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.
The Wisconsin Supreme Court recently reaffirmed the State’s commitment to the concept of caveat emptor, or buyer beware, as it relates to transfers of property, thus declining to adopt new law in the State of Wisconsin.
In Brennan v. Charter Manufacturing Co., the Court found that former lessors of a property cannot indefinitely be found liable for creating dangerous conditions that cause injury to subsequent owners. The Court held that a lessor’s duty to subsequent possessors who purchase real estate “as-is” ends when the lessor surrenders possession of the property.
The appealing party admonished the Court to abandon caveat emptor as an archaic proposition, and urged the Court to adopt a policy that would allow a lessor to be liable to subsequent owners.
In its decision, the Court declined to do so, noting that commercial buyers account for unknown risks when they negotiate the terms of their transactions. The Court also noted that adopting the law as the appellant suggested could upend real estate transactions as we know them today – thereby resulting in unending liability for former possessors of a property, who would be held captive essentially as insurers of that property in perpetuity. The Court rejected that result, thus guaranteeing that caveat emptor remains the standard for such transactions for the immediate future.