Paula Langenhahn v. West Bend Mut. Ins. Co. [Recommended for Publication]

2017AP002178

2019 | Cited 0 times | Court of Appeals of Wisconsin | February 12, 2019

COURT OF APPEALS DECISION DATED AND FILED February 12, 2019 Sheila T. Reiff Clerk of Court of Appeals NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62. Appeal No. 2017AP2178 Cir. Ct. No. 2013CV829 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III P AULA L ANGENHAHN AND KEITH L ANGENHAHN , P LAINTIFFS -A PPELLANTS , WCA GROUP HEALTH T RUST , I NVOLUNTARY -P LAINTIFF , V . WEST BEND MUT . I NS . C O . AND A MERICAN L EGION P OST 469,

D EFENDANTS -R ESPONDENTS , L EAGUE OF WISCONSIN MUNICIPALITIES MUT . I NS . AND VILLAGE OF MARATHON C ITY , D EFENDANTS . APPEAL from a judgment of the circuit court for Marathon County : LAMONT K. JACOBSON, Judge. Affirmed . No. 2017AP2178 2 Before Stark, P.J., Hruz and Seidl, JJ. ¶1 HRUZ, J. Paula Langenhahn was injured when she tripped on a barricade positioned in an unmarked crosswalk while exiting Mar athon 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 organi zer, 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 cir cuit 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 sum mary judgment motion. Case law establishes that the producer or organize r 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 p roperty for purposes of recreational immunity. Moreover, the undisputed evidence in this case establishes that Paula’s injury occurred on real prope rty 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 recrea tional activity because it was “inextricably connected” to her attendance at that event. We aff irm. BACKGROUND ¶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 i s held at No. 2017AP2178 3 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 Stre et, on the west by Market Street, and on the east by an imaginary extens ion 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 p arked their car to the south of the park area, near the intersection of Chestnut Stre et and Fourth Street, and then they walked across Chestnut Street and Fourth St reet 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 classmat es. Alcoholic and other beverages were being served at the event; Keith consumed o ne 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 1

The total area described by the documents in the appellate r ecord consists of approximately four blocks. However, it appears the westernm ost “block,” which is bordered by Market Street on the west and Washington Street on the east, is occupied by several buildings and parking lots. It is not clear whether these structures were in use as part of the Marathon Fun Days event. No. 2017AP2178 4 cross Chestnut Street, she tripped over the foot of a metal bar ricade that was protruding into the crosswalk. 2 Paula severely injured her elbow. ¶6 The barricades were present in the intersection because, ea ch year, Post 469 requests that the Village block off Fourth Street to vehicula r traffic between East Street and Washington Street. Post 469 officials were aware that people would park to the south of Fourth Street and believed allowi ng vehicular traffic on Fourth Street presented a danger to children and other ped estrians. Post 469 did not locate food stands, rides, or other structures associated wi th 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 f or the event free of charge. Donald Southworth, the head of Post 469’s exec utive committee at the time, told Rent-A-Flash where to deliver the barricades for storage until they were ready for deployment. The appellate r ecord is unclear whether the Village, through its police department, or Post 469 ultima tely placed 2

The barricades were known as “Type 3” barricades, which are approximately five feet tall and four feet wide. The barricades have striped slat s hanging horizontally on a metal frame and are supported on each end by two “legs,” each of which has tw o “feet” that support the barricade on the ground. One side of the barricade has feet tha t measure 19.5 inches in length, while the other side has longer feet measuring 37 inches in leng th. Keith testified the longer feet were positioned within the crosswalk on Chestnut Street, poin ting south. The crosswalk was not formally identified by any markings. No. 2017AP2178 5 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, W IS. 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 Paul a was not engaged in a recreational activity at the time she tripped. The Langenhahns now appeal. DISCUSSION ¶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 3

The deposition testimony was consistent that Post 469 would instru ct the Village as to which roads it wanted blocked off. However, there was disa greement regarding who was ultimately responsible for the barricades’ physical place ment. Southworth testified that decisions about where and how to place the barricades (as well as their physical deployment in the chosen locations) were handled by the Village police department. Conve rsely, others (including the Village police chief) testified that Post 469 was responsibl e for deploying the barricades prior to the start of Marathon Fun Days. We do not regard the identity of the person or persons who deployed the barricades as a material fact in this case. 4

The Langenhahns filed an amended complaint adding the Village of Marathon City and its insurer as defendants. Those parties were subsequently dismisse d by stipulation. 5

