*This case is recommended for publication.

 

In Stroede v. Society Insurance (2018AP1880/2018AP2371), the Court of Appeals District I found the defendant immune from liability for a trespasser’s injury because the defendant was a “lawful occupant” on the premises where the incident occurred.

Plaintiff David Stroede sustained head injuries when, after becoming too intoxicated, he was escorted out of Railroad Station Bar by employee Jacob Tetting. Stroede filed this negligence claim against Tetting and his insurer West Bend Mutual and Railroad and its insurer Society Insurance.

Wis. Stat. § 895.529 provides that a “possessor of real property” does not have a duty of care to trespassers unless the possessor acts “willfully, wantonly, or recklessly.” The circuit court agreed with the defendants’ arguments that Stroede was a trespasser at the time of the incident since Railroad staff had ordered him out of the bar. At issue on appeal was:

1. Whether Stroede had adequately stated a claim of wanton, willful or reckless conduct, allowing his claims against Tetting to proceed even though he was trespassing.
2. Whether Tetting was an “other lawful occupant” under the definition of “possessor of real property” in § 895.529, granting him immunity from liability for Stroede’s injuries.

First, the appeals court found that Stroede did not allege a claim of wanton, willful or reckless conduct. Instead, Stroede’s claim alleged negligence and did not demonstrate that Tetting intentionally caused him harm. The appeals court found the circuit court properly denied Stroede’s motion to amend his complaint to include a claim of wanton, willful or reckless conduct.

Second, the appeals court found that Tetting was an “other lawful occupant” of Railroad premises at the time of the incident. The court concluded occupancy in the context of § 895.529 to mean “lawful presence,” and Tetting was lawfully present at Railroad when he removed Stroede. Since Tetting was a “lawful occupant,” he had no duty of care to trespasser Stroede under § 895.529.

Under the court of appeals decision, neither Tetting nor Railroad was liable for Stroede’s injuries.