Minnesota Fire & Casualty Insurance v. Paper Recycling of La Crosse

N. PATRICK CROOKS, J.

¶ 1. The petitioner, Paper Recycling of La Crosse, Inc. (Paper Recycling), seeks review of an unpublished court of appeals decision. Two La Crosse County Circuit Court cases were consolidated for appeal purposes because the cases resulted from the same fact situation and presented the same issue. In the first case, the circuit court, Judge Dennis G. Montabon presiding, held that Paper Recycling was not entitled to recreational immunity under Wis. Stat. § 895.52(2) in a lawsuit stemming from a 1997 fire at Paper Recycling's property that resulted in the death of a young boy. In denying the motion for summary judgment, the circuit court concluded that Paper Recycling was not entitled to recreational immunity because Daniel Devenport and the boys he was with were not engaged in a recreational activity as defined by Wis. Stat. § 895.52(l)(g).

¶ 2. In the second case, the circuit court, Judge Michael J. Mulroy presiding, held that Paper Recycling was entitled to recreational immunity because Devenport and his friends were engaged in a recreational activity. The circuit court, therefore, granted Paper Recycling's motion for summary judgment. The court of appeals affirmed Judge Montabon's decision *296and reversed Judge Mulroy's decision, holding that Paper Recycling was not entitled to recreational immunity because the boys were not engaged in a recreational activity.

¶ 3. We hold that the boys, who were crawling through stacks of baled paper, lighting matches and starting fires, were not engaged in a recreational activity as defined by Wis. Stat. § 895.52(l)(g), and therefore, Paper Recycling was not entitled to recreational immunity under Wis. Stat. § 895.52(2). We, thus, affirm the court of appeals.

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¶4. On May 28, 1997, eleven-year-old Daniel Devenport (Devenport) was killed in a fire on commercial property leased to Paper Recycling. Paper Recycling, while operating a recycling facility on this property, stored stacks of baled paper in the outdoor yard of the property. The property, which was protected by a fence, was not open to the public. Devenport and two of his friends, who were also eleven-year-olds, entered Paper Recycling's property through an opening in the fence. Once inside the outdoor yard of Paper Recycling's property, Devenport and his friends began crawling around through spaces inside the stacks of baled paper that they imagined were tunnels. Within the interior of the stacks were large spaces that the boys imagined were rooms or forts to play in. One of the boys brought a box of matches that all three boys used to start fires inside the stacks. While inside one of the interior spaces, the boys noticed a fire in the space they had used to enter the stacks. Devenport's friends escaped the fire through a small opening in the stacks. Devenport was unable to escape and was killed in the fire.

*297¶ 5. Two lawsuits followed the fire and Devenport's death. In case number 99-0327, Minnesota Fire and Casualty Insurance Company sued Paper Recycling in a subrogation action to recover damages it paid to its insured, Royal Properties, who leased the property to Paper Recycling. Paper Recycling moved for summary judgment claiming recreational immunity under Wis. Stat. § 895.52(2) because the boys were engaged in a recreational activity. The circuit court denied Paper Recycling's motion, holding that Devenport and his friends were not engaged in a recreational activity as defined by Wis. Stat. § 895.52(l)(g). The circuit court determined that the activity that the boys were engaged in was neither specifically listed in the recreational immunity statute, nor substantially similar to the activities listed in the statute, nor undertaken in circumstances substantially similar to the circumstances of a recreational activity.

¶ 6. In case number 99-0858, Devenport's mother, Joyce Devenport, sued Paper Recycling in a wrongful death action. Paper Recycling moved for summary judgment, again claiming recreational immunity because Devenport and his friends were engaged in a recreational activity. The circuit court granted Paper Recycling's motion, holding that the boys were engaged in a recreational activity as defined by Wis. Stat. § 895.52(l)(g). The circuit court held that they were engaged in a recreational activity because one of them stated in an affidavit that the boys' purpose in entering Paper Recycling's property was to play in the stacks of baled paper.

¶ 7. The Wisconsin Court of Appeals, District IV, consolidated the two cases for appeal. The court of appeals affirmed the circuit court in case number 99-0327 and reversed the circuit court in case number *29899-0858, holding that Paper Recycling was not entitled to recreational immunity under Wis. Stat. § 895.52(2), because Devenport and his friends were not engaged in a recreational activity as defined by Wis. Stat. § 895.52(l)(g). The court of appeals determined that the activity that the boys were engaged in was not substantially similar to any of the activities listed in the recreational immunity statute.

