Trista Auman v. School District of Stanley-Boyd
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2001 WI 125 SUPREME COURT CASE NO.: OF WISCONSIN 00-2356-FT COMPLETE TITLE: Trista Auman, a minor, by her guardians, Kevin Auman and Rhonda Auman, and Kevin Auman and Rhonda Auman, in their individual capacity, Plaintiffs-Appellants, v. School District of Stanley-Boyd, Employers Mutual Casualty Co., Security Life Insurance Company of America and Clark County, Defendants-Respondents. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 2, 2001 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Chippewa Roderick A. Cameron JUSTICES: CONCURRED: November 27, 2001 WILCOX, J., concurs (opinion filed). CROOKS, J., joins concurrence. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants there were briefs by Ann N. Knox-Bauer and Salm & Knox-Bauer, Stanley, and oral argument by Ann N. Knox-Bauer. For the defendants-respondents there was a brief by Joel L. Aberg, Thomas J. Graham, Jr., and Weld, Riley, Prenn & Ricci, S.C., Eau Claire, and oral argument by Joel L. Aberg. An amicus curiae brief was filed by George Burnett and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay, on behalf of the Wisconsin Academy of Trial Lawyers. 2001 WI 125 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-2356-FT (L.C. No. 99 CV 200) STATE OF WISCONSIN : IN SUPREME COURT Trista Auman, a minor, by her guardians, Kevin Auman and Rhonda Auman, and Kevin Auman and Rhonda Auman, in their individual capacity, FILED Plaintiffs-Appellants, NOV 27, 2001 v. School District of Stanley-Boyd, Employers Mutual Casualty Co., Security Life Insurance Company of America and Clark County, Cornelia G. Clark Clerk of Supreme Court Defendants-Respondents. Appeal from an order of the Circuit Court County, Roderick A. Cameron, Circuit Court Judge. for Chippewa Reversed and remanded. ¶1 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE. This case comes before this court on certification by the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1999-2000).1 1 The Circuit All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. No. 00-2356-FT Court for Chippewa County, Roderick A. Cameron, Circuit Court Judge, granted summary judgment to the School District of Stanley-Boyd, Employers Mutual Casualty Company, Security Life Insurance Company of America, and Clark County (collectively, the defendants), dismissing the complaint of Trista Auman, an 11-year-old child, and her guardians, Kevin and Rhonda Auman (collectively, that the the suit plaintiffs). was The barred by recreational immunity statute. We circuit court concluded Wis. Stat. § 895.52, reverse the order of the the circuit court and remand the cause for further proceedings not inconsistent with this opinion. ¶2 The only question presented in this case is one of statutory interpretation: liability under Is Wisconsin's a school district recreational immune immunity from statute, Wis. Stat. § 895.52, for injuries a student suffered during a mandatory school recess period when the injuries were caused by the alleged negligent inspection and maintenance of a school playground and alleged negligent supervision of the student? We conclude that § 895.52 does not apply to the present case and a cause of action is stated when a student sustains injuries on a school playground during a mandatory school recess period as a result of the school district's negligence. Section 895.52 does not bar the suit because the student who is injured during a mandatory school recess period did not "enter" the school district's "property to engage in a recreational activity" as 2 No. 00-2356-FT those words are used in § 895.52(2)(a).2 Trista entered the school as required and truancy state's property for compulsory educational school purposes attendance by the laws.3 Furthermore, her participation in recess activities was required as part of the school district's curriculum.4 Therefore, Trista was not engaging in a recreational activity under the statute. 2 Wisconsin Stat. § 895.52(2)(a) provides, inter alia, that no owner owes a duty of care "to any person who enters the owner's property to engage in a recreational activity." Section 895.52(b) provides, inter alia, that no owner "is liable 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." 3 Wisconsin Stat. § 118.15(1)(a), attendance law, provides: the compulsory school Except as provided under pars. (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age. Wisconsin Stat. § 118.16(1)(c) defines truancy as: any absence of part or all of one or more days from school during which the school attendance officer, principal or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of § 118.15. 