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April 1, 2002Newsletter

School District May Be Liable For Student’s Injuries Sustained Sliding Down A Snow Pile During Recess

In Auman v. School District of Stanley-Boyd, 2001 WI 125, 248 Wis. 2d 548, 635 N.W.2d 762 (2001), the Wisconsin Supreme Court concluded that 11 year old Trista Auman did not enter the school district’s property to engage in a recreational activity when she broke her leg while sliding down a snow pile located on the school playground during a recess period. As a consequence, the school district was not immune from liability under Wisconsin’s recreational immunity statute, Wis. Stats. § 895.52, and her lawsuit against the school district was allowed to continue.

Trista testified at her deposition that she was sliding down the snow pile because it was “fun” – testimony normally indicative of participation in a recreational activity. Furthermore, the Supreme Court acknowledged that sliding on a snow pile is an outdoor activity undertaken for pleasure, and is similar to many of the activities listed as falling under the reach of the recreational immunity statute. However, considering the totality of the circumstances the Court held that liability against the school district was not barred.

Two factors seemed to be of significance to the Court in reaching this conclusion. First, Trista’s attendance at school was mandatory, pursuant to Wis. Stats. § 118.15(1)(a) (“Compulsory School Attendance”), as was her participation in recess out of doors. Thus, because the Court considered her conduct to be a mandatory part of the school district’s curriculum, and not voluntary, the recreational immunity statute did not apply. Second, the Court felt that no reason existed to immunize school districts from liability for not exercising reasonable care in the maintenance of school facilities or the supervision of school children during regular school hours. In this regard, the Court noted that 3 days before Trista was injured, the playground supervisors agreed that the snow pile presented a safety issue and determined that children should not be allowed to play on it.

Significantly, the Supreme Court did not address the issue of governmental immunity because the parties did not raise it on appeal. In our opinion, the school district may have been immune from suit by virtue of the governmental immunity statute under these facts, notwithstanding the trial court’s decision.

For more information on this decision, please contact Paul E. Benson at (414) 271-6560 or pebenson@mbf-law.com, or any of our attorneys in the Education Law Special Practice Group.

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