John Y. Westmas Individually and as Special Administrator of the Estate of Jane L. Westmas and Jason Westmas, Plaintiffs-Appellants,
Creekside Tree Service, Inc., Defendant-Respondent-Petitioner, Selective Insurance Company of South Carolina and ABC Insurance Company, Defendants-Respondents.
Submitted on Briefs: Oral Argument: October 3, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis.2d
683, 889 N.W.2d 178');">889 N.W.2d 178 PDC No: 2016 WI.App. 92.
of Appeal: Walworth Court Circuit county L.C. No. 2013CV813
Phillip A. Koss Justices
the defendant-respondent-petitioner, there were briefs filed
by Benjamin A. Sparks, Patrick W. Brennan, Sarah Fry Bruch,
and Crivello Carlson S.C., Milwaukee. There was an oral
argument by Patrick W. Brennan.
the plaintiffs-appellants there was a brief filed by
Christopher A. Duesing, Susan R. Tyndall, and Habush Habush
& Rottier, S.C., Waukesha. There was an oral argument by
Susan Tyndall and Cristopher Duesing.
PATIENCE DRAKE ROGGENSACK, C.J.
Jane Westmas was killed when a tree branch cut by Creekside
Tree Service, Inc. ("Creekside") fell on her while
she and her adult son were walking on a public path through
the property of Conference Point Center. Conference Point had
contracted with Creekside to trim and remove trees from its
property. Jane's husband, John Westmas, and her son,
Jason Westmas, sued Creekside and its insurer, Selective
Insurance Company of South Carolina.Creekside moved for summary
judgment on the ground that the recreational immunity
statute, Wis.Stat. § 895.52 (2013-14), barred claims
against it. The circuit court granted Creekside summary
judgment, and the court of appeals reversed. Westmas v.
Selective Ins. Co. of S.C., 2016 WI.App. 92, 372 Wis.2d
683, 889 N.W.2d 178');">889 N.W.2d 178.
We review two issues. First, we consider whether Creekside,
as the entity hired by Conference Point to complete a
tree-trimming project, is protected from liability as an
"agent" of Conference Point under Wis.Stat. §
895.52(2) (b) . Section 895.52(2)(b) provides that "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." The second issue is whether
Creekside is entitled to recreational immunity as an occupier
of the Conference Point property, such that it was a
statutory "owner" of the property at the time of
the accident. "Owner" is defined to include
"[a] person . . . that owns, leases or occupies
property." § 895.52(1) (d)1.
As to the first issue, we conclude that Creekside was not an
agent of Conference Point because Conference Point had
neither control of, nor the right to control, the details of
Creekside's work, including the acts that caused injury
to Jane Westmas. We further conclude that Creekside was not
an occupier of Conference Point's property because its
presence on the property exhibited no "degree of
permanence, as opposed to mere use. "
Accordingly, we affirm the decision of the court of appeals.
Conference Point Center is a faith-based youth camp and
conference center located on the shores of Lake Geneva in
southeastern Wisconsin. With the exception of a shoreline
path, Conference Point's property is not open to the
public. In early 2012, Conference Point requested bids to
perform tree-trimming work on its property, which included
pruning and removing trees located along the shoreline path.
Creekside was one of the contractors who bid on the
Before preparing its bid, Jonathan Moore, Creekside's
sales/consultant and foreman, met with Brian Gaasrud, the
vice chairperson of Conference Point's board, to conduct
a walkthrough of the property and to discuss Conference
Point's project. Gaasrud did not provide plan
specifications from which to bid, but instead provided a
verbal description of the project and showed Moore the areas
requiring work, including the public shoreline path. Gaasrud
testified at his deposition that he described to each
prospective bidder "the vision and the concept of what
we wanted to accomplish, the thinning, the repairing, the
pruning." Gaasrud informed each bidder that Conference
Point had safety signs available if the contractor wanted to
use them. Gaasrud had no training, experience, or special
knowledge regarding how a tree-trimming company should handle
safety issues. He testified at his deposition that he
expected the contractor would conduct itself in a safe manner
"follow[ing] normal procedure, whatever [the] procedure
is for tree services when they're cutting, to create a
safe perimeter." Gaasrud left the "means and
methods" by which trees would be pruned or removed to
In its February 7, 2012 bid, Creekside stated that it would
"provide labor, material, equipment and incidentals
required for the completion of the above" tree-trimming.
The bid described, in general terms, tree-trimming that
Creekside would complete in several locations of Conference
Point's property. For the east shoreline location where
Jane Westmas was injured, the bid provided:
* Removal of 10 dead or hazardous trees, on hill or
overhanging shoreline path, to grade level.
