text:
    Jessica L. Mettler by her Guardian ad Litem, George Burnett and Perry and Mary Mettler, Plaintiffs-Appellants-Cross-Respondents, v. Debra L. Nellis and General Star Indemnity Company, Defendants-Respondents-Cross-Appellants.

    Court of Appeals

      No. 04-1216.

      Submitted on briefs January 24, 2005.

    Decided March 22, 2005.

    2005 WI App 73
    (Also reported in 695 N.W.2d 861.)

      On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of George Burnett of Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay.

      On behalf of the defendants-respondents-cross-appellants, the cause was submitted on the briefs of W. Patrick Sullivan and Corrado Cirillo of Siesennop & Sullivan, Milwaukee.
    Before Cane, C.J., Hoover, EJ., and Peterson, J.

       Petition to review denied 6-1-2005.

   PETERSON, J.

¶ 1. Jessica, Perry and Mary Met-tler appeal a summary judgment dismissing their claims against Debra Nellis and her insurer, General Star Indemnity Company. The Mettlers argue the circuit court erred by failing to consider their expert's affidavit, which created a genuine issue of material fact as to whether the equine immunity statute, Wis. Stat. § 895.481, applies. We agree and reverse that portion of the judgment. Nellis cross-appeals, arguing the Met-tlers' claims are barred by the releases Mary and Jessica signed. We conclude the releases violate public policy and thus are void. Therefore, we affirm that portion of the judgment. We remand to the circuit court for further proceedings.

BACKGROUND

¶ 2. This case arises from an accident on August 20, 2001, when Jessica Mettler fell off a horse while taking a riding lesson from Nellis. At the time, Jessica was fifteen years old. She had no horseback riding training aside from three prior lessons with Nellis.

¶ 3. When Jessica's mother, Mary, took Jessica to her first lesson, they were given six pages of documents to be signed before Jessica's lesson could begin. The documents included three releases, a medical authorization, a list of service prices, and cancellation and payment policies. Jessica and Mary filled out and signed the documents, and Jessica turned them in at the stable's office so she could begin her lesson.

¶ 4. On the day of the accident, Jessica was cantering her horse when the horse ran close to the side of the corral. Jessica's leg hit a post, she lost her balance and fell out of the saddle. Her right foot caught in the stirrup and she was dragged on the ground for a distance before her foot dislodged, resulting in injuries.

¶ 5. On April 16, 2003, the Mettlers commenced this suit, contending that Nellis's negligence caused Jessica's injuries. On December 15, 2003, Nellis moved for summary judgment, arguing that the releases barred the Mettlers' claims and that the equine immunity statute applied. The Mettlers argued that the releases were void as against public policy and an exception to the equine immunity statute applied. In support of their argument on equine immunity, they submitted an affidavit of Kathy O'Connor, an experienced equestrian teacher, who concluded that Nellis's teaching techniques were unreasonable under the circumstances.

¶ 6. The circuit court found the releases void as against public policy, and thus concluded summary judgment could not be based on the releases. However, the court refused to consider O'Connor's affidavit because it was conclusory and, therefore, granted summary judgment on equine immunity grounds.

STANDARD OF REVIEW

¶ 7. We review a summary judgment independently, using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). We view the facts in the light most favorable to the nonmoving party. State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 511-12, 383 N.W.2d 916 (Ct. App. 1986). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08.

DISCUSSION

The Mettlers' Appeal

¶ 8. The Mettlers argue the circuit court erred when it granted summary judgment to Nellis based on equine immunity. Wisconsin Stat. § 895.481 provides immunity to persons participating in equine activities for injuries caused as a result of the activities' inherent risks. However, there are exceptions to the immunity. See Wis. Stat. § 895.481(3). One exception is when the person seeking immunity "[p]rovides an equine to a person and fails to make a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided based on the person's representations of his or her ability." Wis. Stat. § 895.481(3)(b).

