Antoinette Lang v. Lions Club of Cudahy Wisconsin, Inc.

2020 WI 25
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP2510
COMPLETE TITLE: Antoinette Lang and Jim Lang,
Plaintiffs-Appellants,
Wisconsin State Department 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.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 384 Wis. 2d 520,920 N.W.2d 329
PDC No:2018 WI App 69 - Published
OPINION FILED: March 5, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 4, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: William Sosnay
JUSTICES:
ROGGENSACK, C.J., announced the mandate of the Court, and delivered
an opinion, in which ZIEGLER, J., joined. REBECCA GRASSL BRADLEY,
J., filed a concurring opinion, in which KELLY, J., joined.
DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY,
J., joined. HAGEDORN, J., filed a dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
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.
2
2020 WI 25
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2510
(L.C. No. 2014CV3866
STATE OF WISCONSIN : IN SUPREME COURT
Antoinette Lang and Jim Lang,
Plaintiffs-Appellants,
Wisconsin State Dept. of Health & Human
Services,
Involuntary-Plaintiff,
v. FILED
Lions Club of Cudahy Wisconsin, Inc., Ace
American Insurance Company, Rhythm Method, LLC MAR 5, 2020
and Administrator of Health Care Financing
Administration, Sheila T. Reiff
Clerk of Supreme Court
Defendants,
State Farm Fire & Casualty Company,
Defendant-Respondent,
Fryed Audio, LLC,
Defendant-Respondent-Petitioner.
ROGGENSACK, C.J., announced the mandate of the Court, and delivered
an opinion, in which ZIEGLER, J., joined. REBECCA GRASSL BRADLEY,
J., filed a concurring opinion, in which KELLY, J., joined.
DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY,
J., joined. HAGEDORN, J., filed a dissenting opinion.
REVIEW of a decision of the Court of Appeals. Reversed.
No. 2017AP2510
¶1 PATIENCE DRAKE ROGGENSACK, C.J. 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.
Lang v. Lions Club of Cudahy Wis., Inc., 2018 WI App 69,
1
384 Wis. 2d 520, 920 N.W.2d 329 (2018).
2 The Honorable William Sosnay of Milwaukee County presided.
All subsequent references to the Wisconsin Statutes are to
3
the 2017-18 version unless otherwise indicated.
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No. 2017AP2510
¶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.
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No. 2017AP2510
¶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:
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No. 2017AP2510
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
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No. 2017AP2510
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
4 In subsequent years, the Lions Club asserted more control
over Rhythm Method, requiring that their electronic and electric
cords be suspended from the ceiling. Fryed Audio cites this
control to contend that it was subject to the Lions Club's control
in 2012. Generally, courts hesitate to rely on subsequent remedial
measures. Wisconsin Stat. § 904.07 provides:
When, after an event, measures are taken which, if taken
previously, would have made the event less likely to
occur, evidence of the subsequent measures is not
admissible to prove negligence or culpable conduct in
connection with the event. This section does not require
the exclusion of evidence of subsequent measures when
offered for another purpose, such as proving ownership,
control, or feasibility of precautionary measures, if
controverted, or impeachment or proving a violation of
s. 101.11.
In this particular case, Fryed Audio sought to use evidence
of subsequent remedial measures as evidence of "control," a
permissible use under § 904.07.
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No. 2017AP2510
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
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No. 2017AP2510
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 (citing Wis. Stat. § 802.08(2) (2013–
14); Wadzinski v. Auto-Owners Ins. Co., 2012 WI 75, ¶10, 342
Wis. 2d 311, 818 N.W.2d 819). Here, the material facts are not in
dispute. The outcome turns on statutory interpretation and
application and whether the undisputed facts establish an agency
relationship.
¶19 "Statutory interpretation and application are questions
of law that we review independently." Westmas, 379 Wis. 2d 471,
¶17 (citing Highland Manor Assoc. v. Bast, 2003 WI 152, ¶8, 268
Wis. 2d 1, 672 N.W.2d 709). Notably, the statute at issue provides
immunity to an "agent of an owner."
¶20 At times, the existence of an agency relationship is a
question of fact because the determination turns on "the
understanding between the alleged principal and agent." Soczka v.
Rechner, 73 Wis. 2d 157, 163, 242 N.W.2d 910 (1976) (citing Bigley
v. Brandau, 57 Wis. 2d 198, 203 N.W.2d 735 (1973)). However,
whether undisputed facts establish an agency relationship
therefore entitling the agent to recreational immunity under Wis.
Stat. § 895.52(2) is a question of law that we review
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No. 2017AP2510
independently. Westmas, 379 Wis. 2d 471, ¶17 (citing Highland
Manor Ass'n, 268 Wis. 2d 1, ¶8).
B. Statutory Interpretation
1. General Principles
¶21 "The purpose of statutory interpretation is to determine
what the statute means so that it may be properly applied."
Westmas, 379 Wis. 2d 471, ¶18 (citing State ex rel. Kalal v.
Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681
N.W.2d 110). We look first to the language of the statute.
Westmas, 379 Wis. 2d 471, ¶18 (citing Kalal, 271 Wis. 2d 633,
¶45). "If the words chosen for the statute exhibit a 'plain, clear
statutory meaning,' without ambiguity, the statute is applied
according to the plain meaning of the statutory terms." Westmas,
379 Wis. 2d 471, ¶18 (quoting State v. Grunke, 2008 WI 82, ¶22,
311 Wis. 2d 439, 752 N.W.2d 769). In determining the plain meaning
of a statute, a court should consider the context of the language.
Westmas, 379 Wis. 2d 471, ¶19 (quoting Kalal, 271 Wis. 2d 633,
¶46). A statute's purpose, as expressed in its text, can inform
its plain meaning. Westmas, 379 Wis. 2d 471, ¶19 (citing Kalal,
271 Wis. 2d 633, ¶48). Additionally, "legislative history is
sometimes consulted to confirm or verify a plain-meaning
interpretation." Kalal, 271 Wis. 2d 633, ¶51 (citing Seider v.
O'Connell, 2000 WI 76, ¶¶51–52, 236 Wis. 2d 211, 612 N.W.2d 659).
2. Wisconsin Stat. § 895.52
¶22 Wisconsin Stat. § 895.52(2) states:
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No. 2017AP2510
[N]o owner and no officer, employee or agent of an owner
owes to any person who enters the owner's property to
engage in a recreational activity:
1. A duty to keep the property safe for
recreational activities.
2. A duty to inspect the property, except as
provided under s. 23.115(2).
3. A duty to give warning of an unsafe condition,
use or activity on the property.
The statute provides a broad definition of both "owner" and
"recreational activity." An owner can be a "nonprofit
organization, that owns, leases or occupies property."
§ 895.52(1)(d)1. Recreational activity means:
any outdoor activity undertaken for the purpose of
exercise, relaxation or pleasure, including practice or
instruction in any such activity. "Recreational
activity" includes hunting, fishing, trapping, camping,
picnicking, exploring caves, nature study, bicycling,
horseback riding, bird-watching, motorcycling,
operating an all-terrain vehicle or utility terrain
vehicle, operating a vehicle, as defined in s. 340.01
(74), on a road designated under s. 23.115, recreational
aviation, ballooning, hang gliding, hiking, tobogganing,
sledding, sleigh riding, snowmobiling, skiing, skating,
water sports, sight-seeing, rock-climbing, cutting or
removing wood, climbing observation towers, animal
training, harvesting the products of nature,
participating in an agricultural tourism activity, sport
shooting and any other outdoor sport, game or
educational activity. "Recreational activity" does not
include any organized team sport activity sponsored by
the owner of the property on which the activity takes
place.
§ 895.52(1)(g).
¶23 "In 1983, the Wisconsin legislature enacted Wis. Stat.
§ 895.52, which dramatically expanded liability protection for
landowners who open their private property for public recreational
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No. 2017AP2510
use." Westmas, 379 Wis. 2d 471, ¶21. The legislation included a
purpose statement:
The legislature intends by this act to limit the
liability of property owners toward others who use their
property for recreational activities under circumstances
in which the owner does not derive more than a minimal
pecuniary benefit.
1983 Wis. Act 418, § 1. "As our cases have explained, 'the impetus
for this law is the continual shrinkage of the public's access to
recreational land in the ever more populated modern world.'"
Westmas, 379 Wis. 2d 471, ¶22 (quoting Roberts v. T.H.E. Ins. Co.,
2016 WI 20, ¶28, 367 Wis. 2d 386, 879 N.W.2d 492). In keeping
with the goal of the legislature to protect property owners, courts
have interpreted the statute broadly in their favor. Westmas, 379
Wis. 2d 471, ¶22.
