DocketNumber: Appeal No. 2017AP2178
Citation Numbers: 926 N.W.2d 210, 2019 WI App 11, 386 Wis. 2d 243
Judges: Hruz, Seidl, Stark
Filed Date: 2/12/2019
Status: Precedential
Modified Date: 10/16/2022
*247¶1 Paula Langenhahn was injured when she tripped on a barricade positioned in an unmarked crosswalk while exiting Marathon Fun Days, a four-day community event held on park grounds in the Village of Marathon City. Paula and her *248husband, Keith Langenhahn, appeal a summary judgment dismissing their personal injury claims against the event organizer, American Legion Post 469, and its insurer, West Bend Mutual Insurance Company. The Langenhahns argue summary judgment on recreational immunity grounds was improper because Post 469 was not a statutory "owner," in that it did not "occupy" the crosswalk where Paula was injured. They also argue the circuit court improperly applied recreational immunity because Paula was not engaged in a recreational activity at the time of her injury.
¶2 We conclude the circuit court properly granted Post 469's summary judgment motion. Case law establishes that the producer or organizer of a recreational event like Marathon Fun Days "occupies" the real property on which the event is held, and it is therefore considered an "owner" of the property for purposes of recreational immunity. Moreover, the undisputed evidence in this case establishes that Paula's injury occurred on real property dedicated to a recreational use. Finally, Paula was walking to exit the Marathon Fun Days event at the time of her injury, an act that itself constitutes a recreational activity because *213it was "inextricably connected" to her attendance at that event. We affirm.
BACKGROUND
¶3 Post 469, a nonprofit organization, organizes and produces Marathon Fun Days in the Village of Marathon City. Marathon Fun Days is a community event that occurs annually during the Labor Day weekend. The event is held at Marathon City Veterans Park, which consists of approximately three square blocks and is bordered on the north by Third Street, on the south by Fourth Street, on the west by Market *249Street, and on the east by an imaginary extension of East Street, which terminates on both sides of the park.
¶4 On September 3, 2011, the Langenhahns attended an informal class reunion at Marathon Fun Days. Upon arriving at the area, Keith parked their car to the south of the park area, near the intersection of Chestnut Street and Fourth Street, and then they walked across Chestnut Street and Fourth Street to get to the park grounds. The Langenhahns attended Marathon Fun Days for a few hours, during which time they socialized with Keith's former classmates. Alcoholic and other beverages were being served at the event; Keith consumed one beer while attending the reunion.
¶5 The Langenhahns left Veterans Park that night through an opening in the fence surrounding the park. They walked across Fourth Street, then east on the sidewalk opposite Veterans Park until they encountered Chestnut Street. Keith told Paula he would walk ahead and unlock the car, and he proceeded to walk slightly ahead of Paula. As Paula stepped off the curb behind him and began to cross Chestnut Street, she tripped over the foot of a metal barricade that was protruding into the crosswalk.
*250¶6 The barricades were present in the intersection because, each year, Post 469 requests that the Village block off Fourth Street to vehicular traffic between East Street and Washington Street. Post 469 officials were aware that people would park to the south of Fourth Street and believed allowing vehicular traffic on Fourth Street presented a danger to children and other pedestrians. Post 469 did not locate food stands, rides, or other structures associated with Marathon Fun Days within Fourth Street, but it did use Fourth Street for a children's parade. In addition, access to Fourth Street is permitted for emergency vehicles and handicap parking.
¶7 Rent-A-Flash Company provided Post 469 with the barricades for the event *214free of charge. Donald Southworth, the head of Post 469's executive committee at the time, told Rent-A-Flash where to deliver the barricades for storage until they were ready for deployment. The appellate record is unclear whether the Village, through its police department, or Post 469 ultimately placed the barricades in the roads.
¶8 The Langenhahns filed a negligence action against Post 469.
DISCUSSION
¶9 We review a grant of summary judgment de novo. Tews v. NHI, LLC ,
¶10 The circuit court's grant of summary judgment was based on its conclusion that Post 469 was entitled to recreational immunity. The recreational immunity statute, WIS. STAT. § 895.52, reflects a legislative choice to "expand[ ] liability protection for landowners who open their private property for public recreational use." Lang v. Lions Club of Cudahy Wis., Inc. ,
¶11 The statute accomplishes this goal by "removing a property user's potential cause of action against a property owner's alleged negligence." Kautz ex rel. Kautz v. Ozaukee Cty. Agri. Soc. ,
(2) NO DUTY; IMMUNITY FROM LIABILITY . (a) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owner's property to engage in a recreational activity:
1. A duty to keep the property safe for recreational activities.
*2532. A duty to inspect the property, except as provided under s. 23.115(2).
