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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
SEPTEMBER 11, 1996
A party may file with the Supreme Court                                           This opinion is subject to further editing.
a petition to review an adverse decision                                          If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                        appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                               Official Reports.
No.   95-2795
STATE OF WISCONSIN                                                                IN COURT OF APPEALS
                                                                                  DISTRICT II
DAVID L. MESSMAN,
Plaintiff-Appellant,
v.
KETTLE RANGE SNOW
RIDERS, INC., and
GENERAL CASUALTY COMPANY
OF WISCONSIN,
Defendants-Respondents.
APPEAL from an order of the circuit court for Manitowoc County:
FRED H. HAZLEWOOD, Judge.  Affirmed.
Before Anderson, P.J., Nettesheim and Snyder, JJ.
ANDERSON, P.J.                                                                    David  L.  Messman  appeals  from  an
order for summary judgment dismissing his negligence action against Kettle
Range  Snow  Riders,  Inc.,  and  its  insurer,  General  Casualty  Company  of




No.   95-2795
Wisconsin  (collectively, Kettle Range).   The trial court concluded that Kettle
Range  was  entitled  to  recreational  immunity  under  §  895.52,  STATS.,1  and
dismissed the action.  We agree, and we therefore affirm.
The material facts are undisputed.   On March 2, 1994, Messman
was riding his snowmobile on the Manitowoc County snowmobile trail, east of
County Highway O  (the Manitowoc Trail).    Messman’s snowmobile struck
portions of a fallen tree which extended onto the marked and groomed portion
of the trail and he sustained injuries.
The Manitowoc Trail is located on property which is owned by the
state of Wisconsin, and Manitowoc County has a land use agreement with the
state regarding the trail.   In turn, Manitowoc County had a contract with Kettle
Range, a nonprofit corporation, for snowmobile trail maintenance services.  The
contract required Kettle Range to groom the trail, cut and contour roadside
snowbanks, replace lost or damaged trail signs, and maintain and clean up the
trail.   Kettle Range was to receive payment for the maintenance services for the
entire season at a cost not to exceed $4240.   The contract was in effect from
December 6, 1993, through March 31, 1994.
On March 8, 1995, Messman filed this action against Kettle Range
and its insurer.   Messman alleged that Kettle Range was negligent in failing to:
(1) warn snowmobilers of the danger of the trail; (2) remove the danger from the
1   Section 895.52, STATS., was amended effective May 1, 1996, by 1995 Wis. Act 223, § 1-7, to
codify the decision of Moua v. Northern States Power Co., 157 Wis.2d 177, 458 N.W.2d 836 (Ct.
App. 1990).  The amendments do not affect our analysis of the issues presented here for review.
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No.   95-2795
snowmobile trail;  (3) maintain the snowmobile trail in a safe condition;  (4)
adequately supervise the trail to prevent dangerous conditions; and (5) make
the trail as safe as the nature of the premises would reasonably permit in
violation of § 101.11, STATS.
Kettle  Range  denied  the  allegations  and  moved  for  summary
judgment contending that there were no genuine issues of material fact.   Kettle
Range argued that it was immune from liability pursuant to § 895.52, STATS.,
Wisconsin’s recreational immunity statute.   The trial court agreed and granted
Kettle Range’s summary judgment motion and dismissed Messman’s complaint
with prejudice.  Messman appeals.
On review of an order for summary judgment, the appellate court
owes no deference to the trial court.    Waters v. United States Fidelity &
Guaranty  Co.,  124  Wis.2d  275,  278,  369  N.W.2d  755,  757  (Ct.  App.  1985).
Summary judgment methodology has been oft-repeated and we need not do so
here. See, e.g., Grams v. Boss, 97 Wis.2d 332, 338-39, 294 N.W.2d 473, 476-77
(1980).
Messman’s complaint stated a claim for common law negligence
against Kettle Range and Kettle Range’s answer placed the claim in dispute.
Kettle Range also asserted affirmative defenses, including an allegation that the
claim was barred by § 895.52, STATS.   Kettle Range submitted an affidavit in
support of its claim and Messman submitted an affidavit in opposition.
