Katherine Baumel v. Society Insurance

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.
December 21, 2021
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. 2020AP1610 Cir. Ct. No. 2018CV36

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

KATHERINE BAUMEL,

PLAINTIFF-APPELLANT,

UNITED STATES OF AMERICA DEPARTMENT OF HEALTH AND HUMAN
SERVICES, STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES
AND GROUP HEALTH COOPERATIVE OF EAU CLAIRE,

INVOLUNTARY-PLAINTIFFS,

V.

SOCIETY INSURANCE, A MUTUAL COMPANY, MICHAEL P. FREAR
A/K/A MICHAEL PAUL FREAR, KARI J. FREAR F/K/A KARI J.
SCHREIBER-FREAR AND DEER TAIL LODGE, LLC,

DEFENDANTS-RESPONDENTS,

HEALTH TRADITIONS,

DEFENDANT.
No. 2020AP1610

APPEAL from an order of the circuit court for Rusk County:
STEVEN P. ANDERSON, Judge. Affirmed.

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

¶1 STARK, P.J. Katherine Baumel sued Michael Frear, Kari Frear,
and Deer Tail Lodge, LLC (collectively, “the Lodge”), along with the Lodge’s
insurer, after she tripped and fell on the Lodge’s property. The circuit court
granted summary judgment in favor of the Lodge, concluding Baumel’s claims
were barred by the recreational immunity statute, WIS. STAT. § 895.52 (2019-20).1
Baumel argues the court erred because she was not engaged in a recreational
activity at the time of her fall. Alternatively, she argues there is a genuine issue of
material fact as to whether the “profit” exception to recreational immunity applies.
We reject these arguments and affirm.

BACKGROUND

¶2 The Lodge owned a piece of property south of Ladysmith,
Wisconsin, where it hosted weddings and special events.2 The Lodge’s property
included a main building, where the events were held, with an attached outdoor
bar. The property also included a number of powered and unpowered campsites,
which the Lodge offered for rent only during weddings and other events.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Deer Tail Lodge, LLC, owned the property in question. Michael Frear and his wife,
Kari Frear, were the sole members of the LLC.

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¶3 The Lodge hosted a three-day music festival on its property from
June 4 to 6, 2015. Each day of the festival, seven or eight bands performed in an
outdoor area of the Lodge’s property. Approximately 200 people attended the
2015 music festival, each paying around $20 to $25 for a weekend pass.
Attendees could also choose to camp at the Lodge’s property during the festival,
paying an additional fee to rent a campsite. The campground portion of the
property was separated by a snow fence from the part of the property where the
music festival took place.

¶4 Baumel attended the 2015 music festival and rented a powered
campsite for the weekend. On the evening of June 5, Baumel left the music
festival portion of the property and returned to her camper to retrieve a sweatshirt.
She remained at the camper for about twenty minutes, and while there she drank a
soft drink and showed the camper to an individual who was interested in
purchasing it. Thereafter, while walking back to the area where the band was
playing, but while still within the campground portion of the property, Baumel
tripped on a clump of dirt and fell, injuring her arm.

¶5 Baumel subsequently filed the instant lawsuit against the Lodge,
asserting negligence claims and alleging a violation of the safe place statute. The
Lodge moved for summary judgment, arguing that Baumel’s claims were barred
by the recreational immunity statute. Specifically, the Lodge alleged that Baumel
was engaged in one of the recreational activities specifically listed in the statute on
the day in question—i.e., camping—and that her walking across the campground
to and from her camper was “inextricably connected” to her camping activity.

¶6 The Lodge also argued that the profit exception to recreational
immunity did not apply because the record showed that the Lodge did not make

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more than $2,000 during the year 2015 from campsite rentals. In support of that
argument, the Lodge submitted an unsigned, unnotarized affidavit of Michael
Frear.3

¶7 Frear averred that the Lodge began operating the campground
portion of its business in 2015, that it rented the campsites only during special
events, and that campground usage in 2015 was “extremely limited.” Frear further
averred that the Lodge’s campground had ten powered campsites, that the rest of
the sites were unpowered, and that the Lodge charged $35 per weekend for the
unpowered sites and $55 per weekend for the powered sites. Frear averred that
there were “at most 30 campsites rented for the weekend of the music festival” in
2015, and “[t]he only other campsite rentals during 2015 were at a wedding event
where three campsites were rented.” Frear also averred that although the Lodge
“did not keep written records related to campsite rentals, the total gross revenue
from the campgrounds for [2015] was less than $2,000.00.”

