Closed-Attraction Trespasser Rule: Tacit “Go-Ahead” Plus Known Safety Disablement Can Create a Jury Question on Recklessness (7th Cir.)

1) Introduction

Case: Eric Stupak v. Mont du Lac Snowsports, LLC, et al.
Court: United States Court of Appeals for the Seventh Circuit
Date: September 8, 2026

Mont du Lac, a Wisconsin resort, offered tube slides in the summer. On a June 2022 visit, the slides were closed, but the resort allegedly failed to display the “Ride Closed” sign properly, left tubes accessible, and had deflated the side bumpers designed to keep riders from falling off. When Stupak’s group asked the manager, Devon Schultz, whether they could use the slides, Stupak’s version of the response was: “I’m not going to say anything.” The group used the unattended slides; Stupak fell off and suffered severe injuries.

The central legal questions were (1) whether Stupak was a trespasser on the tube-slide area despite being a paying guest elsewhere on the property, and (2) if so, whether the resort’s conduct could meet Wisconsin’s heightened liability standard for injuries to trespassers—i.e., “willful, wanton, or reckless” conduct under WIS. STAT. § 895.529.

2) Summary of the Opinion

The Seventh Circuit agreed with the district court that Stupak was a trespasser on the tube slides because Mont du Lac gave neither express nor implied consent to use that specific closed area.

However, the Seventh Circuit disagreed with the district court’s conclusion that no reasonable jury could find recklessness. The court held that, on Stupak’s version of the facts, a jury could conclude Mont du Lac acted recklessly by (a) disabling or leaving disabled safety features (deflated bumpers), (b) leaving tubes accessible and the closure signage/barriers inadequately deployed, and (c) responding to an inquiry with a statement a jury could interpret as a tacit “go-ahead” to proceed despite closure.

The judgment was vacated and the case remanded. The court left for the district court to address alternative grounds not reached below: assumption of inherent risk and proximate cause.

