Exclude to Extend: Municipalities Should Withdraw Trails from Transportation Uses to Extend Recreational Immunity Protection
By: John J. Moroney
Wisconsin law grants property owners a strong liability defense through the recreational immunity statute, Wis. Stat. § 895.52(2)(a). Courts have extended this immunity to municipalities on occasion.[1] However, the Bystery case complicates recreational immunity analysis for municipalities. This 1988 appellate decision spawned a rule to resolve a conflict between a municipality’s (now repealed) statutory duty to maintain its “highways” and the recreational immunity statute.[2]
The Bystery court held that, for recreational immunity to apply, a municipality must withdraw the street or sidewalk from transportation uses and devote it in whole or in part to recreational activities.[3] The precedential value of Bystery is now unclear, since the statutory conflict its holding resolved no longer exists.[4] That said, municipalities should devote sidewalks, trails and bike paths to recreational activities when feasible.
Municipalities, and their insurance companies, are familiar with this set of facts: a person is injured while walking, running or bicycling on a public path or sidewalk, then sues the municipality for damages in Wisconsin circuit court. The plaintiff may allege the municipality was negligent in their maintenance of the path or sidewalk. Commonly, a municipality would defend the lawsuit by asserting immunity under Wis. Stat. § 893.80(4), otherwise known as discretionary immunity.
Maintenance or design of a sidewalk or path is generally considered discretionary, and therefore, covered by discretionary immunity.[5] There are exceptions which could defeat the immunity, which would make the municipality liable for a plaintiff’s injuries.[6] When discretionary immunity does not apply, recreational immunity offers a potential safety net.[7]
Recreational Immunity Wis. Stat. § 895.52
Section 895.52 of the Wisconsin Statutes, commonly referred to as Wisconsin’s “recreational immunity” statute, provides landowners with immunity against liability for any injuries to a person engaged in a recreational activity on the owner’s property. Section 895.52 provides that no owner, including a municipality, 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; or (3) a duty to give warning of an unsafe condition, use, or activity on the property.[8] Further, this statute provides that no owner is liable for an injury sustained while engaging in a recreational activity on the owner’s property.[9]
The Wisconsin Legislature enacted the recreational immunity statute “to encourage property owners to open their lands for recreational activities by removing a property user’s potential cause of action against a property owner’s alleged negligence.”[10] Courts must liberally construe the statute in favor of property owners to encourage property owners to open their lands to public recreation.[11] By including municipalities within its definition of landowners, the legislature showed its intent – municipalities open their land to recreational use, and in turn benefit from recreational immunity.[12]
Whether one is engaged in a recreational activity is a question of law.[13] As explained in Wis. Stat. § 895.52(1)(g), “recreational activity” means “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure.”[14] The statute enumerates thirty-two specific outdoor activities in the definition of “recreational activity,” and includes a final category of “any other outdoor sport, game or educational activity.”[15] A municipal governing body is entitled to protection by Wis. Stat. § 895.52.[16] Clearly, recreational immunity offers municipalities a powerful tool to defend certain types of negligence claims – but there is a catch.
Post-Bystery Recreational Immunity Analysis
In Bystery, the court resolved a conflict between Wis. Stat. § 895.52 and Wis. Stat. § 81.15 (1987-88) by holding that municipalities are only entitled to recreational immunity when the municipality devoted the property on which plaintiff was injured in whole or part to recreational activities.[17] When Bystery was decided in 1988, Section 81.15 provided a specific right for plaintiffs to recover damages from a municipality from an injury caused by insufficiency of repairs of that municipality’s “highway,” which included sidewalks and paths.[18] Notably, Section 81.15 liability for negligent maintenance was repealed by the Wisconsin legislature in 2011.[19]
The Bystery decision added a step to the standard recreational immunity analysis: whether the municipality excluded the property from general transportation uses and devoted it to recreational activity. This “devotion” could be done in whole or in part, though courts did not analyze the minimal level of devotion necessary to receive immunity.