* Pruning to reduce weight for trees overhanging water's
edge or to improve structure/reduce competition.
* Remove large deadwood overhanging path from canopy trees
(4" diameter and larger).
* Prune canopy trees to thin and/or reduce weight for
additional sunlight, focusing on shoreline trees between
Sunrise and Chapin Houses.
provided no details about how these tasks were to be
Conference Point did not initially hire Creekside, but when
the company Conference Point had hired unexpectedly quit,
Creekside was brought in to complete the tree-trimming,
including the portions along the public shoreline path. At
that time, Gaasrud and Creekside owner Joel Strauss modified
Creekside's bid by reducing the scope of the
tree-trimming so it would come within Conference Point's
remaining budget. Creekside's February 7, 2012 bid is the
only writing that describes the tree-trimming services
Creekside agreed to provide.
Although Gaasrud knew Creekside would be working on the
project, he was not aware of specific dates of work, nor did
he have any knowledge of what was being done to block off the
shoreline path or divert pedestrian traffic. No one at
Conference Point was assigned to check in with Creekside or
to provide assistance to Creekside in any way.
Moore testified at his deposition that he was the person
responsible for training Creekside employees. In general,
once Creekside was hired for a tree-trimming project, Moore
would take his crew to the job site, instruct them as to what
needed to be done, pre-mark trees for removal, and identify
trees that needed to be pruned. Moore explained how he
trained Creekside employees on safety:
If 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 pedestrian, 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
On about May 8 or 9, 2012, Moore and three other Creekside
employees began work on the Conference Point project. Moore
and the crew leader walked to various portions of the
property to discuss specifics and safety concerns, including
the need to watch out for foot traffic on the shoreline path.
Moore testified at his deposition that Creekside was told no
detours or barricades on the path were permitted. Regarding
the path, Moore testified:
We had talked about pedestrians from the time the work began
on the path. There had been already issues with pedestrians
on the path where we had redirected them ....
In a given instance, there was a gentleman that was -- I
think he was running a section of the path, and I asked him
to go back. He was upset. I had told him, "I'm
sorry, it's not safe for you to progress."
The day that I was there working with them the majority of
the day, . . .I'm sure there was more than one pedestrian
that was on the path ....
Moore instructed Creekside employees to set up two orange
traffic cones, one on each side of the path. In addition,
Creekside utilized its employees as spotters, who were
assigned to warn and divert approaching pedestrians, and to
halt the tree work if necessary. 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 the public and Creekside employees. Moore did not
believe Creekside had the authority to shut down the path or
detour pedestrians through Conference Point's private
On May 10, 2012, Jane Westmas and her son, Jason Westmas,
were walking on the public path that runs along Conference
Point's east shoreline. A tree branch cut by Creekside
fell and hit Jane, causing severe injuries that resulted in
her death. Moore had marked the specific branch that hit Jane
for removal and noted it for its dangerous position. The
location of this branch was particularly hazardous due to the
overhang of a nearby building, which obscured the views of
both the pedestrian and the tree-cutter. Moore testified he
"show[ed] [the crew leader] the branch that was to be
removed . . . [and] explained to him the necessity to have
someone in the path watching for potential pedestrians
Creekside used no barriers or caution tape to warn
pedestrians. At the time of the accident, Moore was not
present at the site, although he had noted in the days prior
that pedestrians had walked up to or into the work zone.
Moore agreed that two spotters would have been better.
John Westmas, individually and as special administrator for
the Estate of Jane L. Westmas, and Jason Westmas, sued
Creekside, alleging that Creekside's negligence was a
cause of Jane's death. The Westmases further alleged
that, as a result of watching his mother die, Jason suffered
severe and permanent emotional distress. Before the circuit
court, Creekside prevailed on summary judgment on the ground
that the recreational immunity statute, Wis.Stat. §
895.52, barred claims against it. The court of appeals
reversed. We granted review and now affirm the court
Standard of Review
This case requires us to review summary judgment that denied
dismissal of John and Jason Westmas's claims against
Creekside. We review a grant or denial of summary judgment
independently, applying the same standard employed by the
circuit court and court of appeals, while benefitting from
their discussions. Dufour v. Progressive Classic Ins.
Co., 2016 WI 59, ¶12, 370 Wis.2d 313, 881 N.W.2d
678 (citing Preisler v. Gen. Cas. Ins. Co., 2014 WI
135, ¶16, 360 Wis.2d 129, 857 N.W.2d 136). Summary
judgment is appropriate only when there is no genuine dispute
of material fact and the moving party has established his or
her right to judgment as a matter of law. Wis.Stat. §
802.08(2); Wadzinski v. Auto-Owners Ins. Co., 2012
WI 75, ¶10, 342 Wis.2d 311, 818 N.W.2d 819.
