Indiana Court of Appeals Reverses Trial Court and Revives Crowd Surfer’s Personal Injury Lawsuit Against Music Venue Security Company
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.