In Kostroski, a plaintiff was injured when she fell on a wooden walkway owned by the county.[20] Plaintiff was using the walkway to reach a softball field and was injured on property owned by the county – satisfying the recreational activity and property requirements. The Kostroski court held that, because the only purpose of the walkway was to access the softball field, the county had sufficiently devoted it to recreational activity and removed it from general transportation uses. Therefore, the county was entitled to recreational immunity.
Bystery has not been overturned, though its precedential value has been questioned.[21] The repeal of Section 81.15 liability likely does not absolve municipalities of their duty to maintain sidewalks, bike paths and trails. A conflict may still exist between a municipality’s duties and recreational immunity. It is plausible that the Wisconsin Supreme Court would keep the Bystery requirements if the issue came before the Court in the future.
Proposed Solution – Exclude to Extend Recreational Immunity
Municipalities should devote sidewalks, bike paths and trails to recreational activities and, at least partially, remove them from public transportation uses. Of course, this should be done only when feasible and focus on areas which are heavily trafficked by those participating in recreational activities. Signs prohibiting motorized vehicles, imposing speed limits or dictating right-of-way for pedestrians vs. cyclists would likely meet the Bystery requirement. Physical barriers separating the path or trail from normal use would accomplish the same goal.
Incorporating signage or barriers into the design of trails or paths is a relatively low-cost solution which would greatly increase the likelihood of recreational immunity protection in the event of an accident. Additionally, these measures will increase public safety and work to reduce the number of accidents. Of course, municipalities should follow best practices and state law when designing sidewalks, bike paths and trails. As long as the conflict identified Bystery remains, municipalities should focus on devoting paths and trails to recreational uses, at least in part, to expand the protection of recreational immunity.
[1] Kostroski v. County of Marathon, 158 Wis.2d 201, 462 N.W.2d 542 (Ct. App. 1990).
[2]Bystery v. Village of Sauk City, 146 Wis.2d 247, 251, 430 N.W.2d 611 (Ct. App. 1988).
[4]See 2003 Wis. Act 213, § 136 (renumbering the statute); 2011 Wis. Act. 132 (repealing liability for negligent maintenance).
[5]DeFever v. City of Waukesha, 2007 WI App 266, ¶ 13, 306 Wis. 2d 766, 743 N.W.2d 848.
[6] The two potential exceptions to discretionary immunity are the ministerial duty exception and the known and present danger exception. Lister v. Board of Regents, 72 Wis. 2d 282, 301 (1976). (Ministerial duty exception). Cords v. Anderson, 80 Wis.2d 525, 532, 259 N.W.2d 672 (1977). (Known danger exception).
[7]Miller ex rel. Fehring v. Wausau Underwriters Ins. Co., 2003 WI App. 58, ¶ 21, 260 Wis. 2d 581, 659 N.W.2d 494. (Finding that discretionary immunity does not apply preclude recreational immunity).
[16] Wis. Stat. § 895.52(d)(1)(ar). . The statute defines “owner” as a “governmental body… that owns, leases or occupies property.” “Governmental body” includes a “municipal governing body, agency, board… department or any other public body.”
[17]Bystery v. Village of Sauk City, 146 Wis. 2d 247, 251, 430 N.W.2d 611 (Ct. App. 1988).
Author: John J. Moroney
Exclude to Extend: Municipalities Should Withdraw Trails from Transportation Uses to Extend Recreational Immunity Protection
By: John J. Moroney
Wisconsin law grants property owners a strong liability defense through the recreational immunity statute, Wis. Stat. § 895.52(2)(a). Courts have extended this immunity to municipalities on occasion.[1] However, the Bystery case complicates recreational immunity analysis for municipalities. This 1988 appellate decision spawned a rule to resolve a conflict between a municipality’s (now repealed) statutory duty to maintain its “highways” and the recreational immunity statute.[2]
The Bystery court held that, for recreational immunity to apply, a municipality must withdraw the street or sidewalk from transportation uses and devote it in whole or in part to recreational activities.[3] The precedential value of Bystery is now unclear, since the statutory conflict its holding resolved no longer exists.[4] That said, municipalities should devote sidewalks, trails and bike paths to recreational activities when feasible.
