Does Wisconsin’s Recreational Immunity Statute protect you from liability?

As the snow finally melts and spring arrives, our focus will be on enjoying the great outdoors in Central Wisconsin. Recreational activities that we enjoy may include hiking, biking, fishing, hunting, horseback riding, camping, picnicking, birdwatching and riding ATVs. While we enjoy these recreational activities, are property owners liable for injuries sustained by people engaged in recreational activities on the owner’s property?

Wisconsin Statute § 895.52 is a recreational immunity statute which generally limits the liability of property owners when a person is injured while engaging in a recreational activity on their property. The property owners generally have no duty to: (1) keep the property safe for recreational activities; (2) inspect the property; or (3) give warning of an unsafe condition, use or activity on the property.

The statute defines “owner” of property in very broad terms and includes private property owners, governmental bodies, and nonprofit organizations that own, lease or occupy property. The statute protects property owners from liability as a result of injuries sustained by people engaging in approximately two dozen recreational activities, including those referenced above and others, such as rock climbing, hang gliding, cutting or removing wood, exploring caves, outdoor sports, water sports, and many winter sports activities.

As with many laws, there are exceptions to this statute. The owners of private property lose the immunity afforded to them if the private property owner collects a total of at least $2,000 per year in payment or fees for the use of the owner’s property in the year in which the death or injury occurs. For example, if you lease land for hunting and receive as rent a total of at least $2,000 in a particular year, you will not be afforded immunity from injuries sustained on your property. Additionally, property owners who use their property for organized sports also lose the protection under the statute.

In addition, a private property owner loses immunity if the death or injury occurs on platted land, residential property, or property within 300 feet of a building or structure on land that is classified as commercial or manufacturing, and if the injured person was a “social guest” who was expressly and individually invited by the property owner for the specific occasion when the injury occurred.

Wisconsin courts have interpreted various aspects of the recreational immunity statute on many occasions and have held that even spectators who attend a recreational activity are engaging in a recreational activity under the statute, such that the property owner is immune from liability if a spectator is injured. The Wisconsin Court of Appeals has recently extended the recreational immunity statute to deny recovery to those injured who may be on the property merely “supervising” those who are engaged in a recreational activity.

The recreational immunity statute provides very broad protection to property owners. However, the statutory exceptions and the case law from Wisconsin courts can make it a very complex and fact-intensive inquiry. If in a certain situation the property owner does not receive the protection of the immunity statute, it must be kept in mind that the property owner is not automatically liable for the injuries sustained by anyone on the premises. The injured party must establish that the property owner breached a legal duty to the injured party. The duty owed by the property owner requires a factual and legal analysis.

Property owners may attempt to limit their exposure to liability by having users of their property sign releases and waivers of liability. However, Wisconsin courts are reluctant to enforce these unless they satisfy very strict requirements. A property owner may also attempt to limit personal financial liability for injuries by purchasing adequate liability insurance, including an umbrella insurance policy.

Because of the complexities involved, it is recommended that you contact a lawyer to discuss your specific circumstances to assess your risk for liability for any injuries that may occur on your property.

The benefits of having good insurance and high policy limits cannot be overemphasized. When a new client comes into our office to discuss a potential claim, whether it be a personal injury claim or a dispute involving another party, one of the first issues that we discuss is what type of insurance may be available to cover the loss. In some cases, our clients are the ones who have been injured; in other cases, our clients are the ones who are accused of causing damages. In either case, having adequate insurance is essential to either compensate our clients for their loss, or to protect their assets if they are sued.

The primary cases where we see insurance limits having a significant impact involve automobile accidents. While Wisconsin law requires all licensed drivers to have an automobile liability insurance policy in place, those policies must have a minimum limit of only $25,000 for injury or death. If you are struck by an at-fault driver in an accident who has only $25,000 in liability insurance to cover your losses, there is a good chance that your damages will exceed those policy limits. With the cost of medical care, even for injuries that are not life threatening, the medical bills alone can easily exceed the $25,000 limit. Imagine having substantial injuries with several years of treatment, surgeries and medical bills exceeding several hundred thousand dollars, along with lost wages, a permanent disability, and future medical expenses.

To protect yourself from the unfortunate possibility of being struck by a negligent driver with no insurance or low insurance limits, you can purchase high limits of Uninsured Motorist Coverage (UM) and Underinsured Motorist Coverage (UIM). Even though Wisconsin requires all drivers to have auto insurance, many people ignore this and drive with no insurance. You can purchase high limits of UM insurance through your own insurance company, which will help compensate you, your family and other occupants of your vehicle when you are injured by an uninsured motorist or a hit-and-run driver. Purchasing high limits of UM insurance is fairly inexpensive in light of the potential losses you could suffer in an accident.

Additionally, you may also purchase from your insurance company high limits of Underinsured Motorist Coverage (UIM) which provides bodily injury protection to you and the persons in your vehicle if the at-fault driver’s insurance limits are lower than your UIM limits and the at-fault driver’s insurance is not adequate to cover your losses. Again, purchasing high limits of UIM is also fairly inexpensive in light of the substantial losses you could suffer in an automobile accident.

A type of insurance which will assist in protecting your assets if you are at fault in causing an accident is an “umbrella” or “excess” insurance policy. This is a larger policy which provides additional coverage that would be used once your underlying liability limits are exhausted. For example, if you caused a serious automobile accident and the other driver sustains $200,000 in medical bills alone, his or her potential claim against you will be much higher when considering the value of wage loss and pain and suffering damages. If you had only a $100,000 liability insurance limit, which was inadequate to compensate the injured party, the injured party or parties may obtain a judgment against you individually and pursue collection of all of your assets up to the amount of their damages.

While you may have some protection by going through bankruptcy, this is not always the best alternative. To be proactive in protecting your assets in such a situation, you would purchase the excess or umbrella insurance policy which typically provides additional limits of $1 million or $2 million, depending upon what policy you purchase. This extra protection is essential if you cause a serious injury. Additionally, some umbrella or excess insurance policies will also provide you with the additional $1 million or $2 million in benefits for your injuries and may be added to your UM and UIM coverage limits. Check with your insurance agent to make sure that your umbrella policy applies to UM and UIM coverage because many do not. If it does apply, and if the other driver who causes the accident does not have adequate insurance, then you will have a substantial amount of additional insurance available to compensate you for your medical expenses, wage loss, and pain and suffering. Again, the cost of an excess or umbrella policy is relatively inexpensive in light of the protection it can afford you.

It is prudent to check with your insurance agent on the cost for the highest limits you can purchase for all of the above coverages. It is strongly recommended that you purchase as much insurance as you can reasonably afford in order to protect yourself from the unfortunate circumstances described above. This will assist in protecting your assets and to help you recover compensation for substantial medical bills, pain and suffering, loss of wages and possible permanent disability. While no one plans on getting into an accident and being seriously hurt, you can be proactive and protect yourself against other drivers who have no insurance or have minimum liability limits.