¶24 The parties do not dispute that the Lions Club was an
owner under the statutory definition, nor do they dispute that the
festival was a recreational activity in which Mrs. Lang was
participating when she fell. Their dispute centers on whether
Fryed Audio was an "agent of an owner," i.e., an agent of the Lions
Club.
a. Agency
¶25 People and businesses sometimes act through others. As
a general principle, a person or business acting on behalf of
another, and subject to control of another, is an agent and the
person or business they are acting on behalf of, a principal.
Agency law provides a series of rules that apply to such
relationships. Among these rules are provisions that govern when
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No. 2017AP2510
a principal is liable for the actions of its agent. Ronald C.
Wyse, A Framework of Analysis for the Law of Agency, 40 Mont. L.
Rev. 31, 32 (1979) ("Agency analysis . . . is not concerned with
whether there is any liability, but to whom the liability runs.").
"The foundational principle of agency law is that the principal,
who has chosen to conduct her business through an agent, must bear
the foreseeable consequences created by that choice." Paula J.
Dalley, A Theory of Agency Law, 72 U. Pitt. L. Rev. 495, 497
(2011). This principle arises from the benefit that the principal
derives from acting through the agent whom the principal controls.
Id.
¶26 Wisconsin Stat. § 895.52 does not define agent.
Westmas, 379 Wis. 2d 471, ¶26. Furthermore, we have had few
occasions to address the concept of agency within the confines of
recreational immunity. When we have, however, we have given the
word "agent" its plain meaning as a legal concept. Westmas, 379
Wis. 2d 471, ¶¶30-33. Our conclusion that agent should be given
its meaning in the law is supported by the legislature's directive:
In the construction of Wisconsin laws the words and
phrases which follow shall be construed as indicated
unless such construction would produce a result
inconsistent with the manifest intent of the
legislature:
(1) GENERAL RULE. All words and phrases shall be
construed according to common and approved usage; but
technical words and phrases and others that have a
peculiar meaning in the law shall be construed according
to such meaning.
Wis. Stat. § 990.01.
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No. 2017AP2510
¶27 Furthermore, the drafting file of 1983 Wisconsin Act
418, which created the recreational immunity statute, includes a
letter that confirms that agent, as that term is employed in Wis.
Stat. § 895.52, has a particular meaning in the law. The letter
discusses § 895.52(5), which states that a nonprofit organization
may be liable, despite the immunity provided by § 895.52(2), for
the "malicious acts" of its agents. The letter explains:
The intent is that a nonprofit organization is to be
liable only for its malicious acts. It would be liable
for the malicious acts of its agents only when they can
be attributed to it by the regular law of agency. The
agents of a nonprofit organization are liable only for
their own malicious acts.
Letter to Ruth Reinl, Office of Senator David Helbach, from John
R. Zillmer, Attorney, at 3 (Oct. 11, 1983) (Drafting File, 1983
Wis. Act 418) (on file with the David T. Prosser, Jr. State Law
Library). The reference to "the regular law of agency" confirms
that it was expected that agent would be given its meaning in the
law.
¶28 We have cited the Restatement Second's definition of
agency with approval: "'[A]gency' [is] 'the fiduciary relation
which results from the manifestation of consent by one person to
another that the other shall act on his behalf and subject to his
control, and consent by the other so to act.'" Westmas, 379
Wis. 2d 471, ¶30 (quoting Restatement (Second) of Agency § 1(1)
(1958)).
¶29 We have concluded that an agency relationship "results
from the manifestation of consent by one person to another that
the other shall act on his behalf and subject to his control, and
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No. 2017AP2510
consent by the other so to act." Hoeft v. Friedel, 70
Wis. 2d 1022, 1034, 235 N.W.2d 918 (1975); see also, Wyse, supra,
at 38 (explaining an "assent, benefit, and control test"). An
agent may be either an employee or an independent contractor;
however, when "an independent contractor has no fiduciary
obligations to and is not subject to control by the principal, no
agency relationship has formed." Westmas, 379 Wis. 2d 471, ¶31
(quoting Romero v. West Bend Mut. Ins. Co., 2016 WI App 59, ¶40,
371 Wis. 2d 478, 885 N.W.2d 591). In the present dispute, the
parties do not contest that the Lions Club assented to Rhythm
Method acting on its behalf or the benefit of Rhythm Method's music
for the Lions Club's festival. Instead, they focus on whether the
Lions Club had the right to control Fryed Audio, a member of the
independent contractor, Rhythm Method.
¶30 The principal's right to control the injury causing
conduct is crucial to both the existence of an agency relationship
and the scope of the agency. It does not matter whether the
conduct that caused the injury is complex or simple. What matters
in forming an agency relationship is that the principal has the
right to control that conduct. Hoeft, 70 Wis. 2d at 1034. A
principal is liable for the conduct of an agent when the injury
causing conduct is "of the same general nature as authorized, or
incidental to the conduct authorized." Restatement (Second) of
Agency § 229(1). Stated otherwise, the principal is liable only
if the principal had the "right to control" the injury causing
conduct. Westmas, 379 Wis. 2d 471, ¶42. A principal does not
have to exercise that right; however, without the right to control
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No. 2017AP2510
the injury causing conduct, an agency cannot exist relative to
that conduct. Id., ¶38.
¶31 In Westmas, we interpreted the word agent within the
context of recreational immunity. There, a property owner
contracted with a tree-trimming service. Id., ¶39. The contract
provided "[n]o means or methods" controlling how the trees were to
be trimmed or whether safety precautions were to be employed. Id.
We emphasized that the property owner had "no background or
knowledge on how to perform tree-trimming." Id., ¶42.
Furthermore, the property owner did not know that the tree-trimming
service was working at the time its conduct caused an injury. Id.,
¶40. We quoted the court of appeals, which stated:
From the decision regarding whether or not to use a rope
to bring down the branch that killed [the plaintiff], to
where safety cones would be placed, to how "spotters"
would be utilized, the record is clear that [the tree-
trimming service, not the property owner] maintained
control over the details of its work, particularly the
actions that led to [the plaintiff's] death.
Id., ¶41.
¶32 In concluding that an agency relationship did not exist,
we noted the lack of "reasonably precise specifications" for tasks
that required knowledge about trimming trees and in regard to
safety precautions that were needed for tree trimming. Id., ¶¶34,
42, 43. The tree-trimming service argued that an emphasis on the
lack of reasonably precise specifications would "deny agency
status, and therefore immunity, to all independent contractors of
a landowner who lacks employees with the expertise to control and
supervise the details of the contractor's work." Id., ¶43. We
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No. 2017AP2510
rejected this argument, noting it was unpersuasive because the
question of agency is "fact-specific" and "fact-bound." Id., ¶¶36,
43. To summarize, in Westmas the property owner merely had the
right to expect a result as opposed to the right to control the
injury causing conduct, i.e., the means by which tree-trimming was
accomplished. 2A C.J.S. Agency § 18 (2019). Therefore, although
there was a contract between the tree trimmer and the property
owner, no agency relationship existed because the property owner
did not have the right to control the tree trimmer's conduct that
caused the injury.
¶33 In the present case, the court of appeals split because
of a difference of opinion regarding the proper reading of Westmas.
The majority quoted Westmas for the assertion that "'absent
reasonably precise specifications,' there can be 'neither control
nor the right to control the conduct that cause[s] the injury.'"
Lang, 384 Wis. 2d 520, ¶25 (quoting Westmas, 379 Wis. 2d 471, ¶34).
The dissent responded:
I believe the agency standard set forth in Westmas
involves an encompassing analysis of the level of
control the principal exerted or had the right to exert
over the injury-causing conduct of the proposed agent,
which includes a determination of whether there was
"reasonable precise control" of the conduct as evidenced
by "reasonably precise specifications" provided by the
principal. The determination of agency is a "fact-
specific" inquiry. Therefore, in my view, the Westmas
court's statement regarding its focus on "specific
directions" provided by the property owner was not a
separate inquiry, but rather a reflection of the fact
set of that case.
Lang, 384 Wis. 2d 520, ¶41 (Brash, J., dissenting) (internal
citations omitted).
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No. 2017AP2510
¶34 We agree with Judge Brash's reading of Westmas. Westmas
emphasized that its inquiry was fact-specific, and its conclusion
rested on several facts: (1) the written agreement did not
contemplate control of the methods used to trim trees or safety
precautions required of the tree trimmers who had caused the
injury; rather, the contract provided a "vision and concept" and
the property owner did not supplement the writing with more
specific instructions, Westmas, 379 Wis. 2d 471, ¶42; (2) the
property owner had "no background or knowledge on how to perform
tree-trimming," id.; and (3) the property owner was not aware that
the tree-trimming service was working on the day the injury
occurred, id., ¶40. Together, these facts demonstrated that the
property owner hired the tree-trimming service to achieve a result
but did not have the right to control the injury causing conduct.
Stated otherwise, the property owner did not have the right to
control the process used to remove the tree limb that caused the
injury at issue.