4 The Stanley-Boyd relevant part: Elementary 3 Student Handbook states in No. 00-2356-FT I ¶3 For the purposes of summary judgment, the facts are not in dispute. Trista Auman, an 11-year-old child, broke her leg during a mandatory school recess period while sliding down a snow pile located on the school playground. According to Trista's deposition, she was running, jumping, and sliding on the snow pile because it was fun. Ms. Patricia LaMarche, a playground aide, stated that about three days before Trista was injured, the playground supervisors agreed that the snow pile presented a safety issue and that the children should not be allowed to play on it. Nevertheless, Ms. Diana Halterman, the playground supervisor on duty when Trista was injured, did not stop Trista from sliding on the snow pile. ¶4 The plaintiffs' complaint alleges that the school district negligently inspected and maintained its premises and failed to provide recess period. adequate The supervision defendants moved during for the mandatory summary judgment, claiming governmental immunity and recreational immunity. circuit court denied summary judgment on the ground The of governmental immunity and granted summary judgment in favor of All children are expected to go outdoors for play when the weather permits. It is the responsibility of the parent to see that the child comes to school properly dressed for the season of the year. We feel that if a child is well enough to come to school, he/she is well enough to go outdoors. 4 No. the defendants on the ground that the recreational 00-2356-FT immunity statute barred the plaintiffs' claims.5 ¶5 This court reviews the grant of summary judgment independent of the determination rendered by the circuit court, applying the same methodology as the circuit court. Summary judgment is appropriate if there is no genuine issue about any material fact and the moving party is entitled to judgment as a matter of law.6 The parties agree that for purposes of the summary judgment the facts are not in dispute. II ¶6 The issue presented in this case is one of statutory interpretation; we apply the statute to the undisputed facts. This court determines this question of law independent of the circuit court, but benefits from its analysis. ¶7 Section 895.52(2) of the statutes provides, in part, that a property owner does not owe to any person who enters the owner's property to engage in a recreational activity a duty to keep the property safe for recreational activities and is 5 The issue of governmental immunity was not raised by the parties on appeal and is not addressed by this court. The circuit court denied the defendants' motion for summary judgment on the ground of governmental immunity, concluding that whether the actions of the school district were discretionary and whether the accident in question represented a known danger were disputed issues of fact. 6 Wis. Stat. § 802.08(2); Meyer v. Sch. Dist. of Colby, 226 Wis. 2d 704, 708, 595 N.W.2d 339 (1999). 5 No. otherwise immune from liability for injuries to 00-2356-FT any person engaged in recreational activities on the owner's property. ¶8 Section 895.52(1)(g) of the statutes three-part definition of recreational activity.7 sets forth a The first part of the section defines recreational activity as "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including activity." The practice second part or of instruction the statutory in any such definition of recreational activity lists 29 specific activities denominated as recreational, including tobogganing and sledding. The third part of the statutory definition broadly adds "and any other outdoor sport, game or educational activity." ¶9 It is immediately clear that sliding down a snow pile is not one of the activities listed in § 895.52(1)(g). The fact that Trista's activity is not a listed recreational activity 7 Wisconsin Stat. § 895.52(1)(g) provides: "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 hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an allterrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rockclimbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, sport shooting and any other outdoor sport, game or educational activity. "Recreational activity" does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place. 6 No. does not determine whether the activity under the statute. activity is a 00-2356-FT recreational The legislature recognized that it would be impossible to list in the statute every recreational activity. The legislature therefore provided examples of the kinds activities of activities. courts The interpret activity to similar to are legislature the include the that included as recreational also expressed its intent of recreational are substantially statutory those listed definition activities that activities or substantially similar circumstances as the undertaken listed that under activities. Thus, the legislature inferentially excluded activities from the statutory definition that lack commonality snow pile with the listed activities.8 ¶10 Sliding substantially down similar a to sledding and is, in the tobogganing, abstract, which are 8 Linville v. City of Janesville, 184 Wis. 2d 705, 715, 516 N.W.2d 427 (1994). The legislature expressed its intent in 1983 Wis. Act 418, § 1, stating: The 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. 