Justices grappling with whether tree-trimming contractor liable for woman’s death

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Should the state’s recreational-immunity statute protect a tree-trimming contractor from liability even after it caused the death of a woman by cutting down a branch?

That question is at the heart of John Westmas v. Selective Insurance Co., a case in which the state’s Supreme Court heard oral arguments on Tuesday. The occasion gave the high-court justices a chance to pose questions not only to the lawyers representing John Westmas, the husband of the late Jane Westmas and administrator of her estate, but also those appearing for Creekside Tree Service, the contractor who had been trimming trees alongside a public path in Williams Bay where Jane Westmas was killed, in 2012.

Much of the court’s discussion on Tuesday was about the exact meanings of the terms “agent” and “owner,” as defined by Wis. Stat. 895.52, the state’s immunity statute. The law provides that landowners, as well as their agents, generally cannot be held liable for deaths and injuries that occur on their properties after they’ve opened them to recreational activities.

But the statute is ambiguous on at least two points. It defines an owner as someone who “occupies” a particular piece of property, not someone who just possesses it. Also, it does not offer a strict definition of what is meant by the term “agent.”

The case arose after Creekside was hired by Conference Point, a youth camp in Williams Bay, to finish a tre-trimming job along a public path. Creekside has argued that when its crew cut the branch that ultimately caused the fatal accident, it was acting as an agent of Conference Point and thus was covered by the state’s immunity statute.

Westmas, in contrast, has contended that nothing in state law would qualify Creekside as either an agent or occupier.

A Walworth County Circuit Court judge sided with Creekside in 2015. Westmas responded with an appeal and succeeded in having the lower court’s ruling overturned.

In siding with Westmas, the appeals court found that Creekside had been acting as an independent contractor and not as an agent. It also deemed Creekside to not be an occupier, noting that the Wisconsin Supreme Court had recently found that an occupant cannot be protected by the state’s recreational-immunity statute unless its use of a property has a degree of permanence.

The Supreme Court justices appeared divided on the case on Tuesday. At least one seemed to support the appellate court’s interpretation.

“What cases would we have to overturn, other than Roberts, if we got rid of the degree of permanency test?” asked Justice Ann Walsh Bradley.

But Justice Rebecca Bradley wondered who was supposed to decide what was meant by “degree of permanence.”

“Where in the text of the statute is a reference to the temporal requirement?” Rebecca Bradley asked. “Do the courts just make them up as they go? Where do we draw the line?”

Justice Dan Kelly asked the counsel for Creekside if it was possible to be an agent of an owner as well as an owner.

“Do all agents become owners?” he asked. Follow @erikastrebel