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

• Decision Date: 05 March 2020
• Docket Number: No. 2017AP2510,2017AP2510
• Parties: Antoinette LANG and Jim Lang, Plaintiffs-Appellants, Wisconsin State Dept. 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, State Farm Fire & Casualty Company, Defendant-Respondent, Fryed Audio, LLC, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

390 Wis.2d 627

939 N.W.2d 582

2020 WI 25

Antoinette LANG and Jim Lang, Plaintiffs-Appellants,

Wisconsin State Dept. 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,State Farm Fire & Casualty Company, Defendant-Respondent,Fryed Audio, LLC, Defendant-Respondent-Petitioner.

No. 2017AP2510

Supreme Court of Wisconsin.

Oral Argument: November 4, 2019

Opinion Filed: March 5, 2020

Motion for Reconsideration filed March 25, 2020

For the defendant-respondent-petitioner, there were briefs filed by Neal C. Schellinger and Schellinger & Associates, LLC, Waukesha. There was an oral argument by Neal C. Schellinger.

For the plaintiffs-appellants, there was a brief filed by Anthony J. Skemp and Martin Law Office, S.C., Oak Creek. There was an oral argument by Anthony J. Skemp.

An amicus curiae brief was filed on behalf of Wisconsin Association for Justice by William C. Gleisner, III, Brookfield.

An amicus curiae brief was filed on behalf of Wisconsin Defense Counsel by Brian D. Anderson and Everson, Whitney, Everson & Brehm, S.C., Green Bay; Monte Weiss and Weiss Law Office, Mequon; and Timothy Johnson and Crivello Carlson, Eau Claire.

PATIENCE DRAKE ROGGENSACK, C.J.

¶1 We review a decision of the court of appeals¹ reversing an order of the circuit court² that granted summary judgment in favor of Fryed Audio, LLC on the ground that it was entitled to recreational immunity pursuant to Wis. Stat. § 895.52(2) (2017–18).³ Fryed Audio is a member of Rhythm Method, LLC, with whom the Lions Club of Cudahy Wisconsin, Inc. contracted to provide music for its 2012 festival at a Milwaukee County park. The sole member of Fryed Audio, Steven Fry, laid Rhythm Method's electronic and electric cords on the floor of the music tent for the Lions Club event. Antoinette Lang allegedly tripped on a cord, which led to this lawsuit.

¶2 Because the Lions Club is a statutory owner pursuant to Wis. Stat. § 895.52(1)(d)1., Fryed Audio moved for summary judgment citing § 895.52(2), which provides that agents of owners have immunity from claims by those who enter land of a statutory owner to engage in recreational activity. The circuit court concluded that Fryed Audio was an agent of the Lions Club and therefore entitled to recreational immunity. The court of appeals reversed, reasoning that the Lions Club lacked the right to control Fryed Audio.

¶3 We conclude that there are no issues of material fact in regard to the Lions Club's right to control Fryed Audio in regard to laying the cords for Rhythm Method's amplified sound and that Fryed Audio was an agent of the Lions Club who lawfully acted through its subagent, Steven Fry. Because the Lions Club was a statutory owner, Fryed Audio, as its agent, is entitled immunity pursuant to Wis. Stat. § 895.52(2). Accordingly, we reverse the court of appeals.

I. BACKGROUND

¶4 The Lions Club is a nonprofit entity. Annually, it has organized a fundraising event called the Sweet Applewood Festival. The Festival has been a Lions Club event for fourteen years.

¶5 The Festival has operated similarly year-to-year and has involved many of the same participants. The event has used the same park, located in Milwaukee County. The tents, including the music tent, have been in approximately the same location. Furthermore, the inside of the music tent has been set up similarly. As a co-chair of the 2012 event, Frank Miller, a Lions Club member, testified: "We've used the same location for several years, so siting of the tents and other equipment is pretty straightforward. Everyone just knows where things go."

¶6 The Lions Club has controlled the grounds and determined how the Festival has run. Among other things, it controls how and where tents are placed; the selection of vendors; and ensures necessary services such as security, first responders, and garbage disposal are provided.

¶7 The Lions Club decided where the band was located and it set up the stage. Furthermore, the Lions Club was responsible for general electrical work. To quote Miller's deposition:

The Lions Club has an electrical service that is run into the park with our own breakers and disconnects. We run wiring out of that service to both tents to supply power for lighting, food, and for the bands to connect to.

