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

text:
    Donald Urban and Susan Urban, Plaintiffs-Appellants, v. David Grasser and Heritage Mutual Insurance Company, Defendants-Respondents, John Alden Life Insurance Company, Defendant.
    Supreme Court

      No. 99-0933.

      Oral argument November 29, 2000.

    Decided June 14, 2001.

    2001 WI 63
    (Also reported in 627 N.W.2d 511.)

      For the plaintiffs-appellants there were briefs by David P. Wilk, Robert L. Jaskulski and Domnitz & Mawicke, Kenosha, and oral argument by David P. Wilk.

    For the defendants-respondents there was a brief by Arthur P. Simpson and Simpson & Deardorff, S.C., Milwaukee, and oral argument by Arthur P. Simpson.

   WILLIAM A. BABLITCH,J.

¶1. Plaintiff Donald Urban (Urban) appeals a circuit court decision concluding that defendant David Grasser (David) was entitled to recreational immunity under Wis. Stat. § 895.52 (1995-96). Urban was crossing David's property to use his boat, which was located on an adjacent property. David's father, Paul Grasser (Paul) owned the adjacent property. Paul held an easement for ingress and egress over David's property pursuant to a written agreement between them and had granted permission to Urban to use David's property in accessing his boat. David's property constituted the only legal means available for Urban to access his boat. A dog jumped out at him. Urban fled and jumped from David's property onto a next-door neighbor's concrete driveway, injuring himself. Urban sued David, and David claimed recreational immunity.

¶ 2. The issue is whether the facts of this case give rise to recreational immunity for David. We conclude that the facts entitle David to immunity and that no exceptions to immunity apply. Accordingly, we affirm the circuit court's decision.

¶ 3. On July 19, 1997, Urban purchased a boat from Paul. The boat was docked at a boat slip on Paul's property. After Urban purchased the boat, he intended to dock the boat at another location. However, because Urban needed time to secure the other location, Paul agreed that Urban could temporarily dock the boat on his property. Paul did not charge Urban for the use of the boat slip.

¶ 4. A description of the property is necessary to understand Urban's use of the property and the occurrence of his injury. The property at issue was a rectangular parcel of property that was divided into two separate lots of approximately equal size. One lot occupied the western half of the property and was owned by David; the other lot occupied the eastern half and was owned by Paul. David's property was bordered to the west by a street. Paul's property was bordered to the east by waterfront, which is where the boat slips were located. To get to his new boat, Urban was required to park his automobile on the street, walk across David's property, and walk across Paul's property to the boat slip.

¶ 5. To the north of both David and Paul's properties was a concrete driveway that was owned by a neighbor. The driveway declined from west to east while the property owned by David and Paul remained level. Consequently, from west to east, David and Paul's property was at a gradually higher level than the neighboring driveway. A retaining wall separated the driveway from David and Paul's properties. The top of this wall remained level with David and Paul's properties, but the bottom of the wall declined from west to east in the same manner as the driveway.

¶ 6. Prior to 1981, Paul owned all of the property at issue in this case. In 1981, however, David contracted with Paul to purchase the western portion of the property. The contract granted a perpetual easement to Paul over a portion of David's property and provided as follows:

The land [the property conveyed to David] shall be subject to a perpetual easement in favor of Vendor [Paul and his wife] over the south 10 feet of the west 110 feet as [sic] and for ingress and egress and to a perpetual easement over the entire parcel except the 110 west feet thereof and said easement for ingress and egress, said easement to allow Vendors free use of the easement area for themselves and those to whom they shall lease boat slips in the city of Kenosha harbor and guests. Purchasers shall also have the right to use of the land covered by the west easement provided it does not interfere with the easement rights of Vendors and their lessees.

The easement over David's property constituted the only legal means available for Paul, his guests, and lessees of the boat slips to access Paul's property and the boat slips.

¶ 7. On the day that he purchased the boat, Urban, along with members of his family, made several trips from his automobile to the boat slip, crossing David's property each time. Urban slept on the boat that night. The next day, July 20, 1997, he again accessed the boat several times by using the same route.

¶ 8. During the early evening of July 20, 1997, Urban was walking back from the boat slip when he noticed a dog on David's property. The dog, a boxer named Baby, was owned by David. The dog began growling and barking at Urban and then proceeded to chase him. Although the dog was chained to a tree on David's property, Urban did not notice the chain, and he began running to the north. Without stopping or looking back, Urban jumped from the property onto the concrete driveway. At the point where he jumped, the property was about ten feet higher than the driveway. The parties do not contest that Urban jumped from David's property. Urban seriously injured his heel when he landed.

¶ 9. Urban and his wife (plaintiffs) filed a complaint against David and his insurers, Heritage Mutual and John Alden Life Insurance Company. In the complaint, the plaintiffs alleged two causes of action. First, they alleged that, pursuant to Wis. Stat. § 174.02(1), David was strictly liable for damages caused by the dog. Second, they alleged that David was "negligent in the care, custody, control supervision, and/or shelter" of the dog "in failing to keep the dog, by leash or other means."

¶ 10. David and Heritage Mutual (defendants) moved for summary judgment, arguing that David was immune from liability pursuant to Wis. Stat. § 895.52, the recreational immunity statute. The circuit court granted the defendants' motion. The plaintiffs appealed, and we accepted the court of appeals' certification on all issues raised by the plaintiffs before the court of appeals. However, because we conclude that the recreational immunity statute applies to deny recovery to the plaintiffs in this case, we need not reach the remaining issues.

1 — I 1 — I

¶ 11. We address only whether the facts of this case give rise to recreational immunity and entitle David to summary judgment. We deliberately state the issue differently than that posed by the court of appeals in its certification. The court of appeals presented the issue as follows: "This case asks whether a property owner, holding a servient property interest, may claim recreational immunity for injuries suffered by persons who used the easement to cross the property as the guest of the easement holder, the dominant property interest."

¶ 12. Although the court of appeals correctly framed the issue, we conclude that our statement of the issue is more appropriate because it emphasizes the intensely fact-driven nature of recreational immunity cases. Circuit courts, the court of appeals, and this court have wrestled with recreational immunity since the legislature first provided for such immunity under the law. We have all been frustrated by the seeming lack of basic underlying principles in our efforts to state a test that can be easily applied. The principle that the purpose of the legislation is to encourage landowners to open their property to recreational users has provided only limited usefulness.

¶ 13. We conclude that we can do little more than repeat what has been stated continually in prior cases, that is, that each case requires an examination of all the circumstances surrounding the activity, keeping in mind the legislative purpose. We have identified a number of those aspects: the intrinsic nature of the activity, the purpose of the activity, the consequences of the activity, and the intent of the user. See Sievert v. American Family Mut. Ins. Co., 190 Wis. 2d 623, 631, 528 N.W.2d 413 (1995); Linville v. City of Janesville, 184 Wis. 2d 705, 716, 516 N.W.2d 427 (1994). An examination of prior cases interpreting Wis. Stat. § 895.52 also leads us to conclude that there are at least two other factors to take into account: the nature of the property and the intent (or lack thereof) of the property owner.

¶ 14. The nature of the property can give us insight into the nature of the activity. See Linville, 184 Wis. 2d at 717; Nelson v. Schreiner, 161 Wis. 2d 798, 802, 469 N.W.2d 214 (Ct. App. 1991) ("Actions whose intrinsic nature are recreational and are conducted at a public facility or service dedicated to exercise, relaxation or pleasure may be recreational activities without further proof of the actor's mental purpose."). Likewise, the intent of the owner can give us important perspective. In most cases, it would seem to make little sense to give an owner recreational immunity when in fact the owner does not intend to open the property to recreation, and even more so, when the owner takes positive steps to prevent recreational use. See Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of LaCrosse, 2001 WI 64, ¶ 25, 244 Wis. 2d 290, 627 N.W.2d 527.

¶ 15. None of the factors enumerated above, viewed in isolation, are determinative. In any given case, one or more factors may have greater weight, but all should be looked at in their totality.

HH l-H l-H

¶ 16. We review a grant of summary judgment using the same methodology as the circuit court. Meyer v. Sch. Dist. of Colby, 226 Wis. 2d 704, 708, 595 N.W.2d 339 (1999). Summary judgment is appropriate "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) (1997-98). Resolution of this case requires an interpretation of the recreational immunity statute and its application to undisputed facts. Interpretation of this statute presents a question of law that we decide de novo, while benefiting from the circuit court's analysis. Meyer, 226 Wis. 2d at 708.

¶ 17. Wisconsin Stat. § 895.52(2)(b) provides in relevant part that "no owner.. .is liable for.. .any injury to.. .a person engaging in a recreational activity on the owner's property. . . Pursuant to this statute, David claims that he is immune from liability for Urban's injury.

