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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                     This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
October 12, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                    petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                            Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                     and RULE 809.62.
                                                                                                                                                     Cir. Ct. No.   2003CV1039
Appeal No.                                                                          2004AP2666
STATE OF WISCONSIN                                                                                                                                   IN COURT OF APPEALS
                                                                                                                                                     DISTRICT II
LEO DUNLAP,
PLAINTIFF-APPELLANT,
V.
CITY OF KENOSHA, KENOSHA YACHT CLUB, AND
CINCINNATI INSURANCE COMPANY,
DEFENDANTS-RESPONDENTS.
APPEAL from an order of the circuit court for Kenosha County:
WILBUR W. WARREN, Judge.   Affirmed.
Before Snyder, P.J., Brown and Nettesheim, JJ.
¶1                                                                                  PER CURIAM.    The circuit court dismissed on summary judgment
Leo Dunlap’s claims against the City of Kenosha and the Kenosha Yacht Club for
injuries he suffered when he stepped into a hole in a concrete walkway located on




No.   2004AP2666
property owned by the City and leased by the Yacht Club.   We agree with the
circuit court that the City is not liable to Dunlap because the walkway does not fall
within  the  definition  of  a  sidewalk  under  WIS.  STAT.  § 81.15  (2001-02)1  for
purposes of municipal liability.   We further agree that the Yacht Club is immune
from liability on recreational immunity grounds under WIS. STAT.  § 895.52(2).
Therefore, we affirm.
¶2                                                                                                   In July 2001, Dunlap decided to go fishing on property owned by the
City and leased by the Yacht Club.   Dunlap parked his vehicle in a parking lot
next to the Yacht Club, retrieved his fishing pole from his vehicle, and walked
across a grassy area toward the concrete walkway that abuts a seawall.2   Dunlap
stood on the seawall to survey the area and as he stepped off the wall, he stepped
into a hole in the concrete walkway.
¶3                                                                                                   Dunlap  sued  the  City  for  his  injuries.    Dunlap  alleged  that  the
walkway constituted a sidewalk under WIS. STAT. § 81.15, making the City liable
for his injuries.    Dunlap also sued the Yacht Club and its insurer, Cincinnati
Insurance Company.
¶4                                                                                                   The City and the Yacht Club moved for summary judgment.   Among
other arguments, the City claimed that the walkway did not constitute a sidewalk
1  All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise
noted.    Effective  January                                                                         1,                                                                                   2005,  WIS.  STAT.   § 81.15  was  renumbered  to  WIS.  STAT.
§ 893.83(1).                                                                                         2003 Wis. Act 214, § 136.   Because Dunlap’s claim arose in 2001, we will refer to
§ 81.15.   We recognize that § 81.15 does not provide a definition of the term “sidewalk” and that
this section refers to highways rather than sidewalks.    However, subsequent case law has
interpreted the term “highway” to include a sidewalk.   See Bystery v. Village of Sauk City, 146
Wis. 2d 247, 251, 430 N.W.2d 611 (Ct. App. 1988).
2  Dunlap’s summary judgment materials describe the seawall as a ledge or bulkhead.
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No.   2004AP2666
under  WIS. STAT.  § 81.15  such that the  City would be  liable  for  its state  of
disrepair.    The Yacht Club asserted recreational immunity.3    The circuit court
agreed.   Dunlap appeals.
¶5                                                                                              We review decisions on summary judgment by applying the same
methodology as the circuit court.   M & I First Nat’l Bank v. Episcopal Homes
Mgmt., Inc.,  195 Wis.  2d  485,  496,  536 N.W.2d  175  (Ct.  App.  1995).    That
methodology has been recited often and we need not repeat it here except to observe
that summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.  Id. at 496-97.
¶6                                                                                              WISCONSIN STAT. § 81.15 addresses municipal liability for damages
caused by highway defects and provides in pertinent part:
If damages happen to any person or his or her property by
reason  of  the  insufficiency  or  want  of  repairs  of  any
highway which any town, city or village is bound to keep in
repair, the person sustaining the damages has a right to
recover the damages from the town, city or village.
“Highway” under § 81.15 includes sidewalks.   Bystery v. Village of Sauk City, 146
Wis. 2d 247, 251, 430 N.W.2d 611 (Ct. App. 1988).   The question in this case is
whether the concrete walkway constitutes a sidewalk under § 81.15.
¶7                                                                                              The  definitions  of                                                                “highway”  and  “sidewalk”  suggest  that  to  fall
                                                                                                within WIS. STAT.  § 81.15, the walkway must be associated with vehicular use.
WISCONSIN  STAT.                                                                                § 340.01(22)  defines                                                               “highway”  as                                         “all  public  ways  and
                                                                                                thoroughfares and bridges on the same.   It includes the entire width between the
3  It is undisputed that Dunlap was engaged in a recreational activity at the time he fell on
the walkway.
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No.   2004AP2666
boundary lines of every way open to the use of the public as a matter of right for the
purposes  of  vehicular  travel.”    Section 340.01(58)  defines                          “sidewalk”  as                                                             “that
portion of a highway between the curb lines, or the lateral lines of a roadway, and the
adjacent property lines, constructed for use of pedestrians.”
¶8                                                                                        In its summary judgment materials, the City offered the affidavit of a
City engineer who stated that the walkway is not within the boundary lines of any
public street or highway.   The primary purpose of the area adjacent to the seawall is
to facilitate the use of the harbor by boaters.   The Commodore of the Yacht Club
stated in his affidavit that the public is given access to the property leased by the
Yacht Club for purposes of recreation, including docking boats along the seawall and
fishing.   The seawall is on property leased by the Yacht Club and no road adjoins it.
In his summary judgment materials, Dunlap essentially argued that because the
walkway is made out of concrete, it is necessarily a sidewalk under WIS. STAT.
§ 81.15.
¶9                                                                                        In Crowbridge v. Village of Egg Harbor,  179 Wis.  2d  565,  567,
508 N.W.2d 15 (Ct. App. 1993), we held that a municipal boat pier is not a sidewalk
under  WIS.  STAT.                                                                        § 81.15.    We  so  held  because  notwithstanding  its  use  by
pedestrians, a pier is defined as providing “a berth for watercraft or for loading or
unloading cargo or passengers onto or from watercraft.”  Crowbridge, 179 Wis. 2d at
571 (citation and emphasis omitted).   We further distinguished sidewalks and piers
as follows:                                                                               “Sidewalks and piers are thus constructed for different users; sidewalks
are primarily built for pedestrians while piers are primarily built for the convenience
of users of watercraft.”   Id.   We concluded:                                            “[T]he fact that recreational facilities,
including piers, can be walked upon does not convert them into sidewalks.”   Id.
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No.   2004AP2666
¶10    The summary judgment record in this case reveals that the concrete
walkway was part of an area used for recreational activities such as fishing and
boating, and it is not located between the boundary lines identified in WIS. STAT.
§ 340.01(22) (highways) or 340.01(58) (sidewalks).  There is no associated vehicular
use.   We therefore reject Dunlap’s contention that because the walkway is made of
concrete, it is necessarily a sidewalk under WIS. STAT. § 81.15.
¶11    Dunlap does not contest the circuit court’s ruling that the Yacht Club
enjoys recreational immunity under WIS. STAT. § 895.52(2).   It is undisputed that
Dunlap was engaging in a recreational activity, fishing, as defined in § 895.52(1)(g).
The immunity provisions of § 895.52(2) apply.
By the Court.—Order affirmed.
                                                                                         This  opinion  will  not  be  published.   See  WIS.  STAT.  RULE
809.23 (1)                                                                               (b)5.
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