Smith v. Sno Eagles Snowmobile Club, Inc., 86-1413

• Decision Date: 16 July 1987
• Docket Number: No. 86-1413,86-1413
• Citation: 823 F.2d 1193
• Parties: Marlene SMITH and Gerald Smith, Plaintiffs-Appellants, v. SNO EAGLES SNOWMOBILE CLUB, INC., General Casualty Company of Wisconsin, Headwaters Trails, Inc., and Western World Insurance Company, Inc., Defendants-Appellees, and Michelle M. Hafer and State Farm Mutual Automobile Insurance Company, Defendants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1193

823 F.2d 1193

Marlene SMITH and Gerald Smith, Plaintiffs-Appellants, v. SNO EAGLES SNOWMOBILE CLUB, INC., General Casualty Company

of Wisconsin, Headwaters Trails, Inc., and Western

World Insurance Company, Inc.,

Defendants-Appellees,

and

Michelle M. Hafer and State Farm Mutual Automobile Insurance

Company, Defendants.

No. 86-1413.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 1986.

Decided July 16, 1987.

Alyson K. Sloan, Warshafsky, Rotter, Tarnoff & Gesler, Milwaukee, Wis., for plaintiffs-appellants.

John M. Swietlik, Jr., Cook & Franke, S.C., Milwaukee, Wis., Timothy F. Mentlowski, Riordan, Crivello, Carlson & Mentlowski, Milwaukee, Wis., for defendants-appellees.

Before WOOD, COFFEY, and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

Marlene and Gerald Smith, the plaintiffs-appellants, appeal the district court's grant of summary judgment in favor of the Sno Eagles Snowmobile Club, Inc., General Casualty Company of Wisconsin, Headwaters Trails, Inc., and Western World Insurance Co., Inc. We affirm.

I

On December 30, 1983, the plaintiff-appellant Marlene Smith was injured when the snowmobile she was driving was struck by an automobile operated by Michelle Hafer in an area described as a snowmobile trail ("Two East Trail") running parallel to Wisconsin State Highway 70 in Eagle River, Wisconsin (Vilas County), and intersecting with the Hafer's private driveway. The snowmobile trail was planned and constructed by the Sno Eagles Snowmobile Club, Inc. ("Sno Eagles") and was groomed by Headwaters Trails, Inc. ("Headwaters"), a snowmobile trail grooming organization. Both Sno Eagles and Headwaters are volunteer non-profit organizations who operate in the Eagle River, Wisconsin area. Sno Eagles' primary purpose is to promote the establishment and maintenance of snowmobile trails in the Eagle River area while Headwater's main purpose is to groom the existing snowmobile trails in the Eagle River area. The Two East Trail was shown as operational on the 1983-84 trail maps ¹ but was not complete as a number of the directional and warning signs had not been installed. Mrs. Smith and her husband brought suit against Hafer, Sno Eagles, Headwaters, and their insurers alleging that each party's negligence was a substantial factor contributing to her serious personal injuries.

The land upon which Sno Eagles and Headwaters established and groomed the snowmobile trails included stretches of privately as well as governmentally owned land. The point where the accident occurred is owned by the United States Forest Service. Sno Eagles' procedure was and is to gain permission from the landowners to construct snowmobile trails through their property. Once the trail is constructed and operational, signs are placed to designate the trail pathway. In addition, warning signs are placed at driveway and roadway intersections. After the trail is completed and the necessary signs are in place, personnel of Headwaters, Inc. groom it on a regular basis. Although Headwaters' primary function is the grooming of the trails, at times it also engages in such related activities as aiding in the removal of tree stumps and bulldozing on the snowmobile paths.

Sno Eagles constructed the Two East trail where Mrs. Smith's injury occurred. Headwaters' personnel groomed the trail on December 22 and 27, 1983. At the time of the accident the trail was only partially marked as a number of the directional and warning signs had not been installed; in addition, the intersection where the accident occurred was not marked with warning signs. James Ayers, the "trail boss of Sno Eagles," in his deposition stated that the intersection where Mrs. Smith was injured was not marked because the Sno Eagles had run short of signs. Asa Roxbury, the president of Sno Eagles at the time of the accident, stated in his deposition that the trail was not open because it was still under construction.

