Kostroski v. County of Marathon

• Decision Date: 18 September 1990
• Docket Number: No. 90-0285,90-0285
• Citation: 462 N.W.2d 542,158 Wis.2d 201
• Parties: Kathryn KOSTROSKI and Gerald Kostroski, d Plaintiffs-Appellants, v. COUNTY OF MARATHON, a municipal corporation, and Marathon County Park Commission, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 542

462 N.W.2d 542

158 Wis.2d 201

Kathryn KOSTROSKI and Gerald Kostroski, ^dPlaintiffs-Appellants, v.COUNTY OF MARATHON, a municipal corporation, and Marathon County Park Commission, Defendants-Respondents.

No. 90-0285.

Court of Appeals of Wisconsin.

Submitted on Briefs June 6, 1990.

Opinion Released Sept. 18, 1990.

Opinion Filed Sept. 18, 1990.

James L. Bartells of Jerome A. Maeder, S.C., Wausau, for plaintiffs-appellants.

Mark W. Parman of Straub and Schuch, Wausau, for defendants-respondents.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Kathryn and Gerald Kostroski appeal a judgment that dismisses their personal injury action against Marathon County, arising out of Kathryn's fall on a portable wooden sidewalk in a county park.The Kostroskis allege that the trial court erred by applying the recreational immunity statute, sec. 895.52, Stats.The Kostroskis believe the county is liable for ordinary negligence under sec. 81.15, Stats., for failing to repair a sidewalk.The trial court disagreed and dismissed their action after the jury found that the county did not maliciously fail to warn of the sidewalk hazards, holding that, absent a showing of malice, a landowner who opens land to public recreation is not liable for injuries that occur thereon.We affirm.

According to the evidence at trial, Kathryn went to Marathon County Park to attend a company picnic for employees of the supermarket where she worked.After reaching an area beneath the grandstand located within the park, she and her husband learned that there was a company softball game in progress at a ball diamond nearby in the park.In her journey to the ball field, Kathryn fell through a loose board when crossing a portable wooden sidewalk or walkway used to traverse a quarter-mile oval clay racetrack surrounding the ball field.See appendix.This lawsuit followed.

No owner, including a governmental body, is liable for any injury to a person allowed to engage in a recreational activity on the owner's property unless the injury is caused by malice.Section 895.52(2)(b) and (4)(b), Stats.A recreational activity is "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure...."Section 895.52(1)(g), Stats. Attendance as a spectator at a county fair falls within the immunity statute.Hall v. Turtle Lake Lions Club, 146 Wis.2d 486, 489, 431 N.W.2d 696, 698(Ct.App.1988).We conclude that attendance at a picnic and as a spectator at a ball game in the park qualifies as recreational activity as well.The fact that Kathryn was walking from the picnic area to the ball park does not exclude her actions as recreational activity.In Hall, the fact that the spectator there was taking a break from fair activities and walking to the men's restroom when the accident occurred did not bar immunity: "This ordinary, necessary, and momentary diversion while still on the fair grounds certainly does not remove the landowner from the protection of the statute...."Id.The same conclusion is appropriate here.

The Kostroskis argue, however, that Bystery v. Village of Sauk City, 146 Wis.2d 247, 430 N.W.2d 611(Ct.App.1988), provides an exception to recreational immunity where the injury occurs on a municipal sidewalk.In Bystery, a cyclist riding her bike on a city sidewalk for recreation prevailed in her attempt to pursue liability under sec. 81.15, Stats., which provides: "If ... damages happen by reason of the insufficiency or want of repairs of a highway ... which occupies any land owned and controlled by the county, the county is liable for the damages....""Highway," as used in this section, includes sidewalks."Bystery, 146 Wis.2d at 251, 430 N.W.2d at 613.

The Bystery court reconciled the...