It is truly better to give than receive, and this is the season for giving. However, two recent unpublished Wisconsin appellate cases should remind everyone that safety should come first. More people volunteer to help others during the holidays than at any other time. The two recent cases reflect important policy decisions reflected in Wisconsin statutes and case law with respect to injuries suffered by or caused by volunteers.
In the Mueller case, many volunteers agreed to assist in a project organized by the WI DNR. As part of the project to construct fish cribs on a frozen lake, 75 volunteers used ATV’s and equipment to place trees into concrete culverts. A private business developed and helped supervise the project. Mueller was pulling a metal wire through a culvert when another volunteer tried to pull a tree through the culvert in the opposite direction. The culvert broke and a piece of cement struck Mueller’s face causing severe injury. Mueller sued the developers and supervisors of the project, but his suit was dismissed. The court held that the suit was prohibited by the RECREATIONAL IMMUNITY statute which prohibits anyone from suing for injuries sustained while engaged in a recreational activity.
Although Mueller’s activity does not sound like a “recreational activity” – he was building up a fishery for the benefit of the public and local business – nevertheless, his suit was prohibited because he was unpaid, and he was using an ATV at the time. The RECREATIONAL IMMUNITY statute, 895.52, lists operating an ATV as a recreational activity – along with 28 other specific activities. Thus, one could look at the big picture and conclude that if a volunteer is assisting a government agency, a private business, a local club, or anyone, with a project that could full under activities in 895.52, one better be very careful and hope that they are not severely injured by someone else’s negligence. Because, the injured person may have no remedy.
In another unpublished case, volunteers agreed to teach snowmobiling through a course offered by the DNR. In this tragic case, a 13 year old girl participating in the course was severely injured and died the following day from her injuries. The parents alleged that the volunteer instructors were negligent and should accept responsibility for causing the death of their daughter. One of the instructors was dismissed from the suit, because the instructors were deemed to be agents of the state, and the notice required to sue the state or a state agent was insufficient. The big picture coming from this case is that if an activity is sponsored by a government agency, volunteers who are negligent and cause injury could have the same protections and limited liability that the government has.
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So, the holidays will always be a time of giving, and volunteering will always be a very popular way of giving. But, it is important to consider safety and know going into any volunteer activity that if you or a family member are injured because of another’s negligence, you may be on your own for medical bills and other damages. At Hammett, Bellin & Oswald, LLC, we have attorneys well versed in the Wisconsin liability laws and have advised volunteers and volunteer organizations. We are here to help provide preventive advice and assist anyone who suffers injuries because of the negligence of others. Give back to the community, volunteer, and stay safe.