Lang v. Lions Club of Cudahy Wis., Inc.

• Decision Date: 23 October 2018
• Docket Number: Appeal No. 2017AP2510
• Citation: 2018 WI App 69,384 Wis.2d 520,920 N.W.2d 329
• Parties: Antoinette LANG and Jim Lang, Plaintiffs-Appellants, Wisconsin State Department of Health & Human Services, Involuntary Plaintiff, v. LIONS CLUB OF CUDAHY WISCONSIN, INC., Ace American Insurance Company, Rhythm Method, LLC and Administrator of Health Care Financing Administration, Defendants, Fryed Audio, LLC and State Farm Fire & Casualty Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

384 Wis.2d 520

920 N.W.2d 329

2018 WI App 69

Antoinette LANG and Jim Lang, Plaintiffs-Appellants,Wisconsin State Department of Health & Human Services, Involuntary Plaintiff,

v. LIONS CLUB OF CUDAHY WISCONSIN, INC., Ace American Insurance Company, Rhythm Method, LLC and Administrator of Health Care Financing Administration, Defendants,Fryed Audio, LLC and State Farm Fire & Casualty Company, Defendants-Respondents.^†

Appeal No. 2017AP2510

Court of Appeals of Wisconsin.

Oral Argument August 21, 2018

Filed October 23, 2018

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of and orally argued by Anthony J. Skemp of Martin Law Office, S.C. of Oak Creek.

On behalf of the defendants-respondents, the cause was submitted on the briefs of and orally argued by Neal C. Schellinger of Schellinger & Associates, LLC of Waukesha.

Before Kessler, P.J., Brennan and Brash, JJ.

BRENNAN, J.

¶ 1 Antoinette Lang and Jim Lang appeal an order of the trial court that granted the defendants’ summary judgment motion dismissing the Langs’ claim against Fryed Audio, LLC (Fryed) for negligence.

¶ 2 Antoinette Lang was injured when she tripped over electrical cords at an outdoor festival featuring food and music. The Langs sued Fryed, the LLC that provided the sound engineering services to a band at the event, for negligently placing the cords. The Langs sued other entities as well, including the Lions Club of Cudahy Wisconsin, Inc., the organization that obtained the permit for the use of the grounds and ran the event. The trial court granted the Lions Club’s motion for summary judgment on the grounds that the recreational immunity statute, WIS. STAT. § 895.52 (2015-16), barred the Langs’ negligence claim against that defendant.¹ The issue before us is whether Fryed is also entitled to immunity under the recreational immunity statute either as an "agent" of the Lions Club or as an "occupier."²

¶ 3 The trial court concluded that Fryed is entitled to immunity and granted summary judgment in its favor; in its oral ruling, the trial court cited to Carini v. ProHealth Care, Inc. , 2015 WI App 61, 364 Wis.2d 658, 869 N.W.2d 515, and Leu v. Price County Snowmobile Trails Ass’n, Inc. , 2005 WI App 81, 280 Wis.2d 765, 695 N.W.2d 889. In Carini , this court concluded that the immunity statute barred a similar negligence claim where the issue was a question of whether the allegedly negligent cord placement was related to the condition or maintenance of the land.³ In Leu , this court concluded that two nonprofit snowmobile groups were occupiers of the property such that they qualified as "owners" for purposes of WIS. STAT. § 895.52 immunity. Leu and Carini are distinguishable from the facts of this case and their holdings are not applicable. We are persuaded that the cases that govern the analysis are the Wisconsin Supreme Court’s recent interpretations of the statute in Westmas v. Creekside Tree Service, Inc. , 2018 WI 12, 379 Wis.2d 471, 907 N.W.2d 68, and Roberts v. T.H.E. Insurance Co. , 2016 WI 20, 367 Wis.2d 386, 879 N.W.2d 492, both decided after Carini and Leu .

¶ 4 Fryed argues that it is entitled to immunity as an "agent" of the Lions Club, the entity that ran the festival. Fryed also argues that it is entitled to immunity as an "occupier" of the property. Applying the tests set forth in Westmas and following our supreme court’s analysis in that case, we conclude that Fryed was not an "agent" for purposes of the recreational immunity statute because "an agent ... is subject to reasonably precise control by the principal." See id. , 379 Wis.2d 471, ¶ 36, 907 N.W.2d 68. This requires "reasonably precise specifications" from the principal to the "agent," and "absent ‘reasonably precise specifications’ ... there could be neither control nor the right to control the conduct that caused the injury." See id. , ¶¶ 34, 36 (quoting Showers Appraisals, LLC v. Musson Bros., Inc. , 2013 WI 79, ¶ 37, 350 Wis.2d 509, 835 N.W.2d 226 ). Here, as in Westmas , there is no evidence that Fryed "was following [the owner’s] specific directions" when it placed the cords in a pedestrian area—in this case, the cord placement is the "injury-causing conduct." See id. , ¶ 37. Because there is no evidence of the requisite "reasonably precise specifications," the owner in this case neither "controlled [n]or had the right to control the details" of Fryed’s work, and there is no dispute that the owner left the "means and methods" for conducting the setup, "including any safety precautions," to Fryed. See id. , ¶¶ 37, 38, 40 (citation omitted). The analysis set forth in Westmas precludes granting immunity to Fryed as an "agent."