¶ 18. We must first determine whether David is an "owner" under the statute. Wisconsin Stat. § 895.52(l)(d) defines "owner" as "a person, including a governmental body or nonprofit organization, that owns, leases or occupies property." In this case, it is undisputed that David owned the property adjacent to Paul's property. Although Paul held an easement over David's property, Paul's interest in the property did not require David to relinquish ownership of his property. "An easement creates two distinct property interests: the dominant estate, which enjoys the privileges granted by an easement; and the servient estate, which permits the exercise of those privileges." Atkinson v. Mentzel, 211 Wis. 2d 628, 637, 566 N.W.2d 158 (Ct. App. 1997). Title to the property, however, does not pass to the dominant owner; only the right to pass over it is granted. Hunter v. McDonald, 78 Wis. 2d 338, 344, 254 N.W.2d 282 (1977). The dominant owner does not obtain an estate in the property, but only a right to use the land not inconsistent with the general property of the servient owner. Id. Thus, David is an "owner" under the statute.

¶ 19. We next determine whether Urban was "engaging in a recreational activity on [David's] property." This determination requires application of the statutory definition of "recreational activity" to Urban's activity. This definition states:

"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, but is not limited to, 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 and any other outdoor sport, game or educational activity, but does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.

Wis. Stat. § 895.52(l)(g).

¶ 20. However, before we can apply this definition, we must first resolve a dispute between the parties concerning the scope of Urban's activity. The issue is whether Urban's activity on Paul's property should be factored into our determination. The plaintiffs argue that any activity undertaken by Urban on Paul's property is immaterial to our determination. They assert that we must only examine Urban's activity on David's property, and in this respect, we must conclude that Urban's mere act of walking, without more, cannot support a finding of recreational activity. In contrast, the defendants argue that Urban's activity on David's property must be considered in light of his activity on Paul's property, and when considering the activity in this manner, it must be regarded as walking to access his boat. We agree with the defendants.

¶ 21. Our examination looks at Urban's activities on both properties because the activities are "inextricably connected." This connection is evidenced, in the first instance, by the fact that Urban had to cross David's property because it was the only legal means available for Urban to access his boat. In Hupf v. City of Appleton, 165 Wis. 2d 215, 221, 477 N.W.2d 69 (Ct. App. 1991), the court recognized that a walk is "inextricably connected" to another activity when that person walks by the "only available avenue" from the activity. In such instances, the Hupf court reasoned that the walk should have the same immune or non-immune status of its connected activity. Id. This reasoning suggests that it is appropriate for a court, under similar facts, to consider the activity that is connected to the walk in determining whether the walk is a "recreational activity." Even though Hupf only involved one property owner, we conclude that its reasoning applies equally to this case. See also Lasky v. City of Stevens Point, 220 Wis. 2d 1, 7-8, 582 N.W.2d 64 (Ct. App. 1998) (suggesting that the reasoning from Hupf would have been applicable if the plaintiff had been walking on the "only available avenue").

¶ 22. The connection between the walk and the use of the boat is also evidenced by the fact that Urban's use of David's property to access his boat resulted from permission from Paul. Paul held a dominant interest in an easement over David's property, and he exercised his rights under the terms of the easement agreement by granting permission to Urban. Urban then utilized David's property within the terms of the easement agreement. These facts provide additional support for our conclusion that the walk was inextricably connected to the activity on Paul's property. As a result, we will consider Urban's activity on Paul's property in our determination.

¶ 23. It is important to note that we do not conclude that every walk and its related activity must be considered together. The walk and the related activity will only be considered collectively when it can be shown, under facts similar to this case or to Hupf, that the activities are inextricably connected.

¶ 24. We now turn to the question of whether the facts of this case give rise to the conclusion that Urban's walk on David's property was "recreational activity" within the meaning of the statute.

¶ 25. The definition of "recreational activity" contains three parts:

(1) a broad definition stating that a recreational activity is "any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure," (2) a list of 28 specific activities denominated as recreational, and (3) a second broad definition, directing that a recreational activity can be "any other outdoor sport, game or educational activity."

Sievert, 190 Wis. 2d at 629.

¶ 26. As stated in Minnesota Fire, 2001 WI 64, ¶ 10, "we must construe the first part's broad definition in light of the second part's list of 28 specific recreational activities, and the third part's broad definition providing that a recreational activity is 'any other outdoor sport, game or educational activity.'" (citation omitted).

¶ 27. The sole purpose of Urban's walk over David's property was to gain access to his boat to use for recreational purposes. Throughout the weekend, including the day on which his injury occurred, he carried various items from his automobile to the boat for purposes of cleaning it and preparing it for future trips. Indeed, preparing the boat in this manner is one part of using the boat for pleasure and recreation. During this time, he and his family members also crossed David's property to partake in a party on the boat. In addition, Urban crossed the property to practice driving his boat for a short time on the day he was injured. This particular activity — driving the boat — is specifically enumerated in the definition of "recreational activity" as "water sports." On the whole, these activities were undertaken for relaxation or pleasure. Urban's walk was recreational because Urban needed to cross the property to engage in recreational activities on his boat. David's property was the only legal means available to access the boat. The walk was an integral part of these activities.

¶ 28. We recognize that Urban's walking is not immediately identifiable as one of the 28 listed activities. However, an activity does not need to fall within the direct terms of the definition to be characterized as a "recreational activity." See Sievert, 190 Wis. 2d at 629-30. Instead, as noted in Sievert, the legislature expressly stated that this definition is "intended merely to provide examples of activities constituting recreational activities and that 'where substantially similar circumstances or activities exist' the legislation should be construed liberally to protect the property owner." Id. at 630 (citing 1983 Wis. Act 418, § 1). As enumerated in Sievert, we adopted the following test in Linville, 184 Wis. 2d 705, to determine whether an activity is "substantially similar":

[T]he test "considers the purpose and nature of the activity in addition to the [property] user's intent." "The test requires examination of all aspects of the activity. The intrinsic nature, purpose and consequence of the activity are relevant. While the injured person's subjective assessment of the activity is relevant, it is not controlling. Thus, whether the injured person intended to recreate is not dis-positive,. . .but why [the person] was on the property is pertinent."

Sievert, 190 Wis. 2d at 631 (quoting Linville, 184 Wis. 2d at 716) (second and third alterations in original) (internal citations omitted).

¶ 29. We conclude that, under this test, Urban's activity on David's property is substantially similar to the activities listed under the definition. After his purchase of the boat was completed, Urban continued to walk across David's property to access his boat, and the consequence of his crossing the property was the use of his boat for recreation. Urban stated that he purchased the boat solely for recreation and that he had to cross David's property to carry out this goal. Indeed, while on David's property, Urban was not exercising or throwing a ball or engaging in activities of this nature. However, our examination looks at all aspects of the activity, including the reason the person was on the property. In this case, Urban's acts and statements indicate that his only reason for being on David's property was to access his boat for recreation.

¶ 30. We also note that extending immunity to David in this instance would fulfill the legislative purpose behind the recreational immunity statute. This legislative purpose seeks "to encourage property owners to allow use of their lands for recreational activities by removing the potential for liability arising out of negligence actions brought against them by persons who use the land for such recreational purposes." Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 635, 547 N.W.2d 602 (1996). Granting immunity in this case encourages David and others similarly situated to allow people to cross over their land to engage in recreational activities. Thus, the legislative purpose would be served.

¶ 31. In addition, the intent of the landowner with respect to the use of his property is helpful. David's easement to Paul provided an "easement to allow Vendors [and guests of the vendors] free use of the easement area for themselves and those they shall lease boat slips in the city of Kenosha harbor and guests." This easement evinces at the very least no intent to restrict the use of the property to non-recreational activities. In light of the broadness of the language, it appears to anticipate that recreational activity could occur.

¶ 32. In light of all of the above, we conclude that Urban's walking on David's property was "recreational activity," which gives rise to recreational immunity.

IV

¶ 33. We now examine whether any exceptions to recreational immunity apply. In this case, the plaintiffs first argue that immunity should not apply because Urban was Paul's "social guest," and therefore, the exception under Wis. Stat. § 895.52(6)(d) applies. This section provides that immunity does not apply if:

The death or injury occurs on property owned by a private property owner to a social guest who has been expressly and individually invited by the private property owner for the specific occasion during which the death or injury occurs, if the death or injury occurs on any of the following:
2. Residential property.

Wis. Stat. § 895.52(6)(d). The plaintiffs argue that Urban was Paul's social guest because Paul specifically invited Urban on his land to use the boat slip. In addition, the plaintiffs assert that, because this exception applies to Paul, it should similarly apply to David, despite the fact that David did not invite Urban on his property.

