Urban v. Grasser

WILLIAM A. BABLITCH,J.

¶1. Plaintiff Donald Urban (Urban) appeals a circuit court decision concluding that defendant David Grasser (David) was entitled to recreational immunity under Wis. Stat. *677§ 895.52 (1995-96).1 Urban was crossing David's property to use his boat, which was located on an adjacent property. David's father, Paul Grasser (Paul) owned the adjacent property. Paul held an easement for ingress and egress over David's property pursuant to a written agreement between them and had granted permission to Urban to use David's property in accessing his boat. David's property constituted the only legal means available for Urban to access his boat. A dog jumped out at him. Urban fled and jumped from David's property onto a next-door neighbor's concrete driveway, injuring himself. Urban sued David, and David claimed recreational immunity.

¶ 2. The issue is whether the facts of this case give rise to recreational immunity for David. We conclude that the facts entitle David to immunity and that no exceptions to immunity apply. Accordingly, we affirm the circuit court's decision.

¶ 3. On July 19, 1997, Urban purchased a boat from Paul. The boat was docked at a boat slip on Paul's property. After Urban purchased the boat, he intended to dock the boat at another location. However, because Urban needed time to secure the other location, Paul agreed that Urban could temporarily dock the boat on his property. Paul did not charge Urban for the use of the boat slip.

¶ 4. A description of the property is necessary to understand Urban's use of the property and the occurrence of his injury. The property at issue was a rectangular parcel of property that was divided into *678two separate lots of approximately equal size. One lot occupied the western half of the property and was owned by David; the other lot occupied the eastern half and was owned by Paul. David's property was bordered to the west by a street. Paul's property was bordered to the east by waterfront, which is where the boat slips were located. To get to his new boat, Urban was required to park his automobile on the street, walk across David's property, and walk across Paul's property to the boat slip.

¶ 5. To the north of both David and Paul's properties was a concrete driveway that was owned by a neighbor. The driveway declined from west to east while the property owned by David and Paul remained level. Consequently, from west to east, David and Paul's property was at a gradually higher level than the neighboring driveway. A retaining wall separated the driveway from David and Paul's properties. The top of this wall remained level with David and Paul's properties, but the bottom of the wall declined from west to east in the same manner as the driveway.

¶ 6. Prior to 1981, Paul owned all of the property at issue in this case. In 1981, however, David contracted with Paul to purchase the western portion of the property. The contract granted a perpetual easement to Paul over a portion of David's property and provided as follows:

The land [the property conveyed to David] shall be subject to a perpetual easement in favor of Vendor [Paul and his wife] over the south 10 feet of the west 110 feet as [sic] and for ingress and egress and to a perpetual easement over the entire parcel except the 110 west feet thereof and said easement for ingress and egress, said easement to allow Vendors free use of the easement area for themselves and *679those to whom they shall lease boat slips in the city of Kenosha harbor and guests. Purchasers shall also have the right to use of the land covered by the west easement provided it does not interfere with the easement rights of Vendors and their lessees.

The easement over David's property constituted the only legal means available for Paul, his guests, and lessees of the boat slips to access Paul's property and the boat slips.

¶ 7. On the day that he purchased the boat, Urban, along with members of his family, made several trips from his automobile to the boat slip, crossing David's property each time. Urban slept on the boat that night. The next day, July 20, 1997, he again accessed the boat several times by using the same route.

¶ 8. During the early evening of July 20, 1997, Urban was walking back from the boat slip when he noticed a dog on David's property. The dog, a boxer named Baby, was owned by David. The dog began growling and barking at Urban and then proceeded to chase him. Although the dog was chained to a tree on David's property, Urban did not notice the chain, and he began running to the north. Without stopping or looking back, Urban jumped from the property onto the concrete driveway. At the point where he jumped, the property was about ten feet higher than the driveway. The parties do not contest that Urban jumped from David's property. Urban seriously injured his heel when he landed.

¶ 9. Urban and his wife (plaintiffs) filed a complaint against David and his insurers, Heritage Mutual and John Alden Life Insurance Company. In the complaint, the plaintiffs alleged two causes of action. First, they alleged that, pursuant to Wis. Stat. *680§ 174.02(1), David was strictly liable for damages caused by the dog. Second, they alleged that David was "negligent in the care, custody, control supervision, and/or shelter" of the dog "in failing to keep the dog, by leash or other means."

