Kloes v. Eau Claire Cavalier Baseball Ass'n, Inc.

• Decision Date: 30 June 1992
• Docket Number: No. 91-2778,91-2778
• Citation: 487 N.W.2d 77,170 Wis.2d 77
• Parties: Jeffrey J. KLOES and Connie S. Kloes, Plaintiffs-Appellants, d v. EAU CLAIRE CAVALIER BASEBALL ASSOCIATION, INC.; d/d Carson Park Concessions, Inc.; Transamerica Insurance Company and Wisconsin Municipal Mutual Insurance Company, Defendants- Respondents.
• Court: Wisconsin Court of Appeals

Page 77

487 N.W.2d 77

170 Wis.2d 77

Jeffrey J. KLOES and Connie S. Kloes, Plaintiffs-Appellants,^d v. EAU CLAIRE CAVALIER BASEBALL ASSOCIATION, INC.;^d/d Carson Park Concessions Inc.; Transamerica Insurance Company and Wisconsin Municipal Mutual Insurance Company Defendants- Respondents.

No. 91-2778.

Court of Appeals of Wisconsin.

Submitted on Briefs June 9, 1992.

Opinion Released June 30, 1992.

Opinion Filed June 30, 1992.

For the plaintiffs-appellants, Jeffrey J. Kloes and Connie S. Kloes, the cause was submitted on the briefs of Thomas D. Bell and Matthew A. Biegert of Doar, Drill & Skow, S.C., of New Richmond.

For the defendants-respondents, Eau Claire Cavalier Baseball Association, Inc.; Carson Park Concessions, Inc.; and Transamerica Insurance Co., the cause was submitted on the brief of William M. Gabler of Garvey, Anderson, Johnson, Gabler & Geraci, S.C. of Eau Claire.

For the defendant-respondent, Wisconsin Mun. Mut. Ins. Co., the cause was submitted on the brief of Eric J. Wahl of Wiley, Wahl, Colbert, Norseng, Cray and Herrell, S.C. of Eau Claire.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Jeff and Connie Kloes appeal a summary judgment dismissing their action, on the merits, against the Eau Claire Cavalier Baseball Association (association); Transamerica Insurance Company, the association's insurer; and Wisconsin Municipal Mutual Insurance Company (WMMIC), the city of Eau Claire's insurer. They argue that the trial court erred by finding that (1) the recreational immunity statute, sec. 895.52, Stats., bars the Kloeses' action against WMMIC, and (2) Jeff Kloes voluntarily confronted an open and obvious danger, and, therefore, as a matter of law, his negligence exceeded any negligence attributable to the association.

We agree that the recreational immunity statute, sec. 895.52, Stats., bars the Kloeses' action against WMMIC because the city is immune from liability. However, we conclude that the trial court erred by holding that Jeff Kloes' negligence exceeded the association's negligence as a matter of law. The judgment is affirmed in part, reversed in part and the matter remanded for further proceedings consistent with this opinion.

The association is an amateur baseball team that plays approximately eighty games per season. Its home games are played at Carson Park in Eau Claire. The city charges the association $14 per game for use of the park, and employs a maintenance worker to prepare the park for games. The association charges an admission fee to its games.

Jeff Kloes was pitching for the association during a night game at Carson Park when he was struck in the face with a batted ball. The Kloeses sued the association, Transamerica and WMMIC. ¹ They alleged that the association and the city negligently caused Jeff Kloes' injuries. ² Specifically, the Kloeses claim that the inadequate lighting at Carson Park prevented Jeff Kloes from seeing the ball and reacting in time to avoid injury.

Kloes; Harvey Tompter, the association's field manager; and Bill Rowlett, the association's president, testified at their depositions that they believed the lighting at Carson Park was poor. Kloes also testified that he usually played the position of catcher, but on the night of his injury he volunteered to pitch. He stated that he knew one of the risks of pitching is being struck by a batted ball. Kloes also admitted that, on many occasions, he has observed pitchers struck and injured by batted balls.

The evidence also indicates that the city had plans to improve the lighting at Carson Park, having received complaints that it was both uneven and too dim, but the city had not yet made the improvements at the time of the accident. Alan Caskey, an expert who filed an affidavit on behalf of the Kloeses, stated that the lighting was inadequate because the Illuminating Engineering Society (IES) standards were inadequate. Lawrence Sanders, an expert on behalf of WMMIC, filed a counter-affidavit indicating that Carson Park's lighting was adequate and met the IES standards.