HH l-H

¶ 8. The consolidated case requires us to determine whether Paper Recycling is entitled to summary judgment. We review a circuit court's decision to grant or deny a motion for summary judgment "by applying the standards set forth in sec. 802.08(2), Stats., in the same manner as the circuit court." Shannon v. Shannon, 150 Wis. 2d 434, 441, 442 N.W.2d 25 (1989). A court shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2) (1995-1996).1

¶ 9. The issue presented by the instant case is whether Paper Recycling is entitled to recreational immunity in both lawsuits under Wis. Stat. § 895.52(2).2 To resolve this issue, we must apply the recreational immunity statute to the specific facts of *299the present case. The application of the recreational immunity statute to specific facts presents a question of law that we review de novo, while benefiting from the analyses of the circuit court and the court of appeals. Sievert v. American Family Mut. Ins. Co., 190 Wis. 2d 623, 628, 528 N.W.2d 413 (1995).

¶ 10. To determine whether Paper Recycling is entitled to recreational immunity in the two lawsuits, we must first determine whether the boys involved were engaged in a recreational activity. Sievert, 190 Wis. 2d at 628. The recreational immunity statute provides the following definition of recreational activity:

"Recreational activity" means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction 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, *300sight-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.

Wis. Stat. § 895.52(1)(g). In Sievert, we determined that this definition of recreational activity is divided into three parts:

(1) a broad definition stating that a recreational activity is "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure," (2) a list of 28 specific activities denominated as recreational, and (3) a second broad definition, directing that a recreational activity can be "any other outdoor sport, game or educational activity."

190 Wis. 2d at 629. The first part's broad definition, providing that a recreational activity is "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure," could be interpreted to include almost any outdoor activity. Id. Because every outdoor activity is not a recreational activity, we must construe the first part's broad definition in light of the second part's list of 28 specific recreational activities, and the third part's broad definition providing that a recreational activity is "any other outdoor sport, game or educational activity." Id. We must therefore determine if the activity that Devenport and the other two boys were engaged in satisfies the statutory definition of recreational activity.

¶ 11. Joyce Devenport and Minnesota Fire & Casualty Insurance Company (Minnesota Fire) contend that the boys were not engaged in a recreational *301activity. Both argue that the activity that the boys were engaged in does not satisfy the statutory definition of recreational immunity. In addition, both argue that the boys' activity fails the test for recreational activity set forth in Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994). Both claim that the boys' activity fails the Linville test because the activity is neither substantially similar to the activities listed in the statute nor undertaken in circumstances substantially similar to the circumstances of a recreational activity.

¶ 12. Joyce Devenport and Minnesota Fire also suggest that the boys' activity was not a recreational activity because it was not a traditional form of child's play. They compare the boys' activity to the random wanderings of a three-year-old child near a lakeshore, an activity held not to be a recreational activity in Shannon. 150 Wis. 2d at 448. Both claim that the boys' activity is like the activity in Shannon because both are activities in which children fail to understand the danger involved. Lastly, both argue that concluding that the boys were not engaged in a recreational activity is consistent with the purpose of the recreational immunity statute. According to both, the purpose of the recreational immunity statute is to encourage property owners to open their property for recreational activities, not to reward property owners for failing to prevent children from being drawn onto the dangerous conditions of commercial property.

¶ 13. Paper Recycling contends that the activity that Devenport and his friends were engaged in was a recreational activity. Paper Recycling argues that this activity satisfies the first part of the statutory definition for recreational immunity as "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure." Paper Recycling also argues that this activ*302ity satisfies the third part of the statutory definition for recreational activity as "any other outdoor sport or game." In the alternative, Paper Recycling argues that this activity satisfies the Linville test as substantially similar to the activities listed in Wis. Stat. § 895.52(1)(g).

¶ 14. Paper Recycling argues that the activity that the boys were engaged in was an "outdoor activity undertaken for the purpose of exercise, relaxation or pleasure." To support this argupaent, Paper Recycling relies on Kruschke v. City of New Richmond, 157 Wis. 2d 167, 458 N.W.2d 832 (Ct. App. 1990). In Kruschke, the court of appeals held that playing on a swing in a city park is a recreational activity. 157 Wis. 2d at 168. The court of appeals stated that its decision was consistent with the broad definition that had been given to the phrase recreational activity in previous Wisconsin cases. Id. at 172.