Here, the material facts are not disputed. Accordingly, we
focus on whether the application of Wis.Stat. § 895.52
to undisputed facts bars the Westmases's claims.
Statutory interpretation and application are questions of law
that we review independently, while benefitting from the
analyses of the circuit court and the court of appeals.
Highland Manor Assoc, v. Bast, 2003 WI 152, ¶8,
268 Wis.2d 1, 672 N.W.2d 709.
The purpose of statutory interpretation is to determine what
the statute means so that it may be properly applied.
State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶44, 271 Wis.2d 633, 681 N.W.2d 110.
Statutory interpretation begins with the language of the
statute. Id., ¶45. "If the words chosen
for the statute exhibit a 'plain, clear statutory
meaning, ' without ambiguity, the statute is applied
according to the plain meaning of the statutory terms."
State v. Grunke, 2008 WI 82, ¶22, 311 Wis.2d
439, 752 N.W.2d 769 (quoting Kalal, 271 Wis.2d 633,
¶46) . However, where the statute is "capable of
being understood by reasonably well-informed persons in two
or more senses[, ]" the statute is ambiguous.
Kalal, 271 Wis.2d 633, ¶47.
A statutory provision must be read "in the context in
which it is used; not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable
results." Id., ¶46. An interpretation
should give effect to every word. Id. Statutory
purpose is important in discerning the plain meaning of a
statute. Id., ¶48. Therefore, in construing a
statute, we favor a construction that fulfills the purpose of
the statute over one that defeats statutory purpose. Cty.
of Dane v. LIRC, 2009 WI 9, ¶34, 315 Wis.2d 293,
759 N.W.2d 571.
If we determine that the language of Wis.Stat. § 895.52
is ambiguous, we may then consult extrinsic sources, such as
legislative history. Kalal, 271 Wis.2d 633,
¶50. However, even where the statutory language bears a
plain meaning, "we nevertheless may consult extrinsic
sources 'to confirm or verify a plain-meaning
interpretation.'" Grunke, 311 Wis.2d 439,
¶22 (quoting Kalal, 271 Wis.2d 633, ¶51).
Wisconsin Stat. § 895.52
In 1983, the Wisconsin legislature enacted Wis.Stat. §
895.52, which dramatically expanded liability protection for
landowners who open their private property for public
recreational use. Section 895.52(2) provides:
(2) No Duty; Immunity from Liability. (a) Except as provided
in subs. (3) to (6), no owner and no officer, employee or
agent of an owner owes to any person who enters the
owner's property to engage in a recreational activity:
1. A duty to keep the property safe for recreational
2. A duty to inspect the property, except as provided under
3. A duty to give warning of an unsafe condition, use or
activity on the property.
(b) Except as provided in subs. (3) to (6), 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
The legislative purpose of the statute is stated in 1983
Wis.Act. 418, § 1. The session law provides:
The legislature intends by this act to limit the liability of
property owners toward others who use their property for
recreational activities under circumstances in which the
owner does not derive more than a minimal pecuniary benefit.
our cases have explained, 'the impetus for this law is
the continual shrinkage of the public's access to
recreational land in the ever more populated modern
world.'" Roberts v. T.H.E. Ins. Co., 2016
WI 20, ¶28, 367 Wis.2d 386, 879 N.W.2d 492');">879 N.W.2d 492 (citing
Hall v. Turtle Lake Lions Club, 146 Wis.2d 486, 489,
431 N.W.2d 696 (Ct. App. 1988)). The legislature explained
that the statute is to be "liberally construed in favor
of property owners to protect them from liability."
See Ervin v. City of Kenosha, 159 Wis.2d 464, 476,
464 N.W.2d 654');">464 N.W.2d 654 (1991) . Accordingly, courts have interpreted
the protections of Wis.Stat. § 895.52 expansively.
Generally, "owners" under Wis.Stat. § 895.52
do not owe a duty of care to keep their properties safe for
entry or recreational use. See Verdoljak v. Mosinee Paper
Corp., 200 Wis.2d 624, 635, 547 N.W.2d 602 (1996).
Section 895.52(1)(d)1. defines "owner" as "[a]
person, including a governmental body or nonprofit
organization, that owns, leases or occupies property."
It is undisputed that while Jane and Jason Westmas were
walking along the public path, they were engaging in a
recreational activity within the meaning of Wis.Stat. §
895.52(1)(g). It is also undisputed that Conference
Point, a non-profit organization within the meaning of 26
U.S.C. § 501(c)(3), ...