2016 WI 20

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP1508

COMPLETE TITLE: Patti J. Roberts and David Roberts,

 Plaintiffs-Appellants-Petitioners,

 v.

T.H.E. Insurance Company, Sundog Ballooning, 

LLC, Kerry M. 

Hanson and Jodi L. Hanson,

 Defendants-Respondents,

Dean Health Plan, Inc.,

 Defendant.

REVIEW OF A DECISION OF THE COURT OF APPEALS

(Reported at 363 Wis. 2d 656, 862 N.W.2d 656)

(Ct. App. 2015 – Unpublished)

OPINION FILED: March 30, 2016

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: December 15, 2015

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Dodge

JUDGE: Joseph G. Sciascia

JUSTICES:

CONCURRED: ZIEGLER, J. concurs.

CONCURRED/DISSENTED: PROSSER, J., joined by ROGGENSACK, C.J. concur 

and dissent.

DISSENTED: BRADLEY, R.G., J., joined by PROSSER, J. 

(except footnote 4) dissent. 

NOT PARTICIPATING:

ATTORNEYS:

For the plaintiffs-appellants-petitioners, there were 

briefs by Timothy S. Knurr and Gruber Law Offices, LLC, 

Milwaukee and oral argument by Timothy S. Knurr.

For the defendants-respondents, there was a brief by Ward 

I. Richter, David G. Ress and Bell, Moore & Richter, S.C., 

Madison, WI and oral argument by David G. Ress.
2016 WI 20

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2014AP1508

(L.C. No. 2013CV391)

STATE OF WISCONSIN : IN SUPREME COURT

Patti J. Roberts and David Roberts, 

Plaintiffs-Appellants-Petitioners, 

v.

T.H.E. Insurance Company, Sundog Ballooning, 

LLC, Kerry M. Hanson and Jodi L. Hanson, 

Defendants-Respondents,

Dean Health Plan, Inc., 

Defendant.

FILED

MAR 30, 2016

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed and 

cause remanded. 

¶1 ANN WALSH BRADLEY, J. Petitioners, Patti and David 

Roberts, seek review of an unpublished court of appeals decision 

that affirmed the circuit court's order for summary judgment, 

dismissing their claims.1 The court of appeals determined that 

 

1

Roberts v. T.H.E. Ins. Co., No. 2014AP1508, unpublished 

slip op., (Wis. Ct. App. Mar. 26, 2015) (affirming order of 

(continued)
No. 2014AP1508 

2

Wisconsin's recreational immunity statute barred the 

petitioners' claims because Patti Roberts was engaged in the 

recreational activity of hot air ballooning at the time she was 

injured.2

¶2 Roberts argues that the respondents, Sundog 

Ballooning, LLC, Kerry Hanson, Jodi Hanson, and T.H.E. Insurance 

Company (collectively "Sundog") are not entitled to immunity 

pursuant to Wis. Stat. § 895.52 because Sundog was not an owner 

under the statute. She contends that Sundog was neither an 

"occupier" of the land nor was the hot air balloon "property."3 

¶3 In reply, Sundog asserts that even if it were not 

entitled to immunity under Wis. Stat. § 895.52, Roberts' claims 

are barred because she signed a waiver of liability form.

¶4 We conclude that Sundog is not entitled to 

recreational immunity pursuant to Wis. Stat. § 895.52 because it 

is not an owner under the statute. Sundog was not an "occupier" 

of the land and the hot air balloon was not "property" because 

 

summary judgment entered by the circuit court for Dodge County, 

Joseph G. Sciascia, J., presiding).

2 Although Patti's husband, David Roberts, is also a 

petitioner, we will refer to Patti Roberts as the lone 

petitioner for ease of discussion.

3

All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.
No. 2014AP1508 

3

it was not a "structure."4 Finally, we determine that Sundog's 

waiver of liability form violates public policy and is 

unenforceable as a matter of law. Accordingly, we reverse the 

court of appeals and remand to the circuit court for further 

proceedings.

I.

¶5 The relevant facts of this case are undisputed. 

Patti J. Roberts was injured at a charity event sponsored by 

Green Valley Enterprises ("Green Valley"). Beaver Dam 

Conservationists, LLC ("the Conservationists") owned the 

shooting range where the charity event was held. 

¶6 Sundog Ballooning, LLC was the owner and operator of a 

hot air balloon providing tethered rides at the event. Kerry 

and Jodi Hanson, the owners of Sundog, donated hot air balloon 

rides to promote Green Valley's charity event. 

¶7 On the day of the event, Sundog set up a display, a 

sign-up table and a waiting area for the ride. The hot air 

balloon was tethered to two trees and a pick-up truck. During 

 

4 Roberts also argues that Sundog is not entitled to 

immunity under Wis. Stat. § 895.52 because Sundog's negligence 

was not associated with a condition of the land. We need not 

reach this argument because we conclude that Sundog was not an 

owner under the statute. The issue of whether a party's 

negligence is associated with a condition of the land applies 

only if that party is an owner under the statute. See, e.g.,

Linville v. City of Janesville, 184 Wis. 2d 705, 719, 516 N.W.2d 

427 (1994); see also Kosky v. Int'l Ass'n of Lions Clubs, 210 

Wis. 2d 463, 475, 565 N.W.2d 260 (Ct. App. 1997).
No. 2014AP1508 

4

rides, the balloon operator raised the balloon to the length of 

the ropes and then lowered it back to the ground. 

¶8 Patti Roberts and her family watched the balloon rides 

and then entered the line to take a ride. While in line, Sundog

gave Roberts a waiver of liability form that she was required to 

sign prior to riding in the hot air balloon. Roberts signed the 

waiver form, but never returned it to Sundog. The signed waiver

form was found on the event grounds after Roberts sustained her 

injuries.

¶9 The liability waiver form states in part: 

I expressly, willing, and voluntarily assume full 

responsibility for all risks of any and every kind 

involved with or arising from my participation in hot 

air balloon activities with Company whether during 

flight preparation, take-off, flight, landing, travel 

to or from the take-off or landing areas, or 

otherwise.

Without limiting the generality of the foregoing, I 

hereby irrevocably release Company, its employees, 

agents, representatives, contractors, subcontractors, 

successors, heirs, assigns, affiliates, and legal 

representatives (the "Released Parties") from, and 

hold them harmless for, all claims, rights, demands or 

causes of action whether known or unknown, suspected 

or unsuspected, arising out of the ballooning 

activities . . . . 

¶10 After signing the form, Roberts waited in line for 20 

to 30 minutes. During this time, strong winds caused one of the 

balloon's tether lines to snap. As a result, the untethered 

balloon moved toward the spectators in line. Roberts was 

injured when she was struck by the balloon's basket and knocked 

to the ground.
No. 2014AP1508 

5

¶11 The evidence submitted to the circuit court 

demonstrated that defendant Kerry Hanson, the balloon operator, 

had limited experience with tethered ballooning before giving 

rides at Green Valley's event. Hanson testified in his 

deposition that he should have obtained information regarding 

weather fronts in the area. Had he known about the weather 

front on the day Roberts was injured, Hanson testified that he 

would have suspended the ride.

¶12 Hot air ballooning is governed by FAA guidelines and 

rules. See, e.g., Fed. Aviation Admin., U.S. Dep't. of Transp., 

Pub. No. FAA-H-8083-11A, Balloon Flying Handbook 7-13 (2008). 

The FAA's safety recommendations instruct the balloon operator 

to plan for the failure of one or more of the tethered lines and 

have a backup plan for safety. See id. at 7-14. In addition, 

the operator should organize participants "far back" from the 

balloon and tether lines. Id. At his deposition, Hanson agreed 

that had he moved the sign-up table and waiting line further 

back from the balloon, Roberts would not have been injured.

¶13 Roberts filed a lawsuit against Sundog, alleging that 

its negligence caused her injuries. Sundog moved the circuit 

court for summary judgment, arguing that it is entitled to 

immunity under Wis. Stat. § 895.52 and that Roberts' claims were 

barred by the waiver of liability form that she signed.

¶14 The circuit court granted Sundog's summary judgment 

motion, dismissing Roberts' claims and concluding that Sundog 

was entitled to immunity under Wis. Stat. § 895.52. It also 

determined that the waiver of liability form Roberts signed was 
No. 2014AP1508 

6

valid as a matter of law, although an issue of fact remained as 

to whether she had accepted the terms. 

¶15 On appeal, Roberts argued that Sundog is not entitled 

to immunity because her injury was not related to a condition 

associated with the land. Roberts asserted that under Linville 

v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994) 

and Kosky v. Int'l Ass'n of Lions Clubs, 210 Wis. 2d 463, 565 

N.W.2d 260 (Ct. App. 1997), no immunity attaches for negligent 

conduct unassociated with the land. 

¶16 The court of appeals rejected Roberts' argument, 

determining that it was "based on a misreading of the case 

law . . . which has no application to the facts of this case."5 

See Roberts v. T.H.E. Ins. Co., No. 2014AP1508, unpublished slip 

op., ¶17 (Wis. Ct. App. Mar. 26, 2015). It explained that this 

was "the only argument that Roberts makes directed to the 

application of Wis. Stat. § 895.[52]." Id., ¶22. The court of 

appeals did not address the validity of the liability waiver 

 

5

This Court has previously expressed its concern that the 

recreational immunity statue is often difficult to apply and has 

recommended that the legislature reexamine this statute. See, 

e.g., Auman v. School Dist. Of Stanley-Boyd, 2001 WI 125, ¶11, 

248 Wis. 2d 548, 635 N.W.2d 762 ("This court has wrestled with 

applying the recreational immunity statute . . . since its 

enactment. . . . We continue to be frustrated in our efforts to 

state a test that can be applied easily because of the seeming 

lack of basic underlying principles in the statute."); see also

Urban v. Grasser, 2001 WI 63, ¶12, 243 Wis. 2d 673, 627 N.W.2d 

511 ("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."). 
No. 2014AP1508 

7

form because its decision as to immunity disposed of the appeal. 

Id., ¶2 n.2.

¶17 Before this court, Roberts renews her argument that 

Sundog's negligence was not connected to a condition associated 

with the land. Because this court ordered briefing on an 

additional issue, she also asserts that Sundog is not entitled 

to immunity under Wis. Stat. § 895.52 because it is not an owner 

under the statute. Roberts argues that Sundog was not an

"occupier" of the land and that the hot air balloon was not 

"property" because it was not a "structure." Sundog replies

that even if it is not entitled to immunity under Wis. Stat. 

§ 895.52, Roberts' claims are barred because she signed a waiver 

of liability form.

II.

¶18 In this case we are asked to review the circuit 

court's grant of summary judgment. We review grants of summary 

judgment applying the same methodology employed by the circuit 

court. Belding v. Demoulin, 2014 WI 8, ¶13, 352 Wis. 2d 359, 

843 N.W.2d 373. Summary judgment is appropriate if "there is no 

genuine issue as to any material fact and [] the moving party is 

entitled to [] judgment as a matter of law." Wis. Stat. 

§ 802.08(2).

¶19 Here, there is no genuine issue of material fact. 

Accordingly, we focus on whether the application of Wis. Stat. 

§ 895.52 bars Roberts' claims. Statutory interpretation 

presents a question of law that we review independently of the 

determinations rendered by the circuit court and the court of 
No. 2014AP1508 

8

appeals. State v. Dinkins, 2012 WI 24, ¶28, 339 Wis. 2d 78, 810 

N.W.2d 787. 

