from an order of the circuit court for Brown County Cir. Ct.
No. 2014CV1810: TIMOTHY A. HINKFUSS, Judge.
Stark, P. J., Hruz and Seidl, JJ.
Carol and Gerald Wilmet appeal an order dismissing their
claims against the City of De Pere and its insurer as being
barred by the recreational immunity statute, Wis . Stat .
§ 895.52 (2015-16). The sole issue on appeal is whether
that statute confers immunity against the claims of a person
who is injured while undisputedly on the property to
supervise a child engaged in "recreational
activity." Like the circuit court, we conclude
supervision of a child engaged in a recreational activity
falls within the statute's ambit. Supervision, by
definition, involves overseeing and directing another's
performance of an activity, and it is similar in meaning to
"practice" and "instruction"-two
activities that are expressly within § 895.52's
scope. Accordingly, we hold the City is entitled to immunity,
and we affirm.
The Wilmets filed the present lawsuit alleging that on August
18, 2012, Carol Wilmet was on the premises of the VFW
Swimming Pool, which the City owns and operates, when she
tripped on a cement doorstop and was injured. The Wilmets
asserted claims for a violation of the safe place statute
(Wis. Stat. § 101.11), negligence, and negligence per
se. The City invoked the recreational immunity statute,
Wis.Stat. § 895.52, as an affirmative defense to each
claim, and it sought the action's dismissal on that
The parties and circuit court treated the City's motion
to dismiss as one for summary judgment. The City appears to
have initially believed that Carol was swimming at the pool.
However, Carol subsequently filed an affidavit in which she
averred that she was at the pool on August 18 to drop off her
grandchildren. After dropping them off, she remained outside
the premises, supervising her grandchildren from behind the
fenced perimeter of the pool as they swam. Carol further
averred her grandson shouted to her that he was going to jump
off the high dive. Carol observed there were no lifeguards in
the area, and she was concerned about her grandson's
safety. Carol told her grandson to wait, entered the pool
premises without paying the entry fee (but with the
attendant's permission), and went immediately from the
entrance through the locker room and toward the high dive.
Carol was injured as she walked toward the high dive. It is
undisputed Carol did not plan to swim at the pool or stay on
the premises following her grandson's dive. According to
Carol, "[t]he only reason [she] entered the Pool
premises was to ensure [her] grandson's safety and
supervise his jump off the high dive."
The Wilmets opposed the City's summary judgment motion on
the basis that Carol, in supervising her grandson, "was
not partaking in a recreational activity just prior to or
when the incident occurred." Rather, the Wilmets argued
Carol was simply walking to get from one place to another,
not to, for example, exercise or enjoy the scenery. Relying
on Rintelman v. Boys & Girls Clubs of Greater
Milwaukee, Inc., 2005 WI.App. 246, 288 Wis.2d 394, 707
N.W.2d 897, the Wilmets argued such walking was not a
"recreational activity" giving rise to immunity.
The City responded that Carol's admitted activity of
supervising her grandson, who was himself indisputably
engaged in a recreational activity, was sufficient to bring
the Wilmets' claims within the ambit of the recreational
The circuit court concluded that, given the undisputed facts,
the City was entitled to recreational immunity. The court
remarked that the recreational immunity statute is to be
liberally construed in favor of protecting property owners.
In the court's view, the legislature's purpose in
enacting the statute-to encourage land owners to open up
their property for recreational use-would be thwarted if
individuals supervising, but not themselves participating in,
a recreational activity were allowed to recover for injuries
sustained during the course of their supervision. The Wilmets
Summary judgment allows controversies to be settled without
trial when there are no disputed material facts and only
legal issues are presented. Lasky v. City of Stevens
Point, 220 Wis.2d 1, 5, 582 N.W.2d 64');">582 N.W.2d 64 (Ct. App. 1998).
In reviewing motions for summary judgment, appellate courts
apply, in the same manner as circuit courts, the standards
set forth in WIS. STAT. § 802.08(2). Kruschke v.
City of New Richmond, 157 Wis.2d 167, 169, 458 N.W.2d
832 (Ct. App. 1990). Summary judgment "shall be rendered
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." Subsec. 802.08(2).
