Oct. 24, 2018 – Antoinette Lang, who tripped over electrical cords at a music festival, can proceed with her negligence claims against the sound company, now that a state appeals court has reversed a circuit court decision in favor of the defendants.
The Milwaukee County Circuit Court had granted summary judgment in favor of Fryed Audio LLC, the sound engineering company that placed the cords, as well as the Lions Club of Cudahy Wisconsin Inc., which obtained the permit for the music fest. The circuit court ruled that recreational immunity barred the claims against both defendants.
But in Lang v. Lions Club of Cudahy Wisconsin Inc., 2017AP2510 (Oct. 23, 2018), a three-judge panel for the District I Court of Appeals reversed, concluding that Fryed Audio was not entitled to recreational immunity from Lang’s negligence claim.
At a music fest at a Milwaukee County’s Cudahy Park, Lang was heading back to a table with food when she tripped on cords in a pedestrian area, between the band’s sound board and the music stage. The band was Rhythm Method, a classic rock band.
Fryed Audio argued that recreational immunity barred Lang’s lawsuit against them under the statute that protects property owners from liability when they open their lands for recreational use because it was an “agent” of Lions Club, which was protected.
That is, Lions Club obtained a permit to occupy the county’s land for purposes of the music festival, and Frye Audio argued that the Lions Club “retained the right to control the details of the injury-causing conduct.” Lang’s injuries were not disputed on appeal.
However, the appeals court ruled that Fryed Audio was not considered an “agent” under the recreational immunity statute, Wis. Stat. section 895.52, applying the analysis employed by the Wisconsin Supreme Court in Westmas v. Creekside Tree Service, Inc., 2018 WI 12, 379 Wis. 2d 471, 907 N.W.2d 68. In that case, the court reviewed whether a tree-cutting company had recreational immunity as an “agent.” The court looked at whether the landowner exerted enough control over the injury-causing conduct.
“Applying that test here, it is apparent that Fryed was not following the Lions Club’s ‘specific directions’ when placing the cords, which is the injury-causing conduct in this case,” wrote Appeals Court Judge Kitty Brennan.
The record did not indicate that Lions Club gave instructions on setting up the band equipment, including the sound cords that connected the stage to the sound board.
“There is not any evidence in the record that would support a contrary conclusion,” Brennan wrote. “We are bound by the framework set forth in Westmas.”
Finally, Frye Audio argued that recreational immunity applied because it was an “occupier” of the property within the meaning of that term in the recreational immunity statute. For purposes of recreational immunity, an “owner” of property includes anyone who legally “occupies” property. But the appeals court said Frye Audio was not an occupier, since it was the Lions Club, not Frye Audio, who opened up the land.