Urban v. Grasser

2001 WI 63, 627 N.W.2d 511, 243 Wis. 2d 673, 2001 Wisc. LEXIS 401
CourtWisconsin Supreme Court
DecidedJune 14, 2001
Docket99-0933
StatusPublished
Cited by18 cases

This text of 2001 WI 63 (Urban v. Grasser) 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
Urban v. Grasser, 2001 WI 63, 627 N.W.2d 511, 243 Wis. 2d 673, 2001 Wisc. LEXIS 401 (Wis. 2001).

Opinions

WILLIAM A. BABLITCH,J.

¶1. Plaintiff Donald Urban (Urban) appeals a circuit court decision concluding that defendant David Grasser (David) was entitled to recreational immunity under Wis. Stat. [677]*677§ 895.52 (1995-96).1 Urban was crossing David's property to use his boat, which was located on an adjacent property. David's father, Paul Grasser (Paul) owned the adjacent property. Paul held an easement for ingress and egress over David's property pursuant to a written agreement between them and had granted permission to Urban to use David's property in accessing his boat. David's property constituted the only legal means available for Urban to access his boat. A dog jumped out at him. Urban fled and jumped from David's property onto a next-door neighbor's concrete driveway, injuring himself. Urban sued David, and David claimed recreational immunity.

¶ 2. The issue is whether the facts of this case give rise to recreational immunity for David. We conclude that the facts entitle David to immunity and that no exceptions to immunity apply. Accordingly, we affirm the circuit court's decision.

¶ 3. On July 19, 1997, Urban purchased a boat from Paul. The boat was docked at a boat slip on Paul's property. After Urban purchased the boat, he intended to dock the boat at another location. However, because Urban needed time to secure the other location, Paul agreed that Urban could temporarily dock the boat on his property. Paul did not charge Urban for the use of the boat slip.

¶ 4. A description of the property is necessary to understand Urban's use of the property and the occurrence of his injury. The property at issue was a rectangular parcel of property that was divided into [678]*678two separate lots of approximately equal size. One lot occupied the western half of the property and was owned by David; the other lot occupied the eastern half and was owned by Paul. David's property was bordered to the west by a street. Paul's property was bordered to the east by waterfront, which is where the boat slips were located. To get to his new boat, Urban was required to park his automobile on the street, walk across David's property, and walk across Paul's property to the boat slip.

¶ 5. To the north of both David and Paul's properties was a concrete driveway that was owned by a neighbor. The driveway declined from west to east while the property owned by David and Paul remained level. Consequently, from west to east, David and Paul's property was at a gradually higher level than the neighboring driveway. A retaining wall separated the driveway from David and Paul's properties. The top of this wall remained level with David and Paul's properties, but the bottom of the wall declined from west to east in the same manner as the driveway.

¶ 6. Prior to 1981, Paul owned all of the property at issue in this case. In 1981, however, David contracted with Paul to purchase the western portion of the property. The contract granted a perpetual easement to Paul over a portion of David's property and provided as follows:

The land [the property conveyed to David] shall be subject to a perpetual easement in favor of Vendor [Paul and his wife] over the south 10 feet of the west 110 feet as [sic] and for ingress and egress and to a perpetual easement over the entire parcel except the 110 west feet thereof and said easement for ingress and egress, said easement to allow Vendors free use of the easement area for themselves and [679]*679those to whom they shall lease boat slips in the city of Kenosha harbor and guests. Purchasers shall also have the right to use of the land covered by the west easement provided it does not interfere with the easement rights of Vendors and their lessees.

The easement over David's property constituted the only legal means available for Paul, his guests, and lessees of the boat slips to access Paul's property and the boat slips.

¶ 7. On the day that he purchased the boat, Urban, along with members of his family, made several trips from his automobile to the boat slip, crossing David's property each time. Urban slept on the boat that night. The next day, July 20, 1997, he again accessed the boat several times by using the same route.

¶ 8. During the early evening of July 20, 1997, Urban was walking back from the boat slip when he noticed a dog on David's property. The dog, a boxer named Baby, was owned by David. The dog began growling and barking at Urban and then proceeded to chase him. Although the dog was chained to a tree on David's property, Urban did not notice the chain, and he began running to the north. Without stopping or looking back, Urban jumped from the property onto the concrete driveway. At the point where he jumped, the property was about ten feet higher than the driveway. The parties do not contest that Urban jumped from David's property. Urban seriously injured his heel when he landed.

¶ 9. Urban and his wife (plaintiffs) filed a complaint against David and his insurers, Heritage Mutual and John Alden Life Insurance Company. In the complaint, the plaintiffs alleged two causes of action. First, they alleged that, pursuant to Wis. Stat. [680]*680§ 174.02(1), David was strictly liable for damages caused by the dog. Second, they alleged that David was "negligent in the care, custody, control supervision, and/or shelter" of the dog "in failing to keep the dog, by leash or other means."

¶ 10. David and Heritage Mutual (defendants)2 moved for summary judgment, arguing that David was immune from liability pursuant to Wis. Stat. § 895.52, the recreational immunity statute. The circuit court granted the defendants' motion. The plaintiffs appealed, and we accepted the court of appeals' certification on all issues raised by the plaintiffs before the court of appeals. However, because we conclude that the recreational immunity statute applies to deny recovery to the plaintiffs in this case, we need not reach the remaining issues.

1 — I 1 — I

¶ 11. We address only whether the facts of this case give rise to recreational immunity and entitle David to summary judgment. We deliberately state the issue differently than that posed by the court of appeals in its certification. The court of appeals presented the issue as follows: "This case asks whether a property owner, holding a servient property interest, may claim recreational immunity for injuries suffered by persons who used the easement to cross the property as the guest of the easement holder, the dominant property interest."

¶ 12. Although the court of appeals correctly framed the issue, we conclude that our statement of the [681]*681issue is more appropriate because it emphasizes the intensely fact-driven nature of recreational immunity cases. Circuit courts, the court of appeals, and this court have wrestled with recreational immunity since the legislature first provided for such immunity under the law. We have all been frustrated by the seeming lack of basic underlying principles in our efforts to state a test that can be easily applied. The principle that the purpose of the legislation is to encourage landowners to open their property to recreational users has provided only limited usefulness.

¶ 13.

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Bluebook (online)
2001 WI 63, 627 N.W.2d 511, 243 Wis. 2d 673, 2001 Wisc. LEXIS 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/urban-v-grasser-wis-2001.