Under Wis. Stat. Ann. § 895.525, a participant in any recreational activity, including skiing, accepts the inherent risks of which the ordinary prudent person is or should be aware; the risks so accepted reduce recovery as if it were comparative negligence under § 895.045. Participants must conduct themselves within their abilities, heed warnings, and generally remain in control so as not to harm themselves or others. Id. at § 895.525(4). Property owners or lessees opening their property to non-commercial recreational activity are absolved of any resulting liability, per § 895.52. Under § 895.482, ski patrol members are immune from liability unless they were reckless, wanton, or engaged in intentional misconduct.
Milton v. Washburn County,797 N.W.2d 924, Court of Appeals (2011)
December 10, the date of the accident, was the first day in 2007 that the County’s snowmobile trails were open. On that date, James Milton and Jesse Hoffman were traveling by snowmobile from Milton’s home to the Outback Bar. The bar is located on State Highway 77, approximately three quarters of a mile south of Washburn County snowmobile Trail Eight. To get to the bar from Trail Eight, a snowmobile operator must turn off the trail onto a former logging road commonly known as the Elm Creek Ford access trail. A directional sign on Trail Eight advises that the access trail leads to the bar.
The access trail is gated approximately one-quarter of a mile north of Highway 77 to prevent vehicles heavier than 900 pounds from traveling on the northern portion of the access trail. Both the County’s road access plan and a local ordinance require that the gate be closed at all times to block heavy vehicles. However, a path along the side of the gate allows lighter vehicles, such as snowmobiles, to pass. Both the access trail and Trail Eight are located on county land. Trail Eight is part of the County’s official snowmobile trail system and is maintained by the Club, pursuant to a contract with the County. The access trail is not an official county snowmobile trail, nor is it an unofficial “club trail.”
That afternoon, county recreational coordinator Robert Busch traveled throughout the county opening gates on the official trail system. He drove down the access trail and discovered that the gate was open. In accordance with the County’s road access plan and ordinance, Busch closed and locked the gate.
Several hours later, Milton and Hoffman turned onto the access trail from Trail Eight, on their way to the Outback Bar. They collided with the closed gate and were injured. They subsequently sued the Club and the County. They alleged the Club was negligent by: (1) failing to ensure the access trail gate was kept open; (2) grooming the access trail, which made it appear to be an official county trail; and (3) either putting up or failing to remove the directional sign for the Outback Bar. They alleged the County was negligent by closing the gate. The Club and the County moved for summary judgment, arguing recreational immunity barred Milton and Hoffman’s claims.3 The circuit court granted summary judgment on recreational immunity, and Milton and Hoffman appealed.
The Court of Appeals held that the club was an occupant of the access trail and, thus, was an owner of the access trail and was accordingly entitled to recreational immunity unless a statutory exception applied and that the malicious-act exception to recreational immunity did not apply to club or to the county. Review by the Supreme Court of Wisconsin was denied.
Prior to 2006
In Ansani v. Cascade Mountain, Inc., 588 N.W.2d 321 (Wis. Ct. App. 1998), review denied, a skier sued operator for injuries sustained when he fell and slid into timing box on coin- operated race course. The court held that the recreational activity statute, § 895.525 does not mandate that all who are injured while skiing are negligent under all circumstances as a matter of law; rather, skiers have a duty to exercise ordinary care in avoiding forseeable harms, including adherence to the enumerated conditions of § 895.525(4). Challenges to waivers of operator liability have yielded mixed results. SeeYauger v. Skiing Enterprises, Inc., 557 N.W.2d 60 (Wis. 1996) and Osborn v. Cascade Mountain Inc., 2002 WL 31478724 (Wis. Ct. App.). In Yauger, a child was killed while skiing after colliding with the concrete base of a lift tower. The child’s father had purchased a family season pass, the application for which had included an exculpatory clause. The Court of Appeals upheld the clause, determining that the discount received was adequate consideration for the release, and that the clause expressly contained the term “negligence.” The Wisconsin Supreme Court, however, reversed, holding that the exculpatory clause did not explicitly waive operator’s own negligence, was not conspicuous, and was, therefore, void as against public policy.