MARK DIX, et al. v. LIVE NATION ENTERTAINMENT, INC., et al.
B289596 (Los Angeles County Super. Ct. No. BC628255)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 10/26/20
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County, Dan Thomas Oki, Judge. Reversed.
Daniels, Fine, Israel, Schonbuch & Lebovits, Mark R. Israel, Michael Schonbuch, and Geronimo Perez for Defendants and Respondents.
INTRODUCTION
While at Live Nation‘s1 electronic music festival, Katie Dix ingested an illegal drug and collapsed. After medical personnel responded, an ambulance transported Katie to a hospital, where she died shortly thereafter. Katie‘s parents, Mark and Pamela Dix, sued Live Nation for negligence and other causes of action. Live Nation moved for summary judgment, arguing that it did not owe a duty of care to music festival attendees.
The trial court granted Live Nation‘s motion. The Dixes contend that the trial court erred in granting summary judgment because Live Nation owed a duty of care to music festival attendees and that triable issues of material fact exist on their negligence cause of action. Because of its special relationship with festival attendees, an operator of electronic music festivals like Live Nation owes a duty of reasonable care to festival attendees. Whether Live Nation breached its duty and caused Katie‘s death are for the jury to determine. Therefore, we reverse.
FACTUAL AND PROCEDURAL HISTORY
A. 2015 Hard Fest
In early 2015 Live Nation selected the Pomona Fairplex as the location for the 2015 Hard Summer Music Festival (Hard Fest). Live Nation scheduled the two-day electronic music festival for August 1, 2015 (12:00 noon to 11:00 p.m.) and August 2, 2015 (12:00 noon to 10 p.m.). Live Nation anticipated
In order to put on Hard Fest, Live Nation needed to obtain government permits and approvals. After Live Nation submitted site plans, a schedule of events, and other information, the Los Angeles County Fire Department issued a public safety permit. The City of Pomona issued a building and safety permit and an electrical permit, allowing Live Nation to erect structures, including in excess of 250 tents. Live Nation contracted with third party vendors to provide perimeter security and main entrance security. The main entrance security vendor provided approximately 400 security personnel.
Live Nation‘s “Music Festival 2015 Safety Overview” provided, “Patrons make attempts to sneak illegal substances in . . . . Patrons who consume illegal substances are also prone to dehydration or possible overdose reactions. [¶] Some patrons will consume several different substances and suffer from negative effects. [¶] This is the major risk.” In addition, “based on its prior knowledge from past electronic music festivals it has held, [Live Nation] anticipated that attendees at [Hard Fest] could” possess, consume, and distribute “illicit drugs” and that attendees “could suffer from a drug overdose.” Therefore, according to Live Nation, it “retained security and medical vendors and coordinated with local public agencies to use reasonable measures to implement security and medical plans for the safety of attendees at [Hard Fest].”
As Hard Fest attendees approached the main entrance, they could deposit contraband, including illegal drugs, in amnesty boxes. Any contraband placed in an amnesty box was not actionable by law enforcement. Live Nation‘s security plan called for subjecting every attendee to a pat down search, including a search of the attendee‘s waistline and the inside of his or her shoes. In addition to Live Nation‘s own team of approximately 20 security personnel, Live Nation‘s security deployment at Hard Fest included law enforcement representatives and fire department personnel. Live Nation utilized the services of a third party vendor to provide drug- and bomb-sniffing dogs at Hard Fest. Live Nation also maintained that security personnel were instructed to identify and report any impaired attendees. If security personnel saw prohibited items, including illegal drugs, they were instructed “to implement their security protocol.” Live Nation established a command center at Hard Fest to coordinate communication among the various governmental agencies and contractors participating in Hard Fest.
Live Nation anticipated temperatures “above 90 degrees” during Hard Fest. Because it knew that Hard Fest attendees could suffer from “physical
Further, because Hard Fest was a “mass gathering” of over 5,000 people, the Los Angeles County Department of Health Services required Live Nation to prepare a “medical action plan.” The purpose of the county‘s requirement for a medical action plan was “[t]o ensure that participants of mass gathering events have access to the appropriate level of care and to minimize the impact of mass gathering events on the local EMS system.” After consulting with a medical doctor, Live Nation formulated a medical action plan for Hard Fest. The fire department approved the medical plan. Once the medical plan had been approved, Live Nation was obligated “to abide by that medical plan.” Live Nation‘s medical plan included five medical aid stations, two of which were primary medical centers. The primary medical centers were air conditioned and contained a cooling off area for attendees. Live Nation‘s medical plan called for the stations to be staffed with medical personnel, including physicians, nurses, and emergency medical technicians. After they were constructed, the fire department inspected the medical stations to determine “that [they were] compliant with the operational aspects of the overall medical plan for [Hard Fest].”