All references to the Wisconsin Statutes are to the 2015-16 vers ion unless otherwise noted. Although the recreational immunity statute has been am ended several times since Paula’s injury, none of the amendments are relevant to this appeal, an d we therefore use the current version of the statute. No. 2017AP2178 6 granted when there is no genuine dispute as to any material fact a nd the moving party is entitled to judgment as a matter of law. W IS. STAT . § 802.08(2). “The purpose of the summary judgment procedure is to avoid trials w hen there is nothing to try.” Tews , 330 Wis. 2d 389, ¶42. ¶10 The circuit court’s grant of summary judgment was based on it s conclusion that Post 469 was entitled to recreational immunity. The recreational immunity statute, W IS. STAT . § 895.52, reflects a legislative choice to “expand[] liability protection for landowners who open their private prop erty 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 recre ational land in the ever more populated modern world.” Hall v. Turtle Lake Lions Club , 146 Wis. 2d 486, 489, 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 negl igence.” 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 provide s: (2) N O 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 on the property. No. 2017AP2178 7 (b) Except as provided in subs. (3) to (6), no owner and no officer, employee 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). ¶12 The statute contains a number of defined terms, including the te rms “owner” and “recreational activity.” See W IS. STAT . § 895.52(1)(d), (1)(g). The Langenhahns argue the circuit court incorrectly concluded that the ci rcumstances of this case satisfy those definitions. Specifically, the La ngenhahns argue 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” when she fell. ¶13 These arguments require that we interpret W IS. STAT . § 895.52 and apply it to the facts of this case. Statutory interpretation and application are questions of law that we review independently of the circuit court. Westmas , 379 Wis. 2d 471, ¶17. We begin with the language of the statute, which we ap ply if it exhibits a plain, clear statutory meaning. Id. , ¶18. We read statutory provisions in the context in which they are used; not in isolation but as part of a whole; in relation to the language of surrounding or closely related statutes; a nd reasonably, to avoid absurd results. Id. , ¶19. In all events, “we favor a construction that fulfills the purpose of the statute over one that defeats statutor y purpose.” Id. (citing County of Dane v. LIRC , 2009 WI 9, ¶34, 315 Wis. 2d 293, 759 N.W.2d 571). To that end, we are to interpret the protections of § 895.52 “ex pansively,” id. , ¶22, consistent with the legislative directive to liberally c onstrue recreational immunity in favor of property owners, see 1983 Wis. Act 418, § 1. No. 2017AP2178 8 I. Post 469 was a statutory “owner” of the property on which Paula was injur ed. ¶14 Recreational immunity applies only to an “owner” of the rel evant property and to the owner’s officers, employees or agents. See WIS. STAT . § 895.52(2)(a), (2)(b). As relevant to this appeal, an owner is define d as “[a] person, including a governmental body or nonprofit organization, that owns, leases or occupies property.” Sec. 895.52(1)(d)1. It is undisputed that Pos t 469 did not own or lease Veterans Park or the surrounding area. Accordingly, P ost 469 can only prevail on recreational immunity grounds by demonstrating it occupied the relevant real property. See Rintelman v. Boys & Girls Clubs of Greater Milwaukee, Inc. , 2005 WI App 246, ¶18, 288 Wis. 2d 394, 707 N.W.2d 897 (observing the proponents of recreational immunity have the burden of provi ng the applicability of § 895.52). ¶15 In Hall , we adopted a definition of “occupy” that focuses on possession of the real property: [O]ccupant include[s] persons who, while not owners or tenants, have the actual use of land. … While “occupant” includes [an] owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to [occupies], the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner. Hall , 146 Wis. 2d at 491 (quoting Smith v. Sno Eagles Snowmobile Club, Inc. , 625 F. Supp. 1579, 1582 (E.D. Wis. 1986) (alterations in Hall )). Despite the “transient” nature of the possessory interest, our supreme court has subsequently endorsed the view that occupancy requires possession that exhibits “a degree of permanence, as opposed to mere use.” Roberts v. T.H.E. Ins. Co. , 2016 WI 20, ¶34, 367 Wis. 2d 386, 879 N.W.2d 492 (quoting Doane v. Helenville Mut. Ins. Co. , 216 Wis. 2d 345, 354, 575 N.W.2d 734 (Ct. App. 1998)). No. 2017AP2178 9 ¶16 Post 469’s occupation of Veterans Park and the surrounding area s to host Marathon Fun Days plainly satisfied these criteria. “ Prior cases interpreting Wisconsin’s recreational immunity law have concluded that the pr oducer of a fair or event ‘occupied’ property.” Roberts , 367 Wis. 2d 386, ¶29. Thus, a fraternal organization that produced a “hometown fair” within a village par k was deemed to “occupy” that property. See Hall , 146 Wis. 2d at 490. Similarly, in Lee v. Elk

Rod & Gun Club, Inc. , 164 Wis. 2d 103, 473 N.W.2d 581 (Ct. App. 1991), we concluded that a hunting and fishing club, “as an occupant of the city p ark land, is treated as a landowner for purposes of recreational immunity.” Id. at 107. Roberts relied on these authorities in reinforcing that an event sponsor or organizer who is responsible for opening up the land to the publi c is to be treated differently than a third party that has no such responsibility. See Roberts , 367 Wis. 2d 386, ¶¶33, 37. The sponsor or organizer occupies the property, while the third party merely uses it. ¶17 The Langenhahns place substantial weight on Roberts in claiming that Post 469 should not benefit from recreational immunity. Roberts involved a lawsuit against the owner and operator of a company that offere d hot air balloon rides at a charity event. Id. , ¶¶5-6. A recreational club owned the shooting range at which the event was held, and a special needs organization was the event sponsor. Id. , ¶5. The court distinguished the hot air balloon company from the producer or sponsor of a recreational event, concluding that the legislat ive policy underlying W IS. STAT . § 895.52 would not be promoted by deeming a party unassociated with the opening of the land for recreational use a s tatutory “occupier.” Roberts , 367 Wis. 2d 386, ¶¶36-41.

¶18 Here, the Langenhahns argue that Post 469 is in a similar posit ion to the hot air balloon company in Roberts . However, in doing so, they focus No. 2017AP2178 10 narrowly on the specific crosswalk where Paula was injured, ass erting that Post 469 could not have opened the crosswalk to the public because it was already open for all pedestrians to use throughout the Marathon Fun Days e vent. Their narrow focus on the crosswalk—which we will address momentarily—f ails to account for Post 469’s status as the organizer and producer of Marathon F un Days, a status that materially distinguishes it from the hot air balloon company in Roberts . Roberts established that an event organizer “occupies” the relevant property regardless of whether such a status might be consistent with the statute’s philosophical underpinnings in a given case. 6

See id. , ¶¶33, 37. And as Roberts and the cases cited therein make clear, the producer of a commu nity event like Marathon Fun Days “occupies” the real property with suffici ent permanence to qualify for immunity. ¶19 The Langenhahns’ argument that immunizing Post 469 does not advance the legislature’s policy goals is, in fact, merely a var iation of a different argument of theirs—namely, that the specific crosswalk at iss ue was not sufficiently withdrawn from public use to warrant immunity. I n the Langenhahns’ view, to be eligible for recreational immunity, Post 469 must ha ve completely withdrawn the crosswalk from general public use and dedicated it solely to a recreational activity. As authority, the Langenhahns primaril y rely on Kostroski v. County of Marathon , 158 Wis. 2d 201, 462 N.W.2d 542 (Ct. App. 1990). 6

The Langenhahns do not develop any argument that Post 469 is not ent itled to immunity because Marathon Fun Days primarily took place in a public park. In any event, prior cases establish that an event organizer receives the benef it of recreational immunity even if the event takes place on public lands. See Lee v. Elk Rod & Gun Club, Inc. , 164 Wis. 2d 103, 107, 473 N.W.2d 581 (Ct. App. 1991); Hall v. Turtle Lake Lions Club , 146 Wis. 2d 486, 490, 431 N.W.2d 696 (Ct. App. 1988). No. 2017AP2178 11 ¶20 In Kostroski , a party injured on a portable wooden sidewalk in a county park argued that an earlier case, Bystery v. Village of Sauk City , 146 Wis. 2d 247, 430 N.W.2d 611 (Ct. App. 1988), carved out an exception to recreational immunity when the injury occurred on a municipal si dewalk. Kostroski , 158 Wis. 2d at 203-04. Indeed, the Bystery court had declared that WIS. STAT . § 895.52 conflicted with the then-existent W IS. STAT . § 81.15 (1987-88), which permitted a person injured by “the insufficiency or want of repairs” to a highway or public sidewalk to recover damages from the municipality. Bystery , 146 Wis. 2d at 251. In an attempt to harmonize these statutes, Bystery held that a municipality is immune from liability for negligen t maintenance of a highway or sidewalk “only when the municipality has wit hdrawn the highway or sidewalk from transportation uses, in whole or in par t, has devoted the highway or sidewalk to recreational activities as define d in sec. 895.52(1)(g),