¶ 9. Whether Nellis is entitled to immunity turns on whether the exception to equine immunity applies: did Nellis safely manage the horse on the day of the accident in light of Jessica's ability and experience? The Mettlers contend that Nellis did not safely manage the horse and, thus, is not entitled to immunity. They submitted an affidavit by their expert witness, Kathy O'Connor, along with an affidavit by their attorney attaching portions of the three depositions taken in the case. O'Connor's affidavit states that she is a member of the Madison Hoofer Riding Club and has been giving riding lessons for thirteen years; that she has reviewed the depositions of Nellis, Mary and Jessica; and that, based on her review, Jessica was "too inexperienced to be engaged in the activity of cantering under the conditions in the arena" and Nellis "failed to safely manage the riding situation based upon [Jessical's ability and experience level." The Mettlers argue O'Connor's affidavit creates a genuine issue of material fact regarding the applicability of equine immunity, so that summary judgment is inappropriate.

¶ 10. Nellis counters that O'Connor's affidavit cannot be considered because it contains only opinions and no specific facts. Nellis relies on Wis. Stat. § 802.08(3), which provides that opposing affidavits "must set forth specific facts showing that there is a genuine issue for trial." However, we note that the statute begins by explaining that the affidavits must contain "such evidentiary facts as would be admissible in evidence." Wis. Stat. § 802.08(3). "Evidentiary facts" are facts admissible in evidence at trial. Leszczynski v. Surges, 30 Wis. 2d 534, 538-39, 141 N.W.2d 261 (1966).

¶ 11. O'Connor's affidavit contains opinions, but opinion testimony by an expert witness is admissible at trial as long as the expert is qualified and has adequate foundation for the opinion. See Wis. Stat. § 907.02. Therefore, at summary judgment, an "affidavit setting forth the expert's opinion is evidence of a factual dispute" as long as "the opinion is expressed on a matter that is appropriate for expert opinion and the affiant is arguably an expert. .. ." Hansen v. New Holland N. Am., Inc., 215 Wis. 2d 655, 671, 574 N.W.2d 250 (Ct. App. 1997). We conclude that O'Connor's affidavit is sufficient to qualify her to give her opinions. Her affidavit sets forth her qualifications: she is a member of the Madison Hoofer Riding Club and has given riding lessons for thirteen years. The affidavit also articulates the foundation for her opinion: her opinion is based on her review of the depositions. Her opinion aids the trier of fact in determining whether Nellis safely managed the equine activity in light of Jessica's experience. See Wis. Stat. §§ 907.02, 895.481(3)(b). This would be sufficient for O'Connor's opinions to be admissible at trial. Therefore, her affidavit setting forth those opinions raises a genuine factual issue for trial.

Nellis's Cross-Appeal

¶ 12. Nellis argues the circuit court erred by concluding the releases signed by Jessica and Mary were void as against public policy. Nellis contends the releases are enforceable and bar the Mettlers' claims.

¶ 13. Exculpatory clauses, such as those contained in the releases, are not favored in Wisconsin. Atkins v. Swimwest Family Fitness Ctr., 2005 WI 4, ¶ 12, 277 Wis. 2d 303, 691 N.W.2d 334. That is because they often "allow conduct below an acceptable standard of care." Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81, 557 N.W.2d 60 (1996). While not invalid per se, exculpatoiy clauses are closely scrutinized by courts and are strictly construed against the party that seeks to rely on them. Atkins, 691 N.W.2d 334, ¶ 12. Exculpatory clauses are void if they violate public policy. Yauger, 206 Wis. 2d at 80.

¶ 14. Courts look at a variety of factors, which were recently summarized in Atkins, to determine whether an exculpatory clause violates public policy. In Yauger, the court concluded "the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived" and "the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed." Yauger, 206 Wis. 2d at 84. The Richards court concluded a release was unenforceable because it (1) served two purposes and neither purpose was clearly identified or distinguished; (2) was broad and all-inclusive; and (3) was a standard, pre-printed form signed with little or no opportunity to negotiate or bargain. Richards v. Richards, 181 Wis. 2d 1007, 1011, 513 N.W.2d 118 (1994).