¶35 The right to control the conduct that caused the injury
is critical to evaluating whether an agency exists, and if so, the
scope of the agency. However, whether the injury-causing task is
simple or requires some degree of specific knowledge by the
contracting party affects the weight we give to the absence or
presence of "reasonably precise specifications." For example, in
Geise v. Montgomery Ward, Inc., 111 Wis. 2d 392, 331 N.W.2d 585
(1983), a father told his son to cut the lawn, and the son
negligently injured a minor child while doing as his father asked.
We concluded:
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No. 2017AP2510
[The son] was acting as [his father's] servant at the
time of the accident. This finding does not rest on the
domestic relationship between [father and son], or the
fact that the activity can be labeled a "domestic chore."
The finding of a master-servant relationship rests on
the fact that [the father] directed [his son] to perform
the task, he had the right to control [his son's]
performance of the task and, [the
father] . . . benefited from its performance.
Id. at 416–17. We did not discuss or emphasize the precision, or
lack of precision, in the father's directions to his son. Doing
so would have made little sense given the simple nature of the
task. Instead, our emphasis was the father's right to control his
son's actions, actions that resulted in injury.
¶36 Fryed Audio's placement of electronic and electric cords
was a simple task that Fryed Audio had performed at the Lions
Club's festivals in years’ past, including the 2011 Festival.
However, both the written contract and the testimony of Miller
showed that the Lions Club had a right to control how the cords
were placed and whether mats were used to cover them.
¶37 The contract specified that Rhythm Methods and its
individual members, which included Fryed Audio, were "bound by the
terms and conditions" of the contract, thereby subjecting them to
the Lions Club's control.
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 contract, which bore the signature, "Steven Fry," on behalf of
Rhythm Method, also specified that the leader of Rhythm Methods
was "the agent" of the Lions Club:
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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.
Here, Fryed Audio was the leader of Rhythm Method for purposes of
setting up the sound system, and its sole member, Steven Fry, was
the leader in regard to contracting on behalf of Rhythm Method.
As an agent of the Lions Club, Fryed Audio was subject to the Lions
Club's right to control the injury causing conduct. Westmas, 379
Wis. 2d 471, ¶¶38, 42.
¶38 The testimony of Miller demonstrated the control that
the Lions Club had on placing of cords needed for the amplified
sound of Rhythm Method. He said that, since Mrs. Lang's fall in
2012 the Lions Club "require[s] sound companies to either cover
their wiring or run it over head from the soundboards to the
stages." Miller also testified as follows:
Q What, if anything do you do to protect your patrons
from tripping on these cords?
A We have matting on the cords and orange cones.
Q From whom do you get the matting?
A We own the matting.
Q When you say we, do you mean the Cudahy Lions Club?
A The Cudahy Lions Club owns the matting.
Q And the Cudahy Lions Club is specifically
responsible for putting the matting on the exposed
wires?
A Yes.
By contract, Fryed Audio, was individually bound to the contract's
terms. As the leader of Rhythm Method in placing the electronic
and electric cords, Fryed Audio was the "agent" of the Lions Club,
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thereby giving the Lions Club the right to control the conduct
that is alleged to have caused injury. Miller's testimony further
explained the relationship between Rhythm Method and the Lions
Club that gave the Lions Club the right to control the injury
causing conduct, i.e., the placing and covering cords that were
used to provide amplified sound. Fryed Audio was the agent of the
Lions Club, because the Lions Club had the right to control Fryed
Audio in many respects, including the placing of electronic and
electrical cords for the amplified sound of Rhythm Method.
b. Subagency
¶39 Sometimes, an agent hires people or businesses to
perform tasks on behalf of its principal. The hired people or
businesses are known as subagents. 3 Am. Jur. 2d Agency § 7 (2019)
("A subagent is a person employed by the agent to assist him or
her in conducting the principal's affairs."). As the Restatement
(Third) of Agency illustrates:
P Corporation retains A Corporation to manage its
investment portfolio. S, a senior vice-president of A
Corporation, is placed in charge of the management of P
Corporation's portfolio. S is P Corporation's subagent.
Restatement (Third) of Agency § 3.15 cmt. b, Ill. 2.
¶40 Furthermore, the Restatement (Third) of Agency provides:
(1) A subagent is a person appointed by an agent to
perform functions that the agent has consented to
perform on behalf of the agent's principal and for whose
conduct the appointing agent is responsible to
principal. The relationships between a subagent and the
appointing agent and between the subagent and the
appointing agent's principal are relationships of
agency. . . .
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(2) An agent may appoint a subagent only if the
agent has actual or apparent authority to do so.
Id., § 3.15; see also Booker v. United American Ins. Co., 700
So. 2d 1333, 1335 (Ala. 1997) (quoting 3 C.J.S. Agency § 265
(1973)) ("When one employs an agent who has either express or
implied authority to employ a subagent, the subagent will also be
the agent of the principal.").5
5 Though some of the most concise statements about subagency
are found in the Restatement (Third) of Agency, the concept is
decades old. See, e.g., Estes v. Crosby, 171 Wis. 73, 79, 175
N.W. 933 (1920) (discussing subagency in the context of a real
estate sale).
Indeed, one article, reprinted in the Reporter's Notes of the
Restatement (Second) of Agency, explains:
A principal as such is not, without special agreement,
liable to a subagent for compensation. That the subagent
is nevertheless his agent now seems clear beyond
doubt. . . . [F]or many years the courts have been
practically unanimous, whatever their dicta may say, in
making the principal responsible for the subagent's
conduct in all the ways in which the conduct of a
nonservant agent may make a principal liable. Thus the
courts now consistently hold that the principal is bound
by the knowledge of the subagent as if he had been
directly appointed, with only an occasional dictum to
the contrary. . . .
[I]f at any time the subagent is in fact under the
control of the principal, his conduct in obedience to
the principal's directions would make him a servant for
whose conduct the principal, now a master, would be
responsible.
Restatement (Second) of Agency § 5, Reporter's Notes (Appendix
vol. 3) (reprinting Warren A. Seavey, Subagents and Subservants,
68 Harv. L. Rev. 658, 665–66 (1955)).
The substance of the Restatement (Third) of Agency is similar
to the Restatement (Second) of Agency. Restatement (Third) of
Agency §3.15, Reporter's Notes at a.
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¶41 A subagent owes duties to both the principal and the
appointing agent. 2A C.J.S. Agency § 263 (2019) ("[A] subagent
who knows of the existence of the ultimate principal owes the
principal the same duties owed by the agent."). In particular,
"[a] subagent owes a duty of obedience to the principal as well as
to the appointing agent." Restatement (Third) of Agency § 3.15
cmt. d. However, "the principal's rights as to the subagent are
superior to rights of the appointing agent, even in the event of
conflict or disagreement between principal and appointing agent."
Id.
¶42 "An agent has actual authority to create a relationship
of subagency when the agent reasonably believes, based on a
manifestation from the principal, that the principal consents to
the appointment of a subagent." Id. cmt. c. "The agent's
authority to appoint a subagent may be inferred from those powers,
customs, and usages positively established, but if the agent has
no authority, express or implied, to make the person so appointed
the agent of the principal, that person is simply the agent of the
agent and not the principal." 3 Am. Jur. 2d Agency § 7; see also
McKinnon v. Vollmar, 75 Wis. 82, 89, 43 N.W. 800 (1889) (concluding
that an agent is assumed to have authority to appoint a subagent
to perform tasks that are "purely executive or ministerial, and
the principal is bound by the acts of such subagent.").
¶43 "When an agent is itself a corporation or other legal
person, its officers, employees, partners, or members who are
designated to work on the principal's account are subagents."
Restatement (Third) of Agency § 3.15 cmt. b. Stated otherwise,
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when a principal creates an agency relationship with a legal
person, such as an LLC, the principal implicitly consents to
someone other than the agent performing the work, i.e., a person
that exists only as a matter of law must act through others. An
LLC may act through its members, at least if it is member managed.
Wis. Stat. § 183.0301(1)(a) ("Each member is an agent of the
limited liability company, but not of the other members or any of
them, for the purpose of its business."). Therefore, a contract
that creates an agency relationship with an LLC necessarily implies
an agency relationship with at least some of its members, officers,
employees, or other agents.
¶44 When a subagent is an agent of the principal, a principal
is liable for the tortious actions of a subagent. To explain:
As between a principal and third parties, it is
immaterial that an action was taken by a subagent as
opposed to an agent directly appointed by the principal.
In this respect, subagency is governed by a principle of
transparency that looks from the subagent to the
principal and through the appointing agent. As to third
parties, an action taken by a subagent carries the legal
consequences for the principal that would follow were
the action instead taken by the appointing agent.
Hartford Fire Ins. Co. v. Clark, 727 F. Supp. 2d 765, 774 (D. Minn.
