Orthmann v. Apple River Campground, Inc.

Tourist Owen Orthmann (plaintiff), age 19, rented an inner tube at a campground near Somerset, Wisconsin to float on the river. For a fee, campers could rent a tube, float four miles, and ride a bus back to the starting point. A tree leaning over the river midway created a popular natural diving board where a line of kids waited a turn. Orthmann did not want to wait in line and had seen others dive safely from the bank instead. Cloudy water reflected the sunlight, so Orthmann could not see the shallow bottom. He dove from the bank and hit his head on a rock, rendering him paralyzed. Instead of suing the landowner of the property where the accident occurred, Orthmann brought a premises-liability action against Apple River Campground, Inc. and seven other local businesses comprising a joint venture that promoted the tubing called the Floater’s Association (Floater’s), along with the Village of Somerset (defendants). Orthmann argued that Floater’s owned most of the four-mile stretch and controlled the banks, even though it did not own the particular parcel where the tree stood. Floater’s did maintain the banks and provide trash cans for tubers, in addition to renting tubes. Floater’s also cut down the popular tree shortly after the incident—without the landowner’s permission. Meanwhile, the trial court dismissed Orthmann’s complaint for failure to state a claim against Floater’s members as non-owners of the property. (The court also granted summary judgment for Somerset due to lack of statutorily required notice.) Orthmann appealed.