Peterson v. Midwest Security Insurance

2001 WI 131, 636 N.W.2d 727, 248 Wis. 2d 567, 2001 Wisc. LEXIS 1605

• Court: Wisconsin Supreme Court
• Decided: December 7, 2001
• Docket: 99-2987
• Status: Published

Opinions

DIANE S. SYKES, J.

¶ 1. This case requires us to determine who qualifies as an "owner" of "property" for purposes of the recreational immunity statute, Wis. Stat. § 895.52 (1997-98), which immunizes property owners against liability for injuries to persons engaged in recreational activity on their property. More specifically, the issue is whether the owner of a tree stand used for deer hunting is entitled to recreational immunity when he does not also own the real property upon which the tree stand is situated.

¶ 2. The plaintiff, Danny Peterson, was injured when the tree stand from which he was bow hunting gave way and he fell to the ground. At the time of his injury, Peterson was hunting with permission on land owned by Vernon and Culleen Peterson.¹ The tree stand, however, had been built and was owned by the Petersons' nephew, Harold Shaw.²

¶ 3. Peterson sued Shaw's insurer. The circuit court dismissed the case, concluding that the recreational immunity statute applied because 1) Peterson was engaged in recreational activity when he was injured; 2) the tree stand from which he fell was "property" under the statute; and 3) Shaw was the owner of the tree stand. The court of appeals affirmed.

¶ 4. The recreational immunity statute confers immunity on any person who "owns, leases or occupies property" for injuries to those engaged in recreational activity on the property. Wis. Stat. § 895.52(1)(d)1 (1997-98). "Property" is defined in the statute as "real property and buildings, structures and improvements thereon, and the waters of the state." Wis. Stat. § 895.52(1)(f) (1997-98). A tree stand is a "structure" as that term is commonly and ordinarily understood. The statute does not require that the owners of "buildings, structures and improvements" also own the underlying real property in order to qualify for immunity. Accordingly, as the owner of the tree stand, Shaw is entitled to immunity under the statute, even though he did not also own the real property on which the tree stand was built. We therefore affirm.

H — 1

¶ 5. Vernon and Culleen Peterson own 121 acres of wooded land in Dane County. They permitted their nephew, Harold Shaw, to hunt deer on their property, and also allowed him to build two deer stands in the woods. Each stand was basically a small wooden platform "cinched in against the tree with a chain" about 20 feet off the ground, accessible by way of a metal ladder.

¶ 6. In the fall of 1996, the plaintiff, Danny Peterson, accompanied Shaw to the Petersons' property. The Petersons gave Danny Peterson permission to hunt on their property. Shaw gave Peterson permission to use the tree stands. Peterson hunted on the property two or three times that year.

¶ 7. In October 1997, Peterson returned to the property to bow hunt for deer. Peterson decided to use one of Shaw's tree stands. He climbed up the ladder and through the branches until he was level with the tree stand's platform. After testing the tree stand's ability to hold his weight, Peterson stepped out onto the platform. He spotted a deer less than five minutes later. Standing up on the tree stand to get a shot at the deer, Peterson turned his ankle "just a little bit." The tree stand collapsed "like a trapdoor." Peterson fell to the ground and was seriously injured.

¶ 8. Peterson sued Shaw's liability insurer, Midwest Security Insurance Company, alleging that the tree stand had been negligently built and maintained, and that Shaw had negligently represented that the tree stand was "in good condition" and "safe to use." Midwest Security moved for summary judgment, asserting, among other things,³ that Shaw was immune under Wis. Stat. § 895.52 (1997-98), the recreational immunity statute.⁴

¶ 9. The Dane County Circuit Court, the Honorable Patrick J. Fiedler, granted the motion, noting that hunting was specifically enumerated as a "recreational activity" in the statute, and concluding that the tree stand constituted a "structure" or "improvement" and therefore fell within the statute's definition of "property." Because Shaw was the owner of the tree stand, the circuit court held that he was entitled to immunity. The court of appeals affirmed, and we granted review.

II

¶ 10. We review the circuit court's grant of summary judgment de novo, using the same methodology as the circuit court. Waters v. Pertzborn, 2001 WI 62, ¶ 37, 243 Wis. 2d 703, 627 N.W.2d 497. A court grants summary judgment when "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).

¶ 11. The parties agree that as to the applicability of the recreational immunity statute, there are no material factual disputes. The case turns on the interpretation and application of a statute, which is a question of law that we review de novo. Shannon v. Shannon, 150 Wis. 2d 434, 447, 442 N.W.2d 25, 31 (1989).