¶20 In interpreting a statute we begin by examining its 

language, giving words and phrases their common, ordinary, and 

accepted meaning. State ex rel. Kalal v. Circuit Court for Dane 

Cty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110. 

Statutory language must be interpreted reasonably to avoid 

absurd or unreasonable results. Id., ¶46. 

¶21 When the legislature has expressly stated the purpose 

of a statute, the purpose is relevant to the plain meaning 

interpretation of the statute. See id., ¶48. "[A] plainmeaning interpretation cannot contravene a textually or 

contextually manifest statutory purpose." Id., ¶49.

¶22 In examining an exculpatory contract, we likewise 

apply the same summary judgment methodology as employed by the 

circuit court. See Richards v. Richards, 181 Wis. 2d 1007,

1010-11, 513 N.W.2d 118 (1994) (citing Dobratz v. Thompson, 161 

Wis. 2d 502, 513, 468 N.W.2d 654 (1991)). The validity of an 

exculpatory contract is reviewed as a matter of law. Id. at 

1011. 

III.

¶23 We begin our analysis with a brief explanation of what 

is not in dispute. Neither party disputes that Roberts was 

participating in a recreational activity at the time she was 

injured because ballooning is listed in the statutory definition 

of "recreational activity." Wis. Stat. § 895.52(1)(g) defines 

"recreational activity" as: [A]ny outdoor activity undertaken 
No. 2014AP1508 

9

for the purpose of exercise, relaxation or pleasure, including 

practice or instruction in any such activity. "Recreational 

activity" includes hunting, fishing, trapping, camping,... 

ballooning, hang gliding, hiking . . . ." (emphasis added).

¶24 Furthermore, "[t]he case law is clear that a spectator 

who attends a recreational activity is engaged in a recreational 

activity." Meyer v. School Dist. Of Colby, 226 Wis. 2d 704, 

710, 595 N.W.2d 339 (1999); see also Linville, 184 Wis. 2d at 

717 (concluding that preparation for a recreational activity 

that takes place at a recreational facility that is open for 

public use is a "recreational activity" as defined by Wis. Stat. 

§ 895.52(g)). Given that Roberts was on recreational land open 

to the public, watching the balloon rides as a spectator, and 

preparing for the balloon ride by waiting in line, she was 

engaged in a "recreational activity" as defined by Wis. Stat. 

§ 895.52(g).

A.

¶25 Although Roberts does not dispute that she was engaged 

in a recreational activity, she does contest the issue of 

immunity. Roberts argues that Sundog is not entitled to 

immunity as an occupier of the property where she was engaged in 

a recreational activity. 

¶26 The recreational immunity statute Wis. Stat. § 895.52

provides: 

(2) NO DUTY; IMMUNITY FROM LIABILITY.

(a) Except as provided in subs. (3) to (6), no owner 

and no officer, employee or agent of an owner owes to 
No. 2014AP1508 

10

any person who enters the owner's property to engage 

in a recreational activity:

1. A duty to keep the property safe for 

recreational activities.

2. A duty to inspect the property, except as 

provided under s. 23.115(2).

3. A duty to give warning of an unsafe 

condition, use or activity on the property.

(b) Except as provided in subs. (3) to (6), no owner 

and no officer, employee, or agent of an owner is 

liable for the death of, any injury to, or any death 

or injury caused by, a person engaging in a 

recreational activity on the owner's property . . . .

¶27 Wis. Stat. § 895.52(1)(d)1 defines an "owner" as "[a] 

person, including a governmental body or nonprofit organization, 

that owns leases or occupies property." Wis. Stat. 

§ 895.52(1)(f) further defines "property" as "real property and 

buildings, structures and improvements thereon . . . ." 

¶28 The legislative purpose of the recreational immunity

statute is set forth in 1983 Wis. Act 418, § 1. Its stated 

purpose is to limit liability in order to encourage property 

owners to open their lands to the public:

The legislature intends by this act to limit the 

liability of property owners toward others who use 

their property for recreational activities under 

circumstances in which the owner does not derive more 

than a minimal pecuniary benefit. While it is not 

possible to specify in a statute every activity which 

might constitute a recreational activity, this act 

provides examples of the kinds of activities that are 

meant to be included, and the legislature intends 

that, where substantially similar circumstances or 

activities exist, this legislation should be liberally 

construed in favor of property owners to protect them 

from liability . . . . 1983 Wis. Act 418, § 1.
No. 2014AP1508 

11

As our cases have explained, "the impetus for this law is the 

continual shrinkage of the public's access to recreational land 

in the ever more populated modern world." Hall v. Turtle Lake 

Lions Club, 146 Wis. 2d 486, 489, 431 N.W.2d 696 (Ct. App. 

1988). 

¶29 In reply, Sundog argues that it is entitled to 

recreational immunity because Roberts was injured at an event 

similar to those in prior cases. Sundog asserts that it is 

entitled to immunity as an "occupier" of the land, for the same 

reasons that the producer of a fair or event qualifies for 

recreational immunity. Prior cases interpreting Wisconsin's 

recreational immunity law have concluded that the producer of a 

fair or event "occupied" property. See, e.g., Id., at 490; Lee 

v. Elk Rod & Gun Club, Inc., 164 Wis. 2d 103, 106, 473 

N.W.2d 581 (Ct. App. 1991); Weina v. Atlantic Mut. Ins. Co., 179 

Wis. 2d 774, 777 n.2, 508 N.W.2d 67 (Ct. App. 1993). 

¶30 As Sundog's counsel aptly argued, Wisconsin courts 

have concluded private organizations hosting an event on land 

they did not own are entitled to recreational immunity. In 

Hall, the plaintiff was injured when he stepped in a hole on the 

grounds of the Turtle Lake Village Park during a fair sponsored 

by the Turtle Lake Lions Club. 146 Wis. 2d at 487. The Lion's 

Club was not the titled owner of the land on which it held the 

fair. Id. at 490. The court of appeals concluded that the 

Lions Club was entitled to recreational immunity as a 

"landowner" that allowed Hall entry for "recreational activity." 

Id. at 487-89. 
No. 2014AP1508 

12

¶31 Likewise, in Lee, the plaintiff was injured when he 

slipped and fell on icy ground beneath a tent erected by the Elk 

Rod & Gun Club for a fishing contest on Bugle Lake. 164 Wis. 2d 

at 105. Lee explained that "[t]he club, as an occupant of the 

city park land, is treated as a landowner for purposes of 

recreational immunity." Id. at 107 (citing Hall, 146 Wis. 2d at 

490-91). 

¶32 Again, in Weina, the plaintiff was injured playing 

softball at a church picnic held at a public park. 179 Wis. 2d 

at 776. The plaintiff sued both the church and the teammate who 

hit the injurious baseball. Id. Granting summary judgment in 

favor of the church, the circuit court denied the teammate's 

motion for summary judgment. Id. at 77 n.1. The court of 

appeals affirmed the circuit court's judgment that the church, 

as the event organizer, was entitled to immunity. Id. at 779. 

¶33 This case is different from prior cases, however, 

because Roberts did not bring claims against the event producer 

or owner of the property. Green Valley Enterprises, not Sundog, 

produced the charity event where Roberts was injured. The 

Conservationists, not Sundog, was the owner of the property 

where the event took place. None of the prior cases 

interpreting Wis. Stat. § 895.52 has granted immunity to a third 

party not responsible for opening up the land to the public.6

 

6

Wis. Stat. § 895.52(2) grants immunity to officers, 

employees, or agents of an owner. Because the parties in this 

case did not argue or brief the issue of whether Sundog was an 

officer, employee, or agent of either the Conservationists or 

(continued)
No. 2014AP1508 

13

¶34 The distinction between Sundog and the producer of a 

fair or event is supported by case law analyzing the definition 

of "occupy" in the context of the statute's policy. In Doane v. 

Helenville Mut. Ins. Co., 216 Wis. 2d 345, 355, 575 N.W.2d 734 

(Ct. App. 1998), the court of appeals held that the owner of an 

ice shanty was not an occupier under Wis. Stat. § 895.52. As 

Doane explained, "occupy" is defined as "to take and hold 

possession." Id. at 354 (citing Webster's New Collegiate 

Dictionary 794 (8th ed. 1974)). The term "occupy," as it is 

used in Wis. Stat. § 895.52, has been defined as "requiring a 

degree of permanence, as opposed to mere use." Id. (citations 

ommitted).

¶35 Underlying the Doane decision was the same statutory 

policy at issue here. As Doane explained, to define the owner 

of the ice shanty as an occupier "would not further the policy 

which underlies the statute, i.e., of opening as much property 

as possible for recreational use, because the lake was already 

held in trust for public recreational purposes, such as 

fishing." Id. at 355. Here, as in Doane, defining Sundog as an 

"occupier" would not further the policy underlying the statute 

because the Conservationists' property was already open for 

public recreational purposes. 

 

Green Valley, we do not address it. We need not address issues 

that have not been raised or argued by the parties. See, e.g., 

State v. Steffes, 2013 WI 53, ¶28, 347 Wis. 2d 683, 832 N.W.2d 

101.
No. 2014AP1508 

14

¶36 The Linville court also explained that we must 

consider whether immunity will encourage landowners to open the 

land for public use:

The benefits of granting immunity, i.e., encouraging 

landowners to open their lands to the public, comes 

from immunizing people or municipalities in their 

capacities as landowners . . . . Extending immunity 

to landowners for negligently performing in a capacity 

unrelated to the land . . . will not contribute to a 

landowner's decision to open the land for public use. 

184 Wis. 2d 705.

¶37 Here, it was Green Valley and the Conservationists——

not Sundog——that were responsible for opening the land to the 

public. The Conservationists allowed Green Valley to host an 

event on the land. Green Valley was responsible for organizing 

the event and bringing people onto the land. Sundog provided 

hot air balloon rides on land that was owned by the 

Conservationists and occupied by Green Valley. Immunizing 

Sundog would have no effect on whether the public had access to 

private land, because Sundog is not responsible for opening the 

land to the public.

¶38 We also find Linville instructive in determining the 

logical stopping point for immunity. In Linville, the court 

analyzed whether granting immunity to city paramedics could 

create limitless immunity for all medical services provided for 

injuries sustained while recreating. 184 Wis. 2d 705. "Such 

services could conceivably take place days or even weeks after 

the recreational activity, at facilities far removed from the 

site of recreation, and by persons in no way connected to the 
No. 2014AP1508 

15

land on which the accident occurred." Id. at 720. "Such a 

result is absurd, leaves immunity limitless, and therefore could 

not have been intended by the legislature." Id. 

¶39 Wis. Stat. § 895.52 "was not enacted to provide 

indiscriminate immunity for landowners without regard to 

possible consequences." Id. at 719 (quoting Ervin v. City of 

Kenosha, 159 Wis. 2d 464, 477, 464 N.W.2d 654 (1991)). 

Extending immunity to Sundog could lead to limitless immunity. 

Sundog is not the owner of the land. It is not occupying the 

land as an event organizer and is therefore not responsible for 

opening up the land to the public. If Sundog——who has no 

connection to the land——is granted immunity, there will be no 

stopping point to recreational immunity.

¶40 For example, what if Roberts brought a claim against 

the manufacturer of the hot air balloon that injured her? What 

if the tether that broke loose was due to a fault in the 

manufacture of the balloon, rather than the wind? Should the 

balloon manufacturer, which had no connection to opening the 

land to the public, be immunized because ballooning is a 

recreational activity? 

