Logan Jon Stanwyck v. Owners Insurance Company

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 22, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1872 Cir. Ct. No. 2019CV14

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

LOGAN JON STANWYCK, MADELINE MARY STANWYCK, BY THEIR
GUARDIAN AD LITEM, VINCENT R. PETRUCELLI, KIMBERLY A.
STANWYCK AND JON J. STANWYCK, SPECIAL ADMINISTRATOR FOR
THE ESTATE OF LANCE L. STANWYCK,

PLAINTIFFS-APPELLANTS,

WEST BEND MUTUAL INSURANCE COMPANY,

INVOLUNTARY-PLAINTIFF,

V.

OWNERS INSURANCE COMPANY, STATE AUTO INSURANCE COMPANY OF
WISCONSIN, FLORENCE COUNTY BLUE OX TRAIL RIDERS, INC. AND
ROBERT W. CALLAWAY,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Florence County:
LEON D. STENZ, Judge. Affirmed.
No. 2020AP1872

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

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Plaintiffs—the children and surviving spouse of
Lance L. Stanwyck and the special administrator of his estate—appeal the
dismissal of their wrongful death action against Robert Callaway; Florence County
Blue Ox Trail Riders (Blue Ox), a nonprofit snowmobile trail maintenance
organization (together, Defendants); and Defendants’ respective insurers.1
Plaintiffs alleged that Callaway, a Blue Ox volunteer, killed Stanwyck by
negligently operating a snowmobile trail groomer on a trail where Stanwyck was
snowmobiling. The circuit court determined that Defendants were recreationally
immune under WIS. STAT. § 895.52 (2019-20),2 and it granted summary judgment
in their favor. We agree that Defendants are immune from suit under § 895.52 as
statutory “occupants” of recreational land. We therefore affirm.

BACKGROUND

¶2 The following material facts are undisputed. In February 2017,
Stanwyck was snowmobiling on a snowmobile trail in Florence County. Callaway
was operating a snowmobile trail grooming machine in that area. Stanwyck was
killed when he fell off of his snowmobile and was run over by Callaway while
attempting to avoid the oncoming trail groomer that had just crested a hill.

For ease of reading, we sometimes use the term “Defendants” even where referring to
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Defendants and their insurers.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1872

¶3 Plaintiffs brought negligence claims against Defendants. Defendants
moved for summary judgment on several grounds, including that they were
entitled to recreational immunity as “occupants” of the land where the accident
occurred (hereinafter, the accident location). See WIS. STAT. § 895.52(1)(d)1., (f),
(g), (2)(b) (stating, as pertinent here, that a person or nonprofit organization that
“occupies” real property used for recreational activities is not liable for the death
of a person engaging in a recreational activity on that property); see also Doane v.
Helenville Mut. Ins. Co., 216 Wis. 2d 345, 351, 575 N.W.2d 734 (Ct. App. 1998)
(“An occupant is one who has actual possession of the property, but is more
transient than either a lessee or an owner with legal title.”).

¶4 The following facts are relevant to the issue of whether Defendants
are entitled to recreational immunity as occupants. The State of Wisconsin owns
the land where the accident occurred, which is part of a county-wide network of
recreational trails. At the time of the accident, a land-use agreement between the
Wisconsin Department of Natural Resources and Florence County authorized the
county’s use of state land, including this location, for public snowmobiling and
ATV driving.

¶5 Blue Ox is a non-profit organization whose sole purpose, carried out
through an agreement with Florence County, is to maintain snowmobile and ATV
trails in the county, including at the accident location. Blue Ox’s members,
including Callaway, are unpaid volunteers. Blue Ox’s current name was applied
to the club in 2010; since that time, at the latest, a trail grooming and maintenance
agreement has existed between the Florence County Forestry and Parks
Department (the Forestry Department) and Blue Ox. Blue Ox (or the entity as it
existed under its former name) has provided snowmobile grooming on the
county’s trails since 1975; has groomed and maintained all snowmobile trails

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No. 2020AP1872

since at least 2001; and has been the sole provider of snowmobile trail grooming
in Florence County since at least 2001.

