author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE. JON P. WILCOX, J.

text:
    Trista Auman, a minor, by her guardians, Kevin Auman and Rhonda Auman, and Kevin Auman and Rhonda Auman, in their individual capacity, Plaintiffs-Appellants, v. School District of Stanley-Boyd, Employers Mutual Casualty Co., Security Life Insurance Company of America and Clark County, Defendants-Respondents.
    Supreme Court

      No. 00-2356-FT.

      Oral argument October 2, 2001.

    Decided November 27, 2001.

    2001 WI 125
    (Also reported in 635 N.W.2d 762.)

      For the plaintiffs-appellants there were briefs by Ann N. Knox-Bauer and Salm & Knox-Bauer, Stanley, and oral argument by Ann N. Knox-Bauer.

    For the defendants-respondents there was a brief by Joel L. Aberg, Thomas J. Graham, Jr., and Weld, Riley, Prenn & Ricci, S.C., Eau Claire, and oral argument by Joel L. Aberg.

    An amicus curiae brief was filed by George Burnett and Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay, on behalf of the Wisconsin Academy of Trial Lawyers.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This case comes before this court on certification

by the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1999-2000). The Circuit Court for Chippewa County, Roderick A. Cameron, Circuit Court Judge, granted summary judgment to the School District of Stanley-Boyd, Employers Mutual Casualty Company, Security Life Insurance Company of America, and Clark County (collectively, the defendants), dismissing the complaint of Trista Auman, an 11-year-old child, and her guardians, Kevin and Rhonda Auman (collectively, the plaintiffs). The circuit court concluded that the suit was barred by Wis. Stat. § 895.52, the recreational immunity statute. We reverse the order of the circuit court and remand the cause for further proceedings not inconsistent with this opinion.

¶ 2. The only question presented in this case is one of statutory interpretation: Is a school district immune from liability under Wisconsin's recreational immunity statute, Wis. Stat. § 895.52, for injuries a student suffered during a mandatory school recess period when the injuries were caused by the alleged negligent inspection and maintenance of a school playground and alleged negligent supervision of the student? We conclude that § 895.52 does not apply to the present case and a cause of action is stated when a student sustains injuries on a school playground during a mandatory school recess period as a result of the school district's negligence. Section 895.52 does not bar the suit because the student who is injured during a mandatory school recess period did not "enter" the school district's "property to engage in a recreational activity" as those words are used in § 895.52(2)(a). Trista entered the school property for educational purposes as required by the state's compulsory school attendance and truancy laws. Furthermore, her participation in recess activities was required as part of the school district's curriculum. Therefore, Trista was not engaging in a recreational activity under the statute.

I

¶ 3. For the purposes of summary judgment, the facts are not in dispute. Trista Auman, an 11-year-old child, broke her leg during a mandatory school recess period while sliding down a snow pile located on the school playground. According to Trista's deposition, she was running, jumping, and sliding on the snow pile because it was fun. Ms. Patricia LaMarche, a playground aide, stated that about three days before Trista was injured, the playground supervisors agreed that the snow pile presented a safety issue and that the children should not be allowed to play on it. Nevertheless, Ms. Diana Halterman, the playground supervisor on duty when Trista was injured, did not stop Trista from sliding on the snow pile.

¶ 4. The plaintiffs' complaint alleges that the school district negligently inspected and maintained its premises and failed to provide adequate supervisidn during the mandatory recess period. The defendants moved for summary judgment, claiming governmental immunity and recreational immunity. The circuit court denied summary judgment on the ground of governmental immunity and granted summary judgment in favor of the defendants on the ground that the recreational immunity statute barred the plaintiffs' claims.

¶ 5. This court reviews the grant of summary judgment independent of the determination rendered by the circuit court, applying the same methodology as the circuit court. Summary judgment is appropriate if there is no genuine issue about any material fact and the moving party is entitled to judgment as a matter of law. The parties agree that for purposes of the summary judgment the facts are not in dispute.

II

¶ 6. The issue presented in this case is one of statutory interpretation; we apply the statute to the undisputed facts. This court determines this question of láw independent of the circuit court, but benefits from its analysis.

¶ 7. Section 895.52(2) of the statutes provides, in part, that a property owner does not owe to any person who enters the owner's property to engage in a recreational activity a duty to keep the property safe for recreational activities and is otherwise immune from liability for injuries to any person engaged in recreational activities on the owner's property.

¶ 8. Section 895.52(1)(g) of the statutes sets forth a three-part definition of recreational activity. The first part of the section defines recreational activity as "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity." The second part of the statutory definition of recreational activity lists 29 specific activities denominated as recreational, including tobogganing and sledding. The third part of the statutory definition broadly adds "and any other outdoor sport, game or educational activity."

¶ 9. It is immediately clear that sliding down a snow pile is not one of the activities listecí in § 895.52(1)(g). The fact that Trista's activity is not a listed recreational activity does not determine whether the activity is a recreational activity under the statute. The legislature recognized that it would be impossible to list in the statute every recreational activity. The legislature therefore provided examples of the kinds of activities that are included as recreational activities. The legislature also expressed its intent that courts interpret the statutory definition of recreational activity to include those activities that are substantially similar to the listed activities or undertaken under substantially similar circumstances as the listed activities. Thus, the legislature inferentially excluded activities from the statutory definition that lack commonality with the listed activities.

¶ 10. Sliding down a snow pile is, in the abstract, substantially similar to sledding and tobogganing, which are among the 29 listed activities in the statute at Wis. Stat. § 895.52(1)(g), and Trista stated she was "having fun." Sliding on the snow pile is an outdoor activity and is undertaken for pleasure. "With limited -¡exception, all outdoor activities that children engage in during their idle hours might constitute a recreational activity under § 895.52(1)(g)." That Trista's activity is similar to one of the listed recreational activities and that Trista was having fun does not end our inquiry to determine the application of the recreational immunity statute.

¶ 11. This court has -wrestled with applying the recreational immunity statute to varied fact situations since its enactment. The line between recreational and non-recreational activities is difficult to draw under Wis. Stat. § 895.52, and the issue has been litigated with some frequency. 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.

¶ 12. We have recognized that each recreational immunity case poses an intensely fact-driven inquiry. We have in previous cases stated the test to determine a recreational activity in a number of different, but similar, ways. We repeat the tests we have stated before. Although the injured person's subjective assessment of the activity is pertinent, it is not controlling. A court must consider the nature of the property, the nature of the owner's activity, and the reason the injured person is on the property. A court should consider the totality of circumstances surrounding the activity, including the intrinsic nature, purpose, and consequences of the activity. A court should apply a reasonable person standard to determine whether the person entered the property to engage in a recreational activity. Finally, a court should consider whether the activity in question was undertaken in circumstances substantially similar "to the circumstances of recreational activities set forth in the statute."

