Hines v. Adams County Bd.
| Decision Date | 22 May 1986 |
| Citation | 132 Wis.2d 470,390 N.W.2d 114 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. JEFFREY C. HINES, BILLIE L. HINES, CAROL HINES and AETNA LIFE & CASUALTY COMPANY, Laintiffs-Appellants, v. ADAMS COUNTY BOARD, ADAMS COUNTY PARK & SNOWMOBILE COMMISSION, WISCONSIN RIVER POWER COMPANY, FRANK MEAD and GENERAL CASUALTY INSURANCE COMPANY, Defendants-Respondents. 84-2279, 84-2280. |
| Court | Wisconsin Court of Appeals |
Appeal from judgments of the circuit court for Adams county: Raymond E. Gieringer, Judge.
Before GARTZKE, P.J., KYKMAN, J. and EICH, J.
Jeffrey, Billie, and Carol Hines and Aetna Life & Casualty Company appeal from summary judgments dismissing their claims against the Wisconsin River Power Company, and the Adams County Board and Park and Snowmobile Commission, Frank Mead and the General Casualty Insurance Company. 1 The issues are whether the court erred in permitting Wisconsin River Power to file its motion for summary judgment more than eight months after commencement of the action and whether the summary judgment motions were erroneously granted. Because we conclude that any error in granting the power company leave to file was harmless, and the summary judgment motions were properly granted, we affirm.
In July, 1979, Jeffrey Hines, a minor, and his family camped at Petenwell County Park on the shores of the Petenwell Flowage. Jeffrey was badly injured while attempting to do a somersault into the lake. He testified at a deposition that the injury occurred when he struck an object floating at or just below the surface in about three feet of water. No one could identify the object.
Petenwell Park is a 50-acre tract owned by the power company and leased to the county for $100.00 per year. The park's public facilities consist of a beach, boat ramp, shelter building, showers, toilets, campsites and connecting roads. The county rents campsites for four dollars per night plus a nominal fee for electricity. It does not charge for use of the other facilities.
Petenwell Flowage is an impoundment of the Wisconsin River behind the power company's Petenwell dam. The power company owns virtually all of the land surrounding the flowage, and all of the bottom land. The park is not bottom land.
Jeffrey, his parents, and their insurer--Aetna Life & Casualty--brought these actions against the county and the power company, alleging that Jeffrey's injuries were the result of respondents' failure to provide suitable warnings regarding the dangers involved in using the park's swimming areas. Respondents filed untimely motions for summary judgment, claiming immunity under sec. 29.68, Stats. (1981). 2 The court granted the county's motion to enlarge the time in which to file their motion. The power company filed its motion for summary judgment without requesting leave to do so. Appellants objected to the motion as untimely. The court granted the power company's and the county's motions for summary judgment.
. . . .
Appellants contend that the court's grant of leave to the power company to file its summary judgment motion more than eight months after commencement of this action was erroneous absent a motion for enlargement of time. Sec. 802.08(1), Stats. 3 Section 801.15(2)(a), Stats., provides in part: 'When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms.' (Emphasis added.)
The power compay made no such motio. However, we conclude that the motion, had it been made, would probably have been granted. Thus the alleged error--if there is one--was harmless. Jax v. Jax, 73 Wis.2d 572, 582, 243 N.W.2d 831, 837 (1976) error is not prejudicial unless, but for the error, there probably would have been a different result.)
The grant or denial of an enlargement of time is a matter solely within the sound discretion of the trial court. Hedtcke v. Sentry Ins. Co., 109 Wis.2d 461, 470, 326 N.W.2d 727, 732 (1982). We will not disturb the court's decision unless an abuse of discretion is clearly shown. Id. To find an abuse of discretion we must determine either that discretion was not exercised or that there was no reasonable basis for the trial court's decision. Wisconsin Public Service Corp. v. Krist, 104 Wis.2d 381, 395, 311 N.W.2d 624, 631 (1981).
Because the court granted the county leave to file, as to them, it exercised its discretion. We have already concluded that the court's decision to rule on the power company's motion without a prior motion to enlarge time, if error, was harmless. The court did not expressly set out reasons for its decision. We must therefore independently review the record for reasonable bases sufficient to sustain the court's decision. Loomans v. Milwaukee Mut. Ins. Co., 38 Wis.2d 656, 662, 158 N.W.2d 318, 320 (1968).
