Linville v. City of Janesville, 91-1099

• Decision Date: 15 June 1994
• Docket Number: No. 91-1099,91-1099
• Parties: David William LINVILLE, Sr. and Estate of David Linville, Jr., Plaintiffs-Appellants, v. CITY OF JANESVILLE, David Moore, Gary Myers, Paul Bloom, Stephen Dorsey, Wes Meacham, Dennis Witek, Kenneth Bollinger, Arthur Stearns, Larry Grorud, The City's and Village's Mutual Insurance Company, ABC Fireman, DEF Policemen, GHI Paramedics, XYZ Insurance Company and QQQ Insurance Company, Defendants-Respondents. Kelly C. LINVILLE and CPC Greenbrier Hospital, Plaintiffs-Appellants, v. CITY OF JANESVILLE, Paul Bloom, Dennis Witek, Kenneth Bollinger, Larry Grorud, Stephen Dorsey, Wes Meacham, Arthur Stearns, The City's and Village's Mutual Insurance Company, XYZ Insurance Company and QQQ Insurance Company, Defendants-Respondents-Petitioners.
• Court: Wisconsin Supreme Court

Page 427

516 N.W.2d 427

184 Wis.2d 705

David William LINVILLE, Sr. and Estate of David Linville, Jr., Plaintiffs-Appellants, v. CITY OF JANESVILLE, David Moore, Gary Myers, Paul Bloom, Stephen Dorsey, Wes Meacham, Dennis Witek, Kenneth

Bollinger, Arthur Stearns, Larry Grorud, The City's and

Village's Mutual Insurance Company, ABC Fireman, DEF

Policemen, GHI Paramedics, XYZ Insurance Company and QQQ

Insurance Company, Defendants-Respondents.

Kelly C. LINVILLE and CPC Greenbrier Hospital, Plaintiffs-Appellants, v. CITY OF JANESVILLE, Paul Bloom, Dennis Witek, Kenneth

Bollinger, Larry Grorud, Stephen Dorsey, Wes Meacham, Arthur

Stearns, The City's and Village's Mutual Insurance Company,

XYZ Insurance Company and QQQ Insurance Company,

Defendants-Respondents-Petitioners.

No. 91-1099.

Supreme Court of Wisconsin.

Argued Jan. 6, 1994.

Decided June 15, 1994.

For the plaintiffs-appellants there was a brief by Michael E. McMorrow, Elm Grove and oral argument by Michael E. McMorrow.

Amicus curiae brief was filed by Charles D. Hoornstra, Asst. Atty., with whom on the brief was James E. Doyle, Atty. Gen.

Amicus curiae brief was filed by Claire Silverman, Madison, for the League of Wisconsin Municipalities.

Amicus curiae brief was filed by Eugene O. Gehl and Foley & Lardner, Madison, for the Wisconsin Mun. Mut. Ins. Co.

Amicus curiae brief was filed by Saul N. Winsten and Michael, Best & Friedrich, Milwaukee, for the Wisconsin Park & Rec. Ass'n.

BABLITCH, Justice.

The defendants City of Janesville (City) and the City's paramedics ¹ seek review of a published court of appeals' decision ² which denied them immunity from liability under the recreational immunity statute ³ for claims arising from a drowning at the City's pond. The court of appeals determined that Kelly Linville and her four-year-old son David were not engaged in a recreational activity at the time of David's drowning. Accordingly, the court determined the City and the paramedics were not immune under the statute. We disagree with the court of appeals that Kelly and David were not engaged in a recreational activity at the time of the drowning. Although Kelly Linville did not want to be at the Pond, her subjective intent is not controlling. The intrinsic nature of the activity at the time, i.e., looking at the fishing spots in preparation for fishing the next day, was recreational. We agree with the court of appeals, however, that the City and paramedics are not immune under the recreational immunity statute from claims of negligent rescue and treatment. We conclude that in furnishing rescue and medical treatment the City was acting independent of its functions as owner of recreational land and that its public paramedic services rendered in this case were unrelated to the City's role as owner of the Pond. The City's immunity for its functions as owner of recreational land cannot shelter its liability for negligently performing another function. Accordingly, we affirm the decision of the court of appeals.

Finally, we address the Linvilles' argument that the statutory ceiling on damages of $50,000 for suing a governmental body or its employees is inapplicable. We conclude the statutory ceiling is applicable.