Municipalities, and their insurance companies, are familiar with this set of facts: a person is injured while walking, running or bicycling on a public path or sidewalk, then sues the municipality for damages in Wisconsin circuit court. The plaintiff may allege the municipality was negligent in their maintenance of the path or sidewalk. Commonly, a municipality would defend the lawsuit by asserting immunity under Wis. Stat. § 893.80(4), otherwise known as discretionary immunity.
Maintenance or design of a sidewalk or path is generally considered discretionary, and therefore, covered by discretionary immunity.[5] There are exceptions which could defeat the immunity, which would make the municipality liable for a plaintiff’s injuries.[6] When discretionary immunity does not apply, recreational immunity offers a potential safety net.[7]
Recreational Immunity Wis. Stat. § 895.52
Section 895.52 of the Wisconsin Statutes, commonly referred to as Wisconsin’s “recreational immunity” statute, provides landowners with immunity against liability for any injuries to a person engaged in a recreational activity on the owner’s property. Section 895.52 provides that no owner, including a municipality, 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; or (3) a duty to give warning of an unsafe condition, use, or activity on the property.[8] Further, this statute provides that no owner is liable for an injury sustained while engaging in a recreational activity on the owner’s property.[9]
The Wisconsin Legislature enacted the recreational immunity statute “to encourage property owners to open their lands for recreational activities by removing a property user’s potential cause of action against a property owner’s alleged negligence.”[10] Courts must liberally construe the statute in favor of property owners to encourage property owners to open their lands to public recreation.[11] By including municipalities within its definition of landowners, the legislature showed its intent – municipalities open their land to recreational use, and in turn benefit from recreational immunity.[12]
Whether one is engaged in a recreational activity is a question of law.[13] As explained in Wis. Stat. § 895.52(1)(g), “recreational activity” means “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure.”[14] The statute enumerates thirty-two specific outdoor activities in the definition of “recreational activity,” and includes a final category of “any other outdoor sport, game or educational activity.”[15] A municipal governing body is entitled to protection by Wis. Stat. § 895.52.[16] Clearly, recreational immunity offers municipalities a powerful tool to defend certain types of negligence claims – but there is a catch.
Post-Bystery Recreational Immunity Analysis
In Bystery, the court resolved a conflict between Wis. Stat. § 895.52 and Wis. Stat. § 81.15 (1987-88) by holding that municipalities are only entitled to recreational immunity when the municipality devoted the property on which plaintiff was injured in whole or part to recreational activities.[17] When Bystery was decided in 1988, Section 81.15 provided a specific right for plaintiffs to recover damages from a municipality from an injury caused by insufficiency of repairs of that municipality’s “highway,” which included sidewalks and paths.[18] Notably, Section 81.15 liability for negligent maintenance was repealed by the Wisconsin legislature in 2011.[19]
The Bystery decision added a step to the standard recreational immunity analysis: whether the municipality excluded the property from general transportation uses and devoted it to recreational activity. This “devotion” could be done in whole or in part, though courts did not analyze the minimal level of devotion necessary to receive immunity.
In Kostroski, a plaintiff was injured when she fell on a wooden walkway owned by the county.[20] Plaintiff was using the walkway to reach a softball field and was injured on property owned by the county – satisfying the recreational activity and property requirements. The Kostroski court held that, because the only purpose of the walkway was to access the softball field, the county had sufficiently devoted it to recreational activity and removed it from general transportation uses. Therefore, the county was entitled to recreational immunity.
