(dissenting). The question presented in this case is:
Is a village volunteer fire department immune from liability under the Recreational Activities Statute, § 895.52, Stats., for its negligent infliction of personal injury on a person who attends its annual *95"picnic" whose "primary and sole purpose" is to raise money for the fire department?
I conclude that under the tests we must apply to determine whether an activity is a "recreational activity" as defined in § 895.52(l)(g), Stats., by the Wisconsin Supreme Court in Linville v. City of Janesville, 184 Wis. 2d 705, 716, 516 N.W.2d 427, 430-31 (1994), the trial court should have granted plaintiffs' summary judgment that the Doylestown Volunteer Fire Department's annual "picnic" was not a "recreational activity." Therefore, I respectfully dissent. Section 895.52(2)(a), STATS., provides:
Except as provided in subs. (3) to (6), no 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.
2. 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.
Fischer claims that the fire department was negligent in constructing a bench for seating patrons of the "picnic" which collapsed when he sat on it.
An "owner" includes "a governmental body... that owns, leases or occupies property." Section 895.52(l)(d)l, Stats. I agree with the majority that the volunteer fire department is an "owner" for purposes of § 895.52. Of course, the defendant, Village of Doyles-town, is a governmental body.
Section 895.52(l)(g), Stats., provides:
"Recreational activity" means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or *96instruction in any such activity. "Recreational activity" includes, but is not limited to, hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle, 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 and any other outdoor sport, game or educational activity, but does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.
The supreme court has said that in determining whether an activity is a "recreational activity," we must apply a test consistent with the purpose of the statute. Linville, 184 Wis. 2d at 715-16, 516 N.W.2d at 430. The purpose of the statute is set out in Section 1 of 1983 Wis. Act 418.1 The supreme court stated:
A test which is consistent with the purpose of the statute is one which considers the purpose and nature of the activity in addition to the user's intent. Such a test was adopted by the court of appeals in this case:
The test requires examination of all aspects of the activity. The intrinsic nature, purpose and consequence of the activity are relevant. While the injured person's subjective assessment of the activity is relevant, it is not controlling, (cites omitted). Thus, whether the injured person intended to recreate is not dispositive, *97(cites omitted), but why he was on the property is pertinent, (cites omitted).
184 Wis. 2d at 716, 516 N.W.2d at 430.
It is admitted by the fire department that the "intrinsic nature, purpose and consequence" of its annual "picnic" is to raise money for the operation of the fire department. The fire chief, Steven Langsdorf, testified that the "picnic" produced the department's "total budget." The "picnic" had been an annual event conducted by the fire department in the village park for thirty-one years. A "large part" of the department's meetings is devoted to planning the "picnic" and administering the funds raised. The "picnic" at which plaintiff LaVem Fischer was injured grossed approximately $8000 and "netted" approximately $4300.
The majority concludes that the trial court did not err in holding that, as a matter of law, Fischer was engaged in a recreational activity when he attended the "picnic." Majority op. at 91. In Silingo v. Village of Mukwonago, 156 Wis. 2d 536, 458 N.W.2d 379 (Ct. App. 1990), we held that whether an activity is a "recreational activity" is a question of fact. We held that the trial court improperly granted summary judgment because there was a disputed issue of material fact as to whether "Maxwell Street Days," an outdoor flea market, was a recreational activity. In the Comment cited by the supreme court in Linville, 184 Wis. 2d at 715, 516 N.W.2d at 430, the author likewise concludes that under the objective test adopted in Silingo, when an allegedly recreational activity does not appear as an enumerated activity in § 895.52(l)(g), Stats., it is a question of fact whether that activity is "substantially similar" to the other listed activities. Stuart J. Ford, Comment, Wisconsin's Recreational Use Statute: Towards Sharpening the Picture at the Edges, 1991 *98Wis. L. Rev. 491, 519.1 do not believe, however, that the Commentator intended to opine that the ultimate question is a question of fact. It is hornbook law that if the facts are undisputed, the question of whether those facts fulfill a statutory standard is a question of law. Lifedata Medical Servs. v. LIRC, 192 Wis. 2d 663, 670, 531 N.W.2d 451, 454 (Ct. App. 1995).
I agree with the majority that the facts necessary to determine whether the fire department's "picnic" was a "recreational activity" are undisputed and thus, we are presented with a question of law. However, I disagree with the majority's conclusion and would hold that on the undisputed facts, the fire department's "picnic" was not a "recreational activity."
The majority reached its conclusion without considering the purpose of the Recreational Activities Law. In Linville, the court stated that the purpose behind § 895.52, Stats., is found in the statement of legislative intent in 1983 Wis. Act 418 as follows:
Legislative intent. The legislature intends by this act to limit the liability of property owners towards others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit. While it is not possible to specify in a statute every activity which might constitute a recreational activity, this act provides examples of the kinds of activities that are meant to be included, and the legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability. The act is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.
