Landowner Liability For Recreational Activity Injuries

By Joel L. Aberg and John Robert Behling

All seasons in Wisconsin provide opportunities to recreate in the great outdoors! But along with recreational activities comes the increased risk of injury.

In an effort to encourage landowners to allow others to use their property for recreational purposes, defined as “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure,” the Legislature adopted Wisconsin’s recreational immunity statue, Wis. State. 895.52. That statute protects landowners from civil suits by providing that landowners have no legal obligation to recreational users to keep their property safe for recreation, no duty to inspect, and no duty to warn about unsafe conditions which may exist. Further, the courts have determined that this statutory immunity applies to both natural and man-made conditions (including buildings or structures) on property.

Landowners must be aware, however that there are exceptions to this broad statutory immunity. Landowners who receive more then $2,000 a year from person(s) using their property are not covered by the statute. Similarly, the landowners who allow use of their land for “organized team sporting activity sponsored by the owner of the property” are not immune from liability for injury to either participants or spectators.

Further, while there is generally no duty to warn about unsafe conditions, a malicious failure to warn would not be protected from liability. For example, if you direct a hunter to use a deer stand which you know is dilapidated and, therefore, dangerous, you will likely not be immune from suite.

Finally, there is no immunity for social guests who have been expressly and individually invited by the landowner for a specific occasion and are injured while on residential property, platted land, or are within 100 yards of commercial or manufacturing buildings when injured.

The Wisconsin Supreme Court has recently and regularly limited the scope of statutory immunities, including recreational immunity. In 2001, the Court limited the statute’s scope to “purer” recreational activities which fulfill the legislative purpose of encouraging property owners to allow others to use their land for recreational activities. In that case, children were injured while playing in stacks of baled paper in a fenced production facility.
In that same year, the Supreme Court determined that the recreational immunity provision did not apply to a student injured while playing during a mandatory school recess because recreation was not the primary purpose of the visit.

Both the Wisconsin Supreme Court and the Court of Appeals issued decisions last year which continued this trend limiting statutory immunities from liabilities. In the first case, the Supreme Court continued to discount the impact of waivers often found on the back of tickets, on receipts, on entry forms, or on signs which attempt to “waive liability” or “hold harmless” the landowner. The waiver form typically states that the user is aware of the risks of attending a sporting event, downhill skiing, long distance running, hiking, horseback riding, swimming, etc., and therefore, agrees to not sue if injured.

Before being allowed to swim, a user signed an agreement to hold the pool owners/operators harmless. The Supreme Court held such a waiver signed by a potential user of a swimming pool unenforceable because it was overly broad, served two purposes (registration and waiver), and did not give the user an opportunity to bargain. In doing so, the Court revived the concept of requiring the potential user to have an opportunity to bargain in these situations – a concept the Court previously had rejected.

Last year’s Court of Appeals case involved injuries arising out of a horseback riding fall. The Court of Appeals found the equine immunity statute, which parallels the recreational immunity statute and holds that horse professionals are immune from suit for acts or missions arising out of equine activity, inapplicable because the landowner did not safely manage the horse in the context of the rider’s ability and experience, It also found that three releases signed by the rider and her parent were unenforceable because they did not adequately alert the signers to the significance of what they were signing.

On paper, Wisconsin landowners possess very broad immunity from liability for injuries that arise out of recreational activity on their land, However, people who are badly injured make compelling plaintiffs – they generate the sympathy of juries and judges alike, Thus, while there is a public policy of encouraging landowners to allow others to use their property for recreational purposes, landowners should be aware that there are risks.
Particularly if you are charging fees for the recreational use of your property, we recommend requiring the user to sign a waiver document which alerts them to the risks and restricts access unless they sign. In light of the Wisconsin Supreme Court’s decisions in Atkins, the drowning case discussed above, we recommend that the waiver allow the user to use the property for a nominal fee, if they sign the waiver, or they can use the property without signing the waiver but only if they pay a significant fee, say $100 for each day of access.

This article is intended for general informational purposes only, and should not be construed as legal advice. Always contact your legal counsel for advice or answers to your questions.