Copeland v. Larson

• Decision Date: 06 March 1970
• Docket Number: No. 86,86
• Citation: 46 Wis.2d 337,174 N.W.2d 745
• Parties: Gary Lee COPELAND, as the Assignee of William F. Copeland and E. Burdelle Cope land, his natural parents, and individually as a minor, by Bruce Gillman, his guardian ad litem, Plaintiff-Respondent, v. Norman M. LARSON and Geraldine E. Larson, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 745

174 N.W.2d 745

46 Wis.2d 337

Gary Lee COPELAND, as the Assignee of William F. Copeland and E. Burdelle Cope land, his natural parents and individually as a minor, by Bruce Gillman, his guardian ad litem, Plaintiff-Respondent, v. Norman M. LARSON and Geraldine E. Larson, Defendants-Appellants.

No. 86.

Supreme Court of Wisconsin.

March 6, 1970.

Gary Lee Copeland brought this action for personal injuries he sustained on July 25, 1966, when he allegedly slipped while attempting to dive off a pier at Larson's Beach at Lake Waubesa in Dane county. Copeland, 16 and 1/2 years at the time, hit his head on the bottom of the lake, breaking his neck and causing him to be a quadriplegic. The complaint alleged a cause of action based on common-law negligence and the safe-place statute. The defendants Norman M. Larson and Geraldine E. Larson, who owned and operated Larson's Beach Resort, answered and moved for summary judgment dismissing the complaint on the ground that sec. 29.68, Stats., relieved them of the duty of care prescribed by the common law and the safeplace statute. The trial court held sec. 29.68 restated the common-law duties of a landowner and was not intended to change his duties owed to a business invitee and denied the motion for summary judgment. The defendants appeal.

Stafford, Rosenbaum, Rieser & Hansen, Madison, for defendants-appellants; Thomas M. Boykoff, Madison, of counsel.

Bruce Gilman, Arthur, Tomlinson & Gillman, Madison, for plaintiff-respondent.

HALLOWS, Chief Justice.

Larson's Beach Resort is located on the eastern shore of Lake Waubesa and consists of a general store with a short-order restaurant, boat launch and docking facilities, six rental cabins, general facilities, and the main T-shaped pier from which the plaintiff dove or slipped. It had been the custom of the general public for a number of years to swim and dive from this pier without restriction and without paying any charge because no such charge was ever imposed.

On the day of the accident, the plaintiff went to the resort with two of his friends in their swimming suits for a swim. Neither the plaintiff nor his friends stopped at the store before swimming. In his affidavit, the plaintiff stated he had been a patron of the store three or four years prior to the time of the accident when he was living in Dane county and he would have purchased cigarettes or food on the day of the accident if he had not been injured. The business at Larson's Beach grosses approximately $55,000 during the seven months of the year it is open; the store has from 10 to 100 swimmers per day as customers and carries candy, pop, and sandwiches for sale. In his affidavit, the defendant Norman Larson seems to qualify these statements of his by stating no substantial portion of the business catered to the swimmers.

The question is whether the general implied permission granted by the defendant resort owners to the plaintiff as a member of the public to use the swimming facilities was for a valuable consideration within the meaning of sec. 29.68, Stats. To understand the application of this section, ¹ a brief review of the common-law duties of a landowner in relation to persons coming on his land is necessary. Traditionally there were special rules which prevented the doctrine of negligence from being fully applied and were determined in the main by rigid categories of the legal status of the person entering upon the land.

At common law a landowner owed little or no duty to a trespasser. In Szafranski v. Radetzky (1966), 31 Wis.2d 119, 141 N.W.2d 902, 23 A.L.R.3d 1071, we stated, 'If the person is a trespasser, the owner of land has the duty to refrain from wilful and intentional injury. Shea v. Chicago, M. St. P. & P.R. Co. (1943), 243 Wis. 253, 257, 10 N.W.2d 135. He is not liable for injury to trespassers, as a general rule, caused by his failure to exercise reasonable care to put his land in safe condition for them, nor is he obliged to refrain from operations or activities that might cause injury (Prosser, Law of Torts (hornbook series, 3d ed.), p. 365, sec. 58) at least until the trespasser is discovered. Restatement, 2 Torts, p. 917, sec. 337, takes the position that there is a duty to warn known trespassers of highly dangerous conditions.' A person who has a privilege to enter upon land arising from the consent of the possessor of land but who goes on the land for his own purpose rather than for any purpose or interest of the possessor is a licensee. To such a person in Wisconsin the duty owed by the possessor of land is limited to keeping the property safe from traps and to refraining from active negligence; the owner has no obligation to a licensee in regard to dangers which are unknown to him. Greenfield v. Miller (1921), 173 Wis. 184, 180 N.W. 834, 12 A.L.R. 982; Szafranski v. Radetzky, supra; Scheeler v. Bahr (1969), 41 Wis.2d 473, 164 N.W.2d 310. A person who enters the land of another upon business which concerns the possessor of land and upon his invitation expressed or implied is considered an invitee. In some cases permission to enter upon the land was for a consideration. As to such a person the landowner owes a duty of ordinary care. Szafranski v. Radetzky, supra.

