Szarzynski v. YMCA, Camp Minikani

WEDEMEYER, P.J.

(dissenting). As noted by the majority, the underlying rationale for sec. 895.52, Stats., is to encourage property owners to open their land to the public for recreational use. Further, sec. 895.52 is to "be liberally construed in favor of property owners to protect them from liability." 1983 Wis. Act 418 sec. 1. Because I read sec. 895.52 to be sufficiently broad to cover the YMCA with immunity in this case, I respectfully dissent.

The majority concludes that sec. 895.52, Stats., as applied to "non-profit organizations," violates the equal protection clauses of the United States and Wisconsin constitutions. The keystone to its analysis is that the inclusion within sec. 895.52 of entities "not organized or conducted for pecuniary profit" is not germane to the *380purpose of the law. The majority first notes that the legislature intended for property owners to open up their land "under circumstances in which the owner does not derive more than a minimal pecuniary benefit." The majority next reasons that: (1) "profit" in the law is not synonymous with "benefit;" and (2) even though an organization is not organized or conducted for pecuniary profit, it may still derive more than a minimal pecuniary benefit from the recreational use of its property. Finally, because the YMCA derived a "significant pecuniary benefit" from the recreational use of its property, the purposes underlying sec. 895.52 would not be advanced by granting it immunity, irrespective of its non-profit label.

I question whether sec. 895.52, Stats., should be read so restrictively. The opinion takes a very narrow view as to what constitutes non-profit. Although there is little doubt that the YMCA was "turning a profit" on Camp Minikani, one must look at the totality of the circumstances in assessing whether the YMCA derived more than a minimal pecuniary benefit from the recreational use of its property. Here, the YMCA is a statewide organization that provides numerous services and activities. On some activities "like Camp Minikani" it makes money, on others it runs a deficit. Any "profits," however, are simply reallocated to areas of deficit. The bottom line is that to remain "alive," entities like the YMCA, although organized in a non-profit manner, must take in at least as much money as they disburse. Otherwise, these organizations would be unable to continue their charitable work.1

*381To state that the recreational immunity statute only protects those organizations that receive little or no pecuniary benefits from the circumstances surrounding their property's recreational use would stifle the greater good that I believe the legislature intended. By holding that sec. 895.52, Stats, is unconstitutional, the majority opinion tends to discourage non-profit organizations from investing in land, and subsequently opening that land for recreational use. I believe that the majority too narrowly construes the recreational immunity statute. I would hold that sec. 895.52 is not unconstitutional as written and that the YMCA, as a non-profit organization, is immune from suit.

bIt should be noted that the YMCA's 1990 surplus revenue of $110,041, mentioned by the majority opinion, is not solely attributable to the operation of Camp Minikani. The surplus revenue reflects the popularity of select YMCA programs as *381well as an increase in public donations. This money will assuredly be calculated to expand the quantity and quality of the programs the YMCA offers, thereby increasing the overall public benefit derived from the YMCA.