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Wisconsin Recreational Use Statute prevents lawsuit over accidental drowning of guests at sports club

WI Supreme Court thoroughly reviews the definition of non-profit in examining the recreational use statute

Trinidad v. Capitol Indemnity Corporation, 2008 WI App 36; 308 Wis. 2d 394; 746 N.W.2d 604; 2008 Wisc. App. LEXIS 50 aff’d Trinidad v. Capitol Indemnity Corporation, 2009 WI 8; 315 Wis. 2d 324; 759 N.W.2d 586; 2009 Wisc. LEXIS 3

This is always a tough situation when the court has to apply the law no matter how sad the facts of the case. However, this is how our country works, the law controls no matter how hard the heartstrings are tuagged.

In this case, a family went to a wildlife area that was incorporated as a non-profit hunting club. While there, two young girls drowned. The parents sued the non-profit corporation for their loss. The trial court granted the defendants’ motion for summary judgment, which was upheld by the appellate court and the Wisconsin Supreme Court.

The legal issue was the application of the Wisconsin Recreational Land Use Statute, Wis. Stat. § 895.52 (2009). The state has different laws on how the protection of the recreational use statute will be applied based on the type of landowner. In this case, a landowner who is a non-profit, has broader protection if there is a fee charged for the use of the land.

The group that invited the plaintiffs to the hunting club paid the fee for the use of the land, not the plaintiffs. The plaintiffs were on the land for free.

The Wisconsin Recreational Use Statute first defines a non-profit as “Nonprofit organization” means an organization or association not organized or conducted for pecuniary profit.” Wis. Stat. § 895.52. The statute then defines the activities that will be protected by the statute.

Recreational activity” includes 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, sport shooting and any other outdoor sport, game or educational activity

The families activities, picnicking and water sports, are specifically listed as protected.

The immunity afforded by the statute is specific.

1. A duty to keep the property safe for recreational activities.

2. A duty to inspect the property, except as provided under s. 23.115 (2)

3. A duty to give warning of an unsafe condition, use or activity on the property. (b) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an 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 owners property or for any death or injury resulting from an attack by a wild animal.

The statute then provides additional protection for non-profit entities as defined by the statute.

(5) LIABILITY; PROPERTY OF NONPROFIT ORGANIZATIONS.

Subsection (2) does not limit the liability of a nonprofit organization or any of its officers, employees or agents for a death or injury caused by a malicious act or a malicious failure to warn against an unsafe condition of which an officer, employee or agent of the nonprofit organization knew, which occurs on property of which the nonprofit organization is the owner.

The statute goes further to allow property owners to collect up to $2000.00 per year for the use of the property.

The court in Trinidad concentrated on the definition of a non-profit. The plaintiff argued the organization had not kept its articles of incorporation current with the changes in the statute over the years. The Wisconsin Statutes concerning Wisconsin non-profits had changed several times since the defendant had been incorporated as a non-profit entity.

However, the court did not find this controlling. The Wisconsin Secretary of State and the IRS still considered the defendant a non-profit and that was all that mattered.

So?

Many corporations forget that they may have to amend their articles of organization as the statutes controlling a corporation or LLC changes. Always check with an attorney, whether you are a non-profit or for profit entity to make sure your paperwork is current and up to date.

A big area that most corporations fail to do is titles. No state statute recognizes CEO. Although the CEO may be the top person, the president has all of the legal authority according to state law.

All fifty states in the US have recreational use statutes. All 50 of them are very different. If you are going to rely on the recreational use statute for protection from litigation, make sure you meet each of the requirements based on the activities occurring on your land and the type of landowner you are.

When in doubt, do not rely on the recreational use statute alone. Either receive an indemnification agreement from groups bringing people on to your land or have each person entering and using your land sign a release.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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