In Warrington v. City of Prairie du Chien (2019AP95), the Court of Appeals District IV held that recreational immunity applied, barring parents’ claim that the city was negligent in their son’s drowning during a swim lesson.

The Warringtons’ son died after drowning at the City of Prairie du Chien pool during a swim lesson run by city and school district staff. The Warringtons filed this lawsuit against the city and school district alleging negligence.

The court of appeals dismissed the Warringtons’ claims under Wisconsin’s recreational immunity statute (Wis. Stat. § 895.52(2)(b)), which provides immunity for owners from liability for death or injury of persons engaging in recreational activity on the owner’s property. The statute includes instruction in a recreational activity in the definition of “recreational activity.”

The court rejected the Warringtons’ argument that their son was not engaging in a “recreational activity.” The Warringtons argued their son was not swimming when he was injured because he had been designated as a “non-swimmer” for the purposes of the swimming lesson. Further, they argued their son was not receiving swimming instruction because the pool staff had lost track of him when he drowned. The court said such a narrow construction of the recreational immunity statute as proposed by the Warringtons would counter the legislature’s directive to liberally construe the recreational immunity law in favor of property owners. Therefore, the court upheld recreational immunity in favor of the city.