B. Katie Dix
Nineteen-year-old Katie arrived at Hard Fest with her friends, Darby Bednarski and Taylor Blair, at approximately 4:00 p.m. on August 1, 2015. After spending between 20 minutes to an hour waiting in line at the main entrance, Katie and her friends entered the venue around 5:00 p.m. After getting some water for their hydration backpack, the three friends spent about an hour at several different stages. At approximately 6:00 p.m. Katie and her friends went to the Pink stage dome area. Shortly thereafter, while outside the dome, Katie separated from Bednarski and Blair for approximately 10 to 15 minutes to greet Katie‘s high school friends. When Katie reunited with Bednarski and Blair, the three entered the Pink stage dome, which was not crowded. Katie then walked away from Bednarski and Blair to exit the dome and sat down on the ground at the dome‘s entrance. However, security personnel told Katie she “needed to get up and move.” Katie returned to her friends and looked “clammy.”
Approximately five to 10 minutes later while taking photos with Bednarski and Blair, Katie‘s eyes rolled back, and she collapsed. Katie fell to the
According to Bednarski, after they put Katie on the ground, the security guards “just sort of waited as if [Katie] was going to wake up.” According to Bednarski, the security personnel “didn‘t really seem like they knew what to do. They kept looking at each other. [Blair and Bednarski] got a little bit aggressive with them to take action.” According to Blair, she told the security personnel to call for medical assistance because Katie was “blue” and not breathing.2 The security guards told Blair and Bednarski that “there was nothing” they could do until the medical personnel arrived. Before medical personnel arrived, no one rendered aid to Katie. Blair estimated it took the responding medical team between 15 and 20 minutes to arrive at Katie‘s location, while according to Bednarski, “[i]t seemed like it took a very long time” to arrive, “[i]t could have been five minutes though.” After initially being unable to locate Katie, the medical
team, upon arrival, placed a manual air pump in Katie‘s mouth and began performing CPR. About 15 minutes later, the medical team transported Katie by cart to an ambulance.
At the hospital an emergency room doctor pronounced Katie dead at 8:10 p.m. The medical examiner determined that the cause of Katie‘s death was acute drug intoxication. Katie‘s blood tested positive for 3,4-methylenedioxy-methamphetamine (MDMA), commonly referred to as Ecstasy, and Ethylone, commonly known as bath salt.
C. The Dixes File This Action
Katie‘s parents filed a second amended complaint (complaint) on August 16, 2017, alleging five causes of action. The Dixes alleged causes of action for negligence, premises liability, public nuisance, wrongful death, and survival. The complaint alleged that Ecstasy is a commonly ingested illegal drug at electronic music festivals, such as Hard Fest; that Live Nation had constructive and actual knowledge that Ecstasy would be sold, distributed and consumed at Hard Fest; and that, particularly when “temperatures topped 90 degrees,” Ecstasy created a risk of serious injury or death from severe dehydration, heatstroke and other cardiovascular risks.” The complaint further alleged, “[a]fter being admitted into Hard Fest, [Katie] consumed what she thought was pure [Ecstasy], which was obtained from an unknown source at [Hard Fest] where the unlawful sale of drugs and/or controlled substances was rampant.”
The Dixes further alleged that Katie, after demonstrating “common signs of dehydration and/or drug overdose,” became “unresponsive and collapsed, sustaining a contusion to her head.” The complaint alleged that “the overcrowded and understaffed conditions at Hard Fest delayed the response of onsite security and emergency medical service providers by approximately 30 minutes.” “During this delayed response, [Katie‘s] condition worsened, and she went into full cardiac arrest.” The complaint further alleged that “the on-site security and emergency medical services providers that did ultimately respond to [Katie] were also inadequately trained and equipped.” As a result, Live Nation was “unable to provide the immediate, necessary and urgent emergency medical care and treatment that [Katie] required while still at Hard Fest.” The complaint further alleged, had there been “timely and proper medical treatment” at Hard Fest, Katie “could have been saved.”