¶ 12. The recreational immunity statute immunizes property owners against liability "for any injury to a person engaged in a recreational activity on the owner's property." Crowbridge v. Village of Egg Harbor, 179 Wis. 2d 565, 569, 508 N.W.2d 15, 17 (Ct. App. 1993). If the statute applies, a property owner owes no duty of inspection, warning or safety to "any person who enters the owner's property to engage in a recreational activity," and is otherwise immune from liability for injuries to any person engaged in recreational activity on the owner's property. Wis. Stat. § 895.52(2)(a) and (b).⁵

¶ 13. While the inquiry in many recreational immunity cases focuses on whether the injured plaintiffs "activity" was "recreational" within the meaning of the statute, no one here disputes that Peterson was engaged in a "recreational activity" as that term is defined in Wis. Stat. § 895.52(1)(g). Hunting is specifically listed as a "recreational activity" in the statutory definition. Wis. Stat. § 895.52(1)(g).

¶ 14. Whether Shaw is entitled to immunity depends upon whether he qualifies as a property owner under the statute. "Owner" and "property" are defined terms. An "owner" is "a person ... that owns, leases or occupies property." Wis. Stat. § 895.52(1)(d)1. "Property" is "real property and buildings, structures and improvements thereon, and the waters of the state." Wis. Stat. § 895.52(1)(f).

¶ 15. The parties agree that Shaw owned the tree stand from which Peterson fell. Their dispute centers on whether the tree stand by itself is "property" under the statute. The circuit court and the court of appeals concluded that the tree stand was a "structure" and therefore "property" within the meaning of Wis. Stat. § 895.52(1)(f). We agree.

¶ 16. The term "structure" is not defined in Wis. Stat. § 895.52, and is therefore given its common and ordinary meaning. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 483-84, 464 N.W.2d 654, 662 (1991). A "structure" is "something constructed," or "something made up of a number of parts that are held or put together in a particular way." American Heritage Dictionary of the English Language, 1782 (3d ed. 1992). "Structure" is also defined as "[a]ny construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner." Black's Law Dictionary, 1424 (6th ed. 1991).

¶ 17. Shaw's tree stand was made of wood and "cinched in against the tree with a chain," and had a metal ladder. In other words, it was constructed, built, or put together in a particular way, and was made up of parts joined together. The tree stand was therefore a "structure" as that term is commonly and ordinarily understood. Shaw was therefore an owner of "property" within the meaning of the recreational immunity statute.

¶ 18. Peterson reads the definition of "property" differently. He argues that the phrase "buildings, structures and improvements" merely modifies "real property," so that a person who owns a building, structure or improvement but does not also own the underlying real property does not own "property" within the meaning of the statute. He interprets the statute to create two categories of "property": 1) real property, along with any buildings, structures, or improvements thereon; and 2) the waters of the state. He bases this interpretation on the lack of punctuation between the phrases "real property" and "buildings, structures and improvements" in the definition.

¶ 19. We decline to give the absence of a comma such interpretive significance. Peterson's punctuation-based interpretation operates to impose a requirement that does not appear on the face of the statute: that the owner of a building, structure or improvement implicated in a recreational injury must also own the underlying real property in order to own "property" as that term is defined in the statute. But the statute does not say " '[p]roperty' means real property and buildings, structures and improvements thereon that are owned by the real property owner," and we cannot rewrite it in the exercise of interpreting it. See State v. Martin, 162 Wis. 2d 883, 907, 470 N.W.2d 900, 910 (1991)("Our task is to construe the statute, not to rewrite it by judicial fiat.").⁶ According to the unambiguous language of the statute, a person who owns a "building, structure or improvement" on real property owns "property" under the statute, regardless of whether he also owns the underlying real estate. Where the language of a statute is clear and unambiguous, we do not look beyond it to ascertain its meaning. Dieter v. Chrysler Corp., 2000 WI 45, ¶ 21, 234 Wis. 2d 670, 610 N.W.2d 832.

¶ 20. This interpretation is consistent with Doane v. Helenville Mutual Insurance Co., 216 Wis. 2d 345, 352, 575 N.W.2d 734, 737 (Ct. App. 1998), in which the court of appeals concluded that the definition of "property" in Wis. Stat. § 895.52(1)(f) basically "delineates three categories of property whose owners may qualify for immunity: (1) real property; (2) buildings, structures and improvements thereon; and (3) waters of the state."

¶ 21. This interpretation is also consistent with the expression of legislative purpose that accompanied the repeal of the old recreational immunity statute, Wis. Stat. § 29.68, and its replacement by Wis. Stat. § 895.52:

Legislative intent. The legislature intends by this act to limit the liability of property owners toward others who use their property for recreational activities under circumstances in which the owner does not derive more than a minimal pecuniary benefit. While it is not possible to specify in a statute every activity which might constitute a recreational activity, this act provides examples of the kinds of activities that are meant to be included, and the legislature intends that, where substantially similar circumstances or activities exist, this legislation should be liberally construed in favor of property owners to protect them from liability. The act is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.

