Auman v. School Dist. of Stanley-Boyd

• Decision Date: 27 November 2001
• Docket Number: No. 00-2356-FT.,00-2356-FT.
• Citation: 248 Wis.2d 548,635 N.W.2d 762,2001 WI 125
• Parties: Trista AUMAN, a minor, by her guardians, Kevin Auman and Rhonda Auman, and Kevin Auman and Rhonda Auman, in their individual capacity, Plaintiffs-Appellants, v. SCHOOL DISTRICT OF STANLEY-BOYD, Employers Mutual Casualty Co., Security Life Insurance Company of America and Clark County, Defendants-Respondents.
• Court: Wisconsin Supreme Court

248 Wis.2d 548

2001 WI 125

635 N.W.2d 762

Trista AUMAN, a minor, by her guardians, Kevin Auman and Rhonda Auman, and Kevin Auman and Rhonda Auman, in their individual capacity, Plaintiffs-Appellants, v. SCHOOL DISTRICT OF STANLEY-BOYD, Employers Mutual Casualty Co., Security Life Insurance Company of America and Clark County, Defendants-Respondents.

No. 00-2356-FT.

Supreme Court of Wisconsin.

Oral argument October 2, 2001.

Decided November 27, 2001.

For the plaintiffs-appellants there were briefs by Ann N. Knox-Bauer and Salm & Knox-Bauer, Stanley, and oral argument by Ann N. Knox-Bauer.

For the defendants-respondents there was a brief by Joel L. Aberg, Thomas J. Graham, Jr., and Weld, Riley, Prenn & Ricci, S.C., Eau Claire, and oral argument by Joel L. Aberg.

An amicus curiae brief was filed by George Burnett and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This case comes before this court on certification by the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1999-2000).¹ The Circuit Court for Chippewa County, Roderick A. Cameron, Circuit Court Judge, granted summary judgment to the School District of Stanley-Boyd, Employers Mutual Casualty Company, Security Life Insurance Company of America, and Clark County (collectively, the defendants), dismissing the complaint of Trista Auman, an 11-year-old child, and her guardians, Kevin and Rhonda Auman (collectively, the plaintiffs). The circuit court concluded that the suit was barred by Wis. Stat. § 895.52, the recreational immunity statute. We reverse the order of the circuit court and remand the cause for further proceedings not inconsistent with this opinion.

¶ 2. The only question presented in this case is one of statutory interpretation: Is a school district immune from liability under Wisconsin's recreational immunity statute, Wis. Stat. § 895.52, for injuries a student suffered during a mandatory school recess period when the injuries were caused by the alleged negligent inspection and maintenance of a school playground and alleged negligent supervision of the student? We conclude that § 895.52 does not apply to the present case and a cause of action is stated when a student sustains injuries on a school playground during a mandatory school recess period as a result of the school district's negligence. Section 895.52 does not bar the suit because the student who is injured during a mandatory school recess period did not "enter" the school district's "property to engage in a recreational activity" as those words are used in § 895.52(2)(a).² Trista entered the school property for educational purposes as required by the state's compulsory school attendance and truancy laws.³ Furthermore, her participation in recess activities was required as part of the school district's curriculum.⁴ Therefore, Trista was not engaging in a recreational activity under the statute.

I

¶ 3. For the purposes of summary judgment, the facts are not in dispute. Trista Auman, an 11-year-old child, broke her leg during a mandatory school recess period while sliding down a snow pile located on the school playground. According to Trista's deposition, she was running, jumping, and sliding on the snow pile because it was fun. Ms. Patricia LaMarche, a playground aide, stated that about three days before Trista was injured, the playground supervisors agreed that the snow pile presented a safety issue and that the children should not be allowed to play on it. Nevertheless, Ms. Diana Halterman, the playground supervisor on duty when Trista was injured, did not stop Trista from sliding on the snow pile.

¶ 4. The plaintiffs' complaint alleges that the school district negligently inspected and maintained its premises and failed to provide adequate supervision during the mandatory recess period. The defendants moved for summary judgment, claiming governmental immunity and recreational immunity. The circuit court denied summary judgment on the ground of governmental immunity and granted summary judgment in favor of the defendants on the ground that the recreational immunity statute barred the plaintiffs' claims.⁵

[1, 2]

¶ 5. This court reviews the grant of summary judgment independent of the determination rendered by the circuit court, applying the same methodology as the circuit court. Summary judgment is appropriate if there is no genuine issue about any material fact and the moving party is entitled to judgment as a matter of law.⁶ The parties agree that for purposes of the summary judgment the facts are not in dispute.