D. Live Nation‘s Motion for Summary Judgment
1. Moving Papers
In its motion for summary judgment,3 Live Nation argued that it was entitled to judgment because the Dixes “cannot establish as a matter of law that [Live Nation] owed a duty to ensure Katie‘s safety against her own volitional choice to engage in dangerous, prohibited activities during the Hard Fest.” Live Nation argued that, based on the application of the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland), “[w]hile [Katie‘s] death is tragic, these facts do not create a duty on the part of [Live Nation] to prevent her from voluntarily ingesting a known illegal drug, or for [Live Nation] to ensure
[Katie] consumed adequate water and hydration to avoid injury or death from overdose.”
Live Nation contended that, “[g]iven the tenuous, if any, connection between any acts by Live Nation and [Katie‘s] voluntary, ill-advised decision to proactively seek out and consume [E]cstasy, and in light of the profuse evidence reflecting the painstaking efforts taken by [Live Nation] to ameliorate the effects of any self-destructive acts or neglect by attendees, even if [Live Nation] owed some hypothetical duty to [Katie], the Dixes cannot prove [Live Nation] breached such hypothetical duty.”
Live Nation pointed out that Hard Fest was “a structured event, professionally planned, and subject to governmental oversight with cooperation from
Finally, although it did not submit any expert witness testimony, Live Nation argued that, even if a duty existed, “[the Dixes] cannot demonstrate that any act of [Live Nation] was a substantial factor in causing [Katie‘s] death from [E]cstasy overdose.” Live Nation contended that “no connection exists, direct or indirect, between any act or omission on part of [Live Nation] and [Katie‘s] unfortunate overdose.”
2. The Dixes’ Opposition
In opposition to Live Nation‘s motion, the Dixes contended that “[Live Nation] had a duty to exercise reasonable, ordinary care in providing a safe environment for [Katie] and other attendees (business invites[sic]) [at Hard Fest]” According to the Dixes, “it [was] reasonably foreseeable that numerous kids, including Katie would take drugs [at Hard Fest] . . . suffer from a drug overdose, dehydration, and/or physical exhaustion, and if not tended to properly and timely, die.” Based on that knowledge, the Dixes argued that Live Nation‘s duties included: “to provide an adequate number of properly trained and equipped medical services sufficient to maintain safety; to properly train its security to handle incidents such as this one, especially given its knowledge that attendees would likely possess, distribute and/or consume illegal drugs and experience severe adverse reactions from illegal drugs; to ensure that proper timely medical care would be provided to its attendees under the circumstances; to maintain adequate medical facilities for the attendees during the event; [and] to act reasonable under the circumstances once medical assistance has begun.”
The Dixes further argued that disputed issues of fact existed regarding whether Live Nation breached these duties. The Dixes submitted evidence indicating that Live Nation did not enforce its security protocols because it failed to train the security personnel to follow the protocols. The Dixes argued that “there [were] questions of fact as to how staff actually executed” Live Nation‘s “comprehensive security protocol.” The Dixes further argued that the evidence showed that there were “insufficient water stations for the number of attendees.”
E. The Trial Court‘s Rulings and Judgment
In its written ruling the trial court granted Live Nation‘s motion for summary judgment. The trial court stated that Rowland, supra, 69 Cal.2d 108 set forth the “factors to consider in determining whether a duty” existed under a negligence cause of action. The trial court ruled that a review of the facts of this case applied to the Rowland factors demonstrated that Live Nation did not owe a duty to Katie. While stating that it was foreseeable Katie would be harmed and that the degree of certainty that Katie suffered injury was “absolute,” the trial court ruled that Katie‘s death “was not closely causally connected to [Live Nation‘s] conduct in promoting and producing Hard Fest.” Moreover, neither Rowland‘s moral blame factor nor the public policy of preventing future harm weighed in favor of imposing a duty on Live Nation. That Live Nation did not encourage or plan attendees’ drug use but rather took “numerous steps to discourage and prevent drug use,” showed that the “policy of preventing future harm [was] not strong.”