¶8 Baumel opposed summary judgment, arguing that the Lodge was not
entitled to recreational immunity because “Baumel’s act of walking[] in the dark
to get a sweater during a music festival” was not a recreational activity under the
statute. In the alternative, Baumel argued there was at least a genuine issue of
material fact as to whether the profit exception to recreational immunity applied.
Baumel also argued that the circuit court should ignore Frear’s affidavit when
analyzing the profit exception because the affidavit was not signed or notarized.

3
In the affidavit, which was filed with the circuit court on April 17, 2020, Frear averred
that he was “unable to have this affidavit executed before a notary public at this time due to
concerns regarding Covid-19 exposure, but will have it executed as soon as it is advisable to do
so.”

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¶9 Frear later submitted a second, identical affidavit that was both
signed and notarized. After a subsequent hearing on the Lodge’s summary
judgment motion, the circuit court granted the Lodge’s motion in an oral ruling,
concluding that the Lodge was entitled to recreational immunity. The court
reasoned that at the time of her fall, Baumel had “left the music venue … for an
activity which was linked to her camping.” The court also stated the
“uncontroverted evidence” showed that the Lodge “earned less than th[e]
threshold amount … for recreational use immunity.” The court later entered a
written order dismissing Baumel’s claims against the Lodge, and Baumel now
appeals.4

DISCUSSION

¶10 We independently review a grant of summary judgment, using the
same methodology as the circuit court. Kautz v. Ozaukee Cnty. Agric. Soc’y,
2004 WI App 203, ¶8, 276 Wis. 2d 833, 688 N.W.2d 771. Summary judgment is
appropriate when “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). When reviewing a grant of
summary judgment, we view the facts in the light most favorable to the
nonmoving party. CED Props., LLC v. City of Oshkosh, 2018 WI 24, ¶19, 380
Wis. 2d 399, 909 N.W.2d 136. Where the facts are undisputed, whether a party is

4
We note that the Lodge uses party designations, rather than party names, throughout its
appellate brief. Baumel also refers to the Lodge by its party designation, rather than by name.
We remind counsel for both parties that the Rules of Appellate Procedure require “[r]eference to
the parties by name, rather than by party designation, throughout the argument section” of a
party’s brief. See WIS. STAT. RULE 809.19(1)(i).

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immune from liability under the recreational immunity statute presents a question
of law for our independent review. Kautz, 276 Wis. 2d 833, ¶8.

I. Recreational activity

¶11 The recreational immunity statute provides that subject to certain
exceptions, no property owner “is liable for the death of, any injury to, or any
death or injury caused by, a person engaging in a recreational activity on the
owner’s property.” WIS. STAT. § 895.52(2)(b). The statute broadly defines the
term “recreational activity” to mean “any outdoor activity undertaken for the
purpose of exercise, relaxation or pleasure, including practice or instruction in any
such activity.” Sec. 895.52(1)(g). The statute then lists a number of specific
activities that are included in the term “recreational activity.” Id. “[C]amping” is
one of those specifically enumerated activities. Id.

¶12 The recreational immunity statute “does not specifically identify
walking as a recreational activity, but depending on the circumstances, it may
qualify as such.” Wilmet v. Liberty Mut. Ins. Co., 2017 WI App 16, ¶11, 374
Wis. 2d 413, 893 N.W.2d 251. As relevant here, “a ‘recreational activity’ includes
a walk that is ‘inextricably connected’ to an activity that would otherwise qualify
under the statute.” Id. (citing Urban v. Grasser, 2001 WI 63, ¶¶20-21, 243
Wis. 2d 673, 627 N.W.2d 511).

