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Injured at Milwaukee Summerfest or a Wisconsin Church Festival? You may not be able to sue the operator for their negligence due to Wisconsin’s Recreational Immunity Law.

It’s almost summertime in Milwaukee, which means people from across the state, country, and even the world will travel to visit the wide array of music, cultural, religious, and ethnic festivals the city has to offer. As patrons enjoy the food and festival atmosphere, most rarely take time to think about the possibility of injury, or more specifically, options when an injury occurs. Since most events, such as Summerfest, are hosted by non-profit organizations, the injured party may not have a claim if the injury arises out of a “recreational activity.”

In the early 1960’s, the legislature enacted a law that immunized landowners from any claims when they open their property for recreational purposes. The original law was directed at natural settings, and activities such as hunting, fishing, and “berry picking.” A law professor at Marquette University Law School dubbed this the “berry picking statute,” and is known by many lawyers by that name.

Over the years, the law has been expanded to include almost any activity that a person does for enjoyment. The list includes

“any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity. “Recreational activity” includes hunting, fishing, trapping, camping, picnicking, exploring caves, nature study, bicycling, horseback riding, bird-watching, motorcycling, operating an all-terrain vehicle or utility terrain vehicle, ballooning, hang gliding, hiking, tobogganing, sledding, sleigh riding, snowmobiling, skiing, skating, water sports, sight-seeing, rock-climbing, cutting or removing wood, climbing observation towers, animal training, harvesting the products of nature, sport shooting and any other outdoor sport, game or educational activity. “Recreational activity” does not include any organized team sport activity sponsored by the owner of the property on which the activity takes place.”

Wis. Stat. § 895.52(g) (2012-2013).

Our Wisconsin Appellate Courts have indicated that attendance at a “fair” is “substantially similar” to several “examples of the kinds of activities” enumerated in the definition of recreational activity: “nature study,” “sight-seeing,” as well as the generic phrase “any other … educational activity.” Hall v. Turtle Lake Lions Club, 146 Wis. 2d 486, 488, 431 N.W.2d 696, 697 (Ct. App. 1988)

So what does this mean for patrons of Milwaukee Summerfest or the dozens of church festivals? Even if the promoter is negligent and causes injury, they may not be held responsible for the harm they caused.

Some exceptions:

While there is no case that is directly on point, the statute would not seem to apply to injuries caused by impure or improperly prepared food, or if going to Summerfest primarily to visit with friends. Another exception that may apply is the spectator exception. If you were viewing an organized team sport activity sponsored by the owner of the property on which the activity takes place, the owner would not be immune. See Meyer v. School District of Colby, 226 Wis. 2d 704, 595 N.W.2d 339 (1999).If a Summerfest patron is viewing such an activity at the sportzone area and is injured, the immunity may not apply. Finally, it is doubtful whether a failure to provide proper security personnel would be immune, as that relates to activities on the property rather than a condition of the property.

The analysis of whether immunity applies is heavily dependent on the facts of each individual case. The circumstances surrounding the injury make a difference on whether the entity is entitled to immunity. However, festival goers across Wisconsin should be aware of the recreational immunities statute and its repercussions, since non-profit organizations may be immune from liability for injuries.