¶ 13. In the present case it is helpful to consider the totality of the circumstances and whether the activity in question was undertaken in circumstances substantially similar to the circumstances of recreational activities set forth in Wis. Stat. § 895.52. Trista entered the school district's property to attend school for educational purposes in compliance with Wisconsin law. A critical circumstance is that the compulsory school attendance law requires that "any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours." An adult's failure to comply with the compulsory school attendance law subjects the adult to criminal penalties. Children who do not attend school are truants and are also subject to penalties. In addition, Trista's participation in recess was mandatory. The school district required Trista to participate in recess out of doors as a part of its curriculum. The circumstances surrounding Trista's sliding down the snow pile are not substantially similar to the circumstances of the voluntary recreational activities set forth in Wis. Stat. § 895.52(1)(g).

¶ 14. The defendants contend that Trista's sliding on the snow pile during recess at the Stanley-Boyd Elementary School falls within "educational activity" as that phrase is used in Wis. Stat. § 895.52(1)(g). But the context in which the term "educational activity" is used in § 895.52(1)(g) does not include the activities of an elementary school student during a mandatory school recess period while attending school on a compulsory basis. An educational activity in the context of § 895.52(1)(g) refers to participation in an outdoor learning experience voluntarily entered into by the individual.

¶ 15. The defendants also argue that Trista's attendance at the Stanley-Boyd Elementary School where the injury occurred is not compulsory. They assert that only her attendance at some school is compulsory. We are not persuaded by this argument. The critical factor in the present case that renders her activity during recess as non-recreational under Wis. Stat. § 895.52 is that Trista's attendance at some school is mandatory, with adverse consequences for both Trista and her parents for Trista's failure to attend school.

¶ 16. When we apply the totality of the circumstances and the objectively reasonable person tests to determine whether Trista's activity is recreational under the statute, we conclude that the small part of Trista's school activity that could be considered "recreational" in ordinary parlance does not render her entering the school district's property as entering the property for the purposes of a recreational activity under the recreational immunity statute. Under the objective reasonable person test, not every outdoor activity is a recreational activity nor is every form of child's play a recreational activity under Wis. Stat. § 895.52.

¶ 17. The defendants make a final argument. They rely on Ervin v. City of Kenosha, 159 Wis. 2d 464, 464 N.W.2d 654 (1991), to support their claim of immunity. They contend that in Ervin the court recognized that the legislature expressly intended to supplant the established common law by enacting § 895.52.

¶ 18. In Ervin, two minors drowned while swimming at a municipal beach in the City of Kenosha. The City of Kenosha was not required to provide lifeguards, but nevertheless employed lifeguards. The City did not train the lifeguards in rescue techniques or emergency care. Ervin argued that the City of Kenosha was negligent in failing to train its lifeguards and that the lifeguards were negligent in performing their duties.

¶ 19. The Ervin court recognized that applying the recreational immunity statute conflicted with the City of Kenosha's common-law duty to provide lifeguards in a non-negligent manner. Nonetheless, this court concluded that the City of Kenosha had immunity from liability under Wis. Stat. § 895.52 because the "legislature clearly expressed an intent to change conflicting common law" when it enacted the recreational immunity statute.

¶ 20. The defendants seek to apply the same reasoning in the present case. They recognize that under common law, school districts and their employees owe schoolchildren a duty of reasonable care. They argue that Wis. Stat. § 895.52 clearly expresses the legislature's intent to supersede the conflicting common law regarding the duty of reasonable care. They further argue that schools want their students to go outside and play during recess, that immunity under § 895.52 encourages outdoor activity, and that a school district's liability for injuries sustained during recess could cause school districts to eliminate recess. Thus the defendants conclude that the legislature intended § 895.52 to apply in the present case and that § 895.52 trumps the common law whén a schoolchild engages in outdoor recess.

¶ 21. We agree with the defendants that Wis. Stat. § 895.52 supplants the common law, but Ervin does not govern the present case. The facts oí Ervin are unlike those in this case. In Ervin, the boys entered the beach owned by the City of Kenosha to swim at their leisure. The recreational immunity statute clearly identifies swimming as a recreational activity. The boys' sole purpose in entering the City's property was to participate in a recreational activity listed in the statute.

¶ 22. In contrast to Ervin, Trista went to school for educational purposes in compliance with state law. Her participation in what is a "recreational activity" in common parlance during a mandatory school recess period does not convert the educational purpose of school attendance into a recreational activity under the statute. Furthermore, we are not persuaded, as the defendants argue, that the legislature intended Wis. Stat. § 895.52 to encourage a mandatory recess outside school buildings by giving school districts immunity from liability for an injury to a schoolchild. Recess is a long-standing school activity that predates the enactment of the recreational immunity statute. No reason exists to immunize school districts from liability for not exercising reasonable care in the maintenance of school facilities or supervision of schoolchildren during regular school hours. In earlier versions of the recreational immunity statute the legislature's focus was on owners opening their property for recreational purposes by removing the potential for liability. This focus on opening the property has apparently been de-emphasized by the legislature. The concept of opening the property for recreational purposes has only limited usefulness in applying § 895.52. For the reasons set forth, we do not find Ervin persuasive authority in the present case.

¶ 23. Applying our established fact-specific test, we conclude that the defendants in this case are not immune from liability under the recreational immunity statute. We reverse the circuit court's order dismissing the complaint and remand the cause to the circuit court for further proceedings not. inconsistent with this court's holding.

By the Court. — The order of the circuit court is reversed and the cause is remanded to the circuit court.

JON P. WILCOX, J.

¶ 24. {concurring). I agree with the majority's reasoning and holding in this case. I write separately only because I think that the majority has failed to discuss a particularly strong reason for not immunizing schools under the recreational immunity statute. Wis. Stat. § 120.12 (1999-2000) provides in part:

The school board of a common or union high school district shall:
(5) REPAIR OF SCHOOL BUILDINGS. Keep the school buildings and grounds in good repair, suitably equipped and in safe and sanitary condition at all times. The school board shall establish an annual building maintenance schedule.

Likewise, Wis. Stat. § 121.02(1)(i) provides that "[E]ach school board shall... [p]rovide safe and healthful facilities ..." These two statutes demonstrate the legislature's support for upholding the duty of reasonable care for schools and school districts, and they bolster our refusal to immunize the school district from liability in the present situation.

