Kosky v. International Ass'n of Lions Clubs
| Decision Date | 09 April 1997 |
| Docket Number | No. 96-2532,96-2532 |
| Citation | 210 Wis.2d 463,565 N.W.2d 260 |
| Parties | John "Jack" KOSKY and Dorothy "Dolly" Kosky, Plaintiffs-Appellants, Blue Cross/Blue Shield of Illinois, Nominal-Plaintiff, v. INTERNATIONAL ASSOCIATION OF LIONS CLUBS, individually and d/b/a Lions Clubs International, Lions Club International Foundation, Land O'Lakes Lions Club and Peter Schindelholz, Defendants-Respondents. d Nicholas KAMIENIECKI, Defendant-Third Party Plaintiff-Respondent, dd ]]]]] v. Larry McPARTLIN, Third Party Defendant-Respondent, Speilbauer Fireworks Company, Inc., Third Party Defendant-Co-Appellant. . Oral Argument |
| Court | Wisconsin Court of Appeals |
For the plaintiffs-appellants, the cause was submitted on the briefs of Jay R. Luchsinger and James A. Johnson of Johnson, Houlihan, Paulson & Priebe, S.C. and oral argument of Jay R. Luchsinger of Rhinelander.
For the third party defendant-co-appellant, the cause was submitted on the briefs of James O. Moermond, III, and Michael Eckert of Eckert & Stingl Law Office and oral argument of James O. Moermond, III, of Rhinelander.
For the defendants-respondents the cause was submitted on the brief and oral argument of Robert A. Kennedy, Jr. of Kennedy Law Office of Crandon.
For the defendant-third party plaintiff-respondent, the cause was submitted on the brief and oral argument of Dorothy L. Bain of Ruder, Ware & Michler, S.C. of Wausau.
For the third party defendant-respondent, the cause was submitted on the brief and oral argument of Mark D. Gundrum of Kasdorf, Lewis & Swietlik, S.C. of West Allis.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
John and Dorothy Kosky and Speilbauer Fireworks Company, Inc., appeal a summary judgment dismissing the International Association of Lions Clubs, individually and doing business as the Lions Club International, Lions Club International Foundation, Land O'Lakes Lions Club and Peter Schindelholz (collectively, the Lions Club); Nicholas Kamieniecki, and Larry McPartlin from the Koskys' lawsuit on the grounds of recreational immunity, pursuant to § 895.52, STATS. The Koskys argue that the extra-hazardous activity of detonating explosive fireworks is not a recreational activity protected by § 895.52 and, also, that John Kosky was not engaged in a recreational activity at the time of his injury. Speilbauer argues thats 895.52 is inapplicable because Kosky was not engaged in a recreational activity, the Lions Club was not an owner or occupier of the land, and its members' alleged negligent conduct was not related to the condition or maintenance of the property.
McPartlin argues he and the respondents were landowners, Kosky's injury need not be related to the condition or maintenance of the land for immunity to attach and Kosky was engaged in a recreational activity. Kamieniecki asserts that he was a landowner, a public fireworks display is a recreational activity and not an inherently dangerous or extra-hazardous activity to which the statute does not apply, and that Kosky's participation in the fireworks display was a recreational activity.
The Lions Club asserts it was the owner of the property, displaying the fireworks was a recreational activity, Kosky was engaged in a recreational activity substantially similar to sightseeing, Kosky was celebrating a Fourth of July tradition with the spectators, the Lions Club's fireworks permit does not subject it to absolute liability, properly used fireworks are neither ultra-hazardous nor explosive devices pursuant to administrative code provisions, the legislature did not intend to preclude immunity for injuries from explosives, an injured person's owner status does not interfere with his or her recreational immunity, the launching team was engaged in the celebration by historical definition and also because there was no profit motive, and alternative grounds exist for dismissal. 1
We conclude that § 895.52, STATS., does not bar the Koskys' lawsuit because the allegedly negligent conduct of the Lions Club and/or its agents was not related to the condition or maintenance of the land. Therefore summary judgment was inappropriate, and we reverse and remand for further proceedings. 2
The facts are not disputed on appeal. On July 4, 1991, John Kosky assisted the Land O'Lakes Lions Club with a fireworks display. The fireworks display was part of Land O'Lakes' annual Fourth of July festivities, including a flag raising ceremony, parade and picnic. The club, a nonprofit organization, had a fireworks permit and oral permission from the town of Land O'Lakes to use the town's property for the fireworks display. Kosky was not paid for his services. He had assisted the club with its fireworks display in 1990 and had assisted for years in fireworks displays at a local resort.