¶41 Granting immunity to third parties that are not 

responsible for opening up the land to the public is unsupported 

by our prior case law. In addition, it would create an absurd 

result with no logical stopping point that does nothing to 

further the legislative purpose of the statute. Accordingly, we 

conclude that Sundog is not entitled to recreational immunity 
No. 2014AP1508 

16

under Wis. Stat. § 895.52 because it was not an "occupier" of 

the land. 

B.

¶42 Next, Sundog argues that it is entitled to immunity 

not only as an "occupier" of real property, but also as an owner 

of "property" because the hot air balloon is a structure 

pursuant to Wis. Stat. § 895.52(1)(f). "Property" means real 

property and buildings, structures and improvements thereon. 

Wis. Stat. § 895.52(1)(f).

¶43 The term "structure" is not defined in Wis. Stat. §

895.52, and is therefore given its common and ordinary meaning. 

Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶16, 248 Wis. 2d 

567, 636 N.W.2d 727. A "structure" is "something constructed,"

or "something made up of a number of parts that are held or put 

together in a particular way." Id. (citing American Heritage 

Dictionary of the English Language, 1782 (3d ed. 1992)). 

"Structure" is also defined as "[a]ny construction, or any 

production or piece of work artificially built up or composed of 

parts joined together in some definite manner." Id. (citing 

Black's Law Dictionary, 1424 (6th ed. 1991)).

¶44 Sundog relies on Peterson, in which this court held 

that the owner of a tree stand was entitled to immunity as the 

owner of a "structure" on real property. Id., ¶4. Peterson

adopted the court of appeals' decision in Doane. Peterson, 248 

Wis. 2d 567, ¶20. The Doane court identified three categories 

of property that qualify owners for immunity: (1) real property; 

(2) buildings, structures and improvements thereon; and (3) 
No. 2014AP1508 

17

waters of the state. Doane, 216 Wis. 2d at 352. Sundog argues 

that like the tree stand in Peterson, the hot air balloon is a 

structure because it was constructed or put together in a 

particular way and made up of parts joined together. 

¶45 Although it may have been made up of parts joined 

together, the hot air balloon ride was not constructed on real 

property. In Peterson, the tree stand was permanent and built 

or constructed on the real property. See Peterson, 248 Wis. 2d 

567, ¶¶5-7. The hot air balloon in this case was transient and 

designed to be moved at the end of the day. It was also not 

designed to remain in one place. The balloon was tethered to 

two trees and a pick-up truck because of the manner in which

Sundog was using it on the day of the event. Thus, we conclude 

that the hot air balloon is not a structure as that term is 

applied in Wis. Stat. § 895.52(1)(f).

¶46 Accordingly, we conclude that Sundog is not entitled 

to recreational immunity under Wis. Stat. § 895.52 because it is 

not an owner under the statute. Sundog was not an "occupier" of 

the land and the hot air balloon was not "property" because it 

is not a "structure."

IV.

¶47 Having determined that Sundog is not entitled to 

immunity under Wis. Stat. § 895.52, we must address whether 

Roberts' claims are barred by Sundog's exculpatory release. 

Sundog argues that the waiver of liability form that Roberts 

signed is valid under Wisconsin law.
No. 2014AP1508 

18

¶48 Wisconsin case law does not favor exculpatory 

agreements. See, e.g., Atkins v. Swimwest Family Fitness 

Center, 2005 WI 4, ¶12, 277 Wis. 2d 303, 691 N.W.2d 334. "While 

this court has not held that an exculpatory clause is invalid 

per se, we have held that such a provision must be construed 

strictly against the party seeking to rely on it." Id., ¶12 

(citing Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81, 557 

N.W.2d 60 (1996); Merten v. Nathan, 108 Wis. 2d 205, 210-11, 321 

N.W.2d 173 (1982)).

¶49 Our analysis of an exculpatory contract begins with 

examining the facts and circumstances of the agreement to 

determine if it covers the activity at issue. Atkins, 277 Wis. 

2d 303, ¶13 (citing Arnold v. Shawano County Agric. Soc'y, 111 

Wis. 2d 203, 211, 330 N.W.2d 773 (1983), overruled on other 

grounds). If the contract covers the activity, we proceed to a 

public policy analysis, "which remains the 'germane analysis' 

for exculpatory clauses." Id., ¶13 (citing Yauger, 206 Wis. 2d 

at 86). "We generally define public policy as 'that principle 

of law under which freedom of contract or private dealings is 

restricted by law for the good of the community.'" Id., ¶14 

(quoting Merten, 108 Wis. 2d at 213). 

¶50 This court has found an exculpatory agreement to be 

invalid if it contains misrepresentations, if it too broadly

defines the location and actions covered, or if it is ambiguous 

and uncertain. See, e.g., Merten, 108 Wis. 2d at 214-15; see 

also Arnold, 111 Wis. 2d at 211-13; Dobratz, 161 Wis. 2d at 526. 
No. 2014AP1508 

19

Our prior decisions have also set forth the factors to apply in 

analyzing whether a contract is void as a matter of law.

¶51 In Richards, 181 Wis. 2d 1007, the plaintiff was 

injured while accompanying her husband on a trip. The waiver in

Richards was both an application for permission to be a 

passenger and a release of all claims against the trucking 

company. Id. at 1012. Richards held that the contract was void 

as against public policy because: (1) the contract served two 

purposes which were not clearly identified or distinguished; (2) 

the release was extremely broad and all-inclusive; and (3) the 

release was in a standardized agreement printed on the Company’s 

form, offering little or no opportunity for negotiation or free 

and voluntary bargaining. Id. at 1011. 

¶52 In Yauger, 206 Wis. 2d 76, an 11-year old skier was 

killed when she struck a concrete ski lift tower pylon. Prior 

to the ski season, her father signed an "application" for a 

season family lift ticket. Id. at 79. The application stated: 

"I agree that [] [t]here are certain inherent risks in skiing 

and that we agree to hold [the ski resort] harmless on account 

of any injury incurred . . . on the [ski resort] premises." Id.

at 79. "Inherent risks" and "premises" were not defined. Id.

at 84-85.

¶53 The Yauger court unanimously concluded that the 

agreement was void as against public policy because: (1) it 

failed to clearly, unambiguously, and unmistakably explain to 

the signatory that he was accepting the risk of Hidden Valley’s 

negligence; and (2) the form when considered in its entirety 
No. 2014AP1508 

20

failed to alert the signer to the nature and significance of the 

document being signed. Id. at 78. 

¶54 More recently in Atkins, this court considered the 

enforceability of an exculpatory agreement after a swimmer 

drowned in a lap pool at a fitness center. Atkins, 277 Wis. 2d 

303. As a condition of being allowed to use the center, the 

swimmer had to complete a guest registration and waiver release 

statement form. Id., ¶3. The form was preprinted on a five and 

one-half inch square card, and the entire card was printed in 

capital letters of the same size, font, and color. Id., ¶4.

¶55 Atkins held that the waiver was invalid, noting that 

"Wisconsin case law does not favor [exculpatory] agreements,"

and "such a provision must be construed strictly against the 

party seeking to rely on it." Id., ¶12. The Atkins court 

adopted a combination of the Yauger and Richards factors in its 

decision: (1) the waiver was overly broad and all-inclusive; (2) 

the form served two functions and did not provide the signer 

adequate notification of the waiver's nature and significance; 

and (3) there was little or no opportunity to bargain or 

negotiate in regard to the exculpatory language in question. 

Id., ¶18; see also Alexander T. Pendleton, Enforceable 

Exculpatory Agreements: Do They Still Exist?, 78 Wis. Law. 16, 

46 (Aug. 2005). 

¶56 Turning to the release at issue in this case, it is 

undisputed that Sundog required Roberts to sign a waiver prior 

to riding in the hot air balloon. Roberts signed the waiver 

while she was waiting in line for the ride, but never returned 
No. 2014AP1508 

21

it. The signed waiver was found on the event grounds after she 

was injured by the hot air balloon.

¶57 Sundog argues that Roberts read the release, 

understood its importance, and understood she was waiving her 

right to bring a negligence claim. It also asserts that Roberts 

had the opportunity to bargain and ask questions, but failed to 

do so. Roberts counters that she never accepted the liability 

waiver form because she never returned it to Sundog. She also 

argues that the waiver is void as a matter of law because it 

violates public policy.

¶58 We agree with Roberts that the waiver of liability 

form is unenforceable as a matter of law because it fails to 

satisfy the factors set forth in our prior case law. Because 

the waiver is void as a matter of law, we need not address the 

question of whether Roberts accepted the agreement.7

¶59 First, Sundog's exculpatory waiver is overly broad and 

all-inclusive. As our prior cases have explained, an agreement 

cannot be so broad "that it would absolve [the defendant] from 

any injury to the [plaintiff] for any reason." Richards, 181 

Wis. 2d at 1015 (citing College Mobile Home Park & Sales v. 

Hoffman, 72 Wis. 2d 514, 521-22, 241 N.W.2d 174 (1976)). 

¶60 The waiver in this case would absolve Sundog for any 

activity for any reason, known or unknown:

I expressly, willing, and voluntarily assume full 

responsibility for all risks of any and every kind 

 

7

Additionally, we do not address whether the question of 

Roberts' "acceptance" presents a question of fact or law here.
No. 2014AP1508 

22

involved with or arising from my participation in hot 

air balloon activities with Company whether during 

flight preparation, take-off, flight, landing, travel 

to or from the take-off or landing areas, or 

otherwise.

Without limiting the generality of the foregoing, I 

hereby irrevocably release Company, its employees, 

agents, representatives, contractors, subcontractors, 

successors, heirs, assigns, affiliates, and legal 

representatives (the "Released Parties") from, and 

hold them harmless for, all claims, rights, demands or 

causes of action whether known or unknown, suspected 

or unsuspected, arising out of the ballooning 

activities...

Not only is the waiver overly broad, it is not clear whether 

waiting in line for the ride is something Roberts would have 

contemplated as being covered by the waiver, especially because 

she was not required to return the waiver before she got into 

the line.

¶61 Second, the release was a standard agreement printed 

on the company's form, offering Roberts no opportunity to 

bargain or negotiate in regard to the exculpatory language in 

question. See Richards, 181 Wis. 2d at 1011. "Freedom of 

contract is premised on a bargain freely and voluntarily made 

through a bargaining process that has integrity." Id. at 1016. 

¶62 Sundog concedes that the waiver of liability was a 

standard form. In order to ride the balloon, Roberts was told 

she would have to sign "this document." Sundog did not discuss 

the content of the waiver or any of the risk associated with 

ballooning activities or watching others ride with Roberts. 

There was also no pre-flight meeting as referenced in the 

agreement. Roberts was not asked if she had any complaints or 
No. 2014AP1508 

23

concerns with the waiver and she did not have an opportunity to 

negotiate the terms of the waiver.

¶63 Thus, the liability waiver form is void as a matter of 

law. It is overly broad, printed on a standard form, and Sundog 

did not provide Roberts with an opportunity to bargain over the 

terms of the contract. As our prior case law demands, we will 

not uphold a waiver of liability that violates public policy.

V.

¶64 In sum, we conclude that Sundog is not entitled to 

recreational immunity under Wis. Stat. § 895.52 because it is 

not an owner under the statute. Sundog was not an "occupier" of 

the land and the hot air balloon was not "property" because it 

was not a "structure."

¶65 Accordingly, we reverse the court of appeals and 

remand to the circuit court for further proceedings.