2010) (quoting Restatement (Third) of Agency § 3.15 cmt. d (2006)).
Stated otherwise, "[o]nce a third party is validly appointed a
subagent, the principal is liable for the subagent's actions."
3 Am. Jur. 2d Agency § 7.
3. Application
¶45 In the case-at-hand, Steven Fry laid the cables on which
Mrs. Lang is alleged to have tripped. He is the sole member of
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Fryed Audio, and Fryed Audio is a member of Rhythm Method, the
band that the Lions Club contracted with to perform at the 2012
festival. Fryed Audio, through the actions of Steven Fry,
connected the sound system that Rhythm Method needed to fulfill
its contract with the Lions Club.
¶46 Fryed Audio had no other contract with the Lions Club
because as a member of Rhythm Method, Fryed Audio was individually
a party in the contract between the Lions Club and Rhythm Method.
This is so because the written contract anticipated a contractual
relationship with each individual member of Rhythm Method. It
provided:
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.
(Emphasis added.)
¶47 The terms and conditions of the contract also provided
that:
The Performer(s) shall do everything necessary to
prosecute the work in an expeditious and workman-like
manner pursuant to the standards of the trade and all
work performed will be in accordance with generally
accepted trade practices. The Performer(s) shall
perform said work at the time and place herein specified
and will be punctual and will provide his own equipment
for said work unless otherwise specified herein.
. . . .
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.
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(Emphasis added.)
¶48 As we have explained above, an agency relationship is
driven by "the manifestation of consent by one person to another
that the other shall act on his behalf and subject to his control,
and consent by the other so to act." Westmas, 379 Wis. 2d 471,
¶30 (quoting Restatement (Second) of Agency § 1(1) (1958)); Hoeft,
70 Wis. 2d at 1034-35. There is no dispute that the Lions Club
requested Rhythm Method to act on its behalf to provide music for
its 2012 festival and that Rhythm Method consented so to act.
Furthermore, the Lions Club had broad contractual control.
¶49 First, the language of the contract gave the Lions Club
the right to control each member of Rhythm Method, as they are
severally bound to its terms and conditions. Second, it gave the
Lions Club the right to control Rhythm Method and its members for
everything from showing-up on time, to selecting music and its
manner of performance, to disciplining members of Rhythm Method
when its leader was instructed by the Lions Club that discipline
was requested.
¶50 As the dissent to the court of appeals opinion capably
explained:
According to the record, the band had a contract with
the Lions Club to play at the festival; Fryed did not
have a separate contract with either the Lions Club or
the band. Given these facts, Fryed's presence at the
festival was directly related to his role as a member of
the band, and the tasks he performed were linked to the
band's contract with the Lions Club.
Lang, 384 Wis. 2d 520, ¶35 (Brash, J., dissenting).
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¶51 Steven Fry laid cords on the floor of the music tent
that are alleged to be central to Mrs. Lang's injuries. Fryed
Audio, while severally bound by the Lions Club contract, could not
actually lay the cords upon which Mrs. Lang focuses. Fryed Audio,
an LLC, is a legal person that required an actual person to place
the cords for Rhythm Method's sound system. We conclude that
Steven Fry was Fryed Audio's agent for that task and therefore,
the subagent of the Lions Club for that task as well. Restatement
(Third) of Agency § 3.15 cmt. d; see also Brennan v. Healy, 157
Wis. 37, 46, 145 N.W.641 (1914) (reasoning that an instruction
that the agent had authority to do what was necessary "to effect
the main purpose of the agency, including the employment of a
subagent" was a proper instruction).
¶52 Although we can identify no express permission from the
Lions Club to create a subagency, as we have explained, "Express
authority to appoint subagents is not always necessary, as such
authority is usually to be implied when the agency obviously and
from its very nature is such as to make the employment of subagents
necessary and proper." Halls v. Rhode Island Ins. Co., 193
Wis. 16, 19, 213 N.W.649 (1927) (quoting 2 Corp. Jur. 688). Fryed
Audio had authority to create a subagency relationship with Steven
Fry because the Lions Club created an agency with a legal person
to perform tasks that required a natural person to perform. Id.
¶53 Furthermore, the Lions Club had legal responsibility,
stemming from its permit from Milwaukee County, to provide sound
in accordance with local ordinance. Neither Rhythm Method nor its
members had authority to provide amplified sound independent of
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No. 2017AP2510
its relationship with the Lions Club. As explained above, Rhythm
Method's contract with the Lions Club subjected it and its
individual members to the Lions Club's control.
¶54 Mrs. Lang's primary assertion is that Fryed Audio
provided sound engineering, which she characterizes as a
complicated task. She argues the Lions Club lacked expertise to
direct such a complicated task, as evidenced by the lack of
reasonably precise specifications. Her argument is unpersuasive
for at least three reasons.
¶55 First, the task that is alleged to have caused injury
was the laying of cords on the floor of the music tent. It was
not sound engineering, i.e., determining an electronic mix that
was used to produce the requisite sound. While the Lions Club may
have lacked sufficient knowledge to direct a sound engineer, it
had the ability to require safety measures that attended the laying
of cords on the music tent floor from the sound system to the
stage. Indeed, the Lions Club owned mats for the purpose of
covering cords, and it had the right to control their placement
according to Miller's testimony. Furthermore, the Lions Club had
the right to control placement of the electronic and electric cords
by requiring that they be suspended at the ceiling of the tent,
rather than running on the floor. In 2012, the Lions Club required
suspension of the cords in the food tent. The Lions Club also
possessed orange safety cones that it could have placed. These
facts show the Lions Club's right to control and are far removed
from the factual underpinnings in Westmas.
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¶56 In Westmas, we focused on the injury causing conduct,
i.e., the methods chosen for removal of the tree branch and for
the safety of persons on the ground. Westmas, 379 Wis. 2d 471,
¶40. We also focused on the agreement between Conference Point
and Creekside, which described only general concepts. Id., ¶ 39.
We concluded that "no facts were presented supportive of the
conclusion that Conference Point either controlled or had the right
to control the details of Creekside's work." Id., ¶38.
¶57 Second, and relatedly, the absence of reasonably precise
specifications cannot weigh significantly against the existence of
an agency relationship when the task that is alleged to have caused
the injury was the simple task of running cords from the sound
equipment to the stage. Geise, 111 Wis. 2d at 416-17. The Lions
Club believed that it had done a walk-through after the cords were
placed, as had been its habit. It did not direct anyone associated
with Rhythm Method to cover the cords, but it had the right to
control where the cords were placed and whether they would be
covered.
¶58 Third, the Lions Club and Rhythm Method had a prior
relationship, wherein Rhythm Method had provided music for other
Sweet Applewood Festivals. Rhythm Method had performed the task
of laying cords from the sound system to the stage in 2011.
Detailed instructions were not needed in 2012, but the right to
control where and how the cords were placed did exist, as Miller
explained.
III. CONCLUSION
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No. 2017AP2510
¶59 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).
¶60 Accordingly, we reverse the court of appeals.
By the Court.—The decision of the court of appeals is
reversed.
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¶61 REBECCA GRASSL BRADLEY, J. (concurring). I agree with
the lead opinion that Fryed Audio, LLC was an agent of Lions Club
of Cudahy Wisconsin, Inc. and therefore entitled to immunity under
Wisconsin's recreational immunity statute, Wis. Stat. § 895.52
(2015-16).1 I join the mandate reversing the court of appeals
decision. I write separately because I disagree with the lead
opinion's agency analysis, which derives from Westmas v. Creekside
Tree Serv., Inc., 2018 WI 12, ¶¶26-36, 379 Wis. 2d 471, 907
N.W.2d 68. For purposes of recreational immunity, the court
concluded in Westmas and the lead opinion concludes in this case
that a property owner relinquishes the right to control the
activities of third parties it hires to perform services on the
property unless the property owner: (1) expressly reserves that
right by detailing "reasonably precise specifications" the
contractor must follow; and (2) has the expertise the court deems
necessary to control the work. Because property owners have the
right to control what happens on their own property even in the
absence of a contractual reservation of rights or expertise in the
subject matter of the contract, I cannot join the lead opinion's
reasoning and I respectfully concur.
I
¶62 The parties agree on a number of undisputed facts:
 Lions Club is an "owner" within the meaning of the
recreational immunity statute.
1 All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
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 Antoinette Lang was engaged in recreational activity at
the time she tripped on the electrical cords.
 Lions Club is immune from liability under the recreational
immunity statute.
 Lions Club procured the tents, stages, and other festival
activities and decided where and when the bands performed.
 Lions Club was responsible for providing electricity at
the festival and it set up the power outlets used by the
band for its equipment. A Lions Club member, Francis
Miller, testified: "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[.]"
 As it had in the past, Lions Club hired Rhythm Method, LLC
to provide music for the festival.