¶ 5 We also conclude that Fryed was not an "occupier" of the property because "its presence on the property exhibited no ‘degree of permanence, as opposed to mere use.’ " Id. , ¶¶ 3, 46. In his capacity as principal of Fryed, Steven Fry was present on the property on Saturday, August 4, 2012, and Sunday, August 5, 2012, only to set up and take down sound equipment for performances. Focusing on the purpose of the statute, our supreme court has, as part of its analysis of a party’s eligibility for immunity, given consideration to whether granting immunity to a party as an "occupier" would "further the policy which underlies the statute." Id. , ¶ 47. In considering this, the court asks whether the "property was already open for public recreational purposes" and whether, regardless of a party’s immunity, the owner of the property is "protected and would therefore not be discouraged from opening its land to the public." Id. (quoting Roberts , 367 Wis.2d 386, ¶ 35, 879 N.W.2d 492 ). Fryed had no "effect on whether [the owner’s] property would be open to the public for recreational purposes," id. , ¶ 48, and had no role in opening the land to the public. Other entities opened the land, and the public would have had access to the land regardless of what contractor set up the sound equipment.

¶ 6 We therefore reverse the trial court’s order and remand for further proceedings.

BACKGROUND

¶ 7 As set forth in a previous opinion from this court on this case,⁴ the facts about the underlying injury are not disputed:

While she was at an outdoor festival, Antoinette Lang ... tripped and fell and was injured. In March 2014, Lang and her husband brought a negligence claim against several defendants and their insurers, alleging that the cause of the fall was the negligent placement of electrical cords in a pedestrian area. The defendants were the Lions Club, which had contracted with Milwaukee County to use Cudahy Park for the festival; Rhythm Method, the band who had used the electrical cords in question for their performance in the festival; and Fryed Audio, LLC, the contractor who set up sound and lighting for the performance.

¶ 8 At this point, Fryed is the sole remaining defendant. Although Fryed and the Langs characterize the roles of Fryed and the Lions Club differently according to their respective positions, there is no dispute regarding any material fact relevant to the determination of Fryed’s statutory immunity. Lang fell while walking to a table after getting some food. The handwritten accident report created by the Lions Club stated that it occurred in the "west end of [the] band tent" and that Lang "tripped over sound cords between [the band’s] sound board and the west stage[.]" Lions Club member Frank Miller has for ten years served as the festival’s co-chair and a main contact for vendors, signing contracts related to the festival and overseeing the set-up. Miller testified at deposition that each year on the Friday before the annual festival opens, he does "a walk-through to look at the grounds and see if there’s any issues" of concern to him. He testified that in some years, other Lions Club members accompany him on the pre-festival walk-through though he had no memory of whether that happened in 2012. Miller was asked whether, in 2012, the Lions Club had "any prohibitions or specific instructions, or directives as to how [those who set up the bands’ equipment] [a]re supposed to run their wires from that sound board in the middle of the tent to the stage at that time which they’re performing?" He answered, "No, we did not." He also explained that the Lions Club had no contract with the sound companies and contracted only with the bands.

¶ 9 Fryed’s principal, Steven Fry, was the person who set up the band’s sound equipment and laid the electrical cords on which Lang later tripped. He described the process of connecting the band’s equipment to the power stations at the festival. He was asked in his deposition whether the Lions Club "provide[d] any instruction" at the festival "in terms of how [he was] supposed to set up [the] sound equipment[.]" He answered, "[T]hey did not."

¶ 10 At the hearing on Fryed’s summary judgment motion, Fryed argued that the case was governed by Carini . The Langs argued that our supreme court’s holding in Roberts and this court’s opinion in Westmas , which was at that time pending review by our supreme court, precluded immunity for Fryed. In the alternative, they argued that a factual dispute on the issue of agency precluded summary judgment. The trial court agreed with Fryed and granted summary judgment.

DISCUSSION

I. Standard of review.

¶ 11 This case requires us to review the order for summary judgment that granted judgment on the Langs’ claims against Fryed. We review a grant or denial of summary judgment independently, applying the same standard employed by the trial court. Dufour v. Progressive Classic Ins. Co. , 2016 WI 59, ¶ 12, 370 Wis.2d 313, 881 N.W.2d 678. 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.

¶ 12 Here, the material facts are not disputed. Accordingly, w...