By the Court. – The decision of the court of appeals is 

reversed and the cause is remanded to the circuit court for 

further proceedings.
No. 2014AP1508.akz

1

¶66 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join 

the opinion of the court because I agree that Sundog is not 

entitled to recreational immunity under Wis. Stat. § 895.52 

(2013-14) and that Sundog's waiver of liability form is 

unenforceable. The court appropriately does not reach the 

questions of whether Roberts' injuries arose from a condition or 

maintenance of the land and, if not, whether Linville v. City of 

Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), and Kosky v. 

International Ass'n of Lions Clubs, 210 Wis. 2d 463, 565 

N.W.2d 260 (Ct. App. 1997), preclude the attachment of immunity 

to Sundog under § 895.52, see majority op., ¶4 n.4, because 

resolution of that issue is not necessary to the disposition of 

this case.

¶67 I feel compelled to comment briefly on the conditionor-maintenance issue so that the position set forth by the court 

of appeals below is not read as the only possible view of the 

matter. Simply stated, while the policy behind the statute is 

to encourage landowners to open their land to the public, the 

recreational immunity statute does not cloak a negligent actor 

with immunity no matter what they do. 

¶68 Unlike the court of appeals below, I conclude that 

there is a patent "division of functions" at play in this case. 

Roberts v. T.H.E. Ins. Co., No. 2014AP1508, unpublished slip 

op., ¶20 (Wis. Ct. App. Mar. 26, 2015). Put differently, 

Sundog's "immunity for its functions as [occupier] of 

recreational land cannot shelter its liability for negligently 
No. 2014AP1508.akz

2

performing another function," namely the operation of its hot 

air balloon business. Linville v. City of Janesville, 184 

Wis. 2d 705, 711 516 N.W.2d 427 (1994). This conclusion is 

consistent with Linville, Kosky, and the recreational immunity 

statute.

¶69 Wisconsin Stat. § 895.52(2)(b) states in part, "[N]o 

owner . . . is liable for the death of, any injury to, or any 

death or injury caused by, a person engaging in a recreational 

activity on the owner's property . . . ." Despite the broad 

nature of this language, we concluded in Linville that an 

"owner" under the statute might sometimes function in a capacity 

unrelated to its ownership of land, and that the owner should 

not be immunized against claims that the owner engaged in 

negligent conduct when operating in that capacity. Linville,

184 Wis. 2d at 720-21. Hence, a municipal owner of a pond in 

which a four-year-old boy drowned despite the efforts of 

paramedics employed by the owner was immune under § 895.52 from 

claims that its pond was negligently maintained, but not immune 

from claims that it negligently performed in its capacity as 

provider of paramedic services. Id.

¶70 This conclusion followed from our recognition that 

"[t]he policy behind the statute is to encourage property owners 

to open their lands for recreational activities by removing a 

property user's potential cause of action against a property 

owner's alleged negligence." Id. at 715. We reasoned that Wis. 

Stat. § 895.52 "was not enacted to provide indiscriminate 

immunity for landowners without regard to possible consequences" 
No. 2014AP1508.akz

3

and that "[e]xtending immunity to landowners for negligently 

performing in a capacity unrelated to the land . . . will not 

contribute to a landowner's decision to open the land for public 

use." Id. at 719 (citation omitted).

¶71 The court of appeals applied Linville just a few years 

later when an individual who suffered injuries assisting in the 

detonation of fireworks for a display sued the owner of land on 

which the fireworks display occurred, alleging that the owner 

had negligently managed the display. Kosky v. Int'l Ass'n of 

Lions Clubs, 210 Wis. 2d 463, 468-70, 476-77, 565 N.W.2d 260 

(Ct. App. 1997). The court of appeals concluded, relying on 

Linville, that the landowner——which was an "occupie[r]" under 

the recreational immunity statute——was not immune because the 

allegedly negligent activities of the owner and its employees 

related to the detonation of fireworks, not "the condition or 

maintenance of the land" which it owned. Id. at 468, 470 n.3, 

476-77. "[R]ecreational immunity," the court determined, "does 

not attach to the landowner when an act of the landowner's 

officer, employee or agent that is unrelated to the condition or 

maintenance of the land causes injury to a recreational land 

user." Id. at 475.

¶72 In the instant case, Roberts cites Linville and Kosky

and argues that Sundog's alleged negligence——the use of an 

"improper tethering system" and the decision "to proceed with a 

tethered balloon event in the face of a known storm/gust front"—

—did not relate to a condition of the land. Therefore, Roberts 

argues, immunity does not attach. In dismissing this argument, 
No. 2014AP1508.akz

4

the court of appeals declared: "Roberts identifies 

no . . . division of functions here. Rather, as stated above, 

Roberts sued Sundog as owner of property on which Patti Roberts 

was engaging in a recreational activity." Roberts, unpublished 

slip op., ¶20. 

¶73 This conclusion is perplexing, because there is a 

clear potential division of functions in this case: Sundog the 

property owner (occupier) and Sundog the hot air balloon company 

owner.1 The approach taken by the court of appeals below leads 

to the "indiscriminate immunity" against which we warned in 

Linville, upsetting the balance struck by the Legislature in 

both ensuring the protection of the public and incentivizing 

landowners to allow access to their land. Linville, 184 Wis. 2d

at 719; see Ervin v. City of Kenosha, 159 Wis. 2d 464, 478, 464 

N.W.2d 654 (1991).

¶74 Wisconsin Stat. § 895.52 protects property owners who 

open their land to the public, but it does not necessarily 

provide a shield to business owners who are negligent in the 

operation of their business. See § 895.52(1)(d)1. (defining 

"[o]wner" to mean, inter alia, "[a] person . . . that owns, 

leases or occupies property" (emphasis added)). Indeed, it is 

the partial purpose of § 895.52's sister statute, § 895.525 

("Participation in recreational activities; restrictions on 

civil liability, assumption of risk"), "to help assure the 

 

1 The division of functions is only "potential" because, as 

explained, Sundog is not actually an owner under Wis. Stat. 

§ 895.52(1)(d). See majority op. ¶4.
No. 2014AP1508.akz

5

continued availability in this state of enterprises that offer 

recreational activities to the public." Wis. Stat. § 895.525(1) 

(emphasis added). These enterprises are nowhere mentioned in 

§ 895.52, which does not pertain to them. 

¶75 The Linville and Kosky courts recognized that Wis. 

Stat. § 895.52 grants recreational immunity, not sovereign 

immunity, and that the protections offered by § 895.52 end when 

a landowner performs negligently in a capacity unrelated to the 

individual's ownership of the land. These considerations govern 

here.

¶76 A hypothetical helps illustrate. One of the many 

pleasant diversions included in Wis. Stat. § 895.52(1)(g)'s 

definition of "[r]ecreational activity" is "rock-climbing." 

§ 895.52(1)(g). If a landowner in northern Wisconsin owns a 

piece of property with a cliff on it and wishes, out of the 

goodness of her heart, to allow the local weekend rock-climbers' 

club to use the cliff for practice, the legislature has 

determined via § 895.52 that she should not be penalized if, for 

example, an unfortunate climber plummets to his death from the 

cliff. This seems reasonable enough, as a grant of such 

immunity encourages the landowner to open the land to climbers 

without fear of negative repercussions. See Linville, 184 Wis. 

2d at 715. On the other hand, imagine that the landowner 

decides to capitalize on her property's attraction and opens an 

outdoor rock-climbing business, providing training, ropes, and 

safety equipment to climbers. Under the interpretation of the 

statute espoused by the court of appeals, if the landowner 
No. 2014AP1508.akz

6

should decide to continue allowing the unsuspecting local club 

to climb for free, or opens up her land for a charity event, she 

can operate her business negligently with respect to the club or 

to the eventgoers——snapping ropes, cracked helmets, improper 

training——without fear. 

¶77 This hypothetical is not much different than the 

current case: in both instances there is a potential 

landowner/occupier who provides access to land but who also 

allegedly negligently provides recreational activity services on 

that land.

¶78 The scope of immunity provided by this reading of Wis. 

Stat. § 895.52 is potentially enormous, but there is a more 

reasonable interpretation: the one applied in Linville and 

Kosky. Assuming that Sundog could be characterized as an 

"owner" under § 895.52(1)(d)——and the opinion of the court 

correctly concludes that it can not, see majority op. ¶4——then 

it is immune insofar as it is sued in its capacity as "owner" of 

the patch of land on which it was offering free balloon rides. 

It is not immune, however, insofar as it is sued in its capacity 

as owner of a hot air balloon company. This is the division of 

functions that the court of appeals found lacking. Just as 

holding the cliff-owner in the hypothetical liable for snapping 

ropes, cracked helmets, and improper training will not 

discourage the owner from allowing climbers to use the cliff 

without the involvement of her business, failing to grant Sundog 

immunity as a business operator will not discourage it from 
No. 2014AP1508.akz

7

"opening" its land for recreational activities (that is, 

activities not conducted by Sundog).

¶79 In fairness, application of the statute to facts such 

as these produces some cognitive dissonance, because, had Sundog 

been found to be an "occupie[r]," it would not really be a 

property owner in the sense that most people are used to 

thinking about that phrase. Sundog would only be a property 

owner under the recreational immunity statute because it 

"occupie[d]" the Conservationists' land, and it was only 

occupying the Conservationists' land because it wanted to offer 

free balloon rides. But it must be remembered that we are 

essentially thinking of two Sundogs for purposes of the 

Linville/Kosky analysis: business owner Sundog, which provides 

hot air balloon rides, and occupier Sundog, which stands on the 

sidelines and watches the eventgoers happily use "its" property 

free of charge. 

¶80 Importantly, and contrary to what Roberts seems to 

argue, this interpretation should not be misconstrued to mean 

that immunity under Wis. Stat. § 895.52 extends only to injuries 

associated with the physical land itself, e.g., injuries from 

holes in the ground. Wisconsin Stat. § 895.52(2)(b) provides 

immunity to owners for any "death of, any injury to, or any

death or injury caused by, a person engaging in a recreational 

activity on the owner's property." § 895.52(2)(b) (emphases 

added). But the fact remains that immunity is extended to the 

"owner," i.e. the property owner——not to, for instance, a 

business operator also on that property. Thus, if someone is 
No. 2014AP1508.akz

8

accidentally shot while hunting on a landowner's property, the 

landowner is seemingly immune from suit against her as landowner 

(even though the bullet is not "associated" with a condition of 

the land). But if the landowner also operates a hunting supply 

shop on the land, opens the land for a charity event, and 

proceeds to provide negligently-maintained firearms to 

participants, it might be that recreational immunity would not 

attach to the entity in its capacity as a business owner. 

¶81 Ultimately, because Sundog is not an "owner" under 

Wis. Stat. § 895.52(1)(d), the question of whether it operated 

in two distinct capacities at the charity event is not relevant 

to the outcome of this case. However, the court of appeals

should not be the only word on this important question, which is 

wisely left unanswered by the opinion of the court.2

 

2 Justice Prosser's partial concurrence criticizes my postLinville analysis through use of a pre-Linville case, Ervin v. 

City of Kenosha, 159 Wis. 2d 464, 464 N.W.2d 654 (1991) (and, 

even more daringly, through use of a pre-1983 Wis. Act 418 case, 

Wirth v. Ehly, 93 Wis. 2d 433, 287 N.W.2d 140 (1980)). 

Concurrence, ¶¶125, 127. The partial concurrence notes that the 

author of Linville was also the sole dissenter from Ervin. 

Concurrence, ¶128. If the question is whether Linville eroded 

any of the principles in Ervin, one would think this fact 

hinders rather than helps the partial concurrence's case. 