and the claimed damages result from a recreational activity.” Bystery , 146 Wis. 2d at 251-52. ¶21 The Kostroski court, purporting to apply Bystery , concluded that recreational immunity applied to bar the plaintiff’s claim. In asserting that recreational immunity applies only if a road or sidewalk is dedic ated exclusively to recreational activities, the Langenhahns rely on the following paragraph: The portable sidewalk, whose only purpose was to provide access over a racetrack and connect two areas of the county park, was sufficiently withdrawn or withheld from transportation uses and devoted to recreational activities so as to comply with the test set forth in Bystery . The location of this sidewalk within the boundaries of a park is not dispositive. Were this sidewalk available for purposes of general transportation by the public, the mere fact that the injured user was engaged in recreational activity within the park would not provide immunity. The dispositive feature of this sidewalk is its solitary purpose to serve only those No. 2017AP2178 12 attempting to enter or leave the ball park otherwise surrounded and enclosed by the racetrack. Kostroski , 158 Wis. 2d at 204-05. ¶22 There are two problems with the Langenhahns’ reliance on Kostroski , and we conclude it cannot be read for the proposition that comp lete withdrawal and devotion to recreational activities is necessary. First, there is no longer a statutory conflict; W IS. STAT . § 81.15 (1987-88), and its provisions relating to municipal liability for negligent highway or sidewalk maintenance have been repealed. See 2003 Wis. Act 213, § 136 (renumbering the statute); 2011 Wis. Act. 132 (repealing liability for negligent maintenance). Becaus e the conflict addressed in Bystery (and, consequently, Kostroski ) no longer exists, the precedential vitality of the court’s resolution of that conflict is unclear . 7

¶23 The larger problem for the Langenhahns is that even if Kostroski remains good law, it does not require that a sidewalk (or cros swalk) be overtly dedicated entirely to recreational purposes. Bystery held that it is sufficient that the municipality withdraw the highway or sidewalk from transport ation uses “in whole or in part” and devote the area to a recreational activit y. 8

The Kostroski 7

We recognize that at the time of Paula’s injury in 2011, the hi ghway liability statute remained in effect. See WIS. STAT . § 893.83 (2009-10). Thus, we do not rely solely on the absence of a statutory conflict in resolving whether Post 469 “occupied” the crosswalk in which Paula was injured. 8

We subsequently recognized that Bystery ’s statement about devoting the street or sidewalk to recreational activities, see Bystery v. Village of Sauk City , 146 Wis. 2d 247, 251-52,

430 N.W.2d 611 (Ct. App. 1988), was “unnecessary to the resolution of t he appeal” because it was undisputed that the Village of Sauk City had failed on the first criterion: it had not withdrawn the sidewalk from public transportation use. See Verdoljak v. Mosinee Paper Corp. ,

192 Wis. 2d 235, 248, 531 N.W.2d 341 (Ct. App. 1995), aff’d , 200 Wis. 2d 624, 547 N.W.2d 602 (1996). No. 2017AP2178 13 court merely held that a sidewalk that is entirely associated with recreational activities passes muster under the Bystery test. Regardless of the court’s statements about other possible scenarios and uses, it was not confronted with a situation in which the area was being used for recreational purpose s but was also available for use by the general public. ¶24 The better analogy is to Lasky v. City of Stevens Point , 220 Wis. 2d 1, 582 N.W.2d 64 (Ct. App. 1998), in which we applied the recreational immunit y statute to bar personal injury claims arising out of a fall on a wooden bridge in a city park. The injury occurred on the Riverfront Trail, which was part of the Green Circle Trail, a twenty-four-mile cycling and hiking trail that included a combination of city streets, sidewalks, paths and trails. Id. at 4. The accident happened in winter, when the Riverfront Trail was closed to motor vehicles but was still used by pedestrians, skaters and bicyclists. Id. Applying Bystery and Kostroski , we concluded the fact that the trail was closed to motor vehicle traffic in the winter and “unavailable for general transportation” sati sfied the “withdrawal and devotion” requirement. Lasky , 220 Wis. 2d at 12-13. ¶25 Here, it is beyond dispute that the area of Fourth Street a round Marathon Fun Days was withdrawn from general vehicular transport ation uses. The area was barricaded to prevent motor vehicle use, even if certain motorists (i.e., emergency vehicles and vehicles using handicap parking) were a llowed to operate within that area. As a matter of law, this consti tuted a sufficient No. 2017AP2178 14 withdrawal from general transportation purposes and devotion to recre ational activities so as to satisfy the Bystery requirements. 9 ¶26 The Langenhahns object that Paula was injured in a crosswalk for Chestnut Street, not a crosswalk traversing Fourth Street. They assert the Marathon Fun Days grounds were “limited to the borders of … Vetera ns Park and potentially 4th Street” and did not include the Chestnut Street cross walk “located several feet south” of Fourth Street. They also argue that, at a minimum, there is a genuine issue of material fact regarding whether Paula’s fall oc curred in an area “occupied” by Post 469.

10 ¶27 Whatever else may be said about the Chestnut Street cros swalk, it is clear that Post 469 occupied at least the portion of it that inc luded the barricade on which Paula tripped. As the circuit court astutely observed, “it would be incongruous to say that [Post 469] was responsible for the presence of the barricades but that it was not occupying the property where they were situated.” The boundary of the area withdrawn for general transportation purposes , as a 9

The Langenhahns do not explain, even in general terms, how a requir ement of complete devotion to recreational activities would operate in p ractice. They do not, for example,

argue the Village or Post 469 was required to post signs that t he area was available only for recreational pedestrian activity, or that it was require d to direct pedestrians not attending Marathon Fun Days away from the intersection. Neither did the court in Kostroski explain how such a requirement would work, lending further support to our conclusion th at the Langenhahns read that decision too broadly. See Kostroski v. County of Marathon , 158 Wis. 2d 201, 204, 462 N.W.2d 542 (Ct. App. 1990). 10