¶ 15. Nellis argues the releases were not overly broad because they were limited to injury arising from participation in horse-related activities. Our review of the releases shows no such limitation. All three releases provide that the signer assumes the unavoidable risks inherent in horse-related activities. However, the documents purport to release "any liability or responsibility for any accident damage, injury, or illness," not merely injuries from horse-related activities. The release is broad enough to include intentional behavior. See Richards, 181 Wis. 2d at 1017. "[A]n exculpatory contract contravenes public policy when it would absolve the tortfeasor from any injury to the victim for any reason." Id. at 1018.

¶ 16. The releases are broad not only in the scope of behavior covered but in the number and category of individuals and entities released. See id. at 1017-1018. The first document releases Nellis; New Heights Hunters & Jumpers; Thornberry Stables; the stable owners; their employees; all horse owners, including those of twenty named horses; as well as the families of the horse owners. The first two documents purport to release the claims of the signer, the signer's family members and anyone accompanying the signer. The third document releases Thornberry Stables, LLC, from liability, an entity that was not formed until months after the release was signed and the accident occurred. Consequently, the releases are too broad and all-inclusive to be enforceable.

¶ 17. Nellis further argues that the Mettlers were apprised of what they were signing and waiving, as well as the significance and nature of what the releases contained. See Yauger, 206 Wis. 2d at 84. They point to specific protions of the releases: the headings that indicate the documents are release and hold harmless agreements, the statutory notice language regarding equine immunity and the statement on two of the releases to keep a copy of the document.

¶ 18. However, "[a] valid exculpatory contract must be clear, unambiguous, and unmistakable to the layperson." Id. at 86. The portions of the releases relied on by Nellis do not defeat the otherwise confusing and ambiguous nature of the documents. The releases include an assumption of the "unavoidable risks inherent in all horse-related activities," but that language is buried in fine print and the releases do not define what those risks are. See id. (contract assuming the "inherent risks" of skiing is ambiguous and violates public policy). Nellis claims that other language in the releases, stating that "the inherent risks of equine activities" are defined in Wis. Stat. § 895.481(1)(e), adequately explains what risks are being assumed. However, we strictly construe any ambiguity against Nellis, see Atkins, 691 N.W.2d 334, ¶ 12, and we cannot conclude that such a meaning would be unmistakable to a layperson. See Yauger, 206 Wis. 2d at 86.

¶ 19. Because the releases are broad and all-inclusive, do not clearly inform the signer of what was being waived and do not, when viewed in their entirety, alert the Mettlers to the significance of what they were signing, the releases are void as against public policy.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded.

       We will refer to Debra Nellis and General Star collectively as "Nellis."

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Nellis testified at her deposition that Jessica took a total of four lessons; Jessica testified to taking five lessons.

       Nellis argues that Wis. Stat. ch. 907, which governs the admissibility of expert testimony at trial, is irrelevant because this case is before us on summary judgment. However, the restrictions on summary judgment affidavits contained in Wis. Stat. § 802.08 "are to remove from a court's consideration on summary judgment purported 'facts' that would not be admissible at trial." Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2001 WI App 148, ¶ 54 n.19, 246 Wis. 2d 933, 632 N.W.2d 59 (citation omitted), aff'd, 2002 WI 80, 254 Wis. 2d 77, 646 N.W.2d 777. Accordingly, whether O'Connor's opinions are admissible at trial is relevant to whether her affidavit containing those opinions should be considered at summary judgment.

       Nellis does not argue that expert opinion is inappropriate, only that O'Connor's affidavit is insufficient.

