Verdoljak v. Mosinee Paper Corp.

• Decision Date: 10 May 1996
• Docket Number: No. 94-2549-FT,94-2549-FT
• Citation: 547 N.W.2d 602,200 Wis.2d 624
• Parties: Matthew VERDOLJAK, Plaintiff-Appellant-Petitioner, v. MOSINEE PAPER CORPORATION, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 602

547 N.W.2d 602

200 Wis.2d 624

Matthew VERDOLJAK, Plaintiff-Appellant-Petitioner, v. MOSINEE PAPER CORPORATION, Defendant-Respondent.

No. 94-2549-FT.

Supreme Court of Wisconsin.

Argued Feb. 1, 1996.

Decided May 10, 1996.

For the plaintiff-appellant-petitioner there was a brief by Toby E. Marcovich, George L. Glonek and Marcovich, Cochrane & Milliken, Superior, and oral argument by George L. Glonek.

For the defendant-respondent there was a brief by Mark A. Siefert and Stilp, Cotton and Wells, Eau Claire and oral argument by Mark A. Siefert.

GESKE, Justice.

Matthew Verdoljak (Verdoljak) petitioned this court for review of a decision of the court of appeals affirming the order of the Circuit Court for Douglas County dismissing his negligence action against Mosinee Paper Corporation (Mosinee). The order was entered by Judge Joseph A. McDonald upon granting the defendant's motion for summary judgment on the grounds that the claim was barred under the "recreational use" statute, Wis.Stat. § 895.52 ¹ which "limits a property owner's liability for an injury to, or caused by, someone engaging in a recreational activity on the owner's property." Sievert v. American Family Mut. Ins. Co., 190 Wis.2d 623, 626, 528 N.W.2d 413 (1995). We granted the petition for review to resolve the issue of whether § 895.52 was properly applied to immunize Mosinee from liability for injuries Verdoljak sustained while riding his motorbike on a logging road owned by Mosinee. We conclude that the recreational use statute does not require an owner to "open" his or her lands in order to be afforded immunity from liability to a person injured while engaging in recreational activity on the owner's property. We affirm the decision of the court of appeals and hold that the recreational use statute does apply to owners like Mosinee, even when they place some restrictions on the public's use of their lands.

FACTS

The material facts are undisputed. On July 27, 1992, Verdoljak transported his Honda 125 "dirt bike" by truck to a location where he intended to meet friends to go riding "for fun." Upon arriving and not finding his friends, Verdoljak unloaded his motorbike and went riding alone at a nearby sand pit. After a short time, he decided to try to meet up with his friends and headed back along a dirt or sandy trail through a forested area. Verdoljak had used the logging trail before and viewed it as a "short-cut" to the area where he intended to meet his friends. He was injured when he drove into a gate blocking the road which consisted of a one-half-inch steel rod suspended by chains hung from posts on either side of the trail.

Mosinee owns the section of forest where the accident occurred. Several trails or logging roads wind through the property to provide Mosinee's logging trucks and equipment access to the forest land during harvest season. For the protection of the property, the public, loggers and logging equipment, the gate is closed during active harvesting operations to block access by private vehicles or individuals. However, when logging is not in progress, the property is open to the public for hunting and fishing ² and permits could be obtained to gather firewood. There were no "no trespassing" signs posted. Nor were there signs prohibiting motorbike use on the trail or specifically designating the trail for such use.

RECREATIONAL USE IMMUNITY

We review a grant of summary judgment by applying the same standards used by the circuit court in making its initial determination--those set forth in Wis.Stat. § 802.08(2). Shannon v. Shannon, 150 Wis.2d 434, 441, 442 N.W.2d 25 (1989). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Linville v. City of Janesville, 184 Wis.2d 705, 714, 516 N.W.2d 427 (1994). Resolution of this case requires us to apply the recreational use statute to the undisputed facts which present a question of law requiring de novo review. Sievert, 190 Wis.2d at 628, 528 N.W.2d 413.

