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Langenhahn v. West Bend Mut. Ins. Co.

Court of Appeals of Wisconsin, District III

February 12, 2019

Paula Langenhahn and Keith Langenhahn, Plaintiffs-Appellants,
West Bend Mut. Ins. Co. and American Legion Post 469, Defendants-Respondents, WCA Group Health Trust, Involuntary-Plaintiff, League of Wisconsin Municipalities Mut. Ins. and Village of Marathon City, Defendants.

          APPEAL from a judgment of the circuit court for Marathon County: No. 2013CV829 LAMONT K. JACOBSON, Judge. Affirmed.

          Before Stark, P.J., Hruz and Seidl, JJ.

          HRUZ, J.

         ¶1 Paula Langenhahn was injured when she tripped on a barricade positioned in an unmarked crosswalk while exiting Marathon Fun Days, a four-day community event held on park grounds in the Village of Marathon City. Paula and her husband, Keith Langenhahn, appeal a summary judgment dismissing their personal injury claims against the event organizer, American Legion Post 469, and its insurer, West Bend Mutual Insurance Company. The Langenhahns argue summary judgment on recreational immunity grounds was improper because Post 469 was not a statutory "owner," in that it did not "occupy" the crosswalk where Paula was injured. They also argue the circuit court improperly applied recreational immunity because Paula was not engaged in a recreational activity at the time of her injury.

         ¶2 We conclude the circuit court properly granted Post 469's summary judgment motion. Case law establishes that the producer or organizer of a recreational event like Marathon Fun Days "occupies" the real property on which the event is held, and it is therefore considered an "owner" of the property for purposes of recreational immunity. Moreover, the undisputed evidence in this case establishes that Paula's injury occurred on real property dedicated to a recreational use. Finally, Paula was walking to exit the Marathon Fun Days event at the time of her injury, an act that itself constitutes a recreational activity because it was "inextricably connected" to her attendance at that event. We affirm.


         ¶3 Post 469, a nonprofit organization, organizes and produces Marathon Fun Days in the Village of Marathon City. Marathon Fun Days is a community event that occurs annually during the Labor Day weekend. The event is held at Marathon City Veterans Park, which consists of approximately three square blocks and is bordered on the north by Third Street, on the south by Fourth Street, on the west by Market Street, and on the east by an imaginary extension of East Street, which terminates on both sides of the park.[1] Chestnut Street runs north and south and intersects Third and Fourth Streets, bisecting the park area. The Village owns Veterans Park as well as the surrounding public streets.

         ¶4 On September 3, 2011, the Langenhahns attended an informal class reunion at Marathon Fun Days. Upon arriving at the area, Keith parked their car to the south of the park area, near the intersection of Chestnut Street and Fourth Street, and then they walked across Chestnut Street and Fourth Street to get to the park grounds. The Langenhahns attended Marathon Fun Days for a few hours, during which time they socialized with Keith's former classmates. Alcoholic and other beverages were being served at the event; Keith consumed one beer while attending the reunion.

         ¶5 The Langenhahns left Veterans Park that night through an opening in the fence surrounding the park. They walked across Fourth Street, then east on the sidewalk opposite Veterans Park until they encountered Chestnut Street. Keith told Paula he would walk ahead and unlock the car, and he proceeded to walk slightly ahead of Paula. As Paula stepped off the curb behind him and began to cross Chestnut Street, she tripped over the foot of a metal barricade that was protruding into the crosswalk.[2] Paula severely injured her elbow.

         ¶6 The barricades were present in the intersection because, each year, Post 469 requests that the Village block off Fourth Street to vehicular traffic between East Street and Washington Street. Post 469 officials were aware that people would park to the south of Fourth Street and believed allowing vehicular traffic on Fourth Street presented a danger to children and other pedestrians. Post 469 did not locate food stands, rides, or other structures associated with Marathon Fun Days within Fourth Street, but it did use Fourth Street for a children's parade. In addition, access to Fourth Street is permitted for emergency vehicles and handicap parking.

         ¶7 Rent-A-Flash Company provided Post 469 with the barricades for the event free of charge. Donald Southworth, the head of Post 469's executive committee at the time, told Rent-A-Flash where to deliver the barricades for storage until they were ready for deployment. The appellate record is unclear whether the Village, through its police department, or Post 469 ultimately placed the barricades in the roads.[3] However, it is undisputed that the barricades- including the barricade Paula tripped on-were used in connection with the Marathon Fun Days event.

         ¶8 The Langenhahns filed a negligence action against Post 469.[4]Post 469 subsequently filed a summary judgment motion, asserting the recreational immunity statute, Wis.Stat. § 895.52 (2015-16), [5] barred the Langenhahns' claims. The circuit court concluded that recreational immunity applied, rejecting the Langenhahns' arguments that Post 469 was not a statutory "owner" of the property on which Paula was injured and that Paula was not engaged in a recreational activity at the time she tripped. The Langenhahns now appeal.


         ¶9 We review a grant of summary judgment de novo. Tews v. NHI, LLC, 2010 WI 137, ¶40, 330 Wis.2d 389, 793 N.W.2d 860. The summary judgment methodology is well established. Id., ¶41. Summary judgment must be granted when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Wis.Stat. § 802.08(2). "The purpose of the summary judgment procedure is to avoid trials when there is nothing to try." Tews, 330 Wis.2d 389, ¶42.

         ¶10 The circuit court's grant of summary judgment was based on its conclusion that Post 469 was entitled to recreational immunity. The recreational immunity statute, Wis.Stat. § 895.52, reflects a legislative choice to "expand[] liability protection for landowners who open their private property for public recreational use." Lang v. Lions Club of Cudahy Wis., Inc., 2018 WI.App. 69, ¶15, 384 Wis.2d 520, 920 N.W.2d 329 (citing Westmas v. Creekside Tree Serv., Inc., 2018 WI 12, ¶21, 379 Wis.2d 471, 907 N.W.2d 68). The law is intended to address the "continual shrinkage of the public's access to recreational land in the ever more populated modern world." Hall v. Turtle Lake Lions Club, 146 Wis.2d 486, 489, 431 N.W.2d 696');">431 N.W.2d 696 (Ct. App. 1988).

         ¶11 The statute accomplishes this goal by "removing a property user's potential cause of action against a property owner's alleged negligence." Kautz ex rel. Kautz v. Ozaukee Cty. Agri. Soc., 2004 WI.App. 203, ¶9, 276 Wis.2d 833, 688 N.W.2d 771. Specifically, the recreational immunity statute provides:

(2) No duty; immunity from liability. (a) Except as provided in subs. (3) to (6), no owner and no officer, employee or agent of an owner owes to any person who enters the owner's property to engage in a recreational activity:
1. A duty to keep the property safe for recreational activities.
2. A duty to inspect the property, except as provided under s. 23.115(2).
3. A duty to give warning of an unsafe condition, use or activity ...

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