¶13 Applying these legal principles to the undisputed facts of this case,
we conclude, as a matter of law, that Baumel was engaged in a recreational
activity at the time of her fall. Baumel was camping on the Lodge’s property,
which is one of the recreational activities specifically enumerated in WIS. STAT.
§ 895.52(1)(g). Prior to her fall, Baumel had returned to her campsite from the
music festival to retrieve a sweatshirt. She remained at the campsite for about

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twenty minutes, drank a beverage, and showed her camper to an individual who
was interested in purchasing it. She then fell while walking away from her
campsite and back toward the music festival. Her fall occurred in the campground
area of the Lodge’s property. Absent her decision to camp at the Lodge’s property
for the weekend—and the resultant presence of her camper and sweatshirt in the
campground area—Baumel would not have been walking in the campground and
would not have encountered the allegedly uneven ground where her fall occurred.
Under these circumstances, the undisputed facts establish that Baumel’s walk was
inextricably connected to a recreational activity—i.e., camping. Baumel was
therefore engaged in a recreational activity at the time of her fall.

¶14 Baumel argues that she was on the Lodge’s property to attend a paid
music festival, which is not a recreational activity. She contends that she would
not have been camping on the Lodge’s property absent her attendance at the music
festival. Be that as it may, the undisputed facts show that Baumel engaged in
camping activity on the Lodge’s property. She entered the campground with her
camper in order to camp for the weekend. Her sweatshirt—which she had
returned to the campground to retrieve prior to her fall—was stored in her camper.
The camper (and sweatshirt) would not have been in the campground if Baumel
had not been camping there. Thus, retrieving the sweatshirt was related to
Baumel’s camping, which is a statutorily enumerated recreational activity.
Notably, Baumel did not need to camp on the Lodge’s property to attend the music
festival; she expressly chose to do so. The fact that Baumel could not have
camped on the Lodge’s property that weekend absent her attendance at the music
festival makes no difference to our analysis, given Baumel’s undisputed camping
activity and the inextricable connection between that activity and her walk to
retrieve her sweatshirt.

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¶15 Citing Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 431
N.W.2d 696 (Ct. App. 1988), Baumel asserts that walking is not inextricably
connected to an immune activity if the walk is merely a “momentary diversion”
from a nonimmune activity. She contends that her act of walking to retrieve her
sweatshirt from her camper was simply a momentary diversion from her
attendance at the music festival—a nonimmune activity—and, as such, it does not
qualify as a recreational activity.

¶16 Baumel’s reliance on Hall is misplaced. Hall was injured when he
stepped in a hole in a village park during a fair. Id. at 487. We concluded that
Hall’s attendance at the fair constituted a recreational activity under the statute.
Id. at 488. We then summarily rejected Hall’s argument that even if the fair
qualified as a recreational activity, Hall was not engaged in a recreational activity
at the time of his fall “because he took a break from fair activities and was walking
to the men’s restroom when the accident occurred.” Id. at 489. We explained that
Hall’s “ordinary, necessary, and momentary diversion while still on the fair
grounds certainly does not remove the landowner from the protection of the
statute.” Id.

¶17 Contrary to Baumel’s assertion, Hall does not stand for the
proposition that a walk which is a momentary diversion from a nonimmune
activity cannot be inextricably connected to a recreational activity for purposes of
the recreational immunity statute. Instead, Hall addressed a situation where a
person was injured during a momentary diversion from a recreational activity—a
circumstance that is not at issue in this case. In any event, Baumel’s walk in this
case was not a mere momentary diversion from the music festival. She left the
music festival to retrieve a sweatshirt from her camper, and she then remained at
her campsite for about twenty minutes. While there, she drank a beverage and

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showed her camper to a potential buyer. Unlike the plaintiff’s walk to the
restroom in Hall, Baumel’s walk to and from her camper in this case cannot
reasonably be characterized as a momentary diversion.

¶18 Baumel’s reliance on Hupf v. City of Appleton, 165 Wis. 2d 215,
221, 477 N.W.2d 69 (Ct. App. 1991), is similarly misplaced. Hupf was injured
when he was hit by a softball while walking in a city park. Id. at 218. Hupf was
in the park to participate in a recreational softball league sponsored by the city.
Id. at 220. His injury did not occur during a game, however, but while he was
walking between two baseball diamonds near the concession stand. Id.

