March 30, 2015
The Wisconsin Recreational Immunity statute was enacted to encourage landowners to open their lands to the public to permit recreational activities. Since its enactment, a series of Court of Appeals and Supreme Court decisions have widened its scope.
The first push was to expand its application to landowners regardless of whether they opened their land for public use. Despite the stated purpose of the law a landowner who makes all efforts to prevent the public from using its land is granted all of the privileges of a landowner who opens his lands willing. This reading of the law clearly contravenes its stated purpose. The next push was to extend the grant of immunity when the injured party was not engaged in a recreational activity, as long as they initially entered upon the property for the purpose of engaging in a recreational activity. The latest expansion of the law involves a grant of immunity regardless of the injured person’s intention, so long as their activity is among the expansive definition provided in the statute.
In the current case, the plaintiff was on a bicycle ride with his son on public streets. Along the ride, he decided to stop at an Open Pantry gas station to purchase a drink. The plaintiff’s front tire became lodged in a broken drainage pipe exposed by crumbling asphalt, and the plaintiff was thrown to the ground resulting in serious injuries. Open Pantry argued that despite the fact the plaintiff was a patron of Open Pantry and had no intention to recreate on the property, his claim was barred by Wisconsin’s Recreational Immunity statute simply because he was using a bicycle for transportation. The trial court agreed and the plaintiff’s case was dismissed. Interestingly, the statute's definition also includes motorcycling, which means if the plaintiff had been on a motorcycle refueling, the same immunity would apply.
The plaintiff intends to appeal the dismissal, but it is clear, the Supreme Court and the Wisconsin Legislature need to revisit this statute. Call your legislators. Demand they rewrite this statute to accomplish its stated purpose.