The Langenhahns appear to have forfeited any argument that rever sal is warranted because a genuine issue of material fact exists as to whe ther Post 469 occupied the crosswalk in which Paula was injured. They argued in their brief opposing summary judgment that Paula was undisputedly not injured on occupied property, asserting that opposing counsel had effectively conceded—by his manner of framing deposition questions posed to Paul a—that the accident occurred on non-occupied property. The Langenhahns did not argue there was a factual dispute that made summary judgment improper, and we usually do not consid er arguments raised for the first time on appeal. See State v. Bodoh , 226 Wis. 2d 718, 737, 595 N.W.2d 330 (1999). No. 2017AP2178 15 matter of law, included the barricades that prevented motor ve hicle access to Fourth Street. Thus, we reject the argument that Post 469 did not “oc cupy” the Chestnut Street crosswalk. The presence of the barricades pla inly evidences Post 469’s occupancy of it, and no reasonable fact finder could conclude otherwise. II. Paula was participating in a recreational activity at the time of he r injury. ¶28 The recreational immunity statute requires that the injur ed party had been engaging in a “recreational activity.” See WIS. STAT . § 895.52(2). The statute defines that phrase in three ways. See Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of La Crosse , 2001 WI 64, ¶10, 244 Wis. 2d 290, 627 N.W.2d

527. First, “recreational activity” is broadly defined to include “any outdoor activity undertaken for the purpose of exercise, relaxation or pleas ure, including practice or instruction in any such activity.” Sec. 895.52(1)(g). Second, the definition identifies more than thirty activities specificall y denominated as recreational, including “picnicking.” Id. Third, the statute includes another broad definition, directing that a recreational activity can be “any other outdoor sport,

game or educational activity.” Id. ¶29 The parties generally agree that Paula was walking at the t ime she was injured. As we explained in Wilmet v. Liberty Mutual Insurance Co. , 2017 WI App 16, 374 Wis. 2d 413, 893 N.W.2d 251, W IS. STAT . § 895.52 “does not specifically identify walking as a recreational activity, bu t depending on the circumstances, it may qualify as such.” Id. , ¶11. A walk that is “inextricably connected” to an activity that would otherwise qualify the owner for immunity under the statute is itself a recreational activity. Id. (citing Urban v. Grasser ,

2001 WI 63, ¶¶20-21, 243 Wis. 2d 673, 627 N.W.2d 511). No. 2017AP2178 16 ¶30 The parties dispute the activity to which Paula’s walking s hould be attributed. The Langenhahns argue Paula’s walk was “inextricabl y connected to attending a class reunion” and that attending a class reunion is not a recreational activity because it is not inherently an outdoor activity and is not undertaken for the purpose of exercise, relaxation or pleasure. Post 469, on the other hand, argue s the circumstances of this case fall within the definition of a “recreational activity” because Paula’s attendance at the Marathon Fun Days event was the equivalent of “picnicking,” a specifically enumerated activity. As a res ult, Post 469 asserts Paula’s conduct plainly fell within the scope of immunity conf erred by W IS. STAT . § 895.52. See WEA Prop. & Cas. Ins. Co. v. Krisik , 2013 WI App 139, ¶14, 352 Wis. 2d 73, 841 N.W.2d 290 (holding that if a person is engaged in a specific ally enumerated activity, it is unnecessary to consider whether the a ctivity was undertaken for a permissible purpose). ¶31 We agree with Post 469 that the Langenhahns’ formulation of the activity with which Paula’s walk was associated is too narr ow. “Each recreational immunity case ‘poses an intensely fact-driven inquiry.’” Wilmet , 374 Wis. 2d

413, ¶14 (quoting Auman ex rel. Auman v. School Dist. of Stanley-Boyd , 2001 WI 125, ¶12, 248 Wis. 2d 548, 635 N.W.2d 762). We must examine all the circumstances surrounding the activity, keeping in mind the legislat ive purpose of the recreational immunity statute. Urban , 243 Wis. 2d 673, ¶13. Thus, we must examine the broader context of the Langenhahns’ presence on property t hat Post 469 occupied, as opposed to focusing narrowly on their purpose of at tending an informal class reunion. ¶32 Indeed, the property user’s intent is but one of several fac tors to consider in determining whether an activity is recreational in nature. No. 2017AP2178 17 We apply a multi-factor test to ascertain whether a particular activity is ‘substantially similar’ to those enumerated in the statute, including: (1) the activity’s intrinsic nature; (2) the purpose of the activity; (3) the activity’s consequences; (4) the property user’s intent and reason for being on the property; (5) the nature of the property; and (6) the property owner’s intent. The focus of the inquiry is whether, under the totality of the circumstances, a reasonable person would understand the injured person to have entered the property to engage in a recreational activity. Wilmet , 374 Wis. 2d 413, ¶14 (citations omitted). ¶33 Here, the Langenhahns were attending an informal class reunion held on the grounds of, and during, the Marathon Fun Days event. The Langenhahns present no basis for distinguishing their attendance at the class reunion from their presence at Marathon Fun Days. They were engage d in socializing with friends and Keith drank an alcoholic beverage while in the park. There were apparently food stands and amusement rides located on t he grounds for attendees. The event appears similar to the fair we dee med a “recreational activity” in Hall . See Hall , 146 Wis. 2d at 488.

¶34 More recent case law also supports our conclusion that atten dance at the Marathon Fun Days event—even for an informal class reunion—consti tutes a “recreational activity.” In Carini v. ProHealth Care, Inc. , 2015 WI App 61, 364

Wis. 2d 658, 869 N.W.2d 515, we considered whether walking to an employer- sponsored picnic at the Milwaukee County Zoo constituted participati on in a recreational activity. Id. , ¶¶3, 11-12. The event included food and beverage tents, public seating, a band, and toilet facilities. Id. , ¶3. The injured employee focused on the fact that she was walking to the event at the time of he r injury, and she did not dispute that she would have been engaged in a recreational activit y once she No. 2017AP2178 18 arrived. Id. , ¶11. Nonetheless, we independently observed that the circum stances were akin to “picnicking,” a specifically enumerated recreational act ivity. Id. ¶35 The Langenhahns’ walking to exit Marathon Fun Days was inextricably connected to their attendance at the event, and it wa s therefore a recreational activity qualifying Post 469 for immunity. “Our ca se law makes clear that the act of walking to or from an immune activity constitutes a recreational activity.” Id. , ¶12. The Langenhahns were on a course to their car to leave the event at the time Paula was injured, and they were therefore engaged in a “recreational activity.” For this reason, it is immaterial whether Paula was doing things like socializing or eating at the time of her fall. See id. CONCLUSION ¶36 We conclude the circuit court properly granted Post 469’s sum mary judgment motion. As a producer or organizer of the Marathon Fun Days event, Post 469 was an “owner” under W IS. STAT . § 895.52. Paula was engaged in a recreational activity at the time of her injury, which occurre d on real property occupied by Post 469. The court correctly concluded recreational immunity applied under these circumstances, and we affirm the grant of summary judgment. By the Court. —Judgment affirmed. Recommended for publication in the official reports.

