Late last year, the Wisconsin Court of Appeals issued a decision that was good news for plaintiffs but bad news for insurers in Westmas v. Selective Ins. Co., 2016 WI App 92, 372 Wis. 2d 683, 889 N.W.2d 178. The case involved a death caused by a tree limb that fell on plaintiff’s wife who was walking on a shoreline path. The limb had been trimmed by an independent contractor hired by the property owner. The circuit court granted summary judgment to the tree-trimming contractor based on Wisconsin’s recreational immunity statute. The Court of Appeals reversed in a 3-0 decision and held that the tree-trimmer was not an agent of the owner nor was the tree-trimmer an occupier of the land. The Wisconsin Supreme Court recently decided to review the Court of Appeals decision.
The Supreme Court’s review suggests it may disagree with the Court of Appeals’ holding on the meaning of “agent of an owner” as used in the recreational immunity statute, Wis. Stat. § 895.52. The parties are currently briefing the appeal and the Court will likely hold argument this fall. Cade Law Group will follow the progress of the case and its impact on premises liability claims in this state.
Last week, the Wisconsin Supreme Court accepted several new cases for review, among them: Tetra Tech v. Wisconsin Dep’t of Rev. This case is interesting, not because of the underlying dispute, but because the Court asked the parties to prepare arguments related to a topic that has been trending in the Court of late: whether the practice of deferring to agency interpretations of statutes comports with the judicial power vested in the Court by the Wisconsin Constitution.
This issue was raised recently in the Court’s opinion in Operton v. Labor and Industry Review Comm’n, where the LIRC argued that its interpretation of a law was entitled to “great weight” deference, even though the commission had no previous experience interpreting that law. Although the majority opinion declined to opine as to that issue, three of the seven justices filed a concurring opinion asking the Court to end its longstanding practice of deferring to an agency’s interpretation of a law, unless clearly erroneous. In the coming weeks, look for updates to this story, as I will be delving further into this issue and will provide additional analysis.