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Appeals court verdict opens lawsuit possibilities in tree branch death

MADISON--The estate of a Darien woman killed by a falling tree limb at a Williams Bay interfaith retreat can sue the tree pruning ...

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Appeals court verdict opens lawsuit possibilities in tree branch death
Kevin Murphy, Special to the Gazette

MADISON--The estate of a Darien woman killed by a falling tree limb at a Williams Bay interfaith retreat can sue the tree pruning contractor, a state appeals court ruled Wednesday.

The District 2 Court of Appeals overturned Walworth County Judge Phillip Koss, who had dismissed the lawsuit John Westmas brought against Creekside Tree Service of Crystal Lake, Illinois. Creekside had been hired by Conference Point Center to trim trees along its Geneva Lake property in May 2012.

Jane Westmas, 61, and her son Jason were walking on the Lakeshore Path when a 17-foot limb cut by a Creekside worker fell 30 feet from a 50-foot oak tree. Jane died of massive internal injuries to the chest, according a coroner's report.

John Westmas filed suit for his wife's wrongful death and seeking compensation for the emotional distress suffered by his son.
Creekside's insurer, Selective Insurance of South Carolina, sued Conference Point. Koss dismissed the insurance company's suit and then dismissed the Westmas suit against Creekside, finding that the company enjoyed recreational immunity that protects a property owner or agent of the owner from liability for any death caused by a person engaging in recreational activity on the property.

Westmas appealed, contending that Creekside Tree Service was not entitled to recreational immunity because it did not meet the definition of an agent of Conference Point or occupy the property as defined by statute.

Creekside Tree Service claimed it is entitled to recreational immunity because it was an agent and an occupier of Conference Point's property at the time it cut the branch that killed Jane.

The appeals court disagreed. It concluded Creekside Tree Service was not an agent of Conference Point and did not control the property. Instead, it was merely using the property temporarily.

Conference Point had deferred all control of the tree trimming operations to Creekside Tree Service, “particularly the actions that lead to Jane's death,” according to the opinion.

“Granting immunity to third parties that are not responsible for opening up the land to the public is unsupported by our prior case law.In addition, it would create an absurd result with no logical stopping point that does nothing to further the legislative purpose of the statute, “ according to the opinion.

A call to Westmas' attorney was not returned before deadline.

Creekside's attorney, Patrick Brennen, was unavailable Wednesday for immediate comment on the opinion.

Unless appealed to the state Supreme Court, the case returns to Walworth County, where the parties dispute who was responsible for safety measures taken during the tree trimming.