COURT OF APPEALS DECISION DATED AND FILED February 12, 2019 Sheila T. Reiff Clerk of Court of Appeals NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62. Appeal No. 2017AP2178 Cir. Ct. No. 2013CV829 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III P AULA L ANGENHAHN AND KEITH L ANGENHAHN , P LAINTIFFS -A PPELLANTS , WCA GROUP HEALTH T RUST , I NVOLUNTARY -P LAINTIFF , V . WEST BEND MUT . I NS . C O . AND A MERICAN L EGION P OST 469,

D EFENDANTS -R ESPONDENTS , L EAGUE OF WISCONSIN MUNICIPALITIES MUT . I NS . AND VILLAGE OF MARATHON C ITY , D EFENDANTS . APPEAL from a judgment of the circuit court for Marathon County : LAMONT K. JACOBSON, Judge. Affirmed . No. 2017AP2178 2 Before Stark, P.J., Hruz and Seidl, JJ. ¶1 HRUZ, J. Paula Langenhahn was injured when she tripped on a barricade positioned in an unmarked crosswalk while exiting Mar athon 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 organi zer, 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 cir cuit 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 sum mary judgment motion. Case law establishes that the producer or organize r 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 p roperty for purposes of recreational immunity. Moreover, the undisputed evidence in this case establishes that Paula’s injury occurred on real prope rty 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 recrea tional activity because it was “inextricably connected” to her attendance at that event. We aff irm. BACKGROUND ¶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 i s held at No. 2017AP2178 3 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 Stre et, on the west by Market Street, and on the east by an imaginary extens ion 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 p arked their car to the south of the park area, near the intersection of Chestnut Stre et and Fourth Street, and then they walked across Chestnut Street and Fourth St reet 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 classmat es. Alcoholic and other beverages were being served at the event; Keith consumed o ne 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 1

The total area described by the documents in the appellate r ecord consists of approximately four blocks. However, it appears the westernm ost “block,” which is bordered by Market Street on the west and Washington Street on the east, is occupied by several buildings and parking lots. It is not clear whether these structures were in use as part of the Marathon Fun Days event. No. 2017AP2178 4 cross Chestnut Street, she tripped over the foot of a metal bar ricade that was protruding into the crosswalk. 2 Paula severely injured her elbow. ¶6 The barricades were present in the intersection because, ea ch year, Post 469 requests that the Village block off Fourth Street to vehicula r traffic between East Street and Washington Street. Post 469 officials were aware that people would park to the south of Fourth Street and believed allowi ng vehicular traffic on Fourth Street presented a danger to children and other ped estrians. Post 469 did not locate food stands, rides, or other structures associated wi th 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 f or the event free of charge. Donald Southworth, the head of Post 469’s exec utive committee at the time, told Rent-A-Flash where to deliver the barricades for storage until they were ready for deployment. The appellate r ecord is unclear whether the Village, through its police department, or Post 469 ultima tely placed 2

The barricades were known as “Type 3” barricades, which are approximately five feet tall and four feet wide. The barricades have striped slat s hanging horizontally on a metal frame and are supported on each end by two “legs,” each of which has tw o “feet” that support the barricade on the ground. One side of the barricade has feet tha t measure 19.5 inches in length, while the other side has longer feet measuring 37 inches in leng th. Keith testified the longer feet were positioned within the crosswalk on Chestnut Street, poin ting south. The crosswalk was not formally identified by any markings. No. 2017AP2178 5 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, W IS. 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 Paul a was not engaged in a recreational activity at the time she tripped. The Langenhahns now appeal. DISCUSSION ¶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 3

The deposition testimony was consistent that Post 469 would instru ct the Village as to which roads it wanted blocked off. However, there was disa greement regarding who was ultimately responsible for the barricades’ physical place ment. Southworth testified that decisions about where and how to place the barricades (as well as their physical deployment in the chosen locations) were handled by the Village police department. Conve rsely, others (including the Village police chief) testified that Post 469 was responsibl e for deploying the barricades prior to the start of Marathon Fun Days. We do not regard the identity of the person or persons who deployed the barricades as a material fact in this case. 4

The Langenhahns filed an amended complaint adding the Village of Marathon City and its insurer as defendants. Those parties were subsequently dismisse d by stipulation. 5