¶ 15. Paper Recycling also argues that the boys were playing a game that can be classified as "any other outdoor sport or game" under the third part of the statutory definition. To support this argument, Paper Recycling relies on Taylor v. City of Appleton, 147 Wis. 2d 644, 433 N.W.2d 293 (Ct. App. 1988). In Taylor, the court of appeals held that Taylor's activity of "playing catch with a football in a city park" was an "outdoor sport or game" that satisfies the third part's broad definition of recreational activity. 147 Wis. 2d at 646. Even though the court of appeals recognized that playing catch with a football "is of a different character from many of the activities listed in sec. 895.52(1)(g)," the court concluded that it is still a recreational activity. Id. at 647. Following the legislative intent for liberal construction of the statute, the court of appeals concluded that playing catch with a football in a city park *303was an "outdoor sport or game." Paper Recycling argues that Devenport and his friends, like Taylor, were engaged in an "outdoor sport or game."

¶ 16. Paper Recycling further contends that the áctivity that the boys were engaged in satisfies the Linville test as substantially similar to the specific activities listed in the recreational immunity statute. For example, Paper Recycling suggests that Devenport and his friends imagined that they were playing in tunnels and forts, an activity substantially similar to the specific activity listed in the statute of exploring caves. In addition, Paper Recycling argues that Devenport and his friends had the intent to recreate by playing outdoor games after school and that this intent, combined with the objective nature of the activity, establishes that the boys were engaged in a recreational activity.

¶ 17. Lastly, Paper Recycling argues that the recreational immunity statute provides blanket immunity and that any limitation of that immunity would hinder the purpose of the statute. To support this argument, Paper Recycling relies on Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 547 N.W.2d 602 (1996). In Verdoljak, we held that the recreational immunity statute protected Mosinee Paper Corporation (Mosinee) from a lawsuit filed by a motorcyclist who was injured on its property, despite the fact that Mosinee opened its property for hunting and fishing, but not for motorcycling. 200 Wis. 2d at 631. In that case, we recognized that limiting the applicability of the recreational immunity statute to property owners who open their property for all recreational activities would defeat the statute's purpose of encouraging property owners to open their lands for recreational *304activities, even if the owner only opens the land for one activity. Id. at 635.

¶ 18. The activity that the boys were engaged in, crawling through stacks of baled paper, while lighting matches and starting fires, is not included in the second part of the immunity statute's definition which lists 28 specific recreational activities. Nor is the activity of the boys included, specifically, in the third part's broad definition providing that a recreational activity is "outdoor sport, game or educational activity."

¶ 19. It is argued that we should construe the first part of the statutory definition providing that a recreational activity is "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure" to include the boys' activity. This activity was an outdoor activity and one of the boys stated that the purpose of the activity was to play. However, every outdoor activity for the stated purpose of exercise, relaxation or pleasure could be included within this definition. Sievert, 190 Wis. 2d at 629. Because every outdoor activity is not a recreational activity, we must construe the first broad part of the definition in light of the second part's 28 specific activities and the third part's broad definition. Id.

¶ 20. As noted, our analysis does not end because the activity the boys were engaged in is not specifically listed in Wis. Stat. § 895.52(1)(g). Sievert, 190 Wis. 2d at 629-30. The legislature has stated that § 895.52(1)(g) only provides examples of recreational activities. Id. at 630. Consequently, the legislature has provided guidance for construing the statute. In 1983 Wis. Act 418, § 1, the legislature stated its intent behind the recreational immunity statute:

*305The legislature intends by this act to limit the liability of property owners toward 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 29.683 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.

Accordingly, we will liberally construe the recreational immunity statute in favor of property owners when the activity in question is not specifically listed but "is substantially similar to the activities listed in the statute or whe[n] [the] activity is undertaken in circumstances substantially similar to the circumstances of a recreational activity." Sievert, 190 Wis. 2d at 631.

¶ 21. We must therefore determine whether the activity that the boys were engaged in was "substantially similar to the activities listed in the statute or whether [the activity was] undertaken in circumstances substantially similar to the circumstances of a recreational activity." Id. at 631. In Linville, the court of appeals applied the following test that this court has adopted in making that determination:

*306The 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. Thus, whether the injured person intended to recreate is not dis-positive, but why he was on the property is pertinent.

184 Wis. 2d 705, 716, 516 N.W.2d 427 (1994)(citing Linville v. City of Janesville, 174 Wis. 2d 571, 579-80, 497 N.W.2d 465 (Ct. App. 1993)). The Linville testis an objective test. 184 Wis. 2d at 713. This test requires a court to apply a reasonable person standard to determine whether a property user's activity is recreational based on the totality of the circumstances surrounding the activity.

