1st District Court of Appeals Decision: Lang v. Lions Club of Cudahy Wisconsin, Inc. (Recreational Immunity)

In Lang v. Lions Club of Cudahy Wisconsin, Inc. (2017AP2510), the Court of Appeals District 1 held that recreational immunity did not apply to a sound engineer who set up cords that injured a woman at a music performance.

At an event run by the Lions Club, plaintiff Antoinette Lang tripped over an electrical cord placed by sound engineer Fryed Audio, LLC. Fryed’s principal and a member of the band using the cords, Steve Fryed, positioned the cord prior to the event.

While a separate case ruled the Lions Club was entitled to recreational immunity, the court said Fryed was not an “agent” or “occupier” immune under the statute (Wis. Stat. § 895.52). The appeals court relied on two recent Supreme Court cases, Westmas v. Creekside and Roberts v. T.H.E. Insurance Co., deeming contractors are not property owners entitled to recreational immunity. Fryed was not an “agent” because he was not following specific instructions from the Lions Club. Furthermore, Fryed was not an “occupier” because his presence on the festival property was not permanent and his potential immunity would not affect whether the property would be open to the public in keeping with the intent of Wis. Stat. § 895.52.

Judge Brash wrote a dissent in the case arguing that Fryed actually was an “agent” because the Lions Club had ample opportunity to offer specific cord set-up instructions when it performed a safety check on the grounds. If both the Lions Club and the band are entitled to recreational immunity, Brash argued Fryed as an agent of the two entities should also be immune from liability.