Regardless, there is no need to attempt to divine the meaning of 

Linville's authorship, because my analysis is not "squarely at 

odds" with Ervin. Concurrence, ¶125.

(continued)
No. 2014AP1508.akz

9

 

This is because the City of Kenosha's ("the City") actions 

in Ervin were arguably performed in its capacity as property 

owner rather than, for instance, in its capacity as a business 

owner. The facts underlying that case took place at a beach 

owned by the City of Kenosha and "staffed by four lifeguards 

employed and trained by the City." Ervin, 159 Wis. 2d at 469-

70. In the summer of 1987, two minors drowned in the water off 

the beach. Id. at 468-69. The City was sued, among other 

things, for the alleged negligence of its lifeguards and for its 

own allegedly negligent hiring and failure to train them. Id.

at 471-72. This court held that the City was immune from such 

allegations under the recreational immunity statute. Id. at 

469.

Returning to my earlier hypothetical, Ervin is analogous to 

a circumstance in which a cliff-owner (or somebody hired by the 

cliff-owner) stands by and watches while a climber using the 

cliff for free plummets to her death. Nothing in Ervin indicates 

that the City was stepping outside of its role as landowner 

(indeed, it had not formally interviewed its lifeguards or even 

provided its lifeguards with "skills testing [or] lifeguard, 

first-aid or rescue training"). Id. at 471. Put differently, 

although the Ervin court seemingly rejected an "active/passive 

negligence distinction" with respect to landowners' negligence 

under the recreational immunity statute, the court said nothing 

about the operation of the statute when landowners act in a nonproprietary capacity. See, e.g., id., at 476-77 ("If liability 

were imposed on landowners for negligence in failing to provide 

adequate safety measures, it would encourage landowners to 

provide no safety measures." (emphases added)). That came 

later, in Linville. As opposed to Ervin, wherein the City had 

"gratuitously" provided a few "lifeguards" without "skills 

testing [or] lifeguard, first-aid or rescue training" to stand 

post on the single parcel of property at issue, id., 471-77, the 

City of Janesville operated a team of paramedics which provided 

city-wide services and which had little to do with the ownership 

of the municipal pond in particular. See State v. Linville, 184 

Wis. 2d 705, 720-21, 516 N.W.2d 427.

While I understand the partial concurrence's reading of 

Linville and find it to be a reasonable one in isolation, it is 

at odds with a principal expositor of Linville, Kosky v. 

International Ass'n of Lions Clubs, 210 Wis. 2d 463, 565 

N.W.2d 260 (Ct. App. 1997). Justice Prosser would need to 

overrule a substantial amount of law to arrive at his 

interpretation of the recreational immunity statute.
No. 2014AP1508.akz

10

¶82 For the foregoing reasons, I respectfully concur.
No. 2014AP1508.dtp

1

¶83 DAVID T. PROSSER, J. (concurring in part; dissenting 

in part). This case involves an unfortunate accident that 

occurred at a charity event in Beaver Dam on July 30, 2011. I 

agree with the majority opinion that "Sundog's waiver of 

liability form violates public policy and is unenforceable as a 

matter of law." Majority op., ¶4. However, I also agree with 

the dissenting opinion of Justice Rebecca G. Bradley that 

"Sundog meets the statutory requirements to obtain recreational 

immunity because: (1) it falls within the definition of 'owner,' 

which includes 'a person . . . that . . . occupies property;' 

and (2) Patti Roberts engaged in a recreational activity on the 

property occupied by Sundog." Dissent, ¶132. Consequently, I 

join the dissenting opinion of Justice Rebecca Bradley except 

for footnote 4.

¶84 My purpose in writing is to reinforce the inexorable 

logic of Justice Bradley's dissent and respond to the 

concurrence of Justice Ziegler.

¶85 Wisconsin Stat. § 895.52 reads in part as follows:

(2) NO DUTY; IMMUNITY FROM LIABILITY. (a)

Except as provided in subs. (3) to (6), no owner 

and no officer, employee or agent of an owner owes to 

any person who enters the owner's property to engage 

in a recreational activity:

. . . .

3. A duty to give warning of an unsafe 

condition, use or activity on the property.

(b) Except as provided in subs. (3) to (6), no 

owner and no officer, employee or agent of an owner is 

liable for . . . any injury to . . . a person engaging 

in a recreational activity on the owner's 

property . . . .
No. 2014AP1508.dtp

2

¶86 Critical to the interpretation of this statute is the 

definition of "owner."

"Owner" means either of the following:

1. A person, including a governmental body or 

nonprofit organization, that owns, leases or occupies 

property.

2. A governmental body or nonprofit 

organization that has a recreational agreement with 

another owner.

Wis. Stat. § 895.52(1)(d).

¶87 In this case, we should analyze three different 

entities: (1) Beaver Dam Conservationists, LLC; (2) Green Valley 

Enterprises; and (3) Sundog Ballooning, LLC (and its owners, 

Kerry M. Hanson and Jodi L. Hanson) (Sundog).

¶88 "Beaver Dam Conservationists, LLC . . . owned the 

shooting range where the charity event was held." Majority op., 

¶5. The shooting club was thus an owner.

¶89 The shooting club donated use of its property to Green 

Valley Enterprises, a charitable organization, which opened the 

property free to the public as part of a charitable fundraiser. 

Of course, Green Valley could not have opened up the property to 

the public if Beaver Dam Conservationists had not "opened up" 

the property for Green Valley's charitable event.

¶90 Green Valley was an "owner" under Wis. Stat. 

§ 895.52(1)(d)1. because it occupied the property with the 

permission of an owner. In addition, it was an owner under 

(d)2. if it signed "a recreational agreement" with Beaver Dam 
No. 2014AP1508.dtp

3

Conservationists.1 Whether Green Valley actually signed a 

"recreational agreement" is not known.

¶91 The principal issue in this court is whether Sundog 

also is an "owner" by virtue of occupying the property.

¶92 This was not the principal issue in the circuit court. 

In fact, this was not an issue at all in the circuit court. In 

its motion for summary judgment, Sundog explained at length that 

it was an "owner" under the statute because it occupied the 

property.

¶93 The plaintiffs did not dispute this contention. The 

plaintiffs instead took a different position:

The liability of the Defendant in this case has 

absolutely nothing to do with the condition of the 

land, any structures upon it, or use of the land 

itself by the Plaintiffs or the Defendant.

. . . .

Negligent acts or decisions not directed at the 

condition of the land are not entitled to immunity.

¶94 The Dodge County Circuit Court, Joseph G. Sciascia, 

Judge, wrote the following: "The [plaintiffs] do not dispute 

that the plaintiff was on the property for a recreational 

purpose. The plaintiff raises the issue of whether or not the 

statute applies in this case because the injury was caused by an 

 

1 "Recreational agreement" is defined in Wis. Stat. 

§ 895.52(1)(h) to mean "a written authorization granted by an 

owner to a governmental body or nonprofit organization 

permitting public access to all or a specific part of the 

owner's property for any recreational activity."
No. 2014AP1508.dtp

4

act unrelated to the condition or maintenance of the 

land . . . ."

¶95 Whether Sundog occupied the property was not an issue 

in the court of appeals either. The court's opinion stated:

Roberts does not contest that Sundog was 

occupying, and therefore was an "owner" of, "property" 

on which Patti Roberts was engaging in "recreational 

activity." See Wis. Stat. § 895.52(1)(d), (f), (g). 

Roberts also does not dispute that "the activity 

giving rise to [Patti Roberts'] injury was a 

'recreational activity' as defined by the statute," 

that is, ballooning.

Roberts v. T.H.E. Ins. Co., No. 2014AP1508, unpublished slip 

op., ¶16 (Wis. Ct. App. Mar. 26, 2015) (alteration in original).

¶96 The reason why "occupies" is the principal issue in 

this court is because this court made it the principal issue by 

asking the parties to brief it. The court's order granting 

review stated in part:

IT IS FURTHER ORDERED that the parties' briefs shall 

address the following additional issue:

Whether the defendants/respondents Sundog Ballooning, 

LLC, Kerry M. Hanson, and Jodi L. Hanson, were 

"occupiers" of the property in question for purposes 

of the recreational immunity statute at the time of 

the accident in question. See Wis. Stat. 

§ 895.52(1)(d); see also Doane v. Helenville Mut. Ins. 

Co., 216 Wis. 2d 345, 575 N.W.2d 734 (Ct. App. 1998).

¶97 This court has broad authority to ask that additional 

issues be briefed, but the court should be careful not to fault 

a party for failing to supply complete evidence on an issue that 

was not contested, or chide a party for not arguing or briefing 

an issue that was not necessary because of the party's success 
No. 2014AP1508.dtp

5

in circuit court on a more encompassing issue. See Majority 

op., ¶33 n.6.

¶98 As I see it, Sundog took possession of a large, wideopen space at the recreational property of Beaver Dam 

Conservationists at the express invitation of Green Valley 

Enterprises. Its balloon was tethered to two trees and a pickup 

truck that was brought into and parked on the property. The two 

trees and truck formed a triangle with the large balloon in the 

middle. The Hansons flagged off the whole area. They set up a 

display and a sign-up table for the balloon ride, and they 

designated a waiting area for people to line up for a ride. In 

short, the Hansons completely controlled one section of the 

property for their ballooning operation. They "filled up" the 

space. They not only "used" the space but also governed the 

space during the time they were authorized to be there. In sum, 

they occupied the property.

¶99 In Doane, the court of appeals said, "An occupant is 

one who has actual possession of the property, but is more 

transient than either a lessee or an owner with legal title." 

Doane, 216 Wis. 2d at 351 (citing Hall v. Turtle Lake Lions 

Club, 146 Wis. 2d 486, 491, 431 N.W.2d 696 (Ct. App. 1988)). 

This, in essence, is the rule applied in multiple cases. There 

can really be no dispute that Sundog satisfied the test of 

"occupies" under this rule.

¶100 The Doane court added, however, that "'occupancy,' in 

the statutory sense, signifies a degree of permanence, as 

opposed to the mere use of the property in question." Id.
No. 2014AP1508.dtp

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(citing Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 

1193, 1197 (7th Cir. 1987)). The Doane court later stated:

"Occupy" is defined as "to take and hold 

possession." Webster's New Collegiate Dictionary 794 

(8th ed. 1974). That definition could imply 

possession for some unstated period of time or it 

could be understood in a way in which time is not 

relevant. Therefore, reasonable persons could differ 

in their assessments of whether Ehle "occupied" a 

portion of the lake with his shanty within the meaning 

of the statute. However, occupy, as used in § 895.52 

Stats., has been defined by this court as requiring a 

degree of permanence, as opposed to mere use. See

Hall, 146 Wis. 2d at 491, 431 N.W.2d at 698 (citing 

Smith, 823 F.2d at 1197).

Id. at 354 (emphasis added).

¶101 The court of appeals reached the correct decision in 

Doane, but it did so, at least in part, for the wrong reason. 

The Hall case never discussed "a degree of permanence" because 

Hall never quoted that portion of the Seventh Circuit's opinion. 

Hall clearly sidestepped the "permanence" part of the Seventh 

Circuit's opinion and instead quoted language that the Seventh 

Circuit had quoted from the underlying District Court decision. 

The language quoted from the District Court's decision made 

absolutely no reference to "permanence." Until Doane, no 

Wisconsin case had ever used the phrase "degree of permanence."

