Muriel and Louis Crowbridge appeal a summary judgment dismissing their complaint against the Village of Egg Harbor.
On September 13, 1991, the Crowbridges went fishing on the municipal pier of the village of Egg Harbor. They did not pay any fee to use the pier. While walking on the pier, Muriel fell and injured herself on what they allege was a negligently constructed and maintained portion of the pier. The Crowbridges filed
When reviewing a summary judgment, we apply the same methodology used by the trial court and decide the matter de novo. In re J.L.H., 149 Wis.2d 349, 354, 441 N.W.2d 273, 274 (Ct. App. 1989). The first step is to examine the pleadings to determine whether a claim for relief has been stated. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). If a claim for relief has been stated, the inquiry shifts to whether any factual issues exist. Id. Summary judgment must be entered if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
There is no dispute that the Crowbridges stated a claim for relief and that the answer alleges a defense of recreational immunity. The inquiry must therefore shift to whether there are any material facts in dispute and whether the village is entitled to summary judgment as a matter of law. Section 895.52, Stats., immunizes owners, including municipalities and villages, from liability for any injury to a person engaged in a recreational activity on the owner's property.
In Bystery, we noted a municipality is not immune from liability under the recreational immunity statute when the injury occurs on a highway or sidewalk that, under sec. 81.15, Stats., it is bound to keep in repair.
The Crowbridges argues that any place set out for pedestrian use by the public can be considered a sidewalk, and this includes a pier because it provides a means of transportation by boat users from boats to the land. Section 340.01(58), Stats., defines a sidewalk as "that portion of a highway between the curb lines, or the lateral lines of a roadway, and the adjacent property
There may be some overlap in the uses that can be made of sidewalks and piers. The Crowbridges correctly note that piers can be walked upon; in fact, passengers loading or unloading from watercraft must walk on a pier. Similarly, a sidewalk constructed at the edge of the water could be used to unload passengers from watercraft if the water were deep enough. However, many of the recreational activities covered under sec. 895.52(1)(g), Stats., are undertaken while walking or running and many of the buildings, structures and improvements on property used from recreational activities are capable of being walked upon. Yet, the fact that recreational facilities, including piers, can be walked upon does not convert them into sidewalks.
Our interpretation is buttressed by the theory of liability pled in this case. The Crowbridges seek to base liability on the safe place statute, sec. 101.01, Stats. Plaintiffs in many cases dealing with injuries occurring on piers seek to base liability on this statute, and the
Holding that a pier is property that is immune under the recreational immunity statute is consistent with the statute's legislative intent. The intent of sec. 895.52, Stats., is to encourage landowners to open up their land for recreational activity. Ervin v. Kenosha, 159 Wis.2d 464, 475, 464 N.W.2d 654, 658-59 (1991). In Ervin, the parents of two children who drowned at a city-owned beach argued that the recreational immunity statute should not apply. They argued that the city was actively negligent in hiring and training the lifeguards and also assumed a duty to provide nonnegligent lifeguards when it gratuitously provided lifeguards. The court rejected an "active negligence" and
Thus, for these reasons, we conclude that a pier is not a sidewalk that must be maintained within the meaning of sec. 81.15, Stats., but is immune under sec. 895.52, Stats., as the very type of property that statute sought to encourage.
By the Court.—Judgment affirmed.
Section 895.52(1)(d)1 includes in the definition of owner "a governmental body or nonprofit organization, that owns, leases or occupies property."
This section includes sidewalks. Bystery, 146 Wis. 2d at 251, 430 N.W.2d at 613.