All references to the Wisconsin Statutes are to the 2015-16 vers ion unless otherwise noted. Although the recreational immunity statute has been am ended several times since Paula’s injury, none of the amendments are relevant to this appeal, an d we therefore use the current version of the statute. No. 2017AP2178 6 granted when there is no genuine dispute as to any material fact a nd the moving party is entitled to judgment as a matter of law. W IS. STAT . § 802.08(2). “The purpose of the summary judgment procedure is to avoid trials w hen there is nothing to try.” Tews , 330 Wis. 2d 389, ¶42. ¶10 The circuit court’s grant of summary judgment was based on it s conclusion that Post 469 was entitled to recreational immunity. The recreational immunity statute, W IS. STAT . § 895.52, reflects a legislative choice to “expand[] liability protection for landowners who open their private prop erty 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 recre ational land in the ever more populated modern world.” Hall v. Turtle Lake Lions Club , 146 Wis. 2d 486, 489, 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 negl igence.” 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 provide s: (2) N O 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 on the property. No. 2017AP2178 7 (b) Except as provided in subs. (3) to (6), no owner and no officer, employee 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). ¶12 The statute contains a number of defined terms, including the te rms “owner” and “recreational activity.” See W IS. STAT . § 895.52(1)(d), (1)(g). The Langenhahns argue the circuit court incorrectly concluded that the ci rcumstances of this case satisfy those definitions. Specifically, the La ngenhahns argue 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” when she fell. ¶13 These arguments require that we interpret W IS. STAT . § 895.52 and apply it to the facts of this case. Statutory interpretation and application are questions of law that we review independently of the circuit court. Westmas , 379 Wis. 2d 471, ¶17. We begin with the language of the statute, which we ap ply if it exhibits a plain, clear statutory meaning. Id. , ¶18. We read statutory provisions in the context in which they are used; not in isolation but as part of a whole; in relation to the language of surrounding or closely related statutes; a nd reasonably, to avoid absurd results. Id. , ¶19. In all events, “we favor a construction that fulfills the purpose of the statute over one that defeats statutor y purpose.” Id. (citing County of Dane v. LIRC , 2009 WI 9, ¶34, 315 Wis. 2d 293, 759 N.W.2d 571). To that end, we are to interpret the protections of § 895.52 “ex pansively,” id. , ¶22, consistent with the legislative directive to liberally c onstrue recreational immunity in favor of property owners, see 1983 Wis. Act 418, § 1. No. 2017AP2178 8 I. Post 469 was a statutory “owner” of the property on which Paula was injur ed. ¶14 Recreational immunity applies only to an “owner” of the rel evant property and to the owner’s officers, employees or agents. See WIS. STAT . § 895.52(2)(a), (2)(b). As relevant to this appeal, an owner is define d as “[a] person, including a governmental body or nonprofit organization, that owns, leases or occupies property.” Sec. 895.52(1)(d)1. It is undisputed that Pos t 469 did not own or lease Veterans Park or the surrounding area. Accordingly, P ost 469 can only prevail on recreational immunity grounds by demonstrating it occupied the relevant real property. See Rintelman v. Boys & Girls Clubs of Greater Milwaukee, Inc. , 2005 WI App 246, ¶18, 288 Wis. 2d 394, 707 N.W.2d 897 (observing the proponents of recreational immunity have the burden of provi ng the applicability of § 895.52). ¶15 In Hall , we adopted a definition of “occupy” that focuses on possession of the real property: [O]ccupant include[s] persons who, while not owners or tenants, have the actual use of land. … While “occupant” includes [an] owner and lessee, it also means one who has the actual use of property without legal title, dominion or tenancy. In order to give meaning to [occupies], the term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner. Hall , 146 Wis. 2d at 491 (quoting Smith v. Sno Eagles Snowmobile Club, Inc. , 625 F. Supp. 1579, 1582 (E.D. Wis. 1986) (alterations in Hall )). Despite the “transient” nature of the possessory interest, our supreme court has subsequently endorsed the view that occupancy requires possession that exhibits “a degree of permanence, as opposed to mere use.” Roberts v. T.H.E. Ins. Co. , 2016 WI 20, ¶34, 367 Wis. 2d 386, 879 N.W.2d 492 (quoting Doane v. Helenville Mut. Ins. Co. , 216 Wis. 2d 345, 354, 575 N.W.2d 734 (Ct. App. 1998)). No. 2017AP2178 9 ¶16 Post 469’s occupation of Veterans Park and the surrounding area s to host Marathon Fun Days plainly satisfied these criteria. “ Prior cases interpreting Wisconsin’s recreational immunity law have concluded that the pr oducer of a fair or event ‘occupied’ property.” Roberts , 367 Wis. 2d 386, ¶29. Thus, a fraternal organization that produced a “hometown fair” within a village par k was deemed to “occupy” that property. See Hall , 146 Wis. 2d at 490. Similarly, in Lee v. Elk

Rod & Gun Club, Inc. , 164 Wis. 2d 103, 473 N.W.2d 581 (Ct. App. 1991), we concluded that a hunting and fishing club, “as an occupant of the city p ark land, is treated as a landowner for purposes of recreational immunity.” Id. at 107. Roberts relied on these authorities in reinforcing that an event sponsor or organizer who is responsible for opening up the land to the publi c is to be treated differently than a third party that has no such responsibility. See Roberts , 367 Wis. 2d 386, ¶¶33, 37. The sponsor or organizer occupies the property, while the third party merely uses it. ¶17 The Langenhahns place substantial weight on Roberts in claiming that Post 469 should not benefit from recreational immunity. Roberts involved a lawsuit against the owner and operator of a company that offere d hot air balloon rides at a charity event. Id. , ¶¶5-6. A recreational club owned the shooting range at which the event was held, and a special needs organization was the event sponsor. Id. , ¶5. The court distinguished the hot air balloon company from the producer or sponsor of a recreational event, concluding that the legislat ive policy underlying W IS. STAT . § 895.52 would not be promoted by deeming a party unassociated with the opening of the land for recreational use a s tatutory “occupier.” Roberts , 367 Wis. 2d 386, ¶¶36-41.

¶18 Here, the Langenhahns argue that Post 469 is in a similar posit ion to the hot air balloon company in Roberts . However, in doing so, they focus No. 2017AP2178 10 narrowly on the specific crosswalk where Paula was injured, ass erting that Post 469 could not have opened the crosswalk to the public because it was already open for all pedestrians to use throughout the Marathon Fun Days e vent. Their narrow focus on the crosswalk—which we will address momentarily—f ails to account for Post 469’s status as the organizer and producer of Marathon F un Days, a status that materially distinguishes it from the hot air balloon company in Roberts . Roberts established that an event organizer “occupies” the relevant property regardless of whether such a status might be consistent with the statute’s philosophical underpinnings in a given case. 6

See id. , ¶¶33, 37. And as Roberts and the cases cited therein make clear, the producer of a commu nity event like Marathon Fun Days “occupies” the real property with suffici ent permanence to qualify for immunity. ¶19 The Langenhahns’ argument that immunizing Post 469 does not advance the legislature’s policy goals is, in fact, merely a var iation of a different argument of theirs—namely, that the specific crosswalk at iss ue was not sufficiently withdrawn from public use to warrant immunity. I n the Langenhahns’ view, to be eligible for recreational immunity, Post 469 must ha ve completely withdrawn the crosswalk from general public use and dedicated it solely to a recreational activity. As authority, the Langenhahns primaril y rely on Kostroski v. County of Marathon , 158 Wis. 2d 201, 462 N.W.2d 542 (Ct. App. 1990). 6

The Langenhahns do not develop any argument that Post 469 is not ent itled to immunity because Marathon Fun Days primarily took place in a public park. In any event, prior cases establish that an event organizer receives the benef it of recreational immunity even if the event takes place on public lands. See Lee v. Elk Rod & Gun Club, Inc. , 164 Wis. 2d 103, 107, 473 N.W.2d 581 (Ct. App. 1991); Hall v. Turtle Lake Lions Club , 146 Wis. 2d 486, 490, 431 N.W.2d 696 (Ct. App. 1988). No. 2017AP2178 11 ¶20 In Kostroski , a party injured on a portable wooden sidewalk in a county park argued that an earlier case, Bystery v. Village of Sauk City , 146 Wis. 2d 247, 430 N.W.2d 611 (Ct. App. 1988), carved out an exception to recreational immunity when the injury occurred on a municipal si dewalk. Kostroski , 158 Wis. 2d at 203-04. Indeed, the Bystery court had declared that WIS. STAT . § 895.52 conflicted with the then-existent W IS. STAT . § 81.15 (1987-88), which permitted a person injured by “the insufficiency or want of repairs” to a highway or public sidewalk to recover damages from the municipality. Bystery , 146 Wis. 2d at 251. In an attempt to harmonize these statutes, Bystery held that a municipality is immune from liability for negligen t maintenance of a highway or sidewalk “only when the municipality has wit hdrawn the highway or sidewalk from transportation uses, in whole or in par t, has devoted the highway or sidewalk to recreational activities as define d in sec. 895.52(1)(g),

