The Indiana Court of Appeals recently reversed a trial court’s grant of summary judgment in favor of a music venue security company alleged to have caused a crowd surfer’s injuries in a fall. In Wiley v. ESG Sec., Inc., Seth Wiley (Wiley), a minor at the time, was crowd surfing during a “punk rock” concert at the Murat in Indianapolis, Indiana. ESG Security, Inc. (ESG) was contracted by Live Nation to provide security at the concert. “Bicycle racks” were placed between the stage and the crowd with several ESG personnel stationed between the racks and the stage. Various concertgoers were crowd surfing during the concert, including Wiley on three or four occasions prior to his fall. On prior occasions, ESG personnel helped Wiley to the ground after he reached the front of the audience and was passed over the racks. However, the last time he crowd surfed the crowd moved him to the front of the audience when there were no ESG personnel to support him down, as they were attending to another concertgoer, and he fell and sustained injuries.
Wiley sued various parties for his personal injuries, including ESG. Under Indiana law, to recover in a negligence case, a plaintiff must show (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the defendant’s breach proximately caused the plaintiff’s injuries. Generally, the existence of a duty is a question of law for courts to decide.
ESG filed a motion for summary judgment arguing it was entitled to judgment as a matter of law as it did not owe Wiley a duty of care and Wiley incurred the risk of his injuries. While the contract between ESG and Live Nation stated that ESG would “exert reasonable… efforts to protect all persons who enter [the venue] from… personal injury from any causes whatsoever,” ESG argued that language only applied to risks of which a concertgoer would not be aware or warned against and such did not mean ESG had to protect concertgoers from their own negligent acts. There were signs posted throughout the venue, and an audio message repeatedly played, that crowd surfing was prohibited and those who crowd surfed did so at their own risk and were subject to expulsion.
Wiley argued that while concertgoers may have understood the risks of crowd surfing, ESG knew that concertgoers would fail to protect themselves against that risk, which required ESG to exercise reasonable precautions for the safety of concertgoers engaging in crowd surfing. In fact, ESG had an operating procedure for crowd surfing in which ESG personnel would assist crowd surfers, and ESG had recommended to Live Nation that two additional ESG personnel be stationed at the racks for the concert. After hearing, the trial court denied ESG’s motion “on the issue of duty,” but nonetheless granted summary judgment for ESG finding Wiley incurred the risk of his injuries.
On appeal, the Court of Appeals first found ESG’s duty of reasonable care to provide concert security at the venue did not include protecting concertgoers from the prohibited conduct of crowd surfing. Based upon prior precedent, including the Indiana Supreme Court’s decision in Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, the Court noted that foreseeability as an element of duty in cases involving dangerous activities on premises involves a threshold evaluation of (1) the broad type of plaintiff and (2) the broad type of harm (i.e., the general class of persons of which the plaintiff was a part and whether the harm suffered was of a kind normally to be expected). Here, in the Court’s view, a concert attendee getting dropped or thrown to the ground from above the heads of other concertgoers is not normally to be expected.
However, Wiley also argued that ESG assumed a duty of care by its conduct. Wiley argued ESG knew concertgoers at this concert would crowd surf despite warnings not to, and because of that, had recommended additional personnel be stationed at the racks; ESG had an operating procedure to handle crowd surfers; and ESG had assisted crowd surfers the night of the concert. Indiana law recognizes that parties can assume a duty of care by undertaking to perform an act with affirmative conduct. On this issue—the assumption of a duty of care—the Court of Appeals found there was a genuine issue of material fact, and therefore ESG was not entitled to summary judgment.
As to Wiley having incurred or assumed the risk of his injuries, the Court noted that, in accordance with Indiana’s Comparative Fault Act, incurred or assumed risk only negates duty in cases of express consent. Here, the Court found there was no evidence Wiley expressly (as opposed to impliedly) consented to take his chances as to sustaining injury from crowd surfing. The Court of Appeals accordingly reversed the trial court’s grant of summary judgment in favor of ESG and remanded the case for a determination of whether and to what extent ESG assumed a duty of care, and if so, determinations as to beach of that duty, causation, and comparative fault.
You can read the full opinion here.