7 No. among the 29 listed Wis. Stat. § 895.52(1)(g), fun." activities and Trista in the stated 00-2356-FT statute she was at "having Sliding on the snow pile is an outdoor activity and is undertaken for pleasure. "With limited exception, all outdoor activities that children engage in during their idle hours might constitute a recreational activity under § 895.52(1)(g)."9 That Trista's activity is similar to one of the listed recreational activities inquiry to and that Trista determine the was having application fun does of not the end our recreational immunity statute. ¶11 This court has wrestled with applying the recreational immunity statute to varied fact situations since its enactment. The line between recreational and non-recreational activities is difficult to draw under Wis. Stat. § 895.52, and the issue has been litigated with some frequency.10 We continue to be frustrated in our efforts to state a test that can be applied easily because of the seeming lack of basic underlying principles in the statute.11 9 Minn. Fire & Cas. Ins. Co. v. Paper Recycling of La Crosse, 2001 WI 64, ¶43, 244 Wis. 2d 290, 627 N.W.2d 527 (Bradley, J., concurring). 10 See, e.g., Minn. Fire, 2001 WI 64; Urban v. Grasser, 2001 WI 63, 243 Wis. 2d 673, 627 N.W.2d 511; Waters ex rel. Skow v. Pertzborn, 2001 WI 62, 243 Wis. 2d 703, 627 N.W.2d 497; Meyer, 226 Wis. 2d 704; Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 547 N.W.2d 602 (1996); Seivert v. Am. Family Mut. Ins. Co., 190 Wis. 2d 623, 528 N.W.2d 413 (1995); Szarzynski v. YMCA, 184 Wis. 2d 875, 517 N.W.2d 135 (1994); Linville, 184 Wis. 2d 705. See also cases cited in Seivert, 190 Wis. 2d at 627 n.2. 11 Urban, 2001 WI 63 at ¶12. 8 No. ¶12 case We poses previous have an cases recognized intensely stated that each inquiry.12 fact-driven the test recreational to determine We a immunity have in recreational activity in a number of different, but similar, ways. the tests we have stated before. 00-2356-FT We repeat Although the injured person's subjective assessment of the activity is pertinent, it is not controlling.13 A court must consider the nature of the property, the nature of the owner's activity, and the reason the injured person is totality the on the property.14 of circumstances intrinsic activity.15 nature, A court surrounding purpose, should the and consider activity, consequences the including of the A court should apply a reasonable person standard to determine whether the person entered the property to engage in a recreational activity.16 Finally, a court should consider whether the activity in question was undertaken in circumstances substantially similar "to the circumstances of recreational activities set forth in the statute."17 12 Urban, 2001 WI 63 at ¶12; Verdoljak, 200 Wis. 2d at 636. 13 Minn. Fire, 2001 WI 64 at ¶¶21, 29. 14 Minn. Fire, 2001 WI 64 at ¶23; Urban, 2001 WI 63 at ¶14; Meyer, 226 Wis. 2d at 712. 15 Minn. Fire, 2001 WI 64 at ¶21; Urban, 2001 WI 63 at ¶13; Meyer, 226 Wis. 2d at 712; Verdoljak, 200 Wis. 2d 624; Seivert, 190 Wis. 2d at 631; Linville, 184 Wis. 2d 705. 16 Minn. Fire, 2001 WI 64 at ¶21; Meyer, 226 Wis. 2d at 712. 17 Seivert, 190 Wis. 2d at 630 (quoting 1983 Wis. Act 418, § 1); Minn. Fire, 2001 WI 64 at ¶20. 9 No. ¶13 totality In the present of the case it circumstances is and helpful whether to 00-2356-FT consider the the activity in question was undertaken in circumstances substantially similar to the circumstances of recreational activities set forth in Wis. Stat. § 895.52. Trista entered the school district's property to attend school for educational purposes in compliance with Wisconsin compulsory law. school A critical attendance law circumstance requires is that that "any the person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours."18 the compulsory school An adult's failure to comply with attendance law subjects the adult to criminal penalties.19 Children who do not attend school are truants subject Trista's and are also participation in to recess penalties.20 was In mandatory. addition, The school district required Trista to participate in recess out of doors as a part of Trista's similar its curriculum. sliding to the down the The snow circumstances of circumstances pile the are not voluntary surrounding substantially recreational activities set forth in Wis. Stat. § 895.52(1)(g). 18 Wis. Stat. § 118.15(1)(a) See School Attendance"). (entitled "Compulsory 19 See Wis. Stat. § 118.15(5)(a); State v. Pamela White, 180 Wis. 2d 203, 509 N.W.2d 434 (1993) (mother convicted of misdemeanor for failing to take measures to assure the child's regular attendance at school in compliance with the compulsory education statute). 20 See Wis. Stat. § 118.16(6)(a) penalties to children for truancy). 