Bystery has not been overturned, though its precedential value has been questioned.[21] The repeal of Section 81.15 liability likely does not absolve municipalities of their duty to maintain sidewalks, bike paths and trails. A conflict may still exist between a municipality’s duties and recreational immunity. It is plausible that the Wisconsin Supreme Court would keep the Bystery requirements if the issue came before the Court in the future.
Proposed Solution – Exclude to Extend Recreational Immunity
Municipalities should devote sidewalks, bike paths and trails to recreational activities and, at least partially, remove them from public transportation uses. Of course, this should be done only when feasible and focus on areas which are heavily trafficked by those participating in recreational activities. Signs prohibiting motorized vehicles, imposing speed limits or dictating right-of-way for pedestrians vs. cyclists would likely meet the Bystery requirement. Physical barriers separating the path or trail from normal use would accomplish the same goal.
Incorporating signage or barriers into the design of trails or paths is a relatively low-cost solution which would greatly increase the likelihood of recreational immunity protection in the event of an accident. Additionally, these measures will increase public safety and work to reduce the number of accidents. Of course, municipalities should follow best practices and state law when designing sidewalks, bike paths and trails. As long as the conflict identified Bystery remains, municipalities should focus on devoting paths and trails to recreational uses, at least in part, to expand the protection of recreational immunity.
[1] Kostroski v. County of Marathon, 158 Wis.2d 201, 462 N.W.2d 542 (Ct. App. 1990).
[2] Bystery v. Village of Sauk City, 146 Wis.2d 247, 251, 430 N.W.2d 611 (Ct. App. 1988).
[3] Id. at 251-252.
[4] See 2003 Wis. Act 213, § 136 (renumbering the statute); 2011 Wis. Act. 132 (repealing liability for negligent maintenance).
[5] DeFever v. City of Waukesha, 2007 WI App 266, ¶ 13, 306 Wis. 2d 766, 743 N.W.2d 848.
[6] The two potential exceptions to discretionary immunity are the ministerial duty exception and the known and present danger exception. Lister v. Board of Regents, 72 Wis. 2d 282, 301 (1976). (Ministerial duty exception). Cords v. Anderson, 80 Wis.2d 525, 532, 259 N.W.2d 672 (1977). (Known danger exception).
[7] Miller ex rel. Fehring v. Wausau Underwriters Ins. Co., 2003 WI App. 58, ¶ 21, 260 Wis. 2d 581, 659 N.W.2d 494. (Finding that discretionary immunity does not apply preclude recreational immunity).
[8] Wis. Stat. § 895.52(2)(a).
[9] Wis. Stat. § 895.52(2)(b).
[10] Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 350, 575 N.W.2d 734 (Ct. App. 1998).
[11] Kautz v. Ozaukee Cnty. Agric. Soc’y, 2004 WI App. 203, 276 Wis. 2d 833, 839, 688 N.W.2d 771.
[12] See Wis. Stat. § 895.52(1)(d),(a).
[13] Sievert v. Am. Family Mut. Ins. Co., 180 Wis. 2d 426, 435, 508 N.W.2d 75 (Ct. App. 1990).
[14] Wis. Stat. § 895.52(1)(g).
[15] Id.
[16] Wis. Stat. § 895.52(d)(1)(ar). . The statute defines “owner” as a “governmental body… that owns, leases or occupies property.” “Governmental body” includes a “municipal governing body, agency, board… department or any other public body.”
[17] Bystery v. Village of Sauk City, 146 Wis. 2d 247, 251, 430 N.W.2d 611 (Ct. App. 1988).
[18] Id.
[19] See 2011 Wis. Act. 132.
[20] Kostroski v. County of Marathon, 158 Wis.2d 201, 462 N.W.2d 542 (Ct. App. 1990)
[21] See Langenhahn v. West Bend Mutual Insurance Co., 2019 WI App 11, ¶22, 386 Wis. 2d 243, 926 N.W.2d 210.