¶19 On appeal, we noted that “[a]lthough a walk in the park for the
purpose of exercise, relaxation or pleasure is an activity for which the owner is
immune, the legislature did not intend to create a corridor of immunity from the
ball field to the parking lot when the walk is inextricably connected to a
non[]immune activity.” Id. at 221. We then noted that WIS. STAT. § 895.52(1)(g)
“excepts from its definition of recreational activities ‘any organized team sport
activity sponsored by the owner ….’” Hupf, 126 Wis. 2d at 221. Although Hupf
was not actively participating in an organized team sport at the time of his injury,
we reasoned that if “he were traveling directly from this excepted activity by the
only available avenue for the purpose of exiting the premises, the exception to
immunity endures.” Id.

¶20 Hupf stands for the proposition that a walk does not constitute a
recreational activity if, at the time of injury, the individual in question was
traveling directly from a nonimmune activity by the only available avenue for the
purpose of exiting the premises. Unlike Hupf, however, this case does not involve
travel directly from a nonimmune activity. Instead, it is undisputed that at the time

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of her fall, Baumel was walking away from her camper after retrieving a
sweatshirt from it, and after she had spent approximately twenty minutes at the
camper and had shown it to a potential buyer. The fall occurred in the
campground area of the Lodge’s property—an area that Baumel would not have
been walking through absent her camping activity. Hupf is therefore inapposite.

¶21 Baumel also relies on Rintelman v. Boys & Girls Clubs of Greater
Milwaukee, Inc., 2005 WI App 246, 288 Wis. 2d 394, 707 N.W.2d 897. In that
case, Rintelman was injured when she fell while chaperoning an educational
retreat for young adults at a “rural camping and retreat facility.” Id., ¶¶1-2.
Rintelman’s fall occurred when she was walking from one lodge to another on the
camp premises because the bathroom facilities at the first lodge had stopped
working. Id., ¶4.

¶22 We concluded Rintelman was not engaged in a recreational activity
at the time of her fall because she was merely walking from one building to
another for a utilitarian purpose, rather than walking for exercise or to enjoy the
scenery. Id., ¶¶10, 13. Citing Hupf, we stated that “[m]oving from one building
to another is not a ‘recreational activity’ unless it is inextricably connected to an
activity that is recreational.” Rintelman, 288 Wis. 2d 394, ¶13. We then reasoned
that although the program participants at the educational retreat may have been
present on the camp property to participate in recreational activities, there was no
evidence that Rintelman was there for that purpose. Id., ¶17. Instead, the
evidence showed that Rintelman was on the property as a volunteer chaperone and
“did not participate in any of the recreational activities.” Id. Accordingly,
Rintelman’s walk between buildings was not inextricably connected to her
participation in a recreational activity. See id., ¶18.

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¶23 Rintelman is distinguishable because, unlike the plaintiff in that
case, it is undisputed that Baumel was engaging in a recreational activity on the
Lodge’s property—i.e., camping. We have further concluded that the walk during
which Baumel’s fall occurred was inextricably connected to her camping activity.
Thus, unlike the plaintiff in Rintelman, the undisputed facts establish that Baumel
was engaged in a recreational activity at the time of her fall.

¶24 Baumel next argues that because the Lodge profited from the music
festival and the campsite rentals, granting recreational immunity to the Lodge
under the facts of this case would be inconsistent with the purpose of recreational
immunity—that is, “to limit the liability of property owners toward others who use
their property for recreational activities under circumstances in which the owner
does not derive more than a minimal pecuniary benefit.” See 1983 Wis. Act 418,
§ 1 (emphasis added). The legislature effectuated that purpose, however, by
creating the profit exception to recreational immunity. See WIS. STAT.
§ 895.52(6)(a). Whether Baumel was engaged in a recreational activity at the time
of her fall and whether the profit exception to recreational immunity applies are
distinct legal issues. We address Baumel’s arguments regarding the profit
exception in the next section of this opinion.

¶25 Baumel also argues that the “logical extension” of applying
recreational immunity under the circumstances of this case “is that any property
owner holding a paid event need only offer an ancillary recreational activity to
render itself immune.” We reject this argument because it ignores the plain
language of the recreational immunity statute. WISCONSIN STAT. § 895.52(2)(b)
expressly provides that a property owner is not liable for the death of, injury to, or
any death or injury caused by “a person engaging in a recreational activity on the
owner’s property.” (Emphasis added.) Thus, regardless of whether both

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recreational and nonrecreational activities are occurring on an owner’s property,
the statute clearly provides that an owner is immune from liability only for deaths
or injuries sustained or caused by a person who is actually engaging in a
recreational activity. Consequently, the property owner in Baumel’s hypothetical
would not be entitled to blanket immunity for all injuries or deaths occurring on
his or her property simply because the owner offered an ancillary recreational
activity.

