Problem
I. Employee versus Independent Contractor. Stephen Hemmerling was a driver for the Happy Cab Company. Hemmerling paid certain fixed expenses and followed various rules relating to the use of the cab, the hours that could be worked, and the solicitation of fares, among other things. Rates were set by the state. Happy Cab did not withhold taxes from Hemmerling's pay. While driving the cab, Hemmerling was injured in an accident and filed a claim for workers' compensation benefits in a state court. Such benefits are not available to independent contractors. On what basis might the court hold that Hemmerling was an employee? Explain. (See Agency Law.)
II. Agency Relationships. Jane Westmas was killedwhen a tree branch cut by Creekside Tree Service, Inc., fell on her. At the time, Jane was walking on a public path through the private property of Conference Point Center on the shore of Lake Geneva in Wisconsin. Conference Point had contracted with Creekside to trim and remove trees from its property, but the owner had no control of the details of Creekside's work. Jane's husband, John, and her son, Jason, filed a suit in a Wisconsin state court against Creekside, alleging that the service's negligence caused her death. Creekside contended that it was immune from the suit under a state statute providing that "no . . . agent of an owner is liable for the death of . . . a person engaging in a recreational activity on the owner's property." Could Creekside be held liable for Jane's death? Why or why not? [Westmas v. Creekside Tree Service, Inc., 2018 WI 12, 379 Wis.2d 471, 907 N.W.2d 68 (2018)] (See Agency Law.)