The trial court characterized the Dixes’ contention that Live Nation “had a duty to exercise reasonable care in providing medical services once care had begun,” as a “claim that [Live Nation] had a legal duty based upon nonfeasance, i.e., that there was a special relationship that created a duty to act.” The trial court pointed out that the Dixes “do not appear to have alleged this in their [complaint]; as such, it is disregarded. The [Dixes] do not, moreover, explain how or why [Live Nation] would be liable to them for any alleged breach in the standard of care by third-party medical providers.” The trial court did not rule on breach of duty or causation.
The trial court entered judgment in favor of Live Nation on March 7, 2018. The Dixes timely appealed.
A. Standards of Review
“We review a grant of summary judgment . . . de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party or a determination a cause of action has no merit as a matter of law.” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1179 (Husman).) In general the standard of review applicable to summary judgment rulings is “that any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.) “‘We liberally construe the opposing party‘s evidence and resolve all doubts in favor of the opposing party. [Citation.] We consider all evidence in the moving and opposition papers, except that to which objections were properly sustained.‘” (Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432; see also McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 957 [“[i]n determining whether a triable issue was raised or dispelled, we must disregard any evidence to which a sound objection was made in the trial court, but must consider any evidence to which no objection, or an unsound objection, was made“].) “‘[S]ummary judgment cannot be granted when the facts are susceptible to more than one reasonable inference . . . .‘” (Husman, at p. 1180.)
A defendant moving for summary judgment has the initial burden of presenting evidence that a cause of action lacks merit because the plaintiff cannot establish an element of the cause of action or there is a complete defense. (
If a defendant satisfies this initial burden, the burden shifts to the plaintiff to present evidence demonstrating there is a triable issue of material fact. (
B. The Trial Court Erred When It Concluded that Live Nation Did Not Owe a Duty to Katie
1. Applicable Law
“A plaintiff in any negligence suit must demonstrate “‘a legal duty to use due care, a breach of such legal duty, and [that] the breach [is] the proximate or legal cause of the resulting injury.‘“” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142 (Kesner).) “Duty is a question of law for the court, to be reviewed de novo on appeal.” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770 (Cabral).) “California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. (
Although there is no duty to come to the aid of another (Williams v. State of California (1983) 34 Cal.3d 18, 23), “a duty to warn or protect may be found if the defendant has a special relationship with the potential victim that gives the victim a right to expect protection.” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619 (Regents); see Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129 (Zelig) [duty to assist or protect may arise if “a special relation exists between the actor and the other which gives the other a right to protection“]; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 789 (Lopez) [“some relationships by their very nature are ‘special’ ones giving rise to an ‘initial duty’ to come to the aid of others, regardless of whether there has been detrimental reliance in a particular case“]; Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 325 (Rotolo) [“[a] defendant who is found to have a ‘special relationship’ with another may owe an affirmative duty to protect the other person from foreseeable harm, or to come to the aid of another in the face of ongoing harm or medical emergency“], disapproved on another ground in Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 328-329, 344, fn. 15 (Verdugo).) “’ “This rule derives from the common law‘s distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter.” ’ ” (Zelig, at p. 1129.)
“Relationships that have been recognized as ‘special’ share a few common features. Generally, the relationship has an aspect of dependency in which one party relies to some degree on the other for protection.” (Regents, supra, 4 Cal.5th at p. 620.) The Supreme Court in Regents explained, “The corollary of dependence in a special relationship is control. Whereas one party is dependent, the other has superior control over the means of protection. ‘[A] typical setting for the recognition of a special relationship is where “the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff‘s welfare.‘” ” (Id. at p. 621.)
