Hudson v. Janesville Conservation Club
| Decision Date | 23 March 1992 |
| Docket Number | No. 90-1449,90-1449 |
| Parties | Thomas D. HUDSON, Plaintiff-Appellant, v. JANESVILLE CONSERVATION CLUB, the Continental Insurance Company, Defendants-Respondents, Rock County, Defendant-Respondent-Petitioner. . Oral Argument |
| Court | Wisconsin Supreme Court |
For the defendant-respondent-petitioner there were briefs by Thomas A. Schroeder, Rock County Corporation Counsel, Janesville and oral argument by Mr. Schroeder.
For the plaintiff-appellant there was a brief by Robert I. DuMez and O'Connor & Willems, S.C., Kenosha and oral argument by Mr. DuMez.
This case is before the court on petition for review of an unpublished decision of the court of appeals, dated May 2, 1991, which reversed an order and judgment of the circuit court for Rock County, the Honorable John H. Lussow, Circuit Judge. The circuit court's order granted summary judgment to the defendant, Rock County (the county), and dismissed the complaint of the plaintiff, Thomas D. Hudson (the plaintiff). The issues presented are whether sec. 895.52(2)(b), Stats., 1 requires that a person injured by a wild animal be engaged in recreational activity before the property owner will be immune from liability for the person's injuries and whether a captive buck deer is a "wild animal" within the meaning of sec. 895.52(2)(b). We hold that sec. 895.52(2)(b) does not require that a person injured by a wild animal be engaged in recreational activity before the property owner will be immune from liability for the person's injuries and that a captive buck deer is a wild animal within the meaning of sec. 895.52(2)(b). We therefore reverse the court of appeals.
The undisputed facts of the case are as follows. 2 On December 17, 1987, the plaintiff was savagely attacked by a buck deer in a deer pen at Rock County's Sportsman's Park. The plaintiff had entered the pen at the invitation of his uncle, Darrell Bambrough, to assist in feeding the deer. At the time, Mr. Bambrough was employed as the "caretaker" of the deer and pheasant pens at Sportsman's Park.
The plaintiff had gone to Sportsman's Park to transport his uncle home for the Christmas holidays. As they were about to leave, Mr. Bambrough decided it would be prudent to give the deer some extra feed, lest they consume what was in their feeder before someone had time to stop by the park and refill the feeder.
At Mr. Bambrough's request, the plaintiff agreed to assist his uncle with this chore. Mr. Bambrough explained that the buck was in rut 3 and had been acting "strangely" of late but that it was fearful of a particular shovel. According to Mr. Bambrough, the mere presence of that shovel inside the pen would keep the buck from interfering with him as he carried the feed to the feeder. Accordingly, Mr. Bambrough asked his nephew to enter the pen, armed with the shovel.
Unfortunately, Mr. Bambrough misgauged the buck's respect for the implement. After Mr. Bambrough had unloaded one bucket of feed and as he was returning with another, the buck dropped its head and, without provocation or warning, charged the plaintiff, who was standing near the entrance to the pen. The onslaught was so sudden that the plaintiff was unable to retreat to safety.
In an instinctive defensive maneuver, the plaintiff dropped the shovel and grabbed the deer's antlers as the beast crashed into him. Locking his elbows and holding his arms straight out in front of him, the plaintiff attempted to remain upright and protect his chest and stomach from the goring he feared was imminent.
Lunging forward, the buck pinned the plaintiff to the fence. After several desperate minutes, the plaintiff loosened his grip and dashed for the fence gate. The buck, however, gave no quarter and continued its savage attack, lashing out with its antlers. The buck's wild flailings struck the plaintiff and ripped open a gaping wound in the plaintiff's leg. Unable to reach the gate or to defend against the beast's attack, the plaintiff simply hung on to the fence as best he could while the animal thrashed away at him.
After some minutes, the buck backed off, only to immediately charge the plaintiff again. Miraculously, the plaintiff was able to dodge the main thrust of the buck, and its antlers became momentarily entangled in the fence. As the deer freed itself, it resumed attacking the plaintiff. The plaintiff, by this time barely able to stand, found himself at the animal's side. Unable to escape and powerless to do more, the plaintiff ingeniously seized the deer's head in a manner similar to a rodeo contestant and simply hung on. The plaintiff tried desperately to neutralize the fury of the deer's antlers and stay out of the path of yet another onslaught.
