SHIRLEY S. ABRAHAMSON, J.
This is a review of a published decision of the court of appeals, Sievert v. American Family Mutual Insurance Co., 180 Wis.2d 426, 509 N.W.2d 75 (Ct. App. 1993), affirming the order of the circuit court of Outagamie county, Harold V.
This court granted American Family Insurance Company's petition for review, limiting review to one issue: Does the recreational immunity statute limiting a property owner's liability, sec. 895.52 Stats. 1991-92, apply to a person who is injured when walking uninvited onto a neighbor's dock to communicate a greeting? In other words, was Robert Sievert engaging in a recreational activity as defined by sec. 895.52(1)(g) when he was injured? We conclude, as did the circuit court and court of appeals, that the recreational immunity statute does not apply to the facts of this case because the activity in issue was not a recreational activity as defined by the statute. Accordingly, we affirm the decision of the court of appeals.
For the purposes of this review, the facts are undisputed. The Sievert and the Pierre families own summer cottages two doors away from each other on Grass Lake. On August 1, 1988, Everett Pierre was attempting to remove weeds and debris from the swimming area of the lake directly in front of his property. To accomplish his purpose, he pointed his pontoon boat toward the shore, tied both sides of the boat to the ends of parallel docks on either side of the swimming area, and turned on the boat's engine. This process used the
While Everett Pierre was operating the boat in this manner, Robert Sievert came on the Pierres' property to say hello to Everett Pierre. The Pierres had not expressly invited Robert Sievert to their cottage that evening. Sievert walked onto one of the docks and, as he stepped onto the end section, it collapsed. Robert Sievert fell approximately four feet and severely injured his heel.
The Sieverts initiated this suit against the Pierres and their insurer, American Family, alleging that the Pierres were negligent in the manner in which they designed, installed and maintained the dock and in operating their boat while attached to the dock. The Sieverts subsequently dismissed the Pierres from the lawsuit.
American Family moved for summary judgment, asserting that the recreational immunity statute applied to the case at bar. The circuit court denied the motion. We review a summary judgment using the same methodology as the circuit court.
The issue presented in this case is one of statutory interpretation. We must determine whether the plaintiffs' suit is barred by the recreational immunity statute which limits a property owner's liability for an injury to, or caused by, someone engaging in a recreational activity on the owner's property.
In deciding the applicability of the recreational immunity statute, the court must first determine whether the activity in which Robert Sievert was engaged at the time of his injury is within the statutorily defined phrase "recreational activity," sec. 895.52(1)(g). Interpretation and application of a statute to undisputed facts is generally considered a question of law which this court determines independently of other courts, benefitting from their analyses.
Considering only the first, and broadest, part of the definition, "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure," it appears that Sievert's walk onto his neighbor's dock, an outdoor activity undertaken for pleasure or relaxation, could be construed as a recreational activity. Indeed, this broad definition, when isolated from the remainder of the statute, encompasses nearly every human activity that can be undertaken outdoors. Thus it cannot be isolated from the balance of the definition. It must be anchored to its statutory context and construed in light of the statute's list of specific recreational activities as well as the second broad definition.
It is immediately clear that walking to greet a neighbor is not one of the 28 activities listed in sec. 895.52(1)(g). Nor does walking to greet a neighbor fall within the broad definition of a recreational activity as "any other outdoor sport, game or educational activity." Thus, when read within the context of the entire subsection, Sievert's activity is not covered under the first, most general definition of recreational activity.
The fact that Sievert's activity is not enumerated as a recreational activity, nor falls under either of the general broad definitions of a recreational activity in sec. 895.52(1)(g) when read within the entire context of
Although American Family does not explore whether walking onto another's property to communicate a greeting is an activity substantially similar to the activities listed in the statute or whether it is an activity undertaken in circumstances substantially similar to the circumstances of a recreational activity, we should nevertheless examine these questions to give effect to the legislature's expressed intent.
In Linville, the court stated that the test "considers the purpose and nature of the activity in addition to the [property] user's intent." Id. at 716. The test "requires examination of all aspects of the activity. The intrinsic nature, purpose and consequence of the activity are relevant. While the injured person's subjective assessment of the activity is relevant, it is not controlling. Thus, whether the injured person intended to recreate is not dispositive, . . . but why [the person] was on the property is pertinent." Linville, 184 Wis. 2d at 716, quoting Linville v. City of Janesville, 174 Wis.2d 571, 579-80, 497 N.W.2d 465 (Ct. App. 1993).
Furthermore, the Linville test does not assess the activity of the property owner. Thus, we disagree with American Family's contention that Everett Pierre's activity at the time of the accident is significant in resolving whether Robert Sievert's activity was recreational under the statute. The delineation of an activity as recreational does not turn on the nature of the property owner's activity but rather on the nature of the property user's activity.
American Family suggests that because Sievert was not on the Pierres' dock to benefit the Pierres (he was not, for example, performing work for them, delivering a message, or rendering advice), Sievert must have been engaging in a recreational activity. The test
Considering the nature and purpose of Sievert's activity, as Linville instructs us to do, we conclude that Sievert was not engaging in a recreational activity within the meaning of sec. 895.52(1)(g) at the time the dock collapsed. The purpose of Sievert's activity was to greet his neighbor. His objective behavior and his testimony at trial signify that greeting Everett Pierre was his sole reason for being on the Pierres' dock. While we recognize that an activity can be both recreational under the statute and social, we conclude, as did the circuit court and court of appeals, that Robert Sievert's activity of walking to greet a neighbor does not fall within the statutory definition of recreational activity.
Finally, American Family suggests that the policy behind the statute is to encourage property owners, particularly owners of waterfront property, to open their property to the public for recreational activities and that declaring Sievert's activity to be a recreational activity would foster this policy. American Family's policy argument does not alter our analysis. We need not consider this argument because we have concluded that Robert Sievert's activity was not a recreational activity under sec. 895.52(1)(g). Sievert's conduct was not one of the enumerated activities in the statute. Under the Linville test it was not substantially similar to a recreational activity delineated in the statute
For the reasons set forth, the decision of the court of appeals is affirmed.
By the Court.—The decision of the court of appeals is affirmed.
Almost every state has adopted a recreational immunity statute. For discussions of these statutes, including the Wisconsin statute, see Stuart J. Ford, Comment, Wisconsin's Recreational Use Statute: Towards Sharpening the Picture at the Edges, 1991 Wis. L. Rev. 491; Dean P. Laing, Comment, Wisconsin's Recreational Use Statute: A Critical Analysis, 66 Marq. L. Rev. 312 (1983); Richard A. Lehman, Note, Torts—Statutes—Liability of Landowner to Persons Entering for Recreational Purposes, 1964 Wis. L. Rev. 705; Gibson v. Keith, 492 A.2d 241 (Del. 1985).