¶ 25. These statutes, which direct schools and school districts to keep their property safe and healthful, are in conflict with the recreational immunity statute, which would provide that the school, as a property owner, does not owe, "to any person who enters the [school's] property to engage in a recreational activity ... [a] duty to keep the property safe for recreational activities ... [a] duty to inspect the property, ... [or a] duty to give warning of an unsafe condition, use or activity on the property." Wis. Stat. § 895.52(2).

¶ 26. When statutes conflict, we must attempt to reconcile them if possible. Bingenheimer v. DHSS, 129 Wis. 2d 100, 107-08, 383 N.W.2d 898 (1986). Here, the simplest and most obvious way to reconcile these statutes is to find, as the majority does, that the legislature could not have intended to consider mandatory recess a "recreational activity" under § 895.52, see Majority op. at ¶ 2, and that the recreational immunity statute therefore does not apply.

¶ 27. For the foregoing reasons, I respectfully concur.

¶ 28. I am authorized to state that Justice N. PATRICK CROOKS joins this concurrence.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       Wisconsin Stat. § 895.52(2)(a) provides, inter alia, that no owner owes a duty of care "to any person who enters the owner's property to engage in a recreational activity." Section 895.52(2)(b) provides, inter aha, that no owner "is hable 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."

       Wisconsin Stat. § 118.15(1)(a), the compulsory school attendance law, provides:

        Except as provided under pars, (b) to (d) and sub. (4), unless the child is excused under sub. (3) or has graduated from high school, any person having under control a child who is between the ages of 6 and 18 years shall cause the child to attend school regularly during the full period and hours, religious holidays excepted, that the public or private school in which the child should be enrolled is in session until the end of the school term, quarter or semester of the school year in which the child becomes 18 years of age.
      Wisconsin Stat. § 118.16(1)(c) defines truancy as:
      any absence of part or all of one or more days from school during which the school attendance officer, principal or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil, and also means intermittent attendance carried on for the purpose of defeating the intent of § 118.15.

       The Stanley-Boyd Elementary Student Handbook states in relevant part:
      All children are expected to go outdoors for play when the weather permits. It is the responsibility of the parent to see that the child comes to school properly dressed for the season of the year. We feel that if a child is well enough to come to school, he/she is well enough to go outdoors.

       The issue of governmental immunity was not raised by the parties on appeal and is not addressed by this court. The circuit court denied the defendants' motion for summary judgment on the ground of governmental immunity, concluding that whether the actions of the school district were discretionary and whether the accident in question represented a known danger were disputed issues of fact.

       Wis. Stat. § 802.08(2); Meyer v. Sch. Dist. of Colby, 226 Wis. 2d 704, 708, 595 N.W.2d 339 (1999).

       Wisconsin Stat. § 895.52(1)(g) provides:
      "Recreational activity" means any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. "Recreational activity" includes hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, sport shooting and any other outdoor sport, game or educational activity. "Recreational activity" does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.

        Linville v. City of Janesville, 184 Wis. 2d 705, 715, 516 N.W.2d 427 (1994).
      The legislature expressed its intent in 1983 Wis. Act 418, § 1, stating:
      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.

        Minn. Fire & Cas. Ins. Co. v. Paper Recycling of La Crosse, 2001 WI 64, ¶ 43, 244 Wis. 2d 290, 627 N.W.2d 527 (Bradley, J., concurring).

        See, e.g., Minn. Fire, 2001 WI 64; Urban v. Grasser, 2001 WI 63, 243 Wis. 2d 673, 627 N.W.2d 511; Waters ex rel. Show v. Pertzborn, 2001 WI 62, 243 Wis. 2d 703, 627 N.W.2d 497; Meyer, 226 Wis. 2d 704; Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 547 N.W.2d 602 (1996); Seivert v. Am. Family Mut. Ins. Co., 190 Wis. 2d 623, 528 N.W.2d 413 (1995); Szarzynski v. YMCA, 184 Wis. 2d 875, 517 N.W.2d 135 (1994); Linville, 184 Wis. 2d 705. See also cases cited in Seivert, 190 Wis. 2d at 627 n.2.

        Urban, 2001 WI 63 at ¶ 12.

        Urban, 2001 WI 63 at ¶ 12; Verdoljak, 200 Wis. 2d at 636.

        Minn. Fire, 2001 WI 64 at ¶¶ 21, 29.

       Minn. Fire, 2001 WI 64 at ¶ 23; Urban, 2001 WI 63 at ¶ 14; Meyer, 226 Wis. 2d at 712.

        Minn. Fire, 2001 WI 64 at ¶ 21; Urban, 2001 WI 63 at ¶ 13; Meyer, 226 Wis. 2d at 712; Verdoljak, 200 Wis. 2d 624; Seivert, 190 Wis. 2d at 631; Linville, 184 Wis. 2d 705.

        Minn. Fire, 2001 WI 64 at ¶ 21; Meyer, 226 Wis. 2d at 712.

        Seivert, 190 Wis. 2d at 630 (quoting 1983 Wis. Act 418, § 1); Minn. Fire, 2001 WI 64 at ¶ 20.

       See Wis. Stat. § 118.15(1)(a) (entitled "Compulsory School Attendance").

       See Wis. Stat. § 118.15(5)(a); State v. Pamela White, 180 Wis. 2d 203, 509 N.W.2d 434 (1993) (mother convicted of misdemeanor for failing to take measures to assure the child's regular attendance at school in compliance with the compulsory education statute).

       See Wis. Stat. § 118.16(6)(a) (stating potential penalties to children for truancy). >

        Minn. Fire, 2001 WI 64 at ¶ 30.

       The court in Ervin stated that, although the provisions of Wisconsin's recreational immunity statute conflict with established common-law rights of injured individuals, the statutorily granted immunity supersedes the common law. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 476, 464 N.W.2d 654 (1991). See also 1983 Wis. Act 418, § 1.

        See Ervin, 159 Wis. 2d at 469-71.

        See Ervin, 159 Wis. 2d at 476.

       Wis. Stat. § 895.52(1)(g).

        Urban, 2001 WI 63 at ¶ 12.
      Prior to 1984, the legislative intent was different. Recreational immunity was created by § 29.68, ch. 89, Laws of 1963, which explained the statute as "relating to the limitations on liability of landowners who open private lands for recreational purposes." Although the legislature redefined the intended scope of the statute several times, it remained specific to "opened" property. See Verdoljak, 200 Wis. 2d at 633. The legislature repealed Wis. Stat. § 29.68 (1963) and enacted Wis. Stat. § 895.52 (1983). The 1983 statute no longer described the recreational immunity statute as limiting the liability of landowners who open private lands for recreational purposes and focused instead on limiting the liability of a landowner to a person who enters the owner's property to engage in a recreational activity. See Verdoljak, 200 Wis. 2d at 632-634.
      This case once again demonstrates the need for the legislature to review this statute. See Wis. Stat. §§ 13.83(1)(c)1, 13.93(2)(d); see also Minn. Fire, 2001 WI 64 at ¶¶ 37-45 (Bradley, J., concurring, joined by Abrahamson, C.J.), ¶ 69 (Wilcox, J., dissenting); Waters, 2001 WI 62 at ¶¶ 52-53 (Abra-hamson, C.J., concurring).

