in Wisconsin is the number of recreational opportunities available, including a large number of well-kept bicycle trails. These trails are developed and maintained by the cooperation of local and state governments, and a number of bicycle clubs with dedicated members who volunteer their time and energy to making Wisconsin a bicycle friendly state. Wisconsin’s Recreational Immunity Statute, found in Chapter 895.52 of the Wisconsin Statutes, is intended to promote recreational activity in Wisconsin by making certain organizations and individuals immune from liability for injuries or death caused while a person is engaged in recreational activities. Although the statute does not directly refer to “bicycle clubs,” it is likely that some bicycle clubs and organizations fall within the umbrella of protection provided by the law.

Who is Entitled to Immunity?
The Recreational Immunity Statute protects owners of certain property, and their officers, employees and agents. The statute defines “owner” to include a “person… governmental body, or nonprofit organization that owns, leases or occupies property.” “Owner” also means “a nonprofit organization that has a recreational agreement with another owner.” A “recreational agreement” is a written authorization granted by an owner to a nonprofit organization that permits public access to the property for recreational activities.

What is the Scope of Protection Provided by The Statute?
The Recreational Immunity Statute states that no owner (or any of its agents) is liable to a person for death or injury caused by a person engaging in a recreational activity on the owner’s property. It also provides that an owner has no duty to keep the property safe for recreational activities, inspect the property, or provide warnings of unsafe conditions.

The term “recreational activity” is defined very broadly in the statute and has been given an expansive meaning by Wisconsin courts. A “recreational activity” can include anything from walking, horseback riding, sightseeing, snowmobiling, skiing, as well as a number of other activities. Bicycling is specifically listed as a “recreational activity” in the statute.

Are There Any Exceptions to Immunity?
The law contains a number of exceptions to the immunity it provides for different classes of “owners.” Among other exceptions, the statute does not protect a non-profit organization “for a death or injury caused by a malicious act or malicious failure to warn against an unsafe condition” about which the organization had knowledge. A “malicious act” generally requires some form of ill-will towards another person or intent to harm someone. The statute also carves out several exceptions for private property owners who collect money for certain recreational uses of their property. Immunity does not apply if an injury is caused by an activity that has no connection to recreational use of the land.

Are Bicycle Clubs Protected by the Statutes?
Wisconsin has a number of bicycle organizations that focus on different aspects of the sport, including social riding clubs, racing clubs, touring clubs, mountain bike clubs and trail building/maintenance clubs. Whether a bicycle club is entitled to recreational immunity depends on a number of factors, including its status as a non-profit organization, and the nature and extent of its activities.

Unfortunately, no case has directly addressed whether a bicycle club is protected under the statute. However, three Wisconsin cases involving snowmobile clubs suggest that some bicycle clubs may fall within the protection afforded by the Recreational Immunity Statute in certain circumstances. These cases suggest that a club may be entitled to immunity if it is a non-profit organization and either “occupies” property by conducting regular maintenance and building activities or possesses a “recreational agreement” with the property owner.

In the first case, the Wisconsin Court of Appeals ruled that two snowmobiling organizations were protected from liability under the Recreational Immunity Statute when they were sued after a snowmobile rider was killed by a tree falling across a snowmobile trail. The Court concluded that the snowmobile clubs were “occupiers,” and therefore “owners,” under the statute because they contracted with the county to build and maintain the snowmobile trail where the injury occurred and conducted regular maintenance.

However, in the second case, the Court of Appeals ruled that a snowmobile club that held a fundraising race on a town lake was not protected from liability when a snowmobiler was injured a few days after the race when he collided with an obstacle left on the course. Although the club had a permit to conduct the race, it did not have a recreational agreement and did not lease the land or regularly maintain it. The club tried to argue that it was an “occupier” of the lake because it conducted the race a few days before the injury. The Court of Appeals rejected this argument and concluded the club was not an “occupier,” as it used the lake only for the race and had “abandoned” the premises by the time of the injury.

Finally, in the third case, the Court of Appeals ruled that a snowmobile club was immune from liability when a snowmobiler collided with a piece of trail maintenance equipment that the club left on a trail. The injured party argued that there should be no immunity because the club did not have a recreational agreement with the property owner and was not actively maintaining the trail at the time of injury. The court disagreed and ruled that the club was immune from liability as an “occupier” because it conducted regular trail maintenance and it maintained more than a “transient” presence on the property. The court stated that it did not matter that the club was not actively conducting maintenance work at the time of injury.

The language of Wisconsin’s Recreational Immunity Statute and these three cases suggest that a bicycle club may be entitled to immunity if it is a non-profit organization and it either:

  1. “Occupies” recreational land by regularly building and maintaining bicycle trails and maintains more than a “transient” presence on the property; or
  2. Possesses a recreational agreement with a local governmental entity permitting public access to recreational property for bicycling activities

Under these criteria, it is unlikely that a road riding or touring club that periodically uses public roadways for club rides would be protected under the Recreational Immunity Statute. Occasional use of a public road likely would not satisfy the occupancy requirement. Also, unless the road has been withdrawn entirely from transportation purposes, it likely would not constitute “recreational property.”

On the other hand, a non-profit mountain biking club that builds and/or maintains bicycle trails in a county park may be protected if it has an agreement with the governmental entity that owns the recreational property or if it conducts regular trail maintenance. A good argument can be made that a bicycle club that regularly maintains a trail system and/or has an agreement with the landowner should be treated similarly to the snowmobile clubs in the cases discussed above.

Although a non-profit bicycle club can qualify for immunity by either “occupying” the land through regular trail maintenance or by obtaining a “recreational agreement” with the landowner, a club may want to meet both conditions to ensure protection under the statute. In order to prove that a club “occupies” land, it may want to keep a regular log of its building/maintenance activities and the number of people involved, so that there is proof that it maintains more than a “transient” presence on the property. In the end, whether a particular club is entitled to immunity will depend upon the specific facts of each case and the nature of the club’s activities. Wisconsin courts have cautioned that “recreational use cases are fact intensive and that it is possible for a sporting club to be an owner in one situation and a similar sporting club to fall outside of the definition of owner in another.”

The Recreational Immunity Statute is not a Substitute for Common Sense
Just because a bicycle club and its members may be entitled to protection under the Recreational Immunity Statute does not mean that they should throw caution into the wind when building or maintaining trails or perform shoddy work. Although a bicycle club may ultimately win a lawsuit based on the Recreational Immunity Statute, immunity from liability does not prevent people from being injured or lawsuits from being filed. While the statute states there is no duty to inspect, warn, or keep recreational property safe, the best way for a bicycle club to avoid a lawsuit is to construct safe trails, conduct regular maintenance, and warn of hazards so that no one is hurt in the first place and everyone can safely enjoy the sport.

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