Ann Bystery was injured when the bicycle she was riding overturned on a Sauk City sidewalk. She appeals from a summary judgment dismissing her complaint against the village and its insurer for her injuries on the ground that the village is immune from liability under sec. 895.52, Stats. Because we conclude that the village is not so immune, we reverse.
Section 895.52(2)(b), Stats., provides that "[e]xcept as provided in subs (3) to (6), no owner ... is liable for any injury to ... a person engaging in a recreational activity on the owner's property ...." Subsections (3) to (6) provide when the state, a municipality, a nonprofit organization or a private landowner may be liable for such injuries. None of these provisions apply to this case.
"Owner" includes a municipality. Sec. 895.52(1)(d)1., Stats. Bystery concedes that at the time of her accident she was bicycling for recreation. The village argues that therefore the plain language of the statute requires that her action be dismissed.
Bystery contends that it is unlikely that the legislature intended by sec. 895.52, Stats., to extend municipal immunity to bicycling on public sidewalks located in densely populated urban areas. She contends that we should resolve the ambiguity she sees in sec. 895.52 as the New Jersey court resolved the
Neither the language of sec. 895.52, Stats., nor its legislative history supports a limitation of its application to sparsely settled, rural, residential areas. We nevertheless conclude that sec. 895.52 does not immunize the village from liability for Bystery's damages. The village may be liable to her under sec. 81.15, Stats., which provides:
"Highway," as used in this section, includes sidewalks. Webster v. Klug & Smith, 81 Wis.2d 334, 339, 260 N.W.2d 686, 689 (1978). For summary judgment purposes, the village does not claim that it was not required to keep in repair the sidewalk where Bystery was injured.
Section 895.52, Stats., conflicts with sec. 81.15, Stats. When faced with an apparent conflict between two statutes dealing with the same subject matter, we attempt to harmonize them and give effect to each. Bingenheimer v. DHSS, 129 Wis.2d 100, 107, 383 N.W.2d 898, 901 (1986). We do so by holding that
This construction of the statute is consistent with the legislative purpose. Section 29.68, Stats. (1963) the predecessor statute to section 895.52, Stats., was created "to encourage the use of forest and farmlands for many outdoor recreational sports by restricting the common-law liability of the landowner to such users in various respects." Copeland v. Larson, 46 Wis.2d 337, 344, 174 N.W.2d 745, 749 (1970). In 1975, sec. 29.68 was expanded to include the federal government, the state and municipalities. Ch. 179, Laws of 1975. In 1983, sec. 29.68 was repealed and sec. 895.52 was created to replace it. 1983 Wis. Act 418. The declaration of legislative intent shows that the purpose of sec. 895.52 is the same as former sec. 29.68: to encourage landowners who might otherwise withhold their land from the use of others to make their land available for recreational activities. Section 1, 1983 Wis. Act 418. By including municipalities in the protection of sec. 895.52, Stats., the legislature has encouraged them to provide for their residents and the public a variety of outdoor recreational activities.
By including municipalities in the protection of sec. 895.52, Stats., the legislature has not, however, repealed sec. 81.15, Stats., by implication. The legislature, in enacting sec. 895.52, is presumed to have done
It has been legislative policy since the formation of the state that municipalities are to keep their highways and sidewalks in repair and are liable for injuries caused by want of repair and dangerous conditions thereof. Section 81.15, Stats., appeared in its original form in the first revised statutes of the state. R. S. 1849, ch. 16, sec. 103. The legislative policy to protect travelers and users of highways and sidewalks was recognized in numerous early decisions of the Wisconsin Supreme Court, including Codner v. Town of Bradford, 3 Pin. 259 (1851), Seward v. Town of Milford, 21 Wis. 485 (1867), Dreher v. Town of Fitchburg, 22 Wis. 675 (1868), and Reed v. City of Madison, 83 Wis. 171, 53 N.W. 547 (1892). It has been long settled that it is the "imperative" duty of a municipality to keep its sidewalks in a safe condition. Colby v. City of Beaver Dam, 34 Wis. 285, 288-89, 290-91 (1874).
The village points out that bicyclists may not use public sidewalks unless permitted by local authorities, sec. 346.94(1), Stats., and argues that sec. 895.52, Stats., should be construed to apply to public sidewalks as an inducement to municipalities to permit their use for bicycling. We reject such a construction as unrealistic and unreasonable. Section 895.52 extends
See also LeMay v. Oconto, 229 Wis. 65, 69-70, 281 N.W. 688, 690 (1938) (child operating a tricycle was a traveler on the sidewalk).
We find nothing in the language of sec. 895.52, Stats., or its legislative history to alter these results. We therefore conclude that the village's liability to Bystery is to be determined under sec. 81.15, Stats. We reverse the summary judgment.
The village argues that we may affirm the summary judgment because Bystery's evidence does not
By the Court.—Judgment reversed.