and the claimed damages result from a recreational activity.” Bystery , 146 Wis. 2d at 251-52. ¶21 The Kostroski court, purporting to apply Bystery , concluded that recreational immunity applied to bar the plaintiff’s claim. In asserting that recreational immunity applies only if a road or sidewalk is dedic ated exclusively to recreational activities, the Langenhahns rely on the following paragraph: The portable sidewalk, whose only purpose was to provide access over a racetrack and connect two areas of the county park, was sufficiently withdrawn or withheld from transportation uses and devoted to recreational activities so as to comply with the test set forth in Bystery . The location of this sidewalk within the boundaries of a park is not dispositive. Were this sidewalk available for purposes of general transportation by the public, the mere fact that the injured user was engaged in recreational activity within the park would not provide immunity. The dispositive feature of this sidewalk is its solitary purpose to serve only those No. 2017AP2178 12 attempting to enter or leave the ball park otherwise surrounded and enclosed by the racetrack. Kostroski , 158 Wis. 2d at 204-05. ¶22 There are two problems with the Langenhahns’ reliance on Kostroski , and we conclude it cannot be read for the proposition that comp lete withdrawal and devotion to recreational activities is necessary. First, there is no longer a statutory conflict; W IS. STAT . § 81.15 (1987-88), and its provisions relating to municipal liability for negligent highway or sidewalk maintenance have been repealed. See 2003 Wis. Act 213, § 136 (renumbering the statute); 2011 Wis. Act. 132 (repealing liability for negligent maintenance). Becaus e the conflict addressed in Bystery (and, consequently, Kostroski ) no longer exists, the precedential vitality of the court’s resolution of that conflict is unclear . 7

¶23 The larger problem for the Langenhahns is that even if Kostroski remains good law, it does not require that a sidewalk (or cros swalk) be overtly dedicated entirely to recreational purposes. Bystery held that it is sufficient that the municipality withdraw the highway or sidewalk from transport ation uses “in whole or in part” and devote the area to a recreational activit y. 8

The Kostroski 7

We recognize that at the time of Paula’s injury in 2011, the hi ghway liability statute remained in effect. See WIS. STAT . § 893.83 (2009-10). Thus, we do not rely solely on the absence of a statutory conflict in resolving whether Post 469 “occupied” the crosswalk in which Paula was injured. 8

We subsequently recognized that Bystery ’s statement about devoting the street or sidewalk to recreational activities, see Bystery v. Village of Sauk City , 146 Wis. 2d 247, 251-52,

430 N.W.2d 611 (Ct. App. 1988), was “unnecessary to the resolution of t he appeal” because it was undisputed that the Village of Sauk City had failed on the first criterion: it had not withdrawn the sidewalk from public transportation use. See Verdoljak v. Mosinee Paper Corp. ,

192 Wis. 2d 235, 248, 531 N.W.2d 341 (Ct. App. 1995), aff’d , 200 Wis. 2d 624, 547 N.W.2d 602 (1996). No. 2017AP2178 13 court merely held that a sidewalk that is entirely associated with recreational activities passes muster under the Bystery test. Regardless of the court’s statements about other possible scenarios and uses, it was not confronted with a situation in which the area was being used for recreational purpose s but was also available for use by the general public. ¶24 The better analogy is to Lasky v. City of Stevens Point , 220 Wis. 2d 1, 582 N.W.2d 64 (Ct. App. 1998), in which we applied the recreational immunit y statute to bar personal injury claims arising out of a fall on a wooden bridge in a city park. The injury occurred on the Riverfront Trail, which was part of the Green Circle Trail, a twenty-four-mile cycling and hiking trail that included a combination of city streets, sidewalks, paths and trails. Id. at 4. The accident happened in winter, when the Riverfront Trail was closed to motor vehicles but was still used by pedestrians, skaters and bicyclists. Id. Applying Bystery and Kostroski , we concluded the fact that the trail was closed to motor vehicle traffic in the winter and “unavailable for general transportation” sati sfied the “withdrawal and devotion” requirement. Lasky , 220 Wis. 2d at 12-13. ¶25 Here, it is beyond dispute that the area of Fourth Street a round Marathon Fun Days was withdrawn from general vehicular transport ation uses. The area was barricaded to prevent motor vehicle use, even if certain motorists (i.e., emergency vehicles and vehicles using handicap parking) were a llowed to operate within that area. As a matter of law, this consti tuted a sufficient No. 2017AP2178 14 withdrawal from general transportation purposes and devotion to recre ational activities so as to satisfy the Bystery requirements. 9 ¶26 The Langenhahns object that Paula was injured in a crosswalk for Chestnut Street, not a crosswalk traversing Fourth Street. They assert the Marathon Fun Days grounds were “limited to the borders of … Vetera ns Park and potentially 4th Street” and did not include the Chestnut Street cross walk “located several feet south” of Fourth Street. They also argue that, at a minimum, there is a genuine issue of material fact regarding whether Paula’s fall oc curred in an area “occupied” by Post 469.

10 ¶27 Whatever else may be said about the Chestnut Street cros swalk, it is clear that Post 469 occupied at least the portion of it that inc luded the barricade on which Paula tripped. As the circuit court astutely observed, “it would be incongruous to say that [Post 469] was responsible for the presence of the barricades but that it was not occupying the property where they were situated.” The boundary of the area withdrawn for general transportation purposes , as a 9

The Langenhahns do not explain, even in general terms, how a requir ement of complete devotion to recreational activities would operate in p ractice. They do not, for example,

argue the Village or Post 469 was required to post signs that t he area was available only for recreational pedestrian activity, or that it was require d to direct pedestrians not attending Marathon Fun Days away from the intersection. Neither did the court in Kostroski explain how such a requirement would work, lending further support to our conclusion th at the Langenhahns read that decision too broadly. See Kostroski v. County of Marathon , 158 Wis. 2d 201, 204, 462 N.W.2d 542 (Ct. App. 1990). 10

