High court: Recreational immunity statute doesn’t protect contractor from lawsuit

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The Wisconsin Supreme Court has found that the state’s recreational-immunity law cannot shield a contractor from being sued over a death that occurred while it was trimming trees for a customer.

The case arose in 2012 after Creekside Tree Service was hired by Conference Point, a youth camp in Williams Bay, to finish a tree-trimming job along a shoreline path near Lake Geneva. During Creekside’s work, a tree limb fell, killing Jane Westmas, a resident of Darien. Westmas was walking with her son along the path, which was on private property but had been opened to the public.

John Westmas, Jane Westmas’ husband and administrator of her estate, sued Creekside in Walworth County Circuit Court in 2013, alleging that the contractor’s negligence had not only caused Jane Westmas’ death but also that her son, Jason Westmas, had suffered emotional distress from watching his mother die.

Creekside has argued that when its crew workers cut the branch that ultimately caused the fatal accident, they and the company were acting as an agent of the owner, Conference Point, and thus were covered by the state’s immunity statute. They contended they should be shielded by the state’s immunity statute, which provides that landowners and their agents generally cannot be held liable for deaths and injuries that occur on their properties after they’ve opened them up for recreational activities.

But the statute is ambiguous on at least two points. It does not limit the definition of an owner to someone who possesses a particularly piece of property, but rather extends it to people or entities that “occupy” the property. The statute also does not define what is exactly meant by the term “agent.”

John Westmas has contended that nothing in the law could possibly be construed to mean Creekside was either an agent or owner. Westmas argued the company thus should not be protected by the recreational-immunity statute. His arguments failed to win favor before Walworth County Circuit Court Judge Phillip Koss, who sided with Creekside in 2015.

But in a challenge of that ruling, Westmas successfully made his case before the Wisconsin Court of Appeals, which concluded that Creekside had been neither an agent nor an owner in the sense intended in state statute.

With a 4-2 decision affirming the Court of Appeals on Wednesday, the Supreme Court is now sending the case back to Walworth County Circuit Court, where John Westmas can now proceed with his original lawsuit. Of the high-court justices, two conservatives, Rebecca Bradley and Dan Kelly, cast the dissenting votes. Justice Shirley Abrahamson did not participate.

The majority opinion, written by Chief Justice Pat Roggensack, agreed with the appeals court’s finding that Creekside had been an independent contractor rather than an agent. The justices in the majority noted that the property owner in the case, Conference Point, had exercised no direct control over Creekside’s work.

The majority also agreed with the appeals courts’ rejection of an alternative argument stating that Creekside was an owner because it had “occupied” the property. The justices, pointing to the Supreme Court’s decision in 2016 in the case of Roberts v. T.H.E., reasoned that the contractor was neither responsible for making Conference Point’s land open to the public nor was performing work that in any way could be deemed permanent. The Roberts case examined whether the recreational-immunity statute should bar a lawsuit filed by that a woman had filed againt a hot-air-balloon company after being injured on a balloon ride.

In the decision in the Creekside case handed down Wednesday, the majority of the justices also argued that denying immunity to Creekside neither conflicts with the Legislature’s purpose in enacting the immunity statute, which was to limit the liability of property owners in certain circumstances, nor with the Legislature’s mandate calling on courts to interpret the statute broadly in favor of landowners.

The dissenting justices, Bradley and Kelly, responded by arguing their colleagues were ignoring the plain meaning of the word “occupies.”

They also disagreed with the majority’s finding that Creekside was not an agent, writing that their colleagues had improperly made the decisive question whether Conference Point had actual control of Creekside’s work instead of whether Conference Point had a right to control Creekside’s work.

“… (T)he court perpetuates its preference for a narrow scope of immunity not reflected in the words of the law we interpret,” wrote Bradley and Kelly. Follow @erikastrebel