1983 Wis. Act 418, § 1.

¶ 22. Thus, while it has often been said that" [t]he intent of sec. 895.52, Stats., is to encourage landowners to open up their land for recreational activity," Crowbridge, 179 Wis. 2d at 572 (citing Ervin, 159 Wis. 2d at 475), it is abundantly clear from the language of the statute and the statement of legislative intent that the purpose of the statute is broader, and recreational immunity is not in fact limited only to landowners.

¶ 23. As noted above, the legislature specified that Wis. Stat. § 895.52 is to be "liberally construed in favor of property owners to protect them from liability." 1983 Wis. Act 418, § 1; see also Ervin, 159 Wis. 2d at 476; Sievert v. American Family Mut. Ins. Co., 190 Wis. 2d 623, 630, 528 N.W.2d 413, 417 (1995); Schultz v. Grinnell Mut. Reinsurance Co., 229 Wis. 2d 513, 518, 600 N.W.2d 243, 246 (Ct. App. 1999); Stann v. Waukesha County, 161 Wis. 2d 808, 825, 468 N.W.2d 775, 782 (Ct. App. 1991). Peterson's interpretation operates to exclude from the definition of "property" any building, structure or improvement owned by someone other than the real property owner, or, conversely, to include only those buildings, structures or improvements that are owned by the real property owner. This sort of restrictive interpretation is inconsistent with the language of the statute and the legislative directive that it be liberally construed in favor of immunity for property owners.⁷

¶ 24. Accordingly, we conclude that a person who owns a "building, structure or improvement" on real property owns "property" as that term is defined in Wis. Stat. § 895.52(1)(f), even if he does not own the underlying real property. Shaw's tree stand was a "structure" as that term is commonly and ordinarily understood. Therefore, Shaw owned "property" within the meaning of the recreational immunity statute.⁸ Because Peterson was engaged in a specifically enumerated "recreational activity" — deer hunting — when he fell from Shaw's tree stand and was injured, Shaw is entitled to recreational immunity under Wis. Stat. § 895.52(2).⁹ Summary judgment dismissing the case was therefore appropriate, and we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

1 Vernon and Culleen Peterson are not related to the plaintiff in this action.

2 Harold Shaw was not named as a defendant. He died in 1998.

3 In addition to asserting recreational immunity, Midwest Security also argued that Shaw was not negligent, that Peterson's claim relied upon evidence inadmissible under the Dead Man's Statute, and that the claim was barred by laches. Because we, like the court of appeals, resolve this case under the recreational immunity statute, we do not address the alternative arguments.

4 All statutory references are to the 1997-98 version of the Wisconsin Statutes unless otherwise indicated.

5 The statute contains several exceptions not at issue here. See Wis. Stat. § 895.52(3)-(6).

6 See also Ruggero J. Aldisert, The Judicial Process § 4 at 175 (American Casebook Series 1976)(quoting Lord Blackburn in River Wear Comm'rs v. Adamson, 2 App. Cas. 742, 746 (H.L. 1877)) (" 'But it is to be borne in mind that the office of the judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the court injudicious; and I believe that it is not disputed that what Lord Wensleydale used to say is right, namely that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear.'").

7 The dissent argues that our reading of the statute violates the rules of grammar and punctuation. Dissent at ¶¶ 47-55. We do not disagree that courts sometimes look to grammatical rules when interpreting legal texts. But interpreting a legal text is not like diagramming a sentence or correcting an English paper. The rules of grammar and punctuation should not be applied at the expense of a natural, reasonable reading of the statutory language (taking into account the context in which it appears and the purpose of the statute), or when the result is an expansion or contraction of the statute contrary to its terms. Here, strict adherence to the "rule of the serial comma" as advocated by the dissent operates to add a substantive requirement to the statute that it otherwise does not contain.

8 The circuit court also held that Shaw was an "occupier" of property under the statute. Because we conclude that Shaw owned "property" as that term is defined in the statute, we need not address whether Shaw also, or alternatively, "occupied" property.

9 The dissent contends that our interpretation of the statute does not "comport with the idea that recreational activity takes place outdoors. How does one enter a building or structure in order to engage in an outdoor activity?" Dissent at ¶ 62. The suggestion seems to be that one almost never enters into a building or structure to engage in outdoor activity. However, in addition to the tree stand at issue in this case (which the dissent apparently concedes is a structure used for outdoor activity, see dissent at ¶ 64), there are other buildings that one does enter for purposes of engaging in outdoor recreational activity: open air park pavilions, observation towers, gazebos, or screen houses used for picnics, and so on.