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Wisconsin high court rules landscaper can be liable in death

MADISON, Wis. — The Wisconsin Supreme Court has ruled a landscaping company can be held liable in the 2012 death of a teacher who was fatally struck by a falling tree branch while walking around a southeast Wisconsin lake.

Conference Point Center, a faith-based youth camp and conference center in Lake Geneva, hired Creekside Tree Service to trim and remove trees from the property, the Janesville Gazette reported. The tree service cut a branch that fell on 61-year-old Jane Westmas in May 2012, while she was walking along a shoreline path outside the center, according to court documents.

Westmas’ family sued Creekside and its insurer, Selective Insurance Company of South Carolina, for alleged negligence.

Creekside argued it was immune from liability because it was technically an owner of the property when it occupied the property at the time.

The case focuses on the state’s recreational immunity law, which states: “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 Supreme Court ruled that the tree service doesn’t qualify for immunity under the law because it wasn’t an agent of Conference Point or an occupier of the property.

Chief Justice Patience Roggensack wrote that Creekside doesn’t qualify as an agent of Conference Point because the center had no control over Creekside’s means or methods. Creekside’s presence also didn’t exceed “mere use” or approach “a degree of permanence” in order to be considered an occupier of the property, he wrote.

“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,” the decision stated.

Justices Rebecca Bradley and Daniel Kelly dissented, arguing that the interpretation in the majority opinion gave a narrow scope of immunity that’s not reflected in the law.

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