October 23, 2017
In Wisconsin, we have a strong tradition of landowners opening up their land to snowmobile clubs, hunters, trappers, cross-country skiers, and other members of the public. While giving visitors the chance to enjoy the outdoors is a great thing owners can do for their neighbors, it does come with risk. What if a snowmobiler crashes into a downed tree blocking the trail on your land? Are you, as the owner, liable? Wisconsin law provides a safe zone for landowners in situations like this one, but property owners must still be mindful of the law so as to avoid losing the statutory protections.
In general, landowners owe certain duties to those they allow on their property, including for recreational purposes. These duties can include obligations to inspect the property to make sure that it is safe for the types of activities in which visitors hope to engage, to fix any unsafe conditions, and to warn visitors of any dangerous conditions that cannot be remedied. Failing to meet this fairly high bar could give a visitor who is injured on the property grounds to sue the owner for damages. The Wisconsin legislature recognized that, in many situations, repaying landowners who generously volunteer their properties for public use with this sort of potential for liability was not good public policy. With this in mind, it enacted what is commonly known as the Wisconsin Recreational Immunity Statute (“WRIS”).
The WRIS generally provides that private property owners will not be held liable for death or injury caused by a person engaging in a recreational activity on their property. It also says that, with regard to any person who enters an owner’s property to engage in a recreational activity, an owner does not have any of the usual duties to:
- keep the property safe for recreational activities;
- inspect the property for potential hazards; or
- give warning of an unsafe condition, use, or activity on the property.
The statute defines “recreational activity” as “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure,” including hunting, fishing, trapping, camping, four wheeling, snowmobiling, cross-country skiing, hiking, and “any other outdoor sport, game or educational activity.”
With such broad protections, the WRIS gives landowners peace of mind that allowing members of the public onto their land will not expose them to liability for injuries people may suffer or require them to spend time making sure the property is safe for the public. However, the WRIS protections can be lost if owners are not careful.
The WRIS’s exemption from liability for death or injuries occurring on someone’s property is lost if any one of the following exceptions applies:
- During the year in which the injury occurs, the property owner receives a total of $2,000 or more of money, goods, or services in payment for use of his or her land.
Therefore, if a landowner receives $2,000 from the local snowmobiling club to run trails through her land, she may be held liable for injuries that occur on her land. The WRIS provides that some “payments” are not included in the $2,000 limit. For example, a gift of wild game or other products resulting from recreational activity (berries, firewood, etc.) are permissible and do not count toward the limit. Similarly, a payment of $5 or less per person per day for permission to gather any “product of nature,” and any donation made for the management and conservation of the land’s resources are excluded as well.
- The death or injury is caused by a property owner’s malicious act or malicious failure to warn visitors about an unsafe condition.
An act or failure to warn is malicious if it “results from hatred, ill will, or a desire for revenge or is inflicted under circumstances where insult or injury is intended.” Merely not knowing about a dangerous condition or acting recklessly is not enough to lose WRIS protections.
- The death or injury occurs to a social guest who has been specifically invited by the property owner and the accident occurs: (1) on platted land; (2) on residential property; or (3) within 300 feet of a building on property that is classified as commercial or manufacturing.
The WRIS protections are primarily aimed at large tracts of vacant or agricultural land.
Therefore, when neighboring hunters or the local snowmobile club come knocking at your door this fall, the WRIS should give you some peace of mind regarding potential liability; but, at the same time, you need to be mindful of its exceptions, especially when it comes to accepting payment. If you have questions regarding the extent of potential liability, it never hurts to reach out to an attorney.
© 2017 Agri-View. Madison, WI. Reprinted with permission.
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