¶ 10. David and Heritage Mutual (defendants)2 moved for summary judgment, arguing that David was immune from liability pursuant to Wis. Stat. § 895.52, the recreational immunity statute. The circuit court granted the defendants' motion. The plaintiffs appealed, and we accepted the court of appeals' certification on all issues raised by the plaintiffs before the court of appeals. However, because we conclude that the recreational immunity statute applies to deny recovery to the plaintiffs in this case, we need not reach the remaining issues.

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¶ 11. We address only whether the facts of this case give rise to recreational immunity and entitle David to summary judgment. We deliberately state the issue differently than that posed by the court of appeals in its certification. The court of appeals presented the issue as follows: "This case asks whether a property owner, holding a servient property interest, may claim recreational immunity for injuries suffered by persons who used the easement to cross the property as the guest of the easement holder, the dominant property interest."

¶ 12. Although the court of appeals correctly framed the issue, we conclude that our statement of the *681issue is more appropriate because it emphasizes the intensely fact-driven nature of recreational immunity cases. Circuit courts, the court of appeals, and this court have wrestled with recreational immunity since the legislature first provided for such immunity under the law. We have all been frustrated by the seeming lack of basic underlying principles in our efforts to state a test that can be easily applied. The principle that the purpose of the legislation is to encourage landowners to open their property to recreational users has provided only limited usefulness.

¶ 13. We conclude that we can do little more than repeat what has been stated continually in prior cases, that is, that each case requires an examination of all the circumstances surrounding the activity, keeping in mind the legislative purpose. We have identified a number of those aspects: the intrinsic nature of the activity, the purpose of the activity, the consequences of the activity, and the intent of the user. See Sievert v. American Family Mut. Ins. Co., 190 Wis. 2d 623, 631, 528 N.W.2d 413 (1995); Linville v. City of Janesville, 184 Wis. 2d 705, 716, 516 N.W.2d 427 (1994). An examination of prior cases interpreting Wis. Stat. § 895.52 also leads us to conclude that there are at least two other factors to take into account: the nature of the property and the intent (or lack thereof) of the property owner.

¶ 14. The nature of the property can give us insight into the nature of the activity. See Linville, 184 Wis. 2d at 717; Nelson v. Schreiner, 161 Wis. 2d 798, 802, 469 N.W.2d 214 (Ct. App. 1991) ("Actions whose intrinsic nature are recreational and are conducted at a public facility or service dedicated to exercise, relaxation or pleasure may be recreational activities without *682further proof of the actor's mental purpose."). Likewise, the intent of the owner can give us important perspective. In most cases, it would seem to make little sense to give an owner recreational immunity when in fact the owner does not intend to open the property to recreation, and even more so, when the owner takes positive steps to prevent recreational use. See Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of LaCrosse, 2001 WI 64, ¶ 25, 244 Wis. 2d 290, 627 N.W.2d 527.

¶ 15. None of the factors enumerated above, viewed in isolation, are determinative. In any given case, one or more factors may have greater weight, but all should be looked at in their totality.

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¶ 16. We review a grant of summary judgment using the same methodology as the circuit court. Meyer v. Sch. Dist. of Colby, 226 Wis. 2d 704, 708, 595 N.W.2d 339 (1999). Summary judgment is appropriate "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) (1997-98). Resolution of this case requires an interpretation of the recreational immunity statute and its application to undisputed facts. Interpretation of this statute presents a question of law that we decide de novo, while benefiting from the circuit court's analysis. Meyer, 226 Wis. 2d at 708.

¶ 17. Wisconsin Stat. § 895.52(2)(b) provides in relevant part that "no owner.. .is liable for.. .any injury to.. .a person engaging in a recreational activity on the *683owner's property. . . Pursuant to this statute, David claims that he is immune from liability for Urban's injury.

¶ 18. We must first determine whether David is an "owner" under the statute. Wisconsin Stat. § 895.52(l)(d) defines "owner" as "a person, including a governmental body or nonprofit organization, that owns, leases or occupies property." In this case, it is undisputed that David owned the property adjacent to Paul's property. Although Paul held an easement over David's property, Paul's interest in the property did not require David to relinquish ownership of his property. "An easement creates two distinct property interests: the dominant estate, which enjoys the privileges granted by an easement; and the servient estate, which permits the exercise of those privileges." Atkinson v. Mentzel, 211 Wis. 2d 628, 637, 566 N.W.2d 158 (Ct. App. 1997). Title to the property, however, does not pass to the dominant owner; only the right to pass over it is granted. Hunter v. McDonald, 78 Wis. 2d 338, 344, 254 N.W.2d 282 (1977). The dominant owner does not obtain an estate in the property, but only a right to use the land not inconsistent with the general property of the servient owner. Id. Thus, David is an "owner" under the statute.

