Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Westmas v. Creekside Tree Service, Inc.

Supreme Court of Wisconsin

February 7, 2018

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

         REVIEW 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.

         Source of Appeal: Walworth Court Circuit county L.C. No. 2013CV813 Phillip A. Koss Justices

          For 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.

          For 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.


         ¶1 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.[1]Creekside moved for summary judgment on the ground that the recreational immunity statute, Wis.Stat. § 895.52 (2013-14), [2]barred claims against it. The circuit court[3] 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.

         ¶2 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.

         ¶3 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. "

         ¶4 Accordingly, we affirm the decision of the court of appeals.

         I. BACKGROUND

         ¶5 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 project.[4]

         ¶6 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 each contractor.

         ¶7 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.

         The bid provided no details about how these tasks were to be accomplished.

         ¶8 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.

         ¶9 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.

         ¶10 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 work.

         ¶11 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 ....

         ¶12 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 property.

         ¶13 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

         ¶14 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.

         ¶15 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.[5] We granted review and now affirm the court of appeals.


         A. Standard of Review

         ¶16 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.

         ¶17 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.

         B. Statutory Interpretation

         1. General principles

         ¶18 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.

         ¶19 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.

         ¶20 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).

         2. Wisconsin Stat. § 895.52

         ¶21 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 activities.
2. A duty to inspect the property, except as provided under s. 23.115(2).
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 property. [6]

         ¶22 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.

         "As 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.

         ¶23 Generally, "owners" under Wis.Stat. § 895.52 do not owe a duty of care to keep their properties safe for entry or recreational use.[7] 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."

         ¶24 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).[8] It is also undisputed that Conference Point, a non-profit organization within the meaning of 26 U.S.C. ยง 501(c)(3), ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.