John Y. Westmas v. Selective Insurance Company of South Carolina

2018 WI 12
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1039
COMPLETE TITLE: 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.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 372 Wis. 2d 683, 889 N.W.2d 178
PDC No: 2016 WI App 92 - Published
OPINION FILED: February 7, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 3, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: Phillip A. Koss
JUSTICES:
CONCURRED:
DISSENTED: R.G. BRADLEY, J. and KELLY, J. (coauthor)
dissent (opinion filed).
NOT PARTICIPATING: ABRAHAMSON, J. did not participate.
ATTORNEYS:
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.
2018 WI 12
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1039
(L.C. No. 2013CV813)
STATE OF WISCONSIN : IN SUPREME COURT
John Y. Westmas Individually and as Special
Administrator of the Estate of Jane L. Westmas
and Jason Westmas,
Plaintiffs-Appellants,
FILED
v.
FEB 7, 2018
Creekside Tree Service, Inc.,
Diane M. Fremgen
Defendant-Respondent-Petitioner, Acting Clerk of Supreme
Court
Selective Insurance Company of South Carolina
and ABC Insurance Company,
Defendants-Respondents.
REVIEW of a published decision of the court of appeals.
Affirmed.
¶1 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
No. 20151039
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
1
Creekside and Selective Insurance brought a third-party
action against Conference Point Center and its insurer, West
Bend Mutual Insurance Company, alleging that Conference Point
was a joint tortfeasor. The Westmases subsequently filed a
direct action against both Conference Point and West Bend.
Conference Point and West Bend moved for summary judgment,
asserting that the recreational immunity statute, Wis. Stat.
§ 895.52, barred claims against Conference Point. The Westmases
did not oppose the motion. The circuit court granted Conference
Point and West Bend's motion for summary judgment, dismissing
all claims against them. Conference Point is not a party to
this review.
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
The Honorable Phillip A. Koss of Walworth County presided.
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No. 20151039
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
3
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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.
4
Creekside had contracted with Conference Point in the
past. That separate contract is not relevant to the issues now
before us.
4
No. 20151039
¶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.
5
No. 20151039
¶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:
6
No. 20151039
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
7
No. 20151039
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.
II. DISCUSSION
A. Standard of Review
5
Westmas v. Selective Ins. Co. of S.C., 2016 WI App 92, 372
Wis. 2d 683, 889 N.W.2d 178.
8
No. 20151039
¶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.,
9
No. 20151039
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
10
No. 20151039
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]
6
Wisconsin Stat. § 895.52 replaced a previous recreational
immunity statute, Wis. Stat. § 29.68 (1963), which had been
interpreted to grant immunity only to landowners whose land was
used for activities typically reliant on land "in its natural
undeveloped state." See Laesch v. L&H Indus. Ltd., 161 Wis. 2d
887, 900, 469 N.W.2d 655 (Ct. App. 1991) (concluding that
§ 29.68 did not grant immunity to a contractor working to
deconstruct an abandoned railroad right-of-way because neither
the activity, which was riding an ATV, nor the modified
condition of the land, fell within the purview of the statute).
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No. 20151039
¶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
(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 (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.
7
There are, of course, potential modifications to this
premise, including where a landowner maliciously fails to warn
against an unsafe condition on the property, of which the
landowner was aware. See Wis. Stat. § 895.52(6) (regarding
private property owners); § 895.52(3)(b) (regarding state
immunity); § 895.52(4)(b) (regarding other governmental bodies);
§ 895.52(5) (regarding nonprofit immunity).
12
No. 20151039
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.
§ 501(c)(3), properly was granted summary judgment as an "owner"
under § 895.52(1)(d)1.
¶25 Because Creekside claims to be an agent of Conference
Point, or in the alternative, an occupier that qualifies as a
statutory owner for immunity under Wis. Stat. § 895.52(1)(d)1.,
we determine whether Creekside fits the statutory meaning of
agent or, in the alternative, whether Creekside was a statutory
occupier of recreational land such that it, too, is protected by
the provisions of § 895.52.
a. Agency
¶26 Wisconsin Stat. § 895.52 does not define agent or
occupier. We begin with determining the statutory meaning of
agent as employed in § 895.52(2). To do so, we employ the
principles of statutory interpretation delineated above, wherein
we examine the language, context, and scope of § 895.52. State
8
Wisconsin Stat. § 895.52(1)(g) provides that recreational
activity means "outdoor activity undertaken for the purpose of
exercise, relaxation or pleasure, including practice or
instruction in any such activity." Subsection (1)(g) also lists
32 examples of activities that come within the statute.
13
No. 20151039
v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817 N.W.2d 848
(concluding that "the statutory context in which a term is used,
including the language and structure of surrounding or closely
related statutes, is often highly instructive in determining a
term's meaning."). As we do so, we determine whether "agent"
has a plain and ordinary meaning, or whether it is ambiguous.
Kalal, 271 Wis. 2d 633, ¶¶46-47.
¶27 As we read Wis. Stat. § 895.52(2)(a) and (b), we note
that agent is included in a list of those who may have immunity
from liability, such as "officer, employee or agent of an
owner." Section 895.52(3), relating to liability for injuries
sustained on state property, again uses agent in a listing of
persons: "officer, employee or agent of this state," as does
§ 895.52(4) relating to liability of other governmental units.
Section 895.52(5), which is one of our foci because it relates
to nonprofit organizations, employs the same list: "officers,
employees or agents."
¶28 An officer of a corporate entity "is under a fiduciary
duty of loyalty, good faith and fair dealing in the conduct of
corporate business." Modern Materials, Inc. v. Advanced Tooling
Specialists, Inc., 206 Wis. 2d 435, 442, 557 N.W.2d 835 (1996)
(citing Racine v. Weisflog, 165 Wis. 2d 184, 190, 477 N.W.2d 326
(Ct. App. 1991)). An officer "is vested with policy-making
authority or has the ability to make decisions which bind the
company." Modern Materials, 206 Wis. 2d at 444.
14
No. 20151039
¶29 An officer also may be an employee. Those employees
who are not officers may or may not have management functions
that are performed for the employer, depending on the business
structure of the employer. See Burbank Grease Servs., LLC v.
Sokolowski, 2006 WI 103, ¶3, 294 Wis. 2d 274, 717 N.W.2d 718.
