Peterson v. Midwest Security Ins. Co.

• Decision Date: 07 December 2001
• Docket Number: No. 99-2987.,99-2987.
• Citation: 2001 WI 131,248 Wis.2d 567,636 N.W.2d 727
• Parties: Danny R. PETERSON, Plaintiff-Appellant-Petitioner, STATE of WISCONSIN DEPARTMENT OF HEALTH AND FAMILY SERVICES, and Community Living Alliance, Plaintiffs, v. MIDWEST SECURITY INSURANCE COMPANY, Defendant-Respondent, WISCONSIN CARPENTERS' HEALTH FUND, and American Family Mutual Insurance Company, Defendants.
• Court: Wisconsin Supreme Court

248 Wis.2d 567

2001 WI 131

636 N.W.2d 727

Danny R. PETERSON, Plaintiff-Appellant-Petitioner, STATE of WISCONSIN DEPARTMENT OF HEALTH AND FAMILY SERVICES, and Community Living Alliance, Plaintiffs, v. MIDWEST SECURITY INSURANCE COMPANY, Defendant-Respondent, WISCONSIN CARPENTERS' HEALTH FUND, and American Family Mutual Insurance Company, Defendants.

No. 99-2987.

Supreme Court of Wisconsin.

Oral argument September 17, 2001.

Decided December 7, 2001.

For the plaintiff-appellant-petitioner there were briefs by Daniel A. Rottier, Virginia M. Antoine and Habush, Habush, Davis & Rottier, S.C., Madison, and oral argument by Daniel A. Rottier.

For the defendant-respondent there was a brief by James W. Mohr, Jr., and Mohr & Anderson, S.C., Hartford, and oral argument by James W. Mohr, Jr.

¶ 1. DIANE S. SYKES, J.

This case requires us to determine who qualifies as an "owner" of "property" for purposes of the recreational immunity statute, Wis. Stat. § 895.52 (1997-98), which immunizes property owners against liability for injuries to persons engaged in recreational activity on their property. More specifically, the issue is whether the owner of a tree stand used for deer hunting is entitled to recreational immunity when he does not also own the real property upon which the tree stand is situated. ¶ 2. The plaintiff, Danny Peterson, was injured when the tree stand from which he was bow hunting gave way and he fell to the ground. At the time of his injury, Peterson was hunting with permission on land owned by Vernon and Culleen Peterson.¹ The tree stand, however, had been built and was owned by the Petersons' nephew, Harold Shaw.²

¶ 3. Peterson sued Shaw's insurer. The circuit court dismissed the case, concluding that the recreational immunity statute applied because 1) Peterson was engaged in recreational activity when he was injured; 2) the tree stand from which he fell was "property" under the statute; and 3) Shaw was the owner of the tree stand. The court of appeals affirmed.

¶ 4. The recreational immunity statute confers immunity on any person who "owns, leases or occupies property" for injuries to those engaged in recreational activity on the property. Wis. Stat. § 895.52(1)(d)1 (1997-98). "Property" is defined in the statute as "real property and buildings, structures and improvements thereon, and the waters of the state." Wis. Stat. § 895.52(1)(f) (1997-98). A tree stand is a "structure" as that term is commonly and ordinarily understood. The statute does not require that the owners of "buildings, structures and improvements" also own the underlying real property in order to qualify for immunity. Accordingly, as the owner of the tree stand, Shaw is entitled to immunity under the statute, even though he did not also own the real property on which the tree stand was built. We therefore affirm.

I

¶ 5. Vernon and Culleen Peterson own 121 acres of wooded land in Dane County. They permitted their nephew, Harold Shaw, to hunt deer on their property, and also allowed him to build two deer stands in the woods. Each stand was basically a small wooden platform "cinched in against the tree with a chain" about 20 feet off the ground, accessible by way of a metal ladder.

¶ 6. In the fall of 1996, the plaintiff, Danny Peterson, accompanied Shaw to the Petersons' property. The Petersons gave Danny Peterson permission to hunt on their property. Shaw gave Peterson permission to use the tree stands. Peterson hunted on the property two or three times that year.

¶ 7. In October 1997, Peterson returned to the property to bow hunt for deer. Peterson decided to use one of Shaw's tree stands. He climbed up the ladder and through the branches until he was level with the tree stand's platform. After testing the tree stand's ability to hold his weight, Peterson stepped out onto the platform. He spotted a deer less than five minutes later. Standing up on the tree stand to get a shot at the deer, Peterson turned his ankle "just a little bit." The tree stand collapsed "like a trapdoor." Peterson fell to the ground and was seriously injured.

