Wis. Stat. 895.52 and the related cases
The starting point for recreational immunity is to understand that the purpose of the law is to induce property owners to open their land for recreational use. Therefore, recreational users are to bear the risk of the recreational activity. Held v. Ackerville Snow Club, 2007 WI App 43, 300 Wis. 2d 498, 730 N.W.2d 428, 06-0914. This immunity protection applies to condominiums and homeowner associations, even though for condominiums the association is not the owner of the land, because the association is an occupant of the land. Bethke v. Lauderdale of LaCrosse, Inc. 2000 WI App 107, 235 Wis. 2d 103, 612 N.W.2d 332, 99-1897.
The specific law is Section 895.52 Wis. Stat. Subsection (2)(a) provides, with limited exceptions, that:
“[N]o 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:
895.52(2)(a)1. 1. A duty to keep the property safe for recreational activities.
895.52(2)(a)2. 2. A duty to inspect the property, except as provided under s. 23.115 (2). [Dealing with trails, campgrounds and picnic areas]
895.52(2)(a)3. 3. A duty to give warning of an unsafe condition, use or activity on the property.”
The two exceptions that would seem most likely to cause the loss of the recreational immunity protection for associations are: (1) if the death or injury is caused by a malicious act (subsection 5) or (2) if the private property owner “collects money, goods or services in payment for the use of the owner’s property for the recreational activity during which the death or injury occurs, and the aggregate value of all payments received by the owner for the use of the owner’s property … exceeds $2,000.” (subsection 6).
For purposes of the statute “Recreational activity” is defined in subsection 1(g) as:
any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. “Recreational activity” includes hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle or utility terrain vehicle, … recreational aviation, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, participating in an agricultural tourism activity, sport shooting and any other outdoor sport, game or educational activity. “Recreational activity” does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.
You should also know that a Wisconsin Court has held that section 1(g) should be:
liberally construed in favor of property owners when the activity in question is not specifically listed but is substantially similar to listed activities or when the activity is undertaken in circumstances substantially similar to the circumstances of a recreational activity. Minnesota Fire & Casualty Insurance Co. v. Paper Recycling of LaCrosse, 2001 WI 64, 244 Wis. 2d 290, 627 N.W.2d 527, 99-0327.
With this background, here are some specific cases copied from the statutes annotated where recreational immunity was found and not found.
Examples where no recreational immunity existed.
- Recreational immunity does not attach to a landowner when an act of the landowner’s officer, employee, or agent that is unrelated to the maintenance or condition of the land causes injury to a recreational land user. Kosky v. International Association of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997)
- A portable ice shanty located on a frozen lake does not qualify as recreational “property,” and its presence on the lake is insufficient to establish its owner as an “occupant” of the lake entitled to recreational immunity. Doane v. Helenville Mutual Insurance Co. 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998).
Examples where recreational immunity protected the property owner.
- 895.52 AnnotationA municipal pier was the type of property intended to be covered by the recreational immunity statute. Crowbridge v. Village of Egg Harbor, 179 Wis. 2d 565, 508 N.W.2d 15 (Ct. App. 1993).
- 895.52 AnnotationA local firefighter’s picnic that generated profits that were used for park maintenance and improvements and the purchase of fire equipment did not result in the event being a commercial, rather than recreational, activity under this section. Fischer v. Doylestown Fire Department, 199 Wis. 2d 83, 549 N.W.2d 575 (Ct. App. 1995)
- Walking for exercise through a park on the way to do errands was a recreational activity. Lasky v. City of Stevens Point, 220 Wis. 2d 1, 582 N.W.2d 64 (Ct. App. 1998) and case law makes clear that walking to or from an immune activity constitutes recreational immunity. Carini v. ProHealth Care, Inc. 2015 WI App 61, 364 Wis. 2d 658, 869 N.W.2d 515, 14-1131.
- 895.52 AnnotationA church that paid a fee to reserve park space, including a ball diamond, for a picnic where “pickup” softball was played was not a sponsor of an organized team sport activity under sub. (1) (g). Weina v. Atlantic Mutual Ins. Co. 179 Wis. 2d 774, 508 N.W.2d 67 (Ct. App. 1993).
- 895.52 AnnotationA young child’s inability to intend to engage in recreational activity does not render landowner immunity inapplicable when the activity is recreational in nature. Nelson v. Schreiner, 161 Wis. 2d 798, 469 N.W.2d 214 (Ct. App. 1991). But also know that “recreational activity” does not apply to random wanderings of a young child that are not similar to the activities listed in sub. (1) (g). Shannon v. Shannon, 150 Wis. 2d 434, 442 N.W.2d 25 (1989).
Other things you should know. 895.52 AnnotationThe land need not be open for recreational use for immunity to apply. The focus is on the activity of the person who enters on and uses the land. Immunity applies without regard to the owner’s permission. Verdoljak v. Mosinee Paper Corp. 200 Wis. 2d 624, 547 N.W.2d 602 (1996), 94-2549. Additionally, as long as one of the purposes for engaging in the activity is recreation the statute attaches and bars a claim. Kautz v. Ozaukee County Agricultural Society, 2004 WI App 202, 276 Wis. 2d 833, 689 N.W.2d 771, 03-3281
Application to your HOA or Condominium.
- Injuries at pools at your association even for social guests, assuming you are not charging a fee for admission, should not result in liability to the association, absent anything malicious based on the definition of “recreational activity” including “water sports” or “any other outdoor sport, game or educational activity.” This would be true even if a neighbor snuck into the pool and was injured based on Verdoljak, supra.
- Walking on association property for purposes of exercise would clearly seem to fall within the definition of recreational activity and therefore immunity should exist.
- Slipping on snow or ice that has accumulated because of an improperly or dangerously placed downspout while headed to your car would not be a recreational activity.