Quesenberry v. Milwaukee County, 80-1515

• Decision Date: 30 March 1982
• Docket Number: No. 80-1515,80-1515
• Parties: Tess M. QUESENBERRY and Henry Quesenberry, her husband, Plaintiffs-Appellants-Petitioners, v. MILWAUKEE COUNTY, a municipal corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 468

317 N.W.2d 468

106 Wis.2d 685

Tess M. QUESENBERRY and Henry Quesenberry, her husband Plaintiffs-Appellants-Petitioners, v. MILWAUKEE COUNTY, a municipal corporation, Defendant-Respondent.

No. 80-1515.

Supreme Court of Wisconsin.

Argued March 2, 1982.

Decided March 30, 1982.

Joseph W. Weigel, Milwaukee, argued, for plaintiffs-appellants-petitioners; Weigel Law Firm, Milwaukee, on brief.

James J. Bonifas, Deputy Corp. Counsel, Milwaukee, for defendant-respondent.

DAY, Justice.

This is a review of a court of appeals decision, 103 Wis.2d 688, 309 N.W.2d 889, which affirmed an order of the circuit court for Milwaukee county, Hon. Leander J. Foley, Jr., Judge, dismissing the complaint of plaintiffs-appellants-petitioners, Tess M. Quesenberry and Henry Quesenberry (hereinafter plaintiffs) against defendant-respondent, Milwaukee county (hereinafter the county) for injuries received on a golf course on the ground that the complaint failed to state a claim upon which relief could be granted.

The principal issue presented is whether Sec. 29.68, Stats.1977, ¹ barring recovery for injuries received while engaging in recreational activities on lands of another, bars plaintiffs' suit against Milwaukee county for damages suffered when Tess Quesenberry was injured on a golf course owned and operated by the county. We conclude that it does not. The second issue is whether the "safe place" statute, Sec. 101.11, Stats.1977, ² applies. We conclude the record is insufficient at this stage of the proceedings to make that determination.

The complaint alleged that on June 4, 1978, plaintiffs, "for valuable consideration," were playing golf at the George Hansen Golf Course in George Hansen Park which is part of the Milwaukee county park system. While walking in the area of the fifth fairway, plaintiff, Tess Quesenberry, stepped into an eighteen-inch diameter hole created by a drainage tile. The complaint alleged that the hole was covered with grass, "not readily apparent or easily visible," and there were no barriers around the hole nor signs warning of "its hazardous nature." As a result of the fall, Tess Quesenberry suffered a broken leg and other injuries.

Defendants brought a motion to dismiss for failure to state a claim upon which relief could be granted. After reviewing the briefs and oral arguments of each party, the trial court dismissed the action on the ground that Sec. 29.68, Stats., as interpreted by this court in Wirth v. Ehly, 93 Wis.2d 433, 287 N.W.2d 140 (1980), barred the suit against the county. Plaintiffs appealed to the court of appeals which upheld the trial court. Plaintiffs petitioned this court to review the court of appeals' decision. We granted that petition.

This case is before us on a dismissal of the complaint for failure to state a claim upon which relief can be granted, pursuant to Sec. 802.06(2)(f), Stats. 1979-80. For purposes of determining whether a claim for relief has been stated, the facts pleaded in the complaint must be accepted as true. Kranzush v. Badger State Mut. Cas. Co., 103 Wis.2d 56, 57, 307 N.W.2d 256 (1981). A complaint should be dismissed as legally insufficient only if it is "quite clear" that under no conditions can the plaintiff recover. Morgan v. Pennsylvania General Ins. Co., 87 Wis.2d 723, 731-32, 275 N.W.2d 660 (1979). We will affirm an order dismissing a complaint for failure to state a claim only if, upon a review of the allegations contained therein, it appears to a certainty that no relief can be granted under any set of facts which plaintiffs could prove in support of them.

Sec. 29.68, Stats., limits a landowner's liability for injuries suffered by a person using land for specific types of recreational activity, subject to certain exceptions. One such exception, contained in Sec. 29.68(3)(b), states that liability is not limited if the person using the land gave valuable consideration for that use. Valuable consideration is defined by Sec. 29.68(5)(c) as not including payments to landowners of an aggregate value of less than $150, or "entrance fees" paid to governmental entities, including counties. The trial court and court of appeals held that Sec. 29.68 precluded the cause of action, and that the "valuable consideration" exception did not provide a basis for liability.

