Peterson v. Midwest Security Insurance

DAVID T. PROSSER, J.

¶ 25. 0concurring). This case presents a question of statutory interpretation. Our objective, as always, is to discern the intent of the legislature. Peters v. Menard, Inc., 224 Wis. 2d 174, 184, 589 N.W.2d 395 (1999). If the language of the statute clearly and unambiguously sets forth the legislative intent, the court has a duty to apply that intent to the case and not look beyond the text for a different meaning. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 365, 597 N.W.2d 687 (1999). When one of several interpretations is possible, the court must ascertain legislative intent from the language of the statute in relation to a number of extrinsic factors including the legislative object intended to be accomplished. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 248, 493 N.W.2d 68 (1992).

*580¶ 26. The punctuation in Wis. Stat. § 895.52(1)(f) makes the subsection ambiguous in the sense that reasonable minds could differ as to how many categories of property the subsection envisions. Cf. Hacker v. State Dep't of Health and Social Services, 197 Wis. 2d 441, 455, 541 N.W.2d 766 (1995). This ambiguity permits us to look beyond the text for the scope, history, context, and subject matter of the statute, as well as its purpose or object. See State v. Piddington, 2001 WI 24, ¶ 14, 241 Wis. 2d 754, 623 N.W.2d 528, cert. denied, 122 S.Ct. 65 (2001); Clark v. American Family Mut. Ins. Co., 218 Wis. 2d 169, 173, 577 N.W.2d 790 (1998).

¶ 27. Wisconsin Stat. § 895.52 creates a very broad recreational immunity with certain exceptions. This immunity applies to owners of property and to agents of owners.1 Wis. Stat. § 895.52(2). An owner is defined to include a "person. .. that owns, leases or occupies property." Wis. Stat. § 895.52(1)(d)1. To prevent summary judgment, the petitioners must show that Harold Shaw was not an owner (in any of three senses) or an agent of an owner of "property."

¶ 28. The statute defines "property" as follows: " 'Property' means real property and buildings, structures and improvements thereon, and the waters of the state, as defined under s. 281.01(18)." Wis. Stat. § 895.52(1)(f).

¶ 29. We should not overlook the obvious. The definition of "property" applies to more than land. It applies to "buildings, structures and improvements" on land. The legislature must have had good reason for including more than land in its definition.

*581¶ 30. There should be no question that a tree stand is a "structure" and that this structure was owned by Harold Shaw.

¶ 31. Petitioners contend, however, that the statutory definition of "property" requires an ownership linkage between land and any building, structure, or improvement on the land — that a building alone, or a structure alone, or an improvement alone is not "property" within the statute. This contention is based upon the proposition that the definition creates only two categories of property: (1) real property along with any buildings, structures and improvements on that property; and (2) the waters of the state. The dissent summarizes the petitioners' position: "if the statute defines only two categories of 'property,' the owner of a structure, building, or improvement may enjoy immunity only if that owner also owns the underlying land." Dissent at ¶ 46.

¶ 32. The petitioners' position may he stated as follows: An owner is a person that owns "property," that is, "real property and buildings, structures and improvements thereon." Shaw owned a "structure" on real property but he did not own the real property. Therefore, Shaw did not own "property" as defined under the statute.

¶ 33. There is a serious flaw in this formulation. If a person does not own "property" unless he or she owns "real property" and the "buildings, structures and improvements" on that real property, then a person who owns land but does not own the "buildings, structures and improvements" on that land does not own "property" and is presumably not immune. This result follows a literal reading of the two-category definition but is absurd. An even more absurd reading of the two-category definition is that the owner of "real property" is *582not immune unless the real property has "buildings, structures and improvements thereon."

¶ 34. The two-category definition of property must be scrutinized in other ways. For instance, the statute provides that an owner is a person that owns, leases or occupies real property and buildings, structures and improvements thereon. For purposes of this statute, a person who qualifies as a lessee or occupier of property has as much right to assert recreational immunity as the person who holds title to the property. The proposition that an owner of a structure, building, or improvement may enjoy immunity only if the owner also owns the underlying land unravels if we state the parallel proposition that the lessee of a structure, building, or improvement may enjoy immunity only if the lessee leases the underlying land, because the latter proposition would severely limit recreational immunity for lessees.