The Langenhahns appear to have forfeited any argument that rever sal is warranted because a genuine issue of material fact exists as to whe ther Post 469 occupied the crosswalk in which Paula was injured. They argued in their brief opposing summary judgment that Paula was undisputedly not injured on occupied property, asserting that opposing counsel had effectively conceded—by his manner of framing deposition questions posed to Paul a—that the accident occurred on non-occupied property. The Langenhahns did not argue there was a factual dispute that made summary judgment improper, and we usually do not consid er arguments raised for the first time on appeal. See State v. Bodoh , 226 Wis. 2d 718, 737, 595 N.W.2d 330 (1999). No. 2017AP2178 15 matter of law, included the barricades that prevented motor ve hicle access to Fourth Street. Thus, we reject the argument that Post 469 did not “oc cupy” the Chestnut Street crosswalk. The presence of the barricades pla inly evidences Post 469’s occupancy of it, and no reasonable fact finder could conclude otherwise. II. Paula was participating in a recreational activity at the time of he r injury. ¶28 The recreational immunity statute requires that the injur ed party had been engaging in a “recreational activity.” See WIS. STAT . § 895.52(2). The statute defines that phrase in three ways. See Minnesota Fire & Cas. Ins. Co. v. Paper Recycling of La Crosse , 2001 WI 64, ¶10, 244 Wis. 2d 290, 627 N.W.2d

527. First, “recreational activity” is broadly defined to include “any outdoor activity undertaken for the purpose of exercise, relaxation or pleas ure, including practice or instruction in any such activity.” Sec. 895.52(1)(g). Second, the definition identifies more than thirty activities specificall y denominated as recreational, including “picnicking.” Id. Third, the statute includes another broad definition, directing that a recreational activity can be “any other outdoor sport,

game or educational activity.” Id. ¶29 The parties generally agree that Paula was walking at the t ime she was injured. As we explained in Wilmet v. Liberty Mutual Insurance Co. , 2017 WI App 16, 374 Wis. 2d 413, 893 N.W.2d 251, W IS. STAT . § 895.52 “does not specifically identify walking as a recreational activity, bu t depending on the circumstances, it may qualify as such.” Id. , ¶11. A walk that is “inextricably connected” to an activity that would otherwise qualify the owner for immunity under the statute is itself a recreational activity. Id. (citing Urban v. Grasser ,

2001 WI 63, ¶¶20-21, 243 Wis. 2d 673, 627 N.W.2d 511). No. 2017AP2178 16 ¶30 The parties dispute the activity to which Paula’s walking s hould be attributed. The Langenhahns argue Paula’s walk was “inextricabl y connected to attending a class reunion” and that attending a class reunion is not a recreational activity because it is not inherently an outdoor activity and is not undertaken for the purpose of exercise, relaxation or pleasure. Post 469, on the other hand, argue s the circumstances of this case fall within the definition of a “recreational activity” because Paula’s attendance at the Marathon Fun Days event was the equivalent of “picnicking,” a specifically enumerated activity. As a res ult, Post 469 asserts Paula’s conduct plainly fell within the scope of immunity conf erred by W IS. STAT . § 895.52. See WEA Prop. & Cas. Ins. Co. v. Krisik , 2013 WI App 139, ¶14, 352 Wis. 2d 73, 841 N.W.2d 290 (holding that if a person is engaged in a specific ally enumerated activity, it is unnecessary to consider whether the a ctivity was undertaken for a permissible purpose). ¶31 We agree with Post 469 that the Langenhahns’ formulation of the activity with which Paula’s walk was associated is too narr ow. “Each recreational immunity case ‘poses an intensely fact-driven inquiry.’” Wilmet , 374 Wis. 2d

413, ¶14 (quoting Auman ex rel. Auman v. School Dist. of Stanley-Boyd , 2001 WI 125, ¶12, 248 Wis. 2d 548, 635 N.W.2d 762). We must examine all the circumstances surrounding the activity, keeping in mind the legislat ive purpose of the recreational immunity statute. Urban , 243 Wis. 2d 673, ¶13. Thus, we must examine the broader context of the Langenhahns’ presence on property t hat Post 469 occupied, as opposed to focusing narrowly on their purpose of at tending an informal class reunion. ¶32 Indeed, the property user’s intent is but one of several fac tors to consider in determining whether an activity is recreational in nature. No. 2017AP2178 17 We apply a multi-factor test to ascertain whether a particular activity is ‘substantially similar’ to those enumerated in the statute, including: (1) the activity’s intrinsic nature; (2) the purpose of the activity; (3) the activity’s consequences; (4) the property user’s intent and reason for being on the property; (5) the nature of the property; and (6) the property owner’s intent. The focus of the inquiry is whether, under the totality of the circumstances, a reasonable person would understand the injured person to have entered the property to engage in a recreational activity. Wilmet , 374 Wis. 2d 413, ¶14 (citations omitted). ¶33 Here, the Langenhahns were attending an informal class reunion held on the grounds of, and during, the Marathon Fun Days event. The Langenhahns present no basis for distinguishing their attendance at the class reunion from their presence at Marathon Fun Days. They were engage d in socializing with friends and Keith drank an alcoholic beverage while in the park. There were apparently food stands and amusement rides located on t he grounds for attendees. The event appears similar to the fair we dee med a “recreational activity” in Hall . See Hall , 146 Wis. 2d at 488.

¶34 More recent case law also supports our conclusion that atten dance at the Marathon Fun Days event—even for an informal class reunion—consti tutes a “recreational activity.” In Carini v. ProHealth Care, Inc. , 2015 WI App 61, 364

Wis. 2d 658, 869 N.W.2d 515, we considered whether walking to an employer- sponsored picnic at the Milwaukee County Zoo constituted participati on in a recreational activity. Id. , ¶¶3, 11-12. The event included food and beverage tents, public seating, a band, and toilet facilities. Id. , ¶3. The injured employee focused on the fact that she was walking to the event at the time of he r injury, and she did not dispute that she would have been engaged in a recreational activit y once she No. 2017AP2178 18 arrived. Id. , ¶11. Nonetheless, we independently observed that the circum stances were akin to “picnicking,” a specifically enumerated recreational act ivity. Id. ¶35 The Langenhahns’ walking to exit Marathon Fun Days was inextricably connected to their attendance at the event, and it wa s therefore a recreational activity qualifying Post 469 for immunity. “Our ca se law makes clear that the act of walking to or from an immune activity constitutes a recreational activity.” Id. , ¶12. The Langenhahns were on a course to their car to leave the event at the time Paula was injured, and they were therefore engaged in a “recreational activity.” For this reason, it is immaterial whether Paula was doing things like socializing or eating at the time of her fall. See id. CONCLUSION ¶36 We conclude the circuit court properly granted Post 469’s sum mary judgment motion. As a producer or organizer of the Marathon Fun Days event, Post 469 was an “owner” under W IS. STAT . § 895.52. Paula was engaged in a recreational activity at the time of her injury, which occurre d on real property occupied by Post 469. The court correctly concluded recreational immunity applied under these circumstances, and we affirm the grant of summary judgment. By the Court. —Judgment affirmed. Recommended for publication in the official reports.

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