On June 26, 1984, the Smiths brought this federal suit based on diversity against Sno Eagles Snowmobile Club, Inc. and Headwaters Trails, Inc. and their respective insurers. The defendants moved for summary judgment claiming that the Wisconsin Recreational Use Statute in effect at the time of the accident, Wis.Stat. Sec. 29.68 exempted them from liability. Section 29.68 provided:

"29.68 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, except as provided in sub. (3).

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(3) LIABILITY. This section does not limit the liability which would otherwise exist:

(a) For wilful or malicious failure to guard or to warn against a dangerous condition, use, structure or activity."

The district court granted the appellees' motion for summary judgment finding that no genuine issue of material fact existed and the appellees were entitled to judgment as a matter of law since they were exempt from liability under Sec. 29.68. Smith v. Sno Eagles Snowmobile Club, Inc., 625 F.Supp. 1579 (E.D.Wis.1986). The trial court found that "[n]on-profit organizations such as Sno Eagles and Headwater which enter land for a limited purpose are occupants within the meaning of Sec. 29.68, and that their liability is limited by that statutory section." Id. at 1582-83. The court also found that the plaintiffs, the Smiths, had not established that Sno Eagles' and Headwaters' actions in neglecting to properly maintain and mark the snowmobile trails were willful: "Sno Eagles [sic] and Headwaters' alleged actions in maintaining and marking snowmobile trails do not fall within the rubric of willfulness ..." Id. at 1583. ²

The appellants appeal the district court's grant of summary judgment raising two issues: (1) did the trial court properly find Sno Eagles and Headwaters to be occupants of Two East Trail thus entitling them to immunity under Wisconsin's landowners recreational use immunity statute, Wis.Stat. Sec. 29.68, and (2) did the district court properly find that Sno Eagles' and Headwaters' conduct did not constitute willfulness. ³

II

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "The primary purpose of a grant of summary judgment is to avoid unnecessary trials when there is no genuine issue of material fact in dispute." Wainwright Bank & Trust Co. v. Railroadmen's Federal Savings and Loan Association of Indianapolis, 806 F.2d 146, 149 (7th Cir.1986). In reviewing the trial judge's grant of summary judgment, we must construe the facts alleged in the light most favorable to the plaintiffs-appellants (Smiths), who opposed the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Dale v. Chicago Tribune Co., 797 F.2d 458 (7th Cir.1986).

This case deals with the interpretation of a Wisconsin statute. Although the construction to be given a statute is an issue of law "[w]e follow the practice in diversity cases of giving substantial deference to the district court's interpretation of the law of the state in which the judge sits." Goldstick v. ICM Realty, 788 F.2d 456, 466 (7th Cir.1986); see also Moore v. Tandy Corp., 819 F.2d 820 (7th Cir.1987).

The appellants argue that the district court erred in finding Sno Eagles and Headwaters to be protected by the Wisconsin Landowners Recreational Use Immunity Statute, Wis.Stat. Sec. 29.68 since neither Sno Eagles nor Headwaters "stands in such relation to the land to be included within the legislative purpose of the statute and neither entity is an occupant of Two East Trail." ⁴

We are mindful in analyzing the Wis.Stat. Sec. 29.68 that "[i]t is a basic rule of statutory contruction that in construing statutes, effect is to be given, if possible, to each and every word, clause and sentence in a statute, and a construction that would result in any portion of a statute being superfluous should be avoided wherever possible." County of Columbia v. Bylewski, 94 Wis.2d 153, 164, 288 N.W.2d 129 (1980). It is well established that "The purpose of statutory construction is to ascertain the intent of the legislature." In Matter of Estate of Walker, 75 Wis.2d 93, 104, 248 N.W.2d 410 (1977). A court must avoid construing a statute in a way that would undermine and defeat the legislative intent of the statute.

The Wisconsin Supreme Court in LePoidevin v. Wilson, 111 Wis.2d 116, 130, 330 N.W.2d 555 (1983), stated that "The legislative purpose of Sec. 29.68 is 'to encourage the use of forest and farmlands for many outdoor recreational sports by restricting the common-law liability of the landowner to such users in various respects.' " (quoting Copeland v. Larson, 46 Wis.2d 337, 344, 174 N.W.2d 745 (1970)). Section 29.68(1) "[p]rotects persons who allow their land to be used for certain recreational purposes." Strong v. Wisconsin Chapter of Delta Upsilon, 125 Wis.2d 107, 110, 370 N.W.2d 285 (Ct.App.1985). As we noted earlier, section 29.68 provides:

"29.68 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, except as provided in sub. (3).

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(3) LIABILITY. This section does not limit the liability which...