10 (stating potential No. ¶14 00-2356-FT The defendants contend that Trista's sliding on the snow pile during recess at the Stanley-Boyd Elementary School falls within "educational activity" as that phrase is used in Wis. Stat. § 895.52(1)(g). But the context in which the term "educational used activity" is in § 895.52(1)(g) does not include the activities of an elementary school student during a mandatory school recess compulsory basis. period while attending school on a An educational activity in the context of § 895.52(1)(g) refers to participation in an outdoor learning experience voluntarily entered into by the individual. ¶15 The defendants also argue that Trista's attendance at the Stanley-Boyd Elementary School where the injury occurred is not compulsory. They assert that only her attendance at some school is compulsory. The critical activity factor during We are not persuaded by this argument. in the recess present as case that renders non-recreational her under Wis. Stat. § 895.52 is that Trista's attendance at some school is mandatory, with adverse consequences for both Trista and her parents for Trista's failure to attend school. ¶16 the When we apply the totality of the circumstances and objectively reasonable person tests to determine whether Trista's activity is recreational under the statute, we conclude that the small part of Trista's school activity that could be considered "recreational" in ordinary parlance does not render her entering the school district's property as entering the property for the purposes of a recreational activity under the recreational immunity statute. Under the objective reasonable 11 No. person test, activity nor not is every every outdoor form of activity 00-2356-FT a recreational play child's is a recreational activity under Wis. Stat. § 895.52.21 ¶17 Ervin The defendants make a final argument. v. City of Kenosha, 159 Wis. 2d 464, (1991), to support their claim of immunity. They rely on 464 N.W.2d 654 They contend that in Ervin the court recognized that the legislature expressly intended to supplant the established common law by enacting swimming at § 895.52.22 ¶18 In two Ervin, minors drowned municipal beach in the City of Kenosha. while a The City of Kenosha was not required to provide lifeguards, but nevertheless employed lifeguards. The City did not train the lifeguards in rescue techniques or emergency care. Ervin argued that the City of Kenosha was negligent in failing to train its lifeguards and that the lifeguards were negligent in performing their duties.23 ¶19 The recreational Kenosha's Ervin immunity common-law negligent manner. 21 court recognized statute duty to that conflicted provide with applying the lifeguards in City a the of non- Nonetheless, this court concluded that the Minn. Fire, 2001 WI 64 at ¶30. 22 The court in Ervin stated that, although the provisions of Wisconsin's recreational immunity statute conflict with established common-law rights of injured individuals, the statutorily granted immunity supersedes the common law. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 476, 464 N.W.2d 654 (1991). See also 1983 Wis. Act 418, § 1. 23 See Ervin, 159 Wis. 2d at 469-71. 12 No. City of Kenosha had immunity from 00-2356-FT liability under Wis. Stat. § 895.52 because the "legislature clearly expressed an intent to change conflicting common law" when it enacted the recreational immunity statute.24 ¶20 present The defendants seek to apply the same reasoning in the case. districts and They recognize that their employees owe reasonable care. under common law, schoolchildren a school duty of They argue that Wis. Stat. § 895.52 clearly expresses the legislature's intent to supersede the conflicting common law regarding the duty of reasonable care. They further argue that schools want their students to go outside and play during recess, that immunity under § 895.52 encourages outdoor activity, and that a school district's liability for injuries sustained during eliminate recess. recess Thus could the cause school defendants districts conclude that to the legislature intended § 895.52 to apply in the present case and that § 895.52 trumps the common law when a schoolchild engages in outdoor recess. ¶21 We agree with the defendants that Wis. Stat. § 895.52 supplants the common law, but Ervin does not govern the present case. The facts of Ervin are unlike those in this case. In Ervin, the boys entered the beach owned by the City of Kenosha to swim at their leisure. The recreational immunity statute clearly identifies swimming as a recreational activity.25 24 See Ervin, 159 Wis. 2d at 476. 25 Wis. Stat. § 895.52(1)(g). 