3) Analysis

A. Precedents Cited

  • Chitwood v. Ascension Health Alliance, 168 F.4th 493 (7th Cir. 2026)
    Cited for the appellate standard of review on summary judgment: de novo review and construing evidence in favor of the non-movant. This framing mattered because the panel repeatedly emphasized it was bound to credit Stupak’s version of disputed facts—especially what Schultz said—and to draw reasonable inferences in Stupak’s favor when assessing recklessness.
  • Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
    Used for the principle that to survive summary judgment, a plaintiff must identify evidence from which a reasonable jury could find for him. The opinion applied Celotex’s practical question: whether the record could support a jury finding of recklessness under Wisconsin law.
  • Antoniewicz v. Reszcynski, 70 Wis. 2d 836, 236 N.W.2d 1 (1975)
    Provided the background Wisconsin approach to landowner liability and duties tied to permission status. While Wisconsin later codified trespasser liability, Antoniewicz remains relevant context for “ordinary care” when consent exists—contrasting with the reduced duty owed to trespassers under the statute.
  • Monsivais v. Winzenried, 179 Wis. 2d 758, 508 N.W.2d 620 (Wis. Ct. App. 1993)
    Crucial to the “status” determination: a person permitted on the property can become a trespasser by entering a specific area closed to the public without permission. This supported the panel’s conclusion that resort access did not automatically confer consent to use a closed attraction.
  • Verdoljak v. Mosinee Paper Corp., 192 Wis. 2d 235, 531 N.W.2d 341 (Wis. Ct. App. 1995), aff'd, 200 Wis. 2d 624, 547 N.W.2d 602 (1996)
    Provided the test for whether permission exists: the owner’s conduct as interpreted by a reasonable person with knowledge of that conduct. The opinion used Verdoljak to evaluate what Schultz’s statement and the physical condition of the slide area communicated to a reasonable visitor.
  • Baumgart v. Spierings, 2 Wis. 2d 289, 86 N.W.2d 413 (1957)
    Quoted for the sources of implied consent—conduct, relationship, or custom. The panel accepted implied consent as a legitimate pathway in Wisconsin but concluded the facts here (notably Schultz’s phrasing) were insufficient.
  • Fandrey ex rel. Connell v. Am. Family Mut. Ins. Co., 272 Wis. 2d 46, 680 N.W.2d 345 (2004)
    Used for the “close examination” required in implied-permission cases, focusing on the landowner’s knowledge of entry and resulting behavior. Fandrey supported treating Schultz’s knowledge of intended use—and his response—as legally consequential conduct, not mere background noise.
  • Donaldson v. K & R Cross, Inc., 375 Wis. 2d 798, 2017 WL 1476344 (Wis. Ct. App. Apr. 25, 2017)
    Cited for the legislative shift: Wisconsin “codif[ied] the civil liability of landowners to trespassers” in 2011. This justified the opinion’s statutory focus on § 895.529 while still consulting common-law cases for guidance.
  • Bogie v. Rosenberg, 705 F.3d 603 (7th Cir. 2013)
    Provided the Erie prediction principle: in diversity, the federal court interprets state law as it predicts the state’s highest court would. This underwrote the panel’s method of reading § 895.529 alongside Wisconsin decisional law.
  • Carroll v. Town of Balsam Lake, 206 Wis. 2d 529, 559 N.W.2d 261 (Wis. Ct. App. 1996)
    Supported the approach that when a statute codifies existing common law, courts may look to common-law decisions for persuasive guidance—important because § 895.529 sets the framework but does not answer every factual application question (like how “recklessness” maps onto specific closure practices).
  • Noffke ex rel. Swensen v. Bakke, 315 Wis. 2d 350, 760 N.W.2d 156 (2009)
    The key authority defining “recklessness” as “a conscious disregard of an unreasonable and substantial risk of serious bodily harm,” and emphasizing it is “substantially greater than negligent conduct.” The panel used Noffke to justify sending the case to a jury: disabling key safety features and responding in a way a jury could view as tacit encouragement could satisfy Noffke’s mental-state/risk standard.
  • FMS, Inc. v. Volvo Constr. Equip. N. Am., Inc., 557 F.3d 758 (7th Cir. 2009)
    Cited for the Seventh Circuit practice of remanding issues not addressed by the district court even if briefed on appeal. This explains why assumption of risk and proximate cause were not resolved by the appellate panel.

B. Legal Reasoning

1. Status: guest-at-large, trespasser-as-to-closed-attraction

The opinion makes a careful status distinction: Stupak could be authorized to be at Mont du Lac generally yet be a trespasser as to the tube-slide area if that area was closed and he lacked consent to enter it. Relying on Monsivais v. Winzenried, the panel treated the tube slides as a discrete zone requiring its own consent analysis.

On express consent, the court held “I’m not going to say anything” is not a “specific invitation” (borrowing the framework described in Monsivais v. Winzenried and the cited Wisconsin jury instruction). A failure to object is not an affirmative invitation.

On implied consent, the panel accepted that implied permission can arise from conduct, relationship, or custom (Baumgart v. Spierings). But it found the manager’s statement cut against permission: a reasonable person could interpret “I’m not going to say anything” as indicating the activity is not allowed (and that the manager is distancing himself), not that it is permitted. The court described implied consent as a “close question,” but it ultimately found no reasonable jury could find consent.

2. Duty: once trespasser, only “willful, wanton, or reckless” liability

With trespasser status established, the governing rule became statutory: a landowner is liable to a trespasser only if it “willfully, wantonly, or recklessly caused the injury.” WIS. STAT. § 895.529(2), (3)(a). The panel explicitly connected this codified rule to earlier common-law guidance (citing Donaldson v. K & R Cross, Inc. and Carroll v. Town of Balsam Lake).

3. Recklessness: omission-plus-tacit-encouragement can be “conscious disregard”

The district court viewed Mont du Lac’s conduct primarily as inaction: it “simply left the slide area as it was.” The Seventh Circuit reframed the record as potentially showing more than passive omission:

  • the resort deflated protective bumpers that prevent ejection from the slide;
  • it left tubes accessible and the area effectively usable even though closed;
  • the “Ride Closed” sign was present but not deployed to block access;
  • after being asked, the manager’s “I’m not going to say anything” could be understood as tacit permission to proceed without reporting, rather than a warning to stop.