       Nellis argues that O'Connor's affidavit does not establish her qualifications, since it does not attach a resume and does not state that "the Madison Hoofer Riding Club has anything to do with horseback riding" or that the riding lessons she has given are "equine related." However, we draw all reasonable inferences in the Mettlers' favor, as the nonmoving party, see Strozinsky v. School Dist. of Brown Deer, 2000 WI 97, ¶ 7 n.3, 237 Wis. 2d 19, 614 N.W.2d 443, and thus conclude that O'Connor's experience relating to horseback riding sufficiently qualifies her to render opinions on equine activities.

       Nellis does not rely on any one release, addressing her arguments to the three releases collectively.

       In an argument that is difficult to follow, Nellis appears to suggest that the releases are supported by public policy regarding equine immunity, as articulated by the legislature in Wis. Stat. § 895.481. She argues the releases adopt, rather than supplant, the definitions and exceptions of the equine immunity statute. In her reply brief, she argues "negligent behavior is avoidable. The releases specifically address the unavoidable risk inherent in all equine activities." However, the Mettlers are making a negligence claim and are relying on an exception to the equine immunity statute. If the releases do no more than adopt the statute, a factual dispute remains, as previously discussed in this opinion.

       The Mettlers raise a number of additional arguments for invalidating the releases, including the lack of free bargaining, Nellis's failure to post a statutorily required warning sign by the corral, Jessica's minority and legal inability to be bound to a contract, and the inability of a parent to waive a child's claim. We find the factors discussed in the body of the opinion conclusive and decline to address these additional arguments. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663 (1938) (only dispositive issue need be addressed).


source: Caselaw Access Project

author: CANE, C.J.

license: Public Domain

text:
    Lisa M. Leu, Plaintiff-Appellant,  v. Price County Snowmobile Trails Association, Inc., Spirit Lake Northwoods Riders, Inc. and General Casualty Company of Wisconsin, Defendants-Respondents, Arthur Zietlow and Church Mutual Insurance Company, Defendants.
    Court of Appeals

      No. 04-1859.

      Submitted on briefs February 21, 2005.

    Decided March 22, 2005.

    2005 WI App 81
    (Also reported in 695 N.W.2d 889.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Paul A. Nikolay of Nikolay Law Offices.

    On behalf of the defendants-respondents, the cause was submitted on the brief of Matthew E. Yde and Douglas R. Ross of Strasser & Yde, S.C. of Wausau.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 7-28-2005.

   CANE, C.J.

¶ 1. Lisa Leu appeals a summary judgment concluding that Price County Snowmobile Trail Association, Spirit Lake Northwoods Riders, Inc., and their insurer, General Casualty Company of Wisconsin, are immune from liability under Wisconsin's Recreational Immunity Statute, Wxs. Stat. § 895.52. Leu contends the circuit court erred when it found that the Snowmobile Trail Association and the Northwoods Riders were "occupants" of the property on which her husband was killed. Leu argues that Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193 (7th Cir. 1987), is not controlling and, as a matter of public policy, should not be applied because the federal court's definition of "occupancy" runs counter to the purposes of Wisconsin's recreational immunity statute. Even if the Smith definition of occupant applies, Leu argues alternatively, summary judgment is still inappropriate in this case because there are genuine issues of material fact as to whether the Snowmobile Trail Association and the Northwoods Riders were actually occupiers. Because the material underlying facts are undisputed and the Snowmobile Trail Association and the Northwoods Riders are entitled to immunity as occupants under § 895.52, we affirm the judgment.

BACKGROUND

¶ 2. On March 7, 2002, Leu's husband, Lonnie, was struck and killed by a falling tree while snowmobiling on a groomed snowmobile trail in Price County. The accident occurred on a portion of the trail that ran through Mildred Briant's property. Joseph Massa, who cut down the tree, was removing wind-damaged trees at the request of a neighboring property owner when he mistakenly strayed onto Briant's land.