13 The No. boys' sole purpose in entering the City's 00-2356-FT property was to participate in a recreational activity listed in the statute. ¶22 In educational contrast purposes to Ervin, in compliance Trista went with to state school for law. Her participation in what is a "recreational activity" in common parlance convert during the a mandatory educational school purpose of recess period school recreational activity under the statute. does attendance not into a Furthermore, we are not persuaded, as the defendants argue, that the legislature intended outside Wis. Stat. § 895.52 school buildings by to encourage giving school a mandatory districts from liability for an injury to a schoolchild. recess immunity Recess is a long-standing school activity that predates the enactment of the recreational immunity statute. No reason exists to immunize school districts from liability for not exercising reasonable care in the maintenance of school facilities or supervision of schoolchildren during regular school hours. In earlier versions of the recreational immunity statute the legislature's focus was on owners opening their property for recreational purposes by removing the potential for liability. This focus on opening the property has apparently been de-emphasized by the legislature. The concept of opening the property for recreational purposes has only limited usefulness in applying § 895.52.26 26 Urban, 2001 WI 63 at ¶12. 14 For the No. 00-2356-FT reasons set forth, we do not find Ervin persuasive authority in the present case. ¶23 Applying our established fact-specific test, we conclude that the defendants in this case are not immune from liability under the recreational immunity statute. We reverse the circuit court's order dismissing the complaint and remand the cause to the circuit court for further proceedings not inconsistent with this court's holding. By the Court.-The order of the circuit court is reversed and the cause is remanded to the circuit court. Prior to 1984, the legislative intent was different. Recreational immunity was created by § 29.68, ch. 89, Laws of 1963, which explained the statute as "relating to the limitations on liability of landowners who open private lands for recreational purposes." Although the legislature redefined the intended scope of the statute several times, it remained specific to "opened" property. See Verdoljak, 200 Wis. 2d at 633. The legislature repealed Wis. Stat. § 29.68 (1963) and enacted Wis. Stat. § 895.52 (1983). The 1983 statute no longer described the recreational immunity statute as limiting the liability of landowners who open private lands for recreational purposes and focused instead on limiting the liability of a landowner to a person who enters the owner's property to engage in a recreational activity. See Verdoljak, 200 Wis. 2d at 632634. This case once again demonstrates the need for the legislature to review this statute. See Wis. Stat. §§ 13.83(1)(c)1, 13.93(2)(d); see also Minn. Fire, 2001 WI 64 at ¶¶37-45 (Bradley, J., concurring, joined by Abrahamson, C.J.), ¶69 (Wilcox, J., dissenting); Waters, 2001 WI 62 at ¶¶52-53 (Abrahamson, C.J., concurring). 15 No. 00-2356.jpw ¶24 JON P. WILCOX, J. majority's reasoning and I agree with the (concurring). holding in this case. I write separately only because I think that the majority has failed to discuss a particularly strong reason for not immunizing schools under the recreational immunity statute. Wis. Stat. § 120.12 (1999-2000)27 provides in part: The school board district shall: of a common or union high school . . . (5) REPAIR OF SCHOOL BUILDINGS. Keep the school buildings and grounds in good repair, suitably equipped and in safe and sanitary condition at all times. The school board shall establish an annual building maintenance schedule. Likewise, Wis. Stat. § 121.02(1)(i) provides that "[E]ach school board shall . . . [p]rovide facilities . . . ." These safe two and statutes healthful demonstrate the legislature's support for upholding the duty of reasonable care for schools and school districts, and they bolster our refusal to immunize the school district from liability in the present situation. ¶25 These districts to conflict with statutes, which direct keep their property the recreational safe immunity schools and and healthful, statute, which school are in would provide that the school, as a property owner, does not owe, "to any person who enters the [school's] property to engage in a 27 All references to the Wisconsin Statutes are to the 19992000 version unless otherwise indicated. 1 No. 00-2356.jpw recreational activity . . . [a] duty to keep the property safe for recreational property, . . . [or condition, use activities . . . [a] a] duty or to give activity duty to warning on inspect of the an the unsafe property." Wis. Stat. § 895.52(2). ¶26 When statutes conflict, we must attempt to reconcile them if possible. Bingenheimer v. DHSS, 129 Wis. 2d 100, 107- 08, 383 N.W.2d 898 (1986). Here, the simplest and most obvious way to reconcile these statutes is to find, as the majority does, that the legislature could not have intended to consider mandatory recess a "recreational activity" under § 895.52, see Majority op. at ¶2, and that the recreational immunity statute therefore does not apply. ¶27 For the foregoing reasons, I respectfully concur. ¶28 I am authorized to state CROOKS joins this concurrence. 2 that Justice N. PATRICK No. 00-2356.jpw 1
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