The central purpose of summary judgment is to obviate the need for trial where there is no genuine issue as to material facts. Heck & Paetow Claim Service, Inc. v. Heck, 93 Wis.2d 349, 355, 286 N.W.2d 831, 834 (1980). The trial court had not yet issued a scheduling order, and no date had been set for trial. There was no delay of proceedings, and the motions tested whether appellants had enough evidence to prevail without the necessity of an extended trial. The court's act advanced termination of the litigation and prevented wasting the court's time on a trial doomed to failure.
We are not free to substitute our discretion for that of the trial court. Barrera v. State, 99 Wis.2d 269, 282, 298 N.W.2d 820, 826 (1980), cert. denied, 451 U.S. 972 (1981). Because there was a reasonable basis for the court's discretionary act, we will sustained its decision. Having done so, we turn to the grant of respondents' summary judgment motions.
undisputed facts which entitled them to summary judgments
under sec. 29.68, Stats. (1981)
. That section limits the civil liability of landowners
under certain conditions. In Copeland v. Larson, 46 Wis.2d 337, 344, 174 N.W.2d 745, 749 (1970)
, the court said that the legislative intent of sec. 29.68
was 'to encourage the use of forest and farmlands for the
many outdoor recreational sports by restricting the
common-law liability of the landowner to such users in
various respects.' The statute, enacted in 1963, was one of
the first of its kind in the county. Its purpose is
admittedly harsh--to deny recovery to injured persons in
order to permit a more free use of land by the public. It
is a stereotypical example of legislative balancing of
competing interests.
When reviewing a grant of summary judgment, we independently follow the same methodology as the trial court. That methodology is detailed in many cases, such as In re Cherokee Park Plat, 113 Wis.2d 112, 116, 334 N.W.2d 580, 582-83 (Ct.App. 1983). We first examine the pleadings to see if a claim is stated.
Appellants' amended complaint alleges that Jeffrey Hines dove into the waters of Petenwell Lake at Petenwell County Park, struck his head on the lake bottom, and suffered severe spinal injuries. 4 They allege that the injuries were 'proximately caused' by the negligence of the county and the power company in failing to erect and maintain adequate warning signs or otherwise notify users of the lake about the dangers of swimming there. Liberally construed, the complaint states a claim. respondents' answers advance the affirmative defenses of immunity under sec. 29.68, Stats. (1981). Because the pleadings are not conclusive as to that statute's applicability, we turn to respondents' affidavits and proofs to determine whether facts exist sufficient to demonstrate a prima facie case for statutory immunity.
The affidavit of an Adams County Board Supervisor states that the county rented the park land from the power company for $100.00 per year, and contains as an exhibit a copy of the lease. The affidavits of the Petenwell Park Manager and the Adams County Parks and Recreation Director state that the park is open to the public for a variety of recreational activities including camping, swimming and other water sports; and that a daily fee of $4.00 is charged only for the use of a park campsite. The affidavit of the county's attorney refers to portions of the deposition of Jeffrey and Carol Hines to the effect that Jeffrey and his family had camped at the county park the weekend of the accident, and had paid $4.00 for use of a campsite and 50 cents for electricity, and that Jeffrey was engaged in recreational activities in the lake when he was injured. The power company's motion for summary judgment incorporates the same affidavits.
These affidavits make out a prima facie case for statutory immunity for each respondent. The evidentiary facts advanced by respondents show that the power company was an 'owner' and the county a 'lessee' of Petenwell Park; that Jeffrey Hines was engaged in water sports or other recreational activities when he was injured; and that the only consideration paid by respondents was not for their use of Petenwell Lake.
We now look to appellants' counter-affidavits for evidentiary facts and proofs demonstrating the existence of genuine issues of material fact or conflicting inferences from undisputed facts. The affidavit of appellants' attorney refers to pertions of the deposition of the power company's president, and to those of the park manager and Jeffrey and Carol Hines to the effect that Petenwell Lake is an artificial impoundment of the Wisconsin River, that the county made improvements to the park land including a beach, that the county does not lease any of the bottom land of the lake from the power company, that the power company is permitted by the Federal Energy Regulatory Commission to...
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