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Statutory Interpretation – Recreational Immunity

By: Derek Hawkins//November 13, 2018//

Statutory Interpretation – Recreational Immunity

By: Derek Hawkins//November 13, 2018//

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WI Court of Appeals – District I

Case Name: Antoinette Lang, et al. v. Lions Club of Cudahy Wisconsin, Inc., et al.

Case No.: 2017AP2510

Officials: Kessler, P.J., Brennan and Brash, JJ.

Focus: Statutory Interpretation – Recreational Immunity

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.

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.  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.”

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. 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.

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. 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.”

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.” (quoting Roberts, 367 Wis. 2d 386, ¶35). 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.

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

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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