Limits on the Scope of Wisconsin’s Recreational Immunity Statute

Wisconsin’s Recreational Immunity statute, Wis. Stat. § 895.52, provides owners of private property with broad protection from liability to persons who suffer injury on their property.  Our courts have interpreted recreational immunity as encompassing a wide spectrum of activities.  Despite that, there remain exceptions to the grant of immunity under the statute. The most significant exceptions include situations where the property owner collects money, goods or services in payment for the use of the property, as well as situations where the injury occurs on residential property where the injured person is invited as a guest.

Beyond those quite clear exceptions, the courts have generally interpreted the statute expansively to provide broad protection to landowners. Two recent decisions, however, have rejected efforts to extend immunity to persons other than the owner who cause injury while using the property with the owner’s permission.

In the first case, Roberts v. T.H.E. Ins. Co., 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492, the Court concluded that a hot air balloon company that was providing balloon rides on a property with the owner’s permission was not entitled to the benefit of the immunity statute. The Court reasoned that the balloon company was merely a temporary user of the property, rather than owners, and thus were not among those persons the statute was intended to protect.

In this case, Patti Roberts was injured by a hot air balloon when the tether snapped. She was attending a charity event sponsored by Green Valley Enterprises and hosted on a shooting range owned by Beaver Dam Conservationists. Sundog Ballooning was providing hot air balloon rides at the event. Sundog contended that it was entitled to immunity under the recreational immunity statute because it “occupied” the shooting range and therefore was entitled to immunity under the statute.

The Court rejected that argument, concluding that the term “occupy” would require a degree of permanence. The court also noted that the purpose of the recreational immunity statute was to encourage land-owners to open land for public use. Granting immunity to Sundog would not further that purpose because the property had already been opened by the owners for recreational purposes. Given that fact, failing to grant Sundog immunity would not discourage the owner from opening his land, because the owner would be protected from any liability.

More recently in Westmas v. Creekside Tree Serv., Inc., 2018 WI 12, 379 Wis. 2d 471, 907 N.W.2d 68, the Court ruled that a company engaged in tree trimming on the owner’s property could not claim immunity under Wis. Stat. § 895.52. The Court again concluded that the tree trimming company was a mere temporary occupier, or user, of the property and therefore not an owner. The underlying purpose of the statute to permit owners to open their property for recreational use would not be furthered by granting immunity to those who are mere temporary users of the property.

In Westmas, the plaintiff’s wife was killed by a tree branch cut by Creekside Tree Services Inc. At the time, the plaintiff’s wife and her son were walking on a public path through the property of Conference Point Center. Conference Point had contracted with Creekside to trim and remove trees.

Creekside argued that it was acting as an “agent” of Conference Point under Wis. Stat. § 895.52(2)(b) and therefore was immune from liability for the death. Creekside also argued that it was entitled to recreational immunity as an occupier of the Conference Point property, and therefore immune because the statute defines “owner” to include a person “that owns, leases or occupies property.” Wis. Stat. § 895.52(1)(d)1.

The Supreme Court rejected the claim of immunity. It ruled that Creekside was not an agent of Conference Point because Conference Point had neither control of, nor the right to control, the details of Creekside’s work, including the acts that caused the death of Jane Westmas. The Court went on to conclude that Creekside was not an occupier of Conference Point’s property because no “degree of permanence, as opposed to mere use” was involved in its presence on the property.

The Court rejected Creekside’s claim that they came within the statutory definition of ownership. The Court noted that the term “occupy” as used within the statute required “a degree of permanence as opposed to the mere use of the property in question,” citing Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998). The Court also relied a significant part on its earlier decision in Roberts.