¶ 35. The two-category analysis appears to view buildings, structures, and improvements as relatively unimportant to the recreational immunity at issue. The petitioners' brief forthrightly acknowledges examples of buildings and structures that are integrally related to recreation: a washroom at a campground, Szarzynski v. YMCA, 184 Wis. 2d 875, 517 N.W.2d 135 (1994); a pier on a lake, Crowbridge v. Village of Egg Harbor, 179 Wis. 2d 565, 508 N.W.2d 15 (Ct. App. 1993); a beach house at the beach, Stann v. Waukesha County, 161 Wis. 2d 808, 468 N.W.2d 775 (Ct. App. 1991); and a swing in a park, Kruschke v. City of New Richmond, 157 Wis. 2d 167, 458 N.W.2d 832 (Ct. App. 1990). But it denies that the legislature intended to afford immunity if the owners of such buildings or structures do not also own the underlying land. Precise logical constructs do not work very well with such enumerated recreational activities as *583"horseback riding," "ballooning," "hang gliding," and "climbing observation towers." See Wis. Stat. § 895.52(1)(g). Did the legislature really intend to deny immunity to the owner of an "observation tower" if the owner of the tower does not also own the underlying land?

¶ 36. For this court to rely on very subtle distinctions to resolve this case would not only miss the big picture but also invite litigants to explore whether condominium owners, utilities that own utility poles but not the underlying land, and land contract purchasers do not have recreational immunity because their ownership of buildings or structures on recreational property is somehow incomplete.

¶ 37. "The life of the law has not been logic: it has been experience."2 In this case, the logic of grammatical rules fails to account for the legislative history of the statute.

¶ 38. The 1983 legislature approved an expansive revision of recreational immunity. 1983 Wis. Act 418. The revision included repeal of Wis. Stat. § 29.68, which provided in part that "[a]n owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others for ... recreational purposes ... except as provided in sub. (3)." Wis. Stat. § 29.68(1) (1981-82). This statute defined "premises" to include "lands, private ways and any buildings, structures and improvements thereon." Wis. Stat. § 29.68(5)(a) (1981-82).

¶ 39. The bill that revised the law was 1983 Senate Bill 586. When it was first introduced, the bill carried the following definition of property:" 'Property' *584means real property, wherever located, lakes and streams adjacent to real property, and personal property thereon." Legislative Reference Bureau Drafting File for 1983 Wis. Act 418, 1983 Senate Bill 586 (as introduced February 1, 1984).

¶ 40. A Senate substitute amendment provided a new definition of property:

(f) "Property" means any of the following:
1. Unplatted real property owned by any person and located outside the corporate limits of a city or village, and personal property thereon.
2. Unplatted real property within the corporate limits of a city or village with a population of less than 2,500, and personal property thereon.
3. Platted or unplatted real property which is within the corporate limits of a city or village and which is subject to a recreational agreement, and personal property thereon.
4. Waters of the state, as defined under s. 144.01(19), whether or not adjacent to the property described under subd. 1 to 3.

Legislative Reference Bureau Drafting File for 1983 Wis. Act 418, Senate Substitute Amendment 1 to 1983 Senate Bill 586.

¶ 41. The Senate approved the substitute amendment and sent the amended bill to the Assembly where it was changed. Legislative Reference Bureau Drafting File for 1983 Wis. Act 418, Legislative History of 1983 Senate Bill 586. The drafting file indicates that the Wisconsin Paper Council submitted a handwritten amendment on behalf of Representative Tommy Thompson to this effect: Property "means real property *585and any buildings, structures and improvements thereon under public or private ownership, and the waters of the state. ..." Legislative Reference Bureau Drafting File for 1983 Wis. Act 418, Drafting Request (March 28, 1984). The Legislative Reference Bureau took this language and prepared an amendment that read: " 'Property'" means real property and buildings, structures and improvements thereon, and the waters of the state, as defined under 144.01(19)." Legislative Reference Bureau Drafting File for 1983 Wis. Act 418, Assembly Amendment 1 to 1983 Senate Bill 586.

¶ 42. This history demonstrates that the present definition was not written under laboratory conditions, free of historical and political influence. For instance, the word "thereon" appeared in prior law and in every draft of the bill with varying implications. It appeared in a definition conceived outside the legislature. The record also shows evidence of the "serial comma rule" in some texts but not in others. Punctuation in the texts is not consistent. Hence, it would be very difficult to conclude that the punctuation now before the court dictates a substantive result different from the one reached by the court.

¶ 43. Consequently, I support the majority's conclusion that Wis. Stat. § 895.52 "does not require that the owners of 'buildings, structures and improvements' also own the underlying real property in order to qualify for immunity." Majority op. at ¶ 4. This conclusion fairly reflects the intent of the legislature.

The parties pay little attention to the potential argument that Harold Shaw was an "agent" of Vernon and Culleen Peterson.

Oliver Wendell Holmes Jr., The Common Law 1 (1881) (based upon 1880 Lowell Lecture).