The facts are as follows: On November 12, 1989, Walter Hadden (Hadden) drove Kelly Linville (Kelly) and her four-year-old son David in a van to the Kiwanis Pond (Pond) in Janesville to show David where Hadden would take him fishing the next day. The Pond is owned by the City and is used for recreational purposes. Although Kelly accompanied Hadden in the van, she deposed that she was taken to the Pond against her will and that she repeatedly argued with Hadden asking him to take her and David home. According to Kelly, Hadden ignored her requests and instead parked at the edge of the water and shined the van lights on the water to illuminate a good fishing area. After several minutes at the Pond, Hadden attempted to back the van up but the van was stuck in the mud. Realizing they were stuck Kelly got out of the van in a vain attempt to push it backwards. Instead of backing up, the van jumped forward into the Pond and sank with Hadden and David inside of it. After several unsuccessful attempts to rescue her son and Hadden, Kelly ran for help.

The City fire and police officers and the paramedics arrived at the Pond in various intervals and eventually pulled the van out of the water. The paramedics resuscitated David and then transported him to a hospital where he died several hours later. Hadden also died from drowning.

Kelly Linville and David's father individually and as special administrator of David's estate (Linvilles) brought separate actions, later consolidated, against the City and several city employees including the paramedics. The complaints alleged that the City and paramedics were negligent in their rescue of David and negligent in providing medical services to David. The circuit court dismissed the actions on a motion for summary judgment. The court stated that the pleadings raised the issue of whether or not the City and paramedics were negligent. The court found the City and paramedics immune from negligence as a matter of law, however, under the recreational immunity statute and the governmental immunity statute ⁴, and thus granted summary judgment in favor of the City and paramedics.

The court of appeals affirmed in part and reversed in part. With respect to the recreational immunity statute, the court found that it did not immunize the City and paramedics from liability since Kelly and David Linville were not engaged in a recreational activity within the meaning of the statute. Linville, 174 Wis.2d 571, 497 N.W.2d 465. In its analysis the court stated that it was applying an objective test to determine whether Kelly Linville was engaged in a recreational activity at the time of the drowning. Id. 174 Wis.2d at 579, 497 N.W.2d 465. In framing the test the court stated:

The test requires examination of all aspects of the activity. The intrinsic nature, purpose and consequence of the activity are relevant. While the injured person's subjective assessment of the activity is relevant, it is not controlling (cites omitted). Thus, whether the injured person intended to recreate is not dispositive, (cites omitted), but why he was on the property is pertinent. (cites omitted) Id. 174 Wis.2d at 579-80, 497 N.W.2d 465.

When applying the test to Kelly and David Linville, however, the court focused solely on Kelly's intent and found that since Kelly was at the Pond against her will, she was not engaged in a recreational activity under the statute. Id. 174 Wis.2d at 580, 497 N.W.2d 465. The court then imputed Kelly's intent to her infant son David and found that he also was not engaged in a recreational activity for purposes of immunity. Id. In light of these conclusions, the court held that none of the defendants enjoyed recreational immunity under sec. 895.52, Stats. Id. 174 Wis.2d at 582, 497 N.W.2d 465.

The City and paramedics petitioned for review of the court of appeals' decision. Specifically, they requested that we (1) state the proper test to be applied in determining whether an injured person is engaged in a recreational activity within the meaning of the statute and (2) determine whether Kelly and David Linville were engaged in a recreational activity within the meaning of the statute so as to immunize the City and paramedics from liability. We granted the petition.

We review the circuit court's grant of summary judgment by applying the standards set forth in sec. 802.08(2), Stats., in the same manner as the circuit court. Shannon v. Shannon, 150 Wis.2d 434, 441, 442 N.W.2d 25 (1989). Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Section 802.08(2).

I.

The issue we address is whether the City and paramedics are immune from negligence claims under the recreational immunity statute. In doing so, we must first state the appropriate test to be applied in determining whether Kelly and David Linville's activity at the Pond falls within the "recreational activity" covered by the statute.

The purpose behind sec. 895.52, Stats., is found in the statement of legislative intent in 1983 Wis.Act 418:

Legislative intent. The legislature intends by this act to limit the liability of property owners towards others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit. 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 act is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.

The policy behind the statute is to encourage property owners to open their lands for recreational activities by removing a property user's potential cause of action against a property owner's alleged negligence. See Stuart J. Ford, Comment, Wisconsin's Recreational Use Statute: Towards Sharpening The Picture At The Edges, 1991 Wis.L.Rev. 491. In order to achieve the goal of encouraging property owners to open their lands to public recreation by limiting the liability of property owners, courts must liberally construe the statute in favor of property owners.

In doing so, we find that any test which considers the land user's intent as dispositive would contravene the goal of the statute: persons hurt while using the land would defend against recreational immunity by...