¶26 As explained above, in this case, the undisputed facts show that
Baumel’s injury occurred while she was walking from her camper back to the
music festival, an activity that was inextricably connected to her camping activity.
The fall occurred in the campground area of the Lodge’s property—an area that
Baumel would not have been walking through absent her decision to camp on the
Lodge’s property that weekend. Baumel’s trip to the campground was not merely
a momentary diversion from the music festival, as she spent about twenty minutes
at her camper, during which time she drank a beverage and showed the camper to
a potential buyer. Under these circumstances, and because camping is specifically
listed as a recreational activity in the recreational immunity statute, the circuit
court properly concluded that Baumel was engaged in a recreational activity at the
time of her fall.

II. Profit exception

¶27 Baumel next argues that even if she was engaged in a recreational
activity at the time of her fall, the circuit court nevertheless erred by granting the
Lodge summary judgment because there is a genuine issue of material fact as to
whether the profit exception to recreational immunity applies here. The profit

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exception provides that an owner of private property is not entitled to recreational
immunity if the owner

collects money, goods or services in payment for the use of
the owner’s property for the recreational activity during
which the death or injury occurs, and the aggregate value of
all payments received by the owner for the use of the
owner’s property for recreational activities during the year
in which the death or injury occurs exceeds $2,000.

WIS. STAT. § 895.52(6)(a).

¶28 The circuit court relied on the uncontroverted averments in
Michael Frear’s affidavit in support of its conclusion that that profit exception to
recreational immunity did not apply. Frear averred that: (1) the Lodge had ten
powered campsites, and the rest were unpowered; (2) the Lodge charged $35 per
weekend for unpowered campsites and $55 per weekend for powered campsites;
(3) at most, thirty campsites were rented during the weekend of the 2015 music
festival; and (4) the only other campsite rentals in 2015 occurred at a wedding,
during which three campsites were rented.

¶29 When viewed in the light most favorable to Baumel, these
uncontroverted averments establish that the Lodge did not collect more than
$2,000 in payments for camping on its property during the year 2015. If we
assume that all ten of the Lodge’s powered campsites were rented during the
weekend of the 2015 music festival, then the Lodge would have earned $550 that
weekend from powered campsite rentals. The Lodge would have also earned $700
that weekend from the rental of twenty unpowered campsites. Thus, the Lodge
would have earned a total of $1,250 from campsite rentals during the weekend of
the music festival. If we assume that all three of the other campsites that the
Lodge rented during 2015 were powered campsites, then the Lodge would have

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earned an additional $165 from campsite rentals that year. Accordingly, viewing
the uncontroverted averments in Frear’s affidavit in the light most favorable to
Baumel, the total amount that the Lodge earned from campsite rentals in 2015
would have been $1,415—which is below the $2,000 threshold set forth in WIS.
STAT. § 895.52(6)(a).

¶30 Baumel argues that the circuit court should not have considered
Frear’s affidavit because it was neither signed nor notarized. See Gillund v.
Meridian Mut. Ins. Co., 2010 WI App 4, ¶38, 323 Wis. 2d 1, 778 N.W.2d 662
(2009) (noting that an affidavit submitted in support of summary judgment must
be notarized); Juneau Cnty. Dep’t of Hum. Servs. v. B.J., Nos. 2021AP1359,
2021AP1360, 2021AP1361, unpublished slip op. ¶28 (WI App Nov. 4, 2021)
(concluding that an unsigned affidavit does not meet the definition of an
“affidavit” for purposes of WIS. STAT. § 802.08(2)).5 This argument is
disingenuous. The record clearly shows that while Frear initially submitted an
unsigned and unnotarized affidavit in support of the Lodge’s summary judgment
motion, he subsequently submitted an identical affidavit that was both signed and
notarized. Frear submitted the signed and notarized affidavit approximately three
weeks before the circuit court’s hearing on the Lodge’s summary judgment
motion, and approximately six weeks before the court issued its oral ruling
granting the Lodge summary judgment. Baumel does not develop any argument
that the court should not have considered Frear’s signed and notarized affidavit
because it was untimely. We therefore reject her argument that the court erred by
relying on Frear’s affidavit.