¶ 34. This social guest exception was enacted in 1984 as part of 1983 Wisconsin Act 418. This exception came about after this court's decision in LePoidevin v. Wilson, 111 Wis. 2d 116, 330 N.W.2d 555 (1983). In LePoidevin, a property owner sought immunity under Wis. Stat. § 29.68 (1975) for injuries to a person who dove from a pier into shallow water on the owner's property. Id. at 119. The injured person had been specifically invited on the property by the owner's son to swim. Id. at 118-19. We concluded that the owner could not gain immunity from liability because the injured person was a social guest who had been specifically invited onto the property. Id. at 131-32. We also noted that the property owner had "not opened his land to the 'public' generally nor ha[d] he given permission to one or more members of the 'public' to use the land for recreational purposes. He opened his land to a social guest who was invited onto the land." Id. at 131.

¶ 35. The legislative history of 1983 Wisconsin Act 418 indicates that this social guest exception was included to ensure that a property owner does not gain immunity under circumstances similar to LePoidevin. Indeed, the language of the social guest exception mirrors language from LePoidevin. This case, however, does not involve circumstances similar to LePoidevin where the injured person was a social guest who was expressly and individually invited onto the property. Instead, Urban was granted permission by Paul to use the property. Such permissive entrants are outside the ambit of this exception. See Waters v. Pertzborn, 2001 WI 62, ¶ 40, 243 Wis. 2d 703, 627 N.W.2d 497 (citing Ervin v. City of Kenosha, 159 Wis. 2d 464, 475, 464 N.W.2d 654 (1991)).

¶ 36. Finally, we address whether the "profit" exception under Wis. Stat. § 895.52(6)(a) applies. This section provides that immunity will not apply for property owners who profit from another's recreational use of their property. Specifically, this section provides in relevant part:

Subsection (2) does not limit the liability of a private property owner.. .whose property is used for a recreational activity if any of the following conditions exist:
(a) The private property owner collects money, goods or services in payment for the use of the owner's property for the recreational activity during which the death or injury occurs, and the aggregate value of all payments received by the owner for the use of the owner's property for recreational activities during the year in which the death or injury occurs exceeds $2,000.

Wis. Stat. § 895.52(6)(a). Under this section, a landowner is not immune if two conditions exist. "First, the owner collects money, goods or services in payment for the use of the owner's property for the recreational activity during which the injury occurs." Douglas v. Dewey, 154 Wis. 2d 451, 458, 453 N.W.2d 500 (Ct. App. 1990). "Second, the aggregate value of all payments received by the owner for the use of his or her property for recreational activities during the year in which the injury occurs exceeds [$2,000]." Id. at 458-59.

¶ 37. In Douglas, the court of appeals recognized that the legislature specifically adopted a pecuniary-benefit approach, which places duties and obligations upon .owners of property when the owners receive a pecuniary benefit from users of their property. Id. at 461. The court also noted that the legislature's intent to adopt this approach was indicated in 1983 Wis. Act 418, which stated that the act intended to limit the liability of property owners " 'under circumstances in which the owner does not derive more than a minimal pecuniary benefit.'" Id. (quoting 1983 Wis. Act 418, § 1). These benefits must be actual, not merely potential. Id. All indirect pecuniary benefits, as well as direct pecuniary benefits, received by the property owner for the use of the property must be considered. Id. at 462.

¶ 38. The plaintiffs argue that this exception applies to eliminate recreational immunity for David because Paul's overall pecuniary benefit was over $2,000. This pecuniary gain came from the sale of the boat. Urban purchased the boat for $4,000. The plaintiffs assert that Urban's use of the slip was part of the consideration in the sale of the boat. The plaintiffs further contend that, because Paul would be denied immunity in this respect, David should similarly be denied immunity. However, in this case, this exception does not apply.

¶ 39. The record does not provide any evidence to show that Paul's permission to use the boat slip helped to secure the sale of the boat or had any effect on the overall cost of the boat. Indeed, Urban suggested that the cost of the slip was included in the boat sale, but he also stated that Paul told him "no problem" and did not charge him directly for the use of the slip. Regardless, even if Paul had received such a benefit in the sale of his boat, the benefit gained for the use of the boat slip would have been only a minimal pecuniary gain. Further, there are no facts in the record to suggest that David received any benefit. David is entitled to immunity.

¶ 40. In summary, we conclude that the facts of this case give rise to recreational immunity for David. The circuit court properly granted summary judgment to the defendants.

By the Cg>urt. — The judgment of the circuit court is affirmed.

JON P. WILCOX, J.

¶ 41. (concurring). I agree with the majority's conclusion that Wis. Stat. § 895.52 (1995-96) confers immunity upon David Grasser. However, for the reasons expressed in my dissent to Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of LaCrosse, 2001 WI 64, 244 Wis. 2d 290, 627 N.W.2d 527, 1 do not join the majority's conclusion that courts examining whether a particular activity falls within the scope of § 895.52 must consider the nature of the property on which the activity occurs and the subjective intent of the property owner to open his or her property to recreational activity. See majority op. at ¶ 13.

¶ 42. Section 895.52 is plain on its face. It provides that "no owner and no officer, employe or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner's property." Wis. Stat. § 895.52(2)(b). This broad grant of immunity applies to all "real property and buildings, structures and improvements thereon." Wis. Stat. § 895.52(l)(f). Nothing in the statute further qualifies the type of property to which § 895.52 immunity attaches.

¶ 43. Until recently, this court recognized as much:

The unambiguous language of the recreational use statute sets the following precondition for immunity — that the injury be to or caused by "a person engaging in a recreational activity on the owner's property. . . ." Wis. Stat. § 895.52(2)(b). There is no language [in § 895.52] that conditions immunity upon affirmative acts on the part of the owner to grant permission or otherwise "open" land.
The legislature has made it clear that previous decisions by Wisconsin courts that are more restrictive, implying a requirement that lands be "open," are overruled.

Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 634-35, 547 N.W.2d 602 (1996). Therefore, this court traditionally has held that § 895.52 conditions immunity upon the nature of the property user's activity, not on the nature or "openness" of the property. Id. at 631; Sievert v. American Family Mut. Ins. Co., 190 Wis. 2d 623, 632, 528 N.W.2d 413 (1995).

¶ 44. Nonetheless, the majority posits that the scope of § 895.52 recreational immunity is unclear and is guided by a "seeming lack of basic underlying principles." Majority op. at ¶ 12. This conclusion, in itself, is rather curious in light of the fact that the legislature distinctly explained the basic principles underlying § 895.52: "The legislature intends by [§ 895.52] to limit the liability of property owners toward others who use their property for recreational activities. . . . [T]his legislation should be liberally construed in favor of property owners to protect them from liability." 1983 Wis. Act 418 (act creating § 895.52). But the majority believes that its professed confusion regarding the principles underlying § 895.52 permits it to inject its view of what the law should say. Consequently, it acknowledges two recent court-created limits on the type of property to which § 895.52 applies and, in doing so, shifts the statutory precondition for recreational immunity from the nature of the property user's activity to the nature of the property on which the activity occurs.

¶ 45. To be sure, the majority frames these limits as a list of factors courts must consider in examining the nature of an activity, rather than as restrictions on the type of property to which § 895.52 applies. Regardless of how the majority spins this issue, however, the result is the same: Courts may withhold recreational immunity from property owners who own what the courts deem to be "non-recreational property." Thus, the type of property to which § 895.52 immunity attaches is no longer defined by § 895.52, but instead, by the courts.

¶ 46. As I explained in my dissent to Minnesota Fire, I will not join the majority in ignoring the clear legislative directive in § 895.52. Accordingly, while I concur in the majority's disposition of the case at hand, I do not join the majority in recognizing the new judicially-legislated limits on the types of property to which § 895.52 immunity extends.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 47. (dissenting). Today's decision extends immunity for recreational activity on one owner's property to the owner of adjacent property that the injured plaintiff walked across in order to get to his automobile after leaving the land upon which he engaged in recreational activity. Because I conclude that this extension of immunity is not justified under Wis. Stat. § 895.52, I dissent.

¶ 48. The facts of this case show that the plaintiff, Donald Urban, was injured while walking on the property of defendant David Grasser. The plaintiff walked across David Grasser's land to get back to the plaintiffs automobile after having worked on his boat. The plaintiff s boat activities, which occurred on property owned by Paul Grasser, are "recreational activities" on Paul Grasser's land within Wis. Stat. § 895.52(l)(g) and (2)(b).

¶ 49. Under the plain language of Wis. Stat. § 895.52(2)(b), "no owner is liable for. . .any injury to.. .a person engaging in a recreational activity on the owner's property." Paul Grasser is immune from liability under the statute for injury to the plaintiff, who engaged in a recreational activity on Paul Grasser's property. Paul Grasser may also arguably be immune from liability under the statute for injury to the plaintiff for any recreational activity in which the plaintiff engaged on Paul Grasser's easement.

