Joseph Hall and his wife, Elizabeth, appeal a summary judgment dismissing a claim for personal injuries inflicted when Joseph stepped in a hole on the grounds of the Turtle Lake Village Park during a fair sponsored by the Turtle Lake Lions Club. The circuit court concluded that the Lions Club had immunity under sec. 895.52, Stats., as a "landowner" who allowed Hall entry for "recreational activity." We affirm.
On review of a summary judgment, the court of appeals applies the same methodology as the trial court and no deference is paid to the decision of the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). The burden is on the party moving for summary judgment. Grams v. Boss, 97 Wis.2d 332, 338-39, 292 N.W.2d 473, 477 (1980).
Section 895.52(2) (b), provides that:
Section 895.52(1) (g) defines "recreational activity" as:
Section 1 of Wis. Act 418, effective May 15, 1984, discusses the intended scope of sec. 895.52:
We conclude that a fair is "substantially similar" to several "examples of the kinds of activities" enumerated in the definition of recreational activity: "nature study," "sight-seeing," as well as the generic phrase "any other . . . educational activity."
Hall describes the Lions Club event as a "hometown fair . . . an agricultural show involving 125 head of cattle, carnival rides and booths, food and beer concessions, and a demolition derby." The Halls struggle valiantly to distinguish the fair from the statutorily immune activities. They argue, for example, that "Maybe seeing 125 head of cattle would be educational to somebody from the city, but around Turtle Lake that's how they make their living." Ultimately the Halls' arguments fail in view of the liberal construction mandated by the statute.
The Halls argue further, however, that even if the fair qualified for immunity, because he took a break from fair activities and was walking to the men's restroom when the accident occurred he was not engaged in recreational activity. This ordinary, necessary, and momentary diversion while still on the fair grounds certainly does not remove the landowner from the protection of the statute, and we summarily reject this argument.
Finally, the Halls maintain that the Lions Club was not an "owner." Section 895.52(1) (d) defines an owner as follows:
Section 895.52(1) (h) defines a "recreational agreement" as follows:
The property in question was titled in the Village of Turtle Lake, and the Lions Club had no written agreement with the village. Nevertheless, when a third party such as the Lions Club produces a fair on the land of another, it "occupies" the land within the intended definition. The Halls attempt to distinguish Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193 (7th Cir. 1987), a federal decision construing the word "occupant" under former sec. 29.68 to include a snowmobile club that constructed and groomed trails on the land of another. The Halls note that the former statute provided in part:
While it is true that the statutory language has been changed in sec. 895.52 (1)(d), an owner still includes one who "occupies a property." We therefore adopt the language found in Smith:
Id. at 1197 (quoting Smith v. Sno Eagles Snowmobile Club, Inc., 625 F.Supp. 1579, 1582 (E.D. Wis. 1986)).
The Halls argue that this interpretation of the statute renders the reference to a recreational agreement superfluous. We disagree. An organization that neither leases nor physically occupies land may qualify as an owner by virtue of a written agreement. Our construction of the statute does not render sec. 895.52(1) (d) 2 superfluous.
By the Court.—Judgment affirmed.