An employee, acting within the scope of his employment, may
incur liability for his employer. Milwaukee Transp. Servs.,
Inc. v. Family Dollar Stores of Wis., Inc., 2013 WI App 124, ¶8,
351 Wis. 2d 170, 840 N.W.2d 132.
¶30 An agent has a fiduciary relationship with his
principal. The Restatement (Second) of Agency defines "agency"
as: "the fiduciary relation which results from the
manifestation of consent by one person to another that the other
shall act on his behalf and subject to his control, and consent
by the other so to act." Restatement (Second) of Agency § 1(1)
(1958). A fiduciary relationship is a consensual relationship
where the agent voluntarily places the interests of his
principal before his own interests. Zastrow v. Journal
Commc'ns, Inc., 2006 Wis. 72, ¶28, 291 Wis. 2d 426, 718 N.W.2d
51. Under certain circumstances, an agent acting within the
scope of his agency can bind his principal. Arsand v. City of
Franklin, 83 Wis. 2d 40, 48-49, 264 N.W.2d 579 (1978).
¶31 An agent may be either an employee or an independent
contractor. Romero v. West Bend Mut. Ins. Co., 2016 WI App 59,
¶39, 371 Wis. 2d 478, 885 N.W.2d 591 (citing Arsand, 83 Wis. 2d
at 48-49). An independent contractor is one "who contracts with
15
No. 20151039
another to do something for him but who is not controlled by the
other nor subject to the other's right to control with respect
to his physical conduct." Restatement (Second) of Agency § 2(3)
(1958). "[A]n independent contractor may or may not be an
agent." Romero, 371 Wis. 2d 478, ¶40.
This means that when an independent contractor has no
fiduciary obligations to and is not subject to control
by the principal, no agency relationship has formed.
However, despite the lack of physical control over an
independent contractor, an agency relationship may
still exist when the fiduciary relationship has formed
and the principal has control over certain activities.
Id. (citation omitted). Examples of independent contractors
include "the attorney at law, the broker, the factor, the
auctioneer, and other similar persons employed either for a
single transaction or for a series of transactions . . . ."
Arsand, 83 Wis. 2d at 48 (citing Meyers v. Matthews, 270 Wis.
453, 467, 71 N.W.2d 368 (1955)). They also are agents because
they have a fiduciary relationship with their principal, who has
the right to control their acts that are done within the scope
of the agency. Romero, 371 Wis. 2d 478, ¶42.
¶32 Although the precise issue before us is one of first
impression, we often have examined the scope of a principal's
control of another when determining whether that person (or
organization) is an agent of the principal. As the court of
appeals recently said, "[an] important factor in determining
whether a person is an agent is the extent of control retained
over the details of the work." Id., ¶38 (citing Kablitz v.
Hoeft, 25 Wis. 2d 518, 521, 131 N.W.2d 346 (1964)).
16
No. 20151039
¶33 In Romero, the court of appeals examined whether an
employee of Badger State Auto Auction, Inc., who injured three
men while driving a vehicle Badger State was preparing to
auction for Fairview Auto, Inc., was an officer, agent, or
employee of Fairview. The court of appeals determined that the
driver was not an agent of Fairview because, although Fairview
exercised control over Badger State with respect to the terms
for auctioning the vehicles, Fairview had no right to control
the movement of vehicles which was the conduct that caused the
harm. Romero, 371 Wis. 2d 478, ¶42.
¶34 In order to secure governmental immunity under Wis.
Stat. § 893.80(4), the governmental entity must have established
reasonably precise standards of control for the task at issue
and the person who is performing the task must be adhering to
those standards at the time of the accident. Showers
Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶37, 350 Wis. 2d
509, 835 N.W.2d 226. However, absent "reasonably precise
specifications" established by the governmental body, there
could be neither control nor the right to control the conduct
that caused the injury. Id.
¶35 In Kablitz v. Hoeft, we considered whether an
orthopedic surgeon who had been retained by defendant insurance
company's counsel as an independent contractor to examine the
extent of plaintiff's injury, was an agent of the insurance
company. In concluding that he was not, we stated "[t]here was
no proof [] that Farmers Mutual reserved any right to control
17
No. 20151039
the details of the examination or exerted any influence over
such examination." Kablitz, 25 Wis. 2d at 521.
¶36 The above decisions demonstrate the basic principles
of agency law in the State of Wisconsin. To summarize, an agent
is one who acts on behalf of and is subject to reasonably
precise control by the principal for the tasks the person
performs within the scope of the agency. Whether an independent
contractor is an agent is a fact-specific inquiry. We therefore
turn to the facts of the present case, and apply these
principles accordingly.
3. Application
¶37 It is evident from the record before us that
Creekside's employees were not the employees of Conference Point
and that Conference Point did not control or attempt to control
the physical conduct of Creekside's employees. Rather,
Creekside was an independent contractor, hired by Conference
Point to complete tree-trimming work in identified locations on
Conference Point's property. To determine whether Creekside was
the agent of Conference Point for the tree-cutting that caused
the injury, we focus on the level of control that Conference
Point either exerted or had the right to exert over the tree-
cutting task that caused the injury. We give particular
attention to whether the injury-causing conduct occurred when
Creekside was following Conference Point's specific directions.
¶38 We conclude that no facts were presented supportive of
the conclusion that Conference Point either controlled or had
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No. 20151039
the right to control the details of Creekside's work.
Accordingly, Creekside was not Conference Point's agent within
the meaning of Wis. Stat. § 895.52.
¶39 The following undisputed facts support our conclusion.
First, the written agreement between Conference Point and
Creekside described the work to be done on the east shoreline
where Jane was injured in general terms. No means or methods
were set out in regard to how "Removal of 10 dead or hazardous
trees, on hill or overhanging shoreline path, to grade level"
was to be accomplished, or in regard to how "Pruning to reduce
weight for trees overhanging water's edge or to improve
structure/reduce competition" were to be undertaken.
¶40 Second, Gaasrud testified that he left the "means and
methods" for conducting the tree-trimming, including any safety
precautions, to Creekside. Gaasrud had no training, experience,
or knowledge regarding how a tree-trimming company should
operate, and although he notified Creekside that the path was
public, he testified at his deposition that monitoring
pedestrian traffic was "[Creekside's] determination."
Conference Point did not assign anyone to oversee Creekside's
work, nor did Conference Point provide any tools, equipment, or
assistance to Creekside. Moreover, Gaasrud was not aware
Creekside would be working on the day of the accident.