¶ 50. The statute does not, however, extend recreational immunity to David Grasser, the owner of the servient estate, the property subject to the easement. The statute grants an owner immunity from liability only for an injury to "a person engaging in a recreational activity on the owner's property." Wis. Stat. § 895.52(2)(b) (emphasis added). The plaintiff was not injured while engaging in a recreational activity on David Grasser's property. The majority opinion implicitly agrees with this position and therefore rewrites Wis. Stat. § 895.52(2)(b).

¶ 51. The majority opinion has rewritten Wis. Stat. § 895.52(2)(b), apparently adding the words shown in boldface to grant an owner of property immunity from liability for an injury to "a person engaging in a recreational activity on the owner's property and to a person engaging in a recreational activity on another person's property when the activity on the owner's property is inextricably connected to the recreational activity on the other person's property."

¶ 52. Applying the statute as rewritten, the majority opinion concludes that David Grasser is entitled to share Paul Grasser's recreational immunity because the plaintiffs walking on David Grasser's property is "inextricably connected" to the recreational activity of boating that had occurred on Paul Grasser's property. This nebulous concept of "inextricably connected" that extends recreational immunity to a second property owner as a result of a recreational activity that occurs on adjacent property has no basis in the recreational immunity statute.

¶ 53. In reading the statute the way it does, the majority opinion suggests that it is fulfilling the purpose of the statute to encourage property owners to open their property for recreational activity. I disagree.

¶ 54. First, whether the purpose of the recreation immunity statute is to open land for recreation is open to question. The "opening the land" purpose is no longer expressed in the statute. The 1983 amendments to the recreational immunity statute apply to the present case and contain no references to opening the land or giving or granting permission to enter the land as had earlier statutes. The purpose of the 1983 statute was to limit the liability of property owners toward others who use the property for recreational activities. The 1983 amended statute does not purport to grant immunity only to those owners who open their land for recreational activity.

¶ 55. One of the purposes of the 1983 amendments as evidenced in the legislative history was to do away with the great uncertainty in the recreational immunity law produced in this court's decisions. Yet the majority opinion creates new uncertainty. Requiring an intensely fact-driven inquiry into whether a plaintiffs presence on one property is "inextricably connected" to recreational activity on a second property creates uncertainty.

¶ 56. This sort of intensive fact-driven inquiry fundamentally changes the "open the land" purpose of the recreational immunity statute that the majority opinion is striving to achieve: If property owners' immunity from suit depends on a court's fact-driven inquiry rather than on the plain language of the statute, property owners have less incentive to open their property for recreational activities. I do not think the legislature intended that Wis. Stat. § 895.52 operate as such an unpredictable tool for defendants in personal injury cases.

¶ 57. The new and nebulous judicially created concept of "inextricably connected" threatens to extend recreational immunity far beyond the plain language of the statute. For example, the plaintiff in this case was walking across David Grasser's property to get his automobile, which was parked on the street. Is the street or parking area on which the plaintiff parked his automobile, an activity that was necessary to get to the boat, also inextricably connected to the recreational activity that occurred on the property of a different owner? Is the owner of the street or the parking area entitled to recreational immunity for an injury that occurred while the plaintiff was going to or from his car? What if the plaintiff parked a mile away and had to walk over several different properties to reach his boat: would each property owner along the journey be entitled to recreational immunity under the majority opinion's theory of an inextricable connection? What about an injury that occurred at some point in the plaintiff s drive from home? The majority opinion provides no sense of how distant in time or space the nonrecreational activity must be in order to extricate it from its connection to the recreational activity. As a result, the potential applications of this new theory of recreational immunity seem boundless.

¶ 58. Because I see no logical stopping point for the majority's new theory, and because I do not think the legislature intended that the statute would provide such broad immunity for defendants in personal injury cases, I conclude that this case represents the stopping point for recreational immunity.

¶ 59. David Grasser is not the owner of property on which a recreational activity occurred. Accordingly, under the plain language of Wis. Stat. § 895.52(2)(b), David Grasser is not immune from liability for injury to the plaintiff, who was engaged in a recreational activity on another's property.

¶ 60. This court should await clear guidance from the legislature before extending recreational immunity to adjacent property owners whose property the injured person walks across en route to or from a recreational activity on another's land. The nebulous concept of "inextricably connected to recreational activity" cannot be applied with any precision and expands recreational immunity far beyond the plain language of Wis. Stat. § 895.52.

¶ 61. Finally, I join the chorus of voices on this court expressing frustration with trying to apply the current version of the recreational immunity statute clearly and consistently in the myriad fact situations that have arisen. More cases are in the pipeline. I join the chorus requesting clarification from the legislature regarding the intended scope and application of the recreational immunity statute. I suggest the legislature might wish to reexamine the statute. See Wis. Stat. §§ 13.83(l)(c)l and 13.93(2)(d) (1999-2000).

¶ 62. For the reasons set forth, I dissent.

¶ 63. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.

       All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated.

       John Alden Life Insurance Company was not part of the summary judgment motion and accordingly is not part of this appeal.

       The dissent asserts that our opinion offers no logical stopping point. We disagree. Our conclusion is strictly based on the uniqueness of the properties at issue in this case, in light of the landlocked nature of Paul's property and the existence of an easement. The hypotheticals raised by the dissent do not reflect the same unique connection shared by the properties in this case. See dissent at ¶ 57.

       Specifically, a letter contained in the drafting record for this act notes that "[i]t is equally clear that the proposed legislation is not intended to cover the case where a landowner specifically invites a guest over as per [LePoidevin]." Letter from John R. Zillmer, Redford & Zillmer, to Ruth Reinl, Office of Senator David Helbach 4 (Oct. 11,1983).
      We recognize that, in enacting 1983 Wis. Act. 418, the legislature "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. Our application of LePoidevin v. Wilson, 111 Wis. 2d 116, 330 N.W.2d 555 (1983), however, is limited only to the extent that its facts are illustrative of the legislature's intent on what factual situations are to be included under the social guest exception.

       All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise indicated.

       Section 895.52 also applies to "the waters of the state, as defined under s.144.01(18).” Wis. Stat. § 895.52(l)(f).

       The existence of an access easement between David and Paul Grasser provides no support for the majority opinion's conclusion that the two men share recreational immunity. The majority opinion cites no authority to support the idea that statutory immunity from tort liability of the owner of a dominant estate is shared by the owner of the servient estate.

         See majority op. at ¶ 12.

        See also Minnesota Fire & Cas. Ins. Co. v. Paper Recycling Co., 2001 WI 64, ¶¶ 60-61, 244 Wis. 2d 290, 627 N.W.2d 527 (Wilcox, J., dissenting).

         Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 632-33, 635, 547 N.W.2d 602 (1996).

        See also Minnesota Fire & Cas. Ins. Co. v. Paper Recycling Co., 2001 WI 64, ¶¶ 60-61, 244 Wis. 2d 290, 627 N.W.2d 527 (Wilcox, J., dissenting).

         See Minnesota Fire, 2001 WI 64, ¶ 61 n.7 (Wilcox, J., dissenting).

       Another issue is the disparity in language between Wis. Stat. § 895.52(2)(b), which grants an owner of property immunity under certain circumstances, and Wis. Stat. § 895.52(6)(d), which restores liability for social guests.
      Section 895.52(2)(b) grants immunity for any "injury to.. .a person engaging in recreational activity on the owner's property." In contrast, Wis. Stat. § 895.52(6)(d) creates a social guest exception. Subsection (6)(d) states that the liability of an owner (other than a government body or nonprofit organization) whose property is used for recreational activity is not limited under Wis. Stat. § 895.52(2) when the "injury occurs on property owned by a private property owner to a social guest."
      Thus, for recreational immunity, apparently an owner need only show that the injured person engaged in recreational activity on the owner's property. It is arguable that whether the injury occurred on the owner's property is irrelevant. If the injured person seeks to hold the owner liable under the social guest exception to recreational immunity, the statute might be interpreted to require that the injury occurred on the owner's property. See Waters v. Pertzborn, 2001 WI62, ¶ 50, 243 Wis. 2d 703, 627 N.W.2d 497.

         See majority op. at ¶ 12. See also Minnesota Fire, 2001 WI 64, ¶¶ 37-44 (Bradley, J., concurring); id. at ¶ 72 (Wilcox, J., dissenting).


source: Caselaw Access Project

author: ANN WALSH BRADLEY, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

license: Public Domain

text:
    Christopher Waters, by his Guardian ad Litem, Ardell W. Skow, Richard Waters and Connie Waters, Plaintiffs-Appellants-Cross-Respondents, v. Kenneth Pertzborn, Diane Pertzborn and State Farm Fire & Casualty Co., Defendants-Respondents-Cross-Appellants, Nicholas Haus, Paula Haus, Al Haus and MSI Insurance Co., Defendants-Respondents.
    Supreme Court

      No. 99-1702.