¶22. We begin the analysis, in regard to the application of the Linville test, with the intrinsic nature of the activity. Nature is defined as "[t]he essential characteristics and qualities of a person or thing." The American Heritage Dictionary 1204 (3d ed. 1992). The essential characteristic of the boys' activity was involvement in mischievous conduct. The boys were inside the stacks of baled paper, lighting matches and starting fires. According to a statement taken in an interview with one of the surviving boys, Devenport, at the time that a fire was discovered, was "sitting in the corner in one of the rooms" within the baled paper.4 The determination that the boys were engaged in mis*307chievous conduct is further evidenced by the fact that the boys stated in their affidavits that they waited to begin their activity until no one was around. This fact suggests that the boys wished to conceal their activity, a fact not usually associated with a recreational activity.

¶ 23. Before we analyze the purpose and consequence of the activity, the examination of the intrinsic nature of the activity also requires consideration of the nature of the property upon which the activity takes place. Linville, 184 Wis. 2d at 717. The nature of the property can be an important part of the determination of whether the activity is recreational.5 For example, in Linville the nature of the property was a significant factor in the determination that the activity in question was recreational. Id. Kelly Linville and her son David were taken to a pond in a van driven by Walter Hadden to look at potential fishing spots. Id. at 711-12. The City of Janesville owned the pond, which was used for recreational purposes. Id. at 712. When the van became stuck in the mud, Kelly Linville got out and tried to push it out. Id. She was unable to move the van and it sank in the mud, drowning David Linville and *308Walter Hadden. Id. We concluded that the Linvilles were engaged in a recreational activity. Id. at 717. To reach this conclusion we relied on the fact that fishing is an activity listed in the statutory definition of recreational activity and that the intrinsic nature of fishing is recreational. Id. In addition, we relied on the nature of the property upon which the activity took place. Id. We stated that "[t]he facts crucial to our determination are that [Kelly Linville] was at a recreational facility which is open for public use, looking at potential fishing areas in the Pond." Id. The fact that the Linvilles were at a recreational facility open for public use was inextricable from the fact that they were looking at potential fishing spots.

¶ 24. While the nature of the property can be a significant factor in the determination of whether an activity is recreational, it is not dispositive. Sievert, 190 Wis. 2d at 623. In Sievert, we determined that the activity of walking onto a boat dock to greet a neighbor was not a recreational activity. Id. at 633. We made this determination based on the intrinsic nature and purpose of the activity. Id. The fact that the activity took place on property used for recreational purposes, a boat dock, did not change the non-recreational activity of greeting a neighbor into a recreational activity.6 Id. at 632.

*309¶ 25. In the present case, there is nothing in the intrinsic nature of the boys' activity that was substantially similar to a recreational activity. As stated above, the nature of the boys' activity was that they were engaged in mischievous conduct while no one was around. As was the case in Linville, the nature of Paper Recycling's property is crucial to ouy examination of the nature of the boys' activity. 184 Wis. 2d at 717.7 The nature of the property was a commercial site used for a business purpose. In addition, the property was not open to the public for recreational use. While we recognize that intent is not dispositive (see Linville, 184 Wis. 2d at 717), there is nothing in the record to indicate that Paper Recycling intended that its property would be a recreational property or would be used for recreational activities. In fact, the record indicates that Paper Recycling intended that its property would be used only for commercial activities, evidenced by the fence Paper Recycling erected around its property to keep people away from the commercial materials, such as the paper bales, stored in the outside yard.

*310¶ 26. Paper Recycling leased the property to operate its recycling business. There is nothing in the record to indicate that the property was used for any other purpose than the recycling business. There is nothing in the nature of this activity, engaging in mischievous conduct on commercial property, that is substantially similar to any of the recreational activities listed in the statute. For example, there is nothing in the intrinsic nature of fishing, bicycling or skiing that involves mischievous conduct.

¶ 27. The next step in the analysis is to examine the purpose of the boys' activity. This part of the Lin-ville test must also be judged by an objective standard. Purpose is defined as "[t]he object toward which one strives or for which something exists; an aim or a goal." The American Heritage Dictionary 1471 (3d ed. 1992). The goal of the boys' activity was to light matches and to start fires. There is nothing in the purpose of this activity, lighting matches in order to start fires, that is substantially similar to any of the recreational activities listed in the statute.

