Carini v. ProHealth Care, Inc.

• Decision Date: 28 July 2015
• Docket Number: No. 2014AP1131.,2014AP1131.
• Parties: Donna CARINI and Dominic Carini, Plaintiffs–Respondents, Aurora Health Care, Inc., Wisconsin Physicians Service Ins. Corp., Involuntary–Plaintiffs, v. PROHEALTH CARE, INC. and The Medical Protective Company, Defendants–Appellants.
• Court: Wisconsin Court of Appeals

364 Wis.2d 658

869 N.W.2d 515

Donna CARINI and Dominic Carini, Plaintiffs–Respondents^†

Aurora Health Care, Inc., Wisconsin Physicians Service Ins. Corp., Involuntary–Plaintiffs

v.PROHEALTH CARE, INC. and The Medical Protective Company, Defendants–Appellants.

No. 2014AP1131.

Court of Appeals of Wisconsin.

Submitted on Briefs April 14, 2015.

Opinion Filed July 28, 2015.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Lori Gendelman and Jason J. Franckowiak of Otjen, Gendelman, Zitzer, Johnson & Weir, S.C., of Waukesha.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Kevin R. Martin and Drew J. DeVinney of Martin Law Office, S.C., of Oak Creek.

Before CURLEY, P.J., KESSLER, J., and THOMAS CANE, Reserve Judge.

Opinion

CURLEY, P.J.

¶ 1 This case involves the recreational immunity statute, Wis. Stat. § 895.52 (2007–08).¹ Donna Carini, an employee of ProHealth Care, Inc., and her husband, Dominic Carini, sued ProHealth Care for injuries Donna sustained at her employer's company picnic, which was hosted at the Milwaukee County Zoo parking lot.² Carini was in the parking lot and walking to the food tent when she tripped over a power cord and fractured her shoulder

. ProHealth Care moved for summary judgment and later for dismissal or judgment notwithstanding the verdict on Carini's subsequent negligence claim on the basis of recreational immunity, but the trial court denied the motions.

¶ 2 The issues before us on appeal are: (1) whether Carini was engaged in a “recreational activity” when she injured her shoulder; and (2) whether the alleged negligence was related to a condition or maintenance of the land on which Carini fell. For the reasons that follow, we conclude that because Carini was engaged in a recreational activity and because the alleged negligence was related to the parking lot's condition, the trial court erred in denying ProHealth Care's motions. Moreover, because we conclude that the recreational immunity statute bars Carini's negligence claim, we need not address the parties' arguments regarding whether the trial court erroneously exercised its discretion by excluding certain medical testimony about Carini's injuries. See Raasch v. City of Milwaukee, 2008 WI App 54, ¶ 2, 310 Wis.2d 230, 750 N.W.2d 492. Therefore, we reverse the trial court's denial of ProHealth Care's motions and remand with directions to dismiss Carini's negligence claim against ProHealth Care.

Background

¶ 3 On September 21, 2008, ProHealth Care hosted a picnic for its employees in the Lion parking lot of the Milwaukee County Zoo.³ In the center of the picnic area was a large, rectangular 80' x 150' tent with seating for 1200 people. Located near one side of the large tent was a smaller tent with four tables and some portable toilets. Located near another side of the large tent were a buffet tent and a food preparation tent. Located near yet another side of the large tent were a beverage tent and a stage for the band that ProHealth Care had hired.

¶ 4 While near the band and en route to the picnic's food tent, Carini tripped and fell over a power cord extending from the stage, fracturing her shoulder. The cord ran from the stage to a small building adjacent to the parking lot and was supposed to be covered, but it was not.

¶ 5 Carini subsequently sued ProHealth Care for negligence. The second amended complaint alleged that ProHealth Care “failed to properly secure the subject cord to the sidewalk ... so as to prevent the risk of injury or harm to users of the sidewalk, failed to provide warnings that the subject unsecured cord was placed across the sidewalk, and was otherwise negligent.”

¶ 6 ProHealth Care moved for summary judgment based on recreational immunity, but the trial court denied the motion. A jury trial took place, and the jury found ProHealth Care negligent. Following trial, ProHealth Care renewed its arguments on recreational immunity, requesting dismissal or judgment notwithstanding the verdict pursuant to Wis. Stat. § 805.14(5). The trial court denied the motion, and ProHealth Care now appeals.