Relying on the Third Restatement of Torts, the Court in Regents held “a business or landowner with invited guests” is a special relationship “that may support a duty to protect against foreseeable risks.” (Id. at p. 620.) In Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224 (Delgado) the Court stated, “Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.” (Id. at p. 235; see Lopez, supra, 40 Cal.3d at p. 789 [“[t]he relationship between a common carrier and its passengers is just such a special relationship, as is the relationship between an innkeeper and his or her guests, between a possessor of land and those who enter in response to the landowner‘s invitation and between a psychiatrist and his or her patients“]; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806 (Peterson) [“[a]mong the commonly recognized special relationships are that between a possessor of land and members of the public who enter in response to the landowner‘s invitation“]; University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 444 [“[t]he relationship between a possessor of land and an invitee is a special relationship giving rise to a duty of care“]; Rotolo, supra, 151 Cal.App.4th at p. 326 [“[c]ourts have found that a “‘special relationship“’ exists between business proprietors and their patrons or invitees . . .“]; see also Morris v. De La Torre (2005) 36 Cal.4th 260, 274 [“[i]t is well established that a proprietor‘s special-relationship-based duty to customers or invitees extends beyond the structure of a premises to areas within the proprietor‘s control“].)4
In considering the scope of the department store‘s duty to protect the health of its patrons and applying the analysis from prior cases involving a business owner‘s duty to protect patrons against potential third party criminal conduct, the Court stated, “when the precautionary medical safety measures that a plaintiff contends a business should have provided are costly or burdensome rather than minimal, the common law does not impose a duty on a business to provide such safety measures in the absence of a showing of a heightened or high degree of foreseeability of the medical risk in question.” (Verdugo, supra, 59 Cal.4th at p. 339; cf. Delgado, supra, 36 Cal.4th at p. 245 [“[h]eightened foreseeability is satisfied by a showing of prior similar criminal incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults in that location) and does not require a showing of prior nearly identical criminal incidents“].) Finding that the burden in acquiring and providing an AED at a department store would be “considerably more than a minor or minimal burden” and that “the risk of [sudden cardiac arrest] is no greater at [a department store] than at any other location open to the public,” the Court held that the department store did not owe a duty to its customers to acquire and make available an AED. (Verdugo, at p. 340.)5
Live Nation, as the operator of an electronic music festival, had a special relationship with its 65,000 festival invitees. Once they passed through security and entered the large enclosed grounds for the 11-hour festival, the festival attendees were dependent on Live Nation. In the event of a medical emergency, Live Nation controlled not only if and when attendees would receive medical care, but also the nature and extent of the care. Attendees could not summon their own medical care. Attendees also depended on Live Nation to provide adequate security.
Based on its prior experience with producing similar festivals, Live Nation knew that a “major risk” of conducting an electronic music festival was that attendees would “consume illegal substances” and suffer “negative effects,” including “overdose[s].” Recognizing the “high degree” of foreseeability of illegal drug use and medical emergencies, Live Nation “retained security and medical vendors and coordinated with local public agencies to use reasonable measures to implement security and medical plans for the safety of attendees.” Rather than arguing the burdens were too high, Live Nation assumed the burdens of detecting unlawful drugs and providing medical care to attendees. Under these circumstances, because of the special relationship between Live Nation and Hard Fest attendees, Live Nation owed a duty of reasonable care to Katie and the other Hard Fest attendees. (See Delgado, supra, 36 Cal.4th at p. 237 [“foreseeability is a ‘crucial factor’ in determining the existence and scope of a legal duty“]; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434 [“[t]he most important of these considerations in establishing a duty is foreseeability“].)
Live Nation‘s argument that it did not owe Katie a duty because she voluntarily consumed an illegal drug and died from acute drug intoxication may be relevant to causation or comparative fault, but not duty. Live Nation is essentially arguing a comparative fault issue under the duty rubric. California has “abandoned the time-worn contributory negligence rule which completely exonerated a negligent defendant whenever an injured plaintiff was partially at fault for the accident . . . .” (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 607.) Under California‘s “pure” comparative fault doctrine, the trier of fact “assign[s] responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties” and “the damages awarded shall be diminished in proportion to the amount of negligence attributable to the
3. Rowland Factors
““‘Courts . . . invoke[ ] the concept of duty to limit generally ‘the otherwise potentially infinite liability which would follow from every negligent act . . . .‘“‘” (Kesner, supra, 1 Cal.5th at p. 1143; accord, Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) “The conclusion that a defendant did not have a duty constitutes a determination by the court that public policy concerns outweigh, for a particular category of cases, the broad principle enacted by the Legislature that one‘s failure to exercise ordinary care incurs liability for all the harms that result.” (Kesner, at p. 1143.) “‘The history of the concept of duty in itself discloses that it is not an old and deep-rooted doctrine but a legal device of the latter half of the nineteenth century designed to curtail the feared propensities of juries toward liberal awards.‘” (Ibid.; accord, Dillon v. Legg (1968) 68 Cal.2d 728, 734.) “The court may depart
from the general rule of duty, however, if other policy considerations clearly require an exception.” (Regents, supra, 4 Cal.5th at p. 628; accord, Kesner, supra, 1 Cal.5th at p. 1143; Rowland, supra, 69 Cal.2d at p. 112.)