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.


source: Caselaw Access Project

author: DIANE S. SYKES, J. DAVID T. PROSSER, J. ANN WALSH BRADLEY, J.

license: Public Domain

text:
    Danny R. Peterson, Plaintiff-Appellant-Petitioner, State of Wisconsin Department of Health and Family Services, and Community Living Alliance, Plaintiffs, v. Midwest Security Insurance Company, Defendant-Respondent, Wisconsin Carpenters' Health Fund, and American Family Mutual Insurance Company, Defendants.
    Supreme Court

      No. 99-2987.

      Oral argument September 17, 2001.

    Decided December 7, 2001.

    2001 WI 131
    (Also reported in 636 N.W.2d 727.)

      For the plaintiff-appellant-petitioner there were briefs by Daniel A. Rottier, Virginia M. Antoine and Habush, Habush, Davis & Rottier, S.C., Madison, and oral argument by Daniel A. Rottier.

    For the defendant-respondent there was a brief by James W. Mohr, Jr., and Mohr & Anderson, S.C., Hartford, and oral argument by James W. Mohr, Jr.

   DIANE S. SYKES, J.

¶ 1. This case requires us to determine who qualifies as an "owner" of "property" for purposes of the recreational immunity statute, Wis. Stat. § 895.52 (1997-98), which immunizes property owners against liability for injuries to persons engaged in recreational activity on their property. More specifically, the issue is whether the owner of a tree stand used for deer hunting is entitled to recreational immunity when he does not also own the real property upon which the tree stand is situated.

¶ 2. The plaintiff, Danny Peterson, was injured when the tree stand from which he was bow hunting gave way and he fell to the ground. At the time of his injury, Peterson was hunting with permission on land owned by Vernon and Culleen Peterson. The tree stand, however, had been built and was owned by the Petersons' nephew, Harold Shaw.

¶ 3. Peterson sued Shaw's insurer. The circuit court dismissed the case, concluding that the recreational immunity statute applied because 1) Peterson was engaged in recreational activity when he was injured; 2) the tree stand from which he fell was "property" under the statute; and 3) Shaw was the owner of the tree stand. The court of appeals affirmed.

¶ 4. The recreational immunity statute confers immunity on any person who "owns, leases or occupies property" for injuries to those engaged in recreational activity on the property. Wis. Stat. § 895.52(1)(d)1 (1997-98). "Property" is defined in the statute as "real property and buildings, structures and improvements thereon, and the waters of the state." Wis. Stat. § 895.52(1)(f) (1997-98). A tree stand is a "structure" as that term is commonly and ordinarily understood. The statute does not require that the owners of "buildings, structures and improvements" also own the underlying real property in order to qualify for immunity. Accordingly, as the owner of the tree stand, Shaw is entitled to immunity under the statute, even though he did not also own the real property on which the tree stand was built. We therefore affirm.

H — 1

¶ 5. Vernon and Culleen Peterson own 121 acres of wooded land in Dane County. They permitted their nephew, Harold Shaw, to hunt deer on their property, and also allowed him to build two deer stands in the woods. Each stand was basically a small wooden platform "cinched in against the tree with a chain" about 20 feet off the ground, accessible by way of a metal ladder.

¶ 6. In the fall of 1996, the plaintiff, Danny Peterson, accompanied Shaw to the Petersons' property. The Petersons gave Danny Peterson permission to hunt on their property. Shaw gave Peterson permission to use the tree stands. Peterson hunted on the property two or three times that year.

¶ 7. In October 1997, Peterson returned to the property to bow hunt for deer. Peterson decided to use one of Shaw's tree stands. He climbed up the ladder and through the branches until he was level with the tree stand's platform. After testing the tree stand's ability to hold his weight, Peterson stepped out onto the platform. He spotted a deer less than five minutes later. Standing up on the tree stand to get a shot at the deer, Peterson turned his ankle "just a little bit." The tree stand collapsed "like a trapdoor." Peterson fell to the ground and was seriously injured.

¶ 8. Peterson sued Shaw's liability insurer, Midwest Security Insurance Company, alleging that the tree stand had been negligently built and maintained, and that Shaw had negligently represented that the tree stand was "in good condition" and "safe to use." Midwest Security moved for summary judgment, asserting, among other things, that Shaw was immune under Wis. Stat. § 895.52 (1997-98), the recreational immunity statute.

¶ 9. The Dane County Circuit Court, the Honorable Patrick J. Fiedler, granted the motion, noting that hunting was specifically enumerated as a "recreational activity" in the statute, and concluding that the tree stand constituted a "structure" or "improvement" and therefore fell within the statute's definition of "property." Because Shaw was the owner of the tree stand, the circuit court held that he was entitled to immunity. The court of appeals affirmed, and we granted review.

II

¶ 10. We review the circuit court's grant of summary judgment de novo, using the same methodology as the circuit court. Waters v. Pertzborn, 2001 WI 62, ¶ 37, 243 Wis. 2d 703, 627 N.W.2d 497. A court grants summary judgment when "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).

¶ 11. The parties agree that as to the applicability of the recreational immunity statute, there are no material factual disputes. The case turns on the interpretation and application of a statute, which is a question of law that we review de novo. Shannon v. Shannon, 150 Wis. 2d 434, 447, 442 N.W.2d 25, 31 (1989).

¶ 12. The recreational immunity statute immunizes property owners against liability "for any injury to a person engaged in a recreational activity on the owner's property." Crowbridge v. Village of Egg Harbor, 179 Wis. 2d 565, 569, 508 N.W.2d 15, 17 (Ct. App. 1993). If the statute applies, a property owner owes no duty of inspection, warning or safety to "any person who enters the owner's property to engage in a recreational activity," and is otherwise immune from liability for injuries to any person engaged in recreational activity on the owner's property. Wis. Stat. § 895.52(2)(a) and (b).

¶ 13. While the inquiry in many recreational immunity cases focuses on whether the injured plaintiffs "activity" was "recreational" within the meaning of the statute, no one here disputes that Peterson was engaged in a "recreational activity" as that term is defined in Wis. Stat. § 895.52(1)(g). Hunting is specifically listed as a "recreational activity" in the statutory definition. Wis. Stat. § 895.52(1)(g).