¶41 The court of appeals correctly analyzed the undisputed
material facts when it concluded that Creekside was not an agent
of Conference Point:
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From the decision regarding whether or not to use a
rope to bring down the branch that killed Jane, to
where safety cones would be placed, to how "spotters"
would be utilized, the record is clear that Creekside,
not Conference Point, maintained control over the
details of its work, particularly the actions that led
to Jane's death.
Westmas, 372 Wis. 2d 683, ¶21.
¶42 These factors demonstrate that not only did Conference
Point lack control over Creekside's tree-trimming, but it also
lacked the right to control the details of Creekside's tree-
trimming. In its analysis, the court of appeals discussed
whether Conference Point had "the right to control the tasks
performed by [Creekside] with 'reasonably precise
specifications.'" Id., ¶16 (quoting Showers, 350 Wis. 2d 509,
¶37). While recognizing that an agent could be an independent
contractor, the court of appeals correctly concluded that
Creekside was not an agent of Conference Point because
Conference Point did not control, or have the right to control,
the means or methods of the work that caused the injury. We
agree with this conclusion. With no background or knowledge on
how to perform tree-trimming, Conference Point could not have
controlled or had the right to control the methods of work
including safety specifications employed for tree-trimming. All
Conference Point could do was describe the "vision and concept"
of the project, which it did. It was left to Creekside to
decide the specifics of how the tree-trimming would be
accomplished.
¶43 Creekside contends that the court of appeals' decision
will summarily deny agency status, and therefore immunity, to
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all independent contractors of a landowner who lacks employees
with the expertise to control and supervise the details of the
contractor's work. This argument is unpersuasive. As the court
of appeals acknowledged, whether an independent contractor is an
agent is a fact-bound inquiry. Westmas, 372 Wis. 2d 683, ¶16.
4. Statutory "owner"
¶44 We now turn to Creekside's alternate argument, namely,
whether Creekside qualifies as a statutory owner because it
occupied Conference Point's property within the meaning of Wis.
Stat. § 895.52(1)(d)1. Our decision in Roberts v. T.H.E.
provides guidance for applying the term "occupies" within the
recreational immunity context.
¶45 In Roberts, plaintiff was injured when one of the
lines tethering a hot air balloon to the ground snapped, causing
the basket of the balloon to collide with Roberts, knocking her
to the ground. Roberts, 367 Wis. 2d 386, ¶10. Roberts had been
attending a charity event sponsored by Green Valley Enterprises
and hosted on a shooting range owned by Beaver Dam
Conservationists, LLC. Id., ¶5. Sundog Ballooning, LLC, was
the owner and operator of the hot air balloon providing tethered
rides at the event. Id., ¶6. On review, we considered whether
Sundog had "occupied" the shooting range such that Sundog was a
statutory owner and thereby entitled to recreational immunity
under Wis. Stat. § 895.52(1)(d)1.
¶46 We began our discussion in Roberts by acknowledging
that the definition of "occupy" in the context of recreational
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immunity is "to take and hold possession." Id., ¶34 (citing
Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 355, 575
N.W.2d 734 (Ct. App. 1998)). In Doane, the court of appeals
explained that the term "occupy" as it is used in Wis. Stat.
§ 895.52 requires "a degree of permanence, as opposed to the
mere use of the property in question." Doane, 216 Wis. 2d at
351.
¶47 In Roberts, we also noted that the purpose of the
recreational immunity statute is to encourage landowners to open
land for public use. Defining Sundog as an occupier "would not
further the policy which underlies the statute . . . because the
. . . property was already open for public recreational
purposes." Roberts, 367 Wis. 2d 386, ¶35. This is so because
regardless of whether Sundog was immune, the owner of the
property, Beaver Dam Conservationists, was protected and would
therefore not be discouraged from opening its land to the
public.
¶48 In the present case, we agree with Westmases that
Creekside's presence on Conference Point's property did not
exceed "mere use" and did not approach "a degree of permanence,"
nor did it have any effect on whether Conference Point's
property would be open to the public for recreational purposes.
As the court of appeals correctly explained:
In the few days it was on the property, Creekside
moved from temporary location to temporary location
for the limited purpose of trimming trees as needed to
satisfy its contract with Conference Point.
Furthermore, Creekside was "not responsible for
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opening up the land to the public," and indeed did not
have authority to do so.
Westmas, 372 Wis. 2d 683, ¶27 (footnote omitted). Based on
these uncontested facts, we conclude that Creekside was not an
occupier of the Conference Point property and is therefore not a
statutory owner of the property for purposes of Wis. Stat.
§ 895.52.
C. Limits of Recreational Immunity
¶49 Although we conclude that the definitions of "agent"
and "occupies" to be plainly discernible from the statutory
context in which they occur, we nevertheless consult legislative
history underlying Wis. Stat. § 895.52 to confirm our plain
meaning interpretation. As discussed above, we note that
§ 895.52 was enacted to limit the liability of property owners
in order to encourage them to open their lands to the public for
recreational purposes. Our statutory interpretation and
application above are consistent with that purpose.
¶50 Creekside argues that any limitation on the definition
of "owner" will undermine the purpose of the statute. We
disagree. 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. See,
e.g., Roberts, 367 Wis. 2d 386, ¶39; Linville v. City of
Janesville, 184 Wis. 2d 705, 719, 516 N.W.2d 427 (1994).
¶51 In Linville, we considered whether granting immunity
to city paramedics would create limitless immunity for all
medical services provided for injuries sustained while engaging
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in a recreational activity at a City-owned pond. Id. at 718
(citing Ervin, 159 Wis. 2d at 472-76).9 In Linville, we narrowed
the focus of our inquiry to "whether the City as employer of the
paramedics is, in the eyes of the law, the same entity that owns
the Pond." Linville, 184 Wis. 2d at 718. We concluded that
"[e]xtending immunity to landowners for negligently performing
in a capacity unrelated to the land or to their employees whose
employment activities have nothing to do with the land will not
contribute to a landowner's decision to open the land for public
use." Id. at 719.
In addition, granting immunity to the landowner
when the landowner and the employer of the negligent
employee are functioning in two different capacities
and are therefore not the same entity in the eyes of
the law would produce absurd consequences. In Ervin,
we stated that the statute was intended to "shif[t]
some of the risk of injury from the landowner to the
entrant." But, it "was not enacted to provide
indiscriminate immunity for landowners without regard
to possible consequences."
Id. (citation omitted).
¶52 We therefore concluded that to interpret Wis. Stat.
