Meyer v. School District of Colby, No. 98-048298-0482 (Wis. 6/18/1999)

Decision Date18 June 1999
Docket NumberNo. 98-048298-0482.,98-048298-0482.
PartiesDiane Meyer, Plaintiff-Appellant-Petitioner, v. School District of Colby, Wausau Underwriters Insurance Company and Security Health Plan of Wisconsin, Inc., Defendants-Respondents.
CourtWisconsin Supreme Court

Appeal from the Circuit Court, Clark County, Michael W. Brennan, Judge.

REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. Reported at: 221 Wis. 2d 513, 585 N.W.2d 690 (Ct. App. 1998-Published)

For the plaintiff-appellant there were briefs by Susanne M. Glasser and Bye, Goff & Rohde, Ltd., River Falls and oral argument by Susanne M. Glasser.

For the defendant-respondent there were briefs by Mark W. Parman and Stilp and Cotton, Wausau and oral argument by Mark W. Parman.

Amicus curiae brief was filed by George Burnett and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay for the Wisconsin Academy of Trial Laywers.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1 This is a review of a published decision of the court of appeals, Meyer v. School District of Colby, 221 Wis. 2d 513, 585 N.W.2d 690 (Ct. App. 1998). The court of appeals affirmed an order of the Circuit Court for Clark County, Michael W. Brennan, Judge, for summary judgment dismissing Diane Meyer's complaint for damages.

¶ 2 The only issue presented is whether the School District of Colby is immune from liability under Wisconsin's recreational immunity statute, Wis. Stat. § 895.52 (1993-94),1 for injuries Diane Meyer, the plaintiff, sustained while attending a junior varsity football game on Colby High School grounds. More specifically, this issue involves the question whether under Wis. Stat. § 895.52(1)(g) the plaintiff's activity at the time of injury comes within the statutory exception to the definition of "recreational activity." Section 895.52(1)(g) provides that recreational activity "does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place."

¶ 3 The circuit court held that at the time of her injury the plaintiff was engaged in the activity of being a spectator and that this activity falls within the definition of recreational activity and not within the organized team sport exception. The circuit court therefore granted summary judgment in favor of the School District, as well as Wausau Underwriters Insurance Company, the School District's liability carrier, and dismissed the complaint.2

¶ 4 The court of appeals affirmed the order of the circuit court and held that "the organized team sport activity exception [Wis. Stat. § 895.52(1)(g)] does not extend to spectators who are not participants in the excepted activity and whose injuries do not arise out of the team sport activity or the actions of participants in that activity." Meyer, 221 Wis. 2d at 522.

¶ 5 We reverse the decision of the court of appeals and hold that the School District is not immune from liability to this plaintiff. We conclude that the organized team sport activity exception of Wis. Stat. § 895.52(1)(g) extends to spectators whose injuries do not arise out of the team sport activity or out of the actions of participants in that activity. We therefore remand the cause to the circuit court for further proceedings not inconsistent with this opinion.

I

¶ 6 For purposes of summary judgment, the facts are not in dispute. On the evening of September 9, 1996, the plaintiff, Diane Meyer, attended a football game at the Colby High School football field to watch her son, Daniel, play on the junior varsity team. The plaintiff sat in the top row of the bleachers adjoining the football field to watch the game. The football field and the bleachers are part of the Colby High School grounds and maintained by the School District. After the game ended, the plaintiff was descending from her seat when one of the wooden bleachers suddenly broke, causing her to fall and sustain injury.

¶ 7 On July 28, 1997, the plaintiff filed a complaint alleging that her injuries from this fall were proximately caused by the negligence of the School District.3 The School District's answer asserted the affirmative defense of immunity under Wis. Stat. § 895.52, the recreational immunity statute.4 On October 30, 1997, the School District moved for summary judgment and dismissal of the complaint. The motion was granted by the circuit court. The court of appeals affirmed the order of the circuit court, and the plaintiff seeks review in this court.