*99Linville, 184 Wis. 2d at 714-15, 516 N.W.2d at 430.
When the activity is not specifically enumerated in § 895.52(l)(g), Stats., whether the activity is "recreational" is inherently ambiguous. When a statute is ambiguous, we first resort to the language of the statute. See State v. Ahrling, 191 Wis. 2d 398, 403, 528 N.W.2d 431, 433 (1995). The declaration of intent is, of course, a part of the law even though it appears only in the session laws. In my opinion, the declaration of intent in 1983 Wis. Act 418 is the most important part of the Recreational Activities Law. First, it tells us that if the activity is not included in the enumeration, it may constitute a "recreational activity ... where substantially similar circumstances or activities exist." (Emphasis added.) I conclude that the department's profitmaking "picnic" is not an activity "substantially similar" to the enumerated activities.
Second, the declaration of legislative intent states that: "The legislature intends by this act to limit the liability of property owners towards others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit." 1983 Wis. Act 418 (emphasis added). The revenues derived from the department's annual "picnic" are its life-blood. Finally, the legislative history supports a construction of the statute which limits the statutory immunity to the gratuitous offering by a landowner of the use of his or her property. The Comment offers as a definition of "recreational use" "any recreational activity that a visitor might want to pursue on someone else's land, where the landowner has no fundamental objection to the activity but is likely to deny permission solely to avoid potential liability for accidents arising out of the activity." 1991 Wis. L. Rev. at 492. The Comment approves of *100our use of "minimal pecuniary benefit" in Douglas v. Dewey, 154 Wis. 2d 451, 453 N.W.2d 500 (Ct. App. 1990), to conclude that the phrase "[gives] rise to a tenor of granting statutory immunity only to landowners whose permission to use the land was gratuitous." 1991 Wis. L. Rev. at 513.
Mr. Ford questions why the drafters of the 1984 Act chose the language that now appears as the statement of legislative intent. Id. at 507. His Comment tracks the legislative history of the bill which ultimately became 1983 Wis. Act 418, noting that the bill began in the Assembly but was dropped. Id. at 508. The Comment tracks the 1983 legislative history in footnotes 64 through 72 at pages 507-09. A reading of that legislative history is a must if one is to understand the Recreational Activities Law. The legislative history shows that the Senate added the statement of legislative intent (there was no statement of intent in the Assembly Bill) to respond to some of the ambiguities which the sponsors of the legislation and the drafters saw in § 29.68, STATS., 1963, and the Assembly Bill. The memoranda and correspondence in the legislative record of SB 408 show that the sponsors and drafters were concerned that the Assembly Bill did not adequately define the recreational activities which the landowner could allow without liability.
The representative of the Ice Age Trail stated in a letter of October 11,1983, to the principal Senate sponsor, Senator David Helbach, that the "definition of 'recreational use' does, and I am afraid, always will cause trouble. We will have to do the best we can and leave the rest up to the courts." In a November 30,1983 letter to Senator Helbach, the Department of Natural Resources' counsel stated that, "[t]he definition of 'rec*101reational purpose' continues to concern me." Drafting record of 1983 Wis. Act 418, LRB-4028/2.
The drafting file also included a draft of a possible "Public Access Act," drafted by Professor W. Church (Private Lands and Public Recreation: A Report and Proposed New Model Act on Access, Liability and Trespass). Drafting record of 1981 SB 817. In that Act, Professor Church suggested a very simple definition of "recreational use" to "include [] any activity undertaken for exercise, education, relaxation, or pleasure on land owned by another." 1991 WlS. L. Rev. at 537. That is substantially the first line of the definition of "recreational activity" in § 895.52(l)(g), STATS., except that the word "activity" was modified by the word "outdoor."
I believe the legislative history makes clear that the legislature was unwilling to eliminate the enumeration of "recreational activities]" presumably out of fear that the courts would vitiate the legislature's intent by too broad a construction of "recreational activity." The legislature's concern in this respect is traceable to the origins of Wisconsin's Recreational Activities Law. The impetus for § 29.68, STATS., 1963, came from The Forest Industries Information Committee of Wisconsin representing industrial forest owners who had suffered severe damage to forest reproduction from excessively large deer herds. Note, Torts-Statutes-Liability of Landowner to Persons Entering for Recreational Purposes, 1964 Wis. L. Rev. 705, 709. The forest owners began a successful campaign to invite deer hunters to use their lands. Id. However, they became concerned that their active solicitation of hunters exposed them to liability to hunters injured on their land, particularly those who used the narrow and hazardous timber roads and trails. Id.