3. A duty to give warning of an unsafe condition, use or activity on the property.
(b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner's property ....
WIS. STAT . § 895.52(2).
¶12 The statute contains a number of defined terms, including the terms "owner" and "recreational activity." See WIS. STAT . § 895.52(1)(d), (1)(g). The Langenhahns argue the circuit court incorrectly concluded that the circumstances of this case satisfy those definitions. Specifically, the Langenhahns argue that Post 469 was not a statutory "owner" of the property on which Paula was injured and that Paula was not engaged in a "recreational activity" when she fell.
¶13 These arguments require that we interpret WIS. STAT . § 895.52 and apply it to the facts of this case. Statutory interpretation and application are questions of law that we review independently of the circuit court. Westmas ,
I. Post 469 was a statutory "owner" of the property on which Paula was injured.
¶14 Recreational immunity applies only to an "owner" of the relevant property and to the owner's officers, employees or agents. See WIS. STAT. § 895.52(2)(a), (2)(b). As relevant to this appeal, an owner is defined as "[a] person, including a governmental body or nonprofit organization, that owns, leases or occupies property." Sec. 895.52(1)(d)1. It is undisputed that Post 469 did not own or lease Veterans Park or the surrounding area. Accordingly, Post 469 can only prevail on recreational immunity grounds by demonstrating it occupied the relevant real property. See Rintelman v. Boys & Girls Clubs of Greater Milwaukee, Inc. ,
¶15 In Hall , we adopted a definition of "occupy" that focuses on possession of the real property:
[O]ccupant include[s] persons who, while not owners or tenants, have the actual use of land. ... While "occupant" includes *216[an] owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to [occupies], the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner.
*255Hall ,
¶16 Post 469's occupation of Veterans Park and the surrounding areas to host Marathon Fun Days plainly satisfied these criteria. "Prior cases interpreting Wisconsin's recreational immunity law have concluded that the producer of a fair or event 'occupied' property." Roberts ,
¶17 The Langenhahns place substantial weight on Roberts in claiming that Post 469 should not benefit from recreational immunity. Roberts involved a lawsuit *256against the owner and operator of a company that offered hot air balloon rides at a charity event.
¶18 Here, the Langenhahns argue that Post 469 is in a similar position to the hot air balloon company in Roberts . However, in doing so, they focus narrowly on the specific crosswalk where Paula was injured, asserting that Post 469 could not have opened the crosswalk to the public because it was already open for all pedestrians to use throughout the Marathon Fun Days event. Their narrow focus on the crosswalk-which we will address momentarily-fails to account for Post 469's status as the organizer and producer of Marathon Fun Days, a status that materially distinguishes it from the hot air balloon company in Roberts . Roberts established that an event organizer "occupies" the relevant property regardless of whether such a status might be consistent with the statute's philosophical underpinnings in a given *217case.
¶19 The Langenhahns' argument that immunizing Post 469 does not advance the legislature's policy goals is, in fact, merely a variation of a different argument of theirs-namely, that the specific crosswalk at issue was not sufficiently withdrawn from public use to warrant immunity. In the Langenhahns' view, to be eligible for recreational immunity, Post 469 must have completely withdrawn the crosswalk from general public use and dedicated it solely to a recreational activity. As authority, the Langenhahns primarily rely on Kostroski v. County of Marathon ,
¶20 In Kostroski , a party injured on a portable wooden sidewalk in a county park argued that an earlier case, Bystery v. Village of Sauk City ,
¶21 The Kostroski court, purporting to apply Bystery , concluded that recreational immunity applied to bar the plaintiff's claim. In asserting that recreational immunity applies only if a road or sidewalk is dedicated exclusively to recreational activities, the Langenhahns rely on the following paragraph:
The portable sidewalk, whose only purpose was to provide access over a racetrack and connect two areas of the county park, was sufficiently withdrawn or withheld from transportation uses and devoted to recreational activities so as to comply with the test set forth in Bystery . The location of this sidewalk within the boundaries of a park is not dispositive. Were this sidewalk available for purposes of general transportation by the public, the mere fact that the injured user was engaged in recreational activity within the park would not provide immunity. The dispositive feature of this sidewalk is its solitary purpose to serve only those attempting to enter or leave the ball park otherwise surrounded and enclosed by the racetrack.