When determining whether policy considerations weigh in favor of an exception to a duty of care, the Court in Rowland held that the most important factors are “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant‘s conduct and the injury suffered, the moral blame attached to the defendant‘s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland, supra, 69 Cal.2d at p. 113.)
Because a duty is premised on the special relationship between operators of an electronic music festival and festival attendees and
Because a judicial decision on the issue of duty entails line-drawing based on policy considerations, “the Rowland factors are evaluated at a
“The Rowland factors fall into two categories. The first group involves foreseeability and the related concepts of certainty and the connection between plaintiff and defendant. The second embraces the public policy concerns of moral blame, preventing future harm, burden, and insurance availability. The policy analysis evaluates whether certain kinds of plaintiffs or injuries should be excluded from relief.” (Regents, supra, 4 Cal.5th at p. 629; accord, Kesner, supra, 1 Cal.5th at p. 1145.)
a. Foreseeability factors
“‘The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care . . . is whether the injury in question was foreseeable.’ [Citations.] In examining foreseeability, ‘the court‘s task . . . “is not to decide whether a particular plaintiff‘s injury was reasonably foreseeable in light of a particular defendant‘s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed. . . .“‘” (Regents, supra, 4 Cal.5th at p. 629; accord, Kesner, supra, 1 Cal.5th at p. 1145.) Prior similar incidents are relevant in analyzing foreseeability. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 537-538.)
“For purposes of duty analysis, “‘foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.“. . . [I]t is settled that what is required to be foreseeable is the general character of the event or harm‒e.g., being struck by a car while standing in a phone booth‒not its precise nature or manner of occurrence.‘” (Kesner, supra, 1 Cal.5th at p. 1145; accord, Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57-58.)
“The second factor, ‘the degree of certainty that the plaintiff suffered injury’ [citation], may come into play when the plaintiff‘s claim involves intangible harm, such as emotional distress. [Citation.] Here, however, we are addressing claims for physical injuries that are capable of identification.” (Regents, supra, 4 Cal.5th at p. 630.) The Dixes alleged that Live Nation‘s negligence contributed to Katie‘s death; “their injuries are certain and compensable under the law.” (Kesner, supra, 1 Cal.5th at p. 1148.)
“The third factor is ‘the closeness of the connection between the defendant‘s conduct and the injury suffered.’ [Citation.] ‘Generally speaking, where the injury suffered is connected only distantly and indirectly to the defendant‘s negligent act, the risk of that type of injury from the category of negligent conduct at issue is likely to be deemed unforeseeable. Conversely, a closely connected type of injury is likely to be deemed foreseeable.‘” (Regents, supra, 4 Cal.5th at pp. 630-631.)
Here, Katie voluntarily consumed an illegal drug, and someone, likely a Hard Fest attendee, supplied it. There was relevant intervening conduct, but all of the conduct, including Katie‘s illegal drug consumption and overdose, was entirely foreseeable at an electronic music festival. An attendee‘s severe injury or death from a drug overdose was a risk created, in part, by an electronic music festival operator‘s negligence in failing to provide adequate security and appropriate medical care. The injury was closely connected to Live Nation‘s alleged negligent conduct. (Kesner, supra, 1 Cal.5th at p. 1148 [“the touchstone of the analysis is the foreseeability of that intervening conduct“].)
The foreseeability factors weigh against finding an exception to the legal duty of ordinary care for operators of electronic music festivals.
‘“A duty of care will not be held to exist even as to foreseeable injuries . . . where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability.‘” (Regents, supra, 4 Cal.5th at p. 631; accord, Kesner, supra, 1 Cal.5th at pp. 1150-1152.) Although Rowland‘s foreseeability factors weigh against recognizing an exception, “we must also consider whether public policy requires a different result.” (Regents, at p. 631.)
