By Dr. Robert Ammon
The plaintiff David Bueno was injured during a football in 2013 between the University of Southern California (USC) and Stanford University that took place at the LA Memorial Coliseum (Coliseum). Bueno was working as a security guard for an international crowd management company, Contemporary Services Corporation (CSC). CSC was working as a subcontractor who provided crowd management services for USC football games. At the end of the game the plaintiff was injured when a large number of fans rushed onto the field to celebrate USC’s last-minute victory.
USC had a contract with CSC to provide security guards for USC’s home football games at the Coliseum. USC and Stanford are rivals and this game had a lot of media attention due to Stanford’s national ranking. The security plans for the game called for 50 uniformed USC campus police officers, 180-200 uniformed on-duty LAPD officers, 69 uniformed off-duty LAPD officers and 754 uniformed CSC staff. Bueno was part of the CSC staff who worked the game.
Even though USC fans had not stormed the field since 1999 USC had created and practiced a “contingency plan” in case the crowd might attempt to do so. If it appeared likely such an incident could occur the plan called for PA announcements to be made asking fans to stay off the field, campus police officers roaming the student section, and CSC staff to be redeployed to the lower levels of the Coliseum monitoring stairways and the entrances to the field. If the fans were to make a move towards the field of play the plan called for the security to “fall back” and let the crowd go.
On the day of the game the plaintiff received all of his instructions from CSC supervisors. He did not speak to, or receive directions from, any USC employee. Bueno was initially deployed at a Coliseum gate where he inspected bags for weapons and alcohol. Later, the plaintiff was redeployed to a lower level stairway where he was instructed not to let anyone past him without the correct credentials. Bueno was also told by a CSC supervisor that if the fans stormed the field to “just get out of the way”. USC kicked a game winning field goal with only seconds remaining in the 4th quarter and “a wave of 5-10 thousand people stormed the field”. Bueno attempted to escape the onslaught by running to the field but he was tripped and trampled by the out of control fans. He suffered bruises and contusions to his torso, but did not sustain any broken bones.
The plaintiff sued USC on several counts including negligence, premises liability, negligent hiring, retention and supervision and negligent infliction of emotional distress. The plaintiff mentioned these occurred as a result of USC’s failure to provide adequate security. Bueno further alleged that the existence of the “contingency plan” demonstrated that injuries, such as those he sustained, were foreseeable. He also argued that “being trampled by a delirious crowd improperly managed” was not an inherent risk for individuals working in the capacity as a security guard.
USC moved for summary judgment based on five beliefs.
It had been 14 years since any spectators had rushed onto the field of play and as a result limited foreseeability existed. Therefore, USC had no duty to protect the plaintiff from this type of incident.
Even if it could be demonstrated that USC did owe a duty the contingency plan was properly designed and implemented. USC’s actions did not cause the plaintiff’s injuries.
The plaintiff’s premises liability claim was not applicable because the plaintiff could not establish that USC failed to disclose any hidden hazard.
The plaintiff had been employed, supervised and instructed by CSC employees while working the game in question therefore his negligent hiring, retention and supervision assertion was flawed because he presented no evidence that USC hired, supervised or retained anyone who caused the plaintiff’s injuries.
The plaintiff’s claims were barred by the assumption of risk defense because injuries sustained while managing crowds were inherent to the plaintiff’s job.
Holdings of the Court
An interesting twist to the case took place after the Superior Court of Los Angeles County denied USC’s motion for summary judgment. USC filed a petition with the Second Appellate District challenging the lower court’s decision. The appellate court directed the district court to vacate the order denying summary judgment and enter a new order granting the motion. Otherwise the trial court had to show cause why the Second Appellate District court should not issue a directive ordering the trial court to do so. The trial court vacated their initial order and entered a new order granting summary judgment to USC. After the trial court granted summary judgment the plaintiff appeal.