II

¶ 8 This court reviews a summary judgment using the same methodology as the circuit court. State ex. rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 591-92, 547 N.W.2d 587 (1996). The methodology of summary judgment is set forth in Wis. Stat. § 802.08(2), which provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, 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."

III

¶ 9 The issue presented in this case is one of statutory interpretation. Interpretation of a statute and application of a statute to undisputed facts are ordinarily questions of law that this court considers independent of the decisions of the circuit court and court of appeals, but benefiting from their analyses.

¶ 10 We must determine whether the plaintiff's suit is barred by the recreational immunity statute, which limits an owner's liability for an injury to someone engaging in a recreational activity on the owner's property.5 Because the line between recreational and nonrecreational activities is difficult to draw, the issue of whether an injured party was engaged in a recreational activity as defined by the statute is litigated with some frequency.6 The court of appeals wisely concluded in this case that "as with any grant of immunity from liability, the result of applying the recreational immunity statute may seem harsh in an individual case, and it may seem incompatible with outcomes based on closely similar facts." Meyer, 221 Wis. 2d at 525.

¶ 11 The statutory definition of recreational activity explicitly provides that recreational activity "does not include any organized team sport activity sponsored by the owner of property on which the activity takes place." Wis. Stat. § 895.52(1)(g).7

¶ 12 No one disputes that the junior varsity football game was an organized team sport activity, that the School District was the sponsor of the activity8 or that the School District was the owner of the property on which the game took place.9 The sole issue in this case is whether the organized team sport activity exception extends to spectators at an event or whether it is limited to athletes and others who directly participate in an organized team sport. By its terms, Wis. Stat. § 895.52(1)(g) neither includes nor excepts spectators.

¶ 13 No one disputes that the plaintiff's attendance at the junior varsity football game, in the absence of the organized team sport activity statutory exception, would be a recreational activity. The case law is clear that a spectator who attends a recreational activity is engaged in a recreational activity. Generally, "attendance . . . as a spectator at a ball game in the park qualifies as recreational activity." Kostroski v. County of Marathon, 158 Wis. 2d 201, 203, 462 N.W.2d 542 (Ct. App. 1990).10

¶ 14 The School District argues that our interpretation of Wis. Stat. § 895.52(1)(g) in this case should end at this point. The School District contends that because the plaintiff is a spectator, her activity is recreational and the School District is therefore immune from liability. The focus, according to the School District, is on the plaintiff's activity, not on the activity of others. According to the School District, it makes no difference what activity was (or was not) taking place on the field; what matters, argues the School District, is the plaintiff's activity as a spectator. Therefore, the School District asserts that the plaintiff cannot bootstrap her recreational activity as a spectator into the organized team sport exception just because she happened to be a spectator at an organized team sport activity.

¶ 15 The court of appeals agreed with the School District's analysis and concluded that because the plaintiff in this case had never been a participant in the organized team sport activity, her injuries were "not inextricably connected to the organized team sport activity itself," and her activity therefore does not fall within the organized team sport exception to recreational activity.11 Meyer, 221 Wis. 2d at 522.

¶ 16 In its interpretation of the plaintiff's activity and the organized team sport exception, the court of appeals relied on Sievert v. American Family Mut. Ins. Co., 190 Wis. 2d 623, 632, 528 N.W.2d 413 (1995). In Sievert, the injured party walked onto his neighbor's dock to say hello. Although the dock was used for recreational activities and the owner may have been engaged in recreational activities at the time, the Sievert court held that the injured party was not himself engaging in recreational activities. The Sievert court looked to the nature of the injured person's activities under the facts of that case and concluded that the "the delineation of an activity as recreational does not turn on the nature of the property owner's activity but rather on the nature of the property user's activity." Sievert, 190 Wis. 2d at 632.

¶ 17 Under its reading of Sievert, the court of appeals focused in this case solely on the nature of the plaintiff's activity and gave no consideration to the nature of the School District's activity. This reading of Sievert is too narrow.

¶ 18 The Sievert court relied on the test set forth in Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), for determining whether an injured person was engaging in a recreational activity at the...

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