¶ 3. In 1995, Briant signed a snowmobile easement agreement with Price County, authorizing the County or its agents to construct and maintain a snowmobile trail across the easement. In 2001, Price County contracted with the Snowmobile Trails Association to groom the County's trails. The Association is a non-profit organization whose membership consists of two delegates from each of Price County's riding clubs. The Association owns and maintains trail grooming equipment and controls when and how the trails will be groomed. The Northwoods Riders is one of a number of snowmobile riding clubs in Price County. Incorporated in 1986, the Northwoods Riders is a non-profit group whose members receive no salary or compensation for building, maintaining, and grooming snowmobile trails. The Northwoods Riders were responsible for grooming the trail on which Lonnie was killed.

¶ 4. Under her easement agreement with the county, Briant was supposed to provide advance notice of any logging that would take place. But Briant never gave permission to Massa to log on her land. Therefore neither the Snowmobile Trails Association nor the Northwoods Riders had any prior warning of logging near that portion of the trail. On the night before Lonnie's accident, sometime between 6 p.m. and 9 p.m., Gary Becker was grooming the trial for the Northwoods Riders when he noticed evidence that some kind of logging was taking place. Becker decided that he would come back later and post Togging ahead" signs on the trail. When Becker returned in the early evening of the following day, the accident had already occurred.

¶ 5. Leu brought a negligence suit against Massa and later amended her complaint, adding Massa's insurer, Arthur Zietlow (the neighbor who had given Massa permission to log his property), Zietlow's insurer, the Snowmobile Trails Association, the Northwoods Riders, and General Casualty. Leu's amended complaint alleged that the snowmobile groups negligently breached their duty by not providing appropriate safeguards and warnings on the trail. The Snowmobile Trails Association and the Northwoods Riders moved for summary judgment on the ground that they were immune from liability under the recreational immunity statute. The circuit court initially denied the motion, concluding there were material issues of fact as to whether the two organizations were actually non-profit organizations. However, following a motion for reconsideration and a hearing, the circuit court granted summary judgment to the Snowmobile Trails Association and the Northwoods Riders. Leu now appeals.

STANDARD OF REVIEW

¶ 6. We review grants of summary judgment using the same methodology as the circuit court. Fox v. Catholic Knights Ins. Soc'y, 2003 WI 87, ¶ 17, 263 Wis. 2d 207, 665 N.W.2d 181. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). Immunity under Wis. Stat. § 895.52 is a defense to a negligence claim that might entitle a moving party to judgment. Whether the statute applies in a particular case involves questions of statutory interpretation and the application of law to facts that we review without deference. See Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 349, 575 N.W.2d 734 (Ct. App. 1998).

OCCUPANTS AND RECREATIONAL IMMUNITY

¶ 7. Under Wisconsin's recreational immunity statute, owners and officers, employees, and agents of owners are generally not liable for injuries to those who enter the owner's property to engage in recreational activity. Wis. Stat. § 895.52(2). Owners have no "duty to keep the property safe for recreational activities ... to inspect the property ... [or] give warning of an unsafe condition, use or activity on the property." Id. In the case of non-profit organization owners, this broad grant of immunity does not extend to injuries caused by malicious acts or malicious failures to warn. See Wis. Stat. § 895.52(5).

¶ 8. For the purposes of recreational immunity, an "owner" is either a "person, including a governmental body or nonprofit organization, that owns, leases or occupies property" or a "governmental body or nonprofit organization that has a recreational agreement with another owner." Wis. Stat. § 895.52(1)(d)1. and 2. Leu does not contest the circuit court's decision that the Snowmobile Trails Association and the Northwoods Riders are non-profit organizations, bringing them partially within the statute.