 Fryed Audio is a member of Rhythm Method.
 Steven Fry is the sole member of Fryed Audio and he plugged
the band's electrical cords into the outlet provided by
Lions Club, running the cord along the ground to the band's
equipment.
 Miller testified that a Lions Club official does a
walkthrough before the festival begins to make sure there
are no trip hazards after the band and vendors have set up
their equipment.
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 Lang tripped on Rhythm Method's electrical cord laid by
Fry.2
¶63 Under these undisputed facts, the circuit court granted
Lions Club's motion for summary judgment, concluding it was
entitled to recreational immunity as an "owner" under Wis. Stat.
§ 895.52. Subsequently, the circuit court also granted Fryed
Audio's motion for summary judgment, applying the recreational
immunity statute to Fryed Audio as an agent of Lions Club. Lang
appealed the grant of summary judgment to Fryed Audio, and the
court of appeals reversed in a 2-1 decision. The majority of the
court of appeals applied its understanding of the "reasonably
precise specifications" test from Westmas, under which it
concluded that Fryed Audio was not an agent of Lions Club because
"there is no evidence that Fryed 'was following [the owner's]
specific directions' when it placed the cords[.]" Lang v. Lions
Club, 2018 WI App 69, ¶4, 384 Wis. 2d 520, 920 N.W.2d 329.
Interpreting Westmas' "reasonably precise specifications" test
differently, Judge William Brash dissented. Id., ¶¶33-46. Judge
Brash determined the "reasonably precise specifications"
requirement was "implicit in the [Lions] Club's extensive
involvement in the set up of the stage and power sources." Id.,
¶43.
There is also no dispute that the electrical cord was a
2
condition of the land under Carini v. ProHealth Care, Inc., 2015
WI App 61, ¶¶15-22, 364 Wis. 2d 658, 869 N.W.2d 515 (concluding
that alleged negligence relating to the temporary placement of an
electrical cord on the ground for a band performance at a picnic
was related to maintenance or a condition of the land).
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¶64 Westmas imported the "reasonably precise specifications"
agency test from our governmental immunity jurisprudence, under
which it erroneously concluded that the property owner in Westmas
had no right to control the tree-trimmer it hired. Westmas, 379
Wis. 2d 471, ¶34. As the Westmas dissent explained, a separate
statute governs governmental immunity, and its principles are
tailored to "the exercise of legislative, quasi-legislative,
judicial or quasi-judicial functions" which "have been
collectively interpreted to include any act that involves the
exercise of discretion" by the government. Westmas, 379
Wis. 2d 471, ¶66 (Rebecca Grassl Bradley and Kelly, JJ.,
dissenting) (quoted source omitted). In determining whether
governmental immunity extends to the government's agent, the
"reasonably precise specifications" test identifies the extent to
which the government exercised control over its agent's actions;
if the government's contractor followed the government's
"reasonably precise specifications" then governmental immunity
extends to the contractor. Id., ¶¶66-67 (Rebecca Grassl Bradley
and Kelly, JJ., dissenting). Because the "reasonably precise
specifications" test examines the level of governmental discretion
exercised by a government contractor, it should not have been used
to decide whether the tree-trimmer was an agent of the owner in a
recreational immunity case. Id., ¶¶66-67 (Rebecca Grassl Bradley
and Kelly, JJ., dissenting). I would overrule Westmas and apply
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the agency analysis set forth in the Westmas dissent. See id.,
¶¶58-77.3
II
¶65 Because Wis. Stat. § 895.52 does not define an "agent"
entitled to recreational immunity, well-established legal
principles governing agency control the analysis. Applied to the
undisputed facts in this case, those principles establish Fryed
Audio as an agent of Lions Club. This conclusion does not depend
on whether the allegedly injury-causing task was simple or required
expertise Lions Club lacked. Nor does it hinge on whether Lions
Club provided "reasonably precise specifications" to Fryed Audio.
An agency relationship exists when one person either controls or
has the right to control the activity of another. Id., ¶60.
Because Lions Club, the "owner," had the right to control Fryed
3 Justice Rebecca F. Dallet's dissent would "respect Westmas
as binding precedent." Justice Dallet dissent, ¶75 n.2. "While
adhering to precedent is an important doctrine for lending
stability to the law, not every decision deserves stare decisis
effect. After all, the purpose of stare decisis 'is to make us
say that what is false under proper analysis must nonetheless be
held to be true, all in the interest of stability.'" State v.
Grandberry, 2018 WI 29, ¶86, 380 Wis. 2d 541, 910 N.W.2d 214
(Rebecca Grassl Bradley, J., dissenting) (quoting Antonin Scalia,
A Matter of Interpretation: Federal Courts and the Law 138-40
(1997)). Adhering to Westmas perpetuates bad law and will result
in arbitrary applications of the recreational immunity statute.
"Reflexively cloaking every judicial opinion with the adornment of
stare decisis threatens the rule of law, particularly when applied
to interpretations wholly unsupported by the statute's text."
Manitowoc Co., Inc. v. Lanning, 2018 WI 6, ¶81 n.5, 379
Wis. 2d 189, 906 N.W.2d 130 (Rebecca Grassl Bradley, J.,
concurring). "The principle of stare decisis does not compel us
to adhere to erroneous precedents or refuse to correct our own
mistakes." State v. Outagamie Cty. Bd. of Adjustment, 2001 WI 78,
¶31, 244 Wis. 2d 613, 628 N.W.2d 376.
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Audio's placement of the electrical cords, Fryed Audio was an agent
of the owner and entitled to recreational immunity under § 895.52.
¶66 The same general agency principles discussed in the
Westmas dissent apply equally in this case. See Westmas, 379
Wis. 2d 471, ¶¶61-65 (Rebecca Grassl Bradley and Kelly, JJ.,
dissenting). Decades ago, this court adopted the definition for
agent set forth in the Restatement of Agency. In Meyers v.
Matthews, we determined an agent is "a person authorized by another
to act on his account and under his control." 270 Wis. 453, 467,
71 N.W.2d 368 (1955) (quoting Restatement (First) of Agency § 1
cmt. d (Am. Law Inst. 1933)). The court applied this definition
of agency consistently and frequently in a variety of factual
contexts, regardless of whether the right to control was actually
exercised by the owner. See, e.g., Schmidt v. Leary, 213 Wis. 587,
590, 252 N.W. 151 (1934) (agency established because "[t]he
plaintiff as the owner of the car had the right to control the
actions of the driver in driving it on the trip, whether she had
occasion to exercise it or not.").
¶67 The court reaches the correct conclusion: Fryed Audio
is an agent of Lions Club, entitling it to recreational immunity
under Wis. Stat. § 895.52. The record establishes that Lions Club
had the right to control the placement of electrical cords running
from the power outlet to the band equipment. Lions Club provided
the location of the stage as well as the power sources and was in
charge of electricity at the festival. The Lions Club member in
charge walked through the grounds performing a safety check to
identify and rectify potential tripping hazards. Lions Club often
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covered cords with mats to protect patrons from tripping. Lions
Club hired the band, and the language of their contract establishes
Lions Club's right to control where electrical cords were placed.
Nothing in the contract relinquished this right to control to the
band and nothing in the record evidences Lions Club otherwise
surrendered it.
¶68 The lead opinion complicates the right-to-control
analysis by considering the complexity or simplicity of the
allegedly injury-causing task, a new element the lead opinion
introduces in order to distinguish this case from Westmas. Whether
an owner under the recreational immunity statute has the "right to
control" another's act, however, has nothing to do with whether
the act is simple or complicated. The lead opinion further
distinguishes this case from Westmas by contrasting the experience
of Lions Club personnel in laying electrical cords with the
unfamiliarity of the owner in Westmas with tree-trimming.
Assessing the relative knowledge or expertise of the owner
regarding the task the owner hired its agent to perform likewise
has no bearing on whether the owner retained the right to control
the agent's execution of the work.
¶69 The owner in Westmas did not need expertise in tree-
trimming in order to control the tree-trimmer it hired to work on
its property; "[i]f Conference Point had endeavored to tell
Creekside how to trim trees, it is certainly possible, and maybe
even likely, that its lack of expertise would cause it to exercise
that control unwisely, or ineffectually. But lack of competency
does not negate the right to control, it just makes it imprudent."
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Westmas, 379 Wis. 2d 471, ¶73 (Rebecca Grassl Bradley and Kelly,
JJ., dissenting). Similarly, the lead opinion attempts to
distinguish this case from Westmas by contrasting the simplicity
of laying electrical cords with the complexity of trimming trees.
As explained by the dissent in Westmas, "the danger presented in
this case has nothing to do with expertise in tree-trimming. It
is the danger of a heavy object falling on someone walking
by. . . . This danger, and the means of avoiding it, are known to
quite literally everyone: Do not be where the branch falls." Id.
