In Lang v. Lions Club of Cudahy Wisconsin, Inc. (2020 WI 25), the Wisconsin Supreme Court held that recreational immunity applied to a sound engineer who set up cords that injured a woman at a music performance because the sound engineer was an agent of the festival owner.

Facts

 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 Fry, positioned the cord prior to the event. Freyed Audio, LLC was the lead member of Rhythm Method, LLC, with whom the Lions Club contracted to provide music for the festival.

A separate case ruled the Lion’s Club was entitled to recreational immunity as “owner” of the event under Wis. Stat. § 895.52(2). The question before the Wisconsin Supreme Court was whether Fryed Audio was also entitled to immunity as an “agent” of the Lions Club.

Decision

The court held that Fryed was an agent of the Lion’s Club entitled to recreational immunity because the Lion’s Club had the right to control Fryed’s conduct in setting up the music equipment that allegedly caused Lang’s injury.

The court rejected Lang’s argument that the Lion’s Club did not have the right to control Fryed’s conduct because the Lion’s Club lacked expertise to perform and control such a complicated task. The injury-causing conduct in this case – placing the cords – was not so complicated that the Lion’s Club could not have controlled the conduct. Furthermore, placing the cords did not require the Lion’s Club to provide Fryed with “reasonably precise specifications” in order for Fryed to be determined an agent. (The court noted that this case differed from Westmas v. Creekside Tree Service, Inc. (2018), where reasonably precise specifications would have been required for the tree-trimming service to be considered an agent of the immune owner because the injury-causing conduct was too complicated for the property owner to have control over.)

Since Fryed was the subagent of Rhythm Method, LLC, which was acting as the Lion’s Club’s agent in setting up the music for the festival, the court determined Fryed was an agent entitled to recreational immunity.

Chief Justice Roggensack wrote the lead opinion for the court, joined by Justice Ziegler.

Concurring Opinion

In a concurring opinion, Justice R. Bradley (joined by Justice Kelly) agreed that Fryed was an agent entitled to recreational immunity but disagreed with the court’s reasoning related to Westmas. The concurring opinion would have overturned Westmas and simply relied on whether the Lion’s Club had a right to control Fryed’s actions, instead of on whether the Lion’s Club had the expertise to do so. The concurring opinion argued that a principal’s lack of expertise or precise specifications, as the court said in its Westmas analysis, does not equate to lack of control. Therefore, the court should have eliminated the “reasonably precise specifications” and expertise analysis and found Fryed an agent simply based on the Lion’s Club’s ability to control Fryed’s actions.

Dissents

In a dissent, Justice Dallet (joined by Justice Walsh Bradley) would have determined that Fryed was not an agent of the Lion’s Club entitled to recreational immunity. According to the dissent, the contract between the Lion’s Club and Rhythm Method did not establish the Lion’s Club’s right to control Rhythm Method and its subagent Fryed; instead, the contract left control of setting up the music equipment up to Rhythm Method.

The dissent argued it does not matter if the task is simple or complex. Since the Lion’s Club did not give “reasonably precise specifications” to Rhythm Method, Westmas dictates that Fryed was not an agent of the Lion’s Club. The dissent also would not have provided immunity to Fryed because it was a subagent, not an agent, of the Lion’s Club.

Overall, the dissent argued that, under the court’s decision, recreational immunity would be too broad, applying to anyone associated with the event.

In a second dissent, Justice Hagedorn would also have determined Fryed was not an agent of the Lion’s Club entitled to recreational immunity. The dissent would have determined that Fryed was acting as an independent contractor of the Lion’s Club, not in a master-servant relationship where the agent’s physical conduct is controlled by the principal. As an independent contractor, Fryed was not acting within the scope of agency when it allegedly negligently placed the cords causing injury. The Lion’s Club did not have the right to control how Fryed set up the music equipment. Therefore, Fryed was not an agent entitled to recreational immunity.