¶ 9. The sole question on appeal therefore is whether the Snowmobile Trails Association and the Northwoods Riders are "owners" according to the statute's first definition of "owner," one who "occupies" the property. In 1987, in a diversity case applying Wisconsin law, the Seventh Circuit concluded that two non-profit organizations — one planned and constructed trails, the other groomed them — were occupants under the state's old recreational immunity statute, Wis. Stat. § 29.68. Smith, 823 F.2d at 1194. Smith noted that the legislature intended the law "to encourage the use of forest and farmlands for many outdoor recreational sports by restricting the common-law liability of the landowner. . . Id. at 1196 (citation omitted). Given the legislature's intent, the court rejected the argument that an occupant was only one "in actual possession" or "exclusive control." Id. at 1198. Such a definition would narrow the statute's applicability by making an "occupant" indistinguishable from an "owner." Id. It would also defeat the legislature's specific goal when it amended the recreational use statute in 1970 to include snowmobiling. Id. By constructing and grooming a particular trail, the two clubs occupied the property with a degree of permanence sufficient for the purposes of the statute. Id. The court did not distinguish between the groups because of the close relationship between the organizations and their complementary functions. Id. at 1195. If one was immune from liability under Wisconsin law, the court concluded, the other was as well. Id.

¶ 10. Leu argues that Smith does not apply because it construes the old recreational immunity statute and, therefore, has no precedential value, and because federal decisions applying Wisconsin law are not binding on this court. See West Bend Mut. Ins. Co v. Berger, 192 Wis. 2d 743, 755, 531 N.W.2d 636 (Ct. App. 1995).

¶ 11. In 1988, however, several years after Wis. Stat. § 895.52 became law, this court approved Smith's construction of "occupant" in Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 490-91, 431 N.W.2d 696 (Ct. App. 1988). Noting that the new recreational immunity statute retained as a definition of "owner" one who "occupies a property," we adopted specific language from Smith. Id. Occupants, we concluded, included persons who have the "actual use of the property without legal title, dominion or tenancy. . . . [T]he term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner." Id. at 490-91. Using that definition, we determined that when the Lion's Club sponsored a fair on the Turtle Lake Village Park grounds, they become an occupier of the property, granting entry to the public for recreational purposes. Id. at 487. Leu is thus correct that Smith does not control the disposition of her case, but incorrect that Wisconsin courts have not adopted the essential elements of the Smith definition of occupant.

¶ 12. Leu directs us to an Arizona case for persuasive authority that Smith's definition of "occupancy" is incompatible with the recreational immunity statute. See Ward v. Arizona, 890 P.2d 1144 (Az. 1995). Ward is not interpreting Wisconsin's law, however, and Arizona courts are required to construe the state's recreational immunity statute strictly. Id. at 1146. Ward's fundamental criticism of Smith is that extending immunity to those who do not control entry into the land does not serve the legislative intent of encouraging private landowners to allow their lands to be used for recreational purposes. Id. at 1148.

¶ 13. Despite Leu's argument, the Wisconsin legislature did not have such a limited idea of what would serve public policy. Wisconsin's recreational immunity statute provides a second definition of "owner"— "governmental body or nonprofit organization that has a recreational agreement with another owner." Wis. Stat. § 895.52(1)(d)2. "Recreational agreement" is then defined as "a written authorization granted by an owner to a governmental body or nonprofit organization permitting public access to all or a specified part of the owner's property for any recreational activity." Wis. Stat. § 895.52(1)(h). As this definition makes clear, the legislature intended to extend liability to nonprofit groups, like snowmobiling associations, or government entities if they obtained the kind of easement at issue in this case. It would be unreasonable to read the statute as allowing a snowmobile association immunity if it were granted an easement directly, but disallowing it if the easement went first to a government entity, which then arranged with the association to manage, maintain, and construct the trails necessary for recreational access. We thus conclude that the Smith definition of "occupant" applies to the Wisconsin recreational immunity statute and the Snowmobile Trail Association and the Northwoods Riders are occupants of the property on which Lonnie Leu was killed under that statute.

¶ 14. Leu argues, however, that even if we conclude the Smith definition of occupant applies, summary judgment is not appropriate because there are material questions of fact about what the clubs actually did and because Smith stressed trail construction as opposed to trail maintenance. We disagree.