¶102 The Hall case involved a Lions Club in Turtle Lake 

that sponsored a fair on the grounds of the Turtle Lake Village 

Park. The Village granted the Lions permission to use the park. 

The Hall court said: "[W]hen a third party such as the Lions 

Club produces a fair on the land of another, it 'occupies' the 

land within the intended definition." Hall, 146 Wis. 2d at 490. 
No. 2014AP1508.dtp

7

Then the court quoted language that the Seventh Circuit had 

quoted from the underlying District Court decision in Smith:

[O]ccupant include[s] persons who, while not owners or 

tenants, have the actual use of land.. . . . While 

"occupant" includes [an] owner and lessee, it also 

means one who has the actual use of property without 

legal title, dominion or tenancy. In order to give 

meaning to [occupies], the term should be interpreted 

to encompass a resident of land who is more transient 

than either a lessee or an owner.

Id. at 491 (alterations in original)(quoting Smith, 823 F.2d at 

1197, which had quoted Smith v. Sno Eagles Snowmobile Club, 

Inc., 625 F. Supp. 1579, 1582 (E.D. Wis. 1986)). 

¶103 If the Doane case is controlling, it substantially 

changed the law in Wisconsin, disregarding prior court of 

appeals precedent, when it quoted from the Seventh Circuit's 

independent analysis in Smith, rather than language quoted from 

the District Court's underlying decision.

¶104 In the Seventh Circuit case, the losing party, Smith, 

relied on Labree v. Millville Manufacturing, Inc., 481 A.2d 286 

(N.J. Super. Ct. App. Div. 1984), a New Jersey case in which a 

contractor was sued after excavating land as part of the 

construction of a highway. Smith, 823 F.2d at 1196-97. "The 

excavation and transfer of sand and gravel resulted in the manmade creation of a twenty acre lake in which people swam on an 

informal basis." Id. at 1197. David Labree later dove into the 

lake and hit his head, rendering him a quadriplegic. Id. The 

contractor, who was sued after he had left the land, claimed 

recreational immunity under a New Jersey statute. The New 

Jersey court said: 
No. 2014AP1508.dtp

8

We believe use of the word "occupant" in the 

statute signifies an intent to provide immunity for an 

entity with a degree of permanence in the occupancy, 

not merely one who is using the property, as was the 

case with Gaskill. [Gaskill] "occupied" the property 

not really as one in occupancy but rather as one 

removing dirt and gravel from it.

Id. (alterations omitted)(quoting Labree, 481 A.2d at 291).

¶105 The Seventh Circuit opinion in Smith borrowed the 

"degree of permanence" language from the New Jersey court and 

used it against the losing party. But it is very doubtful that 

the Seventh Circuit intended to create a "degree of permanence" 

test for "occupants." Indeed, the Seventh Circuit favorably 

referred to the language from the underlying District Court 

opinion, quoted in Hall, when explaining that if the court "were 

to circumscribe and interpret 'occupant' as one in actual 

possession or exclusive control the term would be 

indistinguishable from owner." Smith, 823 F.2d at 1198. Our 

court of appeals should not have embraced the phrase "degree of 

permanence" as established Wisconsin law to bootstrap its 

decision in Doane.

¶106 This court cannot adopt the "permanence" test from the 

Seventh Circuit decision without overruling Hall and numerous 

other cases, and also effectively ruling that Green Valley 

Enterprises did not "occupy" the property. If a "permanence" 

test disqualifies Sundog, it would disqualify Green Valley 

Enterprises as well because Green Valley did not own or lease 

the property——it occupied the property. Green Valley's few 

extra hours of occupancy at the shooting range cannot 
No. 2014AP1508.dtp

9

realistically be viewed as being more "permanent" than Sundog's 

occupancy.

¶107 The majority's decision to disqualify Sundog from any 

status as an "owner" and send this case back for trial does not 

end the immunity issue. If Green Valley is still considered an 

occupant, we must anticipate that Sundog will assert that it was 

Green Valley's "agent" under Wis. Stat. § 895.52(2)(a) and (b). 

There is no definition of "agent" in the recreational immunity 

statute, meaning that the circuit court may resort to a 

dictionary. "Agent" is defined as (1) one that acts or has the 

power or authority to act, or (2) one empowered to act for or 

represent another. American Heritage Dictionary of the English 

Language 33 (3d ed. 1992).

¶108 Kerry Hanson explained in his deposition that he and 

his wife lived in Rhinelander but had family ties to Beaver Dam. 

In fact, his sister, Kristin Hanson, was manager for agency 

development for Green Valley Enterprises. Kerry Hanson 

testified as follows:

Q. How was it that it came about that you were going 

to be involved in this event in the first place?

. . . .

A. --the head of the Green Valley Enterprises, a 

business that services special needs people, was 

actually in the neighborhood, saw my balloon tethered. 

He employs my sister, who is a marketing director for 

Green Valley Enterprises. He saw it and said, wow, 

what a cool thing; maybe we could use that at our 

fundraiser to increase awareness, and I believe that 

began the process.

Q. And eventually it was agreed that you would do 

that.
No. 2014AP1508.dtp

10

Correct?

A. Right.

Q. And it's my understanding that you were donating 

your services that day?

A. Right.

¶109 In other depositions, witnesses testified that 

Sundog's balloon rides were advertised as an attraction for 

Green Valley Enterprises' fundraising event.

¶110 Under the circumstances, it would be rather difficult 

to conclude that Sundog was not an "agent" of Green Valley 

Enterprises if Green Valley was an "owner."

¶111 The "agent" of an "owner" is immune under the statute. 

However, the majority's conceptual dilemma is that any "agent" 

in this situation is likely to be "a third party not responsible 

for opening up the land to the public," Majority op., ¶33, which 

the majority now deems essential to qualifying for immunity: 

"Here . . . defining Sundog as an 'occupier' would not further 

the policy underlying the statute because the Conservationists' 

property was already open for public recreational purposes." 

Id., ¶35.

¶112 The majority opinion adds, "Immunizing Sundog would 

have no effect on whether the public had access to private land, 

because Sundog is not responsible for opening the land to the 

public." Id., ¶37.

¶113 This analysis would appear to deny immunity to any 

"officer, employee or agent" who did not "open up the land" to 

the public.
No. 2014AP1508.dtp

11

¶114 This analysis also is deficient because it ignores the 

fact that people often come to a property because they have been 

attracted by the promise of recreational activities there. 

Example: the Roberts family came to the shooting range, in part, 

because they heard there would be balloon rides. If 

organizations and people providing bona fide recreational 

activities are stripped of recreational immunity because they

did not "open up the land to the public," they will have to 

rethink whether they are willing to participate in such 

activities.

¶115 In sum, the majority opinion seriously misinterprets 

the meaning of "owner" in the statute.

¶116 As noted above, the Robertses contended at trial that 

recreational immunity must be linked to a "condition of the 

land, any structures upon it, or use of the land itself." See

supra, ¶93. Justice Ziegler's concurrence champions this 

proposition by relying on Linville v. City of Janesville, 184 

Wis. 2d 705, 516 N.W.2d 427 (1994), and Kosky v. International 

Ass'n of Lions Clubs, 210 Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 

1997).

¶117 Linville is the tragic case in which a man took a 

mother and her four-year-old son to a city-owned pond in 

Janesville. The man intended to take the boy fishing, and he 

was checking out fishing spots for the next day. Through a 

series of bizarre events, the man drove his van too close to the 

water, got stuck in mud, then inadvertently drove the van into 

the water where he and the boy drowned. Plaintiffs sued the 
No. 2014AP1508.dtp

12

city claiming that the city's paramedics were negligent in their 

rescue of the boy and negligent in providing medical services to 

the boy. The city defended with a claim of recreational 

immunity under Wis. Stat. § 895.52.

¶118 This court first struggled with the question of 

whether the three people at the pond were engaging in a 

"recreational activity" at the time two of them died. The court 

said they were. But that did not settle the question of whether 

the city could claim recreational immunity for the alleged 

negligence of its paramedics in the rescue effort.

¶119 The court determined that the city could not assert 

recreational immunity for the alleged negligence of its 

paramedics because it was virtually coincidental that the 

alleged negligence of the paramedics occurred at a city-owned 

recreational site and came after a mishap in recreational 

activity for which the city bore no responsibility.

¶120 The court said: "The City's immunity for its functions 

as owner of recreational land cannot shelter its liability for 

negligently performing another function." Linville, 184 

Wis. 2d at 711.

¶121 In discussing this conclusion, the court observed: "We 

must determine whether this statute immunizes the paramedics and 

the City simply because the paramedics are employees of the City 

which owns the Pond." Id. at 718.

[G]ranting immunity to the landowner when the 

landowner and the employer of the negligent employee 

are functioning in two different capacities and are 

therefore not the same entity in the eyes of the law 

would produce absurd consequences. . . . To interpret 
No. 2014AP1508.dtp

13

the language of sec. 895.52(2)(b), Stats., to include 

injury resulting from negligent rescue and treatment 

by the paramedics in this case, would produce absurd 

consequences.

Id. at 719. The court continued: "The paramedics provide 

emergency medical treatment in every part of the City, no matter 

the situs. Thus the City's rescue attempts and medical 

treatment are separate and apart from the City's ownership of or 

activities as owner of recreational land." Id. at 721.

¶122 The Linville court bolstered its analysis by repeated 

reference to the purported purpose of the recreational immunity 

statute, e.g., property owners should be encouraged to open up 

land to the public. In my view, this discussion of policy was 

not necessary to a limitation of immunity and is not relevant 

when dealing with public land that is intended for use by the 

public.2

 

2 Kosky v. International Ass'n of Lions Clubs, 210 

Wis. 2d 463, 565 N.W.2d 260 (Ct. App. 1997), also is cited in 

Justice Ziegler's concurrence. This case requires close 

examination.

Kosky involved a man whose hands were badly injured as he 

was participating in a three-person team detonating "explosive 

fireworks" at the annual Fourth of July fireworks celebration in 

Land O'Lakes, Wisconsin. Kosky sued the Land O'Lakes Lions Club 

and other sponsors of the show, as well as several co-workers. 

The defendants claimed recreational immunity under Wis. Stat. 

§ 895.52.

(continued)
No. 2014AP1508.dtp

14

 

In his brief to the court of appeals, the plaintiff 

asserted that the "extra-hazardous activity of detonating 

explosive fireworks" was not a "recreational activity" protected 

under Wis. Stat. § 895.52. (capitalization and title case 

omitted.) He also asserted that although he had ties to the 

area, he came from Niles, Illinois, at the specific request of 

the Land O'Lakes Lions Club "to perform work tasks with a team

of people detonating explosive fireworks." He declared that he 

personally was not engaging in recreational activity because he 

was working, not watching the fireworks.

The court of appeals rejected Kosky's argument that the 

detonation of fireworks could not be a recreational activity

because it is an inherently dangerous, extra-hazardous activity. 

Kosky, 210 Wis. 2d at 474. On the other hand, the court was not 

willing to say that the detonation of fireworks was a 

recreational activity in the circumstances presented. Instead, 

the court concluded that "recreational immunity does not attach 

to the landowner when an act of the landowner's officer, 

employee or agent that is unrelated to the condition or 

maintenance of the land causes injury to a recreational land 

user." Id. at 475.

The Kosky court quoted from Linville: "Extending immunity 

to landowners for negligently performing in a capacity unrelated 

to the land or to their employees whose employment activities 

have nothing to do with the land will not contribute to a 

landowner's decision to open the land for public use." Id. at 

476 (quoting Linville, 184 Wis. 2d at 719).