¶ 14. Whether Shaw is entitled to immunity depends upon whether he qualifies as a property owner under the statute. "Owner" and "property" are defined terms. An "owner" is "a person ... that owns, leases or occupies property." Wis. Stat. § 895.52(1)(d)1. "Property" is "real property and buildings, structures and improvements thereon, and the waters of the state." Wis. Stat. § 895.52(1)(f).

¶ 15. The parties agree that Shaw owned the tree stand from which Peterson fell. Their dispute centers on whether the tree stand by itself is "property" under the statute. The circuit court and the court of appeals concluded that the tree stand was a "structure" and therefore "property" within the meaning of Wis. Stat. § 895.52(1)(f). We agree.

¶ 16. The term "structure" is not defined in Wis. Stat. § 895.52, and is therefore given its common and ordinary meaning. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 483-84, 464 N.W.2d 654, 662 (1991). A "structure" is "something constructed," or "something made up of a number of parts that are held or put together in a particular way." 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." Black's Law Dictionary, 1424 (6th ed. 1991).

¶ 17. Shaw's tree stand was made of wood and "cinched in against the tree with a chain," and had a metal ladder. In other words, it was constructed, built, or put together in a particular way, and was made up of parts joined together. The tree stand was therefore a "structure" as that term is commonly and ordinarily understood. Shaw was therefore an owner of "property" within the meaning of the recreational immunity statute.

¶ 18. Peterson reads the definition of "property" differently. He argues that the phrase "buildings, structures and improvements" merely modifies "real property," so that a person who owns a building, structure or improvement but does not also own the underlying real property does not own "property" within the meaning of the statute. He interprets the statute to create two categories of "property": 1) real property, along with any buildings, structures, or improvements thereon; and 2) the waters of the state. He bases this interpretation on the lack of punctuation between the phrases "real property" and "buildings, structures and improvements" in the definition.

¶ 19. We decline to give the absence of a comma such interpretive significance. Peterson's punctuation-based interpretation operates to impose a requirement that does not appear on the face of the statute: that the owner of a building, structure or improvement implicated in a recreational injury must also own the underlying real property in order to own "property" as that term is defined in the statute. But the statute does not say " '[p]roperty' means real property and buildings, structures and improvements thereon that are owned by the real property owner," and we cannot rewrite it in the exercise of interpreting it. See State v. Martin, 162 Wis. 2d 883, 907, 470 N.W.2d 900, 910 (1991)("Our task is to construe the statute, not to rewrite it by judicial fiat."). According to the unambiguous language of the statute, a person who owns a "building, structure or improvement" on real property owns "property" under the statute, regardless of whether he also owns the underlying real estate. Where the language of a statute is clear and unambiguous, we do not look beyond it to ascertain its meaning. Dieter v. Chrysler Corp., 2000 WI 45, ¶ 21, 234 Wis. 2d 670, 610 N.W.2d 832.

¶ 20. This interpretation is consistent with Doane v. Helenville Mutual Insurance Co., 216 Wis. 2d 345, 352, 575 N.W.2d 734, 737 (Ct. App. 1998), in which the court of appeals concluded that the definition of "property" in Wis. Stat. § 895.52(1)(f) basically "delineates three categories of property whose owners may qualify for immunity: (1) real property; (2) buildings, structures and improvements thereon; and (3) waters of the state."

¶ 21. This interpretation is also consistent with the expression of legislative purpose that accompanied the repeal of the old recreational immunity statute, Wis. Stat. § 29.68, and its replacement by Wis. Stat. § 895.52:

Legislative intent. 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. The act is intended to overrule any previous Wisconsin supreme court decisions interpreting section 29.68 of the statutes if the decision is more restrictive than or inconsistent with the provisions of this act.

1983 Wis. Act 418, § 1.

¶ 22. Thus, while it has often been said that" [t]he intent of sec. 895.52, Stats., is to encourage landowners to open up their land for recreational activity," Crowbridge, 179 Wis. 2d at 572 (citing Ervin, 159 Wis. 2d at 475), it is abundantly clear from the language of the statute and the statement of legislative intent that the purpose of the statute is broader, and recreational immunity is not in fact limited only to landowners.

¶ 23. As noted above, the legislature specified that Wis. Stat. § 895.52 is to be "liberally construed in favor of property owners to protect them from liability." 1983 Wis. Act 418, § 1; see also Ervin, 159 Wis. 2d at 476; Sievert v. American Family Mut. Ins. Co., 190 Wis. 2d 623, 630, 528 N.W.2d 413, 417 (1995); Schultz v. Grinnell Mut. Reinsurance Co., 229 Wis. 2d 513, 518, 600 N.W.2d 243, 246 (Ct. App. 1999); Stann v. Waukesha County, 161 Wis. 2d 808, 825, 468 N.W.2d 775, 782 (Ct. App. 1991). Peterson's interpretation operates to exclude from the definition of "property" any building, structure or improvement owned by someone other than the real property owner, or, conversely, to include only those buildings, structures or improvements that are owned by the real property owner. This sort of restrictive interpretation is inconsistent with the language of the statute and the legislative directive that it be liberally construed in favor of immunity for property owners.

¶ 24. Accordingly, we conclude that a person who owns a "building, structure or improvement" on real property owns "property" as that term is defined in Wis. Stat. § 895.52(1)(f), even if he does not own the underlying real property. Shaw's tree stand was a "structure" as that term is commonly and ordinarily understood. Therefore, Shaw owned "property" within the meaning of the recreational immunity statute. Because Peterson was engaged in a specifically enumerated "recreational activity" — deer hunting — when he fell from Shaw's tree stand and was injured, Shaw is entitled to recreational immunity under Wis. Stat. § 895.52(2). Summary judgment dismissing the case was therefore appropriate, and we affirm the decision of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

DAVID T. PROSSER, J.

¶ 25. 0concurring). This case presents a question of statutory interpretation. Our objective, as always, is to discern the intent of the legislature. Peters v. Menard, Inc., 224 Wis. 2d 174, 184, 589 N.W.2d 395 (1999). If the language of the statute clearly and unambiguously sets forth the legislative intent, the court has a duty to apply that intent to the case and not look beyond the text for a different meaning. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 365, 597 N.W.2d 687 (1999). When one of several interpretations is possible, the court must ascertain legislative intent from the language of the statute in relation to a number of extrinsic factors including the legislative object intended to be accomplished. Kelley Co. v. Marquardt, 172 Wis. 2d 234, 248, 493 N.W.2d 68 (1992).

