Exempting Private Campgrounds from Civil Liability
Camping is a long-standing Wisconsin tradition and a relatively new statute now immunizes private campground owners for certain injuries which occur on their premises. To take full advantage of its provisions, counsel must be aware of its scope and function.
I.Enactment and Provisions of Wis. Stat. § 895.519
In March of 2016, the Wisconsin Legislature enacted Wis. Stat. § 895.519. This is a civil statute which immunizes private campground owners, operators, employees, and officers from all civil liability arising from an “inherent risk of camping” subject to certain limited exceptions.
The immunity section of the statute provides, in relevant part, as follows:
An owner or operator of a private campground, and any employees and officers of a private campground or private campground owner or operator are immune from civil liability for acts or omissions related to camping at a private campground if a person is injured or killed, or property is damaged, as a result of an inherent risk of camping.
The statute defines “private campground” as “a facility that is issued a campground license under s. 97.67 and that is owned and operated by a private property owner, as defined in s. 895.52 (1)(e).” Most private campgrounds will probably fall under this definition. Public campgrounds may avail themselves of other immunity statutes which are not the subject of this article.
So, this begs the question of what qualifies as an “inherent risk of camping?” The statute provides some examples, but the list is not exhaustive:
1. Features of the natural world, such as trees, tree stumps, roots, brush, rocks, mud, sand, and soil.
2. Uneven or unpredictable terrain.
3. Natural bodies of water.
4. Another camper or visitor at the private campground acting in a negligent manner, where the campground owner or employees are not involved.
5. A lack of lighting, including lighting at campsites.
6. Campfires in a fire pit or enclosure provided by the campground.
8. Insects, birds, and other wildlife.
As one can see, the statute mostly lists natural features, but does list certain risks that are unique to private campgrounds such as a lack of lighting as well as campfire pits or enclosures. Thus, an “inherent risk of camping” is a broad definition, but not necessarily something that must be found in the wild. Because no reported Wisconsin decision has ever addressed this statute, we could expect that additional examples of “inherent risk[s] of camping” will fall under this definition.
II.Civil Immunity Is Not Absolute
Although the statute does provide broad immunity, it is not absolute. For example, immunity is specifically unavailable if the “person seeking immunity does any of the following”:
(a) Intentionally causes the injury, death, or property damage.
(b) Acts with a willful or wanton disregard for the safety of the party or the property damaged. In this paragraph, “willful or wanton disregard” means conduct committed with an intentional or reckless disregard for the safety of others.
(c) Fails to conspicuously post warning signs of a dangerous inconspicuous condition known to him or her on the property that he or she owns, leases, rents, or is otherwise in lawful control or possession of.
In some respects, these are commonsense exceptions. The Legislature specifically chose not to exempt injuries, death or property damage which are the result of intentional conduct or willful or wanton conduct. Additionally, as subsection (c) makes clear, there is an affirmative duty for campgrounds to place conspicuous signage around dangerous, inconspicuous hazards. Failure to do so may result in liability attaching. Thus, immunity is broad, but not absolute.
III.Liability for Negligent Conduct
Under the statute, there are also at least two situations where liability for negligence may attach. In other words, immunity would not apply. The first situation falls under subsection (3)(c) which states that a person seeking immunity may be liable if he or she fails to “conspicuously post warning signs of a dangerous inconspicuous condition known to him or her on the property that he or she owns, leases, rents, or is otherwise in lawful control of or possession.” Thus, campground owners have a duty to post conspicuous signs around dangerous, inconspicuous, and known hazards.
The second situation falls under subsection (1)(am)4 which is an example of an “inherent risk of camping.” That section makes clear that immunity will not apply if a campground owner or employee is involved in a situation which results in negligent injuries to a camper or visitor. It is unclear how “involved” a campground employee must be for liability to attach. However, the statute does make clear that the immunity will apply if a campground owner or employee is wholly uninvolved in the situation giving rise to the injuries.
To maximize their benefit from this statute, it is important for campground owners and employees to continue to ensure that they conduct themselves in a professional manner, and that all known risks are marked conspicuously with adequate signage.
IV.Please, Please Plead Me
Wis. Stat. § 895.519 is an immunity statute. Therefore, it must be specifically pleaded as an affirmative defense. Wis. Stat. § 802.02(3) makes clear that immunity must be pleaded as an affirmative defense. It will likely be insufficient to claim that other catch-all affirmative defenses such as “failure to state a claim” would cover this scenario. If an immunity argument exists it must be specifically pleaded as an affirmative defense.
V.Why Do We Have This Statute?
For reference, no reported Wisconsin case to date has ever cited this statute or explained how it intersects with other statutes. If it seems strange that the Wisconsin Legislature has carved out this sort of exception, think again. A review of Wisconsin’s limitations on liability reveals that this is a rather common type of statute. Several other activities enjoy similar protections including equine activities, alpine sports, and sport shooting. One Wisconsin legal scholar has theorized that the Legislature was motivated by the Wisconsin Supreme Court’s disfavored view of exculpatory contracts. As Professor Anzivino observed:
Wisconsin’s alpine sports statute and equine activity statutes were passed after the Wisconsin Supreme Court addressed whether particular exculpatory contracts were enforceable in skiing and horseback riding cases. In both cases, the court determined that the exculpatory contracts were unenforceable as contrary to public policy. Subsequently, however, the legislature passed statutes, which provide immunity from civil liability in alpine sports and equine activities.
Legislatively exempting certain activities from liability circumvents the supreme court’s precedent which has invalidated exculpatory contracts on public policy grounds. By specifically exempting these activities, the Legislature made it public policy for liability not to attach.
It is important for campground owners to understand that their immunity is not absolute, and that they should continue to exercise best practices to keep patrons safe.
Campground owners should continue to place conspicuous signs around known dangerous, inconspicuous hazards on the property.
They should also ensure that their employees understand that they must continue to act in a professional and safe manner at all times. Their negligent conduct is not protected if they are “involved” with a patron’s injury.
The statute also does not foreclose punitive damages as the immunity does not apply to intentional or willful conduct.
Counsel should specifically plead immunity as an affirmative defense in the answer.
In sum, campgrounds owners (and others) enjoy more protections today than they have in the past. However, they should continue to exercise best practices to ensure the health and safety of their patrons. This will keep Wisconsin a premier destination for camping and the enjoyment of our natural world.
Storm B. Larson is an associate attorney at Bell, Moore & Richter, S.C. in Madison where he practices labor and employment, insurance defense, and general liability defense. He currently serves on the Board of the Labor & Employment Section of the State Bar of Wisconsin. He received his Bachelor of Arts, highest honors, from the University of Wisconsin-La Crosse. He obtained his law degree from the University of Wisconsin in 2018.
 Wis. Stat. § 895.519(2).
 Wis. Stat. § 895.519(1)(bm).
 Wis. Stat. § 895.519(1)(am)1-8.
 Wis. Stat. § 895.519(1)(a)-(c).
 Wis. Stat. § 895.481.
 Wis. Stat. § 895.526.
 Wis. Stat. § 895.527.
 Ralph C. Anzivino, The Exculpatory Contract and Public Policy, 102 Marquette. L. Rev. 747, 756 (2019).
 See Wis. Stat. § 895.043.