Preventing injury from falling branches is no more complicated
than preventing injury from electrical cords; regardless, the
degree of difficulty associated with each task has nothing to say
about a property owner's right to control their execution.
III
¶70 The new agency analysis the court adopted in Westmas
forced the lead opinion to attempt to distinguish Westmas from
this case. Instead, the court should abandon Westmas'
misapplication of the governmental immunity test and return to a
traditional agency analysis in recreational immunity cases. Under
well-established agency principles, Lions Club had the right to
control where Fryed Audio placed the electrical cord; therefore,
Fryed Audio was an agent of Lions Club and entitled to recreational
immunity.
¶71 The court correctly reverses the court of appeals and
holds that Fryed Audio was an agent of the Lions Club because the
undisputed facts demonstrate Lions Club had the right to control
the placement of the electrical cord on which Lang tripped.
8
No. 2017AP2510.rgb
Importing the "reasonably precise specifications" test from
governmental immunity cases muddied the right-to-control test in
recreational immunity cases. In attempting to distinguish Westmas
from this case, the lead opinion further complicates the analysis
by adding yet another ill-fitting consideration of the simplicity
or complexity of the allegedly injury-causing task. None of this
is necessary because well-established agency principles already
answer the question of whether an owner has the right to control
its agent, thereby entitling the agent to recreational immunity.
¶72 I join the mandate reversing the court of appeals because
I agree that Fryed Audio was an agent of Lions Club based on Lions
Club's right to control how Fryed Audio laid the electrical cord.
The circuit court correctly granted summary judgment to Fryed
Audio, which is immune from liability to Lang under Wis. Stat.
§ 895.52. I cannot join the lead opinion's reasoning because it
relies on the erroneous agency analysis of Westmas, while adding
additional considerations irrelevant to the determination of
whether an owner ceded the right to control its agent. The lead
opinion erodes private property rights by determining that an owner
loses its right to control the actions of a third party hired to
perform services on the property unless the owner dictates the
details of the work's execution and possesses the expertise to do
so. I respectfully concur.
¶73 I am authorized to state that Justice DANIEL KELLY joins
this concurrence.
9
No. 2017AP2510.rfd
¶74 REBECCA FRANK DALLET, J. (dissenting). Before this
court is a straightforward question: is Fryed Audio, LLC an
"agent" of the Lions Club of Cudahy Wisconsin, Inc., so as to be
entitled to recreational immunity under Wis. Stat. § 895.52? Fryed
Audio consists of one member, Steven Fry, who is also a member of
the band Rhythm Method, LLC. Rhythm Method contracted to play at
a festival hosted by the Lions Club and tasked Fryed Audio with
setting up its sound equipment. Fryed Audio never entered into a
separate contract with the Lions Club. Antoinette Lang allegedly
tripped on an electric cord laid by Fryed Audio, which led to this
lawsuit.1
¶75 The lead opinion concludes that Fryed Audio is an agent
of the Lions Club because the Lions Club had the "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." Lead
op., ¶3. Neither the lead opinion nor the concurrence provide a
coherent stopping point for recreational immunity, and both go
beyond the bounds of even a liberal statutory interpretation.
Applying the plain statutory language and our controlling
precedent, Westmas v. Creekside Tree Service, Inc., 2018 WI 12,
379 Wis. 2d 471, 907 N.W.2d 68, I conclude that Fryed Audio is not
1 As the lead opinion correctly notes, Lang sued several
parties and Fryed Audio is the only remaining defendant. Lead op.,
¶12.
1
No. 2017AP2510.rfd
entitled to recreational immunity under Wis. Stat. § 895.52.2
Accordingly, I respectfully dissent.
¶76 The legislature enacted the recreational immunity
statute, Wis. Stat. § 895.52, in light of "the continual shrinkage
of the public's access to recreational land in the ever more
populated modern world." Hall v. Turtle Lake Lions Club, 146
Wis. 2d 486, 489, 431 N.W.2d 696 (Ct. App. 1988). The stated
purpose of § 895.52 is to limit the liability of property owners,
and their officers, employees, and agents, to encourage them to
open their lands to the public for recreational activities. See
Roberts v. T.H.E. Ins. Co., 2016 WI 20, ¶28, 367 Wis. 2d 386, 879
N.W.2d 492. Although the legislature has indicated that the
recreational immunity statute should be construed liberally in
favor of property owners, see 1983 Wis. Act 418, § 1, this does
not mean that it affords limitless immunity. As this court has
explained:
The benefits of granting immunity, i.e., encouraging
landowners to open their lands to the public, comes from
immunizing people or municipalities in their capacities
as landowners . . . . Extending immunity to landowners
for negligently performing in a capacity unrelated to
the land . . . will not contribute to a landowner's
decision to open the land for public use.
Roberts, 367 Wis. 2d 386, ¶36 (quoting Linville v. City of
Janesville, 184 Wis. 2d 705, 719, 516 N.W.2d 427 (1994)).
2 The concurrence "would overrule Westmas and apply the agency
analysis set forth in the Westmas dissent." Concurrence, ¶64. I
respect Westmas as binding precedent and apply the test enunciated
by a majority of the court in that case just two years ago. Westmas
v. Creekside Tree Service, Inc., 2018 WI 12, 379 Wis. 2d 471, 907
N.W.2d 68.
2
No. 2017AP2510.rfd
¶77 This case involves a question of statutory
interpretation regarding a single word in Wis. Stat. § 895.52:
"agent." We recently interpreted the term "agent" in the
recreational immunity context in Westmas, 379 Wis. 2d 471. In
Westmas, the plaintiff was walking on a public path on property
owned by Conference Point when she was struck and killed by a tree
branch trimmed by Creekside Tree Service. Id., ¶13. Conference
Point had contracted with Creekside for pruning and removal of
trees overhanging the path. Id., ¶8. Creekside sought immunity
under the recreational immunity statute as an "agent" of Conference
Point, the statutory "owner." Id., ¶25. After examining agency
law in other contexts, most notably the governmental immunity
statute, the Westmas court concluded: "an agent is one who acts
on behalf of and is subject to reasonably precise control by the
principal for the tasks the person performs within the scope of
the agency. Whether an independent contractor is an agent is a
fact-specific inquiry." Id., ¶36 (emphasis added). Applying this
test to the undisputed facts, the Westmas court determined that
"Creekside was not an agent of Conference Point because Conference
Point had neither control of, nor the right to control, the details
of Creekside's work, including the acts that caused injury to [the
plaintiff]." Id., ¶3.
¶78 The lead opinion here purports to apply Westmas, but its
analysis misses the mark. In distinguishing Westmas, the lead
opinion asserts that the placement of cords is a "simple task" for
which no reasonably precise specifications need be given and that
"both the written contract and the testimony of [Frank] Miller
3
No. 2017AP2510.rfd
showed that the Lions Club had a right to control how the cords
were placed and whether mats were used to cover them." Lead op.,
¶36. The concurrence would overturn Westmas, but similarly finds,
in conclusory fashion, that the "language of [the] contract
establishes Lions Club's right to control . . . ." Concurrence,
¶67.
¶79 Neither the contract nor Miller's testimony, however,
support the conclusion of the lead opinion or the concurrence.
The contract does not say that the Lions Club had "the right to"
control the sound setup. Instead, it says the exact opposite:
"Sounds and lights by band." Miller's deposition further confirms
this understanding: "The sound companies who were providing
services to the bands weren't contracted by us, so we did not get
involved in how they set up their equipment." This evidence
demonstrates the contract left the "means and methods" for setting
up the band's sound to the band. This is no different from Westmas,
where the landowner left the "means and methods" of tree-trimming
to the tree trimmer as demonstrated by the lack of "reasonably
precise" specifications for how the work was to be performed. See
Westmas, 379 Wis. 2d 471, ¶¶36, 40.
¶80 The lead opinion attempts to circumvent Westmas's
requirement of reasonably precise specifications by contending
that laying cords is a "simple task" for which no reasonably
4
No. 2017AP2510.rfd
precise specifications are necessary.3 See lead op., ¶¶36, 57.
Such a rule is really no rule at all. Its amorphous nature gives
no clarity to courts and litigants moving forward and will
inevitably generate more litigation. By contrast, the rule set
forth in Westmas is clear: whether the principal provided
reasonably precise specifications for the task. In this case, the
rule set forth in Westmas dictates a result contrary to that
reached by a majority of this court because no specifications were
given for Fryed Audio's work, much less reasonably precise ones.
¶81 Simply saying that the Lions Club retained the right to
control everything at the festival, whether it exercised that
control or not, results in the extension of broad immunity not
contemplated by the recreational immunity statute. The lead
opinion and the concurrence, by phrasing their conclusions in this
expansive way, nullify the "fact-specific" and "fact-bound"
inquiry required by Westmas.