To support this conclusion, Linville cited Ervin v. City of 

Kenosha, 159 Wis. 2d 464, 472-76, 464 N.W.2d 654 (1991), for the 

following proposition: "The legislature, in sec. 895.52, Stats., 

granted immunity to landowners with respect to the condition of 

the land and to the landowners' (or its employees') actions with 

respect to the land." Linville, 184 Wis. 2d at 718.

As will be seen, this statement is not an accurate 

description of Ervin. Moreover, it does not take into account 

that lessees and occupiers and persons with a recreational 

agreement cannot "open the land" until the actual landowner puts 

them in a position to open the land. It also fails to 

acknowledge that public land is normally open to the public 

already.
No. 2014AP1508.dtp

15

¶123 Justice Ziegler's concurrence builds on Linville and 

would state the law as follows:

(1) While the policy of the recreational immunity statute 

encourages landowners to open their land to the 

public, the recreational immunity statute does not 

cloak negligent actors with immunity no matter what 

they do. Justice Ziegler's concurrence, ¶67.

(2) A "person" who owns, leases, occupies, or has a 

"recreational agreement" to use recreational property 

is not sheltered from liability for "negligently 

performing" another function such as operating or 

otherwise participating in a "recreational activity," 

as defined in Wis. Stat. § 895.52(1)(g). See id., 

¶69. An "owner" under the statute "might sometimes 

function in a capacity unrelated to its ownership of 

the land, and that . . . owner should not be immunized 

against claims that the owner engaged in negligent 

conduct when operating in that capacity." Id.

¶124 Justice Ziegler writes that the "municipal owner of a 

pond in which a four-year-old boy drowned despite the efforts of 

paramedics employed by the owner was immune under § 895.52 from 

claims that its pond was negligently maintained, but not immune 

from claims that it negligently performed in its capacity as 

provider of paramedic services." Id. (emphasis added).

¶125 Justice Ziegler's summary of the law is squarely at 

odds with the court's discussion in Ervin v. City of Kenosha, 

159 Wis. 2d 464, 464 N.W.2d 654 (1991). In that case, two 
No. 2014AP1508.dtp

16

youths drowned at a public beach owned and operated by the City

of Kenosha. The youths' parents sued the City for negligently 

hiring and failing to properly train and instruct lifeguards, 

and for the lifeguards' alleged negligent performance at the 

time of the drownings. This court was confronted with arguments 

about separating the City's ownership of the land from its 

operation and oversight of the beach by its lifeguards. The 

court concluded that "the City is immune from 

liability . . . for its negligence in hiring or failing to 

properly train the lifeguards, [and] for the lifeguards' 

negligent performance." Ervin, 159 Wis. 2d at 469.

¶126 The Ervin court's opinion reads in part:

The parents argue that sec. 895.52(2), Stats., does 

not immunize the City from liability for the 

lifeguards' negligence or for its own negligent hiring 

and failure to train them. The parents contend that 

the City's conduct represented "active" negligence, 

and that the statute was intended to immunize only 

"passive" or "condition of the premises" negligence. 

We disagree because: (a) the plain language of the 

statute does not support this contention, (b) 

Wisconsin case law permits immunity under the 

recreational use statute for both active and passive 

negligence, and (c) legislative intent clearly 

supports granting immunity for both active and passive 

negligence.

Id. at 472.

¶127 The Ervin court also quoted approvingly from this 

court's decision in Wirth v. Ehly, 93 Wis. 2d 433, 287 

N.W.2d 140 (1980):

The statute does not contemplate that the land subject 

to public recreational use shall remain static. Since 

the purpose of the statute was to open land for 

recreational use, it would be inconsistent for the 

statute to provide protection only if the owner or 
No. 2014AP1508.dtp

17

occupant does not perform any potentially negligent 

activities on the land.

Ervin, 159 Wis. 2d at 475 (alteration omitted) (quoting Wirth, 

93 Wis. 2d at 446).

¶128 It should be noted that the only justice who dissented 

in Ervin was Justice William Bablitch, the author of the 

Linville opinion. In his dissent, Justice Bablitch wrote:

By placing unqualified lifeguards on a public 

beach, the City of Kenosha . . . created a trap for 

the unwary. The presence of the lifeguards created 

the perception of a safe condition that was not 

justified. I do not agree with the majority that the 

recreational use statute exempts owners of 

recreational property from liability when the actions 

of the owner create a perception of safety that does 

not in reality exist. The legislature could not have 

intended such an absurd result.

Id. at 485 (Bablitch, J., dissenting). In Justice Bablitch's 

Linville opinion, the court did not overrule Ervin.

¶129 In her concurrence, Justice Ziegler formulates a 

rational policy of limited recreational immunity, but that 

policy would require this court to overrule a number of cases 

including Ervin and Wirth, disregard controlling language in the 

statute, and clean up internal inconsistencies in her own 

concurring opinion. If we were to assume the correctness of a 

strict separation of functions analysis, that separation would 

apply irrespective of whether the separation affects an owner, a 

lessee, an occupier, a recreational agreement holder, or an 

officer, employee, or agent of an owner. Neither the 

concurrence nor the majority opinion has confronted the 

consequences of such a change in the law.
No. 2014AP1508.dtp

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¶130 I would not hesitate for a moment supporting the 

unfortunate victim of this balloon accident if the statute 

provided a reasonable means to do so. I do not hesitate now to 

recommend that the legislature promptly review the recreational 

immunity statute. I respectfully dissent, however, from any 

notion that the court itself should rewrite the statute to reach 

a desirable objective.

¶131 I am authorized to state that Chief Justice PATIENCE 

DRAKE ROGGENSACK joins this opinion.
No. 2014AP1508.RGB

1

¶132 REBECCA G. BRADLEY, J. (dissenting). I would affirm 

the court of appeals1 and hold that Sundog2 is immune from 

liability under Wisconsin's recreational immunity statute, Wis. 

Stat. § 895.52(2).3 Sundog meets the statutory requirements to 

obtain recreational immunity because: (1) it falls within the 

definition of "owner," which includes "a person . . . that . . .

occupies property," and (2) Patti Roberts engaged in a 

recreational activity on the property occupied by Sundog. See

Wis. Stat. § 895.52(1)(d)1., (2)(b). By actually using the land 

during a charity event, Sundog meets the ordinary and accepted 

meaning of "occupies." This conclusion comports with the 

legislative purpose of recreational immunity and would not, as 

the majority fears, result in the limitless application of the 

recreational immunity statute. As a result, I respectfully 

dissent from the majority opinion because a plain reading of the 

 

1 Roberts v. T.H.E. Ins. Co., No. 2014AP1508, unpublished 

slip op. (Wis. Ct. App. March 26, 2015). 

2 Sundog refers to the Respondents: Sundog Ballooning, LLC, 

Kerry Hanson, Jodi Hanson, and T.H.E. Insurance Company. See

majority op., ¶2.

3 Whether Sundog met the statutory definition of an "owner" 

in Wis. Stat. § 895.52(1)(d)1. was not an issue before the court 

of appeals. In our order granting the petition for review, this 

court ordered the parties to brief and address that issue. 
No. 2014AP1508.RGB

2

statute demonstrates Sundog is entitled to recreational 

immunity.4 

¶133 Subject to exceptions not applicable in this case, 

property "owners," as defined by Wis. Stat. § 895.52(1)(d)1.-2., 

are immune from liability for injuries sustained as a result of 

 

4 Because Sundog is entitled to recreational immunity, I 

would not reach the issue of whether the waiver of liability 

violates public policy.

Similarly, because I conclude that recreational immunity 

applies to Sundog, it is unnecessary to decide whether Sundog 

qualifies for recreational immunity based on its argument that 

the hot air balloon constitutes "property" under Wis. Stat. 

§ 895.52(1)(f). I disagree, however, with the majority's 

conclusion that because the hot air balloon was not "constructed 

on real property" it fails to meet the definition of property in 

the statute. See majority op., ¶45. Although the majority's 

structure analysis could be read to require that the structure 

be built or put together on site, the majority suggests that for 

purposes of recreational immunity, a structure must be 

permanently affixed to real property. This requirement is not

found in the text of the recreational immunity statute, but the 

majority imposes the requirement based on Peterson v. Midwest 

Sec. Ins. Co., 2001 WI 131, ¶17, 248 Wis. 2d 567, 636 N.W.2d 

727. Peterson held that a tree stand used for hunting 

constituted a structure within the meaning of Wis. Stat. 

§ 895.52(1)(f). Id., ¶4. The majority asserts that unlike 

Sundog's hot air balloon, "the tree stand was permanent and 

built or constructed on the real property." Majority op., ¶45. 

This differentiation between a hot air balloon and a tree stand, 

however, should not determine whether Sundog's hot air balloon 

meets the common and ordinary meaning of the word "structure." 

Based on the statutory language alone, Sundog's alternative 

argument for recreational immunity fails because Patti Roberts 

did not ever enter or get on the hot air balloon, which is 

required by the recreational immunity statute. See Wis. Stat. 

§ 895.52(2)(a)(making recreational immunity available to owners 

when a person "enters the owner's property"); see also Wis. 

Stat. § 895.52(2)(b)(making recreational immunity available to 

owners when "a person engag[es] in a recreational activity on

the owner's property") (emphases added).
No. 2014AP1508.RGB

3

recreational activities that occur on their property. See Wis. 

Stat. § 895.52(2). The parties dispute whether Sundog meets the 

statutory definition of an "owner" to qualify it for 

recreational immunity. Applicable here is § 895.52(1)(d)1., 

which defines an owner as: "A person, including a governmental 

body or nonprofit organization, that owns, leases or occupies 

property" (emphasis added).5 There is no assertion that Sundog 

owns legal title to the property or that it leased the property 

in question. The only way that Sundog meets the statutory 

definition of "owner" is if Sundog "occupies [the] property." 

See § 895.52(1)(d)1.

¶134 Unlike "owner," the word "occupies" is not defined in 

the recreational immunity statute. However, the plain,

ordinary, and accepted meaning of "occupies" can be readily 

determined by reference to the dictionary definition of an 

"occupant." An occupant is "[o]ne that resides in or uses a 

physical space." Occupant, The American Heritage Dictionary of 

the English Language 1218 (5th ed. 2015). This definition 

indicates that a person who occupies property is one who has 

actual use of the property.

¶135 Here, Sundog donated tethered, hot air balloon rides 

at a charity event sponsored by Green Valley Enterprises. To 

provide this recreational ballooning activity, Sundog set up the 

tethered hot air balloon on property legally owned by Beaver Dam 

 

5

It is not disputed that Sundog Ballooning, LLC qualifies as 

"a person" in the definition of "owner" found in Wis. Stat. 

§ 895.52(1)(d)1.
No. 2014AP1508.RGB

4

Conservationists, LLC. It used both ropes and flags to 

designate an area surrounding the hot air balloon. These facts 

show that Sundog actually used the property to provide a 

recreational activity, ballooning, (specifically mentioned by 

Wis. Stat. § 895.52(1)(g)) when Patti Roberts sustained 

injuries. This actual use of the property meets the plain, 

common, and ordinary meaning of "[a] person . . . that . . . 

occupies property." See Wis. Stat. § 895.52(1)(d)1. Therefore, 

Sundog meets the definition of a statutory owner as one who 

occupied the property and therefore is entitled to recreational 

immunity. 