Applying Noffke ex rel. Swensen v. Bakke, the panel held a jury could find these facts show “conscious disregard” of a substantial, unreasonable risk of serious harm—especially because the risk (falling off a slide with deflated side bumpers) is readily associated with grave injury.

The opinion’s analogy (a car owner who disconnects brakes and then says “I’m not going to stop you” when asked to drive) crystallizes the doctrinal move: a landowner’s knowledge of a dangerous condition, combined with a tacit “go-ahead,” can elevate conduct from negligence to recklessness, even where the visitor remains a trespasser. The visitor’s lack of permission does not immunize the owner from liability if the owner’s response to anticipated misuse amounts to a conscious disregard of likely serious harm.

4. Issues reserved on remand

The panel remanded for the district court to consider alternative defenses not addressed: assumed inherent risk and proximate cause. Citing FMS, Inc. v. Volvo Constr. Equip. N. Am., Inc., the court followed the standard appellate practice of letting the trial court address such issues in the first instance.

C. Impact

Although formally an application of Wisconsin law in diversity, the decision has practical precedential significance in the Seventh Circuit’s treatment of Wisconsin premises-liability disputes at the summary judgment stage:

  • Status and duty are separable from “recklessness” fact questions. Even when trespasser status is resolved against the plaintiff as a matter of law, a case may still proceed if the record permits a jury to find reckless conduct under § 895.529.
  • “Tacit go-ahead” evidence can be outcome-determinative. A landowner representative’s ambiguous statement (here, “I’m not going to say anything”) may not create consent but can still support recklessness by implying the activity is “fine” despite known hazards.
  • Closure protocols matter. Operational details—deployment of “closed” signage, barriers, removal/securing of equipment, and whether safety features are disabled—can shape whether a jury could infer conscious disregard of severe risk.
  • Risk-management consequences for recreational operators. The opinion implicitly warns that half-measures (leaving an attraction physically usable while “closed,” with safety controls altered) can increase exposure even against trespassers, particularly if staff responses are evasive rather than directive.

4) Complex Concepts Simplified

  • Trespasser (Wisconsin): Someone who enters or remains on property “without express or implied consent.” Even if you are allowed on the overall property (e.g., a resort), you can be a trespasser in a particular restricted area.
  • Express vs. implied consent:
    • Express = a clear, specific invitation (e.g., “Yes, go use the slides.”).
    • Implied = permission inferred from conduct/relationship/custom (e.g., the area is routinely open and staff behavior signals you may enter).
  • Recklessness vs. negligence:
    • Negligence is failing to use ordinary care (a mistake or oversight).
    • Recklessness (per Noffke ex rel. Swensen v. Bakke) is a conscious disregard of a substantial and unreasonable risk of serious harm—materially more blameworthy than negligence.
  • Summary judgment: A pretrial ruling. The judge ends the case only if no reasonable jury could find for the non-moving party, viewing disputed facts in that party’s favor.
  • Vacate and remand: The appellate court sets aside the judgment (“vacate”) and returns the case to the trial court for further proceedings (“remand”).

5) Conclusion

The Seventh Circuit’s decision draws a sharp line between permission and culpability. Stupak lacked express or implied consent to use the closed tube slides and therefore was a trespasser, triggering Wisconsin’s heightened liability standard under WIS. STAT. § 895.529. Yet the court held a jury could still find recklessness where the operator left a closed attraction physically usable with safety protections disabled and responded to an inquiry with language a jury could interpret as a tacit “go ahead.”

The broader significance is procedural and substantive: at summary judgment, a plaintiff’s inability to prove permission does not necessarily end the case if the evidence supports an inference of conscious disregard of serious risk. On remand, the district court must still address other defenses (assumption of risk and proximate cause), but the opinion establishes that “closed” status alone does not foreclose liability where the operator’s conduct plausibly rises to recklessness.