## Facts

- Owen Orthmann, age 19, rented an inner tube from a commercial tubing operator near Somerset, Wisconsin, and floated down the Apple River with other customers.
- Midway, a leaning tree over the river was used by others as an informal diving platform; Orthmann instead dove from the bank.
- The water was cloudy and sun-glared; Orthmann could not see the bottom, struck a rock in shallow water, and became quadriplegic.
- Orthmann sued (1) Apple River Campground, Inc., and related local businesses operating a tubing enterprise (the “Floater’s Association”), alleging they functionally controlled the tubing corridor and banks, and (2) the Village of Somerset, as the municipality with authority over the area.
- Orthmann alleged the Floater’s Association maintained the banks (including placing trash cans) and directed removal of the diving tree after the injury, despite lacking title to the parcel.

## Issues

1. Whether Orthmann’s claim against the Village of Somerset was barred for failure to satisfy Wisconsin’s statutory prerequisite requiring presentation and disallowance of an itemized claim before suit.
2. Whether Orthmann stated a negligence/premises-liability claim against the Floater’s Association based on alleged operation and control of the river corridor, despite lack of record ownership of the specific parcel where the injury occurred.

## Decision

- The Seventh Circuit affirmed summary judgment for the Village of Somerset because Orthmann did not present the required claim to the municipal clerk and obtain disallowance before filing suit.
- The Seventh Circuit reversed the Rule 12(b)(6) dismissal of the claims against the Floater’s Association, holding that allegations of operational control and maintenance were sufficient at the pleading stage to support a duty of reasonable care.
- The case was remanded for further proceedings against the Floater’s Association.

## Legal Principles

- In a diversity action, state statutory prerequisites to suing a public body are treated as substantive and must be applied by the federal court.
- Wisconsin’s claim-presentation requirement for suits against municipalities (separate from notice-of-circumstances provisions that allow certain excuses) is strictly enforced; actual notice or lack of prejudice does not substitute when the statute provides no exception.
- Premises-related negligence liability may extend beyond the fee owner to parties who possess, operate, maintain, or exercise practical control over the area in connection with a commercial undertaking.
- A complaint should not be dismissed on the pleadings when it plausibly alleges facts supporting control and a resulting duty to invitees; the extent of control and related factual defenses generally require further factual development.

## Conclusion

The court enforced Wisconsin’s strict municipal claim-presentation prerequisite to bar the suit against the Village, but held that commercial tubing operators could owe a duty based on alleged control and operation of the riverbanks, making dismissal on ownership grounds improper at the pleading stage.


Orthmann v. Apple River Campground, Inc., 757 F.2d 909 (7th Cir. 1985)