      Oral argument March 1, 2001.

    Decided June 14, 2001.

    2001 WI 62
    (Also reported in 627 N.W.2d 497.)

      For the plaintiffs-appellants-cross respondents there were briefs by Ardell W. Skow, Martha H. Heidt and Doar, Drill & Skow, S.C., Baldwin, and oral argument by Matthew Biegert.

    For the defendants-respondents-cross appellants there were briefs by Kay Nord Hunt, James R. Johnson, Brent R. Johnson and Lommen, Nelson, Cole & Stageberg, P.A., Hudson, and oral argument by Kay Nord Hunt.

    For the defendants-respondents there was a brief by Joe Thrasher and Thrasher, Doyle, Relish & Franti, Ltd., Rice Lake.
    An amicus curiae brief was filed by Michele M. Ford and Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee, on behalf of Civil Trial Counsel of Wisconsin.
    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.
   ANN WALSH BRADLEY, J.

¶ 1. This negligence action is before us on certification from the court of appeals pursuant to Wis. Stat. (Rule) § 809.61 (1999-2000). Christopher Waters and his parents, Richard and Connie Waters (plaintiffs), appeal from the circuit court's order bifurcating the issues of liability and damages for trial before different juries. Defendants, Kenneth and Diane Pertzborn (Pertzborns) and their insurer, also cross-appeal the circuit court's order denying summary judgment on the grounds that genuine issues of material fact existed as to the applicability of the social guest exception to recreational immunity under Wis. Stat. § 895.52(6)(d) (1995-96).

¶ 2. The court of appeals' certification specifically requests that we "determine whether the circuit court properly ordered trials on liability and damages before separate juries." We conclude that the circuit court is barred by statute from ordering separate trials before different juries on the issues of liability and damages arising from the same claim. We therefore reverse the circuit court's order bifurcating the trial. We also conclude that there exist genuine issues of material fact as to whether the social guest exception to recreational immunity applied when Christopher Waters was injured. We thus affirm the circuit court's order denying the motion for summary judgment. Accordingly, we remand the cause for further proceedings.

¶ 3. This case arises from a sledding accident that occurred in Rice Lake on November 24, 1996. The facts surrounding the accident are revealed in the depositions and affidavits that were submitted in support of and in response to the motion for summary judgment.

¶ 4. On the day of the accident, Christopher Waters, who was then ten years old, had been playing with 11-year-old Kathleen Pertzborn at the Waters' home. At some point that afternoon, the two children left to go to the Pertzborn home. In his deposition testimony, Christopher explained that the two left his home upon Kathleen's prompting. He testified that Kathleen brought him over to her house, telling him "let's go over to my house or something." Christopher took his snowboard and sled to the Pertzborns. It is undisputed that neither of Kathleen's parents invited Christopher to their home that day.

¶ 5. The children began sledding down a hill in the Pertzborns' front yard. At the base of the hill, the Pertzborn property abuts Hilltop Drive. Before long, Kathleen's mother, Diane Pertzborn, became aware that the children intended to sled down the hill in the front of the home. She admonished the children that they were not to sled down the hill without anyone watching for cars, and instructed the children to go sled at a local schoolyard. Nonetheless, the children set about making a path in the recently fallen snow and took turns sledding down the hill and watching for cars.

¶ 6. A short while later Diane Pertzborn learned that the children were still in the yard and called Kathleen in for supper. Christopher stayed outside at the Pertzborns, waiting for Kathleen to finish eating. He testified that the children planned to go sledding at the local school after Kathleen's meal. Diane Pertzborn was unaware that Christopher was waiting outside. She testified that Kathleen told her that Christopher was going home to tend to his pet dogs and would be coming back later. Christopher denies that he told Kathleen that he intended to go home to tend to his dogs. Diane Pertzborn was aware that Kathleen and Christopher had plans to sled at the local school when Kathleen finished her meal.

¶ 7. After waiting for a while, Christopher became bored and decided to sled down the hill by himself. When Christopher reached the base of the hill and the edge of the Pertzborn property, he continued moving forward into Hilltop Drive. In the road, Christopher and his sled intersected the path of a vehicle driven by Nicholas Haus, a teenage neighbor. The vehicle struck Christopher and dragged him 74 feet before coming to a stop. Consequently, Christopher suffered severe and permanent injuries.

¶ 8. The plaintiffs brought this action against the Pertzborns, Nicholas Haus and his parents, and both families' insurers (collectively, the "defendants"). In their complaint, the plaintiffs alleged that the Pertzborns and the Hauses were negligent and that their negligence was the proximate cause of Christopher's injuries and his parents' loss of society and companionship.

¶ 9. After filing an amended answer asserting recreational immunity under § 895.52(2)(b) as an affirmative defense, the Pertzborns moved for summary judgment on that basis. The Pertzborns argued that because Christopher was engaged in a recreational activity (i.e., sledding) on their property at the time he was injured, they were entitled to recreational immunity. They also asserted that the social guest exception of § 895.52(6)(d) did not apply because neither of them, as the owners of the property, expressly and individually invited Christopher to their home to sled. The plaintiffs countered by arguing that because Christopher was not injured on the Pertzborns' property, but was injured in the street, the Pertzborns were not entitled to immunity under § 895.52(2)(b). They also argued that the social guest exception to immunity provided by § 895.52(6)(d) applied because Christopher had been expressly and individually invited to the Pertzborns by Kathleen.

¶ 10. The circuit court denied summary judgment. The court determined that a genuine issue of material fact existed as to whether the social guest exception applied and that the plaintiffs were thus entitled to proceed under that exception to immunity. However, the court further concluded that, in the absence of such a statutory exception, the Pertzborns would be entitled to recreational immunity. The court explained that although Christopher was not injured on the Pertzborn property, immunity would attach because the continuous act of sledding began on the Pertzborn property.

¶ 11. Following the denial of summary judgment, the parties prepared for trial. The Pertzborns filed a motion to bifurcate the issues at trial, seeking separate trials on the questions of liability and damages. The plaintiffs objected, contesting the circuit court's authority to bifurcate. At a motion hearing, during which the Hauses stated their support for the motion to bifurcate, the circuit court granted the Pertzborns' motion. The court, explaining that it was swayed by the time and expense that might be saved by bifurcation and the potential that bifurcation would facilitate settlement, noted the experimental nature of its decision:

So I think it could save parties, plaintiffs and defendants money by attempting this, particularly if it — after the liability issue is tried, it results in a settlement, and I think maybe it's worth the effort at least to experiment with it to see if this would be a way to get this case on track and resolved sooner for both sides.

When making its ruling, the court made clear that the trials would be conducted before different juries.

¶ 12. The plaintiffs sought leave to file an interlocutory appeal challenging the bifurcation. The court of appeals granted leave to appeal noting the importance of the issue to the administration of justice. The Pertzborns then cross-appealed the circuit court's denial of their motion for summary judgment.

¶ 13. The court of appeals certified this case for our review. It did so specifically so that we could address the circuit court's order to try the issues of liability and damages before separate juries. While we also review the circuit court's denial of summary judgment on the basis that there were genuine issues of material fact as to whether the social guest exception to recreational immunity applied, we first address the certified issue.

r — 1

¶ 14. The plaintiffs challenge the circuit court's order to bifurcate the issues of liability and damages on both statutory and constitutional grounds. They argue that the circuit court's order is not authorized, and indeed is prohibited by, the Wisconsin rules of civil procedure. The plaintiffs also allege that the order violates their rights to a trial by jury and a verdict agreed upon by five-sixths of the jury as guaranteed by Article I, Section 5 of the Wisconsin Constitution. We begin by addressing the statutory challenge. When a case may be resolved on non-constitutional grounds, we need not reach constitutional questions. Ziegler Co. v. Rexnord, Inc., 139 Wis. 2d 593, 612, 407 N.W.2d 873 (1987). We thus turn to the issue of whether a circuit court may, consistent with the Wisconsin Statutes, order separate trials before different juries on the issues of liability and damages arising from the same claim of negligence.

¶ 15. The parties' debate with respect to the statutory validity of the circuit court's order bifurcating the trial centers on various statutory provisions promulgated under this court's rule-making authority. See Wis. Stat. § 751.12. The plaintiffs contend that bifurcation is not authorized by Wis. Stat. (Rule) § 805.05(2) and is prohibited by Wis. Stat. (Rule) § 805.09(2). The defendants maintain that under Wis. Stat. (Rule) § 906.11(1), as interpreted by the court of appeals in Zawistowski v. Kissinger, 160 Wis. 2d 292, 466 N.W.2d 664 (Ct. App. 1991), the circuit court has the authority to bifurcate issues for trial.

