Mn Fire & Casualty v. Paper Recycling of La Crosse

Decision Date24 February 2000
Docket Number99-0327
Citation244 Wis.2d 290,627 N.W.2d 527
PartiesThis opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. 808.10 and Rule 809.62. Minnesota Fire & Casualty Insurance Company, a Minnesota corporation, Plaintiff-Respondent, v. Paper Recycling of La Crosse, a Wisconsin corporation and General Casualty Company, a Wisconsin corporation,Defendants-Appellants. Joyce A. Devenport, Individually and as Personal Representative of the Estate of Daniel Raymond Devenport, Deceased, Plaintiff-Appellant, v. Paper Recycling Company, and Regent Insurance Company, Defendants-Respondents.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV
CourtWisconsin Court of Appeals

APPEAL from an order of the circuit court for LaCrosse County: DENNISG. MONTABON. Affirmed.

APPEAL from a judgment of the circuit court for LaCrosse County: MICHAEL J. MULROY. Reversed and cause remanded.

Before Dykman, P.J., Eich and Vergeront, JJ.

1.Minnesota Fire & Casualty Ins. Co. v. Paper Recycling of LaCrosse, and we reverse in No. 99-0858, Davenport v. Paper Recycling of LaCrosse.1 2.2

4.Sievert v. American Family Mut. Ins. Co., 190 Wis.2d 623, 528 N.W.2d 413 (1995), the supreme court characterized Wis. Stat. 895.52(1)(g) as containing:

Id. at 629. The Sievert court, referring to the declaration of legislative purpose accompanying the statute, pointed out that the "list" contained in 895.52(1)(g) was intended only to provide examples of recreational activity, and that the statute should apply not only to the listed activities, but also to activities "substantially similar" to them. Id. at 630. And the court pointed to the test set forth in Linville v. City of Janesville, 184 Wis.2d 705, 516 N.W.2d 427 (1994), as the appropriate means of determining "whether an activity is substantially similar to the activities listed in the statute or whether an activity is undertaken in circumstances substantially similar to the circumstances of a recreational activity." Sievert at 631.

5. The Linville test considers both the purpose and nature of the activity and the user's intent; and it requires examining "all aspects" of the particular activity.


6.Minnesota Fire action, the trial court ruled that Davenport and the other boys were not engaged in "recreational activities" within the meaning of the statute:

8. We review the grant or denial of a motion for summary judgment de novo, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). The methodology is well-established and need not be repeated here. See State Bank v. Elsen, 128 Wis.2d 508, 511-12, 383 N.W.2d 916 (Ct. App. 1986). In general, summary judgment is appropriate if the record demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 802.08(2). Since the material facts are not in dispute, whether 895.52(2) applies is a question of law which we review independently. Meyer v. School Dist. of Colby, Wausau Under., 221 Wis.2d 513, 518, 585 N.W.2d 690 (Ct. App. 1998).

9.Sievert/Linville test, we are satisfied that David Davenport and his companions were not engaged in a recreational activity at the time he was killed in the fire because the boys' "imaginary game-playing" in piles of baled papers in an industrial yard is not "substantially similar" to the activities enumerated in Wis. Stat. 895.52(1)(g). We are aware of cases holding that some forms of childplay may be considered recreational activities-but all involved more traditional activities, such as playing on a swing, Kruschke v. City of New Richmond, 157 Wis.2d 167, 458 N.W.2d 832 (Ct. App. 1990), playing "catch" with a football, Taylor v. City of Appleton, 147 Wis.2d 644, 433 N.W.2d 293 (Ct. App. 1988), attending a fair, Hall v. Turtle Lake Lions Club, 146 Wis.2d 486, 431 N.W.2d 696 (Ct. App. 1988), or exploring a fishing spot at a city pond, Linville, supra. All of these activities are well-known, traditional child's play, and none is similar to entering a closed industrial yard to play among piles of commercial products.

10.Shannon v. Shannon, 150 Wis.2d 434, 442 N.W.2d 25 (1989), where a three-year-old girl wandered onto her neighbors' property and nearly drowned. The supreme court, with little discussion, found that the child's random wanderings did not constitute recreational activity because they were not substantially similar to the activities listed in Wis. Stat. 895.52(1)(g). The same is true here, where the three young boys were drawn onto an industrial site-a site neither open to, nor intended for, recreational use3 Sievert, Linville, and similar cases emphasizing a more objective analysis, but, as Joyce Davenport says in her brief, such an approach would result in near-automatic application of recreational immunity to "every situation in which children believe they [a]re playing." And that would be contrary to not only the language and the spirit of the law, but its stated purpose.

11. Finally, we emphasize that the determinative factor in our decision is not that the boys were playing with matches-an inherently dangerous activity for any child. We agree with Paper Recycling that children can engage in inherently dangerous play, even when partaking in what would be a concededly recreational activity (e.g., throwing rocks while hiking, rough play while swimming, racing while motorcycling, attempting stunts on an all-terrain vehicle-or even lighting fires while camping), and we do not believe the incidental dangerous conduct necessarily transforms an otherwise recreational activity to one that is not. Our decision is, as we explain, based on the nature and context of the boys' activity.

12. We affirm the order in No. 99-0327, and reverse the judgment dismissing the action in No. 99-0858, and remand for further proceedings.

By the Court. -- Order affirmed; judgment reversed and cause remanded with directions

Not recommended for publication in the official reports.

1 Minnesota Fire & Casualty was a subrogation action in which the insurance company sought to recover damages paid to its insured, the owner of the property on which the fire occurred (which was occupied by Paper Recycling as lessee). Recycling moved for summary judgment dismissing the action on grounds that it was barred by 895.52. The trial court denied the motion and we granted leave to appeal the denial. In Davenport, David Davenport's mother sued Paper Recycling, seeking damages for the boy's wrongful death. Paper Recycling moved for summary judgment based on 895.52, and the court granted the motion. We consolidated the actions for ease of disposition on appeal.

2 895.52, Recreational activities; limitation of property, provides in part:


(a)Except as provided in subs. (3) to (6), no owner and no officer, employe(e) 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, except as provided under s. 23.115 (2).

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(e) 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 or for any death or injury resulting from an attack by a wild animal.

3 We note that whether a person using the property is a trespasser or non-trespasser is not relevant to an inquiry into application of the recreational immunity statute. Verdoljak v. Mosinee Paper Corp., 200 Wis.2d 624, 547 N.W.2d 602 (1996).

13. DYKMAN, P.J. (dissenting).

When the legislature passed Wis. Stat. 895.52 (1997-98),1 it thought that it had immunized landowners from lawsuits by those injured while using other people's land. To be sure that courts would respect that policy decision, the legislature included an unusual provision in 1983 Wis. Act 418, which created 895.52. Section 1 of 1983 Wis. Act 418 provides the legislative intent:

The legislature intends by this act to limit the liability of property owners toward 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.

14. Not only did the legislature intend to overrule previous opinions which permitted suits against landowners, the history of 1983 Wis. Act 418 shows that the legislature was serious about preventing lawsuits of this sort. A note from the Legislative Reference Bureau attorney who provided drafting services for the bill commented on the breadth of the proposed legislation: "Would seem to do away with liability of anyone on whose land any recreational activity takes place." In a responding letter, an associate of a sponsor of the legislation replied:

Moreover, one of our main purposes in proposing this new landowner liability...

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