Fischer v. Doylestown Fire Department

543 N.W.2d 575, 199 Wis. 2d 83, 1995 Wisc. App. LEXIS 1558

• Court: Court of Appeals of Wisconsin
• Decided: December 28, 1995
• Docket: 95-0796
• Status: Published

Opinions

VERGERONT, J.

LaVern and Mary Fischer appeal from a summary judgment dismissing their personal injury claim against the Doylestown Fire Department, the Village of Doylestown and General Casualty Company of Wisconsin. The trial court concluded that the fire department and the village were immune from liability under Wisconsin's recreational use statute, § 895.52, STATS., because the Fischers were engaged in a recreational activity and because both the fire department and the village are governmental bodies. We affirm.

The following facts are not disputed. LaVern Fischer was injured while he was attending the 1992 Doylestown Firemen's Picnic, an event sponsored annually by the Doylestown Fire Department. A bench he was sitting on at the picnic collapsed. The picnic is held at the Firemen's Park, which is owned by.the Village of Doylestown. The incident occurred on the last day of the event. The picnic is open to the public and no general admission fee is charged. The fire department sells food and drinks for a profit. There are also games and activities at the event, including softball, horseshoes, a raffle, music, amusement rides, a truck pull and bingo. Visitors are required to pay a fee or purchase a ticket in order to participate in the games and activities. There are also two tents set up to provide visitors a shaded place to rest and socialize.

The fire department made approximately $4,300 from the 1992 picnic, primarily from the sale of food and beer, but also from the tickets sold for the activities. The fire department uses the money from the picnic to maintain the park and purchase park and fire equipment. Money from prior picnics paid for buildings in the park.

The Fischers attended the event with their grandchildren in the morning on the day of the injury. They returned in the afternoon with their grandson to take him on the amusement rides, and that is when the injury occurred. The rides require the purchase of tickets. LaVern also planned to attend the truck pull, which was in an enclosed area and required a ticket. But he did not do so because the gates were closed and the event was almost over by the time he got there. The Fischers intended to purchase their supper at the picnic.

When reviewing a grant of summary judgment, we apply the same standards as the trial court. Ervin v. City of Kenosha, 159 Wis. 2d 464, 479, 464 N.W.2d 654, 660 (1991). We grant summary judgment if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Section 802.08(2), Stats. We do not decide issues of fact when reviewing summary judgment motions, but simply determine if there is a dispute of material fact. Ervin, 159 Wis. 2d at 480, 464 N.W.2d at 661. Even if there are no disputed issues of material fact, if reasonable alternative inferences can be drawn from the facts, summary judgment is not appropriate. Id. at 478-79, 464 N.W.2d at 660.

The Fischers contend that the trial court erroneously granted, summary judgment to the defendants because the undisputed facts raise conflicting inferences as to whether the event was recreational, and therefore within the protection of § 895.52, Stats., or commercial.

Section 895.52(2)(b), Stats., provides that, with certain exceptions, "no owner... is liable for any injury to ... a person engaging in a recreational activity on the owner's property." Section 895.52(l)(g) defines "recreational activity" as:

[A]ny outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. "Recreational activity" includes, but is not limited to, hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature and any other outdoor sport, game or educational activity, but does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.

The Fischers rely on Silingo v. Village of Mukwonago, 156 Wis. 2d 536, 458 N.W.2d 379 (Ct. App. 1990), in arguing that conflicting reasonable inferences entitle them to a trial. In Silingo, we held that summary judgment had been improperly granted because there was a disputed issue of material fact as to whether an event called "Maxwell Street Days," an outdoor flea market, was a recreational activity covered by the statute. We concluded that the intrinsic nature of the flea market, where over one hundred vendors offered their wares for sale to the public, raised an inference that the event was commercial. On the other hand, we concluded that the "community flavor" of the event, the donation of the site by the village, and the sponsorship motivation of the American Legion, even in the face of its profit opportunity, raised an inference that the event was recreational. Silingo, 156 Wis. 2d at 544-45, 458 N.W.2d at 383.

In Silingo, we adopted an objective test to determine whether an activity is "recreational":

[This test] requires that all social and economic aspects of the activity be examined. Relevant considerations on this question include, without limitation, the intrinsic nature of the activity, the type of service or commodity offered to the public, and the activity's purpose and consequence.

Silingo, 156 Wis. 2d at 544, 458 N.W.2d at 382 (emphasis in original).

Applying this test to the undisputed facts here, we conclude there are no conflicting inferences as there were in Silingo. Even though refreshments and activities were sold at the Firemen's Picnic, it is not reasonable to infer that the intrinsic nature of the picnic was commercial in the way that a flea market is. As we noted in Silingo, one purpose of the flea market was to offer the vendors' merchandise for sale to the public and provide the opportunity for the public to transact business with the vendors. Silingo, 156 Wis. 2d at 544-45, 458 N.W.2d at 383. We noted that an economic relationship between seller and potential buyer was clearly at work, as in a mall or store, but in a less formal setting. Id. at 545, 458 N.W.2d at 383. That is not the case at the Firemen's Picnic. People coming to the picnic are coming for the purpose of "exercise, relaxation or pleasure." See § 895.52(1)(g), STATS. The activities engaged in at the picnic — eating, drinking, playing and observing games — are substantially similar to several examples listed in § 895.52(l)(g), such as "sight-seeing," "picnicking" and "any other outdoor .. . game."

In Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 431 N.W.2d 696 (Ct. App. 1988), we held that a community fair sponsored by the Lions Club offering an agricultural show, concessions, carnival rides and a demolition derby was a recreational event under the statute. Id. at 488, 431 N.W.2d at 697. We therefore affirmed the trial court's grant of summary judgment in favor of the Lions Club.

