ADELMAN ON VENUES

With Steven A. Adelman

QUESTIONS FOR A NEW DECADE

I do my best learning by deciding how to explain some weird situation to other people. Each fact feels like a piece of a big puzzle that I not only have to assemble myself, but also design the cover of the box.

I enjoy this process. The more I work in the live event industry and hang out with smart professionals, the more I see patterns emerging that make each new puzzle a bit easier to solve. Which in turn allows me to work on harder puzzles.

In the last few weeks, I have given presentations based on two particularly interesting and challenging legal puzzles. These were useful questions to consider over the holidays, as I think these themes will arise more often over the next decade.

The Duty of Care for the Enablers of Risky Behavior

At the Event Safety Summit just before Thanksgiving, I gave a presentation with Chicago attorney Bruno Marasso, based on a case we worked on together this year. Here are the basic facts.

Three guys in their early 20s went to a nightclub on a Friday night. They had some drinks before they arrived, and bought more at the club. They walked around the crowded general admission dance floor, but couldn’t get close enough to the band. So, they climbed the stairs to the balcony level for a better view. As they walked around, they saw an unguarded, unmarked door that was either ajar or wide open, and remained so each time they passed. Eventually they entered. They walked through several small workspaces used by club staff, through three more unlocked, unmarked, unguarded doors, up a staircase, and onto a catwalk just below the club ceiling. They walked the length of the dance floor along the catwalk, sat down at a spot overlooking the stage, and watched the show there without incident. After 20 minutes or so, one of the young men stood up and began returning the way they had come. Apparently, he lost his footing and he fell. Fortunately, it was just two feet from the catwalk to the solid surface below; unfortunately, he landed on a piece of rebar laying amidst other debris that had been there many years. He was impaled, and died.

Since the point of the exercise was to have attendees deliberate like jurors, we provided a few more relevant facts: the deceased was drunk when he fell; the door had been at least ajar for hours when the guys entered; no one ever before fell off the catwalk in the club’s decades of existence.

Here was the conflict we wanted Summit attendees to consider. The young man certainly contributed to his own death by engaging in a series of ill-advised actions. On the other hand, it’s hard to blame someone for being drunk in a venue where alcohol is sold in multiple locations and evidently not closely monitored based on his post-mortem blood alcohol concentration. And it’s hard to claim surprise that young drunk people might want to know what’s behind an unmarked, unguarded, unlocked, open door. There is an element of reasonable foreseeability here, isn’t there?

Isn’t one appeal of live events the freedom patrons enjoy to not think about their own safety for a while, to just kick back and play, knowing that sober professionals like us have removed the reasonably foreseeable hazards so patrons can enjoy the show? Isn’t this sort of patron the bread and butter of live events?

Put another way, if event professionals are, in a sense, the enablers of certain foreseeably risky behaviors by providing venues where sober judgment is neither necessary or expected, is there a corresponding duty to provide an environment that is safe under those circumstances?

Once people at the Event Safety Summit figured out the question, their answers were quite interesting. What do you think?

Deconstructing the Gilroy Garlic Festival Lawsuit

Last month, several victims of the July 28, 2019 Gilroy Garlic Festival shooting filed suit in Santa Clara (California) County Superior Court, seeking money damages from the festival association for their injuries. The civil Complaint is a fascinating snapshot of the legal arguments I anticipate us seeing more and more following acts of third party violence.

Without getting you bogged down in legalese, the Complaint relies on three key arguments:

1. Broken Promises. The Festival’s own literature promised that “weapons of any kind” would be prohibited. Obviously, that promise was not kept, leading to the deaths of 6-yearold and 11-year-old children.

2. Grossly Deficient Security. The shooter cut through a chain link fence on a remote part of the Festival property that was not monitored and was concealed from view by woods adjacent to the fence line. A more secure fence and proper monitoring would have been cheap additions.

3. An Active Shooter Was Reasonably Foreseeable. Shooters are now so foreseeable at large public events that “professional sporting events, music concerts, and nearly every other organized large-scale public event that occurs daily” has monitored security perimeters, metal detectors, “and other appropriate security.”

In a presentation to the Association of Threat Assessment Professionals (in a room festively decorated for Christmas), I led the group through an analysis of these claims, and what it might mean for threat assessment professionals and the live event industry if these claims prevail.

We concluded that the last phrase, “other appropriate security,” was especially important. The Complaint suggests some equivalency in the risk profile between San Francisco 49ers games at the fabulous new Levi’s Stadium versus a local event down the road in rural Gilroy, where the small crowds presented no documented history of anything like gun violence. The difference matters, doesn’t it?

As an Adelman on Venues reader, you should already be thinking, ‘the duty is to behave reasonably under one’s own circumstances, not someone else’s.’ So liability in this lawsuit shouldn’t be based on whether gun violence is increasingly common in the United States (it is), or whether magnetometers are more common outside big stadiums and arenas because they’re such big targets (they are), but whether anything made the risk of an active shooter more reasonably foreseeable to the organizers of the 2019 Gilroy Garlic Festival itself. That’s a question for which discovery about previous incidents in Gilroy and other similar festivals should provide answers.

Recognize, however, how hard it will be to keep your eye on that ball. Again, this is where two young children were gunned down. Promises were made! ‘Promises should be kept or children will die,’ you can hear some lawyer thunder during open statements to a jury. Lawsuits usually settle because lawyers know that emotions sometimes overpower logic even among otherwise rational people. Would you want to take that risk?

On the other hand (there’s always another hand), consider the implications if these Plaintiffs win. What does America look like if small local events with no history of trouble have to reinforce their security like the highest profile and high-risk events? I suggested to the ATAP people that they would first enjoy a massive spike in overtime work, followed by an even deeper decline as small venues closed and small events were cancelled due to prohibitive costs and frightened patrons. Within days after my presentation, a 67 year old art festival in northern California announced that it was cancelling its 2020 event for that reason. There’s a big picture to contemplate over the holidays…

Steven A. Adelman is the head of Adelman Law Group, PLLC in Scottsdale, Arizona and Vice President of an international trade association, the Event Safety Alliance. His law practice focuses on risk management and litigation regarding safety and security at live events throughout North America, and he serves as an expert witness in crowd-related lawsuits. Steve Adelman is widely recognized as an authority on live event safety and security. He writes the monthly “Adelman on Venues” newsletter, he teaches “Risk Management in Venues” at Arizona State University’s Sandra Day O’Connor College of Law, and he frequently appears in national and local media for analysis of safety and security incidents at public accommodations. Steve Adelman graduated from Boston College Law School in 1994. He can be reached at sadelman@adelmanlawgroup.com.

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