The buck, with the plaintiff still clinging to its head, then unleashed its wrath on Mr. Bambrough, whose attempts heretofore to rescue his nephew had been futile. The deer trapped Mr. Bambrough against the fence, but, astonishingly, Mr. Bambrough was small enough to fit between the buck's antlers and received only minor scratches.
At this point, a passerby fortuitously came to the men's rescue. With this samaritan's help, the plaintiff and his uncle were able to retreat to the gate, all the while warding off the buck's relentless charges. Once outside the pen, the plaintiff collapsed in the snow. Shortly thereafter, he was rushed to the hospital.
The plaintiff commenced a personal injury suit against the county after the county denied his claim for damages. 4 The county moved for summary judgment on the grounds that it was entitled to immunity from liability by the operation of sec. 895.52, Stats. The circuit court granted summary judgment to the county and dismissed the plaintiff's complaint, finding that "a deer is a 'wild animal' within the meaning of sec. 895.52(2)(b), Stats., and Rock County is entitled to immunity from liability from any injury to plaintiffs resulting from an attack by a deer in the deer farm display at Sportsman's Park."
The court of appeals reversed, concluding that sec. 895.52(2)(b) only limits a property owner's liability for attacks by wild animals when the injured party is engaged in recreational activity, that the plaintiff was not engaged in recreational activity at the time the injury occurred, and that a buck deer kept in a fenced-in deer display is not "wild" as that term is used in sec. 895.52(2)(b).
We find that sec. 895.52(2)(b), Stats., does not require that a person injured by a wild animal be engaged in recreational activity before the owner of the property where the injury occurred will be immune from liability under sec. 895.52(2)(b). Because we hold that a captive buck deer is a wild animal under sec. 895.52(2)(b), the county is immune from liability for the plaintiff's injuries.
In reviewing a decision on summary judgment, this court applies the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 314-15, 401 N.W.2d 816 (1987). We first examine whether a claim has been stated upon which relief can be granted and then whether there is a genuine issue as to any material fact.
The county asserts that the plaintiff's complaint fails to state a claim upon which relief can be granted. The county's argument is based completely upon the provisions of sec. 895.52, Stats. Statutory interpretation is a question of law, which we review de novo. State v. Wittrock, 119 Wis.2d 664, 669, 350 N.W.2d 647 (1984).
The county asserts that under sec. 895.52(2)(b), Stats., a person need not be engaged in recreational activity in order that the property owner be immune from liability for any injuries caused by wild animals. We agree. Section 895.52(2)(b) provides:
895.52 Recreational activities; limitation of property owners' liability....
. . . . .
(2) NO DUTY; IMMUNITY FROM LIABILITY....
. . . . .
(b) Except as provided in subs. (3) to (6), no owner and no officer, employe or agent of an owner is liable for any injury to, or any injury caused by, a person engaging in a recreational activity on the owner's property or for any injury resulting from an attack by a wild animal.
(Emphasis added). We find that sec. 895.52(2)(b) unambiguously insulates property owners from liability "for any injury resulting from an attack by a wild animal." A person need not be engaged in recreational activity when injured by a wild animal in order for the property owner to be immune from liability.
In addition, although the question is not presented here, sec. 895.52(2)(b) would also provide a property owner with immunity from liability to anyone injured by a person engaging in a recreational activity, regardless of whether the injured person was also engaged in recreational activity at the time of the injury. If the legislature had intended that all injured persons be engaged in recreational activity at the time of receiving their injury before immunity would be provided to property owners by sec. 895.52, the legislature could have done so.
The statute's statement of legislative intent does not persuade us that we reach an incorrect interpretation. When sec. 895.52 was enacted, the legislature stated that "this legislation should be liberally construed in favor of property owners to protect them from liability." 1983 Wis. Act 418, sec. 1. We find that our interpretation of sec. 895.52(2)(b) furthers this legislative intent.
The plaintiff asserts that our decision in Shannon v. Shannon, 150 Wis.2d 434, 442 N.W.2d 25 (1989), supports his argument that an injured party must be engaged in recreational activity before the property owner will be immune from liability. In Shannon, we were confronted with the issue of whether sec. 895.52(2), Stats., could insulate a property owner for injuries sustained by a three-year-old girl who nearly drowned in a lake after she wandered onto the defendant's property. We concluded that sec. 895.52 did not apply in Shannon because:
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...pet for five or six years. ¶13. The trial court concluded that based on our supreme court's decision inHudson v. Janesville Conservation Club, 168 Wis. 2d 436, 484 N.W.2d 132 (1992), the Oswskeys were immune from liability. Specifically, the court held that Zinter had been injured by the ra......
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