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BENCH BLOG: Appeals court finds tree service not entitled to recreational immunity

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at

Judge Jean DiMotto retired in 2013 after
16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected]

Is a tree-cutting service entitled to recreational immunity when cutting trees on a conference center’s property that has a public path? The Court of Appeals says “no,” relying on a Wisconsin Supreme Court case from earlier this year on recreational immunity.

Jane Westmas was struck and killed by a tree branch cut by Creekside Tree Service as she and her son walked along a public shoreline path through the property of Conference Point Center, a private conference and retreat center in Williams Bay.

Conference Point had contracted with Creekside to trim and remove trees from its property. After its bid was accepted, a member of the Conference Point Board of Trustees walked the grounds with the Creekside foreman to show him “in broad scale” what needed to be done. The foreman identified trees that should be removed.

Safety issues

Conference Point expected that Creekside would do its work in a safe manner following whatever is normal procedure for tree services. Accordingly, it left the details for creating a safe perimeter up to Creekside.

Conference Point notified Creekside that even though the shoreline path appeared to be part of Conference Point’s property, it was open to the public and there might be pedestrian traffic along it.

In turn, Creekside’s foreman noted that he was knowledgeable about safety issues and trained his team on these matters, including safety for pedestrians on sidewalks or paths.

On the first day of work, he and the crew leader walked to various locations on the property to discuss specifics, including the branch that later killed Westmas.

As to that particular branch removal, he “explained to (the crew leader) the necessity to have someone in the path watching for potential pedestrians because they were working in close proximity to the path … and to put cones in the path.”

He also told the crew leader to use a rope, if needed, to bring down the branch, but if “the path was clear and he felt that was not needed, then just make sure that someone is watching for pedestrians and (there are) cones are in the path.”

Circuit court action

The Westmas family sued Creekside based on Jane Westmas’s death from being struck by the tree branch. After a period of discovery, Creekside moved for summary judgment under the recreational immunity statute, sec. 895.52. That statute provides immunity to an agent of a property owner for the death of a person engaging in a recreational activity on the owner’s property. The statute’s definition of “owner” includes a person who “occupies” property.

Walworth County Circuit Judge Phillip Koss granted Creekside’s motion. He concluded that Creekside was an “agent” of Conference Point and also was an “occupier” of the Conference Point property.

The Westmas family appealed.

District 2 Court of Appeals Judge Mark Gundrum wrote the unanimous decision for the court. He dealt separately with each of the two bases upon which Judge Koss based his ruling.

Agent issue

The term “agent” is not defined in the recreational immunity statute or in any Wisconsin case on the statute. However, case law does provide that an independent contractor such as Creekside can be an agent. And governmental immunity is determined by analyzing how much control the entity as opposed to the agent has when it comes to the injury-causing action.

Applying that analysis, the Westmas family argued that “there is no evidence that Conference Point either controlled the details of Creekside’s work or formulated any ‘reasonably precise specifications’ for that work.”

The Court of Appeals agreed. It first noted that Conference Point discussed “the vision and the concept” of what it wanted, but left to Creekside “the means and methods” for how it would accomplish the job safely. On the other hand, the Creekside foreman was a certified arborist and marked trees and branches he believed needed removal.

The foreman was responsible for training Creekside employees. This included training them on safety issues such as “watching out for foot traffic.” He specifically addressed safety issues on the Conference Point property, “including pedestrians along the path and the specific branch that later killed” Westmas.

The court concluded that “Creekside has not shown that Conference Point provided ‘reasonably precise specifications’ which controlled Creekside’s alleged injury-causing action.” Accordingly, Creekside was not entitled to summary judgment on the basis that it was Conference Point’s agent.

Occupier issue

Looking next at whether Creekside was an occupier of Conference Point’s land while it was working on its trees, the court turned to the Roberts case, which was decided earlier this year by the Wisconsin Supreme Court.

In Roberts, the Supreme Court approved the dictionary definition of “occupy” as “to take and hold possession” for purposes of the recreational immunity statute. Additionally, the word “occupy” as it is used in sec. 895.52 has been defined as “requiring a degree of permanence, as opposed to mere use.”

Finally, the Roberts court noted the very purpose of the recreational immunity statute — to “encourage landowners to open the land for public use.”

Applying these points, the Court of Appeals found that Creekside’s presence on Conference Point’s land “did not exceed mere use” and that it had no authority to open Conference Point’s land for the public. Consequently, Creekside was not an occupier of the property and was not entitled to recreational immunity.


The fact that Westmas was killed while recreationally using Conference Point’s land did not entitle a tree service temporarily working on that land to recreational immunity.

In a very readable opinion, the District 2 Court of Appeals did an excellent job of exactly what the Court of Appeals is charged with doing: applied legal tenets from Supreme Court precedents as it analyzed a legal issue on a well-developed, factually specific record.

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