Week of May 1-6

In Nevo v. Knitting Factory, New York’s Appellate Division, Second Department explained some useful principles regarding the “assumption of the risk” doctrine and what a defendant must prove in order to establish summary judgment in a concert/negligent security setting. A copy of the decision can be found here: http://www.nycourts.gov/reporter/3dseries/2017/2017_03186.htm

Plaintiff was hit in the eye while attempting to exit a mosh pit at a heavy metal rock concert. Defendant was the owner of the venue and moved for summary judgment based on assumption of the risk doctrine. Defendant also argued that the assault was unforeseeable criminal activity, over which the Defendant had no control. The trial court denied defendant’s motion and the Second Department affirmed.

The Second Department first examined whether Defendant proved, prima facie, reasonable care. In this context, that is whether Defendant “[made] the conditions as safe as they appear to be” (citing Turcotte v Fell, 68 NY2d 432, 439 [1986]). Ultimately, the court found that Defendant failed to eliminate all triable issues of fact regarding whether it exercised due care in making the event conditions “as safe as they appeared to be,” and whether it unreasonably increased the minor threats inherent in concert going. The court also found that Defendant failed to demonstrate that plaintiff had assumed the risk of injury, that there was adequate security measures, and that, if inadequate, its security was not the proximate cause of plaintiff’s injury.

By denying Defendant’s motion based on its inability to demonstrate reasonable care, the Second Department did not reach the issue of whether the doctrine of primary assumption of the risk may be applied to “moshing” (“The doctrine has generally been restricted ‘to particular athletic and recreative activities in recognition that such pursuits have enormous social value' even while they may involve significantly heightened risks’” citing Custodi v Town of Amherst, 20 NY3d 83, 88 [2012]).

This decision can be used to map out a Defendant’s burden of proof in a similar context and perhaps meet our prima facie burden on summary judgment.