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No.   95-2795
The trial court concluded that Kettle Range was “an occupant or
an owner   and entitled to the protection of the statute.”    The trial court
reasoned that the immunity extended to contractors who perform recreational
services for persons or entities who are clearly owners of the land.
Messman  maintains  that  the  trial  court  erroneously  granted
summary  judgment  to  Kettle  Range  because  the  undisputed  facts  raise
conflicting  inferences  as  to  whether  Kettle  Range  was  a  private  vendor
performing fee-based contractual obligations, whether it had abandoned the
recreational land under Mooney v. Royal Ins. Co., 164 Wis.2d 516, 476 N.W.2d
287 (Ct. App. 1991), or whether its conduct constituted a malicious failure to
warn under § 895.52(5), STATS., thus precluding immunity.   In the alternative,
Messman argues that he is a third-party beneficiary to the contract and should
be permitted to sue for breach of contract.2
Section                                                                                               895.52 (2)   (a)1  and                                                                            3,  STATS.,  provides,  with  certain
exceptions, that “no owner  owes to any person  engage[d] in a recreational
activity  [a] duty to keep the property safe for recreational activities  [or] to
give warning of an unsafe condition, use or activity on the property.”3   An
2   There is nothing in the record to indicate that a claim based upon malicious failure to warn or
breach of contract was pleaded or argued below.   A theory of relief neither pleaded nor argued to
the trial court will not be considered on appeal.   A party cannot attack an adverse summary
judgment by attempting to amend its complaint on appeal.   Stern v. Credit Bureau, 105 Wis.2d
647,                                                                                                  654-55,      315  N.W.2d  511,  515-16  (Ct.  App.  1981).    We  will  not  address  Messman's
contentions of malicious failure to warn or his breach of contract claim.
3  Snowmobiling is a recreational activity under § 895.52(1)(g), STATS.
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No.   95-2795
                                                                                                          owner includes a nonprofit organization that occupies the property.   Section
895.52 (1)                                                                                                (d).
Messman  argues  that  while  Kettle  Range  was  “a  non-profit
organization,” it functioned like an independent contractor with a commercial
interest because it “provid[ed] paid services at commercial rates under a written
contract” and therefore it should not be permitted immunity.  We disagree.
The  supreme  court  has  determined  that  despite  any  minimal
pecuniary  benefits  received  from  a  particular  recreational  activity,  it  is
nevertheless rational to  include nonprofit organizations under the cloak of
recreational immunity because it serves to open more Wisconsin recreational
land to the public.   Szarzynski v. YMCA, Camp Minikani, 184 Wis.2d 875, 888,
517 N.W.2d 135, 140 (1994).   The reason for limiting the liability of a nonprofit
organization is that
it  is not formed for the purpose of pecuniary profit.   The profit
it seeks is for the purpose of passing a benefit on to
those  for  whom  the  organization  exists.                                                                [A]
nonprofit organization may profit monetarily  but
the profit is intended and must benefit the charitable
purposes for which it was formed.
Id.   Accordingly, the fact that Kettle Range was paid $3775 under the contract
does not automatically convert its nonprofit, recreational status to that of an
independent commercial contractor.4
4   The record does not include any facts which establish that Kettle Range used the profits from
the contract for anything other than nonprofit purposes, as outlined in the bylaws.   Messman
attempts to categorize Kettle Range as an independent contractor based upon the bidding process,
the specificity of the contract and the payment received, but these facts are irrelevant as long as the
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No.   95-2795
Messman also argues that unlike the snowmobile clubs in Smith v.
Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193 (7th Cir. 1987), Kettle Range
was not an “occupant” for the purposes of immunity.   Messman attempts to
distinguish Smith on two grounds.   First, Messman contends that Kettle Range,
which contracted for the snowmobile services, was more analogous to the
independent contractor in Labree v. Millville Mfg., Inc.,  481 A.2d  286  (N.J.
Super. Ct. App. Div. 1984), than to the nonprofit snowmobile clubs in Smith.