¶6 Patrick Smith, the Forestry Department Administrator, attested that
since at least 2001, “Blue Ox has had a steady presence on the Florence County
trails on … basically a monthly basis throughout the four seasons, whether it be
for grooming, brush removal, clearing fallen trees, placing signs or other necessary
trail maintenance work.” Blue Ox’s president similarly attested that “Blue Ox,
through its volunteers, maintains a continuous presence on at least a monthly basis
throughout the Florence County Trail System, including the trail where the”
accident occurred. Smith further attested that the county requires Blue Ox to
groom snowmobile trails “at least once a week and when conditions require.”
Time sheets documenting the work of Blue Ox volunteers from December 2016
through March 2017 reflect that volunteers worked on Florence County trails at
least once per week.

¶7 The county receives state grants for the maintenance and operation
of snowmobile and ATV trails, including a July 2016 grant of $37,800 for
2016-17 snowmobile trail maintenance. To the extent that county funds are
available, Blue Ox is reimbursed for its services. The record reflects that Blue Ox
was reimbursed at least $35,444.50 during the winter of 2016-17.

¶8 Blue Ox owns the equipment that it uses to groom and maintain the
trails. The county has provided several loans to Blue Ox for the purchase of trail
equipment.

¶9 The last written trail grooming/maintenance agreement between the
Forestry Department and Blue Ox was for the 2012-13 year. According to Smith,
since the expiration of the 2012-13 agreement, there has been “an ongoing, but

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unwritten agreement each year between Blue Ox and Florence County,” with the
parties “continu[ing] to abide by the terms of the 2012-2013 agreement, with
verbal modifications as necessary.”

¶10 Smith attested that trails must be safe in order to remain open to the
public. Thus, he attested,

Without the grooming and maintenance work of Blue Ox
on the Florence County snowmobile trails since [2001] to
the present day, [the Forestry] [D]epartment would not be
able to fulfill its mandate to operate and maintain the
snowmobile trails in the County and the trails could not
open to the public.

¶11 The circuit court granted summary judgment in favor of Defendants
and their insurers and dismissed Plaintiffs’ complaint, determining that, on these
undisputed facts, Defendants were immune from suit under WIS. STAT. § 895.52
as statutory occupants of recreational land.3 Plaintiffs appeal.

DISCUSSION

I. Standard of Review and Legal Principles

¶12 WISCONSIN STAT. § 895.52 confers recreational immunity on
property owners, reflecting a public policy that owners should be encouraged to

3
The circuit court further determined that Defendants were entitled to recreational
immunity as agents of the county. See WIS. STAT. § 895.52(2)(b). Because the court dismissed
the suit on recreational immunity grounds, it did not address Defendants’ alternative argument
that they were entitled to governmental immunity. See WIS. STAT. § 893.80(4). Also because the
court dismissed the suit, it determined that a separate summary judgment motion on coverage,
brought by Callaway’s insurer, was moot. We do not address these additional issues because we
conclude that Defendants are entitled to recreational immunity as occupants. See Barrows v.
American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An
appellate court need not address every issue raised by the parties when one issue is dispositive.”).

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No. 2020AP1872

open their property to the public for recreational activities. Westmas v. Creekside
Tree Serv., Inc., 2018 WI 12, ¶22, 379 Wis. 2d 471, 907 N.W.2d 68. In keeping
with this purpose, “the statute is to be liberally construed in favor of property
owners to protect them from liability.” Id. (internal quotation marks and citation
omitted).

¶13 Subject to exceptions not applicable here, WIS. STAT. § 895.52(2)(b)
provides that “no owner … is liable for the death of … a person engaging in
recreational activity on the owner’s property.” The phrase “recreational activity”
is defined by statute expressly to include snowmobiling. Sec. 895.52(1)(g). As
relevant here, an “owner” includes a “nonprofit organization[] that … occupies”
real property. Sec. 895.52(1)(d)1., (f).

¶14 The term “occupant” (i.e., one who “occupies” property under WIS.
STAT. § 895.52)

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 v. Turtle Lake Lions Club, 146 Wis. 2d 486, 491, 431 N.W.2d 696 (Ct. App.
1988) (alterations in original; internal quotation marks and citation source
omitted). “[T]he term ‘occupy’ as it is used in WIS. STAT. § 895.52 requires a
degree of permanence, as opposed to the mere use of the property in question.”
Westmas, 379 Wis. 2d 471, ¶46 (internal quotation marks and citation omitted).
Occupation also requires that the party seeking immunity be “responsible for
opening up the land to the public” for recreation. Roberts v. T.H.E. Ins. Co., 2016
WI 20, ¶41, 367 Wis. 2d 386, 879 N.W.2d 492.

