1. STATE OF WISCONSIN CIRCUIT COURT SHEBOYGAN COUNTY
)
) Case No. 14CV2014
)
Paul Peterson ________________, )
Plaintiff )
)
v. )
)
Darrell Davis _________________, )
Defendant, )
)
and, )
)
ABC Insurance Co. , )
______________________________________________________________________________
Darrell Davis’s trial brief in support of his Motion for Summary Judgment
______________________________________________________________________________
INTRODUCTION
Mr. Bradley Jones, attorney-in-fact for Defendants Mr. Darrell Davis and ABC Insurance
Co., respectfully submits this Motion for Summary Judgment because Wisconsin Statute §
895.52 (commonly referred to as the “recreational immunity” statute) requires that the Court
dismiss the civil lawsuit that Plaintiff Mr. Paul Peterson has brought against the Defendants. The
facts of the case clearly show that Mr. Davis was not responsible for the Plaintiff’s injuries, nor
did Mr. Davis have any duty to protect the Plaintiff from harm since the Plaintiff was engaging
in recreational activity when the injury occurred.

2. 2
FACTUAL BACKROUND
Mr. Darrell Davis has a land contract for 30 acres of property adjacent to the Northern
Kettle Moraine State Forest. (Davis Aff. at ¶ 1). ABC Insurance Co. had extended coverage to
Mr. Davis in 2011. (Davis Aff. at ¶1). Although Davis initially did not want people using his
property for mountain biking, running, motorcycling, or four-wheeling, he consented in 2013 to
a local mountain biking club’s request to use his property for biking. (Davis Aff. at ¶ 2). Davis
took down fencing that he had installed in 2012. (Davis Aff. at ¶ 2). 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 Aff. at ¶ 3). 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. (Davis Aff. at ¶ 4).
Mr. Paul Peterson is suing Davis and 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. (Peterson Dep. at ¶¶ 2-4). The accident occurred during the spring of 2014.
(Peterson Dep. at ¶ 1). Peterson was driving a moped through Davis’s property while on his way
home from work because he wanted to take a shortcut. (Peterson Dep. at ¶ 5). Peterson was not
a member of the mountain biking club that had used Davis’s property in 2013. (Davis Aff. at ¶
5). However, Peterson had biked on the property before and was familiar with its trails.
(Peterson Dep. at ¶ 6).
ARGUMENT
The issue of whether or not the Plaintiff was engaging in recreational activity is a legal
issue that must be left to the Court—not the jury—to decide. Wis. Stat. § 895.52(2) states that a
property owner has no duty to “keep the property safe for recreational activities . . . [no] duty to

3. 3
inspect the property . . . [and no] duty to give warning of unsafe conditions, use, or activity on
the property” to persons engaging in recreational activities and is immune from liability. The
facts of this case present undeniable evidence that the Plaintiff was recreating at the time he was
injured. Therefore, the Court must rule that Wis. Stat. § 895.52(2) is applicable and that the
Defendant Mr. Darrell Davis had no duty towards the Plaintiff and is immune from liability.
Wisconsin case law governs what factors the Court must consider in order to deem an activity
recreational, and Mr. Patterson’s actions meet each of those criteria.
I. THE INTRINSIC NATURE OF PETERSON’S ACTIVITY AT THE TIME HE
WAS INJURED—NOT HIS SUBJECTIVE INTENT—IS THE DECIDING
FACTOR THE COURT MUST USE TO DETERMINE THAT THE PLAINTIFF
WAS INDEED RECREATING.
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
427, 429. The plaintiff 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.
The very reason that a person decides to drive a moped is to enjoy the outdoors. Mr.
Peterson had another vehicle at his disposal that he could have driven instead of his moped. (See
Peterson Dep. at ¶ 6). Despite the fact that Mr. Peterson was commuting home from work, the
Linville case illustrates that the very intrinsic nature of driving a moped on a scenic bike trail

4. 4
intended for excursionists to enjoy the outdoors is recreational, and the fact that he elected a
scenic route with which he was familiar instead of a different detour is further proof that his
motive was, at least in part, to recreate. That being said, the Court must apply the holding as in
Linville and issue a summary judgment in favor of the Defendants.
II. CASE LAW DICTATES THAT DAVIS WOULD STILL BE IMMUNE FROM
LIABILITY EVEN IF PETERSON HAD NOT BEEN ENGAGING IN
RECREATIONAL ACTIVITY.
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 64,
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, out of his own volition, rode his moped on a trail also meant for
recreational use. The Defendant had no duty to maintain the trail as it was not intended for the
public to use for transportation. Therefore, Mr. Davis is not liable for the Plaintiff’s injuries.