The Supreme Court has held that “[w]e have previously assigned moral blame, and we have relied in part on that blame in finding a duty, in instances where the plaintiffs are particularly powerless or unsophisticated compared to the defendants or where the defendants exercised greater control over the risks at issue.” (Kesner, supra, 1 Cal.5th at p. 1151; see Regents, supra, 4 Cal.5th at p. 632 [“[s]ome measure of moral blame does attach to a university‘s negligent failure to prevent violence against its students“]; Peterson, supra, 36 Cal.3d at p. 814 [failures to implement “protective measures” to reduce risk of assault at school campus parking lot “indicate that there is moral blame attached to the [community college‘s] failure[s] to take steps to avert the foreseeable harm“].)
Here, music festival operators, such as Live Nation, benefit financially from the festivals. Moreover, at electronic music festivals, given their vast scale and perimeter security, attendees are dependent on the operator to provide a safe environment and adequate medical care in the event of an emergency. An attendee cannot obtain medical care on his or her own. Compared to the operator of the music festival, attendees are relatively powerless or unsophisticated. Some moral blame attaches to a music festival operator‘s negligent failure to prevent foreseeable harm to attendees. This factor weighs against creating an exception to a duty of ordinary care.
“The overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible. The policy question is whether that consideration is outweighed, for a category of negligent conduct, by laws or mores indicating approval of the conduct or by the undesirable consequences of allowing potential liability.” (Cabral, supra, 51 Cal.4th at pp. 781-782.) Here, Live Nation has not identified any undesirable consequences of allowing potential liability. Moreover, Live Nation recognized the need for adequate security and medical care at Hard Fest. Further, because Hard Fest was a “mass gathering” of over 5,000 people, the county required the approval and implementation of a medical action plan to “ensure” that attendees “have access to the appropriate
As for the burden that a tort duty would impose on the defendant and the community (see Kesner, supra, 1 Cal.5th at p. 1153; Rowland, supra, 69 Cal.2d at p. 113), Live Nation has already recognized the risks and undertaken the burden to provide security measures and medical care at its electronic music festivals. Under these circumstances, there is no reason to create an exception to the duty to exercise reasonable care in one‘s activities.
The final policy factor in a duty analysis is the availability of insurance for the risks involved. (Regents, supra, 4 Cal.5th at p. 633; Rowland, supra, 69 Cal.2d at p. 113.) Live Nation has “offered no reason to doubt” an electronic music festival operator‘s ability to obtain insurance coverage for the conduct of an electronic music festival. (See Regents, at p. 633.)
Live Nation‘s reliance on Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398 (Sakiyama) is misplaced.9 In Sakiyama, after leaving an all-night “rave” party held at defendant‘s roller skating rink, two teenagers were killed and another two were severely injured in a single car accident. The accident occurred over an hour after the teenagers left the party and about 30 miles away from the skating rink. (Id. at p. 403.) Although the skating rink owner “took numerous steps to confiscate and remove both drugs and drug paraphernalia from the facility,” one of the teenagers purchased Ecstasy at the party and at least three of the teenagers took the drug. (Ibid.) Recognizing that “preventing vehicle accidents which result from drug use and/or fatigue [was] an important goal,” the court in Sakiyama held that the skating rink owner “had no duty to prevent [attendees] from driving whenever they chose to leave,
even if they were too fatigued or impaired to do so safely.” (Id. at pp. 410, 412.)
Even assuming the skating rink owner knew drugs would be used during the all-night party, the court further held the owner “that leases its facility for a one-night event does not owe a duty of care to a person injured hours later at a remote location as a result of voluntary drug use and/or fatigue.” (Sakiyama, supra, 110 Cal.App.4th at p. 406.) The court held that its conclusion of no duty was “consistent with social host liability decisions which have held that defendants who simply provide venues for drinking
In reaching its holding, the court in Sakiyama distinguished Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 (Weirum). In Weirum a radio station with “an extensive teenage audience” held a contest for listeners to locate a radio disc jockey who was driving around Los Angeles. While attempting to locate the peripatetic disc jockey, teenagers negligently caused the death of a third party driver in another vehicle. (Id. at p. 43.) The Court held that the radio station owed a duty to the decedent driver because “it was foreseeable” that the youthful radio listeners “in their haste would disregard the demands of highway safety.” (Id. at p. 47.) Because the intervening conduct, “reckless conduct by youthful contestants,” was foreseeable, the Court held “[i]t [was] of no consequence that the harm to decedent was inflicted by third parties acting negligently.” (Ibid.) According to the court in Sakiyama, the radio station in Weirum “had ongoing direct involvement in the act that caused the accident and injuries,” while the skating rink owner “had no such direct link to the unfortunate accident in this case.” (Sakiyama, supra, 110 Cal.App.4th at p. 408.)