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¶15 We review a grant of summary judgment de novo, affirming where
“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); Doane, 216 Wis. 2d at 349. Where the material
facts are undisputed, we determine de novo whether WIS. STAT. § 895.52 bars a
negligence suit. Doane, 216 Wis. 2d at 349.

II. Application to Plaintiffs’ Appeal

¶16 Plaintiffs’ primary argument on appeal is that Blue Ox’s agreement
with the county for 2016-17 snowmobile trail grooming and maintenance is void
because of the county’s failure to comply with the public-bidding requirements of
WIS. STAT. §§ 59.52(29) and 66.0901. It follows, Plaintiffs argue, that Defendants
cannot claim any “rights” (i.e., recreational immunity) under this “illegal
arrangement.” Defendants respond with several persuasive reasons why statutory
public-bidding requirements do not apply to the 2016-17 agreement. We need not
address these arguments, however, because, as explained in more detail below, we
conclude that the county’s compliance with public-bidding requirements is
irrelevant to determining Defendants’ recreational immunity.4

4
Plaintiffs do not raise a separate argument with respect to Callaway’s status as
occupant. Thus, Plaintiffs implicitly concede that if Blue Ox is an occupant, its volunteer,
Callaway, is also an occupant. Accordingly, we analyze WIS. STAT. § 895.52 as it applies to
Defendants together.

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No. 2020AP1872

¶17 As stated, since at least 2010, Blue Ox and the county have had an
agreement for trail grooming and maintenance.5 In some years, this agreement
was written; in 2016-17, it was not. In all years, Blue Ox performed the same
services with the same frequency. It is this ongoing agreement that authorizes
Defendants’ continued presence on county trails; thus, it is the nature of this
agreement that is relevant to analyzing Defendants’ status as occupants.
Separately, the county was awarded a State grant for 2016-17 snowmobile trail
maintenance, and it appears that the county paid the majority of these funds to
Blue Ox. But whether this payment violated public-bidding (or any other) statutes
has no bearing on Defendants’ “actual use” of county trails. See Hall, 146 Wis. 2d
at 491. An organization’s status as “occupant” does not, in this sense, hinge on the
enforceability of its contract with the property owner but on whether the
organization, in fact, had actual nontransient use of the property where the
recreational activity occurred. See id.; see also Held v. Ackerville Snowmobile
Club, Inc., 2007 WI App 43, ¶16, 300 Wis. 2d 498, 730 N.W.2d 428 (“It is the
relative functions of the organizations and their relation to the collective task of
maintaining that [snowmobile trail] system that makes them ‘occupiers’ under the
statute....” (alterations in original; internal quotation marks and citation omitted));
WEA Prop. & Cas. Ins. Co. v. Krisik, 2013 WI App 139, ¶23, 352 Wis. 2d 73,
841 N.W.2d 290 (stating a person may be an “occupant” even where he or she
does not have express permission to enter the property).

5
Blue Ox, under a former name, appears to have performed all of the same grooming
and maintenance services from 2001, at the latest, through 2010. Because the total span of the
agreement between Blue Ox and the county is not pertinent to our analysis, we treat the
agreement as beginning in 2010.

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No. 2020AP1872

¶18 Plaintiffs further argue that the undisputed facts do not support
Defendants’ recreational immunity as occupants, in that Defendants’ “presence on
the property did not exceed ‘mere use[,]’ nor did it approach ‘a degree of
permanence.’” See Westmas, 379 Wis. 2d 471, ¶46 (occupancy requires a “degree
of permanence” (internal quotation marks and citation omitted)). We disagree.
The facts of this case are substantially similar to those in Leu v. Price County
Snowmobile Trails Ass’n, Inc., 2005 WI App 81, 280 Wis. 2d 765, 695 N.W.2d
889, and Held, 300 Wis. 2d 498, in which we determined that snowmobile trail
grooming/maintenance organizations enjoyed recreational immunity as occupants.
Those cases support according recreational immunity here.