¶ 15. As we noted earlier, Smith addressed two organizations which performed complementary functions with respect to snowmobile trails and concluded that those organizations had to he treated similarly for the purposes of recreational immunity. Here, a similar complementarity of function and commonality of purpose unites the two groups. The Snowmobile Trails Association contracted with the County, purchased and maintained most of the grooming machinery, and decided where and how to deploy the volunteer human resources of the Price County riding clubs. The North-woods Riders carried out the essentially managerial decisions of the Snowmobile Trails Association, doing the physical work that makes it possible to maintain and expand Wisconsin's system of snowmobile trails. It is the relative functions of the organizations and their relation to the collective task of maintaining that system that makes them "occupiers" under the statute, not an exact determination of what work the volunteers did or how hard they worked.

¶ 16. Because we conclude that the Snowmobile Trails Association and the Northwoods Riders are "occupants" for the purposes of the recreational immunity statute, Wis. Stat. § 895.52, we affirm the judgment.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       All county riding clubs are members of the Snowmobile Trails Association.

       A malicious act or failure is one that results from "hatred, ill will, a desire for revenge, or inflicted under circumstances where insult or injury were intended." Ervin v. City of Kenosha, 159 Wis. 2d 464, 483, 464 N.W.2d 654 (1991) (adopting the definition of malicious found in Wis JI — Civil 1707 (1990)). Leu does not argue that Becker's actions were malicious nor do we perceive any facts or inferences to support a claim of malice.

       The relevant portion of the statute said "[a]n owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others for hunting, fishing,... or recreational purposes, or to give warning of any unsafe condition or use of or structure or activity on the premises to persons entering for such purposes." Wis. Stat. § 29.68(1). The legislature repealed § 29.68 on May 15, 1984, replacing it, before Smith was decided, with the current recreational immunity statute, Wis. Stat. § 895.52. Smith declined to apply § 895.52 retroactively. Smith v. Sno Eagles Snowmobile Club, 823 F.2d 1193, 1195 (7th Cir. 1987).

        Hall did not specifically apply that definition to snowmobile clubs. Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 431 N.W.2d 696 (Ct. App. 1988).

       This last difference is particularly significant because we construe Wis. Stat. § 895.52 liberally, at the direction of the legislature. See, e.g., Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 638, 547 N.W.2d 602 (1996).

       The court also noted, in what it claimed was in contrast to Smith, that it believed "the relationship of an entity to the premises, not the length and stability of its presence, should primarily determine whether" an entity is an occupier. Ward v. Arizona, 890 P.2d 1144, 1148 (Az. 1995).

       We have found a snowmobile club not to be an occupant of property, but only under very different facts. Mooney v. Royal Ins. Co., 164 Wis. 2d 516, 520-22, 476 N.W.2d 287 (Ct. App. 1991). In Mooney, a snowmobile club was given permission by a town to hold a fund-raising race on one of the town's lakes. The club held the race, cleaned up, and left. Five days later, a snowmobiler was injured when he hit a large mound of frozen snow left behind after the race. We said that the club was not immune from liability for negligence because while an occupier need not be in actual possession or exclusive control of the property, he cannot totally abandon the premises. Id. at 522.

       These material facts are unchallenged. Leu claims there is no evidence the Snowmobile Trails Association actually maintained the trials. She may be correct, but the question is whether that fact is material. Given that snowmobile trails cannot be constructed or maintained without both labor and expensive machinery, the Snowmobile Trail Association's managerial decision to split functions between organizations should not deprive one or both of an immunity they would have had if that decision had not been made.

       This fact is also essentially unchallenged. Leu suggests that the trail that her husband died on might have been a logging road at one time. But unless occupancy depends upon creating new access by constructing a new trail, rather than on maintaining access by grooming an existing trail, that fact is not material.