5
An unpublished opinion authored by a single judge and issued on or after July 1, 2009,
may be cited for its persuasive value. See WIS. STAT. RULE 809.23(3)(b).

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¶31 Baumel also argues that even if the circuit court properly considered
Frear’s affidavit, other evidence in the record created a genuine issue of material
fact as to whether the Lodge earned more than $2,000 from campsite rentals
during the year 2015. Baumel claims that during his deposition, Frear testified
that the Lodge “hosted 50-60 events during 2015 at which camping was available
for attendees.” Baumel then asserts, based on Frear’s affidavit, that the Lodge
must have earned at least $1,050 from campsite rentals during the 2015 music
festival, as Frear averred that thirty campsites were rented that weekend for a
minimum of $35 each. Given that the music festival was “only 1 of 50 or 60 such
events” during 2015, Baumel contends the evidence gives rise to a reasonable
inference that the Lodge made more than $2,000 from campsite rentals that year.
Baumel further contends that Frear’s averment that the Lodge made less than
$2,000 from campsite rentals in 2015 does not overcome this reasonable inference
because Frear conceded the Lodge did not keep written records related to campsite
rentals.

¶32 This argument fails because Baumel has misrepresented Frear’s
deposition testimony. Contrary to Baumel’s assertion, Frear did not testify that the
Lodge hosted fifty to sixty events in 2015 during which camping was available to
attendees. Instead, Frear merely testified that the Lodge hosted fifty to sixty
events during 2015. He was not asked during his deposition—and he did not
testify—about the number of events in 2015 during which the Lodge offered
campsites for rent. As such, Frear’s deposition testimony does not rebut or
conflict with the averments in his affidavit regarding the Lodge’s campsite rentals
in 2015 or the amount of money that the Lodge earned from those rentals. As
explained above, even viewed in the light most favorable to Baumel, those
averments demonstrate that the total amount the Lodge earned from campsite

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rentals in 2015 was no more than $1,415. We therefore reject Baumel’s argument
that a genuine issue of material fact exists as to whether the Lodge earned more
than $2,000 from campsite rentals during 2015.

¶33 Finally, Baumel also argues—for the first time in her reply brief—
that when determining whether the Lodge met the $2,000 threshold for application
of the profit exception, we must consider both the Lodge’s earnings from campsite
rentals and its earnings from ticket sales for the 2015 music festival. Baumel
asserts that we must do so because the “music festival income was an indirect
pecuniary benefit to [the Lodge] from its use of its property as a camping venue.”
In support of this argument, Baumel relies on Douglas v. Dewey, 154 Wis. 2d 451,
462-63, 453 N.W.2d 500 (Ct. App. 1990), where we held that for purposes of the
profit exception, the legislature “intended to include indirect pecuniary benefits as
payments to the property owner for the use of his or her property for a recreational
activity.”

¶34 We decline to address Baumel’s indirect-pecuniary-benefits
argument because it was raised for the first time in her reply brief. See A.O. Smith
Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App.
1998). “It is inherently unfair for an appellant to withhold an argument from its
main brief and argue it in its reply brief because such conduct would prevent any
response from the opposing party.” Id. If Baumel had raised her argument
regarding indirect pecuniary benefits in her main brief, the Lodge could have
presented an argument that its income from ticket sales during the 2015 music
festival did not constitute an indirect pecuniary benefit of the camping activity on
its property, or that Douglas’s holding was inapplicable for some other reason.
Because the Lodge did not have the opportunity to do so, it would be inherently
unfair for us to address Baumel’s indirect-pecuniary-benefits argument.

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¶35 Instead, for the all of the reasons explained above, we conclude the
undisputed facts establish that the Lodge did not earn more than $2,000 from
campsite rentals during the year 2015. As such, the profit exception to
recreational immunity does not apply. We therefore affirm the circuit court’s
grant of summary judgment in favor of the Lodge.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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