5. 5
III. PETERSON’S ACTIONS ARE READILY CLASSIFIED AS RECREATIONAL
WHEN THE COURT TAKES INTO ACCOUNT THE NATURE OF THE
PROPERTY, THE NATURE OF THE OWNER’S ACTIVITY, THE REASON
THE INJURED PERSON IS ON THE PROPERTY, THE TOTALITY OF THE
CIRCUMSTANCES SURROUNDING THE ACTIVITY, THE INTRINSIC
NATURE OF THE ACTIVITY, AND THE CONSEQUENCES OF THE
ACTIVITY.
A court should apply a reasonable person standard to determine whether the person
entered the property to engage in a recreational activity. See Rintelman v. Boys & Girls Clubs of
Greater Milwaukee, Inc., 2005 WI App 246, 288 Wis. 2d 394, 408, 707 N.W.2d 897, 904. In
Rintelman, the plaintiff, acting as a club chaperone, was injured while walking on a slippery
sidewalk. See Rintelman at 707 N.W.2d 897, 897. 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.” Id. 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 intrinsic nature of the activity, the purpose of the activity, the
consequences of the activity, the intent of the user, the nature of the property, and the intent of
the property’s owner. Id. at 904, 905. The case of Peterson v. Davis is strikingly different from
the circumstances in the Rintelman case, especially in the following areas:
A. “The intrinsic nature of the activity” proves that Peterson was recreating at the
time his injury occurred.
In order for a plaintiff to prove that a land owner is not protected by Wis. Stat. § 895.52,
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 the case
of Rintelman, the plaintiff was working as a chaperone and was clearly not engaging in
recreation when she slipped while walking on a sidewalk and injured herself. Mr. Peterson,

6. 6
unlike in Rintelman, was engaging in an activity that most reasonable people would consider
recreational, namely, intentionally riding a moped on a scenic bike trail.
B. The very reason that Peterson was on Davis’s property was to recreate.
Unlike in the Rintelman case, Mr. Peterson was not acting in any sort of official capacity
when he was injured. He was not on the Defendant’s property to work. His sole purpose for
being on the property was to use a scenic bike trial intended for recreational use. The Court
cannot apply this case law to determine that the Plaintiff was not recreating.
IV. WIS. STAT. § 895.52(6)(a) IS NOT APPLICABLE IN THIS CASE AS DAVIS DID
NOT COLLECT IN EXCESS OF $2,000 DURING THE SAME YEAR IN WHICH
THE PLAINTIFF WAS INJURED.
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. Wis. Stat. § 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. Mr.
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.
It is clear from precedent established in Wisconsin case law that Mr. Davis has
recreational immunity. The facts and circumstances pertinent to the holding in the Rintelman

7. 7
case do not apply whatsoever to Mr. Davis and should instead be applied to prove that the
Plaintiff was recreating while on the Defendant’s property.
STANDARD FOR SUMMARY JUDGMENT
Summary judgment must be granted "where there is no factual dispute or where no
competing inferences arise from undisputed facts and the law resolving the issues is clear."
Tomlin v. State Farm Mutual Automobile Liability Insurance Company, 95 Wis. 2d 215, 290
N.W.2d 285, 287 (1980). "The purpose of summary judgment procedure is not to try issues of
fact but to avoid trials where there is nothing to try." Rollins Burdick Hunter v. Hamilton, 101
Wis. 2d 460, 304 N.W.2d 752, 757 (1981).
The procedure the Court should follow in evaluating a motion for summary judgment is
well established. The Court should examine the pleadings, depositions, answers to interrogatories
and affidavits to determine if there are any disputed issues of material fact. Green Spring Farms
v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). If there are no disputed issues of fact,
and the moving party is entitled to judgment as a matter of law, summary judgment must be
entered. Id.
The party opposing summary judgment may not rest upon mere averments in his or her
pleadings, nor may he or she oppose the motion merely by submitting counter affidavits
containing only argumentative conclusions of law, hearsay, statements of ultimate fact, or
assertions based on information and belief. Board of Regents v. Mussallem, 94 Wis. 2d 657, 672,
289 N.W.2d 801 (1980) (resting on pleadings); Krieg v. Dayton-Hudson Co., 104 Wis. 2d 455,
465, 311 N.W.2d 641 (1981) (conclusions of law and ultimate fact); West Side Bank v. Marine
Nat. Ex. Bank, 37 Wis. 2d 661, 666, 155 N.W.2d 587 (1968) (information and belief).

8. 8
The mere existence of an alleged factual dispute between parties will not defeat an
otherwise properly submitted motion for summary judgment; there must be a genuine issue of
material fact. Baxter v. Wisconsin Dept. of Natural Resources, 165 Wis. 2d 298, 477 N.W.2d
648 (Ct. App. 1991). A factual issue is only a "genuine issue of material fact" if the evidence is
such that a reasonable jury could return a verdict for the non-moving party. Id.
CONCLUSION
For the foregoing reasons, Mr. Darrell Davis and ABC Insurance Co. respectfully request
that this Court grant the Defendants’ request for summary judgment and order that this case be
dismissed.
Respectfully submitted,
____________________________________
Bradley Jones
Attorney for Defendants
Bar number: 156321
445 E. Main Blvd.
Justice Way, WI 55555
Telephone: (920) 555-5657
DATED: December 11, 2014