Sample interoffice memorandum

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John Vaughn
Legal Writing
Interoffice Memorandum #2
November 12, 2014

To: File and Atty. Brad Jones

From: John Vaughn, Paralegal

RE: Paul Peterson v. Darrell Davis and ABC Insurance
Recreational use statute case

Date: November 12, 2014


ISSUE
Would Wisconsin’s recreational use statute protect a property owner from liability in the event
that a fallen tree causes injury to a moped cyclist using the property as a shortcut home from
work?

BRIEF ANSWER
Yes, although the court must take into account the essential nature of the activity in which the
injured person was participating at the moment the injury occurred and the intent of the user, in
that order.

STATEMENT OF FACTS
Our client, ABC Insurance, had extended coverage to Mr. Darrell Davis. Mr. Davis has a land
contract for 30 acres of property adjacent to the Northern Kettle Moraine State Forest. Davis,
who does not live on the property, began making payments back in 2007 and should pay for the
property in full by 2017. Although Davis initially did not want people using his property for
mountain biking, running, motorcycling, or four-wheeling, in 2013, he consented to a local
mountain biking club’s request to use his property for biking. Davis took down fencing that he
had installed in 2012. On December 25, 2013, the mountain bikers gave Davis a gift of slightly
more than $2,000 out of appreciation for Davis allowing them to use his biking trails. Davis did
not approve of other people using his property for recreational purposes and left up “No
Trespassing” signs, although he never reported any violation to the police.

Mr. Paul Peterson is suing Davis and our client, ABC Insurance, after he hit a fallen tree on one
of the biking trails on Davis’s property resulting in Peterson being permanently paralyzed from
the waist down. The accident occurred during the spring of 2014. Peterson was driving a moped
through Davis’s property—allegedly on his way home from work—because he wanted to take a
shortcut. Peterson was not a member of the mountain biking club that had used Davis’s property
in 2013 but had biked on the property before and was familiar with its trails.

APPLICABLE STATUTES
The key statute in this case is Wis. Stat. § 895.52, also known as the recreational use statute,
where it defines the scope of recreational activities and limits to the property owner’s liability.

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The purpose of this recreational immunity statute is to encourage property owners to allow use of
their lands for recreational activities by removing liability for negligence actions brought against
them by people who use the land for such recreational purposes. Understanding what constitutes
recreational activity is also of paramount importance in this case.

Wis. Stat. § 895.52(1)(g) states that recreational activity means “any outdoor activity undertaken
for the purpose of exercise, relaxation or pleasure.” A list of 28 recreational activities is
provided, although riding a moped is not specifically mentioned. (See the “analysis” section of
Lasky v. City of Stevens Point for case law that helps define recreational activity).

Wis. Stat. § 895.52(6)(a) states that a property owner is liable if he or she “collects money,
goods, or services” in excess of $2,000 during the year in which the death or injury occurred.

If activity that caused the injury is deemed recreational, Wis. Stat. § 895.52(2) states that the
property owner has no duty to the recreational user and is immune from liability.

ANALYSIS
A property owner may be found liable for a plaintiff’s injury despite the recreational immunity
statute if the property owner receives money, goods, or services in return for using the owner’s
property for recreational purposes. Wisconsin Statute § 895.52(6)(a) states that a property owner
is not immune if he or she has collected in excess of $2,000 “during the year in which the death
or injury occurs.” In the case of Mr. Davis, a mountain biking club gave him a gift of slightly
more than $2,000 out of appreciation for allowing them to use his biking trails. Davis received
the gift on December 25, 2013. Mr. Peterson was injured several months later during the spring
of 2014. Therefore, since the injury did not occur during the same year in which Mr. Davis
received the mountain bike club’s gift, Wis. Stat. § 895.52(6)(a) is not applicable.

In determining whether or not the recreational immunity statute should apply, the court must take
into consideration the activity of the person who enters and uses the land rather than the land
owner’s obligation to demonstrate to the public that the land is open for recreational use. In
Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 631, 547 N.W.2d 602, 604 (1996), the court
rejected the defense’s claim that “landowners should permit the public full access to their land
for all recreational uses because any restrictions would expose an owner to liability.” See
Verdoljak, 547 N.W.2d at 604. It also determined that the plaintiff was riding his motorcycle
through the defendant’s property in order “to meet friends” and go riding “for fun.” Id. at 603.
Because the court must consider the actions of the user rather than the owner, Mr. Davis has no
duty to show that his property was open for recreational use. Rather, the actions of Mr. Peterson
alone shall determine whether or not Peterson was engaging in recreational activity. If the court
determines that Mr. Peterson was riding his moped through Mr. Davis property “for fun,” the
recreational immunity statute will apply.

When deciding if the injured party was recreating at the time the injury occurred, the governing
factor is the intrinsic nature of the activity at the time, not the subjective intent of the user. In
Linville v. City of Janesville, 184 Wis. 2d 705, 516 N.W.2d 427 (1994), the plaintiff sued the
defendant after her son and boyfriend died from drowning as the result of her boyfriend’s van
sinking into the pond in a freak fishing accident. See Linville, 516 N.W.2d at 429. The plaintiff

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claimed that the defendant was not immune under the recreational use statute because the
plaintiff herself was present against her will and did not want to engage in recreation at the time
her son and boyfriend were injured, ultimately resulting in their deaths. Id. The Wisconsin
Supreme Court held, however, that it is paramount to focus on “the user's activity rather than the
user's state of mind.” Id. at 431. A court must therefore place greater weight on the inherent
nature of the activity rather than the user’s intent. In the case of Mr. Peterson, he might likely
affirm that he was simply commuting home from work and not engaging in any recreational
activity. However, the Linville case illustrates that even though Mr. Peterson himself may feel
he was not recreating at the time he was injured, a court of law could very easily determine that
the very intrinsic nature of driving a moped on a bike trail not intended for public transportation
is recreational.