The Second Appellate District court held that since Bueno was an employee of CSC, a USC independent contractor, USC owed no duty to the plaintiff to prevent fans from rushing the field. They based this decision on SeaBright Ins Co. v US Airways, Inc. (2011) 52 Cal.4th 590, 596 (SeaBright). In SeaBright the California Supreme Court found that, as a general rule, “when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work” (SeaBright, supra, 52 Cal.4th at p. 594 citing Privette v Superior Court (1993) 5 Cal.4th 689). The Second Appellate District court also cited Hooker v Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker) stating that the “rule” established in Privette was appropriate unless “the hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.” The “affirmative” conduct requirement means a hirer will not be held liable based merely on evidence it was “aware of an unsafe practice and failed to exercise the authority [it} retained to correct it.” (Id. at p. 215)
The Second Appellate District court found that the “rule” set forth in Hooker pertained to the plaintiff’s premises liability claim as well (Sheeler v Greystone Homes, Inc. (2003) 113 Cal.App.4th 90-8, 921-922). USC had created a contingency plan that instructed employees to “fall back” if the fans stormed the field. The plaintiff admits he was a CSC employee and that his supervisor told him to “just get out of the way” if the fans rushed the field. Bueno was injured when a spectator tripped over his foot as the plaintiff ran for the shelter of the field, but the plaintiff was not able to demonstrate that USC affirmatively contributed to his injury.
The Second Appellate District court found that the plaintiffs claim for negligent hiring, retention and supervision were also meritless. The plaintiff failed to identify anyone who presented an “undue risk of harm” in carrying out the contingency plan. The plaintiff’s assertion that USC was negligent in hiring CSC was barred by the courts decision in Camarjo v Tjaardo Dairy (2001) 11 Cal.App.5th 565, 580-581. In that case the court held that an employee of an independent contractor is barred from suing the hirer of the contractor on the grounds that the hirer was negligent in retaining the contractor (Id. at p. 1238).
The Second Appellate District court found no claim of emotional distress in the plaintiff’s brief. They determined he had abandoned the claim.
The Second Appellate District court affirmed the trail court’s decision to grant summary judgment to USC.
Third party contractors such as Contemporary Services Corporation provide crowd management services (among others). Crowd control and crowd management are discordant terms. It is virtually impossible to “control” crowds but with properly trained staff crowds can be “managed”. Individuals hired to work for these outsourced agencies will perform a number of duties including, but limited to, screening spectators for prohibited items such as alcohol or weapons. Some will be trained to check the credentials of individuals entering various parts of the venue (field/court, locker rooms, VIP areas, back of house etc.) and others to monitor sections of the crowd identifying incidents involving intoxicated or combative spectators. The staff will also assist with customer service-related tasks such as dealing with lost children, and answering fan questions. The common denominator for each of these duties is the “crowd”. Since crowds can’t be “controlled” they, at times, will move in undesirable directions such as toward the field or court. Thus, an inherent risk of dealing with crowds include injuries resulting from the actions of these crowds. Being shoved, pushed, heckled, spit on and struck are all foreseeable actions from working in crowd management. A large number of these undesirable actions are resultant form copious amounts of alcohol that the crowds imbibe as well as their emotional state reflecting the actions on the field or court.
Adequate training of these crowd management personnel becomes vital to the overall safety of themselves and the crowd they are dealing with. It is highly presumptuous to believe that every one of the 754 uniformed CSC guards had worked for CSC previously to the USC-Stanford game on November 16, 2013. Therefore ensuring that these individuals knew and understood their roles becomes a huge responsibility for the CSC supervisors. However, as previously stated, crowds are at times disputative and go where they want. If enough of those individuals go where they please you end up in a situation as described by the plaintiff when “not even 100 guards would have been able to stop the onslaught”. At that point the best training is to make sure the staff member knows to “just get out of the way”.
David P Bueno, Plaintiff and Appellant, v University of Southern California, Defendant and Respondent. 2018 Cal.App. Unpub. LEXIS 8362
Dr. Ammon graduated with an EdD in Sport Administration from the University of Northern Colorado and his areas of research include: crowd management, legal liabilities in sport, risk management in sport and athletics, and premises liability. Currently he is an Associate Professor and Chair of the Kinesiology and Sport Management Division at the University of South Dakota.