¶ 26. The punctuation in Wis. Stat. § 895.52(1)(f) makes the subsection ambiguous in the sense that reasonable minds could differ as to how many categories of property the subsection envisions. Cf. Hacker v. State Dep't of Health and Social Services, 197 Wis. 2d 441, 455, 541 N.W.2d 766 (1995). This ambiguity permits us to look beyond the text for the scope, history, context, and subject matter of the statute, as well as its purpose or object. See State v. Piddington, 2001 WI 24, ¶ 14, 241 Wis. 2d 754, 623 N.W.2d 528, cert. denied, 122 S.Ct. 65 (2001); Clark v. American Family Mut. Ins. Co., 218 Wis. 2d 169, 173, 577 N.W.2d 790 (1998).

¶ 27. Wisconsin Stat. § 895.52 creates a very broad recreational immunity with certain exceptions. This immunity applies to owners of property and to agents of owners. Wis. Stat. § 895.52(2). An owner is defined to include a "person. .. that owns, leases or occupies property." Wis. Stat. § 895.52(1)(d)1. To prevent summary judgment, the petitioners must show that Harold Shaw was not an owner (in any of three senses) or an agent of an owner of "property."

¶ 28. The statute defines "property" as follows: " 'Property' means real property and buildings, structures and improvements thereon, and the waters of the state, as defined under s. 281.01(18)." Wis. Stat. § 895.52(1)(f).

¶ 29. We should not overlook the obvious. The definition of "property" applies to more than land. It applies to "buildings, structures and improvements" on land. The legislature must have had good reason for including more than land in its definition.

¶ 30. There should be no question that a tree stand is a "structure" and that this structure was owned by Harold Shaw.

¶ 31. Petitioners contend, however, that the statutory definition of "property" requires an ownership linkage between land and any building, structure, or improvement on the land — that a building alone, or a structure alone, or an improvement alone is not "property" within the statute. This contention is based upon the proposition that the definition creates only two categories of property: (1) real property along with any buildings, structures and improvements on that property; and (2) the waters of the state. The dissent summarizes the petitioners' position: "if the statute defines only two categories of 'property,' the owner of a structure, building, or improvement may enjoy immunity only if that owner also owns the underlying land." Dissent at ¶ 46.

¶ 32. The petitioners' position may he stated as follows: An owner is a person that owns "property," that is, "real property and buildings, structures and improvements thereon." Shaw owned a "structure" on real property but he did not own the real property. Therefore, Shaw did not own "property" as defined under the statute.

¶ 33. There is a serious flaw in this formulation. If a person does not own "property" unless he or she owns "real property" and the "buildings, structures and improvements" on that real property, then a person who owns land but does not own the "buildings, structures and improvements" on that land does not own "property" and is presumably not immune. This result follows a literal reading of the two-category definition but is absurd. An even more absurd reading of the two-category definition is that the owner of "real property" is not immune unless the real property has "buildings, structures and improvements thereon."

¶ 34. The two-category definition of property must be scrutinized in other ways. For instance, the statute provides that an owner is a person that owns, leases or occupies real property and buildings, structures and improvements thereon. For purposes of this statute, a person who qualifies as a lessee or occupier of property has as much right to assert recreational immunity as the person who holds title to the property. The proposition that an owner of a structure, building, or improvement may enjoy immunity only if the owner also owns the underlying land unravels if we state the parallel proposition that the lessee of a structure, building, or improvement may enjoy immunity only if the lessee leases the underlying land, because the latter proposition would severely limit recreational immunity for lessees.

¶ 35. The two-category analysis appears to view buildings, structures, and improvements as relatively unimportant to the recreational immunity at issue. The petitioners' brief forthrightly acknowledges examples of buildings and structures that are integrally related to recreation: a washroom at a campground, Szarzynski v. YMCA, 184 Wis. 2d 875, 517 N.W.2d 135 (1994); a pier on a lake, Crowbridge v. Village of Egg Harbor, 179 Wis. 2d 565, 508 N.W.2d 15 (Ct. App. 1993); a beach house at the beach, Stann v. Waukesha County, 161 Wis. 2d 808, 468 N.W.2d 775 (Ct. App. 1991); and a swing in a park, Kruschke v. City of New Richmond, 157 Wis. 2d 167, 458 N.W.2d 832 (Ct. App. 1990). But it denies that the legislature intended to afford immunity if the owners of such buildings or structures do not also own the underlying land. Precise logical constructs do not work very well with such enumerated recreational activities as "horseback riding," "ballooning," "hang gliding," and "climbing observation towers." See Wis. Stat. § 895.52(1)(g). Did the legislature really intend to deny immunity to the owner of an "observation tower" if the owner of the tower does not also own the underlying land?

¶ 36. For this court to rely on very subtle distinctions to resolve this case would not only miss the big picture but also invite litigants to explore whether condominium owners, utilities that own utility poles but not the underlying land, and land contract purchasers do not have recreational immunity because their ownership of buildings or structures on recreational property is somehow incomplete.

¶ 37. "The life of the law has not been logic: it has been experience." In this case, the logic of grammatical rules fails to account for the legislative history of the statute.

¶ 38. The 1983 legislature approved an expansive revision of recreational immunity. 1983 Wis. Act 418. The revision included repeal of Wis. Stat. § 29.68, which provided in part that "[a]n owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others for ... recreational purposes ... except as provided in sub. (3)." Wis. Stat. § 29.68(1) (1981-82). This statute defined "premises" to include "lands, private ways and any buildings, structures and improvements thereon." Wis. Stat. § 29.68(5)(a) (1981-82).

¶ 39. The bill that revised the law was 1983 Senate Bill 586. When it was first introduced, the bill carried the following definition of property:" 'Property' means real property, wherever located, lakes and streams adjacent to real property, and personal property thereon." Legislative Reference Bureau Drafting File for 1983 Wis. Act 418, 1983 Senate Bill 586 (as introduced February 1, 1984).

¶ 40. A Senate substitute amendment provided a new definition of property:

(f) "Property" means any of the following:
1. Unplatted real property owned by any person and located outside the corporate limits of a city or village, and personal property thereon.
2. Unplatted real property within the corporate limits of a city or village with a population of less than 2,500, and personal property thereon.
3. Platted or unplatted real property which is within the corporate limits of a city or village and which is subject to a recreational agreement, and personal property thereon.
4. Waters of the state, as defined under s. 144.01(19), whether or not adjacent to the property described under subd. 1 to 3.

Legislative Reference Bureau Drafting File for 1983 Wis. Act 418, Senate Substitute Amendment 1 to 1983 Senate Bill 586.