Kostroski ,
¶22 There are two problems with the Langenhahns' reliance on Kostroski , and *218we conclude it cannot be read for the proposition that complete withdrawal and devotion to recreational activities is necessary. First, there is no longer a statutory conflict; WIS. STAT . § 81.15 (1987-88), and its provisions relating to municipal liability for negligent highway or sidewalk maintenance have been repealed. See 2003 Wis. Act 213, § 136 (renumbering the statute); 2011 Wis. Act. 132 (repealing liability for negligent maintenance). Because the conflict *259addressed in Bystery (and, consequently, Kostroski ) no longer exists, the precedential vitality of the court's resolution of that conflict is unclear.
¶23 The larger problem for the Langenhahns is that even if Kostroski remains good law, it does not require that a sidewalk (or crosswalk) be overtly dedicated entirely to recreational purposes. Bystery held that it is sufficient that the municipality withdraw the highway or sidewalk from transportation uses "in whole or in part" and devote the area to a recreational activity.
¶24 The better analogy is to Lasky v. City of Stevens Point ,
¶25 Here, it is beyond dispute that the area of Fourth Street around Marathon Fun Days was withdrawn from general vehicular transportation uses. The area was barricaded to prevent motor vehicle use, even if certain motorists (i.e., emergency vehicles and vehicles using handicap parking) were allowed to operate within that area. As a matter of law, this constituted a sufficient withdrawal from general transportation purposes and devotion to recreational activities so as to satisfy the Bystery requirements.
*219*261¶26 The Langenhahns object that Paula was injured in a crosswalk for Chestnut Street, not a crosswalk traversing Fourth Street. They assert the Marathon Fun Days grounds were "limited to the borders of ... Veterans Park and potentially 4th Street" and did not include the Chestnut Street crosswalk "located several feet south" of Fourth Street. They also argue that, at a minimum, there is a genuine issue of material fact regarding whether Paula's fall occurred in an area "occupied" by Post 469.
¶27 Whatever else may be said about the Chestnut Street crosswalk, it is clear that Post 469 occupied at least the portion of it that included the barricade on which Paula tripped. As the circuit court astutely observed, "it would be incongruous to say that [Post 469] was responsible for the presence of the barricades but that it was not occupying the property where they were situated." The boundary of the area withdrawn for general transportation purposes, as a matter of law, included the barricades that prevented motor vehicle access to Fourth Street. Thus, we reject the argument that Post 469 did not "occupy" the Chestnut Street crosswalk. The presence of the barricades *262plainly evidences Post 469's occupancy of it, and no reasonable fact finder could conclude otherwise.
II. Paula was participating in a recreational activity at the time of her injury.
¶28 The recreational immunity statute requires that the injured party had been engaging in a "recreational activity." See WIS. STAT . § 895.52(2). The statute defines that phrase in three ways. See Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of La Crosse ,
¶29 The parties generally agree that Paula was walking at the time she was injured. As we explained in Wilmet v. Liberty Mutual Insurance Co. ,
¶31 We agree with Post 469 that the Langenhahns' formulation of the activity with which Paula's walk was associated is too narrow. "Each recreational immunity case 'poses an intensely fact-driven inquiry.' " Wilmet ,
*264¶32 Indeed, the property user's intent is but one of several factors to consider in determining whether an activity is recreational in nature.
We apply a multi-factor test to ascertain whether a particular activity is 'substantially similar' to those enumerated in the statute, including: (1) the activity's intrinsic nature; (2) the purpose of the activity; (3) the activity's consequences; (4) the property user's intent and reason for being on the property; (5) the nature of the property; and (6) the property owner's intent. The focus of the inquiry is whether, under the totality of the circumstances, a reasonable person would understand the injured person to have entered the property to engage in a recreational activity.
