823 F.2d 1193 (7th Cir. 1987), 86-1413, Smith v. Sno Eagles Snowmobile Club, Inc.
|Citation:||823 F.2d 1193|
|Party Name:||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.|
|Case Date:||July 16, 1987|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Argued Sept. 24, 1986.
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.
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).
* * *
* * *
(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...
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