¶82 In addition to nullifying Westmas's fact-specific
inquiry, a majority of this court extends immunity outside of the
confines of Wis. Stat. § 895.52. The lead opinion creates immunity
not only for an owner and its officers, employees, and agents, as
provided by the statute, but also for "subagents," a formulation
3The lead opinion initially claims that "[i]t does not matter
whether the conduct that caused the injury is complex or simple,"
lead op., ¶30, but quickly reverses course by holding that "whether
the injury-causing task is simple or requires some degree of
specific knowledge . . . affects the weight we give to the absence
or presence of 'reasonably precise specifications,'" lead op.,
¶35. The lead opinion's undoing of Westmas's reasonably precise
specifications requirement relies entirely on its amorphous
simple-complex distinction.
5
No. 2017AP2510.rfd
not briefed or argued by any party. That is, not an agent of an
owner, but an agent of an agent of an owner. Under both the lead
opinion's formulation of "subagency" and the concurrence's
definition of "right to control," nearly every person associated
with the festival would be entitled to immunity. The Lions Club
has the broad "right to control" what goes on at its festival, so
everyone from the president of the Lions Club to a delivery driver
supplying cotton candy supplies to a food truck would likely enjoy
recreational immunity under the new standards offered by a majority
of this court.4
¶83 Further, the lead opinion's discussion of subagency is
premised on secondary sources and foreign cases. The precious
little support for the lead opinion's discussion on Wisconsin law
comes from century-old cases that do not perform any in-depth
exploration of the topic. See lead op., ¶40 n.5 (citing Estes v.
Crosby, 171 Wis. 73, 79, 175 N.W. 933 (1920)); id., ¶42 (citing
McKinnon v. Vollmar, 75 Wis. 82, 89, 43 N.W. 800 (1889)). But the
authority that the lead opinion cites makes one thing clear:
agency and subagency are two separate and distinct legal concepts.
And to the extent the law recognizes this distinct category of
subagent, it is not included in the discrete list of "officer,
employee or agent of an owner" provided in Wis. Stat.
§ 895.52(2)(b). We must presume that the legislature "'carefully
and precisely' chooses statutory language to express a desired
meaning." Indus. to Indus., Inc. v. Hillsman Modular Molding,
4 After all, the Lions Club could control what route the
delivery driver takes when driving on the property.
6
No. 2017AP2510.rfd
Inc., 2002 WI 51, ¶19 n.5, 252 Wis. 2d 544, 644 N.W.2d 236 (quoted
source omitted). Implementing this principle, we must conclude
that the legislature knew what it was doing when it included
"agents" but not "subagents" within its grant of recreational
immunity in § 895.52(2)(b).
¶84 Essentially, the majority of this court is telling
members of the public that when they enter any community festival,
they do so at their own risk. This result is far afield from the
immunity necessitated to achieve the stated purpose of the
recreational immunity statute——to encourage property owners to
open their lands to the public to engage in recreational
activities. Fryed Audio played no part in opening the land and
its liability here would not deter the Lions Club from hosting its
festival again, yet the majority of this court extends to it
immunity. This conclusion is contrary to the plain language of
Wis. Stat. § 895.52(2)(b) and a faithful application of our
precedent to the record in this case.
¶85 For the foregoing reasons, I respectfully dissent.
¶86 I am authorized to state that Justice ANN WALSH BRADLEY
joins this dissent.
7
No. 2017AP2510.bh
¶87 BRIAN HAGEDORN, J. (dissenting). An agency
relationship is not the same as a contract for services. The
outcome in this case takes us further from that principle. The
key question in agency law is whether the principal has the right
to control the agent's activities——that is, the means and manner
of the agent's work. Underlying this case, however, is an injury
arising from a particular type of activity: negligent physical
conduct. Our law has long distinguished between the physical
conduct of the two types of agents——independent contractors and
servants. An independent contractor is one whose physical conduct
is not subject to the control of another, while a servant's
physical conduct is.
¶88 Wisconsin's recreational immunity statute includes
within its grant of immunity "agents" of an owner. Wis. Stat.
§ 895.52(2) (2017-18).1 This of course doesn't apply to "agents"
not acting within the scope of their agency. That is, for immunity
to be granted to an agent, the physical conduct that caused the
injury must be within the scope of any agency relationship. By
definition, the physical conduct of independent contractors is not
within the scope of any independent contractor agency
relationship. This means the only kind of agency relationship
that includes within its scope negligent physical conduct that
causes injury is a master-servant relationship, where the physical
conduct of the servant is always under the control of and
attributable to the master. See Restatement (Second) of Agency
1 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version.
1
No. 2017AP2510.bh
§ 250 (1958) (stating the general rule that a "principal is not
liable for physical harm caused by the negligent physical conduct
of a non-servant agent").
¶89 Thus, the question of whether Fryed Audio, LLC was acting
as an agent of the Lions Club of Cudahy Wisconsin, Inc. when
carrying out the injury-causing conduct is premised on whether the
Lions Club and Fryed Audio were in a master-servant relationship.
Under our law, no such relationship was present here. Fryed Audio
was therefore not acting within the scope of any agency
relationship when laying the cords and is not entitled to immunity
under Wis. Stat. § 895.52(2). I respectfully dissent.
I
¶90 We have adopted and applied the definition of agency
from the Restatement (Second) of Agency: "Agency is the fiduciary
relation which results from the manifestation of consent by one
person to another that the other shall act on his behalf and
subject to his control, and consent by the other so to act."
Restatement (Second) of Agency § 1(1); see, e.g., Strupp v. Farmers
Mut. Auto. Ins. Co., 14 Wis. 2d 158, 167, 109 N.W.2d 660 (1961).
"It is well established that the most important factor in
determining whether a person is an agent is the extent of the
control retained over the details of the work." Kablitz v. Hoeft,
25 Wis. 2d 518, 521, 131 N.W.2d 346 (1964).
¶91 Our law has distinguished between two types of agents.
Agents may be either servants or independent contractors.
2
No. 2017AP2510.bh
¶92 All servants are agents, but agents of a particular kind.
Saunders v. DEC Int'l, Inc., 85 Wis. 2d 70, 77 & n.1, 270
N.W.2d 176 (1978). "A servant is one employed to perform service
for another in his affairs and who, with respect to his physical
conduct in the performance of the service, is subject to the
other's control or right to control." Heims v. Hanke, 5
Wis. 2d 465, 468, 93 N.W.2d 455 (1958), overruled in part by Butzow
v. Wausau Mem'l Hosp., 51 Wis. 2d 281, 187 N.W.2d 349 (1971). The
typical example is the employee-employer relationship. Romero v.
W. Bend Mut. Ins. Co., 2016 WI App 59, ¶39, 371 Wis. 2d 478, 885
N.W.2d 591. When employees are acting within the scope of their
employment, they are acting as agents of the employer. Kerl v.
Dennis Rasmussen, Inc., 2004 WI 86, ¶23, 273 Wis. 2d 106, 682
N.W.2d 328; Restatement (Second) of Agency § 219. Masters have
the right to control, and are therefore liable for, the physical
conduct of their servants. This is true whether masters exercise
that control, whether it is spelled out in a contract, or whether
reasonably precise specifications have been prescribed. The
nature of the right to control the physical conduct necessary to
establish a master-servant relationship has a broader body of law
to guide us. That will be discussed below.
¶93 Independent contractors, in contrast, may or may not be
agents. Saunders, 85 Wis. 2d at 77 & n.1; Restatement (Second) of
Agency § 2(3). Sometimes independent contractors are simply hired
to perform a service. The contract may contain reasonably precise
specifications or other performance and quality-oriented details.
It also may not. But none of that is key to whether the independent
3
No. 2017AP2510.bh
contractor is acting as an agent with respect to the independent
contractor's physical activities.
¶94 While an independent contractor may enter into a
contractual relationship to do something for another, the
independent contractor "is not controlled by the other nor subject
to the other's right to control with respect to his physical
conduct." Romero, 371 Wis. 2d 478, ¶40 (quoting Restatement
(Second) of Agency § 2(3)). In other words, one who engages an
independent contractor, whether an agent or not, does not have the
right to control the physical conduct of the independent
contractor. Even a contract that requires certain outcomes or
appears to retain control over certain areas does not, with respect
to the physical conduct of the independent contractor, constitute
the right to control necessary to establish a fiduciary agency
relationship. Hence, even an independent contractor agent is,
with respect to his physical conduct, not acting within the scope
of the agency relationship.