¶8 In 2012, Miller applied for a special event permit on behalf of the Lions Club. The event description stated, "COMMUNITY FESTIVAL FEATURING FOOD, BEVERAGES, MUSIC, CARNIVAL RIDES,

RAFFLES. FESTIVAL IS RUN AS THE MAJOR ANNUAL FUNDRAISER FOR THE CUDAHY LIONS CLUB."

¶9 The application noted that the event would include "amplified sound," and the instructions on the application explained that the Lions Club would need to provide a copy of a Noise Variance Permit. Furthermore, the instructions stated:

Amplified sound must be directed away from residences. Amplified sound must comply with Section 47.022, Noise, of Chapter 47 of the Milwaukee County Ordinances. It is the responsibility of the Event Organizer to provide electrical requirements to support the event.

¶10 The Lions Club contracted with Rhythm Method for music. The contract stated that "sound and lights" would be provided by Rhythm Method. It also stated, "[p]rofessional covered stage and power by purchaser." Additionally, the contract provided that each member of Rhythm Method was individually obligated to adhere to its terms and conditions and that the leader of Rhythm Method was an agent of the Lions Club:

The Performer(s) are engaged severally on the terms and conditions of this agreement. The leader represents that the Performer(s) already designated have agreed to be bound by said terms and conditions. Each performer, not yet chosen, shall also be bound by said terms and conditions upon acceptance.

....

The leader shall, as the agent of the Purchaser, enforce disciplinary measures for just cause and carry out instructions as to selections and manner of performance.

(Emphasis added.)

¶11 Rhythm Method, LLC had five people as members plus Fryed Audio, another LLC. Steven Fry was the sole member of Fryed Audio. The contract with the Lions Club was signed, "Steven Fry," on behalf of Rhythm Method, LLC.

¶12 Mrs. Lang allegedly tripped on a cord run by Steven Fry between a sound board and the stage. She and her husband sued several parties for negligence. At this point, the only defendant remaining is Fryed Audio.

¶13 During a deposition, Steven Fry explained that he had not received specific instructions from the Lions Club on how to lay electric and electronic cords. Miller said he had not provided "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." However, the Lions Club had the right to control how the electronic and electric cords were placed, as is apparent in the terms of the contract and from the control the Lions Club exercised in Festivals subsequent to 2012.⁴

¶14 In years past, before a Festival began, a Lions Club official performed a walkthrough looking for, among other things, trip hazards. Miller testified he did not specifically recall performing a walkthrough in 2012; however, he testified that it had been his practice each year. His deposition provided a detailed description of the typical walkthrough:

I'm looking for issues with the pavement. The festival is held on a basketball court that needs to be resurfaced. I'm looking for any obvious holes or problems with the pavement, making sure we have the cooking areas where we have grills and fr[y]ers, making sure that area is fenced off so the public can't wander through there. We have electrical service to feed lighting and music in the tents that we're responsible for and make sure that that wiring, the electrical wiring, is safe, and the electrical cabinets are secured and the public can't get access to those cabinets.

¶15 Steven Fry explained that a band's sound engineer and setting up a band's sound equipment were two different functions:

[A] sound engineer is the guy who sits and turns knobs and everything else. You can be an engineer and not touch a piece of gear.... I can walk in and be an engineer and it's not my stuff.

Q So you can walk into a gig that provides the equipment and you would still be considered an engineer?

A Yes sir.

¶16 Notably, Rhythm Method had a prior relationship with the Lions Club. It had played at the festival in past years, including 2011. In the past, when the Lions Club determined that cords needed to be covered, it provided the mats to do that. It also placed orange cones to alert frequenters to a potential hazard.

¶17 The circuit court concluded that Fryed Audio was an agent of the Lions Club; however, the court of appeals reversed the circuit court because it concluded that the absence of reasonably precise specifications regarding the placement of cords negated the possibility of an agency relationship. Lang v. Lions Club of Cudahy Wis., Inc., 2018 WI App 69, ¶4, 384 Wis. 2d 520, 920 N.W.2d 329 (2018). We granted Fryed Audio's petition for review and now reverse.

II. DISCUSSION

A. Standard of Review

¶18 "We review a grant or denial of summary judgment independently, applying the same standards employed by the circuit court and court of appeals, while benefitting from their discussions." Westmas v. Creekside Tree Serv., Inc., 2018 WI 12, ¶16, 379 Wis. 2d 471, 907 N.W.2d 68 (citing 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." Westmas, 379 Wis. 2d 471, ¶16, 907 N.W.2d 68 (citing Wis. Stat. § 802.08(2) (2013–14); Wadzinski v. Auto-Owners Ins. Co., 2012...