Analysis

¶ 7 ProHealth Care challenges the denial of its motion for summary judgment and its motion for dismissal or judgment notwithstanding the verdict pursuant to Wis. Stat. § 805.14(5). We review de novo the denial of ProHealth Care's motions, employing the same methodology as the trial court. See Smaxwell v. Bayard, 2004 WI 101, ¶ 12, 274 Wis.2d 278, 682 N.W.2d 923 (summary judgment); Dakter v. Cavallino, 2014 WI App 112, ¶ 17, 358 Wis.2d 434, 856 N.W.2d 523 (motions under Wis. Stat. § 805.14 ). “We need not repeat [the summary judgment] methodology here, except to note that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” See Beerbohm v. State Farm Mut. Auto. Ins. Co., 2000 WI App 105, ¶ 6, 235 Wis.2d 182, 612 N.W.2d 338 ; Wis. Stat. § 802.08(2). In the case before us, where no disputed issues of material fact exist, “ ‘we need only determine whether the moving party is entitled to judgment as a matter of law.’ ” See Beerbohm, 235 Wis.2d 182, ¶ 6, 612 N.W.2d 338. (citation omitted). “Additionally, we note that whether an entity is immune from liability under the recreational immunity statute involves the application of a statute to undisputed facts and thus is a question of law we review de novo. ” See Kautz v. Ozaukee Cnty. Agric. Soc., 2004 WI App 203, ¶ 8, 276 Wis.2d 833, 688 N.W.2d 771 (italics added).

¶ 8 Specifically, ProHealth Care renews its argument that Carini's case must be dismissed because ProHealth Care is shielded from liability by the recreational immunity statute. The recreational immunity statute, Wis. Stat. § 895.52, provides that, barring exceptions not relevant here, no property owner is liable for any injury suffered by a person allowed to engage in a recreational activity on the owner's property. See § 895.52(2). The statute was created “to encourage property owners to open their lands for recreational activities by removing a property user's potential cause of action against a property owner's alleged negligence.” See Kautz, 276 Wis.2d 833, ¶ 9, 688 N.W.2d 771. To further that goal we must liberally construe the statute in favor of property owners. See id.

¶ 9 Wisconsin Stat. § 895.52(2) provides:

No duty; immunity from liability. (a) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owner's property to engage in a recreational activity:

1. A duty to keep the property safe for recreational activities.

2. A duty to inspect the property, except as provided under s. 23.115(2).

3. A duty to give warning of an unsafe condition, use or activity on the property.

(b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner's property or for any death or injury resulting from an attack by a wild animal.

¶ 10 In this case, the questions the parties pose are whether: (1) Carini was engaged in a “recreational activity,” see Wis. Stat. § 895.52(1)(g) ; and (2) whether ProHealth Care's negligence was related to the condition or maintenance of the land, see Held v. Ackerville Snowmobile Club, Inc., 2007 WI App 43, ¶ 9, 300 Wis.2d 498, 730 N.W.2d 428 (“One circumstance that may affect immunity is whether a property owner's allegedly negligent act is related to the condition or maintenance of the land.”). The parties agree that ProHealth Care was an “owner” under the statute. See § 895.52(1)(d) (defining “owner” as a “person, including a ... nonprofit organization, that owns, leases or occupies property”). Moreover, they do not argue that any of the situations in subsections (3) to (6) apply to exclude immunity. See § 895.52(3–6).

(1) Carini was engaged in a “recreational activity” when she tripped and fell in the picnic area.

¶ 11 We turn first to the question of whether Carini was engaged in a “recreational activity.” See Wis. Stat. § 895.52(1)(g). Carini does not argue that the act of participating in the picnic was not “recreational.”⁴ Indeed, “picnicking” is a recreational activity under the statute. See id. Rather, Carini claims that she was not engaged in a recreational activity because she was merely walking from her car to the picnic and had not yet started to participate in the picnic when she fell. She claims that she “was not walking for exercise, pleasure or to enjoy the scenery,” but for the “purely utilitarian” purpose of getting from her car to the picnic. She further argues that to “rule otherwise would ... provide boundless immunity during the injured party's ... traveling.” We disagree.

¶ 12 Our case law makes clear that the act of walking to or from an immune activity constitutes recreational activity. See Sauer v. Reliance Ins. Co., 152 Wis.2d 234, 239–40, 448 N.W.2d 256 (Ct.App.1989) (“ ‘walking down the river to go fishing’ ” even when injured party “was not actually fishing at the time of the accident” constituted “ ‘recreational activity’ within the meaning of the statute”); Linville v. City of Janesville, 184 Wis.2d 705, 717, 516 N.W.2d 427 (1994) (person who drowned in municipal pond was engaged in a “recreational activity” while at the pond to scope out a fishing spot for the next day); see also Hupf v. City of Appleton, 165 Wis.2d 215, 221–22, 477 N.W.2d 69 (Ct.App.1991) (“walking to or from an immune activity does not alter the landowner's status”). Therefore, while Carini may not have started eating or socializing when she fell, because she was walking in the picnic area on her way to partake in the festivities, she was engaged in a recreational activity. Moreover, Carini's fear that our ruling will provide “boundless immunity” during an injured party's traveling is unfounded considering the facts...