Before the display, Kosky and other members of the team met with Peter Schindelholz, Land O'Lakes Lions Club's supervisor in charge of the fireworks detonation. Schindelholz distributed the fireworks, flares, and firing tubes to be used by the team members, and instructed them regarding the fireworks detonations. He also instructed them how to clean out the firing tubes after each detonation, and gave Kosky a "stick with protruding nails" and instructed Kosky to use it to stick into the tubes in order to clean them out after each detonation. Kosky, Larry McPartlin and Nicholas Kamieniecki were a three-person team during the display. Kosky's job was to clean the firing tubes. As Kosky cleaned a firing tube during the fireworks detonations, as instructed, an explosion occurred in the tube and caused severe and permanent injury to his hands.
John and Dorothy Kosky filed a lawsuit against International Association of Lions Clubs, Land O'Lakes Lions Club, the Club's agents Schindelholz, Kamieniecki and McPartlin, and Speilbauer. The trial court granted summary judgment to all defendants but Speilbauer on grounds of recreational immunity, pursuant to § 895.52, STATS. The Koskys and Speilbauer appeal the summary judgment.
We review summary judgments de novo, without deference to the trial court. See Universal Die & Stampings, Inc. v. Justus, 174 Wis.2d 556, 560, 497 N.W.2d 797, 799 (Ct.App.1993). Summary judgment "shall be rendered if the pleadings ... together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Section 802.08(2), STATS. We will reverse the trial court if we determine the trial court incorrectly decided a legal issue. Millers Nat'l Ins. Co. v. City of Milwaukee, 184 Wis.2d 155, 164, 516 N.W.2d 376, 378 (1994). Whether § 895.52, STATS., bars the Koskys' lawsuit is a question of law that we review de novo. See Sievert v. American Family Mut. Ins. Co., 190 Wis.2d 623, 628, 528 N.W.2d 413, 415 (1995).
The issue presented is whether the recreational immunity statute, § 895.52, STATS., bars Kosky's lawsuit against all of the defendants but Speilbauer. In order for the recreational immunity statute to apply, the injury must have been sustained while Kosky was engaged in a recreational activity. 3 The recreational immunity statute provides in relevant part 895.52 Recreational activities; limitation of property owners' liability. (1) DEFINITIONS. In this section:
...
(g) "Recreational activity" means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. "Recreational activity" includes, but is not limited to, hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature and any other outdoor sport, game or educational activity, but does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.
...
(2) NO DUTY; IMMUNITY FROM LIABILITY. (a) Except as provided in subs. (3) to (6), no owner and no officer, employe or agent of an owner owes to any person who enters the owner's property to engage in a recreational activity:
1. A duty to keep the property safe for recreational activities.
2. A duty to inspect the property....
3. A duty to give warning of an unsafe condition, use or activity on the property.
(b) Except as provided in subs. (3) to (6), no owner and no officer, employe or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner's property....
The statute provides three definitions of recreational activity: "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure," the twenty-eight specific activities listed, and "any other outdoor sport, game or educational activity." Sievert, 190 Wis.2d at 629, 528 N.W.2d at 415.
If we were to apply the first definition of "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure" in isolation from the remainder of § 895.52, STATS., the statute's reach over outdoor activities would be nearly limitless. Sievert, 190 Wis.2d at 629, 528 N.W.2d at 415. Id. Kosky's activity of cleaning firing tubes to assist in the production of a fireworks display is neither a statutorily enumerated activity nor "any other outdoor sport, game or educational activity." However, our analysis does not end there.
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