There is a conflict of opinion on the exact definition of an invitee and the basis of the owner's liability. Two theories have developed, i.e., the 'economic benefit' theory which embraces a business visitor and the 'invitation theory.' The economic benefit test imposes an obligation upon the occupier of land when he receives some actual or potential benefit as a result of the entry. The invitation theory imposes a duty based upon a holding out of the premises as suitable for the purpose for which the visitor entered. See 1959 Personal Injury Commentator 218, digesting Jewitt; Comment, Vol. 4, Villanova Law Rev. p. 256 (1958--1959). See also Land Occupants Liability to Invitees, Licensees & Trespassers, 31 Tenn.Law Rev. p. 485 (1964). The Restatement of Torts 2d, secs. 332 and 343, adopts the economic-benefit theory and finds an invitee relationship and a duty to keep the premises safe if the landowner receives any economic benefit from the presence of the visitor or expects to derive any such benefit. Potential pecuniary profit to the possessor of the land is sufficient. Prosser, p. 394, sec. 61. Wisconsin has adopted the invitational theory and finds a basis for the liability to the invitee in a representation implied from the encouragement the landowner gives to others to enter to further one of his purposes. To this court, the terms 'business invitee,' 'business visitor,' and 'invitee' are synonyms and we have held that when a person enters upon the premises of another and there is a benefit to the other person by the entry or some mutuality of interest, the visitor is an invitee. Greenfield v. Miller, supra; Schroeder v. Great Atlantic & Pacific Tea Co. (1936), 220 Wis. 642, 256 N.W. 559. See Schlicht v. Thesing (1964), 25 Wis.2d 436, 130 N.W.2d 763; Hupfer v. National Distilling Co. (1902), 114 Wis. 279, 90 N.W. 191. We recognize a growing tendency of courts to enlarge the duty of landowners in respect to negligence and to minimize the distinction between licensees and invitees either by enlarging what constitutes an economic benefit or by adopting the broader test of the invitation theory. See 'The Outmoded Distinction Between Licensees and Invitees,' 1958 Personal Injury Commentator, p. 90. Sec. 29.68 of the Wisconsin Statutes must be considered as a special reversal or exception to this tendency based upon a special public policy for a limited classification of users.

An examination of sec. 29.68, Stats., indicates the landowner owes the ordinary duty of reasonable care to those entering upon his land for certain recreational purposes only if the permission to enter the land is granted for a valuable consideration. To a license the liability for 'traps' and 'active Negligence' was altered by this statute to a liability for 'wilfull or malicious failure to guard or to warn against a dangerous condition, use, structure or activity,' and therefore the statute is in derogation of the common law and requires a strict construction. As to invitees, the landowner's liability is apparently not changed by sec. 29.68 unless a change is conceived in the term 'valuable consideration.' In construing what is meant by the use of this term in the statute, it is appropriate to look to the legislative history of the section. See Comment, Statutory Construction--Legislative Intent--Use of Intrinsic Aids in Wisconsin, Liddle, 1964 Wis.L.Rev. 660.

This section was originally enacted in 1963 and its legislative history is well summarized in a Note, Torts- Statutes-Liability of Landowner to Persons Entering for Recreational Purpose, Lehman, 1964 Wis.L.Rev. 705. It seems that forest owners had suffered substantial damage to forest reproduction as a result of excessive deer herds and in the late 1950's they initiated a campaign to promote deer hunting on their forest lands. Later the forest owners became concerned about their potential liability for injuries suffered by those whom they had invited upon their lands and sought a statutory limitation of their liability; sec. 29.68, Stats., resulted.

In drafting the section, the legislature had under consideration similar legislation from New York, Pennsylvania, Maine, and New Hampshire. ² The legislative file indicates this section was patterned after the Maine statute. ³ But the Wisconsin draftsman added berry picking, water sports, and recreational purposes. Thus the section covered more than deer hunters and was created to encourage the use of forest and farm lands for many outdoor recreational sports by restricting the common-law liability of the landowner to such users in various respects. In drafting this legislation it is argued the legislature also had before it the preamble of the New Hampshire statute which...