¶ 28. Next in the analysis we look at the consequence of the boys' activity. As was the case with the nature and purpose of the activity, the consequence of the activity must be judged by an objective standard. Consequence is defined as "[sjomething that logically or naturally follows from an action or condition." The American Heritage Dictionary 401 (3d ed. 1992). What naturally followed from the boys' activity was that a fire started, destroying Paper Recycling's property and tragically killing Devenport. In fact, it was an almost certain consequence that a fire would start when the *311boys were lighting matches in stacks of baled paper. There is nothing in this terrible consequence that is substantially similar to any of the recreational activities listed in the statute. While some of the activities listed in the statute may have tragic consequences when someone is killed or injured, none of these activities, such as hang-gliding, skiing or rock-climbing, have unavoidable or almost certain tragic consequences. Thus, the intrinsic nature, purpose and consequence of the boys' activity, judged by an objective standard, all indicate that this activity was not a recreational activity.

¶ 29. The Linville test also requires us to consider the boys' subjective assessment of the activity. Devenport and his friends did have the intent to play in the stacks of baled paper. While this subjective intent is relevant to the analysis of whether the activity was recreational, it is not controlling. Linville, 184 Wis. 2d at 716. Intent does not change the intrinsic nature, purpose and consequence of the activity. Id. at 717. The fact that Devenport and his friends intended to play does not change their non-recreational activity into a recreational one. Consequently, the activity that the boys were engaged in does not satisfy the Linville test for a recreational activity.

¶ 30. While we recognize the legislative intent to give a broad definition to the phrase recreational activity, we also recognize that there are limits to this definition. As stated above, not every outdoor activity is a recreational activity. Sievert, 190 Wis. 2d at 629. Likewise, not every form of child's play is a recreational activity. Previous Wisconsin cases have concluded that some forms of child's play, like playing on a swing in *312Kruschke or playing catch with a football in Taylor, are recreational activities. Because a child's subjective assessment of recreational activity could include every form of child's play, we must use an objective, reasonable adult standard to determine whether a form of child's play is a recreational activity.

¶ 31. By applying an objective, reasonable adult standard, we conclude that the conduct that Devenport and his friends were engaged in, crawling through stacks of baled paper, while lighting matches and starting fires, is not a recreational activity. A reasonable adult would not consider crawling around lighting fires to be a recreational activity. Crawling around lighting fires is not a game, nor is it based on competition, rules or strategy. It is just an inherently dangerous activity that is not objectively a recreational activity.

¶ 32. We are not persuaded that the boys' activity is substantially similar to exploring caves, or any other of the specific activities listed in the recreational immunity statute. The labeling of the activity that the boys were engaged in as exploring caves or playing in tunnels and forts depends solely on the boys' subjective characterization. When we consider the intrinsic nature, purpose and consequence of the activity, as the Linville test instructs, we do not find the activity that Devenport and his friends were engaged in to be substantially similar to exploring caves. Stacks of baled paper are not substantially similar to caves. Crawling around while lighting matches and starting fires is not substantially similar to exploring. There is nothing about the intrinsic nature, purpose and consequence of the activity that is substantially similar to any of the activities listed in the statute. While the boys' charac*313terization of the activity is relevant under the Linville test, it does not control the result.

¶ 33. We therefore conclude that the activity that Devenport and his friends were engaged in was not a recreational activity. This activity does not satisfy the definition of recreational activity set forth in Wis. Stat. § 895.52(l)(g). In addition, this activity was neither substantially similar to the activities listed in the statute nor undertaken in circumstances substantially similar to the circumstances of a recreational activity. Because we conclude that the boys were not engaged in a recreational activity, Paper Recycling is not entitled to recreational immunity.

¶ 34. We also consider the effect of our decision in the present case on the common law doctrine of attractive nuisance. The doctrine of attractive nuisance is a phase of the law of negligence that describes a property owner's liability to a trespassing child. Christians v. Homestake Enters., Ltd., 101 Wis. 2d 25, 28 n.1, 303 N.W.2d 608 (1981). In short, the doctrine of attractive nuisance imposes a duty upon possessors of property "to keep those parts of their land on which they know, or ought to know, children are likely to be present, free from artificial conditions which involve an unreasonable risk of bodily injury or death to children." Id. at 30 n.2 (citations omitted).8 Our decision in the present *314case affects the doctrine of attractive nuisance because the recreational immunity statute provides that a possessor of property has no liability under attractive nuisance to a child using the property for a recreational activity. Wis. Stat. § 895.52(7).

