By Shawn Green, of Havkins Rosenfeld, Ritzer & Varriale
Energetic fans attend games at sports stadiums, and music venues encounter enthusiastic guests hoping to sing and dance. When thousands of people enter a venue to attend an event, it is a significant task to oversee crowds in an attempt to create a safe environment that avoids accidents and injuries. While it may be impossible to avoid all accidents, anticipating the behavior of guests and patrons may help minimize or avoid liability.
In Basso v. Miller, 40 N.Y.2d 233, 352 N.E.2d 868 (1976), New York’s Court of Appeals abolished any distinctions between trespassers, licensees, and invitees. It held that New York landowners and occupiers owe a duty of reasonable care to maintain a property in a safe condition, under all of the circumstances. Subsequently, in Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 706 N.E.2d 1163 (1998), the state’s highest court clarified the duty owed for injuries arising out of the criminal acts of third parties. Although owners or occupants may have a common law duty to minimize foreseeable dangers on their property, liability may only be imposed where negligent conduct in failing to minimize foreseeable dangers is a proximate cause of the injury.
The standard venue operator or event organizer must meet in order to comply with its duty to minimize foreseeable dangers, however, is not uniform to all events; it will be based on the foreseeable dangers of the event in question. There are a multitude of factors that may be relevant in the analysis of the duty owed, including the type of event, the anticipated crowd size, the crowd capacity, the available of alcohol, the age range of the patrons, and prior criminal acts in the area or at prior similar events, among others. Therefore, those charged with operating a particular event must be prepared for the particular risks associated with the event, and take reasonable measures to address those risks. It is key to be aware of the type of occurrences that are likely to occur and provide security or other protection that is adequate under the circumstances.
As an example, in Maheshwari v. City of New York, 307 A.D.2d 797, 763 N.Y.S. 2d 287 (2004), New York’s Court of Appeals addressed issues of foreseeability and proximate cause in the context of a venue operator’s duty to provide adequate security at the 1996 installment of the annual Lollapalooza festival, which was held on Randall’s Island. A violent assault occurred in one of the surrounding parking areas and the injured guest sued various defendants, including the venue owner or organizer. The court held that the defendants were not liable for the assault because reasonable security measures and that the assault on the plaintiff was not foreseeable result of an alleged security breach, under the circumstances. It specifically pointed to a lack of prior similar incidents at prior installments of the event. This decision is instructive on a venue owner’s duty of care owed to guests. It re-enforces the idea that venue owners are NOT the insurers of a visitor’s safety.
In Rotz v. City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245 (1st Dep’t 1988), however, the Appellate Division, First Department analyzed the dangers that should have been reasonably anticipated at a free Diana Ross concert at Manhattan’s Central Park in 1983. The plaintiff was standing in a crowd where patrons were “jammed in like sardines” when a commotion erupted and he was injured in a subsequent stampede. The contract with the event organizer specifically mentioned the possibility of “civil commotion” and “riots.” The court noted that the event owner and operator was obligated “to provide an adequate degree of general supervision of the crowd invited by exercising reasonable care against foreseeable dangers under the circumstances prevailing.” In applying this standard, it held that there were questions of fact as to whether adequate crowd control measures had been in place. The court specifically highlighted the contract language as evidence of advance knowledge of the defendants as to the particular risks to be anticipated at the event.
In Vetrone v. Ha Di Corp., 22 A.D.3d 835, 803 N.Y.S.2d 156, (2nd Dep’t 2005), the injured plaintiff had been hired by a restaurant owner and party organizer to provide security at a New Year’s Eve party and to deny entry to ticket holders once the restaurant reached capacity. The owner and organizer sold tickets to more people than the restaurant could hold, and also admitted non-ticket holders. A ticket holder who was denied entry by the plaintiff after capacity was reached became violent and assaulted the plaintiff. In analyzing a trial court’s decision to grant summary judgment to the restaurant owner, the Appellate Division, Second Department reversed largely based on a foreseeability analysis. The court determined that it was foreseeable that ticket holders who were refused entry might become unruly and violent. It held that the plaintiff “reasonably had the right to expect that [the defendants] … would not so overbook the event as to require him, acting virtually alone, to face a large crowd of angry ticketholders who paid to attend the party, but were unexpectedly and rudely denied entry and told to go home.”
Together, these three decisions illustrate the manner in which a venue owner or operator’s duty stems from the foreseeable actions of the anticipated guests and the associated risks of the event. The scope of the duty generally hinges on whether a venue owner or operator knew or had reason to know — based on past experience, common sense, or other factors — that there was a likelihood of certain risks which were likely to endanger the safety of patrons. As a result, a venue owner or operator should make efforts to determine the foreseeable risks that may arise and cause injury to a guest. Reasonable measures should then be taken to address those risks. Doing so may not completely negate the possibility of injury to patrons, but it may serve to significantly minimize the risk of injury — and potentially eliminate any liability.
Shawn Green concentrates his practice on the defense of general and premises liability claims, as well as personal injury matters and related insurance coverage issues.
