Kruschke v. City of New Richmond

• Decision Date: 26 June 1990
• Docket Number: No. 89-1418,89-1418
• Citation: 458 N.W.2d 832,157 Wis.2d 167
• Parties: Janice Webb KRUSCHKE, Plaintiff-Respondent, d v. CITY OF NEW RICHMOND, and Regent Insurance Company, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 832

458 N.W.2d 832

157 Wis.2d 167

Janice Webb KRUSCHKE, Plaintiff-Respondent, ^d v. CITY OF NEW RICHMOND, and Regent Insurance Company Defendants-Appellants.

No. 89-1418.

Court of Appeals of Wisconsin.

Submitted on Briefs June 13, 1990.

Opinion Released June 26, 1990.

Opinion Filed June 26, 1990.

Joel D. Porter of Gilbert, Mudge, Porter & Lundeen, Hudson, for plaintiff-respondent.

Timothy T. Sempf of Novitzke & Gust, Amery, for defendants-appellants.

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

LaROCQUE, Judge.

This case presents the question whether swinging in a city park is a "recreational activity" under sec. 895.52(1)(g), Stats., so as to immunize the city of New Richmond from liability for injuries sustained by Janice Webb Kruschke. Because we must liberally construe sec. 895.52, we hold that playground swinging is included within its scope and therefore the trial court improperly denied the city's motion for summary judgment.

In her complaint against the city, Kruschke alleged that she was using a swing in a city park when one of the chains broke and she fell to the ground sustaining injuries. She alleged that the city negligently maintained the swing and failed to warn of its faulty condition. The city moved for an order granting summary judgment against Kruschke. The trial court denied the motion. The city petitioned this court for leave to appeal, and we grant the petition pursuant to sec. 808.03(2), Stats.

In reviewing motions for summary judgment, appellate courts must apply the standards set forth in sec. 802.08, Stats., in the same manner as trial courts. Heck & Paetow Claim Serv. v. Heck, 93 Wis.2d 349, 356, 286 N.W.2d 831, 834 (1980). Summary judgment is granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Sec. 802.08(2), Stats. In the present case, there is no dispute as to the material facts. The only issue is whether the city is immune from liability under sec. 895.52, Stats. The interpretation and application of a statute is a question of law that we decide without deference to the trial court. Simanek v. Miehle-Goss-Dexter, 113 Wis.2d 1, 4, 334 N.W.2d 910, 911 (Ct.App.1983).

Under Wisconsin's recreational use statute:

[N]o 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.

Sec. 895.52(2)(a), Stats. ¹

This case turns on the construction of the term "recreational activity." Section 895.52(1)(g), Stats., states:

"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. (Emphasis supplied.)

The predecessor to sec. 895.52, Stats., sometimes called "the berry-picking statute," provided immunity only where an owner gave permission to another to "hunt, fish, trap, camp, hike, snowmobile, sightsee, berry pick ... or to proceed with water sports...." Sec. 29.68(2), Stats. (1981-82). With 1983 Wis.Act 418, the legislature repealed this statute and enacted sec. 895.52. Section 1 of the Act provides in part:

While it is not possible to specify in a statute every activity which might constitute a recreational activity, this act provides examples of the kinds of activities that are meant to be included, and the legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability.

The city asserts that swinging is an outdoor activity undertaken for the purpose of exercise, relaxation or pleasure. While Kruschke does not deny this, she argues that swinging is not substantially similar to the activities listed in sec. 895.52(1)(g), Stats., because the city provided the recreational device, while none of the statutorily immune activities would require the landowner to provide equipment. Kruschke also argues that the statutory activities, unlike swinging, are for the most part highly dangerous and require the participant to assume some risk. We reject Kruschke's attempt to distinguish swinging on the basis that it is not a dangerous activity. Picnicking, nature study, bird-watching, sight-seeing and harvesting the products of nature are hardly synonymous with danger.

The fact that the city provided the swing is also an invalid distinction. The statute immunizes an owner from liability to people who enter the property for any recreational activity. It is not limited to immunity from liability stemming from the land itself. "Property" is defined as "real property and buildings, structures and improvements thereon...." Sec. 895.52(1)(f), Stats. (Emphasis supplied.) We conclude that in defining property in this manner the legislature has indicated its intent that activities are not to be excluded merely because they involve facilities provided by the property owner. In addition, this court has held that sec. 895.52 applies to both natural and artificially created conditions. See Sauer v. Reliance Ins. Co., 152 Wis.2d 234, 241, 448 N.W.2d 256, 259 (Ct.App.1989).

This court has previously given a broad definition to the phrase "recreational activity." In Sauer, we held that walking down a river to go fishing fit the definition. Id. In Taylor v. City of Appleton, 147 Wis.2d 644, 646, 433 N.W.2d 293, 294 (Ct.App.1988), playing catch with a football in a city park was deemed a recreational activity. In Hall v. Turtle Lake Lions Club, 146 Wis.2d 486, 488, 431 N.W.2d 696, 697 (Ct.App.1988), this court concluded that attendance at a fair is substantially similar to several of the kinds of activities explicitly included by the legislature. In light of the broad definition, we hold that swinging is a recreational activity under sec. 895.52(1)(g), Stats.

Kruschke urges us to apply a "policing test" to determine the scope of sec. 895.52, Stats., immunity. ² Under this test, only land that is not susceptible to adequate policing or correction of dangerous conditions is covered. See Tijerina v. Cornelius Christian Church, 273 Or. 58, 539 P.2d 634, 637 (1975) (interpreting Oregon's recreational use statute). Kruschke contends that sec. 895.52 provides immunity for landowners who would be overburdened if required to regularly police their land and that requiring the city to inspect and maintain its swings is not an unreasonable burden.

This test would be inconsistent with the language of the statute itself and would create distinctions not found in the statute's provisions. With a few exceptions not applicable here, ³ the statute covers all property open for recreational purposes. Sec. 895.52(2), Stats. Introduction of an exception based upon the proposed policing standard would constitute judicial legislating and ignore the liberal interpretation mandated by the legislature. That construction would run contrary to the purpose of the statute--to encourage landowners to open their land for recreational purposes. See Bystery, 146 Wis.2d at 252, 430 N.W.2d at 613. The uncertainty as to whether one's property will be deemed susceptible to adequate policing is likely to discourage owners from allowing public use of their property.

Kruschke also argues that the city had a statutory duty to police and repair the swing. This attempt to circumvent sec. 895.52, Stats., was also proposed in Bystery. In that case, this court determined that sec. 895.52 conflicted with sec. 81.15, Stats., which created a right to recover damages caused by lack of repair of highways. Bystery, 146 Wis.2d at 251, 430 N.W.2d at 613. This court harmonized the statutes by holding that under sec. 895.52, a municipality is immune from liability for the lack of repair of a highway or public sidewalk only when the municipality has withdrawn the highway or sidewalk from transportation uses and has devoted it to recreational activities. Bystery, 146 Wis.2d at 251-52, 430 N.W.2d at 613.

In the same manner, Kruschke would have us exclude city parks from the scope of sec. 895.52, Stats., because such immunity would conflict with sec. 27.13, Stats., when read together with sec. 27.12(2). Section 27.13 provides: "Every town and village may provide and maintain parks, parkways, boulevards or pleasure drives pursuant to the provisions of this chapter which are applicable to cities." ⁴

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