Wilmet ,
¶33 Here, the Langenhahns were attending an informal class reunion held on the grounds of, and during, the Marathon Fun Days event. The Langenhahns present no basis for distinguishing their attendance at the class reunion from their presence at Marathon Fun Days. They were engaged in socializing with friends and Keith drank an alcoholic beverage while in the park. There were apparently food stands and amusement rides located on the grounds for attendees. The event appears similar to the fair we deemed a "recreational activity" in Hall . See Hall , 146 Wis.2d at 488,
¶34 More recent case law also supports our conclusion that attendance at the Marathon Fun Days event-even for an informal class reunion-constitutes a "recreational activity." In *265Carini v. ProHealth Care, Inc. ,
¶35 The Langenhahns' walking to exit Marathon Fun Days was inextricably connected to their attendance at the event, and it was therefore a recreational activity qualifying Post 469 for immunity. "Our case law makes clear that the act of walking to or from an immune activity constitutes a recreational activity."
CONCLUSION
¶36 We conclude the circuit court properly granted Post 469's summary judgment motion. As a producer or organizer of the Marathon Fun Days event, Post 469 was an "owner" under WIS. STAT . § 895.52. Paula was engaged in a recreational activity at the time of her injury, which occurred on real property occupied by Post 469. The court correctly *266concluded recreational immunity applied under these circumstances, and we affirm the grant of summary judgment.
By the Court. -Judgment affirmed.
The total area described by the documents in the appellate record consists of approximately four blocks. However, it appears the westernmost "block," which is bordered by Market Street on the west and Washington Street on the east, is occupied by several buildings and parking lots. It is not clear whether these structures were in use as part of the Marathon Fun Days event.
The barricades were known as "Type 3" barricades, which are approximately five feet tall and four feet wide. The barricades have striped slats hanging horizontally on a metal frame and are supported on each end by two "legs," each of which has two "feet" that support the barricade on the ground. One side of the barricade has feet that measure 19.5 inches in length, while the other side has longer feet measuring 37 inches in length. Keith testified the longer feet were positioned within the crosswalk on Chestnut Street, pointing south. The crosswalk was not formally identified by any markings.
The deposition testimony was consistent that Post 469 would instruct the Village as to which roads it wanted blocked off. However, there was disagreement regarding who was ultimately responsible for the barricades' physical placement. Southworth testified that decisions about where and how to place the barricades (as well as their physical deployment in the chosen locations) were handled by the Village police department. Conversely, others (including the Village police chief) testified that Post 469 was responsible for deploying the barricades prior to the start of Marathon Fun Days. We do not regard the identity of the person or persons who deployed the barricades as a material fact in this case.
The Langenhahns filed an amended complaint adding the Village of Marathon City and its insurer as defendants. Those parties were subsequently dismissed by stipulation.
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted. Although the recreational immunity statute has been amended several times since Paula's injury, none of the amendments are relevant to this appeal, and we therefore use the current version of the statute.
The Langenhahns do not develop any argument that Post 469 is not entitled to immunity because Marathon Fun Days primarily took place in a public park. In any event, prior cases establish that an event organizer receives the benefit of recreational immunity even if the event takes place on public lands. See Lee v. Elk Rod & Gun Club, Inc. ,
We recognize that at the time of Paula's injury in 2011, the highway liability statute remained in effect. See
We subsequently recognized that Bystery 's statement about devoting the street or sidewalk to recreational activities, see Bystery v. Village of Sauk City ,
The Langenhahns do not explain, even in general terms, how a requirement of complete devotion to recreational activities would operate in practice. They do not, for example, argue the Village or Post 469 was required to post signs that the area was available only for recreational pedestrian activity, or that it was required to direct pedestrians not attending Marathon Fun Days away from the intersection. Neither did the court in Kostroski explain how such a requirement would work, lending further support to our conclusion that the Langenhahns read that decision too broadly. See Kostroski v. County of Marathon ,
The Langenhahns appear to have forfeited any argument that reversal is warranted because a genuine issue of material fact exists as to whether Post 469 occupied the crosswalk in which Paula was injured. They argued in their brief opposing summary judgment that Paula was undisputedly not injured on occupied property, asserting that opposing counsel had effectively conceded-by his manner of framing deposition questions posed to Paula-that the accident occurred on non-occupied property. The Langenhahns did not argue there was a factual dispute that made summary judgment improper, and we usually do not consider arguments raised for the first time on appeal. See State v. Bodoh ,