                                                                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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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
                                                                             No.       20151039



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.


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    ¶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.




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                                                                      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).


                                     11
                                                                  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
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       ¶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


                                               18
                                                                             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:


                                             19
                                                                             No.     20151039


    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

                                              20
                                                                          No.    20151039



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


                                          21
                                                                             No.    20151039



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


                                              22
                                                                              No.        20151039


       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


                                              23
                                                                  No.   20151039



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).


                                     24
                                                                          No.    20151039



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


                                          25
                                                                    No.   20151039



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.




                                     26
                                                                   No.   2015AP1039.rgb&dk


     ¶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.

                                            1
                                                               No.   2015AP1039.rgb&dk


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


                                          2
                                                                        No.   2015AP1039.rgb&dk


"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

                                                3
                                                                          No.    2015AP1039.rgb&dk


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——

                                                  4
                                                                        No.       2015AP1039.rgb&dk


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").


                                                   5
                                                                       No.     2015AP1039.rgb&dk


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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