¶ 16. As with the interpretation of a statute enacted by the legislature, interpretation of a statute promulgated under this court's rule-making authority presents us with a question of law that we review independently of the determination of the circuit court. Jadair Inc. v. United States Fire Ins. Co., 209 Wis. 2d 187, 194, 562 N.W.2d 401 (1997). The goal of statutory interpretation is to ascertain and give effect to the intent of the enacting body. Id.

¶ 17. We conclude that there are two statutory impediments to the circuit court's order for separate trials on the issues of liability and damages before different juries. First, a review of the history of § 805.05(2) reveals that the omission of a provision that would allow for the bifurcation of separate issues was deliberate and was intended to disallow such bifurcation. Second, § 805.09(2) effectively bars the bifurcation of issues before different juries, because that statute requires that the same five-sixths of the jury must agree on all the questions before a valid verdict can be entered.

¶ 18. We begin with the impediment to bifurcation posed by § 805.05(2). Section 805.05(2) is the rule of civil procedure that authorizes the circuit court to conduct separate trials under certain circumstances:

(2) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition or economy, or pursuant to s. 803.04(2)(b), may order a separate trial of any claim, cross-claim, counterclaim or 3rd party claim, or of any number of claims, always preserving inviolate the right of trial in the mode to which the parties are entitled.

Wis. Stat. (Rule) § 805.05(2).

¶ 19. On its face § 805.05(2) does not authorize the bifurcation of issues. While this alone is not necessarily indicative of an intent to disallow bifurcation, the drafting history of that subsection reveals that the omission of language providing for separate trials on individual issues was deliberate and was intended to disallow the bifurcation of issues. We note at the outset of our discussion that we do not often come upon extrinsic materials that so clearly and concisely provide insight into the intent of a body enacting a statute as those that guide our determination in this case.

¶ 20. Section 805.05 was created as part of the 1976 revision of the rules of civil procedure. The proposed changes to the statutes were drafted by a committee of the Judicial Council and submitted to this court for adoption. The commentary of the Judicial Council Committee accompanying § 805.05, as proposed to the court, explains that while § 805.05(2) is patterned on Federal Rule of Civil Procedure 42, it does not provide for bifurcation of issues, as does its federal counterpart:

This section is based in large part on Federal Rule 42.
Unlike Federal Rule 42, sub. (2) does not permit bifurcation of issues, but only separate trial of discrete claims.

Judicial Council Committee's Note, 1974, Wis. Stat. (Rule) § 805.05(2) (1977). The records of the Judicial Council reveal that language allowing for separate trials on issues was proposed but rejected by the Judicial Council Civil Rules Committee.

¶ 21. Moreover, the intent of the drafters to disallow affirmatively bifurcation of issues is found in the correspondence of the Judicial Council Committee members. In an August 1974 letter, the Chairman of the Judicial Council explained the Committee's intent in drafting § 805.05(2) to an inquiring member of the state judiciary:

The rule has been intentionally written to provide that only claims can be bifurcated and that issues cannot be bifurcated. An exception to that is the bifurcation of an issue of insurance coverage under 803.04(2)(b).

¶ 22. Most indicative of an intent to disallow bifurcation of issues are the materials presented to this court prior to its adoption of § 805.05(2). In 1974, the Judicial Council submitted its proposed version of § 805.05(2) to the court. The court then conducted public hearings and accepted input from interested parties. Included in the feedback received by the court were calls for the inclusion of a provision in § 805.05(2) that would allow for the bifurcation of issues.

¶ 23. In response to the objections to proposed § 805.05(2), the Judicial Council submitted a memorandum to the court reiterating its position with regard to the bifurcation of issues. The Council explained that it deliberately drafted a rule that did not allow for bifurcation of issues:

805.05(2) This permits bifurcation of claims but does not permit bifurcation of issues, except for insurance coverage issues. The Committee did not accept the suggestion that issues could also be bifurcated.

Drafting Committee's Memorandum Brief in Response to Objections, at 5 (August 1974) (on file with Wisconsin State Law Library).

¶ 24. After receiving the objections and the response of the Judicial Council, this court subsequently adopted § 805.05(2) as proposed by the Judicial Council. See Supreme Court Order, 67 Wis. 2d 585, 691-93 (1975). The documented history of § 805.02(2) thus demonstrates that the Judicial Council drafted, and this court adopted, § 805.05(2) specifically intending that issues were not to be bifurcated. Given this clear evidence of an intent to disallow bifurcation wé conclude that the circuit court's order to bifurcate the trial of separate issues before different juries contravenes § 805.05(2).

¶ 25. In addition to § 805.05(2), our conclusion that the circuit court's order to bifurcate was invalid is reinforced by § 805.09(2). That provision, which establishes the requisite elements of a valid jury verdict, states as follows:

(2) Verdict. A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five-sixths of the jurors must agree on all the questions.

Wis. Stat. (Rule) § 805.09(2).

¶ 26. In prior cases we have explained that § 805.09(2) codifies the constitutional guarantee of a five-sixths jury verdict of Article I, § 5 of the Wisconsin Constitution. Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 401, 331 N.W.2d 585 (1983). While the first sentence of the statute codifies the constitutional protection, the second sentence provides protection more explicit than the constitutional guarantee. The second sentence of § 809.05(2) requires the same five-sixths of a jury to agree to all questions necessary to sustain a claim in order for a jury's verdict to be valid. We have explained that this language requires a "claim-by-claim" review of a verdict. Id. Thus, when we subject a verdict to scrutiny, we examine each question necessary to sustain a claim to insure that the same five-sixths of the jury agrees on all the issues necessary to sustain that claim. Id.

¶ 27. We believe that the circuit court's order to bifurcate the issues of liability and damages and to try them before different juries cannot be reconciled with the requirements of the § 805.09(2) five-sixths verdict protection. In the context of a negligence claim, in order for a jury to render a valid verdict under the plain language of § 805.09(2), the same five-sixths of the jury must agree on all questions necessary to sustain that claim of negligence. Because the requirement that the same five-sixths of the jury must agree on all questions cannot be met where the questions are answered by an entirely different jury panel, we conclude that the circuit court's order in this case is invalid.

¶ 28. In light of the statutory provisions and statutory history that we believe wholly undermine the validity of the circuit court's order to bifurcate, we only briefly address several arguments raised by the defendants in support of their position.

¶ 29. In advancing their statutory argument, the defendants rely to a large degree on the court of appeals decision in Zawistowski, 160 Wis. 2d 292. In Zawistowski, the court of appeals approved of a circuit court's order to bifurcate issues in a defamation trial. After examining numerous statutory provisions, including § 805.05(2), the court of appeals concluded that §906.11(1) provided the circuit court with the "inherent discretion to bifurcate issues for reasons of judicial economy." Id. at 300.

¶ 30. In Zawistowski, the court of appeals concluded that while § 805.05(2) does not authorize bifurcating individual issues of trial, "neither does it prohibit the trial court from taking such an action." Id. at 299. This conclusion cannot stand in light of the statements of intent to disallow bifurcation revealed in the statutory history of § 805.05(2) presented above. While it is unclear from the Zawistowski decision whether the circuit court contemplated trials before the same or different juries, to the extent that opinion is inconsistent with today's decision, it is overruled.

¶ 31. Moreover, while we agree that the eviden-tiary rule § 906.11(1) provides the circuit court with broad discretion in its control over the presentation of evidence at trial, that discretion is not unfettered. It must give way where the exercise of discretion runs afoul of other statutory provisions that are not discretionary. In the context of bifurcation of issues for trial before different juries, § 805.05(2) and § 805.09(2) limit that discretion.

¶ 32. The defendants also present an argument addressing the powers of this court and the court of appeals to remand cases upon reversal for the retrial of discrete issues rather than directing that the entire case be retried. The defendants essentially assert that the bifurcation of issues by the circuit court is indistinguishable from the retrial of isolated issues on remand and that we cannot invalidate one practice without calling into question the other. We disagree.

¶ 33. Wisconsin Stat. § 808.09 grants the appellate courts of this state the power to remand issues for a new trial. It specifically provides that an appellate court may "reverse, affirm or modify [a] judgment or order as to any or all of the parties; [and] may order a new trial." Wis. Stat. § 808.09. Over a century ago we explained that "[tjhe power to affirm, reverse, or modify a judgment in part, and order a new trial, necessarily confers the power upon this court to order a new trial as to the part of the judgment reversed." Braunsdorf v. Fellner, 76 Wis. 1, 18, 45 N.W. 97 (1890). This remains true today. Thus, contrary to the defendants' assertions, remand for partial retrial by an appellate court and bifurcation by a circuit court are distinguishable. One is specifically authorized by statute, whereas the other is prohibited.