We disagree.
Kettle  Range,  which  contracted  to  provide  grooming  and
maintenance   services   for   the   public   snowmobile   trail,   is   virtually
indistinguishable from the defendants in Smith.   In Smith, the Seventh Circuit
considered  whether  two  snowmobile  organizations  qualified  as  occupants
under § 29.68, STATS. 1981, Wisconsin’s former recreational use statute.   Smith,
823  F.2d  at                                                                                            1193-94.     The  snowmobile  clubs  had  permission  from  the
landowners to construct, groom and maintain snowmobile trails in the Eagle
River, Wisconsin area.  Id. at 1194.   The plaintiff was injured on one of the trails
constructed and maintained by the clubs.  Id.
The Seventh Circuit agreed with the district court’s finding that
even though the clubs were not in actual possession or exclusive control of the
land, the clubs nevertheless qualified as occupants and were immune from
(..continued)
profits were used to benefit the purposes for which the organization was formed.  See Szarzynski v.
YMCA, Camp Minikani, 184 Wis.2d 875, 888, 517 N.W.2d 135, 140 (1994).  An appellate court’s
review is limited to those parts of the record made available to it.   See State v. Pettit, 171 Wis.2d
627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992).
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No.   95-2795
liability.   Id. at 1198.   The court based the clubs’ immunity on the fact that they
did not enter upon the land for “commercial gain (as they are non-profit) but
only to build a recreational snowmobile trail for use by the public.”   Id. at 1197.
They had permission to and intended to construct, maintain and groom the
public trail, illustrating “occup[ancy]  with a degree of permanence.”  Id.  The
court concluded that “to the extent they constructed and groomed” the trail,
they were “properly classified as occupants.”  Id. at 1198.
Similarly, Kettle Range had a contract to provide grooming and
maintenance services on the recreational snowmobile trail for use by the public.
It is undisputed that Kettle Range was a nonprofit organization whose purpose
was to  “serve the interests of snowmobile owners    [by] perform[ing] all
desirable and lawful functions for the successful operation of the club and in the
general  public  interest.”    In  addition,  Kettle  Range  obtained  permission,
through its service contract, to maintain and groom the public snowmobile trail
for Manitowoc County.   We conclude, like the court in Smith, that to the extent
Kettle Range maintained and groomed the trail, it was properly classified as an
occupant and was entitled to immunity.
Messman further contends that “[t]he real distinction both Smith
and Labree make  is the commercial nature of the occupation, not the actual
conduct  of  the  occupants.”     Messman  concedes  in  his  brief  that  the
“‘occupation’ in Smith is  similar to the ‘occupation’ here, [but argues that]
the fee-for-services contract underlying Kettle Range’s ‘occupation’ puts it in an
entirely different category.   Its presence is commercial rather than recreational.”
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No.   95-2795
We  have  already  addressed  and  dismissed  Messman's  concerns  regarding
Kettle Range's purported “commercial contract.”
However, Messman has also mischaracterized the distinction in
Smith and Labree.   The issue in Smith was not whether the activity was a
“volunteer” or “commercial” venture.   Rather, the Smith court addressed the
appellants' narrow definition of  “occupants” and their assertion that Labree
supported this interpretation.
In the process of concluding that this interpretation would “negate
and defeat the very intent of the Wisconsin legislature to open up as much land
as possible,” the Seventh Circuit also distinguished Labree.   Smith, 823 F.2d at
1197-98.    The  defendant  in  Labree  was  an  independent  contractor  whose
business profited from the excavation of sand and gravel which were to be used
in the construction of a highway bed.   Labree, 481 A.2d at 288.   Although not
part of the contract, the excavation resulted in the creation of a twenty-acre lake
which was informally used by the public for swimming and bathing. Id.   The
plaintiff suffered a diving injury at the lake and was rendered a quadriplegic.
Id.
