Westmas v. Creekside Tree Serv., Inc.

• Court: Wisconsin Supreme Court
• Writing for the Court: PATIENCE DRAKE ROGGENSACK, C.J.
• Citation: Westmas v. Creekside Tree Serv., Inc., 2018 WI 12, 907 N.W.2d 68, 379 Wis.2d 471 (Wis. 2018)
• Decision Date: 07 February 2018
• Docket Number: No. 2015AP1039,2015AP1039
• Parties: John Y. WESTMAS Individually and as Special Administrator of the Estate of Jane L. Westmas and Jason Westmas, Plaintiffs-Appellants, v. CREEKSIDE TREE SERVICE, INC., Defendant-Respondent-Petitioner, Selective Insurance Company of South Carolina and ABC Insurance Company, Defendants-Respondents.

379 Wis.2d 471

907 N.W.2d 68

2018 WI 12

John Y. WESTMAS Individually and as Special Administrator of the Estate of Jane L. Westmas and Jason Westmas, Plaintiffs-Appellants,

v.CREEKSIDE TREE SERVICE, INC., Defendant-Respondent-Petitioner,Selective Insurance Company of South Carolina and ABC Insurance Company, Defendants-Respondents.

No. 2015AP1039

Supreme Court of Wisconsin.

ORAL ARGUMENT: October 3, 2017

OPINION FILED: February 7, 2018

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 A. Duesing.

PATIENCE DRAKE ROGGENSACK, C.J.

¶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 court³ 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.

¶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 walk-through 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...