Waller v. Zurich Ins. Co.
| Decision Date | 05 June 2012 |
| Docket Number | No. 2011AP1013.,2011AP1013. |
| Citation | 343 Wis.2d 678,2012 WI App 88,819 N.W.2d 562 |
| Parties | Tasha WALLER and Makaylee Clegg, by her Guardian ad Litem, Benjamin C. WELCH, Plaintiffs–Appellants, State of Wisconsin Department of Health Services, InvoluntaryPlaintiff, v. Zurich Insurance Company and Menard, Inc., Defendants–Respondents. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment of the circuit court for Langlade County: James R. Habeck, Judge. Affirmed.
Before HOOVER, P.J., PETERSON and MANGERSON, JJ.¶ 1PER CURIAM.
Tasha Waller and Makaylee Clegg (collectively, Waller) appeal a summary judgment in favor of Menard, Inc. and Zurich Insurance Company (collectively, Menard). The circuit court concluded Menard was entitled to recreational immunity under Wis. Stat. § 895.52 for injuries Clegg sustained from a fall off a swing set display in one of Menard's stores.1 We conclude Clegg was engaged in a recreational activity and neither the profit nor social guest exceptions to the immunity statute apply. Accordingly, we affirm.
¶ 2 The pertinent facts are undisputed. On June 23, 2010, six-year-old Makaylee Clegg slipped off some monkey rings on a swing set display in Menard's store in Antigo, Wisconsin. She broke her wrist as she fell to the mulch below.
¶ 3 The swing set, which consisted of swings, slides, climbing devices, and the monkey rings, was located in Menard's garden center, a large steel structure partially protected from the elements by a roof and directly attached to the main store. The garden center was stocked with products for sale on shelves. The display was intended to make customers aware of Menard's products and generate sales. Menard offered for sale every piece of equipment displayed in the garden area. It did not charge a fee to use the swing set, nor did it require a purchase.
¶ 4 Waller filed suit after the accident, raising a number of negligence claims. Menard responded by asserting it was immune from liability under Wisconsin's recreational immunity statute. Eventually, Menard moved for summary judgment on that ground.2 The circuit court concluded that Clegg was engaged in a recreational activity, and that neither the social guest nor profit exceptions to the immunity statute applied. Accordingly, it granted Menard's motion for summary judgment.
¶ 5 We review a grant of summary judgment de novo, using the same methodology used by the circuit court. Crowbridge v. Village of Egg Harbor, 179 Wis.2d 565, 568, 508 N.W.2d 15 (Ct.App.1993). We first review the complaint to determine whether a claim for relief has been stated, and then determine whether any factual disputes exist. Id. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).
¶ 6 Menard asserts the circuit court properly granted summary judgment because there is no genuine issue of material fact and it is entitled to judgment as a matter of law on its recreational immunity defense. “Immunity under Wis. Stat. § 895.52 is a defense to a negligence claim that might entitle a moving party to judgment.” Leu v. Price Cnty. Snowmobile Trails Ass'n, 2005 WI App 81, ¶ 6, 280 Wis.2d 765, 695 N.W.2d 889. Interpretation and application of the recreational immunity statute are questions of law. Milton v. Washburn Cnty., 2011 WI App 48, ¶ 7, 332 Wis.2d 319, 797 N.W.2d 924,review denied,2011 WI 86, 335 Wis.2d 148, 803 N.W.2d 850.
¶ 7 Recreational immunity is conferred by Wis. Stat. § 895.52. As relevant here, the statute immunizes any owner of property for injury to “a person engaging in a recreational activity on the owner's property....” Wis. Stat. § 895.52(2)(b). Thus, for summary judgment purposes, Menard must show that there is no genuine issue of material fact as to whether Clegg engaged in a “recreational activity” on Menard's property.3
¶ 8 A “recreational activity” is the lynchpin of immunity under Wis. Stat. § 895.52. The statute contains a lengthy definition of “recreational activity.” This definition is divided into three parts, as our supreme court explained in Sievert v. American Family Mutual Insurance Co., 190 Wis.2d 623, 629, 528 N.W.2d 413 (1995):
(1) a broad definition stating that a recreational activity is “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure,” (2) a list of 28 specific activities denominated as recreational,[ 4] and (3) a second broad definition, directing that a recreational activity can be “any other outdoor sport, game or educational activity.”
The first, and broadest, part of the definition encompasses “nearly every human activity that can be undertaken outdoors,” and therefore must be “anchored to its statutory context and construed in light of the statute's list of specific recreational activities as well as the second broad definition.” Id.