"Recreational immunity under WIS. STAT. § 895.52 is
a defense that may entitle a moving party to summary
judgment." Milton v. Washburn Cty., 2011
WI.App. 48, ¶7, 332 Wis.2d 319, 797 N.W.2d 924. The
statute "recognizes 'the dramatic shrinkage of the
public's access to recreational land in an increasingly
crowded world' and encourages landowners to open their
property to the public for recreational use" by removing
potential causes of action by property users against property
owners. Held v. Ackerville Snowmobile Club, Inc.,
2007 WI.App. 43, ¶8, 300 Wis.2d 498, 730 N.W.2d 428
(quoting Kosky v. International Ass'n of
Lions Clubs, 210 Wis.2d 463, 477, 565 N.W.2d 260 (Ct.
App. 1997)); see also Linville v. City of
Janesville, 184 Wis.2d 705, 715, 516 N.W.2d 427');">516 N.W.2d 427 (1994).
The immunity provisions of the statute together provide
"that owners of land are not liable for injury to a
person engaging in a recreational activity on the owner's
property." Hupf v. City of Appleton, 165 Wis.2d
215, 219, 477 N.W.2d 69 (Ct. App. 1991).
In deciding the applicability of the recreational immunity
statute, we must first determine whether Carol was engaging
in a "recreational activity" under Wis.Stat. §
895.52 at the time she was injured. See Sievert v.
American Family Mut. Ins. Co., 190 Wis.2d 623, 628, 528
N.W.2d 413 (1995). A "recreational activity" is
defined in § 895.52(1)(g), which contains three parts.
The first part "defines recreational activity as
'any outdoor activity undertaken for the purpose of
exercise, relaxation or pleasure, including practice or
instruction in any such activity.'" Auman ex
rel. Auman v. School Dist. of Stanley-Boyd, 2001 WI 125,
¶8, 248 Wis.2d 548, 635 N.W.2d 762 (quoting §
895.52(1)(g) (1999-2000)). The second part of the definition
lists over two dozen specific activities the legislature has
designated as "recreational activities."
Id. "The third part of the statutory definition
broadly adds 'and any other outdoor sport, game or
educational activity.'" Id. (quoting §
When interpreting a statute, we begin with its language.
State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110');">681 N.W.2d 110.
Statutory language is generally given its common, ordinary,
and accepted meaning. Id. In addition, we interpret
statutory language "in the context in which it is used;
not in isolation but as part of a whole; in relation to the
language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results."
Id., ¶46. If this process yields a plain, clear
meaning, there is no ambiguity in the statute and it is
applied accordingly. Id. If the statute is
ambiguous-that is, capable of being understood by reasonable,
well-informed persons in two or more senses-we may resort to
extrinsic interpretive aids, such as legislative history, to
resolve the ambiguity. Id., ¶¶47, 50.
When, as here, the material facts are undisputed, the
interpretation and application of a statute are questions of
law, which we review independently. See Sievert, 190
Wis.2d at 628. There is no dispute Carol's grandson was
engaged in the recreational activities of diving and swimming
at the time Carol was injured. "Water sports" are
designated recreational activities, see Wis. Stat.
§ 895.52(1)(g), and diving is a water sport, see
Strong v. Wisconsin Chapter of Delta Upsilon, 125 Wis.2d
107, 108, 370 N.W.2d 285 (Ct. App. 1985). There is also no
dispute over what Carol was doing at the time she was
injured: Carol was walking through the locker room toward the
high dive to "ensure [her] grandson's safety and
supervise his jump off the high dive."
The Wilmets argue Carol's mere walking at the time she
was injured within the pool area was not a recreational
activity. Wisconsin Stat. § 895.52 does not specifically
identify walking as a recreational activity, but depending on
the circumstances, it may qualify as such. A
"recreational activity" includes a walk that is
"inextricably connected" to an activity that would
otherwise qualify under the statute. Urban v.
Grasser, 2001 WI 63, ¶¶20-21, 243 Wis.2d 673,
627 N.W.2d 511');">627 ...