Jan. 16, 2020 – A state appeals court has ruled that the man who escorted a drunk patron to the exit doors of a bar has immunity from the negligence lawsuit that followed when the patron fell down some stairs and suffered injuries to his head.

David Stroede drank to intoxication at a bar in Saukville, and the bartender kicked him out after he punched another patron. But Stroede reentered the bar. A bar employee, Jacob Tetting, grabbed Stroede by the shoulders and ushered him towards the exit. Tetting was not working at the time of the incident but was inside the bar as a customer.

Stroede fell down some stairs at the front of the bar’s exit door. Tetting picked him up and placed him on the grass outside while bar staff called the police.

Stroede later filed a civil complaint alleging negligence, arguing that Tetting used excessive force while removing him from the bar and Tetting’s employer, the Railroad Station Bar, was negligent in allowing Tetting to use such excessive force.

Railroad Station Bar, and its liability insurer, argued that Stroede was a trespasser at the time of the incident and thus the bar staff had no duty of care to Tetting.

Railroad Station Bar also argued that Tetting was not acting as an employee at the time of the incident and thus the bar could not be liable for Tetting’s actions.

Tetting argued that he was entitled to immunity under Wis. Stat. Section 895.529, which relates to the duty of care owed to trespassers. The statute says a “lawful occupant of real property” owes no duty of care to trespassers, which bars negligence claims.

West Bend Mutual, Tetting’s insurer, joined Tetting’s immunity motion but opposed Railroad Station Bar’s argument that Tetting was not acting in his capacity as employee.

The circuit court ruled that Stroede was a trespasser but Tetting was not entitled to immunity as a “lawful occupant” of Railroad Station Bar. The circuit court said Tetting, at the time of the incident, was a patron with no power to exclude other patrons.

In Stroede v. Society Insurance, 2018AP1880 (Jan. 14, 2020), a three-judge panel for the District I Court of Appeals reversed on that point, concluding that Tetting was a “lawful occupant” entitled to the trespasser defense whether a patron or an employee.

“We conclude that Wis. Stat. section 895.529 is unambiguous and that anyone who is lawfully present on the premises at the time of the incident was an ‘other lawful occupant,’” wrote Judge Timothy Dugan.

“Therefore, Tetting was entitled to the trespasser defense whether he was a patron of the bar or an employee at the time of the incident,” Judge Dugan noted.

The appeals court panel also ruled that Stroede’s complaint, which alleged negligence, did not sufficiently allege willful, wanton, or reckless conduct, and the circuit court properly exercised its discretion in denying Stroede’s motion to amend the complaint.

Under section 895.529, owners and lawful occupants of real property may be liable for injury or death to a trespasser if the owner or lawful occupant willfully, wantonly, or recklessly caused the injury or death. But Stroede did not make those allegations.

“Stroede had already amended his complaint once during the course of litigation and failed to add the language necessary for a claim of wanton, willful, or reckless conduct,” Judge Dugan wrote.

“Stroede’s request for a second amendment came more than one year after the commencement of litigation and at the summary judgment hearing that was based on his specific pleadings. The circuit court properly exercised its discretion.”