The recreational immunity statute can apply even when the injured person is not engaged in
recreational activity at the moment the injury occurs. In the case of Lasky v. City of Stevens
Point, 220 Wis. 2d 1, 4, 582 N.W.2d 64, 65 (Ct. App. 1998), the plaintiff contended that he was
not recreating when he fell after a board on a city park bridge cracked and injured him. Rather,
he claimed that he was simply walking in the park on his way to do errands, an activity that is
not specifically mentioned in the 28 activities listed in the definition of recreation found at Wis.
Stat. § 895.52(1)(g). See Lasky, 582 N.W.2d at 66. Upon further review, the Court of Appeals
determined that, since Lasky intentionally parked his car some distance from the establishments
he intended to visit so that he could get some exercise, his walk through the park was
recreational. Furthermore, the Court of Appeals determined that the city did not have a duty to
maintain the bridge as it was devoted solely for recreational purposes and not for sidewalk
transportation purposes. Lasky used the bridge for recreational purposes. Id. at 68. Likewise,
the biking trails on Mr. Davis’s property were meant to be used solely for recreational purposes
and not as a means of public transportation. Mr. Peterson asserts that he was riding his moped
on his way home from work. He therefore used the trail as a means of public transportation,
despite the fact that the trail was exclusively to be used for recreational purposes. If the court
agrees, the recreational immunity statute should apply.

On the other hand, there is existing case law in Wisconsin where the court determined the
recreational immunity statute does not apply. In order for a plaintiff to prevail in a lawsuit
against a land owner who uses the recreational use statute as a defense, the plaintiff must
demonstrate that the property owner did have a duty to ensure the plaintiff’s safety because the
plaintiff did not intend to recreate at the time the injury occurred. In Rintelman v. Boys & Girls
Clubs of Greater Milwaukee, Inc., 2005 WI App 246, 288 Wis. 2d 394, 409, 707 N.W.2d 897,
904, the plaintiff, acting as the club chaperone, was injured while walking. The court held that
the defendant did not have immunity because the plaintiff was not walking for exercise or to
enjoy the scenery, but instead was acting in an official capacity. The court goes on to say that
“although the injured person’s subjective assessment of the activity is pertinent, it is not
controlling.” See Rintelman, 707 N.W.2d at 904. The court must consider the following factors
in order to determine if the property owner is liable for the plaintiff’s injuries: “the nature of the
property, the nature of the owner's activity, the reason the injured person is on the property . . .
the totality of circumstances surrounding the activity, including the intrinsic nature, purpose, and
consequences of the activity.” Id. Unlike the Rintelman case, however, Mr. Peterson was not on
Mr. Davis’s property in any sort of official capacity, but rather, to ride his moped on Davis’s

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bike trails while going home from work. If the court decides that riding a moped does not
constitute a recreational activity—that Peterson was merely commuting home from work—the
recreational immunity statute might not apply.

Is all outdoor activity to be deemed recreational? No, it is not. In Minnesota Fire & Cas. Ins.
Co. v. Paper Recycling of La Crosse, 2001 WI 64, 244 Wis. 2d 290, 296, 627 N.W.2d 527, 529,
the Supreme Court of Wisconsin determined that the recreational immunity statute did not apply
in a case where an 11-year-old boy was killed after he and two other minors entered a property
through a fence opening, crawled through stacks of baled paper, lit matches and started a fire.
See Minnesota, 627 N.W.2d at 529. The court determined that the boys were not recreating
because nothing about the intrinsic nature of their activity was substantially similar to a
recreational activity. In fact, the boys acted mischievously by trying to conceal themselves,
waiting until no one was around, a fact not usually associated with recreational activity. Id. at
535. Furthermore, the boys’ intent was to light matches and start fires, something not
substantially similar at all to any of the recreational activities listed in the statute. Id. at 536.
The court therefore determined that the recreational immunity statute did not apply. Likewise, if
the court determines that Peterson was trying to conceal the fact that he was riding through
Davis’s property, it may be inclined to rule that the recreational immunity statute does not apply
in this case.

CONCLUSION
The primary factor in this case is whether Peterson riding his moped home from work through
Davis’s property constitutes recreation. The plaintiff’s counsel will likely argue that Peterson’s
commute home from work should not be interpreted as a recreational activity and that the court
should use precedent from the Rintelman case to prove Davis is liable for Peterson’s injuries. If
Peterson admits during next week’s deposition that he took the shortcut in part so that he could
enjoy the scenery, the court will almost assuredly grant a motion for summary judgment. Even if
Peterson does not admit he was participating in recreational activity, arguing that the very
intrinsic nature of riding a moped on a biking trail constitutes recreation would also likely result
in a summary judgment in Davis and ABC Insurance’s favor.