¶95 By way of example, if I pay a lawn company to mow my
lawn, I could demand control over certain things or require
specific results——cut once per week and no higher than 1.5 inches,
and remove sticks ahead of time. Suppose the lawn company missed
a stick, and it was flung into a passerby, causing injury. Now I
certainly could have gone out and told the company, "You missed a
stick over there; go pick it up." In that respect, one might
describe that as a right to control. But with respect to the
negligent physical conduct causing the injury, the lawn company is
not acting as my agent. I do not have the type of relationship
4
No. 2017AP2510.bh
where the lawn company is acting as a fiduciary on my behalf, and
with my consent. This is merely an independent contractor hired
to perform a contract for services. See generally Restatement
(Second) of Agency § 14N (describing non-agent and agent
independent contractors). A results-oriented contract, whether
detailed or not, does not mean the lawn company is acting as my
agent in carrying out these physical activities.
¶96 An inverse example comes by way of our 1983 decision in
Giese, where we concluded that a son cutting the lawn at the
direction of his father was an agent. Giese v. Montgomery Ward,
Inc., 111 Wis. 2d 392, 416-17, 331 N.W.2d 585 (1983). But there,
we explained that in order for the father to be liable for the
physical harm to third persons caused by the tortious conduct of
his son, "the master-servant relationship must exist." Id. at
415. This is because physical harm to third persons caused by the
physical conduct of independent contractors is, by definition, not
attributable to the principal. The kind of agency that would
ascribe liability to the father must instead be rooted in a master-
servant relationship. And we ultimately concluded the son was
acting as his father's servant——that was the basis for liability.
Id. at 416.
¶97 Another example helps illustrate the distinction. If I
hire an attorney from a law firm to represent me in a case, I have
hired an independent contractor. For purposes of the attorney's
representation, the attorney acts as my agent——having the
authority to act on my behalf with my consent, and subject to my
control. However, I have no control over the attorney's physical
5
No. 2017AP2510.bh
conduct. Therefore, an attorney who negligently injures another
while driving to represent me in a deposition is not acting on my
behalf. I am not liable for that conduct. See Restatement
(Second) of Agency § 220 cmt. e ("The salesman of a real estate
broker, while driving T, a prospective customer, to view a house,
negligently injures him. The broker, but not the broker's
principal, is subject to liability to T."); Restatement (Second)
of Agency § 250 cmts. a & b ("[T]he principal is not liable for
the negligent physical conduct of an attorney, a broker, a factor,
or a rental agent, as such."; "There is no inference that because
a principal has authorized an act to be done which would be non-
tortious if done carefully, he is liable for the act of a non-
servant if the latter was negligent in his performance.").
¶98 A 1978 decision of this court shows why the difference
between independent contractors and servants is key to this case.
In Arsand v. City of Franklin, the surviving spouse and estate
representative of Mr. Arsand sued the City after an airplane
accident caused his death. 83 Wis. 2d 40, 42-43, 264 N.W.2d 579
(1978). They argued the pilot, whose negligence the parties
stipulated to, was acting as the City's agent. Id. at 43. The
jury instructions framed the question accordingly, and the jury
agreed the pilot was an agent. Id. at 43-45. We reversed,
however. The question, we said, is not whether an agency
relationship exists. Id. at 49. Because this was an injury
arising from the physical conduct of the pilot, the determination
of an agency relationship was insufficient to answer the question.
Id. Since agency encompasses independent contractor agents, and
6
No. 2017AP2510.bh
principals are not responsible for the physical conduct of
independent contractors, the jury instruction did not sufficiently
establish liability. Id. at 49-50. The real question, and what
the jury should have been asked, is whether the pilot was a servant
of the City. Id. at 50. Therefore, we reversed and remanded.
Id. at 57.
¶99 With this distinction in mind, we examine the
relationship between Lions Club and Fryed Audio.
II
¶100 Because this case involves an injury to a third party
due to the negligent physical conduct of Fryed Audio, the key
question is whether Fryed Audio was a servant of the Lions Club.
If Fryed Audio was an independent contractor of the Lions Club (or
something less), then by definition its physical conduct was not
within the scope of any agency relationship, regardless of any
contractual control or specifications. On the other hand, if Fryed
Audio was a servant of the Lions Club, it was acting as an agent
with respect to its physical conduct——the conduct that caused the
injury.
¶101 While, "[t]he right to control is the dominant test in
determining whether an individual is a servant," we have affirmed
that other factors inform the analysis. Pamperin v. Trinity Mem'l
Hosp., 144 Wis. 2d 188, 199, 423 N.W.2d 848 (1988). These include:
"the place of work, the time of the employment, the method of
payment, the nature of the business or occupation, which party
furnishes the instrumentalities or tools, the intent of the parties
7
No. 2017AP2510.bh
to the contract, and the right of summary discharge of employees."
Id.
¶102 The Restatement (Second) of Agency, which we have cited
and approved with regularity in this area, similarly provides this
framework:
In determining whether one acting for another is a
servant or an independent contractor, the following
matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the
master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a
distinct occupation or business;
(c) the kind of occupation, with reference to whether,
in the locality, the work is usually done under the
direction of the employer or by a specialist without
supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the
person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the
job;
(h) whether or not the work is a part of the regular
business of the employer;
(i) whether or not the parties believe they are creating
the relation of master and servant; and
(j) whether the principal is or is not in business.
Restatement (Second) of Agency § 220(2).
¶103 As these factors reflect, though an employment
relationship is not the only type of master-servant relationship
that can be created, it is paradigmatic. The Restatement (Second)
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No. 2017AP2510.bh
of Agency notes that most statutes used the word "employee" in
lieu of "servant," and that in general, the term "is synonymous
with servant." Id. at cmt. g. The Restatement (Third) of Agency
goes even further. It eliminates the use of "master" and
"servant," replacing it with a determination of whether the actor
is an "employee" acting within the scope of his or her employment.
Restatement (Third) of Agency § 2.04 & cmt. a (2006).
¶104 The relationship between Fryed Audio and the Lions Club
looks nothing like a master-servant relationship. At the outset,
there is no formal relationship between Fryed Audio and the Lions
Club at all. There is no contractual relationship between these
two entities establishing the Lions Club's authority to determine
how Fryed Audio carried out the means and manner of its sound
system set-up responsibilities. As one court helpfully explained:
The most common language used to flesh out the right of
control, however, typically references the principal's
power to determine the "means and details" of the agent's
work. Thus, the right of control "includes not only the
right to assign tasks, but also the right to dictate the
means and details of the process by which an agent will
accomplish the task."
Cardinal Health Sols., Inc. v. Valley Baptist Med. Ctr., 643
F. Supp. 2d 883, 888 (S.D. Tex. 2008) (quoted source omitted). No
contractual language of this kind exists here. Nothing else in
the record suggests the Lions Club had the right to control the
means and manner of how Fryed Audio set up the sound system. Id.
("A right of control requires more than a general right to order
the work stopped or resumed, to inspect its progress or receive
reports, to make suggestions or recommendations which need not
necessarily be followed, or to prescribe alterations. . . . There
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No. 2017AP2510.bh
must be such a retention of a right of supervision that the
contractor is not entirely free to do the work in his own way.").
¶105 None of the other related indicia of a master-servant
relationship are found here either. The Lions Club does not
purport to have told Fryed Audio when to do its job. Setting up
band sound systems was not a normal part of the Lions Club
operations, nor did it furnish equipment or training or expertise
for such a task. This was a one-time job orchestrated by a
different entity——Rhythm Method, LLC. Moreover, the Lions Club
didn't even have an obligation to pay Fryed Audio. Pamperin, 144
Wis. 2d at 201–02 ("[F]actors which indicate a master-servant
relationship, e.g., a fixed monthly salary and withholding of taxes
and social security, are not present in this case."). The Lions
Club had no contractual right to fire Fryed Audio. There was no
agreement for fees, no sharing of offices or billing, no shared or
mandated insurance, and no oversight by the Lions Club in
determining who Fryed Audio could serve. See id. at 201 (examining
factors including maintaining separate offices, billing and
collection responsibility, authority to establish fees,
responsibility for malpractice insurance, and permission to work
for others).
¶106 While some limited kinds of control may have been present
here by virtue of Fryed Audio doing work at an event Lions Club
was organizing, this comes nowhere close to a master-servant
relationship. Because that is the only kind of relationship where
agency would extend to control of Fryed Audio's physical conduct
by the Lions Club——the kind of conduct that caused the injury——
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No. 2017AP2510.bh
Fryed Audio was not acting as the agent of the Lions Club by laying
down the cords.
III
¶107 The key question in agency is the right to control. But
this means more than a contractual agreement for services
establishing some types of control. It means the right to control
the means and manner of accomplishing the work performed or at
issue. Only masters have the requisite right to control the
physical conduct of their servants. Independent contractors are
not, with respect to their physical conduct, acting within the
scope of any agency relationship that might exist. Because Fryed
Audio was not in a master-servant relationship with the Lions Club,
its negligent physical conduct cannot be said to be within any
agency relationship. Therefore, Fryed Audio is not entitled to
immunity under the recreational immunity statute.
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No. 2017AP2510.bh
1