For Those About to Mosh (Assume the Risk)

Elliot Rishty, a fifteen-year-old kid, was injured while attending a “Senses Fail” concert with his dad.  The kid suffered the classic elbow-to-the-nose injury after a mosh pit started.  The kid and his dad are now suing the club for failing to  prevent the injury.

Not cool.  Who can blame the club for not wanting to pay out money for this kid’s bloody nose?  This wasn’t a crazy riot that the club ignored.  It was a small mosh pit for a pop-punk band.

The trial court agreed and granted summary judgment in favor of the club.  The court reasoned that the club owed no duty to the kid because the injury was not a foreseeable one.

On appeal, the court reversed.  The grounds for the reversal make sense — the club could have foreseen the injury once moshing began.  But what is odd is that the court rejected a seemingly winning argument for the club — that the kid assumed the risk of being injured when he chose to stand by the mosh pit.  Seriously,  everyone knows that if you are anywhere  near a mosh pit, you might get hit by someone (even if you are not actively moshing).  If you are worried about getting injured, go to the back of the club.  But for whatever reason, the court didn’t even mention this argument.   (Siouxsie has not read the briefs, but according to a blawger who has, the club’s assumption-of-risk argument was “unavailing.”)

It gets even weirder.  Two weeks later, another New York appellate court reached a completely different result in a strikingly similar mosh-pit case.  In Schoneboom v. B.B. Blues Club & Grill, a patron was injured at a concert while near a mosh pit.  “[Schoneboom] got shoved from behind into the side of his knee and ended up with a torn anterior cruciate ligament and a torn meniscus which required reconstructive knee surgery.”  Unlike the litigious teenager in Rishty, the appellate court held that the guy with the busted knee could not sue because he had assumed the risk by his proximity to the moshing.

What?  On their face, these cases could not be more similar.

One other blawger tried to reconcile these opinions and noted these distinguishing factors:   “Schoneboom was 36 years old at the time, had participated in moshing at over 30 concerts and saw violent moshing escalating throughout the evening before deciding to stand near the mosh pit”; whereas “Rishty was only 15 years old at the time, there’s no evidence he’d ever participated in moshing and it appears that moshing may have been ongoing at his concert for only 15 minutes or so before he was struck.”

The courts’ consideration of  the concert-goer makes some sense, but does not make for a great rule.

Instead, courts should consider the type of concert being attended when trying to determine whether a concert-goer assumed the risk.

For example, who in their right mind would expect a crazy and out-of-control mosh pit to start at a Senses Fail concert?   The band is described as “a slick amalgam of post-hardcore chuggery and emo heartbreak . . . .” The band makes accessible, derivative punk-pop music. Their music is enjoyable, but not exactly hardcore.  Just listen for yourself . . .

Senses Fail — “Can’t Be Saved”

You wouldn’t expect to leave that concert bloody.

Schoneboom, on the other hand, involved a Crumbsuckers show, which unlike the “Senses Fail” concert, is totally hardcore.  They are described as “one of the original purveyors of 1980’s crossover: the bridging of metal and hardcore that temporarily united the two divergent tribes of metalheads and punks into one, bloody, unified mosh pit.” Bloody mosh pit.  Now we are talking.  So, if you go to a Crumbsuckers show, you can expect to see some serious moshing.   And if you stand anywhere near the mosh pit, you should assume some sort of injury is possible.   Don’t take Siouxsie’s word for it.  Check out the Crumbsuckers’ tunes on their myspace page.

Courts need to stop looking at the moshing experience of the concert-goer and instead focus on the music and type of concert.  It is the concert and not the concert-goer that should determine whether one has assumed the risk.

Source — Overlawyered.com

Bonus Track —

For Those About to Rock (We Salute You)

NSFW Bonus Video — The worst mosh pit ever.  Footage was filmed at the Insane Clown Posse‘s annual outdoor Bacchanalia called “The Gathering.”  For an amusing infomercial about this event  click here.

Photo Credit: http://www.flickr.com/photos/tatu43/ / CC BY 2.0

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~ by siouxsielaw on December 30, 2009.

3 Responses to “For Those About to Mosh (Assume the Risk)”

  1. To sum Hon. L. Hand: the club’s liability is based on the probability harm times the magnitude of the band’s suckiness. Happy New Year Siouxie Law. Love the blog! Wearing more black is on the resolutions list.

  2. I have to agree and found this very interesting 🙂

  3. In the Rishty case, he was at first standing away from the mosh pit, within 15 minutes the mosh pit formed closer to him. Therefor the damage done to the kids nose was unforeseeable. I believe the club is liable for the damage considering that there was no medical staff on duty. Correct me if i am wrong.

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