¶ 8. Peterson sued Shaw's liability insurer, Midwest Security Insurance Company, alleging that the tree stand had been negligently built and maintained, and that Shaw had negligently represented that the tree stand was "in good condition" and "safe to use." Midwest Security moved for summary judgment, asserting, among other things,³ that Shaw was immune under Wis. Stat. § 895.52 (1997-98), the recreational immunity statute.⁴

¶ 9. The Dane County Circuit Court, the Honorable Patrick J. Fiedler, granted the motion, noting that hunting was specifically enumerated as a "recreational activity" in the statute, and concluding that the tree stand constituted a "structure" or "improvement" and therefore fell within the statute's definition of "property." Because Shaw was the owner of the tree stand, the circuit court held that he was entitled to immunity. The court of appeals affirmed, and we granted review.

II

[1]

¶ 10. We review the circuit court's grant of summary judgment de novo, using the same methodology as the circuit court. Waters v. Pertzborn, 2001 WI 62, ¶ 37, 243 Wis. 2d 703, 627 N.W.2d 497. A court grants summary judgment when "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 a judgment as a matter of law." Wis. Stat. § 802.08(2).

[2]

¶ 11. The parties agree that as to the applicability of the recreational immunity statute, there are no material factual disputes. The case turns on the interpretation and application of a statute, which is a question of law that we review de novo. Shannon v. Shannon, 150 Wis. 2d 434, 447, 442 N.W.2d 25, 31 (1989).

[3]

¶ 12. The recreational immunity statute immunizes property owners against liability "for any injury to a person engaged in a recreational activity on the owner's property." Crowbridge v. Village of Egg Harbor, 179 Wis. 2d 565, 569, 508 N.W.2d 15, 17 (Ct. App. 1993). If the statute applies, a property owner owes no duty of inspection, warning or safety to "any person who enters the owner's property to engage in a recreational activity," and is otherwise immune from liability for injuries to any person engaged in recreational activity on the owner's property. Wis. Stat. § 895.52(2)(a) and (b).⁵

¶ 13. While the inquiry in many recreational immunity cases focuses on whether the injured plaintiff's "activity" was "recreational" within the meaning of the statute, no one here disputes that Peterson was engaged in a "recreational activity" as that term is defined in Wis. Stat. § 895.52(1)(g). Hunting is specifically listed as a "recreational activity" in the statutory definition. Wis. Stat. § 895.52(1)(g).

¶ 14. Whether Shaw is entitled to immunity depends upon whether he qualifies as a property owner under the statute. "Owner" and "property" are defined terms. An "owner" is "a person ... that owns, leases or occupies property." Wis. Stat. § 895.52(1)(d)1. "Property" is "real property and buildings, structures and improvements thereon, and the waters of the state." Wis. Stat. § 895.52(1)(f).

[4]

¶ 15. The parties agree that Shaw owned the tree stand from which Peterson fell. Their dispute centers on whether the tree stand by itself is "property" under the statute. The circuit court and the court of appeals concluded that the tree stand was a "structure" and therefore "property" within the meaning of Wis. Stat. § 895.52(1)(f). We agree.

[5]

¶ 16. The term "structure" is not defined in Wis. Stat. § 895.52, and is therefore given its common and ordinary meaning. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 483-84, 464 N.W.2d 654, 662 (1991). A "structure" is "something constructed," or "something made up of a number of parts that are held or put together in a particular way." American Heritage Dictionary of the English Language, 1782 (3d ed. 1992). "Structure" is also defined as "[a]ny construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner." Black's Law Dictionary, 1424 (6th ed. 1991).

¶ 17. Shaw's tree stand was made of wood and "cinched in against the tree with a chain," and had a metal ladder. In other words, it was constructed, built, or put together in a particular way, and was made up of parts joined together. The tree stand was therefore a "structure" as that term is commonly and ordinarily understood. Shaw was therefore an owner of "property" within the meaning of the recreational immunity statute. ¶ 18. Peterson reads the definition of "property" differently. He argues that the phrase "buildings, structures and improvements" merely modifies "real property," so that a person who owns a building, structure or improvement but does not also own the underlying real property does not own "property" within the meaning of the statute. He interprets the statute to create two categories of "property": 1) real property, along with any buildings, structures, or improvements thereon; and 2) the waters of the state. He bases this interpretation on the lack of punctuation between the phrases "real property" and "buildings, structures and improvements" in the definition.

[6, 7]

¶ 19. We decline to give the absence of a comma such interpretive significance. Peterson's punctuation-based interpretation operates to impose a requirement that does not appear on the face of the statute: that the owner of a building, structure or improvement implicated in a recreational injury must also own the underlying real property in order to own "property" as that term is defined in the statute. But the statute does not say "`[p]roperty' means real property and buildings, structures and improvements thereon that are owned by the real property owner," and we cannot rewrite it in the exercise of interpreting it. S...