¶19 In Leu, a snowmobiler was killed by a falling tree. Leu, 280
Wis. 2d 765, ¶2. His surviving spouse sued two nonprofit organizations that
together owned trail grooming equipment; controlled when and how trails were
groomed; and built, maintained, and groomed snowmobile trails. Id., ¶3. We
determined that these functions met the criteria for “actual use” for purposes of
occupation and that the organizations were therefore recreationally immune. Id.,
¶¶11-15. Likewise, in Held, 300 Wis. 2d 498, ¶¶2, 18, we concluded that a
snowmobile club was an occupant not liable for injuries snowmobilers sustained
when they collided with abandoned grooming equipment. This conclusion
followed from the fact that the club “was engaged in ongoing trail maintenance on
the property [and] maintained the trail during the snowmobiling season when
snowfall levels would allow.” Id., ¶18.

¶20 Here, Defendants perform the same general functions, with at least
the same frequency, intensity, and “permanence,” as the snowmobile organizations
in Leu and Held. Defendants maintain a regular, year-round presence on Florence
County trails, and they are responsible for all trail grooming and maintenance

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No. 2020AP1872

necessary to keep those trails open to the public. Under our precedent, these
activities are sufficient to make Defendants “occupants” of the accident location.

¶21 It is notable that, with the exception of arguing that the arrangement
between Blue Ox and the county was void, Plaintiffs do not attempt to distinguish
Leu and Held. Instead, they rely on Westmas and Roberts, two cases in which our
supreme court determined that defendants were not occupants of recreational land.
These cases are distinguishable and do not support Plaintiffs’ position.

¶22 In Roberts, 367 Wis. 2d 386, ¶¶5-6, 41, the court determined that the
defendant—a hot air balloon owner and operator providing balloon rides at a
shooting range charity event—was not an occupant. This holding hinged on the
fact that other entities (the shooting range owner and the charity event sponsor)
were responsible for “opening the land” (i.e., organizing the event and bringing
people onto the land). Id., ¶37. Noting that “[n]one of the prior cases interpreting
WIS. STAT. § 895.52 has granted immunity to a third party not responsible for
opening the land to the public,” the court determined that it would be contrary to
precedent, and against public policy, to extend immunity to a third party merely
operating on the premises. Id., ¶¶33, 37-41.

¶23 Plaintiffs summarily assert that Defendants “did not legally open the
property for public recreational use,” but this argument appears to rest primarily
on the “legality” of Blue Ox’s agreement with the county (an argument we have
already addressed) and not on Blue Ox’s activities on the land itself. In fact,
unlike the defendant’s role and activities in Roberts, here, Defendants are
responsible for “opening the land” to the public, in that they perform the grooming
and maintenance work necessary for the trails to open and remain open. Plaintiffs
further argue that Defendants cannot be said to have “opened the land” because

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“the State of Wisconsin and Florence County opened the land … long before
[Defendants] appeared on the scene.” This argument mischaracterizes
Defendants’ role as “simply grooming” and ignores evidence that county trails
could not stay open without Defendants’ services. We conclude that, under the
analysis in Roberts, Defendants are properly considered “occupants.”

¶24 Plaintiffs further direct us to Westmas, 379 Wis. 2d 471, ¶¶1, 5, in
which our supreme court determined that Creekside, a tree-trimming business, was
not entitled to recreational immunity as an occupant of the youth camp where it
was trimming trees. Relevant to that holding was that Creekside’s use of the
property “did not approach ‘a degree of permanence’”: Creekside was only on the
property for several days, “mov[ing] from temporary location to temporary
location for the limited purpose of trimming trees as needed to satisfy its contract.”
Id., ¶48. Moreover, Creekside’s presence did not “have any effect on whether
[the] property would be open to the public for recreational purposes.” Id. In
contrast, Defendants’ presence on Florence County trails was regular, ongoing,
and broad in scope. In addition, Defendants’ work was necessary for the property
to remain open to the public.

¶25 For these reasons, Defendants are entitled to immunity under WIS.
STAT. § 895.52 as statutory occupants of the land where the accident occurred.
Accordingly, we affirm the summary judgment order dismissing all claims against
Defendants.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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