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DEFENDANT CONCERT HALL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFF WAS INJURED AFTER BEING PUSHED INTO A MOSH PIT, QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF ASSUMED THE RISK AND WHETHER THE CONCERT HALL WAS NEGLIGENT.

The Second Department determined the defendant concert/dance hall’s (Knitting Factory’s) motion for summary judgment was properly denied. Plaintiff alleged he was pushed into a mosh pit where someone hit him in the eye. The defendant argued plaintiff assumed the risk of the injury and no level of supervision could have prevented the injury:

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A property owner must act in a reasonable manner to prevent harm to those on its premises, which includes a duty to control the conduct of persons on its premises when it has the opportunity to control such conduct, and is reasonably aware of the need to do so … . The doctrine of primary assumption of risk “applies when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'” … . A person who chooses to engage in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the [activity] generally and flow from such participation”… . The duty owed in these situations is “a duty to exercise care to make the conditions as safe as they appear to be” … . 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'” … , and are, therefore, “worthy of insulation from a breach of duty claim” … .

Here, even assuming, without deciding, that attending a metal music concert where “moshing” takes place is a qualified activity to which the doctrine may properly be applied … , under the facts presented here, the Knitting Factory failed to eliminate triable issues of fact as to whether it met its duty to exercise care to make the conditions at the subject venue as safe as they appeared to be … , and did not unreasonably increase the usual risks inherent in the activity of concert going… . The Knitting Factory also failed to eliminate triable issues of fact as to whether the plaintiff assumed the risk of injury … , whether the plaintiff’s alleged injuries were foreseeable, and whether it provided adequate security measures and, if not, whether its failure was a proximate cause of the plaintiff’s alleged injuries … . Nevo v Knitting Factory Brooklyn, Inc., 2017 NY Slip Op 03186, 2nd Dept 4-26-17

 

NEGLIGENCE (DEFENDANT CONCERT HALL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFF WAS INJURED AFTER BEING PUSHED INTO A MOSH PIT, QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF ASSUMED THE RISK AND WHETHER THE CONCERT HALL WAS NEGLIGENT)/ASSUMPTION OF RISK (DEFENDANT CONCERT HALL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFF WAS INJURED AFTER BEING PUSHED INTO A MOSH PIT, QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF ASSUMED THE RISK AND WHETHER THE CONCERT HALL WAS NEGLIGENT)/MOSH PITS (CONCERT HALLS, NEGLIGENCE, DEFENDANT CONCERT HALL’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, PLAINTIFF WAS INJURED AFTER BEING PUSHED INTO A MOSH PIT, QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF ASSUMED THE RISK AND WHETHER THE CONCERT HALL WAS NEGLIGENT)

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