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Westmas v. Selective Insurance Company of South Carolina

Court of Appeals of Wisconsin, District II

November 9, 2016

John Y. Westmas, Individually and as Special Administrator of the Estate of Jane L. Westmas and Jason Westmas, Plaintiffs-Appellants,
Selective Insurance Company of South Carolina, Creekside Tree Service, Inc. and ABC Insurance Company, Defendants-Respondents.

         APPEAL from a judgment of the circuit court for Walworth County, Cir. Ct. No. 2013CV813 PHILLIP A. KOSS, Judge. Reversed and cause remanded.

          Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

          GUNDRUM, J.

         ¶1 Jane Westmas was killed when a tree branch cut by Creekside Tree Service, Inc. ("Creekside") fell on her while she and her son walked along a path through the property of Conference Point Center. John Westmas, Jane's husband, individually and as special administrator of the Estate of Jane Westmas, and Jason Westmas, John and Jane's son, (collectively "the Westmases") sued Creekside, and its insurer, Selective Insurance Company of South Carolina ("Selective").[1] Creekside moved for summary judgment on recreational immunity grounds, which motion the circuit court granted. The Westmases appeal. We reverse.


         ¶2 The relevant material facts are undisputed. Jane Westmas was struck and killed by a tree branch cut by Creekside as she and her son walked along a public shoreline path through the property of Conference Point, a faith-based conference and retreat center. Conference Point had contracted with Creekside to trim and remove trees from its property.

         ¶3 Creekside's sales/consultant foreman, certified arborist Jonathan Moore, formulated Creekside's proposal for the tree project. The proposal, which Creekside submitted to Conference Point months prior to the accident, stated Creekside would "provide labor, material, equipment and incidentals required for the completion" of the specific tree-trimming services detailed in the proposal. Prior to preparing the proposal, Moore met at Conference Point with Brian Gaasrud, vice chairperson of Conference Point's board of trustees. Moore testified at his deposition in this case that he "looked at the work that was described to me in broad scale, and I also identified work that I believed needed to be done, for example, a dead tree in a given location needs to be cut down. I put specific prices to specific items."

         ¶4 Conference Point initially hired the lowest bidder for the project, a company other than Creekside; however, when that company failed to complete it, Conference Point contracted with Creekside to do so. Moore then returned to Conference Point to determine what work the prior contractor had completed and "mark the trees that still needed to be removed" as he had designated in Creekside's earlier proposal.

         ¶5 Gaasrud testified at his deposition that when he met with prospective bidders, including Creekside, they walked through the Conference Point property and Gaasrud discussed "the vision and the concept of what we wanted to accomplish, the thinning, the repairing, the pruning." Gaasrud had no training, experience, or special knowledge regarding how a tree-trimming company should handle safety issues. He expected that the hired contractor would do its work in a safe manner "follow[ing] normal procedure, whatever procedure is for tree services when they're cutting, to create a safe perimeter." He left the "means and methods" for doing so up to the contractor.

         ¶6 Conference Point's property was not open to the public, with the exception of the shoreline path, and Gaasrud notified all of the contractors bidding on the project that even though the path appeared to be part of Conference Point's property, it was open to the public and there might be pedestrian traffic along it. Gaasrud also informed each bidder that Conference Point might have signs and barricades "in the shop" that the hired contractor could use to help control pedestrian traffic "[i]f [it] wanted to use them."

         ¶7 When Conference Point brought in Creekside to complete the tree-trimming project, Gaasrud and Creekside owner Joel Stauss modified Creekside's original proposal "to get the work scope to come within the amount of dollars" Conference Point had left for the project. Although Gaasrud knew Creekside would be working on the project at some point, he was not specifically aware it would be doing so on the day of the accident. While Creekside was performing its work, Gaasrud had no conversations with it regarding "the experience they were having with people on the path, " and he had no knowledge regarding what was or was not being done to block off the path or divert pedestrian traffic. No one from Conference Point was assigned to provide tools, equipment, or assistance to Creekside or was responsible for "checking up on" the work Creekside was doing at Conference Point.

         ¶8 Moore testified at his deposition that he was the person most responsible for training Creekside employees and most knowledgeable about safety. In general, once a customer hired Creekside for tree work, Moore would "take the crew to the job site, instruct them as to what needs to get done, generally show them exactly what to do, pre-mark trees for removal, pruning or show trees to be pruned or removed." Moore trained employees on safety, including that

[i]f you are working in a close proximity or over a sidewalk, we need to put cones in the sidewalk. We need to put up some form of sign, or there needs to be a person in the sidewalk or path to stop either the person cutting the branch, the potential pedestrians, or both. Specifically the pedestrians, but you would also need to get the attention of the person in the tree or-or the person that's doing some form of work.

         ¶9 Based upon a conversation Stauss purportedly had with Gaasrud and relayed to Moore before Moore arrived at Conference Point for the first day of work, Moore believed Conference Point would be taking some noticeable steps to redirect pedestrians on the path or alert them to danger. Upon his arrival for the first day of work, however, Moore realized Conference Point had not taken any such steps, so Creekside set up cones along the path and utilized its employees as spotters who, verbally or with hand gestures, would either turn back pedestrians, temporarily halt them if tree work was in progress, or halt the tree work until pedestrians had passed. Moore testified that even if Conference Point had taken steps to redirect or alert pedestrians, Creekside "still would have used cones in the path and a spotter ... used our own protocol" to protect pedestrians and Creekside employees. Moore believed using "spotters and notifying people of what was ahead ...

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