¶ 41. The Senate approved the substitute amendment and sent the amended bill to the Assembly where it was changed. Legislative Reference Bureau Drafting File for 1983 Wis. Act 418, Legislative History of 1983 Senate Bill 586. The drafting file indicates that the Wisconsin Paper Council submitted a handwritten amendment on behalf of Representative Tommy Thompson to this effect: Property "means real property and any buildings, structures and improvements thereon under public or private ownership, and the waters of the state. ..." Legislative Reference Bureau Drafting File for 1983 Wis. Act 418, Drafting Request (March 28, 1984). The Legislative Reference Bureau took this language and prepared an amendment that read: " 'Property'" means real property and buildings, structures and improvements thereon, and the waters of the state, as defined under 144.01(19)." Legislative Reference Bureau Drafting File for 1983 Wis. Act 418, Assembly Amendment 1 to 1983 Senate Bill 586.

¶ 42. This history demonstrates that the present definition was not written under laboratory conditions, free of historical and political influence. For instance, the word "thereon" appeared in prior law and in every draft of the bill with varying implications. It appeared in a definition conceived outside the legislature. The record also shows evidence of the "serial comma rule" in some texts but not in others. Punctuation in the texts is not consistent. Hence, it would be very difficult to conclude that the punctuation now before the court dictates a substantive result different from the one reached by the court.

¶ 43. Consequently, I support the majority's conclusion that Wis. Stat. § 895.52 "does not require that the owners of 'buildings, structures and improvements' also own the underlying real property in order to qualify for immunity." Majority op. at ¶ 4. This conclusion fairly reflects the intent of the legislature.

ANN WALSH BRADLEY, J.

¶ 44. (dissenting). The recreational immunity statute defines "property" as: "real property and buildings, structures and improvements thereon, and the waters of the state."

¶ 45. The essence of the majority opinion rests on its conclusion that this definition of property unambiguously creates three distinctly defined categories of property. Yet, the majority is able to reach this conclusion only by dismissing or ignoring rules of grammar and glossing over the ambiguity inherent in this definition. I conclude that the statute's definition of property is ambiguous and that the majority's bright-line, three-category interpretation conflicts with the legislative intent to provide immunity for outdoor activity.

¶ 46. The parties have framed the question of immunity in this case as dependent on whether the statute creates two or three categories of property. According to Peterson, if the statute defines only two categories of property, the owner of a structure, building, or improvement may enjoy immunity only if that owner also owns the underlying land. If, however, the statute defines three categories of property under the majority approach, then an owner of a structure, building, or improvement is immune regardless of the ownership of the land on which that structure, building, or improvement stands. Rather than focusing on whether there are two or three categories, I conclude that there are several constructions of the definition of property.

I. USE OF GRAMMAR

¶ 47. It is only by selectively dismissing or ignoring the legislature's use of commas that the majority is able to avoid the ambiguity in the statute and give it a reading that creates three distinctly defined categories of property. The majority declares, "[w]e decline to give the absence of a comma such interpretive significance." Majority op. at ¶ 19.

¶ 48. I question whether the legislature's choice of punctuation in a statute may be dismissed so easily. Case law abounds with disputes that revolve around the placement of a comma in a statute or other writing. See State ex rel. Ahlgrimm v. State Elections Bd., 82 Wis. 2d 585, 590, 263 N.W.2d 152 (1978) (use of comma after phrase in statute provides grammatical support for particular conclusion); see also State v. Stepniewski, 105 Wis. 2d 261, 275, 314 N.W.2d 98 (1982); Mahon v. Security First Nat'l Bank, 56 Wis. 2d 171, 179, 201 N.W.2d 573 (1972); Baker v. McDel Corp., 53 Wis. 2d 71, 79, 191 N.W.2d 846 (1971) ("[w]e cannot ignore punctuation when interpreting a contract"); Georgiades v. Glickman, 272 Wis. 257, 263, 75 N.W.2d 573 (1956) ("the insertion of the comma. . . does present an issue of interpretation"); Jauqet Lumber Co. v. Kolbe & Kolbe Millwork Co., 164 Wis. 2d 689, 700, 476 N.W.2d 305 (Ct. App. 1991) ("[f|or the trial court's reading to be correct there would have to be a comma inserted").

¶ 49. The sentence we are interpreting in subsection (f) defines property as "real property and buildings^ structures and improvements thereon;, and the waters of the state." (Emphasis added.) There are two commas in the above quoted definition. Why is that important to note? The foundation of the majority opinion rests on dismissing the placement of the first comma and completely ignoring the second comma. If the majority acknowledges the placement of these commas, it cannot reach its conclusion that the statute unambiguously creates immunity for owners of three distinctly defined categories of property.

¶ 50. Admittedly, the rules of grammar are only tools to assist in interpretation and should not be mechanistically applied at the expense of a natural reading of the text and its purpose. Here, however, in examining a short, 14-word definition, the majority discards or ignores not one, not two, but three rules of grammar. Essentially, without explanation, the majority attempts to divorce its interpretation from the accepted use of grammar. Such an attempt calls into question the validity of the majority's approach.

The First Comma

¶ 51. The majority's interpretation violates the rule of the serial comma: in a series of three or more, a comma shall appear after the. first term or category listed. See The Gregg Reference Manual 15 (9th ed. 2001). The majority contends that the first distinct category listed is "real property." Thus, a comma should appear after this first category — but none appears. Instead, the first comma appears after the word "buildings." Such a placement is inconsistent with the majority's interpretation. The majority cannot reconcile its interpretation with the legislature's placement of this comma. Unable to explain it, the majority dismisses the placement of the comma as insignificant.

The Second Comma

¶ 52. A review of the surrounding text of the statute demonstrates that the drafter of the statute adheres to the rule: in a series of three or more, no comma is used preceding the final conjunction. Let me illustrate.

¶ 53. In the text of the recreational immunity statute, the definition of "recreational activity" immediately follows the sentence that we are interpreting in this case. The definition contains a serial listing. "Recreational activity" is defined as an activity undertaken "for the purpose of exercise, relaxation or pleasure." Consistent with the rule, no comma is used preceding the final conjunction, "or."

¶ 54. Likewise, the next sentence in the text also contains a serial listing of three or more terms which concludes with "any other sport, game or educational activity." Again, consistent with the rule, no comma is used before the final conjunction.

¶ 55. The majority's interpretation of three distinct categories of property, however, is inconsistent with the rule. The drafter placed a comma before the conjunction, "and." Such a placement suggests that the drafter did not intend to create three categories.

¶ 56. The opinion of the majority fails to discuss or even acknowledge the placement of the second comma. Instead, it ignores it. The majority offers no explanation why the surrounding text of the statute adheres to the rule while the majority's interpretation is inconsistent with the rule.

The Use of the Term "thereon"

¶ 57. The majority concludes that "buildings, structures and improvements thereon," is one of three clearly distinct categories. In arriving at this conclusion, it ignores the dictionary meaning of "thereon." The term means "on that" or "concerning that subject." Webster's New Universal Unabridged Dictionary 1894 (2d ed. 1983) (emphasis added).