¶136 This conclusion is consistent with the legislative 

purpose of the recreational immunity statute: to "limit the 

liability of property owners toward others who use their 

property for recreational activities under circumstances in 

which the owner does not derive more than a minimal pecuniary 

benefit." 1983 Wis. Act 418, § 1. This statement of 

legislative purpose is often summarized as "encourag[ing]

landowners to open up their land for recreational activity." 

Ervin v. City of Kenosha, 159 Wis. 2d 464, 477, 464 N.W.2d 654 

(1991) (emphasis added); see majority op., ¶28. The purpose of 

the recreational immunity statute, however, is much broader as 

evidenced by the legislature's decision to include in its 

definition of "owner" both lessees and occupiers of property. 

In interpreting the meaning of "property" defined by Wis. Stat. 

§ 895.52(1)(f), we reached a similar conclusion: "[I]t is 

abundantly clear from the language of the statute and the 
No. 2014AP1508.RGB

5

statement of legislative intent that the purpose of the statute 

is broader, and recreational immunity is not in fact limited 

only to landowners." Peterson v. Midwest Sec. Ins. Co., 2001 WI 

131, ¶22, 248 Wis. 2d 567, 636 N.W.2d 727. 

¶137 This broad legislative purpose, evidenced by the 

legislative policy statement read in conjunction with the 

statutory text refutes the majority's claim that "[i]mmunizing 

Sundog would have no effect on whether the public had access to 

private land, because Sundog is not responsible for opening the 

land to the public." See majority op., ¶37. 

¶138 Here, Sundog provided the recreational ballooning 

activity free of cost to members of the public who attended the 

charity event. Depriving Sundog of immunity because Green 

Valley and the Conservationists, rather than Sundog, "opened" 

the land to the public, creates a distinction between Sundog on 

the one hand, and Green Valley and the Conservationists on the 

other, that is not only unsupported by the broad legislative 

purpose of the recreational immunity statute but wholly absent 

from the statutory definition of the term "owner." Furthermore, 

the creation of this unsupported distinction ignores the fact 

that the Conservationists allowed Green Valley to hold an event 

that included a recreational ballooning activity provided by 

Sundog. Sundog's participation in the charity event undoubtedly 

encouraged the public to attend the event and, in some 

instances, take part in the recreational ballooning activity. 

Declining to recognize Sundog's statutory immunity will 

discourage organizations such as Sundog from donating 
No. 2014AP1508.RGB

6

recreational activities at charity events for fear of incurring 

liability, which, in turn, will reduce sponsorship of such 

events by organizations because they will have less recreational 

options——if any at all——to draw attendance. Ultimately, public 

access to private land will be reduced. This runs counter to 

the legislative purpose of the recreational immunity statute. 

¶139 As further support for its decision to treat Sundog 

differently than Green Valley and the Conservationists, the 

majority indicates that prior case law has not granted immunity 

to a "third-party" organization such as Sundog. See majority 

op., ¶33. Simply because the appellate courts apparently have 

not previously been presented with a similar fact pattern does 

not eliminate immunity created by the statute. Sundog satisfies 

the requirements of the statute and therefore is entitled to the 

immunity it provides. 

¶140 Further, the majority does not explain how its 

conclusion——that an organization such as Sundog that did not 

open land to the public cannot "occupy" the property——accounts 

for the plain, ordinary, and accepted meaning of the term 

"occupies." See majority op., ¶41. Although the majority 

opinion references the "requiring a degree of permanence, as 

opposed to mere use" definition of "occupies" utilized by the 

court of appeals in Doane v. Helenville Mut. Ins. Co., 216 Wis. 

2d 345, 354, 575 N.W.2d 734 (Ct. App. 1998), majority op., ¶34, 

it fails to apply the Doane definition to the facts of this case 

and fails to address the fact that the court of appeals has used 

differing definitions of "occupies," as explained below, when 
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determining whether an individual or group meets the definition 

of "owner" in Wis. Stat. § 895.52(1)(d)1.

¶141 On several occasions, the court of appeals has 

addressed the meaning of "occupies" in the definition of "owner" 

under Wis. Stat. § 895.52(1)(d)1. and concluded that "occupies" 

requires actual use of the property. In Hall v. Turtle Lake 

Lions Club, 146 Wis. 2d 486, 490-91, 431 N.W.2d 696 (Ct. App. 

1988), the court of appeals adopted a definition of "occupies" 

from a case decided by the Seventh Circuit Court of Appeals:

[O]ccupant include[s] persons who, while not owners or

tenants, have the actual use of land . . . . While 

"occupant" includes [an] owner and lessee, it also 

means one who has the actual use of property without 

legal title, dominion or tenancy. In order to give 

meaning to [occupies], the term should be interpreted 

to encompass a resident of land who is more transient 

than either a lessee or an owner.

Id. at 491 (citing Smith v. Sno Eagles Snowmobile Club, Inc., 

823 F.2d 1193, 1197 (7th Cir. 1987))(quoting Smith v. Sno Eagles 

Snowmobile Club, Inc., 625 F. Supp. 1579, 1582 (E.D. Wis. 

1986)).6 Subsequent cases have cited Hall and relied on its 

definition of "occupies property." See Leu v. Prince Cty. 

Snowmobile Trails Ass'n, Inc., 2005 WI App 81, ¶¶11-13, 280 Wis. 

2d 765, 695 N.W.2d 889; Mooney v. Royal Ins. Co. of Am., 164 

Wis. 2d 516, 521-22, 476 N.W.2d 287 (Ct. App. 1991); Lee v. Elk 

 

6 Although Smith v. Sno Eagles Snowmobile Club, Inc., 823 

F.2d 1193 (7th Cir. 1987), applied Wis. Stat. § 29.68, the 

precursor to Wis. Stat. § 895.52, both statutes grant 

recreational immunity to owners, lessees, and occupants. 

Compare Wis. Stat. § 29.68(1)(1981-82) with Wis. Stat. 

§ 895.52(1)(d)1. and (2) (2013-14).
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Rod & Gun Club, Inc., 164 Wis. 2d 103, 107, 473 N.W.2d 581 (Ct. 

App. 1991). 

¶142 However, in Doane, the court of appeals determined 

that "occupies property" within the definition of "owner" under 

Wis. Stat. § 895.52(1)(d)1. requires some degree of permanence 

in addition to actual use of the property. Doane, 216 Wis. 2d 

at 351. The court of appeals recently applied the some degree 

of permanence definition of "occupies" from Doane in WEA 

Property & Cas. Ins. Co., 2013 WI App 139, ¶21, 352 Wis. 2d 73, 

841 N.W.2d 290. 

¶143 The majority, however, fails to apply the some degree 

of permanence definition of Doane to the facts of this case. 

Instead, it compares this case to Doane by focusing on the 

purpose underlying the recreational immunity statute——to open up 

land for recreation. Majority op., ¶35. Doane involved the 

owner of an ice shanty on a lake already open for public 

recreational purposes, who was not present at the invitation of 

the titled owner or lessee but who was simply using public 

waters as any member of the public could. See Doane, 216 Wis. 

2d at 348, 353-54. An entirely different situation is presented 

here, where Sundog, the owner of a hot air balloon, was invited 

to occupy land for purposes of attracting members of the public 

to a charity event by offering the recreational activity of 

ballooning. The majority likens Sundog to the owner of the ice 

shanty because the Conservationists' property, like the lake in 

Doane, was already open for public recreational purposes; 

therefore, the majority reasons, recognizing immunity "'would 
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not further the policy which underlies the statute, i.e., of 

opening as much property as possible for recreational 

use . . . .'" Majority op., ¶35 (citing Doane, 216 Wis. 2d at 

355). The majority's analogy fails because in Hall, 146 Wis. 2d 

at 487, the Turtle Lake Lions Club was immunized from liability 

for an injury occurring on the grounds of a public park and in 

Lee, 164 Wis. 2d at 107, the Elk Rod & Gun Club was considered a 

"landowner" under the recreational immunity statute as an 

occupant of a city park. The recreational immunity statute 

simply does not restrict immunity to occupiers of land that is 

not already open to the public.

¶144 The definition of "occupies" adopted in Hall comports 

with the plain, ordinary, and accepted meaning of the word as 

well as the legislative purpose of the recreational immunity 

statute. There is no temporal requirement embedded in the 

definition of occupy. The broad definition of "owner," which 

expressly encompasses a person that "occupies" property, is not 

limited to those who "host" or "organize" an event on the land. 

The recreational immunity statute immunizes a person that "owns, 

leases or occupies property"; the statute does not restrict 

immunity to only those occupiers who are event "hosts" or 

"organizers," a limitation the majority invents in this case. 

In an apparent attempt to further narrow the scope of 

recreational immunity beyond the words of the statute, the 

majority reads into the statute language that simply is not 

present. Whether recreational immunity should be further 
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limited is a policy judgment for the legislature and not this 

court to make.

¶145 Furthermore, I am not persuaded by the majority's 

conclusion that granting recreational immunity to Sundog would 

result in the limitless application of Wis. Stat. § 895.52(2). 

See majority op., ¶¶38-40. A plain meaning interpretation of 

"occupies property," requires actual use of the land. For 

example, in Mooney, 164 Wis. 2d at 522-23, the court of appeals 

held that a snowmobile club that had left the property following 

the conclusion of an event did not meet the definition of an 

occupier and could not receive recreational immunity. The same 

would be true of a hot air balloon manufacturer because the 

manufacturer is not located on the property at the event using 

the land, and therefore is not an "occupier." It should go 

without saying that the recreational immunity statute does not 

extend to the manufacturer of Sundog's balloon yet the majority 

uses this example to create an unnecessary limiting principle by 

stirring unfounded fears that otherwise "there will be no 

stopping point to recreational immunity" despite statutory 

language that plainly restricts immunity to those who own, lease 

or occupy property. See majority op., ¶39. Of course, the 

manufacturer of Sundog's balloon fits none of these categories. 

The legislature created a stopping point. It is not this 

court's role to second-guess the legislature's policy judgments 

by moving the mark.

¶146 Finally, the majority relies on Linville v. City of 

Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), to declare a 
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new limiting principle for recreational immunity. Majority op., 

¶¶38-39. In Linville, the court declined to extend immunity to 

city paramedics providing services for injuries sustained during 

a recreational activity, noting that such services could take 

place days or weeks after the event and away from the site of 

the recreational activity. Linville, 184 Wis. 2d at 711, 720. 

Specifically, relying on Linville, the majority asserts that 

Sundog has "no connection to the land" and therefore should not 

qualify for recreational immunity. Majority op., ¶39. The use 

of Linville and this particular limiting principle is perplexing 

in two respects. First, the majority's reliance on Linville

implicitly addresses the Roberts's alternative argument——that an 

injury must arise from a condition associated with the land——

despite the majority opinion's pronouncement that it does not 

decide this issue. See majority op., ¶4 n.4. Second, not only 

was Sundog present on the land during the charity event, but its 

hot air balloon was literally connected to the land by ropes 

that tethered the hot air balloon to two trees (and a truck) on 

the property. Unlike the paramedics in Linville, Sundog was the 

entity actually providing the recreational activity, notably one 

that is specifically mentioned as a "recreational activity" in 

the recreational immunity statute. See 895.52(1)(g). 

¶147 I would affirm the court of appeals and hold that 

Sundog is entitled to recreational immunity under Wis. Stat. 

§ 895.52. 

¶148 For the foregoing reasons, I respectfully dissent.
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¶149 I am authorized to state that Justice DAVID T. PROSSER 

joins this dissent except for footnote 4.
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