§ 895.52(2)(b) to extend immunity to negligent rescue and
treatment efforts by paramedics would produce absurd
consequences, including the possibility that a health care
provider employed by the City would remain immune even if he or
9
In Ervin, we concluded that Wis. Stat. § 895.52 granted
immunity to landowners with respect to the condition of the land
and to the landowners' (or its employees') actions with respect
to the land. Ervin v. City of Kenosha, 159 Wis. 2d 464, 472-76,
464 N.W.2d 654 (1991).
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she provided negligent care once the victim had been transported
to the hospital. Id. at 720.
¶53 Here, it was Conference Point that was responsible for
opening the land to the public, not Creekside. As we stated in
Roberts, "[g]ranting immunity to third parties that are not
responsible for opening up the land to the public is unsupported
by our prior case law." Roberts, 367 Wis. 2d 386, ¶41.
Further, the legislature has expressly stated that the purpose
of Wis. Stat. § 895.52 is to limit liability of property owners
under circumstances "in which the owner does not derive more
than a minimal pecuniary benefit." 1983 Wis. Act. 418, § 1.
Given these observations, denying immunity to Creekside does not
conflict with the legislative history or purpose of § 895.52,
nor does it contravene the legislature's mandate to interpret
the statute broadly in favor of landowners.
III. CONCLUSION
¶54 There were two issues on this review. First, we
considered whether Creekside, as the entity hired by Conference
Point to complete the tree-trimming project, is protected 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 was whether Creekside is entitled to recreational immunity
as an occupier of the Conference Point property, such that it
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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.
¶55 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."
¶56 Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
¶57 SHIRLEY S. ABRAHAMSON, J., withdrew from
participation.
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¶58 REBECCA GRASSL BRADLEY, J. and DANIEL KELLY,
J. (dissenting). Jane Westmas' death was tragic. Occurring
in front of her son as they walked along an ordinarily idyllic
lakeshore path, a tree branch cut by Creekside Tree Service, LLC
suddenly crashed down upon her, causing fatal injuries. If
tragic circumstances controlled our decisions, we would join the
court's opinion. However, this case, like all others, must be
decided based on the law.
¶59 This case presents a statutory question of law: is
Creekside entitled to recreational immunity under Wis. Stat.
§ 895.52(2)(b) because it qualifies as either an "agent" under
§ 895.52(2)(b), or as an "owner" by "occup[ying]" Conference
Point's property under § 895.52(1)(d)(1)? The court concludes
Creekside is neither and therefore not immune from liability.
But it reaches that decision by overlooking one branch of the
definition of "agent" and disregarding 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. Because we would instead apply the broad
scope of immunity chosen by the legislature, we respectfully
dissent.
I. CREEKSIDE WAS AN "AGENT"
¶60 An agency relationship exists, as relevant to this
case, when one person either controls or has the right to
control the activity of another. If such a relationship existed
between Conference Point and Creekside, then the latter would
enjoy the same immunity as the former under Wis. Stat. § 895.52.
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We believe such a relationship did exist, and so Creekside was
entitled to immunity in this case. The court reached the
opposite conclusion because it focused almost exclusively on
whether Conference Point actually controlled Creekside. Because
it performed no meaningful analysis of whether Conference Point
had the right to control Creekside, it overlooked the agency
relationship that undoubtedly obtained between the two.
A. Agency Principles
¶61 As the court correctly noted, Wis. Stat. § 895.52 does
not tell us who qualifies as an "agent." When the statute we
are applying provides no working definition, we frequently look
for one in the Restatement of Agency. We did just that in
Meyers v. Matthews, 270 Wis. 453, 467, 71 N.W.2d 368 (1955),
where we observed that an agent can be either a "servant" or an
"independent contractor." An agent, we said, is:
a person authorized by another to act on his account
and under his control. Included within its meaning
are both those who, whether or not servants . . . act
in business dealings and those who, being servants,
perform manual labor. An agent may be one who, to
distinguish him from a servant in determining the
liability of the principal is called an independent
contractor. Thus, the attorney at law, the broker,
the factor, the auctioneer, and other similar persons
employed either for a single transaction or for a
series of transactions are agents, although as to
their physical activities, they are independent
contractors.
Id. (emphasis omitted) (quoting Restatement of Agency ch. 1,
topic 1, § 1 cmt. d (Am. Law Inst. 1933)).
¶62 The court has held, frequently, that an agency
relationship exists when the principal "controls" or has the
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"right to control" the agent's actions. "In determining whether
agency exists, the matter of control or the right of control, by
the person alleged to be the principal over the person alleged
to be the agent, is deemed of great importance by the courts."
Renich v. Klein, 230 Wis. 123, 127, 283 N.W. 288 (1939). That
is to say, a principal is one who "has the right to control the
conduct of the agent with respect to matters entrusted to
him. . . . " Id. at 128 (quoting Restatement of Agency ch. 1,
topic 3, § 14 (Am. Law Inst. 1933)); see also Schmidt v. Leary,
213 Wis. 587, 590, 252 N.W. 151 (1934) (finding agency because
"[t]he plaintiff as the owner of the car had the right to
control the actions of the driver in driving it on the trip,
whether she had occasion to exercise it or not."); Arsand v.
City of Franklin, 83 Wis. 2d 40, 49, 264 N.W.2d 579 (1978)
("[I]t was necessary for the [plaintiff] to allege and prove
that . . . the City controlled or had the right to control [the
tortfeasor's] physical conduct in the performance of his
services.").
¶63 The court's opinion went awry because it focused on
whether Conference Point actually controlled Creekside's
activities to the exclusion of any meaningful inquiry into
whether the former had the right to control the latter.
"Control" and the "right to control" are not the same things,
and either one is sufficient to create an agency relationship.
The court has said so before. In Schmidt we had to decide
whether the driver of a car was the agent of the owner, who was
a passenger. 213 Wis. at 588. If actual control were the sine
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qua non of an agency relationship, the answer would have been a
simple and obvious "no." If the passenger had actually
exercised control——which would mean, in that context,
manipulating the automobile's steering, acceleration, and
braking systems——the passenger wouldn't have been the passenger,
but the driver. And yet we concluded the driver was nonetheless
the passenger's agent, because the passenger had the right to
control operation of the vehicle, regardless of whether she
exercised it: "The plaintiff as the owner of the car had the
right to control the actions of the driver in driving it on the
trip, whether she had occasion to exercise it or not."
Id. at 590.
¶64 The court said essentially the same thing in Gehloff
v. De Marce, 204 Wis. 464, 234 N.W. 717 (1931). There, the
defendant asked a neighbor to drive a car on a business errand,
during which an accident occurred. Id. at 464-65. If liability
were to attach, the court said, it would be via an agency
relationship. Id. at 465. It said the driver was the
defendant's agent because the defendant had "the right of
control and direction" of the vehicle. Id. It was undisputed
that the defendant was not present in the car at the time of the
accident, see id., so the court was quite obviously not limiting
agency to situations in which the principal actually "exerted
control."
¶65 Indeed, it is the right to control that explains the
Restatement's description of the "independent contractor"
relationship. In such relationships, there are two components——
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the purpose for which the contractor was retained, and the
physical activity in which he engages to accomplish that
purpose. As the Restatement says, he is an agent with respect
to the former, but not the latter: "Thus, the attorney at law,
the broker, the factor, the auctioneer, and other similar
persons employed either for a single transaction or for a series
of transactions are agents, although as to their physical
activities, they are independent contractors." See Meyers, 270
Wis. at 467 (quoting Restatement of Agency ch. 1, topic 1, § 1
cmt. d (Am. Law Inst. 1933)). It is the attorney and broker's
representation, and the factor1 and auctioneer's financial
arrangements, that the principal has the right to control.
Consequently, with respect to those matters, the actors relate
to each other and the world as principal and agent (as the
Restatement recognizes). But the physical actions of the
attorney, broker, factor, and auctioneer are outside the
contemplation of the contractual relationship, which puts them
beyond the right to control and, consequently, the agency
relationship.
¶66 The court, however, appears to be intent on reading
the "right to control" branch of the agency analysis out of our
jurisprudence. In narrowing the inquiry to merely the "control"
branch, the court relies on our government immunity line of
1
Factor, Black's Law Dictionary (10th ed. 2014) ("[a]n
agent who is employed to sell property for the principal and who
possesses or controls the property; a person who receives and
sells goods for a commission").
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cases in which we describe who qualifies as an agent under Wis.
Stat. § 893.80(4). But those cases have no explanatory power
here because they are trying to identify something entirely
different——something that is defined (erroneously, in our view)
by the principal's exercise of control. Governmental immunity
exists for "the exercise of legislative, quasi-legislative,
judicial or quasi-judicial functions." § 893.80(4).
Notwithstanding this language, the court has concluded that what
the statute really protects is the exercise of governmental
discretion. Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶21,
253 Wis. 2d 323, 646 N.W.2d 314 ("The statute immunizes against
liability for legislative, quasi-legislative, judicial, and
quasi-judicial acts, which have been collectively interpreted to
include any act that involves the exercise of discretion and
judgment." (first citing Willow Creek Ranch, L.L.C. v. Town of
Shelby, 2000 WI 56, ¶25, 235 Wis. 2d 409, 611 N.W.2d 693; then
citing Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81,
90, 596 N.W.2d 417 (1999); then citing Scarpaci v. Milwaukee
Cty., 96 Wis. 2d 663, 683, 292 N.W.2d 816 (1980); then citing
Lifer v. Raymond, 80 Wis. 2d 503, 512, 259 N.W.2d 537 (1977))).
Therefore, if only governmental discretion is entitled to
immunity, then it necessarily follows that the government's
agents receive no immunity to the extent they exercise their own
discretion. So the test we developed to identify which
government agents were entitled to immunity focused on how much
control the government actually exercised over the agent.
Immunity attaches, we said, only so long as "the governmental
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entity approved reasonably precise specifications that the
governmental contractor adhered to when engaging in the conduct
that caused the injury . . . ." Showers Appraisals, LLC v.
Musson Bros., 2013 WI 79, ¶37, 350 Wis. 2d 509, 835 N.W.2d 226.
In other words, there is immunity only when the government
entity exercised enough actual control over the agent that it
would be accurate to say the agent was not exercising his own
discretion.
¶67 That test has nothing to say in the recreational
immunity context. Here, immunity relates to a duty, not the
exercise of governmental authority. Recreational immunity
relieves a person from the duty to "keep the property safe for
recreational activities[;] . . . inspect the
property[; . . . and] . . . give warning of an unsafe condition,
use or activity on the property." Wis. Stat. § 895.52(2)(a).
So there is no need to locate the exercise of discretion in
either the owner or the agent, because the exercise of
discretion does not define the thing entitled to immunity under
this statute. And because the inquiry into control was
important in the governmental immunity context only for the
purpose of identifying who exercised discretion, there is no
necessary connection between control and agency in the
recreational immunity context.
B. Application
¶68 If the court had analyzed this matter under the "right
to control" rubric, the conclusion that Creekside was Conference
Point's agent would have followed as a matter of course.
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Conference Point authorized Creekside to enter the property and
trim certain trees that met the conditions specified by
Conference Point. And Creekside agreed to trim the trees
described by those conditions. Nothing in the contract gave
Creekside the right to refuse Conference Point should it decide
to change the description of the trees to be trimmed, when they
would be trimmed, the safety precautions to take when trimming,
the state of pedestrian traffic when they were trimmed, or any
other relevant aspect of Creekside's activity. That is to say,
there is nothing in the contract to suggest that Conference
Point ceded the right to control activity taking place on its
own property, a right vouchsafed to it by ancient principles of
real property law. Indeed, even the court had to recognize the
contract did no such thing: "The bid provided no details about
how these tasks were to be accomplished." Majority op., ¶7.
¶69 But we need not rely just on the contract's silence
with respect to Conference Point's right to control Creekside's
activities. The record reveals not only that Creekside
acknowledged Conference Point's right to control activity on its
own property, but that it actually expected Conference Point to
exercise it. Jonathan Moore, Creekside's sales consultant and
foreman, expected that Conference Point would take affirmative
steps to ensure pedestrian safety by redirecting traffic or
otherwise alerting pedestrians to the danger posed by the tree
trimming. Further, it was his understanding that, with respect
to certain safety precautions, such as shutting the path to
pedestrian traffic, the "right to control" rested with
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Conference Point, not Creekside. There is no evidence in the
record——none——to contradict this.
¶70 The court's reference to the "right to control" branch
of agency law was so spartan that it lacked any analysis. Here
is the whole of its attention to this, the dispositive issue:
"These factors demonstrate that not only did Conference Point
lack control over Creekside's tree-trimming, but it also lacked
the right to control the details of Creekside's tree-trimming."
Majority op., ¶42. To which factors was the court referring?
 The contract's silence with respect to the right
to control (Majority op., ¶39);
 Creekside's exercise of control over its
activities (Majority op., ¶40); and
 Conference Point's lack of expertise in tree-
trimming (Majority op., ¶¶41-42).
These factors all share two salient characteristics. First,
they are conceptually incapable of affecting Conference Point's
right to control Creekside's activities on its own property.
And second, they lack any accompanying analysis to explain how
they are supposed to accomplish the effect the court ascribes to
them.
¶71 Under the best of circumstances, it's really difficult
to tease meaning out of silence. Here, the court discerned in
it some truly remarkable conclusions. In the silence, the court
heard Conference Point tender to Creekside unfettered control
and occupancy of its property for the purpose of tree-trimming
whenever and in whatever manner Creekside might choose. If a
Conference Point employee had perceived the danger into which
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Mrs. Westmas was walking, presumably this contractual silence
would have prevented him from ordering Creekside to temporarily
halt its work until Mrs. Westmas had passed. Or, if there were
peaks and valleys in pedestrian traffic, Creekside could have
used this silence to rebuff an instruction to trim only during
certain times of the day. Or Creekside could have told
Conference Point to mind its own business if it had said that no
tree-trimming could take place until Conference Point barricaded
the path. In silence, the court discerned the type of exclusive
control over real property that normally requires a tenancy
agreement or a deed.
¶72 The second factor on which the court relied is not
even in the right category of considerations. The fact that
Conference Point did not actually exercise control is irrelevant
as a matter of law——the whole point of analyzing the "right to
control" is to consider the existence of an agency relationship
when no such control occurred. If the right to control exists,
then even when Conference Point doesn't exercise it, Creekside
would nonetheless be "a person authorized by [Conference Point]
to act on his account and under his control . . . ." See
Meyers, 270 Wis. at 467 (quoting Restatement of Agency ch. 1,
topic 1, § 1 cmt. d (Am. Law Inst. 1933)). So, pace the court's
conclusion, the absence of actual control does nothing but
signal it is time to start the "right to control" analysis,
something the court didn't do.
¶73 The court's reliance on Conference Point's lack of
tree-trimming expertise is also a category error. If Conference
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Point had endeavored to tell Creekside how to trim trees, it is
certainly possible, and maybe even likely, that its lack of
expertise would cause it to exercise that control unwisely, or
ineffectually. But lack of competency does not negate the right
to control, it just makes it imprudent. And apropos of that
point, let's not forget that the danger presented in this case
has nothing to do with expertise in tree-trimming. It is the
danger of a heavy object falling on someone walking by. There
is no gnosis passed down through generations of tree-trimming
guilds about the implications of heavy branches falling to the
ground. This danger, and the means of avoiding it, are known to
quite literally everyone: Do not be where the branch falls. In
any event, nothing in the court's opinion describes how
Conference Point could even conceivably lose the right to
control activity on its own property just because it might
exercise that control in a less than optimal manner.
¶74 So the extent of the court's "right to control"
analysis was a bare, analysis-free reference to three factors
that have nothing to do with Conference Point's right to control
activities on its own property. Because nothing in the contract
or the circumstances presented to us suggest that Conference
Point relinquished that right, a right it owns as a matter of
real property law, Creekside was its agent.
¶75 We find confirmation for our conclusion in the reasons
the court gave for finding agency in Gehloff——specifically, the
relationships between the principal, agent, and injury-causing
instrument. Gehloff observed:
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The rule is accepted in this state that, where a
plaintiff seeks to hold the owner of a car liable for
injuries inflicted when the car was being operated by
another, proof of the ownership makes out a prima
facie case. This is on the theory that the fact of
ownership justifies an inference or raises a
presumption that the driver of the car is the agent of
the owner and that he is driving it in pursuit of the
owner's business.
Gehloff, 204 Wis. at 465-66.
¶76 The relationships between the owner, the agent, and
the injury-producing object in Gehloff were exactly as they are
here. Conference Point owned the property and the fatality-
causing tree limb——just as Mrs. Kandler owned the car in
Gehloff.2 Conference Point asked Creekside to trim trees for
Conference Point's own benefit——just as the driver was asked to
drive the car for the owner's benefit. And Mrs. Westmas died
when Creekside cut the limb from a tree owned by Conference
Point on Conference Point's property, just as injury followed
from the manner in which the agent drove Mrs. Kandler's car in
Gehloff. The Gehloff court said that when a person uses the
owner's property for the owner's purposes, and in the process of
doing so causes injury to another, there arises a presumption of
agency. And that was quite apart from any question of whether
the principal exercised actual control over the agent.
2
We refer to Mrs. Kandler as the car's owner, although
technically it belonged to her son and was on loan to her at the
time of the accident. Nonetheless, for purposes of our analysis
in Gehloff v. Kandler, 204 Wis. 464, 234 N.W. 717 (1931), Mrs.
Kandler stood in the shoes of the owner, so we will not make any
further distinction here.
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¶77 Conference Point either had the right to control
Creekside's activity, or it did not. If it did, then Creekside
was an agent. But if Creekside's authority was so perfectly
exclusive that Conference Point had no right or ability to
interfere with its work, then it necessarily follows that
Creekside occupied Conference Point's property while it pruned
the trees.
II. CREEKSIDE WAS AN "OWNER"
¶78 The court should have adopted the plain meaning of
"occupies" articulated in the dissent from Roberts v. T.H.E.
Ins. Co., 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492 (R. G.
Bradley, J., dissenting). Instead, the court requires Creekside
to both establish a "degree of permanence" on Conference Point's
property and play a role in opening the property to the public
for recreational purposes. Majority op., ¶54-55. The court
imposes these obstacles to immunity not by construing the
statutory text, but instead by consulting legislative history
and prior case law that likewise disregards the actual words
enacted by the legislature. Just like the defendant in Roberts,
Creekside meets the ordinary and accepted meaning of "occupies,"
entitling it to the immunity the court erroneously denies it.
A. Plain Meaning of "Occupies"
¶79 In Roberts, this court held that Sundog Ballooning,
LLC, which provided hot air balloon rides on land open to the
public for recreational purposes, was not entitled to statutory
immunity as an "owner" under Wis. Stat. § 895.52(2)(b) when a
hot air balloon struck and injured Patti Roberts while she was
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engaged in a recreational activity. Roberts, 367 Wis. 2d 386,
¶¶25-41. Sundog argued it was an occupier entitled to immunity
by virtue of § 895.52(1)(d)(1)'s definition of "owner," which
includes "[a] person . . . that . . . occupies property,"
particularly because "Wisconsin courts have concluded private
organizations hosting an event on land they did not own are
entitled to recreational immunity." Id., ¶30 (citing Hall v.
Turtle Lake Lions Club, 146 Wis. 2d 486, 487-90, 431 N.W.2d 696
(Ct. App. 1988)). The Roberts court rejected Sundog's argument
by eschewing the plain meaning of "occupies" in favor of a
definition gleaned from case law advancing a cramped view of
what it means to occupy land, one that finds no support in the
statute's text.
¶80 The Roberts court relied on the statute's stated
"[l]egislative intent," expressed in the legislative history of
1983 Wis. Act 418, to contravene the plain meaning of
"occupies." As divined by the Roberts court, that legislative
purpose seeks "to limit liability in order to encourage property
owners to open their lands to the public."3 Id., ¶28. The court
3
The full text of 1983 Wis. Act 418, § 1, reads:
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. While it is not
possible to specify in a statute every activity which
might constitute a recreational activity, this act
provides examples of the kinds of activities that are
meant to be included, and the legislature intends
that, where substantially similar circumstances or
activities exist, this legislation should be liberally
(continued)
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refused to "grant[ ] immunity [under Wis. Stat. § 895.52(2)(b)]
to a third party not responsible for opening up the land to the
public." Id., ¶33 (footnote omitted). Adopting the court of
appeals' definition from Doane v. Helenville Mut. Ins. Co., the
Roberts court concluded "occupies" meant "to take and hold
possession," which in the court's view necessitates a person or
entity not only to open the land to the public, but also to
achieve "a degree of permanence, as opposed to mere use"
thereon. Id., ¶34 (quoting 216 Wis. 2d 345, 355, 575 N.W.2d 734
(Ct. App. 1998)).
¶81 Applying this court-created rule, the court in Roberts
held that Sundog did not open the land to the public. Id., ¶41.
Rather, it identified the event organizer as the entity that
opened the land and the only one entitled to the classification
of occupier.4 Id., ¶37. Holding this element to be dispositive,
the court did not reach the issue of whether Sundog attained the
requisite "degree of permanence" on the property.
¶82 The Roberts dissent determined that "Sundog meets the
statutory requirements to obtain recreational immunity
because . . . it falls within the definition of 'owner,' which
construed in favor of property owners to protect them
from liability.
4
The court also identified the titled owner of the property
as one with the responsibility of opening the land, cloaking it
too with statutory immunity. Roberts v. T.H.E. Ins. Co., 2016
WI 20, ¶37, 367 Wis. 2d 386, 879 N.W.2d 492.
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includes 'a person . . . that . . . occupies property.'"5
Id., ¶132 (R. G. Bradley, J., dissenting). Undertaking a plain-
meaning analysis, the dissent ascertained the ordinary and
accepted meaning of "occupies" from the dictionary definition of
"occupant," as "[o]ne that resides in or uses a physical space."
Id., ¶134 (citing Occupant, The American Heritage Dictionary of
the English Language (5th ed. 2015)). "There is no temporal
requirement embedded in the definition of occupy." Id., ¶144.
Nor is immunity limited "to those who 'host' or 'organize' an
event on the land." Id. Instead, "a person who occupies
property is one who has actual use of the property." Id., ¶134.
Under § 895.52(2)(b), such an occupier is not "liable for the
death of . . . a person engaging in a recreational activity" on
the occupied property.
¶83 This definition was first adopted in Hall, 146
Wis. 2d at 491. One who "occupies" property includes:
persons who, while not owners or tenants, have the
actual use of land. . . . While "occupant" includes
[an] owner and lessee, it also means one who has the
actual use of property without legal title, dominion
or tenancy. In order to give meaning to [occupies],
5
Justice David T. Prosser concurred in part and dissented
in part. Id., ¶83 (Prosser, J., concurring in part, dissenting
in part). His purpose in dissenting was "to reinforce the
inexorable logic of Justice [Rebecca Grassl] Bradley's dissent."
Id. Justice Prosser joined all but footnote 4 of Justice
Rebecca Grassl Bradley's dissent. Id. Footnote 4 disagreed
with the court that a hot air balloon was not "property" within
the meaning of the statute. Id., ¶132 n.4 (R. G. Bradley, J.,
dissenting). Chief Justice Patience Drake Roggensack, author of
the court's opinion in this case, joined Justice Prosser's
separate writing without qualification. Id., ¶131 (Prosser, J.,
concurring in part, dissenting in part).
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the term should be interpreted to encompass a resident
of land who is more transient than either a lessee or
an owner.
Id. (alteration in original) (emphasis added) (quoting Smith v.
Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193, 1197 (7th Cir.
1987)); see also Leu v. Price Cty. Snowmobile Trails Ass'n,
Inc., 2005 WI App 81, ¶11, 280 Wis. 2d 765, 695 N.W.2d 889; Held
v. Ackerville Snowmobile Club, Inc., 2007 WI App 43, ¶16, 300
Wis. 2d 498, 730 N.W.2d 428; Milton v. Washburn Cty., 2011
WI App 48, ¶9, 332 Wis. 2d 319, 797 N.W.2d 924.
¶84 The court of appeals in Doane, 216 Wis. 2d at 351-52,
however, altered this longstanding definition of "occupies" to
mean "has actual possession of the property," with the added
requirement that one must achieve a "degree of permanence" on
the property. As aptly stated by Justice David T. Prosser in
his separate writing in Roberts, "[t]he court of appeals reached
the correct decision in Doane, but it did so, at least in part,
for the wrong reason." Roberts, 367 Wis. 2d 386, ¶101 (Prosser,
J., concurring in part and dissenting in part). "Until Doane,
no Wisconsin case had ever used the phrase 'degree of
permanence.'" Id. As the court of appeals in Hall "never
discussed 'a degree of permanence' because . . . Hall clearly
sidestepped the 'permanence' part of the Seventh Circuit's
opinion [in Smith v. Sno Eagles Snowmobile Club, Inc., 823
F.2d 1193 (7th Cir. 1987)]," the court in Doane was wrong to
rely on Hall to support its adoption of the "degree of
permanence" test. Id. Justice Prosser explained:
This court cannot adopt the "permanence" test from the
Seventh Circuit decision without overruling Hall and
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numerous other cases, and also effectively ruling that
[the event organizer] did not "occupy" the property.
If a "permanence" test disqualifies Sundog, it would
disqualify [the event organizer] as well because [the
event organizer] did not own or lease the property——it
occupied the property. [The event organizer's] few
extra hours of occupancy at the shooting range cannot
realistically be viewed as being more "permanent" than
Sundog's occupancy.
Id., ¶106.
¶85 The "degree of permanence" test created in Doane rests
on shaky ground. Not only does the test deviate from prior case
law, it violates the ordinary-meaning canon of construction,
which instructs that "[w]ords are to be understood in their
ordinary, everyday meanings . . . ." Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 69
(2012). The ordinary meaning of "occupies" implies no temporal
element, much less one approaching permanence, to any degree.
¶86 Applying the plain meaning of "occupies," without
reading into the statute a "degree of permanence" test invented
by the court of appeals with no foundation in the statutory
text, the Roberts dissent reasoned that by using the property to
provide a recreational activity, Sundog occupied the property
within the meaning of Wis. Stat. § 895.52(1)(d)(1). Roberts,
367 Wis. 2d 386, ¶135 (R. G. Bradley, J., dissenting). To hold
otherwise "creates a distinction between Sundog on the one hand,
and [the event organizer] and the [property owners] on the
other, that is not only unsupported by the broad legislative
purpose of the recreational immunity statute but wholly absent
from the statutory definition of the term 'owner.'" Id., ¶138.
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B. Application
¶87 The Westmas court decides in a single conclusory
paragraph that Creekside failed to establish either element of
the new test the Roberts' court concocted, which requires a
would-be occupier to both establish "a degree of permanence" on
the property and have an effect on whether the property "would
be open to the public for recreational purposes." Majority
op., ¶48. First, the court concludes that Creekside's presence
on the property never exceeded "mere use." Id. Rather, "[i]n
the few days it was on the property, Creekside moved from
temporary location to temporary location for the limited purpose
of trimming trees as needed to satisfy its contract with
Conference Point." Id. The court holds that by establishing
only temporary sites of use on the same property over the course
of consecutive days Creekside was not an occupier. Under the
court's logic, we are left to wonder what "degree of permanence"
even means. Would the court require Creekside employees to
spend the night on the property to establish "a degree of
permanence"? Would it require Creekside's operations to remain
fixed in one place over the course of its contract with
Conference Point? How would the court rule if Creekside spent
365 days at Conference Point but each day worked on a different
tree? We cannot be sure. And neither can the court without
creating new law that deviates further from the plain meaning of
Wis. Stat. §§ 895.52(1)(d)(1) and 895.52(2)(b) in the court's
ongoing quest to further limit the statutory scope of
recreational immunity.
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¶88 Second, the court determines "Creekside was 'not
responsible for opening up the land to the public,' and indeed
did not have authority to do so." Id. This conclusory
assertion derives from another infirmity of the Roberts
analysis, which forecloses immunity for anyone other than the
titled owner once the land has been opened to the public. Of
course, the actual text of the statute does no such thing.
¶89 Applying the plain meaning interpretation of
"occupies" to mean "actually use," it is logically impossible to
conclude that Creekside is anything other than an occupier of
Conference Point's property. Creekside actually used Conference
Point's property by establishing and maintaining its presence on
the property during the execution of its contract with
Conference Point, up until the date of the accident. It brought
its tree-trimming supplies and set up the area along the lake
shore path and elsewhere on the property to perform its
services. It even went so far as to alert pedestrian traffic
along the path that it was using the property to perform its
services.
¶90 The court here, as in Roberts, relies heavily on
legislative history to conjure a legislative "purpose" in
support its denial of immunity for Creekside. However, the
court's interpretive approach, as in Roberts, violates
fundamental principles of statutory interpretation. First,
"[t]he words of a governing text are of paramount concern, and
what they convey, in their context, is what the text means."
Scalia & Garner, supra ¶87, at 56. If language is ambiguous,
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consideration of a statute's purpose may be helpful but "the
purpose must be derived from the text, not from extrinsic
sources such as legislative history or an assumption about the
legal drafter's desires." Id. Importantly, the purpose of a
statute "cannot be used to contradict text or to supplement it."
Id. at 57. Here, the court uses legislative history to identify
a statutory purpose that both contradicts and supplements the
text.
¶91 Nevertheless, even the proffered legislative purpose
of opening the land for public use cannot save the court's
erroneous holding. The court cites Linville v. City of
Janesville, 184 Wis. 2d 705, 719, 516 N.W.2d 427 (1994), for
declining to extend immunity to entities that negligently
perform services unrelated to the land: "Extending immunity to
landowners for negligently performing in a capacity unrelated to
the land or to their employees whose employment activities have
nothing to do with the land will not contribute to a landowner's
decision to open the land for public use." Majority op., ¶51.
Here, Creekside's activity was incontrovertibly related to the
land, as the trees to be trimmed are of course physically rooted
in the land and tree trimming enhances the property's
aesthetics, functionality, and indeed its usability for the
public. In this regard, Creekside's services were akin to the
groomers of snowmobile trails in Leu, which the court of appeals
concluded were occupiers under the statute, in part because
their work "makes it possible to maintain and expand Wisconsin's
system of snowmobile trails." 280 Wis. 2d 765, ¶15. Similarly,
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Creekside's tree-grooming services made it possible for the
public to traverse the shoreline path on Conference Point's
property.
¶92 Refusing to recognize immunity for Creekside may force
companies like it to weigh the risk of liability to the public
when performing their tasks, dissuading them from working at
these sites. This could create a domino effect of discouraging
landowners, like Conference Point, from opening their land to
the public because of the unsafe conditions arising from
neglected maintenance the landowner is unwilling, unable, or
unqualified to perform.
¶93 The court's interpretation of "occupies" in Roberts
reads substantial language into the text of Wis. Stat.
§§ 895.52(1)(d)(1) and (2)(b). Neither "degree of permanence"
nor "responsible for opening up the land to the public" appear
anywhere in the applicable statute, much less as prerequisites
for immunity to attach. Regrettably, the court perpetuates its
erroneous constriction of recreational immunity in this case.
IV. CONCLUSION
¶94 The text of Wis. Stat. § 895.52 is plain. Here,
Creekside was an agent subject to Conference Point's control of
its activity. Additionally, the statutory definition of
"owners" includes a person who "occupies" property, and
Creekside occupied the property on which Jane Westmas tragically
died while engaging in a recreational activity. By virtue of
its status as Conference Point's agent or as an entity that
"occupie[d]" Conference Point's property, Creekside is immune
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from liability. The legislature chose to immunize entities like
Creekside, a result the court may not like, but the only outcome
the law allows.
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