Owen Orthmann v. Apple River Campground, Inc.
1985 U.S. App. LEXIS 29783, 757 F.2d 909 (1985)
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Rule of Law:
An operator of a commercial recreational enterprise may owe a duty of care to its patrons for injuries occurring on adjacent property that the operator does not own, if the operator exercises sufficient control over the adjacent property and creates an implied invitation for patrons to use it as an integral part of the recreational activity.
Facts:
- Owen Orthmann, age 19, rented an inner tube from a campground, a member of the Floater's Association, a group of businesses that jointly promoted inner-tubing on a stretch of the Apple River.
- The Association owned most of the land along the riverbanks and took measures to maintain the area, such as providing litter bins.
- During his float, Orthmann went ashore onto property owned by the Montbriand family, who were not defendants in the suit.
- The Montbriand property featured a tree growing over the river, which was a popular spot for floaters to stop and dive.
- Observing others diving safely in the same area, Orthmann dove from the bank into the cloudy water.
- The water was shallow, and Orthmann's head struck a rock on the bottom, rendering him a quadriplegic.
- Shortly after the accident, members of the Floater's Association entered the Montbriand property without permission and cut down the tree that had been used for diving.
Procedural Posture:
- Owen Orthmann filed a diversity suit in the United States District Court for the Western District of Wisconsin against the Village of Somerset and eight firms comprising the Floater’s Association.
- The district court granted the Floater’s Association’s motion to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
- The district court also granted the Village of Somerset’s motion for summary judgment.
- Orthmann, as appellant, appealed the dismissal of his entire complaint to the United States Court of Appeals for the Seventh Circuit.
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Issue:
Does an operator of a commercial recreational activity have a duty to protect its patrons from dangers on adjacent property that the operator does not own but appears to control and treats as part of its business enterprise?
Opinions:
Majority - Posner, Circuit Judge
Yes. An operator of a commercial recreational activity may have a duty to protect its patrons from dangers on adjacent, unowned land if the operator treats that land as an integral part of its business. The court reasoned that tort liability for land is based on control, not necessarily on formal ownership, which is why the field is more accurately described as 'land occupiers' and possessors' liability.' If a business implicitly invites patrons to use adjacent property and exercises control over it, it cannot escape liability simply by pointing to a lack of formal title. In this case, it was foreseeable that young customers would use the riverbanks for swimming and diving as part of the floating experience. The allegation that the defendants controlled 'safety on the river' and 'other activities and conditions' incident to inner-tubing was sufficient to survive a motion to dismiss. Evidence that the defendants entered the adjacent property after the accident to cut down the tree strongly suggests they asserted control over the area, making them potentially responsible for its safety.
Analysis:
This decision significantly clarifies and potentially extends the scope of premises liability beyond formal property boundaries. It establishes that de facto control and implied invitation can create a duty of care for business owners regarding injuries on adjacent, unowned land. The ruling shifts the legal focus from property deeds to the practical reality of how a business operates and how its patrons predictably use the surrounding environment. Future cases involving injuries occurring near recreational businesses will likely scrutinize the business's actions that suggest control over or integration of neighboring areas into their commercial enterprise.
