Cords v. Anderson, s. 75-140 and 75-141

• Decision Date: 07 February 1978
• Docket Number: Nos. 75-140 and 75-141,s. 75-140 and 75-141
• Citation: 262 N.W.2d 141,82 Wis.2d 321
• Parties: Jane CORDS, Erwin T. Cords, Norina Boyle, and John J. Boyle, Respondents, v. Floyd K. ANDERSON, Individually in his respective capacity as public officer and employee of the State of Wisconsin, Appellant. Jane CORDS, Erwin T. Cords, Norina Boyle and John J. Boyle, Plaintiffs- Respondents, Susan Henry and Roland Henry, Plaintiffs-Appellants, v. Floyd K. ANDERSON, Individually in his capacity as public officer and employee of the State of Wisconsin, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 141

262 N.W.2d 141

82 Wis.2d 321

Jane CORDS, Erwin T. Cords, Norina Boyle, and John J. Boyle, Respondents, v. Floyd K. ANDERSON, Individually in his respective capacity

as public officer and employee of the State of

Wisconsin, Appellant.

Jane CORDS, Erwin T. Cords, Norina Boyle and John J. Boyle, Plaintiffs- Respondents, Susan Henry and Roland Henry, Plaintiffs-Appellants, v. Floyd K. ANDERSON, Individually in his capacity as public

officer and employee of the State of Wisconsin,

Defendant-Respondent.

Nos. 75-140 and 75-141.

Supreme Court of Wisconsin.

Feb. 7, 1978.

PER CURIAM

(on motion for rehearing).

The motion for rehearing is denied. Because, however, the brief of the Attorney General refers to the provisions of sec. 29.68(1), Stats., we comment briefly on that statute only in respect to its applicability to the facts of this case.

The statute, originally adopted in 1963 purports to except certain landowners from liability to persons using premises for recreational purposes. It specifically recites that an owner of land covered by the statute:

". . . 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 or recreational purposes, or to give warning of any unsafe condition . . .."

As this court pointed out in Goodson v. Racine, 61 Wis.2d 554, 213 N.W.2d 16 (1973), the statute as it then existed did not include public owners of land within the protected class; and we specifically so held, stating, "The statute must be strictly construed so as to limit its effect to private landowners." (Emphasis supplied.) (at 559, 213 N.W.2d at 19)

In Cords v. Ehly, 62 Wis.2d 31, 214 N.W.2d 432 (1974), we considered the demurrer of the defendants in the very case before the court. We reiterated the holding of Goodson, supra, stating that, "sec. 29.68, Stats., is completely inapplicable here and does not bar the plaintiffs' action." (at 35, 214 N.W. at 434)

This holding is the law of the present case of Cords v. Anderson, in that no special immunity was afforded to the state as a landowner, or to an employee of the state at the time the injuries were sustained in Parfrey's Glen in 1970.

The statute was amended by the Laws of 1975, ch. 179. This amendment redefined "owners" to provide:

"29.68(5)(b) 'Owner' means any private citizen, a municipality as defined under s. 144.01(12), the state, or the U. S. government, and for purposes of liability under s. 270.58, any employe of the foregoing."

Accordingly, were an injury of the type sustained here to occur after the effective date of the 1975 amendment, consideration would have to be given to the effect of the new definition of "owner," which now includes the state, and "for purposes of liability under s. 270.58, ¹ any employe of the foregoing."

Because this 1975 amendm...