Here, in contrast to Sakiyama where the accident occurred after the event ended and 30 miles away, all conduct at issue occurred wholly within the grounds that Live Nation exclusively controlled. Knowing that overdoses could result from the consumption of illegal drugs, Live Nation invited 65,000 attendees to an 11-hour event inside large secured grounds. Live Nation assumed responsibility to provide security and medical care. In the event of an overdose or other medical emergency, an attendee was dependent on Live Nation to provide appropriate medical care. As in Weirum, supra, 15 Cal.3d 40, Live Nation thus had “ongoing direct involvement” in the unfortunate accident. Further, Live Nation‘s position as an operator of an 11-hour music festival with 65,000 attendees was far from what could be considered a “social host.”
C. Breach of Duty and Causation Present Triable Issues of Material Fact
The Dixes argue that triable issues of material fact exist regarding the breach of duty and causation elements of their negligence cause of action. We agree.
1. Triable Issues of Fact Preclude Summary Judgment Regarding Breach of Duty
Even assuming that Live Nation carried its initial burden on summary judgment to show that breach of duty “cannot be established” and the burden
The Dixes also presented evidence from which a reasonable jury could infer that Katie obtained the drug she ingested at Hard Fest. Further, the Dixes submitted admissible evidence that Live Nation negligently responded to Katie‘s emergency. Accordingly, triable issues of fact exist regarding whether Live Nation breached its duty to Katie. (Sharufa v. Festival Fun Parks, LLC (2020) 49 Cal.App.5th 493, 497 [to determine whether a “defendant is entitled to summary [judgment] . . . .we review the entire record and ask whether a reasonable trier of fact could find in plaintiff‘s favor“]; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [“if any evidence or inference therefrom shows or implies the existence of the required element(s) of a cause of action, the court must deny a defendant‘s motion for summary judgment . . . because a reasonable trier of fact could find for the plaintiff“]; see also McHenry v. Asylum Entertainment Delaware, LLC (2020) 46 Cal.App.5th 469, 479, review granted July 15, 2020, S262297 [a triable issue of material fact exists if “‘the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof‘“].)
2. Live Nation Did Not Meet Its Initial Burden of Showing the Dixes Did Not Have Sufficient Evidence of Causation
Live Nation argues that the “proximate cause of [Katie‘s] death was her decision to consume an illegal drug.” However, Live Nation did not support this argument with citation to any legal authority. Live Nation therefore forfeited the argument. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [“[i]f a party‘s briefs do not provide legal argument and citation to authority on each point raised, “‘the court may treat it as waived, and pass it without consideration““]; In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 227 [“‘issues not supported by citation to legal authority are subject to forfeiture‘“].)
Even if Live Nation‘s causation argument is considered, because the Dixes alleged that Live Nation‘s negligent conduct contributed to Katie‘s death (see Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1403 [“‘the pleadings define the issues to be considered on a motion for summary judgment‘“]), to obtain summary judgment in its favor, Live Nation was required to present evidence sufficient to negate the Dixes’ contention. (
Under these circumstances, Live Nation did not carry its initial burden to negate the causation element of the Dixes’ negligence cause of action. (See Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1116 [“[t]o meet its initial burden in moving for summary judgment, a defendant must present evidence that either ‘conclusively negate[s] an element of the plaintiff‘s cause of action’ or ‘show[s] that the plaintiff does not possess, and cannot reasonably obtain,’ evidence necessary to establish at least one element of the cause of action“]; Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 354 [“[w]here the evidence submitted by a moving defendant does not support judgment in his favor, the court must deny the motion without looking at the opposing evidence, if any, submitted by the plaintiff“].)
In any event, the Dixes submitted an unrebutted expert opinion that “had advanced medical care been readily available,” Katie “would have survived the drug ingestion.” (See Towns v. Davidson (2007) 147 Cal.App.4th 461, 472 [“[g]enerally, a party opposing a motion for summary judgment may use declarations by an expert to raise a triable issue of fact on an element of the case provided the requirements for admissibility are established as if the expert were testifying at trial“].)10
The judgment is reversed. The Dixes shall recover their costs on appeal.
DILLON, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.