The Smith court made the following distinctions:                                      (1) the Labree
defendant entered the land as part of a business agreement and for commercial
gain; (2) the Labree defendant never occupied the property “‘with a degree of
permanence,’ [because] the contractor simply removed sand and gravel from
the land pursuant to its contractual obligations;” and (3) “[t]he creation of the
lake was not intended to be part of the commercial venture.”   Smith, 823 F.2d at
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No.   95-2795
1197 (emphasis added).   The Labree defendant used the property to remove the
sand  and  gravel,  not  to  create  the  twenty-acre  lake  which  was  used  for
recreational activities.   Smith, 823 F.2d at 1197.   In contrast, the snowmobile
clubs  utilized  the  property,  according  to  their  agreements,  to  construct,
maintain and groom the recreational trails.    Id.    Herein lies the distinction
between Labree and Smith, as well as Labree and the case at bar.   It is clear that
Labree does not provide the support which Messman is seeking.
In the alternative, Messman argues that, unlike Smith, here there is
a genuine issue of material fact concerning whether Kettle Range abandoned
the recreational land as articulated in Mooney, 164 Wis.2d at 520, 476 N.W.2d at
289.  This argument is equally unpersuasive.
Mooney  involved  a  nonprofit  snowmobile  club  which  had
received permission to hold a snowmobile speed race on Lake Minoqua.   Id. at
519, 476 N.W.2d at 288.   After the race, the club removed the flags and other
race equipment from the lake.   The members also attempted to flatten the track
area back to its natural state, but several mounds of plowed ice remained after
the clean-up.   Id. at 519-20, 476 N.W.2d at 288.   The club president testified that
after the clean-up, the club had completed all of its activities on the lake and had
no plans to return.   Id. at 519, 476 N.W.2d at 288.   Consequently, Mooney was
injured when his snowmobile hit one of the remaining mounds of ice.  Id.
The Mooney court determined that the club had abandoned the
recreational property.   Id. at 522, 476 N.W.2d at 289.   The court reasoned that
“[w]hile an ‘occupant’ need not be in actual possession or exclusive control, he
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No.   95-2795
cannot totally abandon the premises.    [T]he club [in Mooney] had concluded
all of its activities  before the accident occurred and did not intend to return.”
Id. (citation omitted).
The club pressed the court to establish a bright-line rule that an
occupant remained in possession of the recreational property until the lease had
expired.   Id.   The court declined to extend immunity in situations where “the
evidence unequivocally show[ed] an intentional and permanent abandonment
of the premises.”   Id. at 523, 476 N.W.2d at 290.   However, the court noted that
“where the evidence of abandonment is ambiguous and reasonably susceptible
to conflicting intentions  immunity may extend for the length of a lease or a
permit.”  Id.
Here,  the  evidence  does  not  establish  that  Kettle  Range
intentionally  and  permanently  abandoned  the  trail.    In  fact,  the  evidence
demonstrates quite the opposite.   Kettle Range submitted the affidavit of Lester
Tetzlaff, vice president of Kettle Range, in which he stated “[O]n February 28,
1994, I performed the grooming of the trail in question    [and] it was my
intention to return to the snowmobile trail to perform additional grooming
work.”   Kettle Range's contract was in effect through March 31, 1994.   Even
though the service records indicate that February 28, 1994, was the last day that
Kettle Range performed any grooming or maintenance on the trail, this does not
negate Kettle Range’s stated intention to return to the trail to conduct further
grooming.    At best, the evidence is somewhat  “ambiguous and reasonably
susceptible to conflicting intentions,” in which case Kettle Range’s immunity
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No.   95-2795
should be extended to the end of the contract.   See Mooney, 164 Wis.2d at 523,
476 N.W.2d at 290.  We so hold.
We agree with the trial court and hold that it properly found
under § 895.52, STATS., that Kettle Range, a nonprofit snowmobile club, was an
occupant to the extent it maintained and groomed the Manitowoc Trail.   We
also hold that the trial court properly found that Kettle Range had not yet
abandoned its responsibilities to maintain the Manitowoc Trail.   We affirm the
trial court’s grant of summary judgment in favor of Kettle Range since there
was  no  genuine  issue  of  material  facts  and  Kettle  Range  was  entitled  to
judgment as a matter of law.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
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