II

[3]

¶ 6. The issue presented in this case is one of statutory interpretation; we apply the statute to the undisputed facts. This court determines this question of law independent of the circuit court, but benefits from its analysis.

¶ 7. Section 895.52(2) of the statutes provides, in part, that a property owner does not owe to any person who enters the owner's property to engage in a recreational activity a duty to keep the property safe for recreational activities and is otherwise immune from liability for injuries to any person engaged in recreational activities on the owner's property.

¶ 8. Section 895.52(1)(g) of the statutes sets forth a three-part definition of recreational activity.⁷ The first part of the section defines recreational activity as "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity." The second part of the statutory definition of recreational activity lists 29 specific activities denominated as recreational, including tobogganing and sledding. The third part of the statutory definition broadly adds "and any other outdoor sport, game or educational activity."

[4, 5]

¶ 9. It is immediately clear that sliding down a snow pile is not one of the activities listed in § 895.52(1)(g). The fact that Trista's activity is not a listed recreational activity does not determine whether the activity is a recreational activity under the statute. The legislature recognized that it would be impossible to list in the statute every recreational activity. The legislature therefore provided examples of the kinds of activities that are included as recreational activities. The legislature also expressed its intent that courts interpret the statutory definition of recreational activity to include those activities that are substantially similar to the listed activities or undertaken under substantially similar circumstances as the listed activities. Thus, the legislature inferentially excluded activities from the statutory definition that lack commonality with the listed activities.⁸ ¶ 10. Sliding down a snow pile is, in the abstract, substantially similar to sledding and tobogganing, which are among the 29 listed activities in the statute at Wis. Stat. § 895.52(1)(g), and Trista stated she was "having fun." Sliding on the snow pile is an outdoor activity and is undertaken for pleasure. "With limited exception, all outdoor activities that children engage in during their idle hours might constitute a recreational activity under § 895.52(1)(g)."⁹ That Trista's activity is similar to one of the listed recreational activities and that Trista was having fun does not end our inquiry to determine the application of the recreational immunity statute.

¶ 11. This court has wrestled with applying the recreational immunity statute to varied fact situations since its enactment. The line between recreational and non-recreational activities is difficult to draw under Wis. Stat. § 895.52, and the issue has been litigated with some frequency.¹⁰ We continue to be frustrated in our efforts to state a test that can be applied easily because of the seeming lack of basic underlying principles in the statute.¹¹ [6-10]

¶ 12. We have recognized that each recreational immunity case poses an intensely fact-driven inquiry.¹² We have in previous cases stated the test to determine a recreational activity in a number of different, but similar, ways. We repeat the tests we have stated before. Although the injured person's subjective assessment of the activity is pertinent, it is not controlling.¹³ A court must consider the nature of the property, the nature of the owner's activity, and the reason the injured person is on the property.¹⁴ A court should consider the totality of circumstances surrounding the activity, including the intrinsic nature, purpose, and consequences of the activity.¹⁵ A court should apply a reasonable person standard to determine whether the person entered the property to engage in a recreational activity.¹⁶ Finally, a court should consider whether the activity in question was undertaken in circumstances substantially similar "to the circumstances of recreational activities set forth in the statute."¹⁷

¶ 13. In the present case it is helpful to consider the totality of the circumstances and whether the activity in question was undertaken in circumstances substantially similar to the circumstances of recreational activities set forth in Wis. Stat. § 895.52. Trista entered the school district's property to attend school for educational purposes in compliance with Wisconsin law. A critical circumstance is that the compulsory school attendance law requires that "any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours."¹⁸ An adult's failure to comply with the compulsory school attendance law subjects the adult to criminal penalties.¹⁹ Children who do not attend school are truants and are also subject to penalties.²⁰ In addition, Trista's participation in recess was mandatory. The school district required Trista to participate in recess out of doors as a part of its curriculum. The circumstances surrounding Trista's sliding down the snow pile are not...