Minnesota Fire & Casualty Insurance v. Paper Recycling of La Crosse

2001 WI 64, 627 N.W.2d 527, 244 Wis. 2d 290, 2001 Wisc. LEXIS 399
CourtWisconsin Supreme Court
DecidedJune 14, 2001
Docket99-0327, 99-0858
StatusPublished
Cited by15 cases

This text of 2001 WI 64 (Minnesota Fire & Casualty Insurance v. Paper Recycling of La Crosse) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Minnesota Fire & Casualty Insurance v. Paper Recycling of La Crosse, 2001 WI 64, 627 N.W.2d 527, 244 Wis. 2d 290, 2001 Wisc. LEXIS 399 (Wis. 2001).

Opinions

N. PATRICK CROOKS, J.

¶ 1. The petitioner, Paper Recycling of La Crosse, Inc. (Paper Recycling), seeks review of an unpublished court of appeals decision. Two La Crosse County Circuit Court cases were consolidated for appeal purposes because the cases resulted from the same fact situation and presented the same issue. In the first case, the circuit court, Judge Dennis G. Montabon presiding, held that Paper Recycling was not entitled to recreational immunity under Wis. Stat. § 895.52(2) in a lawsuit stemming from a 1997 fire at Paper Recycling's property that resulted in the death of a young boy. In denying the motion for summary judgment, the circuit court concluded that Paper Recycling was not entitled to recreational immunity because Daniel Devenport and the boys he was with were not engaged in a recreational activity as defined by Wis. Stat. § 895.52(l)(g).

¶ 2. In the second case, the circuit court, Judge Michael J. Mulroy presiding, held that Paper Recycling was entitled to recreational immunity because Devenport and his friends were engaged in a recreational activity. The circuit court, therefore, granted Paper Recycling's motion for summary judgment. The court of appeals affirmed Judge Montabon's decision [296]*296and reversed Judge Mulroy's decision, holding that Paper Recycling was not entitled to recreational immunity because the boys were not engaged in a recreational activity.

¶ 3. We hold that the boys, who were crawling through stacks of baled paper, lighting matches and starting fires, were not engaged in a recreational activity as defined by Wis. Stat. § 895.52(l)(g), and therefore, Paper Recycling was not entitled to recreational immunity under Wis. Stat. § 895.52(2). We, thus, affirm the court of appeals.

i — 1

¶4. On May 28, 1997, eleven-year-old Daniel Devenport (Devenport) was killed in a fire on commercial property leased to Paper Recycling. Paper Recycling, while operating a recycling facility on this property, stored stacks of baled paper in the outdoor yard of the property. The property, which was protected by a fence, was not open to the public. Devenport and two of his friends, who were also eleven-year-olds, entered Paper Recycling's property through an opening in the fence. Once inside the outdoor yard of Paper Recycling's property, Devenport and his friends began crawling around through spaces inside the stacks of baled paper that they imagined were tunnels. Within the interior of the stacks were large spaces that the boys imagined were rooms or forts to play in. One of the boys brought a box of matches that all three boys used to start fires inside the stacks. While inside one of the interior spaces, the boys noticed a fire in the space they had used to enter the stacks. Devenport's friends escaped the fire through a small opening in the stacks. Devenport was unable to escape and was killed in the fire.

[297]*297¶ 5. Two lawsuits followed the fire and Devenport's death. In case number 99-0327, Minnesota Fire and Casualty Insurance Company sued Paper Recycling in a subrogation action to recover damages it paid to its insured, Royal Properties, who leased the property to Paper Recycling. Paper Recycling moved for summary judgment claiming recreational immunity under Wis. Stat. § 895.52(2) because the boys were engaged in a recreational activity. The circuit court denied Paper Recycling's motion, holding that Devenport and his friends were not engaged in a recreational activity as defined by Wis. Stat. § 895.52(l)(g). The circuit court determined that the activity that the boys were engaged in was neither specifically listed in the recreational immunity statute, nor substantially similar to the activities listed in the statute, nor undertaken in circumstances substantially similar to the circumstances of a recreational activity.

¶ 6. In case number 99-0858, Devenport's mother, Joyce Devenport, sued Paper Recycling in a wrongful death action. Paper Recycling moved for summary judgment, again claiming recreational immunity because Devenport and his friends were engaged in a recreational activity. The circuit court granted Paper Recycling's motion, holding that the boys were engaged in a recreational activity as defined by Wis. Stat. § 895.52(l)(g). The circuit court held that they were engaged in a recreational activity because one of them stated in an affidavit that the boys' purpose in entering Paper Recycling's property was to play in the stacks of baled paper.

¶ 7. The Wisconsin Court of Appeals, District IV, consolidated the two cases for appeal. The court of appeals affirmed the circuit court in case number 99-0327 and reversed the circuit court in case number [298]*29899-0858, holding that Paper Recycling was not entitled to recreational immunity under Wis. Stat. § 895.52(2), because Devenport and his friends were not engaged in a recreational activity as defined by Wis. Stat. § 895.52(l)(g). The court of appeals determined that the activity that the boys were engaged in was not substantially similar to any of the activities listed in the recreational immunity statute.

HH l-H

¶ 8. The consolidated case requires us to determine whether Paper Recycling is entitled to summary judgment. We review a circuit court's decision to grant or deny a motion for summary judgment "by applying the standards set forth in sec. 802.08(2), Stats., in the same manner as the circuit court." Shannon v. Shannon, 150 Wis. 2d 434, 441, 442 N.W.2d 25 (1989). A court shall grant a motion for summary judgment "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 matter of law." Wis. Stat. § 802.08(2) (1995-1996).1

¶ 9. The issue presented by the instant case is whether Paper Recycling is entitled to recreational immunity in both lawsuits under Wis. Stat. § 895.52(2).2 To resolve this issue, we must apply the recreational immunity statute to the specific facts of [299]*299the present case. The application of the recreational immunity statute to specific facts presents a question of law that we review de novo, while benefiting from the analyses of the circuit court and the court of appeals. Sievert v. American Family Mut.

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Bluebook (online)
2001 WI 64, 627 N.W.2d 527, 244 Wis. 2d 290, 2001 Wisc. LEXIS 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minnesota-fire-casualty-insurance-v-paper-recycling-of-la-crosse-wis-2001.