The association, Transamerica and WMMIC filed motions for summary judgment claiming that the city is immune from liability under the recreational immunity statute, sec. 895.52, Stats., and Kloes' negligence exceeded the defendants' negligence as a matter of law because Kloes voluntarily confronted an open and obvious danger. The trial court granted summary judgment dismissing the Kloeses' action.

We review summary judgments de novo. Grosskopf Oil v. Winter, 156 Wis.2d 575, 581, 457 N.W.2d 514, 517 (Ct.App.1990). The methodology for reviewing a summary judgment has been set forth Summary judgment is inappropriate where there is a disputed issue of material fact. Id. at 338, 294 N.W.2d at 476-77. The Kloeses' negligence action against the association is based solely on the allegation that the poor lighting at Carson Park prevented Jeff Kloes from seeing the batted ball and reacting in time to avoid injury. There is a factual dispute whether the lighting at Carson Park was adequate. It follows that if the lighting was adequate, Kloes would not prevail in his action. However, because this proceeding is at the summary judgment stage, we will assume for purposes of this appeal the disputed facts most favorable to Kloes.

many times, and it need not be repeated here. See Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980).

RECREATIONAL IMMUNITY

We first address the Kloeses' argument that the city is not immune from liability under the recreational immunity statute, sec. 895.52, Stats. This issue, involving the application of sec. 895.52 to undisputed facts, is a question of law that we review de novo. Gonzalez v. Teskey, 160 Wis.2d 1, 7-8, 465 N.W.2d 525, 528 (Ct.App.1990).

Section 895.52(2)(b), Stats., provides that an owner is not liable for an injury to a person engaging in a recreational activity on the owner's property. An owner is defined as a person, including a governmental body, that owns, leases or occupies the property. Section 895.52(1)(d), Stats. An exception to immunity exists if the owner charges an admission fee for spectators. Section 895.52(4)(a), Stats. Additionally, a recreational activity includes an outdoor sport or game, but not an organized team sport activity sponsored by the owner of the property on which the activity takes place. Section 895.52(1)(g), Stats.

The parties do not dispute that the city is an "owner" of Carson Park. However, the Kloeses contend that because the city sponsored the association, the city is unprotected under the recreational immunity statute. A sponsor is a person or organization that pays for or plans and carries out an activity. Hupf v. City of Appleton, 165 Wis.2d 215, 222, 477 N.W.2d 69, 72 (Ct.App.1991). Where a city takes team registrations, maintains the grounds, and provides umpires, scorekeepers, bases and balls, it is sufficiently involved to be a sponsor of a softball league. Id.

Here, it is undisputed that the city charges the association a per game fee and employs a maintenance worker to prepare the park for games. However, the association makes its own season schedule and decides what tournaments to participate in. It also selects its players, hires umpires for its games and furnishes its own equipment. Based on the undisputed facts, we conclude that the city is insufficiently involved with the association's baseball activities to fall within the definition of a sponsor.

The Kloeses also argue that because the association is an "owner" of the property under the recreational immunity statute, sponsors the baseball team and charges an admission fee, the recreational immunity statute does not apply to protect the association or the city. Because the association is a sponsor of the baseball team and also is an owner of the park as it occupies the property, see Hall v. Turtle Lake Lions Club, 146 Wis.2d 486, 431 N.W.2d 696 (Ct.App.1988), we agree that the association has no immunity under the recreational immunity statute. See sec. 895.52(1)(g), Stats. The association, as an owner that charges an admission fee, is not immune under the recreational immunity statute. See sec. 895.52(4)(a), Stats.

However, the fact that the association is unprotected by the recreational immunity statute has no bearing on the statute's application to the city. As indicated earlier, the city did not sponsor the association. Additionally, the fact that the association charged admission does not affect the city's immunity. The unambiguous language of sec. 895.52(4)(a), Stats., states that the city is subject to liability if it "charges an admission fee for spectators." The city charged the association a $14 per game fee to use the park, but it did not charge an admission fee for spectators.

Only the association charged an admission fee for spectators. We therefore conclude that the city is immune from liability for Kloes' injury under the recreational immunity statute, and the trial court...