¶ 58. The definition of property set forth in subsection (f) states: "real property and buildings, structures and improvements thereon, and the waters of the state." If the drafter had intended "buildings, structures and improvements thereon," to be a distinct category, the statute should read "buildings, structures and improvements on real property." Instead, the drafter used the term "thereon," which signals that the buildings, structures and improvements are to be on that specific real property referred to in the first part of the definition. The plain meaning of the term "thereon" conflicts with the majority's conclusion that the drafter clearly intended to create three distinctly defined categories of property.

II. THE DEFINITION OF "PROPERTY" IS AMBIGUOUS

¶ 59. We cannot ignore punctuation when interpreting a statute. The above discussion demonstrates, at the very least, that the definition of "property" is ambiguous. The majority is simply incorrect in its conclusion that the statute clearly and unambiguously creates immunity for owners of three distinctly defined categories of property.

¶ 60. I conclude that there are several constructions of the language in subsection (f). First, as Peterson advances, the definition could be interpreted to identify two categories of property: (1) real property along with the buildings, structures, and improvements on that real property, and (2) the waters of the state. Second, as a variation on Peterson's approach, the definition could be interpreted to include three categories, but a different three than those identified by Midwest and the majority: (1) real property, (2) buildings, structures and improvements on that real property, and (3) the waters of the state. Third, as Midwest argues, the definition could be interpreted to identify the following three categories: (1) real property, (2) any buildings, structures, and improvements on any real property, and (3) the waters of the state. Fourth, the definition could be interpreted to identify three categories of property, but again a different three than those identified by Midwest and the majority: (1) real property and buildings, (2) structures and improvements thereon, and (3) the waters of the state. Rather than addressing the ambiguity, the majority summarily concludes that the "clear" language is consistent with legislative intent.

III. LEGISLATIVE INTENT

¶ 61. Having concluded that the definition of "property" is ambiguous, I look to the purpose of the statute as evidence of legislative intent. McDonough v. DWD, 227 Wis. 2d 271, 277, 595 N.W.2d 686 (1999); Miller v. Mauston School Dist., 222 Wis. 2d 540, 548, 588 N.W.2d 305 (Ct. App. 1998). Based on the purpose of the recreational immunity statute, it is difficult to determine that the legislature intended to create the three categories the majority has identified.

¶ 62. The purpose of the statute focuses on recreational activity. Because recreational activity is defined as outdoor activity under the statute, it makes little sense for the majority to define all buildings and structures as "property." The majority's definition of property that includes any buildings and structures, regardless of where they stand, can hardly he said to comport with the idea that recreational activity takes place outdoors. How does one enter a building or structure in order to engage in an outdoor activity?

¶ 63. Although I agree with the majority's analysis of the legislative purpose that accompanied the repeal of the old recreational immunity statute, Wis. Stat. § 29.68, and its replacement with Wis. Stat. § 895.52, this analysis offers little assistance in resolving the issues in this case. The majority notes that the purpose of the statute has been stated as: to immunize "property owners" against liability "for any injury to a person engaged in a recreational activity on the owner's property." Majority op. at ¶ 12. However, this statement of purpose serves only to beg the question in this case because it says nothing about who is an "owner" or what is "property," which are precisely the issues before us.

¶ 64. In short, the recreational immunity statute, by its very essence, contemplates activities that take place out-of-doors. Nonetheless, the majority has immunized an entire class of property owners, where the underlying property, by its very nature, will usually encompass indoor activity. In this case, the fact that Peterson was hunting upon a "structure" that happened to be nothing more than a non-enclosed platform attached to a tree obscures the breadth of the majority's three-category rule. The result may appear to comport with the legislative intent in this case, but what of others down the road?

¶ 65. I disagree with the majority's basic premise that the statute unambiguously creates immunity for owners of three distinctly defined categories of "property." Additionally, I conclude that the majority's broad definition cannot be what the legislature intended. Accordingly, I respectfully dissent.

       Vernon and Culleen Peterson are not related to the plaintiff in this action.

       Harold Shaw was not named as a defendant. He died in 1998.

       In addition to asserting recreational immunity, Midwest Security also argued that Shaw was not negligent, that Peterson's claim relied upon evidence inadmissible under the Dead Man's Statute, and that the claim was barred by laches. Because we, like the court of appeals, resolve this case under the recreational immunity statute, we do not address the alternative arguments.

       All statutory references are to the 1997-98 version of the Wisconsin Statutes unless otherwise indicated.

       The statute contains several exceptions not at issue here. See Wis. Stat. § 895.52(3)-(6).

        See also Ruggero J. Aldisert, The Judicial Process § 4 at 175 (American Casebook Series 1976)(quoting Lord Blackburn in River Wear Comm'rs v. Adamson, 2 App. Cas. 742, 746 (H.L. 1877)) (" 'But it is to be borne in mind that the office of the judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the court injudicious; and I believe that it is not disputed that what Lord Wensleydale used to say is right, namely that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear.'").

       The dissent argues that our reading of the statute violates the rules of grammar and punctuation. Dissent at ¶¶ 47-55. We do not disagree that courts sometimes look to grammatical rules when interpreting legal texts. But interpreting a legal text is not like diagramming a sentence or correcting an English paper. The rules of grammar and punctuation should not be applied at the expense of a natural, reasonable reading of the statutory language (taking into account the context in which it appears and the purpose of the statute), or when the result is an expansion or contraction of the statute contrary to its terms. Here, strict adherence to the "rule of the serial comma" as advocated by the dissent operates to add a substantive requirement to the statute that it otherwise does not contain.

       The circuit court also held that Shaw was an "occupier" of property under the statute. Because we conclude that Shaw owned "property" as that term is defined in the statute, we need not address whether Shaw also, or alternatively, "occupied" property.

       The dissent contends that our interpretation of the statute does not "comport with the idea that recreational activity takes place outdoors. How does one enter a building or structure in order to engage in an outdoor activity?" Dissent at ¶ 62. The suggestion seems to be that one almost never enters into a building or structure to engage in outdoor activity. However, in addition to the tree stand at issue in this case (which the dissent apparently concedes is a structure used for outdoor activity, see dissent at ¶ 64), there are other buildings that one does enter for purposes of engaging in outdoor recreational activity: open air park pavilions, observation towers, gazebos, or screen houses used for picnics, and so on.

       The parties pay little attention to the potential argument that Harold Shaw was an "agent" of Vernon and Culleen Peterson.

       Oliver Wendell Holmes Jr., The Common Law 1 (1881) (based upon 1880 Lowell Lecture).