                                                                         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 App. 2015 – Unpublished)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.
                                                                FILED
T.H.E. Insurance Company, Sundog Ballooning,
LLC, Kerry M. Hanson and Jodi L. Hanson,                   MAR 30, 2016
             Defendants-Respondents,                          Diane M. Fremgen
                                                           Clerk of Supreme Court
Dean Health Plan, Inc.,

             Defendant.




      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



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.


                                        2
                                                                No.     2014AP1508



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).


                                       3
                                                           No.   2014AP1508



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.


                                    4
                                                                       No.   2014AP1508



    ¶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
                                         5
                                                                   No.   2014AP1508



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.").


                                         6
                                                                               No.     2014AP1508



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
                                                  7
                                                                           No.     2014AP1508



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]     plain-

meaning        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
                                               8
                                                                          No.   2014AP1508



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

                                            9
                                                          No.     2014AP1508


       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.


                                  10
                                                                         No.    2014AP1508



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.
                                             11
                                                                              No.    2014AP1508



       ¶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)
                                               12
                                                                     No.    2014AP1508



       ¶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.




                                             13
                                                                   No.    2014AP1508



      ¶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

                                        14
                                                                                   No.     2014AP1508



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


                                                  15
                                                                              No.    2014AP1508



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)
                                             16
                                                                      No.   2014AP1508



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.


                                        17
                                                                    No.    2014AP1508



    ¶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.


                                         18
                                                                    No.     2014AP1508



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
                                         19
                                                                     No.       2014AP1508



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
                                             20
                                                          No.   2014AP1508



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.


                                    21
                                                                 No.    2014AP1508


      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

                                       22
                                                               No.   2014AP1508



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.




                                    23
                                                                     No.    2014AP1508.akz




       ¶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 condition-

or-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

                                           1
                                                                            No.   2014AP1508.akz


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"

                                              2
                                                                    No.    2014AP1508.akz


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,

                                          3
                                                                           No.    2014AP1508.akz


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.


                                                   4
                                                                                No.   2014AP1508.akz


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

                                                    5
                                                                       No.      2014AP1508.akz


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



                                            6
                                                                             No.    2014AP1508.akz


"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

                                                  7
                                                                    No.    2014AP1508.akz


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 post-
Linville 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)
                                              8
                                                No.   2014AP1508.akz



     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 non-
proprietary 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.


                               9
                                             No.   2014AP1508.akz


¶82   For the foregoing reasons, I respectfully concur.




                           10
                                                                     No.      2014AP1508.dtp


       ¶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 . . . .

                                             1
                                                            No.    2014AP1508.dtp


      ¶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




                                       2
                                                               No.   2014AP1508.dtp


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."


                                         3
                                                    No.   2014AP1508.dtp


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



                                  4
                                                                             No.    2014AP1508.dtp


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, wide-

open     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.

                                                  5
                                                          No.    2014AP1508.dtp


(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.


                                         6
                                                                 No.    2014AP1508.dtp


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 man-

made 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:

                                           7
                                                                     No.    2014AP1508.dtp

            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



                                            8
                                                         No.    2014AP1508.dtp


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.

                                      9
                                                                   No.    2014AP1508.dtp

      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.



                                         10
                                                                      No.    2014AP1508.dtp


    ¶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

                                              11
                                                                             No.   2014AP1508.dtp


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

                                                  12
                                                         No.   2014AP1508.dtp

      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)
                                     13
                                                No.   2014AP1508.dtp




     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.


                               14
                                                                         No.    2014AP1508.dtp


      ¶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

                                             15
                                                                       No.   2014AP1508.dtp


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
                               16
                                                                         No.    2014AP1508.dtp

      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.



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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.




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      ¶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.


                                               1
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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).


                                   2
                                                                          No.     2014AP1508.RGB


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.

                                                 3
                                                                                 No.    2014AP1508.RGB


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

                                                   4
                                                                       No.   2014AP1508.RGB


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

                                            5
                                                                 No.    2014AP1508.RGB


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

                                        6
                                                              No.    2014AP1508.RGB


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).


                                      7
                                                                            No.    2014AP1508.RGB


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

                                                 8
                                                                      No.       2014AP1508.RGB


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



                                              9
                                                                    No.    2014AP1508.RGB


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

                                         10
                                                       No.    2014AP1508.RGB


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.



                                   11
                                               No.   2014AP1508.RGB


    ¶149 I am authorized to state that Justice DAVID T. PROSSER

joins this dissent except for footnote 4.




                               12
    No.   2014AP1508.RGB




1
