Wilmet v. Liberty Mut. Ins. Co.

• Decision Date: 28 February 2017
• Docket Number: Appeal No. 2015AP2259
• Parties: Carol WILMET and Gerald Wilmet, Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY and City of De Pere, Defendants-Respondents, Kathleen Sebelius and ABC Insurance Company, Defendants.
• Court: Wisconsin Court of Appeals

374 Wis.2d 413

893 N.W.2d 251

2017 WI App 16

Carol WILMET and Gerald Wilmet, Plaintiffs-Appellants,

v. LIBERTY MUTUAL INSURANCE COMPANY and City of De Pere, Defendants-Respondents,Kathleen Sebelius and ABC Insurance Company, Defendants.

Appeal No. 2015AP2259

Court of Appeals of Wisconsin.

Submitted on Briefs: June 14, 2016

Opinion Filed: February 28, 2017

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Kristen S. Scheuerman Knutson of Herrling Clark Law Firm, Ltd., Appleton.

On behalf of the defendants-respondents, the cause was submitted on the brief of Peter M. Farb and J. Michael Sturino of Law Offices of Thomas P. Stilp, Milwaukee.

A nonparty brief was filed by William C. Gleisner, III and Michael J. Cerjak of Pitman, Kalkhoff, Sicula & Dentice, S.C., for Wisconsin Association For Justice.

Before Stark, P.J., Hruz and Seidl, JJ.

HRUZ, J.

¶1 Carol and Gerald Wilmet appeal an order dismissing their claims against the City of De Pere and its insurer as being barred by the recreational immunity statute, WIS. STAT. § 895.52 (2015-16).¹ The sole issue on appeal is whether that statute confers immunity against the claims of a person who is injured while undisputedly on the property to supervise a child engaged in "recreational activity." Like the circuit court, we conclude supervision of a child engaged in a recreational activity falls within the statute's ambit. Supervision, by definition, involves overseeing and directing another's performance of an activity, and it is similar in meaning to "practice" and "instruction"—two activities that are expressly within § 895.52's scope. Accordingly, we hold the City is entitled to immunity, and we affirm.

BACKGROUND

¶2 The Wilmets filed the present lawsuit alleging that on August 18, 2012, Carol Wilmet was on the premises of the VFW Swimming Pool, which the City owns and operates, when she tripped on a cement doorstop and was injured. The Wilmets asserted claims for a violation of the safe place statute ( WIS. STAT. § 101.11 ), negligence, and negligence per se. The City invoked the recreational immunity statute, WIS. STAT. § 895.52, as an affirmative defense to each claim, and it sought the action's dismissal on that basis.

¶3 The parties and circuit court treated the City's motion to dismiss as one for summary judgment. The City appears to have initially believed that Carol was swimming at the pool. However, Carol subsequently filed an affidavit in which she averred that she was at the pool on August 18 to drop off her grandchildren. After dropping them off, she remained outside the premises, supervising her grandchildren from behind the fenced perimeter of the pool as they swam. Carol further averred her grandson shouted to her that he was going to jump off the high dive. Carol observed there were no lifeguards in the area, and she was concerned about her grandson's safety. Carol told her grandson to wait, entered the pool premises without paying the entry fee (but with the attendant's permission), and went immediately from the entrance through the locker room and toward the high dive. Carol was injured as she walked toward the high dive. It is undisputed Carol did not plan to swim at the pool or stay on the premises following her grandson's dive. According to Carol, "[t]he only reason [she] entered the Pool premises was to ensure [her] grandson's safety and supervise his jump off the high dive."

¶4 The Wilmets opposed the City's summary judgment motion on the basis that Carol, in supervising her grandson, "was not partaking in a recreational activity just prior to or when the incident occurred." Rather, the Wilmets argued Carol was simply walking to get from one place to another, not to, for example, exercise or enjoy the scenery. Relying on Rintelman v. Boys & Girls Clubs of Greater Milwaukee, Inc. , 2005 WI App 246, 288 Wis.2d 394, 707 N.W.2d 897, the Wilmets argued such walking was not a "recreational activity" giving rise to immunity. The City responded that Carol's admitted activity of supervising her grandson, who was himself indisputably engaged in a recreational activity, was sufficient to bring the Wilmets' claims within the ambit of the recreational immunity statute.

¶5 The circuit court concluded that, given the undisputed facts, the City was entitled to recreational immunity. The court remarked that the recreational immunity statute is to be liberally construed in favor of protecting property owners. In the court's view, the legislature's purpose in enacting the statute—to encourage land owners to open up their property for recreational use—would be thwarted if individuals supervising, but not themselves participating in, a recreational activity were allowed to recover for injuries sustained during the course of their supervision. The Wilmets appeal.

