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  • WisBar News
    November 10, 2016

    Recreational Immunity Won’t Save Tree Trimming Company from Liability

    Joe Forward


    Nov. 10, 2016 – The estate of a woman killed by a tree branch while walking with her son recently won an appeal against the tree trimming company that caused the branch to fall, overcoming an argument the company had recreational immunity from the lawsuit.

    Jane Westmas and her son were walking a shoreline path around Lake Geneva when a tree branch struck and killed her. At the time of the accident, Westmas was passing through property owned by Conference Point Center, a faith-based conference facility.

    Conference Point’s property is not a public recreation area, but the center allows the public to pass through on the shoreline path. Creekside Tree Service Inc., hired by Conference Point to trim trees on the property, cut the tree limb that struck Westmas.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The Westmas estate sued Creekside and its insurer. The Walworth County Circuit Court granted summary judgment to Creekside on recreational immunity grounds.

    But in Westmas v. Selective Ins. Co. of South Carolina, 2015AP1039 (Nov. 9, 2016), a three-judge panel for the District II Court of Appeals reversed, concluding that recreational immunity did not apply to bar a negligence claim against Creekside.

    Wis. Stat. section 895.52(2)(b) says “no owner and no officer, employee or agent of an owner is liable for the death of, any injury to, or any death or injury caused by, a person engaging in a recreational activity on the owner's property. …” An owner includes a person who “occupies” property with permission from the property owner.

    Creekside argued that it was either an “agent” or an “occupier” of the land owned by Conference Point Center, and thus it was entitled to recreational immunity for injuries or death to pedestrians who walk along the public lakeshore path through the property.

    The panel did not agree. “We reverse because we conclude Creekside was neither an agent of Conference Point nor an occupier of its property and, therefore, Creekside is not entitled to recreational immunity,” wrote Judge Mark Gundrum.

    Not an Agent

    The panel noted that an independent contractor could be considered an agent if the principal maintains significant control over the work performed, but not an agent if the contractor “retains significant control over ‘the alleged injury-causing action.’”

    The panel concluded that Conference Point did not significantly control Creekside’s work with the “reasonably precise specifications” required to be considered an agent.

    That is, Conference Point merely told Creekside what it wanted and envisioned, but did not control how Creekside went about the work, including safety measures. The panel noted that Conference Point did not address the issue of safety with Creekside, and nobody from Conference Point was assigned to supervise Creekside’s work.

    “From the decision regarding whether or not to use a rope to bring down the branch that killed Jane, to where safety cones would be placed, to how ‘spotters’ would be utilized, the record is clear that Creekside, not Conference Point, maintained control over the details of its work, particularly the actions that led to Jane’s death,” Gundrum wrote.

    Not an Occupier

    To be considered an “occupier” as that term is used in the recreational immunity statute, the panel noted, a party must show a certain “degree of permanence.”

    That is, an occupier “would be expected to have more than a mere temporary presence on the property as well as some level of control over who may enter upon it and for what purpose,” wrote Gundrum, noting the state supreme court recently addressed the issue.

    Creekside’s presence on the Conference Point property did not have the adequate degree of permanence required to be considered an occupier, the panel concluded.

    “In the few days it was on the property, Creekside moved from temporary location to temporary location for the limited purpose of trimming trees as needed to satisfy its contract with Conference Point,” Judge Gundrum wrote.

    Judge Gundrum also noted that Creekside did not have authority to divert pedestrians through other parts of the Conference Point property to avoid danger.

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