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MSZL&M WINS SUMMARY JUDGMENT IN ROCK CONCERT INJURY CASE
Steven N. Cherry, Esquire and Phillip B. Silverman, Esquire
MSZL&M Attorneys Phillip B. Silverman, Esquire and Steven N. Cherry, Esquire recently won a hard fought motion for summary judgment in representing a security company in a case brought by a rock concert patron who alleged she was seriously injured when another concertgoer who was allegedly "crowd surfing" fell onto her head and neck, causing her to collapse to the ground.
In Sherry West v. Capitol Security Agency and Hershey Entertainment and Resort Company, Pennsylvania Court of Common Pleas, Dauphin County, the Plaintiff, 36 year-old Sherry West, alleged that she sustained debilitating injuries to her head and neck while she attended the "Pop Disaster Tour" starring alternative rock groups Green Day and Blink 182 at Hershey Stadium in Hershey, PA. West alleged that while watching the concert standing in the "festival seating" (standing room only) section about 20 rows from the stage, an unidentified male youth who was "crowd surfing" (being passed around the crowd over the heads of spectators) unexpectedly headed towards her and fell on top of her. West brought suit against HERCO, the owner and operator of Hershey Stadium, as well as MSLM's client, Capitol Security Agency, a security company which supplemented HERCO's security at the concert and provided security guards. West alleged that both HERCO and Capitol were negligent for allowing "crowd surfing" to occur during the concert, failing to remove crowd surfers from the audience and eject them, and in failing to take steps to prevent crowd surfing, including the posting of signs and stage announcements.
In support of her claims, Plaintiff offered the opinions of Paul Werthiemer, a self-proclaimed "concert safety expert," who wrote in a lengthy report detailing the history of injuries at rock concerts, that the Defendants' very use of "festival" (general admission) seating was an invitation to violence and danger, and that, in particular, the Defendants should have taken step to prevent crowd surfing from occurring.
Following an extensive period of Discovery, both HERCO and Capitol filed Motions for Summary Judgment, arguing that they respectively were not negligent and that Plaintiff's injury was not caused by any breach of duty on their part. In particular, the defendants argued that there was insufficient evidence that Plaintiff was, in fact, struck by a "crowd surfer" (as opposed to accidental contact by a patron who was not crowd surfing but merely fell into plaintiff); as well as that the management for the bands playing the concert specifically requested that concert security services not attempt to prevent or stop crowd surfing from occurring. Further, the defendants presented expert reports indicating that crowd surfing is an unavoidable occurrence at such events, and attempts to stop crowd surfing from occurring could result in a more violent and dangerous reaction from a young, crowded audience.
After oral argument took place, Judge Bruce F. Bratton granted Summary Judgment to Capital, but denied HERCO's Motion, finding that MSZL&M's client breached no duty owed to Plaintiff. It its Opinion, the Court explained:
There is no evidence of record whereby a logical inference
could be drawn that Plaintiff Sherry West's injury was the result
of a breach of duty owed to her by Defendant CSA. Defendant CSA was
contracted by Defendant HERCO to supplement HERCO's security at the
concert. Defendant CSA was advised by HERCO, at the concert promoters'
instructions, to tolerate such activities such as "crowd surfing"
and "moshing," or, at the very least, not to be "heavy handed" or
aggressive in stopping or regulating "crowd surfing." Here, the evidence
shows only that Defendant CSA performed its contractual obligation
to Defendant HERCO for which they were hired, i.e., not "fishing"
out "crowd surfers" or otherwise interfering with such activities.
Further, there is nothing Defendant CSA could have done, preventative
or proactive, in the mere matter of seconds prior to Plaintiff Sherry
West being struck to prevent such an injury, even if it is arguable
that she was struck by a "crowd surfer."
As stated, the Court granted Summary Judgment only to CSA, and not to the co-defendant HERCO. Accordingly, the matter will be proceeding to trial against the co-defendant HERCO.
Plaintiff's claims against MSZL&M have been appealed by Plaintiff and appellate review is currently pending in the Superior Court of Pennsylvania.
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