DISCUSSION

¶6 Summary judgment allows controversies to be settled without trial when there are no disputed material facts and only legal issues are presented. Lasky v. City of Stevens Point , 220 Wis.2d 1, 5, 582 N.W.2d 64 (Ct. App. 1998). In reviewing motions for summary judgment, appellate courts apply, in the same manner as circuit courts, the standards set forth in WIS. STAT. § 802.08(2).

Kruschke v. City of New Richmond , 157 Wis.2d 167, 169, 458 N.W.2d 832 (Ct. App. 1990). Summary judgment "shall be rendered if 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." Subsec. 802.08(2).

¶7 "Recreational immunity under WIS. STAT. § 895.52 is a defense that may entitle a moving party to summary judgment."

Milton v. Washburn Cty. , 2011 WI App 48, ¶7, 332 Wis.2d 319, 797 N.W.2d 924. The statute "recognizes 'the dramatic shrinkage of the public's access to recreational land in an increasingly crowded world' and encourages landowners to open their property to the public for recreational use" by removing potential causes of action by property users against property owners. Held v. Ackerville Snowmobile Club, Inc. , 2007 WI App 43, ¶8, 300 Wis.2d 498, 730 N.W.2d 428 (quoting Kosky v.International Ass'n of Lions Clubs , 210 Wis.2d 463, 477, 565 N.W.2d 260 (Ct. App. 1997) ); see also Linville v. City of Janesville , 184 Wis.2d 705, 715, 516 N.W.2d 427 (1994). The immunity provisions of the statute together provide "that owners of land are not liable for injury to a person engaging in a recreational activity on the owner's property." Hupf v. City of Appleton , 165 Wis.2d 215, 219, 477 N.W.2d 69 (Ct. App. 1991).²

¶8 In deciding the applicability of the recreational immunity statute, we must first determine whether Carol was engaging in a "recreational activity" under WIS. STAT. § 895.52 at the time she was injured. See Sievert v. American Family Mut. Ins. Co. , 190 Wis.2d 623, 628, 528 N.W.2d 413 (1995). A "recreational activity" is defined in § 895.52(1)(g), which contains three parts. The first part "defines recreational activity as 'any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity.' " Auman ex rel. Auman v. School Dist. of Stanley-Boyd , 2001 WI 125, ¶8, 248 Wis.2d 548, 635 N.W.2d 762 (quoting § 895.52(1)(g) (1999-2000)). The second part of the definition lists over two dozen specific activities the legislature has designated as "recreational activities." Id. "The third part of the statutory definition broadly adds 'and any other outdoor sport, game or educational activity.' " Id. (quoting § 895.52(1)(g) (1999-2000)).³

¶9 When interpreting a statute, we begin with its language.

State ex rel. Kalal v. Circuit Court for Dane Cty. , 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110. Statutory language is generally given its common, ordinary, and accepted meaning. Id. In addition, we interpret statutory language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely- related statutes; and reasonably, to avoid absurd or unreasonable results." Id. ¶46. If this process yields a plain, clear meaning, there is no ambiguity in the statute and it is applied accordingly. Id. If the statute is ambiguous—that is, capable of being understood by reasonable, well-informed persons in two or more senses—we may resort to extrinsic interpretive aids, such as legislative history, to resolve the ambiguity. Id. ¶¶47, 50.

¶10 When, as here, the material facts are undisputed, the interpretation and application of a statute are questions of law, which we review independently. See Sievert , 190 Wis.2d at 628, 528 N.W.2d 413. There is no dispute Carol's grandson was engaged in the recreational activities of diving and swimming at the time Carol was injured. "Water sports" are designated recreational activities, see WIS. STAT. § 895.52(1)(g), and diving is a water sport, see Strong v. Wisconsin Chapter of Delta Upsilon , 125 Wis.2d 107, 108, 370 N.W.2d 285 (Ct. App. 1985). There is also no dispute over what Carol was doing at the time she was injured: Carol was walking through the locker room toward the high dive to "ensure [her] grandson's safety and supervise his jump off the high dive."

¶11 The Wilmets argue Carol's mere walking at the time she was injured within the pool area was not a recreational activity. WISCONSIN STAT. § 895.52 does not specifically identify walking as a recreational activity, but depending on the circumstances, it may qualify as such.⁴ A "recreational activity" includes a walk that is "inextricably connected" to an activity that would otherwise qualify under the statute. Urban v. Grasser , 2001 WI 63, ¶¶20-21, 243 Wis.2d 673, 627 N.W.2d 511. This appeal, however, does not turn on whether Carol's walking itself was for the purpose of her recreating.

¶12 Rather, the parties' dispute centers on whether supervising another person, who is himself...