The Wisconsin Supreme Court has ruled a landscaping company is not immune from liability in the 2012 death of a woman who was struck and killed by a falling tree branch while walking around Geneva Lake.
On May 10, 2012, Jane Westmas, 61, of Darien was walking with her adult son on the shoreline path outside the Conference Point Center, a faith-based youth camp and conference center in Lake Geneva, according to case background included in the high court’s decision.
Conference Point had contracted with Creekside Tree Service to trim and remove trees from its property. Most of the property was not open to the public, but the shoreline path was.
While Jane and her son, Jason Westmas, were walking on the path, Creekside cut a tree branch that fell on Jane and killed her, according to the decision.
Jane was a full-time teacher at Traver Elementary School, Lake Geneva and later worked as a substitute teacher in Delavan, according to her obituary. Between those two jobs, she worked for Weight Watchers in Delavan for 20 years.
Jason and Jane’s husband, John, sued Creekside and its insurer, Selective Insurance Company of South Carolina, alleging negligence.
Walworth County Judge Phil Koss ruled in 2015 that Creekside’s liability fell under the state’s recreational immunity statute.
The District 2 Court of Appeals reversed the decision, and the state Supreme Court on Feb. 7 agreed with the appeals court after hearing oral arguments Oct. 3.
Writing for the majority, Chief Justice Patience Roggensack said Creekside was not an “agent” of Conference Point or an “occupier” of the property, which could have meant the company was immune from liability.
The relevant statute in the case states: “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.”
Creekside was not an agent of Conference Point, Roggensack wrote, because Conference Point had no control over the means or methods of Creekside’s work.
The court of appeals wrote Creekside was in charge of details such as where safety cones were placed and how “spotters” were used to watch for pedestrians.
Creekside had argued all independent contractors working for owners who don’t have expertise or know the details of the work would be denied agency status under the law, but Roggensack wrote that argument was “unpersuasive.”
Creekside also tried to argue it was immune from liability because the company technically qualified as an owner because it occupied the property at the time.
Roggensack wrote, however, that Creekside’s presence “did not exceed ‘mere use’ and did not approach ‘a degree of permanence.’”
“Although we have previously stated that the statute is to be liberally construed in favor of immunity, we have likewise concluded that this immunity is not absolute,” the decision states.
Justices Rebecca Bradley and Daniel Kelly dissented, arguing the other justices overlooked one part of the definition of “agent” and disregarded the “plain meaning of ‘occupies.’”
“In doing so, the court perpetuates its preference for a narrow scope of immunity not reflected in the words of the law we interpret,” the dissent states.