¶ 34. Finally, we note defendants have raised numerous policy arguments advancing the merits of bifurcated trials on separate issues. Because we have concluded that the question of bifurcation raised in this case is addressed by § 805.05(2) and § 805.09(2), we will not entertain these policy arguments to reach a result contrary to that required by the statutes. To do so on appeal would be an inappropriate exercise of our rule-making power. See Rupp v. Travelers Indent. Co., 17 Wis. 2d 16, 23, 115 N.W.2d 612 (1962). This court makes changes to pleading and practice rules through the procedure set forth in Wis. Stat. § 751.12. Id.

¶ 35. In sum, the court of appeals has asked us to "determine whether the circuit court properly ordered trials on liability and damages before separate juries." In answering the certification, we conclude that bifurcating the issues of liability and damages for separate trials before different juries cannot be reconciled with the rules of civil procedure. Because there is an intent to disallow bifurcation of separate issues underlying § 805.05(2) and because it is impossible for different juries trying bifurcated issues of liability and damages to render a valid verdict under § 805.09(2), we conclude that the circuit court’s order to bifurcate is invalid. Having concluded that § 805.05(2) and § 805.09(2) are determinative of this appeal, we need not address the plaintiffs' constitutional challenge.

I — I I — I

¶ 36. We next turn to the issues raised on the Pertzborns' cross-appeal. The questions posed by the cross-appeal relate to the circuit court's denial of summary judgment and the interpretation and application of the recreational immunity statute, Wis. Stat. § 895.52.

¶ 37. We review a grant or denial of summary judgment independently of the determination rendered by the circuit court, applying the same methodology used by the circuit court. Robinson v. City of West Allis, 2000 WI 126, ¶ 26, 239 Wis. 2d 595, 619 NW.2d 692. A motion for summary judgment shall be granted when the pleadings and supporting papers reveal no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). The interpretation and application of a statute present questions of law, subject to our independent review. State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536.

¶ 38. In challenging the circuit court's denial of summary judgment, the Pertzborns claim that the social guest exception to recreational immunity provided by § 895.52(6)(d) does not apply and that they are entitled to recreational immunity under § 895.52(2)(b) for any damages arising from Christopher's accident. We agree with the circuit court that under the facts of this case it is improper to grant summary judgment to the Pertzborns. The summary judgment materials present genuine issues of material fact as to whether the § 895.52(6)(d) social guest exception to recreational immunity applies.

¶ 39. Under § 895.52(2)(b), the precondition for recreational immunity is that the injury be to or caused by a person engaging in recreational activity on the owner's property. Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 634, 547 N.W.2d 602 (1996). Christopher was injured while he was engaging in a recreational activity. See Wis. Stat. § 895.52(l)(g) (including sledding as a recreational activity). However, recreational immunity is subject to statutorily enumerated exceptions, including the social guest exception of § 895.52(6)(d).

¶ 40. Under the social guest exception, invited social guests, unlike permitted entrants, may proceed against a landowner under certain circumstances when they are injured while engaged in a recreational activity. See Ervin v. City of Kenosha, 159 Wis. 2d 464, 475, 464 N.W.2d 654 (1991) (drawing distinction between permitted entrants and invited social guests). The social guest exception is established by § 895.52(6)(d) and exists where there is an express and individual invitation made to the injured party by the private property "owner" for the specific occasion during which the injury occurs:

(6) LIABILITY; PRIVATE PROPERTY. Subsection (2) does not limit the liability of a private property owner or of an employe or agent of a private property owner whose property is used for a recreational activity if any of the following conditions exist:
(d) The death or injury occurs on property owned by a private property owner to a social guest who has been expressly and individually invited by the private property owner for the specific occasion during which the death or injury occurs, if the death or injury occurs on any of the following:
2. Residential property.

Wis. Stat. § 895.52(6)(d). The term "owner" as it is used in the provision includes a person that "owns, leases, or occupies the property." Wis. Stat. § 895.52(l)(d)l.

¶ 41. The Pertzborns contest the applicability of the social guest exception on several grounds. First, they maintain that Kathleen Pertzborn was without the legal authority to extend an invitation that would trigger the social guest exception. Second, the Pertzborns argue that there was no express and individual invitation to trigger the exception. Third, they also contend that even if such invitation existed, it had expired by the time Christopher was injured and Kathleen had gone inside for supper.

¶ 42. We turn first to Kathleen's authority to extend an invitation under § 895.52(6)(d). While the Pertzborns make much of the fact that neither Diane nor Kenneth Pertzborn invited Christopher to their home to sled, that fact is not controlling. The only alleged invitation to be found in the summary judgment materials arose from Kathleen. The Pertzborns maintain that Kathleen had no authority to invite Christopher and trigger the social guest exception because she was merely eleven years old. Their position is not supported by the statute. The statute requires only that an "owner" of the property invite the injured party. An "owner" under § 895.52(l)(d)l includes an "occupant." The statute contains no age limitation, and we will not read one into the statute.

¶ 43. The Pertzborns additionally direct us to court of appeals precedent that defines an "occupant" as one who "has actual possession of the property." Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 351, 575 N.W.2d 734 (Ct. App. 1998). They maintain that Kathleen does not satisfy this requirement. The proffered definition of "occupant" was created to define the outer limits of the term in cases where the term's applicability was not necessarily apparent given the nature of the property. See id. at 348 (ice fishing shanty on lake); Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 487, 431 N.W.2d 696 (Ct. App. 1988) (fairgrounds). We believe that in the context of residential property the ordinary meaning of the term "occupant" encompasses one who resides on the property in question. It is not disputed that Kathleen is a resident of the Pertzborn home. She is therefore an occupant and is capable of extending an invitation that triggers the social guest exception.

¶ 44. The second challenge to the applicability of the social guest exception centers on whether there was an express and individual invitation extended to Christopher. We believe that Christopher's testimony regarding Kathleen's statements and conduct is sufficient to establish a question of fact as to whether Christopher was "expressly and individually invited" to the Pertzborns. Christopher's testimony establishes that the children went to the Pertzborns at Kathleen's behest. He testified that Kathleen wanted to go to the Pertzborns from the Waters and that she "brought" Christopher to her house, saying "let's go over to my house or something." On summary judgment we are required to draw all reasonable inferences in favor of the non-moving party. Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 56, 236 Wis. 2d 435, 613 N.W.2d 142.

¶ 45. The Pertzborns also argue that the social guest exception does not apply because if there was an invitation it was not one to sled at the Pertzborns. The Pertzborns' argument in this regard is not supported by the statutory language. Section § 895.52(6)(d) requires only that the injured party be "expressly and individually invited by the private property owner for the specific occasion during which the death or injury occurs."

¶ 46. The third challenge to the applicability of the social guest exception focuses on whether the invitation had expired by the time Christopher was injured. Under § 895.52(6)(d), for the social guest exception to apply the injured person must have been invited "for the specific occasion during which the death or injury occurs." It is implicit in this provision that an invitation does not create an open-ended exception to immunity unlimited by time or circumstance. Rather, the invitation, and therefore the exception, may cease. The Pertzborns contend that the specific occasion for which Christopher was invited onto their property ended when Kathleen went in for supper and that Christopher unilaterally decided to linger on the property.

¶ 47. Again, we conclude that the summary judgment materials present a disputed issue of fact. Christopher testified that he was waiting on the property because he and Kathleen were to go to the schoolyard to sled following supper. A reasonable inference to draw from this testimony is that Kathleen understood he was waiting for her outside. While Diane Pertzborn testified that Kathleen told her that Christopher had gone home to tend the dogs, Christopher's testimony to the contrary creates a factual dispute on that matter. Thus, while Diane Pertzborn was unaware that Christopher remained on the property, there is an issue of fact as to whether the specific occasion of Kathleen's invitation included the time and circumstances of Christopher's injury, and therefore summary judgment is inappropriate.

¶ 48. Finally, we briefly address an argument raised in passing by the Pertzborns in their reply brief. The Pertzborns argue that the social guest exception does not apply because the injury did not occur on the Pertzborn property. Section 895.52(6)(d) provides an exception to immunity when the "death or injury occurs on the property owned by a private property owner." Wis. Stat. § 895.52(6)(d).

¶ 49. While we acknowledge that Christopher was not on the Pertzborn property when he was injured, we conclude that rendering the social guest exception inapplicable on this basis in this case would be an absurd and unreasonable result. See DeMars v. LaPour, 123 Wis. 2d 366, 370, 366 N.W.2d 891 (1985) ("We must interpret a statute in such a way as to avoid an absurd or unreasonable result."). Christopher was injured while engaged in the continuous act of sledding that began on the Pertzborn property. It was the act of sledding down the Pertzborns' hill that thrust Christopher a few feet beyond the Pertzborn property. It is this continuous act, which began on the Pertzborn property and which propelled Christopher a few feet from that property, that compels our conclusion that § 895.52(6)(d) must be construed to allow for the extension of his social guest status to the injuries suffered by Christopher in Hilltop Drive.