¶ 19. We next determine whether Urban was "engaging in a recreational activity on [David's] property." This determination requires application of the statutory definition of "recreational activity" to Urban's activity. This definition states:

"Recreational activity" means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any *684such 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.

Wis. Stat. § 895.52(l)(g).

¶ 20. However, before we can apply this definition, we must first resolve a dispute between the parties concerning the scope of Urban's activity. The issue is whether Urban's activity on Paul's property should be factored into our determination. The plaintiffs argue that any activity undertaken by Urban on Paul's property is immaterial to our determination. They assert that we must only examine Urban's activity on David's property, and in this respect, we must conclude that Urban's mere act of walking, without more, cannot support a finding of recreational activity. In contrast, the defendants argue that Urban's activity on David's property must be considered in light of his activity on Paul's property, and when considering the activity in this manner, it must be regarded as walking to access his boat. We agree with the defendants.

¶ 21. Our examination looks at Urban's activities on both properties because the activities are "inextricably connected." This connection is evidenced, in the first instance, by the fact that Urban had to cross David's property because it was the only legal means *685available for Urban to access his boat. In Hupf v. City of Appleton, 165 Wis. 2d 215, 221, 477 N.W.2d 69 (Ct. App. 1991), the court recognized that a walk is "inextricably connected" to another activity when that person walks by the "only available avenue" from the activity. In such instances, the Hupf court reasoned that the walk should have the same immune or non-immune status of its connected activity. Id. This reasoning suggests that it is appropriate for a court, under similar facts, to consider the activity that is connected to the walk in determining whether the walk is a "recreational activity." Even though Hupf only involved one property owner, we conclude that its reasoning applies equally to this case. See also Lasky v. City of Stevens Point, 220 Wis. 2d 1, 7-8, 582 N.W.2d 64 (Ct. App. 1998) (suggesting that the reasoning from Hupf would have been applicable if the plaintiff had been walking on the "only available avenue").

¶ 22. The connection between the walk and the use of the boat is also evidenced by the fact that Urban's use of David's property to access his boat resulted from permission from Paul. Paul held a dominant interest in an easement over David's property, and he exercised his rights under the terms of the easement agreement by granting permission to Urban. Urban then utilized David's property within the terms of the easement agreement. These facts provide additional support for our conclusion that the walk was inextricably connected to the activity on Paul's property. As a result, we will consider Urban's activity on Paul's property in our determination.

¶ 23. It is important to note that we do not conclude that every walk and its related activity must be *686considered together. The walk and the related activity will only be considered collectively when it can be shown, under facts similar to this case or to Hupf, that the activities are inextricably connected.3

¶ 24. We now turn to the question of whether the facts of this case give rise to the conclusion that Urban's walk on David's property was "recreational activity" within the meaning of the statute.

¶ 25. The definition of "recreational activity" contains 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."

Sievert, 190 Wis. 2d at 629.

¶ 26. As stated in Minnesota Fire, 2001 WI 64, ¶ 10, "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.'" (citation omitted).

¶ 27. The sole purpose of Urban's walk over David's property was to gain access to his boat to use *687for recreational purposes. Throughout the weekend, including the day on which his injury occurred, he carried various items from his automobile to the boat for purposes of cleaning it and preparing it for future trips. Indeed, preparing the boat in this manner is one part of using the boat for pleasure and recreation. During this time, he and his family members also crossed David's property to partake in a party on the boat. In addition, Urban crossed the property to practice driving his boat for a short time on the day he was injured. This particular activity — driving the boat — is specifically enumerated in the definition of "recreational activity" as "water sports." On the whole, these activities were undertaken for relaxation or pleasure. Urban's walk was recreational because Urban needed to cross the property to engage in recreational activities on his boat. David's property was the only legal means available to access the boat. The walk was an integral part of these activities.