*102Section 29.68, STATS., 1963, did not entirely accomplish its purpose because of the broad construction given by the courts to the exception for "willful" failure to warn entrants against a dangerous condition existing on the land. Further, despite the statute, the Wisconsin Supreme Court continued to give the term "valuable consideration," which vitiated immunity, a construction so broad that the conferring of almost any benefit upon the landowner or a mutuality of interest of the landowner and the entrant destroyed immunity. See Copeland v. Larson, 46 Wis. 2d 337, 347, 174 N.W.2d 745, 750 (1970).
The original intent of the legislature is now so distant that it is difficult to recall that the original purpose of the recreational use immunity statute was to eliminate the "invitation" theory of landowner liability and substitute therefor the "economic-benefit" theory. See Douglas v. Dewey, 154 Wis. 2d at 460-62, 453 N.W.2d at 504-05. In Douglas, we concluded that, in § 895.52, STATS., the "legislature abandoned the invitation theory and adopted a pecuniary-benefit approach, with the caveat that the pecuniary benefit to the owner for the use of his or her property must be actual, not merely potential." Id. at 461, 453 N.W.2d at 504-05. We also concluded that the legislature intended to overrule those cases holding that a landowner was liable if there was any benefit to the landowner from the visitor's entry including a mere mutuality of interest between the owner and the visitor. See id. at 461, 453 N.W.2d at 505. This interpretation of the legislative history is binding on us.
The legislature did not retain "valuable consideration" as the yardstick to gauge immunity or liability. Id. at 462, 453 N.W.2d at 505. We said that plainly, the *103legislature did not intend to expand the landowner's liability for recreational use of his or her land as the Copeland court's construction of "valuable consideration" required. Id. One of the decisions of the Wisconsin Supreme Court the legislature may have intended to overrule was Quesenberry v. Milwaukee County, 106 Wis. 2d 685, 317 N.W.2d 468 (1982). In that case, the court held that plaintiffs who were injured playing golf on Milwaukee County's golf course stated a claim against Milwaukee County because golf courses did not come within the scope of § 29.68, STATS., 1963. The court noted that the statute had been amended after its enactment by several amendments adding specific activities as "recreational purposes." Id. at 692, 317 N.W.2d at 471-72. Therefore, the court refused to give a broad construction to the term "recreational purposes." The court applied the rule of statutory construction, ejusdem generis, and concluded that a "common feature of the enumerated words is that they are the type of activity that one associates being done on land in its natural undeveloped state-" Id. at 693, 317 N.W.2d at 472.
As is usually the case with the development and enactment of controversial legislation, 1983 Wis. Act 418 was a compromise. The legislature rejected "valuable consideration" but required a "minimal pecuniary benefit" as the sine qua non of immunity. It rejected the ejusdem generis rule in favor of a qualifying phrase that an activity would be recreational where "substantially similar" circumstances or activities to the enumerated activities exist. Plainly, the legislature believed that by these changes it was overruling Copeland and Quesenberry. However, the legislature was unwilling to go with a definition of "recreational activ*104ity" or "recreational use" as broad as that Professor Church suggested in the Public Access Act.
It has been suggested that the legislature intended that the courts give a liberal construction to "recreational activity." The statement of legislative intent provides that: "[W]here substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability." (Emphasis added.) Before the rule of liberal construction may be applied, the court must first find that an unenumerated activity is substantially similar to an enumerated activity. The legislature did not intend that the courts give a liberal construction to the definition of "recreational activity"; in fact, the converse is true. See 1991 Wis. L. Rev. at 522-23.
In Bystery v. Village of Sauk City, 146 Wis. 2d 247, 252, 430 N.W.2d 611, 613 (Ct. App. 1988), we said that the declaration of legislative intent in 1983 Wis. Act 418 "shows that the purpose of sec. 895.52 is the same as former sec. 29.68: to encourage landowners who might otherwise withhold their land from the use of others to make their land available for recreational activities." By including municipalities in the protection of § 895.52, Stats., the legislature has encouraged them to provide for the residents and the public a variety of outdoor activities. We said that an example was where a municipality has withdrawn a highway or sidewalk from transportation uses, in whole or in part, and devoted it to recreational activities as defined in § 895.52(l)(g), a street fair, for example. However, the legislature did not intend that a governmental body should be immune from liability where it provides outdoor recreational activities for a substantial pecuniary benefit. Therefore, I conclude that in order to consti*105tute a "recreational activity," the pecuniary benefit to a governmental body must be "minimal." Because that is not the case here, I respectfully dissent.
See infra, p.98.