Plaintiffs' complaint alleged that they paid "valuable consideration" to golf. Giving the complaint a liberal construction, we conclude that the complaint does state a cause of action against the county which is not barred by Sec. 29.68, Stats. The trial court did not discuss the Sec. 29.68(3)(b) "valuable consideration" exception to the limitation of liability. The court of appeals recognized the valuable consideration exception, but held that it did not apply where the consideration was in the form of an "entrance fee," and apparently concluded that the "valuable consideration" alleged by plaintiff was an "entrance fee." Whether the "entrance fee" for entering the type of lands upon which the kinds of recreational activities described in the statute are carried out is the equivalent of the charge made to play golf cannot be determined from this record.

Even if the county had received no valuable consideration for the use of the golf course, we conclude that it still could not claim the benefit of Sec. 29.68, Stats., to limit its liability. We interpret Sec. 29.68 to pertain to the types of recreational uses of land specified in the statute and find that golf courses do not come within the scope of the statute.

Sec. 29.68, Stats., protects the owner of premises used by others for "hunting, fishing, trapping, camping, hiking, snowmobiling, berry picking, water sports, sightseeing, cutting or removing wood, climbing of observation towers or recreational purposes." "Recreational purposes" covers an almost limitless number of activities that could be so described. But the statute clearly limits the type of recreational activities meant to be covered. Golfing is not one of the enumerated uses, or types of use, described and therefore is not within the exceptions to owner liability described by the general term "recreational purposes." This conclusion is supported by the legislative history of Sec. 29.68, and canons of statutory construction.

Sec. 29.68, Stats., was enacted into law as ch. 89, Laws of 1963. As originally drafted the statute protected owners of land used by others for "hunting, fishing, trapping, camping, hiking, berrypicking, water sports, sightseeing or recreational purposes." In Copeland v. Larson, 46 Wis.2d 337, 343-44, 174 N.W.2d 745 (1970), this court reviewed the legislative history of Sec. 29.68 and found that the statute was passed in order to protect private landowners from liability for injuries suffered by persons hunting on their land. ³ Snowmobiling was added to the protected activities by ch. 394, Sec. 7, Laws of 1969. Cutting and removing wood, and climbing of observation towers were added to the list of activities covered by the statute by chs. 75, and 418, Sec. 258m, Laws of 1977. The statutory changes which added snowmobiling, wood cutting and observation tower climbing to the activities for which landowners are protected are inconsistent with reading "recreational purposes" to cover premises used for any sort of recreation. Under such a broad reading, the amendments would have been superfluous, as those activities would have been covered under "recreational uses or purposes" (with the exception of wood cutting which could be done for other than recreational purposes).

Restricting the scope of the statute to recreational use of land for the type of activities enumerated is consistent with the rule of statutory construction, ejusdem generis, i.e., where a general word follows an enumeration of more specific words, the general word is limited to objects of the same nature as the specific words preceding it. 2A Sands, Sutherland Statutory Construction, Sec. 47.17 (4th ed. 1973). Watkins v. Milwaukee County Civil Service Comm., 88 Wis.2d 411, 417, 276 N.W.2d 775 (1979). Applying this rule, the general term "recreational purposes" should be limited to activities similar to the preceding enumerated words. We conclude that the common feature of the enumerated words is that they are the type of activity that one associates being done on land in its natural undeveloped state as contrasted to the more structured, landscaped and improved nature of a golf course with its fairways, sand traps, rough and greens created for one purpose: to play the game of golf. However, the enumerated activities may sometimes occur on land that has been developed, such as bird hunting in a corn field or berry picking in a planted berry patch instead of in the woods. But golfing is clearly not the type of activity that is done on land in its natural undeveloped state.

In the recent case of Wirth v. Ehly, 93 Wis.2d 433, 287 N.W.2d 140 (1980), this court held that Sec. 29.68, Stats., precluded holding the state or its employees liable for an injury suffered while riding a motorbike in a state-owned fishing area in rural Dane county. An earlier case, Copeland v. Larson, 46 Wis.2d 337, 174 N.W.2d 745 (1970), applied Sec. 29.68 to an injury caused by a dive off of a pier into a lake. See also, Cords v. Anderson, rehearing, 82 Wis.2d 321, 262 N.W.2d 141 (1978); Cords v. Ehly, 62 Wis.2d 31, 214 N.W.2d 432 (1974); Goodson v. Racine, 61 Wis.2d 554, 213 N.W.2d 16 (1973). None of the above cases explicitly discussed the scope of "recreational purposes" in the statute.

At oral argument, counsel for the defendant argued that "valuable consideration ... in excess of $150.00 annually," referred to in Sec. 29.68(5)(c), Stats., meant $150 paid by one individual rather than the total annual amount received by a landowner. We disagree.

The valuable consideration exception was added to Sec. 29.68, Stats., by ch. 179, Laws of 1975. At that time, the section stated that "valuable...