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The Defense of Recreational Immunity in Wisconsin

Wisconsin has a statute, Sec. 895.52, which limits the liability of property owners when a person is injured while engaging in recreational activity on their property. The statute is fairly complex and has a number of different exceptions, but the original purpose of the statute was to encourage private property owners to open up their land for the use of recreation by the public. In fact, the statute was originally entitled “The Berry Picking Statute.” The statute has evolved considerably since then and it now shields land owners from liability when a person is engaged in any outdoor activity for the purpose of exercise, relaxation or pleasure on the land.

Specifically, the land owner does not have a duty to keep the property safe for recreational activities, to inspect the property, or to warn of an unsafe condition on the property. Property owners are liable, however, if the death or injury is caused by a malicious act or by a malicious failure to warn on the part of the property owner.

There are a number of exceptions to this immunity. First, one common misperception is that any injury or death suffered on such property while engaged in recreational activity is subject to the immunity. In truth, the statute only relieves the land owner of the duties listed above. Negligent acts or decisions by the land owner which are not specifically related to a condition on the land are not granted immunity. For example, if a land owner is driving an ATV drunk on his property and runs into an individual who is hunting or hiking on that property, the land owner should not be immune from liability because it was not an unsafe condition of the land that caused the injury. Rather, it was the landowner’s negligent act of driving intoxicated that caused the injury. There are additional exceptions, including if the landowner charges and receives more than $2,000 in a given year for the use of the property for recreational activities. Another common exception to the statute is if the death or injury occurs to a social guest who has been expressly invited to the property by the property owner and the injury occurs on land that is plated land, residential property, or is within 300 feet of a building or structure on land that is classified as commercial or manufacturing.

These are just a sampling of the issues that can come up under this statute. Most of the cases that arise under this statute occur in the context of snowmobile accidents where a snowmobiler has been injured and there is a question as to the landowner or snowmobile club’s liability. It is important to remember that this does not shield everyone from liability. It is only the landowner or the occupant of the land who is shielded from liability. It is also important to remember that negligent acts and decisions are not granted blanked immunity. Immunity that is granted is limited to the following three things: (1) the duty to keep the property safe for recreational activities; (2) a duty to inspect the property; and (3) a duty to warn of an unsafe condition. Hopefully you will never find yourself in the situation where you need to know about this statute. It is worth remembering, however, if you are recreating on someone else’s land that you should not assume that the landowner has made efforts to make the property safe for your use or has warned you about any potential hazards. Unfortunately, this statute has been expanded well beyond its original purpose and there are numerous court decisions which now have applied the immunity granted under this statute to situations where private property is not open to the public for recreational use. That is an unfortunate broadening of the statute that does not appear to have been intended by the legislature.

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