Verdoljak argues that Mosinee is not entitled to invoke the protection of the recreational use statute in this case because Mosinee had not "opened" its property for the particular recreational use of motorbiking at the particular time of the accident. He asserts that the legislative history and the decisions of Wisconsin courts have made it clear that a private landowner is only afforded immunity for lands "opened" to public use. He argues further that Mosinee cannot claim the benefit of having "opened" its lands for recreational use because it took "affirmative steps to expressly forbid" the use of motorbikes on the property. ³ Under Verdoljak's theory, landowners should permit the public full access to their land for all recreational uses because any restrictions would expose an owner to liability. In short, he contends that landowners must open all of their land, to all recreational uses, at all times, in order to benefit from full protection of the recreational use statute.

We reject this argument. Rather, we concur with the position taken by the court of appeals which found that the meaning of Wis.Stat. § 895.52 is "straightforward and plain: It limits 'the liability of property owners toward others who use the property for recreational activities'; it does not purport to condition that limit to owners who open their land to those who use it for recreational activities." Verdoljak v. Mosinee Paper Corp., 192 Wis.2d 235, 246, 531 N.W.2d 341 (Ct.App.1995). There are large sections of land in Wisconsin on which a member of the public will be greeted by neither a "Welcome" nor a "No Trespassing" sign. Under Wis.Stat. § 895.52(2) the owner of the property is clearly, unambiguously immune from liability for injury suffered or caused by a person engaging in recreational activity on the property. The focus is on the activity of the person who enters and uses the land, not upon any obligation on the part of the owner to affirmatively demonstrate that the land is open. ⁴

As in all instances when our inquiry centers on a statute, our primary objective is to ascertain and give effect to the intent of the legislature. State v. Olson, 175 Wis.2d 628, 633, 498 N.W.2d 661 (1993). Here, the legislature has provided us with a clear statement of intent contained in the introductory language to 1983 Wisconsin Act 418 which created Wis.Stat. § 895.52:

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.

Neither the statement of legislative intent nor the language of Wis.Stat. § 895.52 contains the word "open." This stands in contrast with the introductory language of 1963 Wis.Act 89 which created the predecessor immunity statute, Wis.Stat. § 29.68 ⁵, describing it as "relating to the limitations on liability of landowners who open private lands for recreational purposes." However, this introductory language was altered three times prior to the creation of § 895.52 in subsequent amendments, none mentioning an obligation to "open" land but rather referring to: "a landowner who gives another permission to use his land for a recreational purpose" (1965 Wis.Act 190); "landowners who permit people to cut or remove wood from their land" (1977 Wis.Act 75); and finally "landowners who allow their land to be used for certain outdoor recreational activities" (1977 Wis.Act 123).

We have found that the nature and language of amendments are significant and that the omission of a word or phrase is indicative of an intent to alter statutory meaning. Cardinal v. Leader Nat. Ins. Co., 166 Wis.2d 375, 388, 480 N.W.2d 1 (1992). Further, where a statute has been repealed and recreated on the same subject, any changes in language are presumed to be the result of conscious deliberation on the part of the legislature. Kerkvliet v. Kerkvliet, 166 Wis.2d 930, 945-46, 480 N.W.2d 823 (Ct.App.1992). Here, the newly created statute is essentially a complete rewrite, containing none of the previous references to "open[ing] land" and giving or granting "permission" to enter. Again, the legislature has provided clear guidance in its statement of its intent as to the focus of the current statute as contrasted with its predecessor: "[1983 Wis.Act 418] 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 unambiguous language of the recreational use statute sets the following precondition for immunity--that the injury be to or caused by "a person engaging in a recreational activity on the owner's property ..." Wis.Stat. § 895.52(2)(b). There is no language that conditions immunity upon affirmative acts on the part of the owner to grant permission or otherwise "open" land. ⁶ The legislature has made it clear that previous decisions by Wisconsin courts that are more restrictive, implying a requirement that lands be "open," are overruled.

We must presume that the legislature intends for a statute to be interpreted in a manner that advances the purposes of the statute. GTE North Inc. v. Public Service Comm., 176 Wis.2d 559, 566, 500 N.W.2d 284 (1993). This court and the court of appeals have recognized that the purpose of the recreational immunity statute is to encourage property owners to allow use of their lands...