¶ 50. Under the Pertzborns' reading of the statute, Christopher's social guest status would fall away simply because the force and speed generated when Christopher sledded down the Pertzborns' hill propelled him a few feet over their property line. Were we to accept this mechanistic reading of the statute, we would have to nuance the trajectory of Christopher's downhill descent in a manner that would ignore the laws of physics. Rather than subject the statute to such an unreasonable construction, we conclude that under the facts presented to us in this case the plaintiffs may proceed under the social guest exception to recreational immunity provided by § 895.52(6)(d).

Ill

¶ 51. In sum, our answer to the certified issue is that the circuit court is precluded by statute from ordering separate trials before different juries on the issues of liability and damages arising from the same claim. We also conclude that because there are numerous disputed issues of material fact as to whether the § 895.52(6)(d) social guest exception to recreational immunity applies, the circuit court appropriately denied summary judgment. Accordingly, we reverse the circuit court's bifurcation order, affirm the order denying the motion for summary judgment, and remand the cause for further proceedings.

By the Court. — The orders of the circuit court are reversed in part, affirmed in part, and the cause is remanded for further proceedings.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 52. (concurring). I join Part I of this opinion relating to the bifurcation of the issues of liability and damages. As to Part II, I agree that the plain meaning of the statute leads to an absurd result in this case. Statutory interpretation is necessary. In contrast, a plain meaning of the statute does not lead to an absurd result in Urban v. Grasser, 2001 WI 63, 243 Wis. 2d 673, 627 N.W.2d 511.

¶ 53. This case once again demonstrates that the recreational immunity statute needs legislative attention. See Wis. Stat. §§ 13.83(l)(c)l and 13.93(2)(d) (1999-2000).

       The appeal and cross-appeal before us are from orders entered in the Circuit Court for Barron County, Judge Edward R. Brunner presiding.
      Richard and Connie Waters are represented by separate counsel, but join in the arguments submitted on behalf of Christopher Waters for purposes of this appeal and cross-appeal.

       All subsequent references to the Wisconsin Statutes are to the 1995-96 volumes unless otherwise indicated.

       Our holding in this case responds only to the situation presented to us by the facts of this case: the bifurcation of issues for trial before different juries as ordered by the circuit court. We are not asked to decide the validity of separate trials before the same jury.

       "Defendants" here refers to the Hauses, Pertzborns, and their insurers, who are all respondents to the plaintiffs' appeal on the matter of bifurcation.

       Under Wis. Stat. § 751.12, this court is granted the authority to promulgate rules regulating pleading, practice and proceedings in the courts of this state. The Judicial Council is the body charged with acting in "an advisory capacity to assist the court in performing its duties under [§ 751.12]." § 751.12.
      We may look to Judicial Council materials in determining the meaning of a statute promulgated under our rule-making authority. See State v. Lee, 197 Wis. 2d 959, 964 n.3, 542 N.W.2d 143 (1996).

       Federal Rule of Civil Procedure 42(b) reads as follows:
      (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial on any claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.
      Fed. R. Civ. P. 42(b) (emphasis added).
      Secondary sources discussing the contrast between § 805.05(2) and Federal Rule 42 have explained the practical effect of this in a negligence action:
      Unlike Federal Rule 42, subsection (2) does not permit separate trials for separate issues (for example, in a negligence action, separate trials on the issue of liability and the issue of damages), but rather, separate trials for discrete claims.
      Patricia Graczyk, The New Wisconsin Rules of Civil Procedure: Chapters 805-807, 59 Marq. L. Rev. 671, 680 (1976); see also 3A Jay E. Grenig & Walter L. Harvey, Wisconsin Practice: Civil Procedure § 505.3 (1994).

       The first proposed draft of § 805.05(2) prepared by the Judicial Council Rules Revision Committee followed the approach of Federal Rule 42 and allowed separate trials for "any separate issue or of any number of claims, or issues." Tentative Draft No. 1, 805.07 (Rule 42), Judicial Council Civil Rules Revision Committee, December 1972. In January 1973, the Committee, by a 5-2 vote, struck all language allowing separate trials for issues. Minutes of January 19 & 20, 1973 Meeting of the Judicial Council Civil Rules Revision Committee at 3. Section 805.05(2) as it appears in the second proposed draft is substantially the rule that was adopted by this court. Compare Tentative Draft No. 2, 805.07 (Rule 42), Judicial Council Civil Rules Revision Committee, February 1973 with Wis. Stat. § 805.05(2).
      The records of the Judicial Council Committee are on file with the Wisconsin State Law Library.

       Letter from Reuben W. Peterson, Chairman, Judicial Council, to the Honorable Michael T. Sullivan, Circuit Court for Milwaukee County (April 16, 1974) (on file with Wisconsin State Law Library).

       For example, the Executive Committee of the Milwaukee County Board of Judges submitted, on several occasions, its recommendation that bifurcation of issues be allowed under § 805.05(2)(b). See Letter from the Honorable Michael T. Sullivan, Circuit Court for Milwaukee County, to Honorable Horace W. Wilkie, Chief Justice, Wisconsin Supreme Court (Jan. 23, 1975); Letter from the Honorable Michael J. Barron, Circuit Court for Milwaukee County, to the Justices of the Wisconsin Supreme Court (Apr. 26,1974). Another organization objecting to the proposed § 805.05(2) and pursuing a provision that would allow for bifurcation of issues was the Milwaukee Junior Bar Association. See Letter from Heiner Giese, Member, Executive Board, Milwaukee Junior Bar Association, to Justices of the Wisconsin Supreme Court 3 (Oct. 21, 1974). Numerous objections and recommendations were also made by individual law firms and members of the bar. See, e.g., Letter from John E. Schapekahm, Kasdorf, Henderson, Dali, Lewis & Swietlik, to Justices of the Wisconsin Supreme Court 7 (Oct. 31,1974).
      The cited materials are on file with the Office of the Clerk of the Supreme Court.

       Article I, Section 5 of the Wisconsin Constitution provides:
      The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof.
      Wis. Const, art. I, § 5.

       The language requiring that the same five-sixths of the jury agree on all the questions necessary to sustain a claim was created by the legislature in 1951. Chapter 36, Laws of 1951; see Wis. Stat. § 270.25(1) (1973). Identical language was adopted by this court when it promulgated § 805.09(2). See Supreme Court Order, 67 Wis. 2d 585, 700 (1975); see also Tentative Draft No. 1, 805.11 (Rule 48), Judicial Council Civil Rules Revision Committee, February 1973 ("Sub. (2) is virtually identical to s. 270.25 (1).").

       Section 906.11, entitled "Mode and order of interrogation and presentation," states in pertinent part:
      (1) Control by judge. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (a) make the interrogation and presentation effective for the ascertainment of the truth, (b) avoid needless consumption of time, and (c) protect witnesses from harassment or undue embarrassment.
      Wis. Stat. (Rule) § 906.11(1).

       The defendants also argue that under the rule of legislative acquiescence, we should consider the legislature to have acceded to the court of appeals interpretation of § 906.11 and § 805.05(2) in Zawistowski v. Kissinger, 160 Wis. 2d 292, 466 N.W.2d 664 (Ct. App. 1991), through its silence. The doctrine of legislative acquiescence is a means of ascertaining the intent of the legislature. See State v. Olson, 175 Wis. 2d 628, 641, 498 N.W.2d 661 (1993). The defendants' argument ignores that the statutes at issue in this case and in Zawistowski originated with this court and not with the legislature. Although we share the power to regulate pleading, practice, and procedure with the legislature under § 751.12, the fact that the statutes at issue were promulgated by this court minimizes the legislative acquiescence argument.

       In their briefs, the Pertzborns raise this argument in response to the plaintiffs' constitutional challenge. However, the argument they raise is equally applicable and worthy of discussion in the statutory context, primarily with reference to § 805.09(2).

       Additionally, because we can decide this issue as a matter of statutory law, we need not address certain arguments raised by the defendants in which they advance extra-jurisdictional case law to establish a common law authority to bifurcate issues for trial.

       Wisconsin Stat. § 895.52(2)(b) states:
      (b) Except as provided in subs. (3) to (6), no owner and no officer, employe or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner's property or for any death or injury resulting from an attack by a wild animal.
      Wis. Stat. § 895.52(2)(b).

       The circuit court denied the Pertzborns1 motion for summary judgment, concluding there exist genuine issues of material fact regarding the applicability of the social guest exception to recreational immunity. We affirm the order denying summary judgment on that basis. Accordingly, we need not address whether the Pertzborns are entitled to recreational immunity notwithstanding the social guest exception.