SHE SURE GOT HER BELL RUNG
A young girl and her friend sneaked onto church property to play. While they were doing whatever young kids do when they’re where they shouldn’t be, the girl pushed on a bell. The bell fell, injuring her foot. When kids trespass and do stupid things, how do the parents respond? Why, they sue the landowner, of course.
In this case it was a local Catholic Church, getting sued – unusually enough – for something that had nothing to do with sex abuse. Despite the Diocese’s obvious relief at being sued on behalf of a child plaintiff who wasn’t complaining about a priest, the Church nonetheless argued that under Wisconsin’s recreational use law, it enjoyed immunity.
In a strange analysis, the Court of Appeals disagreed. Reba was hurt when she pushed on the bell, and the Court held that her pushing the bell wasn’t related to the game she and her friend had been playing. This, the Court said, was mischief. Plus, the Court said, the Church wasn’t really a recreational property, and the Church didn’t invite people to use it as such. In fact, it took steps to keep kids from playing there. So because Reba was engaging in mischief as a trespasser, and because the Church was arguably acting responsibly in trying to keep this kind of conduct from occurring, it owed Reba a greater duty than had it left the place wide open. This is probably a correct application of the recreational use statute, but it certainly seems — as a matter of public policy — not to make a lot of sense.
Fortunately, under Wisconsin law, the Church only would have owed a duty to a trespasser to refrain from willful, wanton, or reckless conduct, about the same result the Church would have gotten from application of the recreational use statute. Unfortunately, a jury found the Church had engaged in such conduct, and it awarded the plaintiff money damages.
You might think that you have no duty to a trespasser wandering onto your property. Guess again.
Fargo ex rel. MacArthur v. United Nat. Ins. Co., 739 N.W.2d 490 (Wis.App., 2007). A child playing house on church property was injured when she tried to push on a bell, which fell and injured her. Through her parents, the girl sued the St. Ignatius Catholic Church for negligence, and a jury awarded her damages. St. Ignatius appealed, arguing that it was entitled to immunity under the Recreational Use law, Wis. Stat. §892.52.
Held: The award of damages to young Miss Fargo was affirmed. The recreational immunity statute limits the liability of property owners toward others who use their property for recreational activities. The statute defines recreational activity to include “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure…” The statute lists 29 specific activities that constitute recreational activities, but instructs that “recreational activity” should be liberally construed in favor of property owners to protect them from liability.
To determine whether a person was engaged in a recreational activity under the statute, the Court said, a fact-finder should consider the totality of circumstances surrounding the activity, examining the intrinsic nature of the activity, the purpose of the activity — including the injured person’s subjective assessment of the activity — and consequences of the activity. A court should also consider the nature of the property, including whether the owner intended the property to be used for recreational activities, and the reason the injured person is on the property.
Here, St. Ignatius argued it was entitled to immunity because young Reba Fargo was injured while playing house with a friend on church property, and this was a recreational activity. The Court disagreed. Instead, it ruled, Reba was injured when she pushed the bell, which then fell on her foot. The Court held that her act of pushing the bell wasn’t related to the game she had been playing. Rather, viewing the activity objectively, she was attempting to move a large, stationary object by pushing very hard.
The Court concluded that this independent act was mischievous, because Fargo was trying to move an object that was not designed to move. Wisconsin law holds that mischievous conduct is not a recreational activity. What’s more, considering the nature of the property, St. Ignatius was a church, not a playground or other place where recreational activity would usually occur. The church made attempts to limit children playing on its property. While not determinative, that fact was an appropriate factor bearing on the recreational use analysis.
Considering all of the factors, the Court concluded that Reba Fargo was not engaged in a “recreational activity” within the meaning of the Recreational Use statute. Thus, St. Ignatius was not entitled to immunity.