The Fischers argue that Hall is distinguishable because there was no evidence in Hall of a profit-making motive by the sponsor, as there is here. According to the Fischers, the fire department's profit motive creates a reasonable inference that the event is commercial rather than recreational in nature. We do not agree. The profits earned by the fire department are used to pay for maintenance of the park, and to purchase park equipment and fire equipment. These are not profits in the ordinary commercial sense of the word. The Firemen's Picnic is, in many ways, the community's way of paying for public services.

Under § 895.52(6)(a), Stats., private landowners lose their immunity if they collect money, goods or services in excess of $2,000 for recreational activities during the year in which the injury occurs. The only economic limit placed upon a governmental body seeking immunity under § 895.52 is that the governmental body acting as an owner may not claim immunity when the owner charges an admission fee for spectators. Section 895.52(4)(a); Nelson v. Schreiner, 161 Wis. 2d 798, 805, 469 N.W.2d 214, 217-18 (Ct. App. 1991). The exclusion of private landowners who collect above $2,000 annually demonstrates that a profit earned by a governmental body does not, in itself, convert a recreational event into a commercial one.¹

Although there are distinctions between the undisputed facts here and those in Hall, they do not warrant a different result. We conclude that the facts do not raise conflicting inferences. The trial court did not err in holding that, as a matter of law, the Fischers engaged in a recreational activity by attending the Firemen's Picnic.

The Fischers next argue that there is a disputed issue of material fact relating to the status of the fire department as a governmental body. They contend that the fire department is not a governmental body, but rather a private property owner² that is not immune from liability because it receives more than $2,000 annually for the recreational activities on its property. Section 895.52(6)(a), Stats.

Section 895.52(l)(a)3 and 4, Stats., defines a governmental body to include a "county or municipal governing body, agency, board, commission, committee, council, department, district or any other public body corporate and politic created by constitution, statute, ordinance, rule or order" and a "governmental or quasi-govemmental corporation." The definition also includes a "formally constituted subunit or an agency [of either of those entities just listed]." Section 895.52(l)(a)5. It is not disputed that the village is a municipal governing body within the meaning of § 895.52(l)(a)3. The issue is the relationship between the village and the fire department.

The undisputed facts are that the village provides funding to the fire department, pays firefighters for the calls on which they are sent, and approves the election of the fire chief. The fire department submits an annual budget to the village and the village then includes approved purchases in the village budget. The fire department does not pay a fee to use the park for the picnic. However, a fee is charged by the fire department for others to use the park. These fees go into the fire department's budget. The Fischers' own submissions show that the fire department is not a volunteer fire company organized under ch. 213, STATS., or a nonprofit corporation organized under ch. 181, STATS., or a corporation organized under ch. 180, Stats.

The only reasonable inference from this record is that the fire department is a subunit or agency of the village within the meaning of § 895.52(l)(a)5, Stats.

It is true that the fire department functions independently of the village in that it sets its own meetings, conducts its own monthly fire drills, determines its training needs, and organizes the picnic. But these facts are not sufficient to create a dispute concerning whether the fire department is a subunit or agency of the village.

The Fischers also argue that there is an issue of fact regarding the fire department's status as a governmental unit because of the defendants' response to the Fischers' request for admission. The request stated:

That defendant, Doylestown Fire Department, is a department of the Village of Doylestown with its principal address for correspondence in Wisconsin Dells, Wisconsin 53965 at 1172 Gale Drive.

The response to this request was "Deny."

Counsel for the defendants stated at the hearing on defendants' motion for summary judgment that defendants denied the request for admission because it contained an incorrect address. The trial court accepted this explanation, although it stated that the denial to "some extent skirted the intention of the inquiry."³

The trial court noted that the Fischers' complaint made the same allegation as that contained in the request to admit. The only negligent acts alleged in the complaint were those attributed to the fire department. Presumably the Fischers wished to establish that the fire department was a "department" of the village in order to hold the village liable. The answer denied this allegation based on lack of information and belief. But the defendants also asserted as an affirmative defense in their answer that the fire department is not a proper party and lacks the capacity to be sued. As the trial court noted, the defendants proceeded throughout as if the village and the fire department were the same party. Their position never was that the fire department was not a subunit or agency of the village. The Fischers do not assert that the denial misled them.

Although the defendants did not file a motion to amend their denial to the request to admit, the trial court's analysis and comments on this point show that it declined to treat the denial as a concession by the defendants that the fire department is not a subunit or agency of the village. The lack of a formal motion in these circumstances is not fatal. See Schmid v. Olsen, 111 Wis. 2d 228, 235 n.3, 330 N.W.2d 547, 551 (1983) (unnecessary for a party seeking to amend or withdraw admission to make a formal motion). Whether to permit a party to amend a response to a request to admit is within the trial court's discretion. Id. at 237, 330 N.W.2d at 551. We conclude the trial court did not erroneously exercise its discretion in relieving defendants from the effect of the denial insofar as it concerned the relationship between the fire department and the village.

By the Court. — Judgment affirmed.

1 We address the Fischers' argument that the fire department is not a governmental entity later in the opinion.

2 A "private property owner" is defined as any owner other than a governmental body or nonprofit organization. Section 895.52(l)(e), Stats. An "owner" includes any person, governmental body or nonprofit organization that owns, leases or occupies property. Section 895.52(l)(d).

3 Section 804.11(l)(b), STATS., provides that the denial of a request to admit must "fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder."