R&R Insurance Blog

Wisconsin contractors - budget for pedestrian safety when taking jobs on recreational land.

The courts are not ruling in your favor.

From the standpoint of a business, there is no better take away from the recently decided John Y. Westmas v. Selective Insurance Company of South Carolina. At stake for Wisconsin contractors was their inclusion in Wisconsin Statute § 895.52, known as the recreational immunity statute. By the most recent reasoning of the court, it would be difficult to imagine a scenario when an independent contractor could expect inclusion in this immunity law from the 1980s.

The Situation:

As I’ve written before on this incident, a little caution tape or an extra man on the job could have prevented a tragic pedestrian fatality in 2012.

Circling the 26-mile shoreline of Lake Geneva is a recreational trail open to the public but maintained by the private property owners. One such landowner is the faith-based youth camp Conference Point Center, who in 2012 contracted Creekside Tree Service to trim trees along the highly trafficked shore path.

On the first day of the job, Creekside Tree Service employed two safety “spotters” along the path to divert pedestrian traffic, and two “cutters” to perform the task at hand. On the second day the crew was reduced to three, with only one spotter along the trail.

It was on that second day when Jane Westmas and her adult son were walking along the path. A heavy 17-foot tree branch was cut from 30-feet in the air, falling and killing Jane. While there was an orange road cone on the trail, the pedestrian view was also obscured by the overhang of a nearby building and the spotter was not in their area of the trail.

Creekside admitted another spotter might have prevented the tragedy, but argued that they were immune from prosecution by Wisconsin Statute § 895.52.

The [Failed] Immunity Argument:

Arguing the recreational immunity statute worked in favor of Creekside Tree Service in the first of its three court rulings. Creekside won on the Circuit Court level, and for a moment appeared to be immune.

Wisconsin Statute § 895.52 was passed by the Wisconsin legislature in the 1980’s to encourage private property owners to open their land to the public for recreational purposes. This law grants “owners”, “agents” of the owners, and “occupiers” of the land immunity to injuries and fatalities that occur on the private land open to the public.

Creekside Tree Service argued they were both “agents” of Conference Point Center and “occupiers” of the land engaged in its maintenance for the public good. By a plain reading of the statute, it might appear they are immune from prosecution.

A case used to justify this line of reasoning is the 2007 Held v. Ackerville Snowmobile Club, Inc. In Held, a Snowmobile Club left trail grooming equipment along a path they were maintaining. A snowmobile rider collided with the equipment during a night ride sustaining injuries. The court sided with the snowmobile club finding them the “occupier” of the land and immune under statute § 895.52.

While they won at the Circuit Court level, the appellate court reversed this decision. Creekside Tree Service’s line of reasoning was thrown out, mostly due to more recent rulings by the Wisconsin Supreme Court.

The appeals court followed a 2016 case Roberts v. T.H.E. Ins. Co ruled on by the Wisconsin Supreme Court. In Roberts, a hot air balloon company was providing rides at a charity event in Beaver Dam (private land open to the public). Due to high winds, one of the tethered lines snapped sending the balloon into a line of spectators seriously injuring one. The Wisconsin Supreme Court ruled against the hot air balloon company declaring they were not “occupiers” of the land since there had to be a “degree of permanence” as oppose to mere use of the land.

Seeing as Creekside’s case is somewhere in-between Held and Roberts the Wisconsin Supreme Court took it up. On February 7, 2018 the WI Supreme Court gave clarity on the issue.

Neither An Agent Nor An Occupier:

The Wisconsin Supreme Court agrees with the appeals court – Creekside Tree Service is neither an agent nor an occupier of the land and thus has no immunity under Wisconsin Statute § 895.52.

Complicating this case is that the words “agent” and “occupier” are not defined in the immunity statute. The Supreme Court reasons it must rely on prior case law to define the terms. They agree that “an agent may be either an employee or an independent contractor” but that “[an] important factor in determining whether a person is an agent is the extent of control retained over the details of the work”. In this case, “Conference Point did not control or attempt to control the physical conduct of Creekside [Tree Service’s] employees” and is thus is not an agent.

In other words, because the owners of the property did not control how Creekside trimmed the trees which resulted in the injury, they are not considered “agents” and thus not included in the recreational immunity statute.

The Wisconsin Supreme Court also ruled Creekside was not an “occupier” of the land. For this the court relied heavily on the aforementioned Roberts v. T.H.E. Ins. Co. Recreational immunity requires “a degree of permanence, as opposed to the mere use of the property in question.”

The Dissenting Opinion Is Insight for Contractors:

In the majority decision for the Wisconsin Supreme Court, it was made clear they did not believe this ruling would “contribute to a landowner’s decision to open the land for public use” and thus is within the spirit of the immunity statute.

The dissenting opinion has a completely different take. The two dissenting Wisconsin Supreme Court justices speak almost from a contractor’s point of view. They reason contractors would become more hesitant to take on jobs in land open to the public:

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.

The dissent did not understand how it’s practical for contractor to be immune after the majority’s decision. Would the court “require Creekside employees to spend the night on the property to establish ‘a degree of permanence’?”  The dissent reasoned the “plain meaning” of the word “occupies” made it “logically impossible” to reason Creekside was not an “occupier” of the land and would fall under immunity.

 Safety First:

The tragic fatality is over. The court’s ruling has been made. What’s important is the future.

This case represented a legal grey area in-between the aforementioned Held and Roberts cases. What can be reasoned from this decision is that, when in doubt, contractors should not expect immunity when performing maintenance on private land open to the public. With courts relying heavily on prior case law to determine rulings like this, it can only be more difficult to claim immunity under the recreation statue in future cases after this judgement.

For a contractor, it’s best tragedies like this are avoided from the beginning. Imagine if Creekside had draped caution tape along the trail or had a second spotter on the day of the fatality. When taking jobs on recreational land budget for the safety of passing pedestrians.