¶ 35. By concluding that Devenport and his Mends were not engaged in a recreational activity, we do not eliminate consideration of the doctrine of attractive nuisance under such circumstances. All children would likely characterize the activity of trespassing onto commercial property to play around dangerous, artificial conditions as a recreational activity. If we were to agree, that the subjective play of children on commercial property is a recreational activity, then possessors of commercial property would have no liability towards trespassing children. The inevitable result of that conclusion would be that possessors of commercial property would have no incentive to keep children from being drawn onto their property by dangerous artificial conditions. Consequently, possessors of commercial property would have less reason to monitor their property and prevent children from trespassing.

*315r*H HH h-1

¶ 36. In summary, we hold that Paper Recycling is not entitled to recreational immunity under Wis. Stat. § 895.52(2) in the lawsuits filed by Joyce Devenport and Minnesota Fire and Casualty Insurance Company, because the activity that the boys were engaged in, crawling through stacks of baled paper, while lighting matches and starting fires, was not a recreational activity as defined in Wis. Stat. § 895.52(l)(g). Accordingly, we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated.

The recreational immunity statute provides in pertinent part:

*299(2) No duty; immunity from liability, (a). . .no owner and no officer, employe 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.
2. A duty to inspect the property...
3. A duty to give warning of an unsafe condition, use or activity on the property.
(b) .. .no owner and no officer, employe or agent of an owner is hable 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 or for any death or injury resulting from an attack by a wild animal.

Wis. Stat. § 895.52.

The legislature repealed Wis. Stat. § 29.68, the predecessor to Wis. Stat. § 895.52, by 1983 Wis. Act 418 § 2 effective May 15, 1984.

It should be noted that the boys' activity was characterized as "play" in their affidavits. However, the interview with one of the surviving boys, the only evidence in the record in the boys' own words, did not state that they were playing. Nonetheless, a subjective assessment, while relevant, is not determinative of the result in the present case.

The dissent suggests that the legislature has removed the nature of the property from the analysis of whether an activity is recreational, citing Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 631, 633-34, 547 N.W.2d 602 (1996). Dissent at ¶ 61. The legislature, in enacting Wis. Stat. § 895.52, removed references to a property owner opening his or her land for recreational activities in order to receive recreational immunity. Verdoljak, 200 Wis. 2d at 631. However, there is nothing that could be found in the legislative history of § 895.52 indicating that the nature of the property on which the activity takes place should be excluded from the determination of whether an activity falls within the ambit of recreational immunity.

The dissent contends that the determination of whether an activity is recreational focuses on the nature of the activity, not the nature of the property, citing Sievert v. American Family Mut. Ins. Co., 190 Wis. 2d 623, 632, 528 N.W.2d 413 (1995). Dissent at ¶ 61. We also stated in Sievert that "[t]he Linville test does not rely exclusively on the characteristics of the property on which the activity is undertaken to determine whether an activity is recreational under the statute." 190 Wis. 2d at 632. *309The fact that we do not focus on or rely exclusively on the nature of the property does not mean that we exclude the nature of the property from the analysis.

The dissent also states that we have relied on one line in Linville v. City of Janesville, 184 Wis. 2d 705, 717, 516 N.W.2d 427 (1994) to conclude that the nature of the property can be a significant factor in determining whether an activity is recreational. Dissent at ¶ 62. In Linville, we stated that "[t]he facts crucial to our determination are that [the person] was at a recreational facility_" 184 Wis. 2d at 717. The use of the word "crucial" clearly indicates that the nature of the property is a significant factor in the determination of whether an activity is recreational.

A plaintiff claiming a cause of action for attractive nuisance must establish the following elements:

(1) . . .that the former [possessor of real estate] maintained, or allowed to exist, upon his land, an artificial condition which was inherently dangerous to children being upon his premises....
^ (2) . . .that he knew or should have known that children trespassed or were likely to trespass upon his premises....
(3) .. .that he realized or should have realized that the structure erected or the artificial condition maintained by him was *314inherently dangerous to children and involved an unreasonable risk of serious bodily injury or death to them ....
(4) . . .that the injured child, because of his youth or tender age, did not discover the condition or realize the risk involved in going within the area, or playing in close proximity to the inherently dangerous condition....
(5) . . .that safeguards could reasonably have been provided which would have obviated the inherent danger without materially interfering with the purpose for which the artificial condition was maintained....

Christians v. Homestake Enters., Ltd., 101 Wis. 2d 25, 44, 303 N.W.2d 608 (1981)(citations omitted).