¶ 28. We recognize that Urban's walking is not immediately identifiable as one of the 28 listed activities. However, an activity does not need to fall within the direct terms of the definition to be characterized as a "recreational activity." See Sievert, 190 Wis. 2d at 629-30. Instead, as noted in Sievert, the legislature expressly stated that this definition is "intended merely to provide examples of activities constituting recreational activities and that 'where substantially similar circumstances or activities exist' the legislation should be construed liberally to protect the property owner." Id. at 630 (citing 1983 Wis. Act 418, § 1). As enumerated in Sievert, we adopted the following test in Linville, 184 Wis. 2d 705, to determine whether an activity is "substantially similar":

*688[T]he test "considers the purpose and nature of the activity in addition to the [property] user's intent." "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. Thus, whether the injured person intended to recreate is not dis-positive,. . .but why [the person] was on the property is pertinent."

Sievert, 190 Wis. 2d at 631 (quoting Linville, 184 Wis. 2d at 716) (second and third alterations in original) (internal citations omitted).

¶ 29. We conclude that, under this test, Urban's activity on David's property is substantially similar to the activities listed under the definition. After his purchase of the boat was completed, Urban continued to walk across David's property to access his boat, and the consequence of his crossing the property was the use of his boat for recreation. Urban stated that he purchased the boat solely for recreation and that he had to cross David's property to carry out this goal. Indeed, while on David's property, Urban was not exercising or throwing a ball or engaging in activities of this nature. However, our examination looks at all aspects of the activity, including the reason the person was on the property. In this case, Urban's acts and statements indicate that his only reason for being on David's property was to access his boat for recreation.

¶ 30. We also note that extending immunity to David in this instance would fulfill the legislative purpose behind the recreational immunity statute. This legislative purpose seeks "to encourage property owners to allow use of their lands for recreational activities by removing the potential for liability arising out of *689negligence actions brought against them by persons who use the land for such recreational purposes." Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 635, 547 N.W.2d 602 (1996). Granting immunity in this case encourages David and others similarly situated to allow people to cross over their land to engage in recreational activities. Thus, the legislative purpose would be served.

¶ 31. In addition, the intent of the landowner with respect to the use of his property is helpful. David's easement to Paul provided an "easement to allow Vendors [and guests of the vendors] free use of the easement area for themselves and those they shall lease boat slips in the city of Kenosha harbor and guests." This easement evinces at the very least no intent to restrict the use of the property to non-recreational activities. In light of the broadness of the language, it appears to anticipate that recreational activity could occur.

¶ 32. In light of all of the above, we conclude that Urban's walking on David's property was "recreational activity," which gives rise to recreational immunity.

IV

¶ 33. We now examine whether any exceptions to recreational immunity apply. In this case, the plaintiffs first argue that immunity should not apply because Urban was Paul's "social guest," and therefore, the exception under Wis. Stat. § 895.52(6)(d) applies. This section provides that immunity does not apply if:

The death or injury occurs on property owned by a private property owner to a social guest who has been expressly and individually invited by the pri*690vate property owner for the specific occasion during which the death or injury occurs, if the death or injury occurs on any of the following:
2. Residential property.

Wis. Stat. § 895.52(6)(d). The plaintiffs argue that Urban was Paul's social guest because Paul specifically invited Urban on his land to use the boat slip. In addition, the plaintiffs assert that, because this exception applies to Paul, it should similarly apply to David, despite the fact that David did not invite Urban on his property.

¶ 34. This social guest exception was enacted in 1984 as part of 1983 Wisconsin Act 418. This exception came about after this court's decision in LePoidevin v. Wilson, 111 Wis. 2d 116, 330 N.W.2d 555 (1983). In LePoidevin, a property owner sought immunity under Wis. Stat. § 29.68 (1975) for injuries to a person who dove from a pier into shallow water on the owner's property. Id. at 119. The injured person had been specifically invited on the property by the owner's son to swim. Id. at 118-19. We concluded that the owner could not gain immunity from liability because the injured person was a social guest who had been specifically invited onto the property. Id. at 131-32. We also noted that the property owner had "not opened his land to the 'public' generally nor ha[d] he given permission to one or more members of the 'public' to use the land for recreational purposes. He opened his land to a social guest who was invited onto the land." Id. at 131.