¶ 9 We conclude that playing on a swing set is a “recreational activity” that may entitle a property owner to immunity. This type of activity traditionally occurs in backyards, parks, and other outdoor settings for exercise or pleasure. SeeWis. Stat. § 895.52(1)(g). In Kruschke v. City of New Richmond, 157 Wis.2d 167, 168, 171, 458 N.W.2d 832 (Ct.App.1990), we concluded that “playground swinging is included within” § 895.52(1)(g)'s definition of a recreational activity. Playing on monkey rings, like swinging, is a form of “child's play” that can constitute a recreational activity. See Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of La Crosse, 2001 WI 64, ¶¶ 30–31, 244 Wis.2d 290, 627 N.W.2d 527 ().
¶ 10 This conclusion is consistent with our legislature's expressed intention that “ ‘where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability.’ ” Linville v. City of Janesville, 184 Wis.2d 705, 714–15, 516 N.W.2d 427 (1994) (quoting 1983 Wis. Act 418). Playing on a swing set is not included in the list of enumerated activities under Wis. Stat. § 895.52(1)(g). However, property owners are nonetheless entitled to immunity when the activity in question is “substantially similar” to an enumerated activity “or when the activity is undertaken in circumstances substantially similar to the circumstances of a recreational activity.” Paper Recycling, 244 Wis.2d 290, ¶ 20, 627 N.W.2d 527 (alterations omitted).
¶ 11 To determine whether an activity is substantially similar to the activities or circumstances identified in Wis. Stat. § 895.52(1)(g), we apply what has become known as the Linville test. This is an objective test that examines all aspects of an activity, including its nature, purpose, and consequences. Linville, 184 Wis.2d at 713, 516 N.W.2d 427. Children use swing sets for play or exercise, and often for no reason other than to have fun. Thus, we consider Clegg's activity on the display to be essentially recreational in nature. Although our supreme court views such children's activities with disapproval for recreational immunity purposes when undertaken during the school day, see Auman v. School Dist. of Stanley–Boyd, 2001 WI 125, ¶ 16, 248 Wis.2d 548, 635 N.W.2d 762, “[w]ith limited exception, all outdoor activities that children engage in during their idle hours might constitute a recreational activity under § 895.52(1)(g),” id., ¶ 10 (citing Paper Recycling, 244 Wis.2d 290, ¶ 43, 627 N.W.2d 527 (Bradley, J., concurring)).
¶ 12 Waller contends the recreational immunity statute does not apply because the activity here took place indoors. In other words, she contends that an activity is not a “recreational activity” unless it occurs outside. Waller's interpretation of the statute places far greater importance on the nature of the property than is warranted by our case law. “As Linville teaches, the test to determine whether an activity is recreational focuses on the ‘nature of the activity,’ not the nature of the property.” Sievert, 190 Wis.2d at 632, 528 N.W.2d 413 (quoting Linville, 184 Wis.2d at 716, 516 N.W.2d 427). Although the nature of the property is one factor among many that may be considered in determining whether an activity is “substantially similar” to those listed in the statute, it is not dispositive. Paper Recycling, 244 Wis.2d 290, ¶ 24, 627 N.W.2d 527.5
¶ 13 We disagree with Waller's assertion that the swing set was located indoors. The area is partially protected from the elements but has one open side and is not temperature controlled. In this sense, the structure is similar to those identified by our supreme court as “other buildings that one does enter for purposes of engaging in outdoor recreational activity: open air park pavilions, observation towers, gazebos, or screen houses used for picnics, and so on.” 6Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶ 24 n. 9, 248 Wis.2d 567, 636 N.W.2d 727. While perhaps less common than the examples cited by Peterson, the activity in this case similarly appears to be an outdoor activity that happened to take place within a structure or building.
¶ 14 In any event, the classification of property as “indoor” or “outdoor” is largely irrelevant. As Paper Recycling makes clear, the “nature of the property” inquiry measures the owner's intent and use of the property. See Paper Recycling, 244 Wis.2d 290, ¶ 25, 627 N.W.2d 527. We have not used it to dispense with immunity for activities occurring within the confines of a structure. Further, the recreational immunity statute makes clear that an outdoor recreational activity may take place inside a building or structure. Were this not so, the legislature would have had no reason to include “real property and buildings, structures and improvements thereon ” in Wis. Stat. § 895.52's definition of “property.” SeeWis. Stat. §...
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