Feb. 13, 2018 – While walking a public path, a woman was struck and killed by a tree branch cut by a tree trimming service. Recently, the Wisconsin Supreme Court ruled (4-2) that a recreational immunity statute does not bar an action against the tree company.

Conference Point Center, a faith-based youth camp on Lake Geneva, hired Creekside Tree Service Inc. to remove and trim trees on its private property, which abutted a shoreline walking path that Conference Point made available for public use.

In 2012, Jane Westmas and her son were walking on the public path when she was struck by a tree branch cut by a Creekside employee, causing injuries that resulted in her death. The Jane Westmas estate sued Creekside for negligence and severe and permanent emotional distress to Jane’s son, who had witnessed the accident.

The circuit court ruled that Creekside was immune from liability under Wisconsin’s recreational immunity statute, Wis. Stat. section 895.52, which says a property owner is not liable for death or injury to individuals who engage in recreational activities on owner’s property. “Owner” includes “agents,” or “occupiers” of the owner’s land.

An appeals court reversed, concluding Creekside was not entitled to recreational immunity because it was not an “agent” or “occupier” of the land. That is, Conference Point Center did not control Creekside’s work and the occupation was temporary.

In Westmas v. Creekside Tree Service Inc., 2018 WI 12 (Feb. 7, 2018), the supreme court affirmed (4-2) the appeals court, concluding the recreational immunity statute does not bar the negligence and other claims the estate pursued against Creekside.

Like the appeals court, the majority ruled that Creekside was not Conference Point’s “agent,” and was not an “occupier,” as those terms are used in the immunity statute.

Creekside was not an agent because “Conference Point had neither control of, nor the right to control, the details of Creekside’s work, including the acts that caused injury to Jane Westmas,” wrote Chief Justice Patience Roggensack for the majority.

“Creekside was not an occupier of Conference Point’s property because its presence on the property exhibited no ‘degree of permanence, as opposed to mere use.’”

The facts presented showed that the “means and methods” of completing the project, including any safety plan, were left to Creekside.

“[N]o facts were presented supportive of the conclusion that Conference Point either controlled or had the right to control the details of Creekside’s work,” wrote the chief justice, concluding Creekside was an independent contractor and not an “agent.”

As to Creekside’s occupier status, the majority noted the recreational immunity statute encourages private landowners to open land for public recreational use.

Creekside was not a statutory “occupier” because its use of the land was limited and temporary, and it had no authority to deny recreational use, the majority concluded.

“[D]enying immunity to Creekside does not conflict with the legislative history or purpose of § 895.52, nor does it contravene the legislature’s mandate to interpret the statute broadly in favor of the landowners,” the chief justice wrote.

Dissent

Justices Rebecca Bradley and Daniel Kelly co-authored a dissenting opinion, concluding that Creekside was both an “agent” and “occupier” and thus immune from negligence liability under Wisconsin recreational immunity statute.

The dissenters said there was nothing in the contract between the parties or the record to conclude that Conference Point relinquished the right to control Creekside’s activities on Conference Point’s property, including safety measures to protect pedestrians.

“The record reveals not only that Creekside acknowledged Conference Point’s right to control activity on its own property, but that it expected Conference Point to exercise it,” they wrote, noting Conference Point had authority to block or close the walking path.

“Because nothing in the contract or the circumstances presented to us suggest that Conference Point relinquished that right, a right it owns as a matter of real property law, Creekside was its agent,” Justices Kelly and R. Bradley wrote.

The dissent also concluded that Creekside was an “occupier” because it was using Conference Point’s property to provide a recreational activity.

“Creekside’s tree-grooming services made it possible for the public traverse the shoreline path on Conference Point’s property,” the justices wrote.

The dissent said the majority’s decision may dissuade companies like Creekside from performing work on private land made available for public recreation.

“This could create a domino effect of discouraging landowners, like Conference Point, from opening their land to the public because of the unsafe conditions arising from neglected maintenance the landowner is unwilling, unable, or unqualified to perform.”