March/April 2017 Issue

Also in this issue: Court of Appeals Upholds Oshkosh Special Events Ordinance     |     Wisconsin Supreme Court Rules That The Public Can Carry Concealed Weapons On Public Transportation     |     Employer Attendance Policies and Unemployment Compensation

Recreational Immunity Applied When Grandparent Injured While Supervising Grandchildren at City-Owned Pool

Brian P. Goodman | 03.01.17

A recent Wisconsin Court of Appeals case held that recreational immunity shielded a city from liability for injuries to someone who was supervising others engaged in recreational activities on city-owned land. Wilmet v. Liberty Mut. Ins. Co., No. 2015AP2259 (Wis. Ct. App. Feb. 28, 2017). Carol Wilmet was a grandma watching her grandchildren as they swam at a swimming pool owned and operated by the City of Du Pere. Carol was not swimming herself, merely watching as her grandchildren swam. Her grandson shouted that he was going to jump off the high dive. Concerned for his safety, Carol told her grandson to wait and moved to supervise him better. As she headed toward the high dive, Carol tripped. She sued the City for damages based on her injuries, but the court held that the City was entitled to immunity under Wisconsin’s recreational immunity statute, Wis. Stat. § 895.52.

The recreational immunity statute generally protects landowners from liability when they open their land for recreational activities. The question in this case was whether Carol was engaged in recreational activity at the time of her injury. Carol was only supervising her grandchildren’s recreational activity, not physically participating in recreational activity. The statutory definition of recreational activity is ​“any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity.” The statute also provides that over two dozen enumerated activities and ​“any other outdoor sport, game or educational activity” constitute recreational activities. 

The court explained that swimming and diving were activities covered under the statute, but Carol was not swimming and diving. Supervising is not an enumerated recreational activity. However, a statement of legislative intent included in the law that created the recreational immunity statute stated that the statute ​“should be liberally construed in favor of property owners to protect them from liability.” The Wisconsin Supreme Court explained in past cases that recreational activities include activities that are substantially similar to the enumerated activities. Practice and instruction of outdoor activities are enumerated in the statutory definition of ​“recreational activity.” Looking at dictionary definitions for ​“supervise,” the court reasoned that ​“supervise” was substantially similar to ​“practice” and ​“instruction.”

Additionally, the court reasoned that a supervisor has some degree of control over the circumstances under which the recreational activity takes place. The recreational activity of the supervisee is the reason the supervisor is on the property, and so ​“the recreational activity of the supervisee also becomes a recreational activity of the supervisor.” Therefore, Carol was engaged in a recreational activity at the time of her injury, and the City was entitled to immunity. 

The court explained that its holding was consistent with the purpose of the statute. Drawing a distinction between activity participants and activity supervisors would be illogical. A Wisconsin Supreme Court case had previously held that the statute did not distinguish between classes of people involved in an organized team sport activity — the statute covered coaches as well as players. Similarly, people are no less engaged in a recreational activity when they are supervising as opposed to physically participating in the activity.

This case reiterates Wisconsin’s strong public policy in favor of recreational immunity for landowners that open their land for recreational purposes. The law does not draw distinctions between supervisors and physical participants because that would be a disincentive for landowners. Wisconsin’s recreational immunity statute is designed to encourage municipalities and other landowners to open up their land for recreational activities.

— Brian P. Goodman