¶ 35. The legislative history of 1983 Wisconsin Act 418 indicates that this social guest exception was included to ensure that a property owner does not gain *691immunity under circumstances similar to LePoidevin.4 Indeed, the language of the social guest exception mirrors language from LePoidevin. This case, however, does not involve circumstances similar to LePoidevin where the injured person was a social guest who was expressly and individually invited onto the property. Instead, Urban was granted permission by Paul to use the property. Such permissive entrants are outside the ambit of this exception. See Waters v. Pertzborn, 2001 WI 62, ¶ 40, 243 Wis. 2d 703, 627 N.W.2d 497 (citing Ervin v. City of Kenosha, 159 Wis. 2d 464, 475, 464 N.W.2d 654 (1991)).

¶ 36. Finally, we address whether the "profit" exception under Wis. Stat. § 895.52(6)(a) applies. This section provides that immunity will not apply for property owners who profit from another's recreational use of their property. Specifically, this section provides in relevant part:

Subsection (2) does not limit the liability of a private property owner.. .whose property is used for a *692recreational activity if any of the following conditions exist:
(a) 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 for recreational activities during the year in which the death or injury occurs exceeds $2,000.

Wis. Stat. § 895.52(6)(a). Under this section, a landowner is not immune if two conditions exist. "First, the owner collects money, goods or services in payment for the use of the owner's property for the recreational activity during which the injury occurs." Douglas v. Dewey, 154 Wis. 2d 451, 458, 453 N.W.2d 500 (Ct. App. 1990). "Second, the aggregate value of all payments received by the owner for the use of his or her property for recreational activities during the year in which the injury occurs exceeds [$2,000]." Id. at 458-59.

¶ 37. In Douglas, the court of appeals recognized that the legislature specifically adopted a pecuniary-benefit approach, which places duties and obligations upon .owners of property when the owners receive a pecuniary benefit from users of their property. Id. at 461. The court also noted that the legislature's intent to adopt this approach was indicated in 1983 Wis. Act 418, which stated that the act intended to limit the liability of property owners " 'under circumstances in which the owner does not derive more than a minimal pecuniary benefit.'" Id. (quoting 1983 Wis. Act 418, § 1). These benefits must be actual, not merely potential. Id. All indirect pecuniary benefits, as well as direct pecuniary benefits, received by the property owner for the use of the property must be considered. Id. at 462.

*693¶ 38. The plaintiffs argue that this exception applies to eliminate recreational immunity for David because Paul's overall pecuniary benefit was over $2,000. This pecuniary gain came from the sale of the boat. Urban purchased the boat for $4,000. The plaintiffs assert that Urban's use of the slip was part of the consideration in the sale of the boat. The plaintiffs further contend that, because Paul would be denied immunity in this respect, David should similarly be denied immunity. However, in this case, this exception does not apply.

¶ 39. The record does not provide any evidence to show that Paul's permission to use the boat slip helped to secure the sale of the boat or had any effect on the overall cost of the boat. Indeed, Urban suggested that the cost of the slip was included in the boat sale, but he also stated that Paul told him "no problem" and did not charge him directly for the use of the slip. Regardless, even if Paul had received such a benefit in the sale of his boat, the benefit gained for the use of the boat slip would have been only a minimal pecuniary gain. Further, there are no facts in the record to suggest that David received any benefit. David is entitled to immunity.

¶ 40. In summary, we conclude that the facts of this case give rise to recreational immunity for David. The circuit court properly granted summary judgment to the defendants.

By the Cg>urt. — The judgment of the circuit court is affirmed.

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

John Alden Life Insurance Company was not part of the summary judgment motion and accordingly is not part of this appeal.

The dissent asserts that our opinion offers no logical stopping point. We disagree. Our conclusion is strictly based on the uniqueness of the properties at issue in this case, in light of the landlocked nature of Paul's property and the existence of an easement. The hypotheticals raised by the dissent do not reflect the same unique connection shared by the properties in this case. See dissent at ¶ 57.

Specifically, a letter contained in the drafting record for this act notes that "[i]t is equally clear that the proposed legislation is not intended to cover the case where a landowner specifically invites a guest over as per [LePoidevin]." Letter from John R. Zillmer, Redford & Zillmer, to Ruth Reinl, Office of Senator David Helbach 4 (Oct. 11,1983).

We recognize that, in enacting 1983 Wis. Act. 418, the legislature "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." 1983 Wis. Act 418, § 1. Our application of LePoidevin v. Wilson, 111 Wis. 2d 116, 330 N.W.2d 555 (1983), however, is limited only to the extent that its facts are illustrative of the legislature's intent on what factual situations are to be included under the social guest exception.