By Andrew M. Lorenz
May 13, 2021
In any normal year, the onset of warm weather causes Wisconsin residents to flock to the outdoors. This year, however, the stream of cars leaving cities should flow stronger than ever, as large sectors of the state’s population has been either outright locked down or significantly restricted in their travel since last spring. Landowners who either permit access to or attempt to profit off of these new or reinvigorated outdoor enthusiasts should be aware of potential legal concerns involved with doing so.
As an initial matter, landowners may be concerned whether allowing large groups of persons to gather on their property is currently allowed at all. This concern is not only justifiable, it is expected—as there has been a seeming ping-pong match between the governor, the legislature, and the courts striking down and then imposing various COVID-19 restrictions. As of March 2021, this back and forth has (seemingly) settled on the following state of affairs: outdoor gatherings (of any size) are not currently subject to any statewide restrictions, although county by county orders may apply. Regarding the latter point especially, however, regulations could quickly change as the state (hopefully) begins to achieve herd immunity.
A Wisconsin law commonly referred to as the Recreational Use Immunity statute provides landowners protection against lawsuits for injuries sustained by individuals engaged in a “recreational activity” on the landowner’s property. The statute contains a broad definition of recreational activities—including a non-exhaustive list of over thirty activities—and generally states that a landowner is not responsible for: (1) keeping his or her property safe for recreational activities; (2) inspecting the property regularly; or (3) giving warnings for unsafe conditions, uses or activities on the property.
There are exceptions to the Recreational Use Immunity statute, however. Perhaps most notably, if a person is injured while engaged in a recreational activity for which the owner “collects money, goods, or services,” then the landowner cannot receive the benefit of the statute if they collect more than $2,000 in aggregate payments for all recreational activities taking place on the property during a given calendar year. For example, if a landowner receives more than $2,000 in concessions for “picnicking” activities (one of the statute’s listed recreational activities) during the summer, and then accepts $200 from a hunter to deer hunt, the landowner would lose the protection of the Recreational Use Immunity statute if the hunter were injured-even though the hunter himself paid less than $2,000 to the landowner.
On a semi-related note—and spurred by the recent viral story involving criminal charges against multiple Wisconsin residents involved in the processing of sturgeon eggs—it is illegal to barter or trade the meat of a wild animal. Consequently, a formal agreement calling for a landowner to receive a portion of a hunter’s harvest in exchange for land access is technically a criminal act. In contrast, giving or accepting gifts of wild game, with no expectation of receiving any benefit in return, is non-criminal. Further, a gift of wild game does not count towards the aggregate $2,000 payment total discussed above.
In all, the Recreational Use Immunity statute does provide substantial protection to landowners who choose to open their lands to allow others to enjoy more of Wisconsin’s outdoors. But careful consideration of the limits and exceptions in the statute is a good idea before the risk of injury occurs.
Agricultural Tourism Activity Immunity
The Agricultural Tourism Activity statute, which is similar to the Recreational Use Immunity statute, but potentially substantially more beneficial to a farm owner trying to profit off of his or her farm, was enacted in April 2014. This statute grants immunity to anyone who provides an educational or recreational activity on a farm, ranch, or grove that allows visitors to “tour, explore, observe, learn about, participate in, or be entertained by an aspect of agricultural production, harvesting, or husbandry that occurs on the farm, ranch, grove, or other place” if the visitor is injured by a risk inherent in the agricultural tourism activity. The statute elaborates that the unpredictable behavior of farm animals and the ordinary dangers of structures or equipment used on a farm are inherent risks of agricultural activities.
A key difference between the Agricultural Tourism Activity statute and the Recreational Use Immunity statute is that the Agricultural Tourism Activity statute does not have a maximum payment exception. In other words, an agricultural tourism provider can charge fees for the agricultural tourism activity without losing the protections provided by the statute.
Because this statute is relatively new in Wisconsin, there have not been many court cases interpreting its application and scope. Beware, however: one bright-line requirement for an agricultural tourism provider trying to take advantage of this new statute is that there must be clearly posted signs conforming with mandated language, font, and size requirements at each entrance to the property. Any provider who thinks they may be offering a tourism activity that could fall within the ambit of this statute should take great precaution to ensure they do not inadvertently lose their protection by failing to comply with this signage requirement.
© 2021 The Badger Common Tater, Antigo, WI. Reprinted with permission
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