Goodson v. City of Racine, 238

• Decision Date: 21 December 1973
• Docket Number: No. 238,238
• Citation: 213 N.W.2d 16,61 Wis.2d 554
• Parties: J. Marion GOODSON, Respondent, v. CITY OF RACINE, a Wisconsin municipal corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 16

213 N.W.2d 16

61 Wis.2d 554

J. Marion GOODSON, Respondent, v. CITY OF RACINE, a Wisconsin municipal corporation, Appellant.

No. 238.

Supreme Court of Wisconsin.

Dec. 21, 1973.

Jack Harvey, City Atty., Edward A. Krenzke, Deputy City Atty., Racine, for appellant.

Moertl & Wilkins, Robert Wilkins, Milwaukee, for respondent.

HANLEY, Justice.

The sole issue presented on this appeal is whether the trial court erred in overruling the defendant's demurrer.

The defendant contends that since, pursuant to Sec. 29.68, Stats., ¹ an owner of property is not liable for injuries sustained on its property absent allegations and proof of a wilful or malicious failure to guard or warn against a dangerous condition, and since the municipality is an owner of property within Sec. 29.68, Stats. that the defendant's demurrer should have been sustained and the complaint dismissed for failure to state a cause of action in that no allegation of wilful or malicious action on the part of the city was made. While the defendant correctly asserts the effect of Sec. 29.68, Stats., we think that its contention is without merit in that a municipality is not an owner within the ambit of said statute.

In Copeland v. Larson (1970), 46 Wis.2d 337, 174 N.W.2d 745, the court went to great lengths to discuss the common law liabilities of landowners. The court determined that Sec. 29.68, Stats. was in derogation of the common law in that it altered the liability of landowners under certain circumstances and must be strictly construed to be consistent with the intent of the legislature. We think that a similar construction of Sec. 29.68, Stats. is necessary so as to determine the intent of the legislature as to whether or not the legislature intended governmental bodies to be deemed 'owners' within the ambit of the statute.

In construing Sec. 29.68, Stats. so as to determine whether a city is an owner within the statute, it is necessary to look at the legislative history and purpose so as to determine the intent of the legislature. ²

'This court is required to give effect to the intent of the legislature in interpreting statutes . . .' Stryker v. Town of La Pointe (1971), 52 Wis.2d 228, 232, 190 N.W.2d 178, 180.

The legislative history of Sec. 29.68, Stats. is well summarized in Copeland v. Larson, supra; and Note, Torts-Statutes-Liability of Landowners to Persons Entering for Recreational Purposes, Lehman, 1964 Wis.L.Rev. 705. The legislative history of the statute reveals that the purpose for which the statute was promulgated was to limit the liability of private landowners who opened their lands to the public.

'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.' Copeland v. Larson, supra, 46 Wis.2d at p. 344, 174 N.W.2d at p. 749.

Likewise, the legislative intent was described by the introductory language of Chapter 89, Laws of 1963, which specifically enumerated those landowners intended to be included within the ambit of the statute.

'An Act to create 29.68 of the statutes, relating to the limitations on liability of landowners who open Private lands for recreational purposes.' (emphasis supplied)

Thus, the legislative intent of the statute is obvious and we hold that Sec. 29.68, Stats. is not applicable to a municipality so as to limit its liability for persons injured while present on its property. The statute must be strictly construed so as to limit its effect to private landowners.

The defendant's counsel contends that Sec. 29.68, Stats. was passed after our decision in Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618 which abolished substantive governmental immunity in Wisconsin. Since, he continues, the thrust of the decision was to categorize municipalities as private persons in regard to its liability for tortious actions, and since the legislature is presumed to have acted with knowledge of our decisions, it must have been the intent of the legislature to include municipalities within the statutory meaning of 'owner.' We find no merit in this contention.

As was previously stated, the purpose of Sec. 29.68, Stats. was to encourage private landowners to open their property to the public for their recreational use. Since municipalities had previously and do presently encourage its citizenry to make use of its property, such an action on the part of the legislature to encourage municipalities to allow use of its property would be purposeless.

The defendant contends Sec. 29.68, Stats. has been applied to a public owner of lands. Reference is made to Garfield v. United States (1969, W.D.Wis.), 297 F.Supp. 891. The issue before the court in Garfield was whether small game hunting permits purchased for 50cents constituted 'valuable consideration' within the terms of the statute. The court concluded that such a payment did constitute 'valuable consideration' and that the government's motion for summary judgment which relied upon the limited liability under Sec. 29.68, Stats. be dismissed. However, as to those plaintiffs who had not purchased such permits and as such had not given valuable consideration, the court ruled that 'the government would be protected by Sec. 29.68, (Stats.) against liability for physical injuries to her directly caused by its negligence.' Garfield v. United States, supra at p. 889.

A careful study of Garfield, however, indicates that the issue of whether the government is an 'owner' within the statute was never raised. Rather, the court presumed that Sec. 29.68, Stats. is applicable to governmental bodies. In any event, this court is not required to rule in any fashion consistent to said court's construction of Wisconsin law.

The defendant city further contends that Sec. 29.68, Stats. as applied by the trial court is unconstitutional in that it constitutes a special law contrary to the requirement of art. IV, sec. 32 of the Wisconsin Constitution which requires:

'The legislature shall provide general laws for the transaction of any...