By Andrew M. Lorenz
March 17, 2022
Just as things were returning to normal after this past year, a resurgence of COVID-19 cases put a pause on the much-anticipated full return to pre-pandemic life. But Wisconsin shows no signs of reverting to the “stay at home” level of lockdown that we faced in late-spring 2020. With warm weather returning, events will likely become more in-person. Landowners who either host or attempt to profit from attractions should be aware of potential legal concerns involved with doing so.
As an initial matter, landowners may be concerned as to whether there are any current restrictions on hosting large groups of people on their property at all. On a statewide level, there is not, at least as of this writing. Nonetheless county-by-county restrictions could still apply because local ordinances have not yet received the same consideration from courts. It would behoove the prudent landowner to at least maintain awareness of any such local ordinances that may impact potential events.
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 more than 30 activities. It 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. 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 it’s 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 toward the aggregate $2,000 payment total.
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.
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. The 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 the statute is relatively new in Wisconsin, there have not been many court cases interpreting its application and scope. But beware; one bright-line requirement for an agricultural-tourism provider trying to take advantage of the 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 she or he 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 the signage requirement.
© 2022 Agri-View. Madison, WI. Reprinted with permission.
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