Opinion
No. CV 02-0468634 S
March 7, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT OF THE DEFENDANT L.A.L. DETECTIVE AGENCY, INC. (#136) RE MOTION FOR SUMMARY JUDGMENT ( #137)
This is a personal injury lawsuit wherein the minor plaintiff, Jessica Talmadge, alleges that she was injured as a result of being knocked to the floor during a music concert. The present suit is brought against two defendants, CEE-IT Live, LLC and L.A.L. Detective Agency, Inc. CEE-IT Live, LLC did business as the Webster Theater (hereinafter "Webster Theater"), the location of the concert. L.A.L. Detective Agency provided security at the concert.
In the present motions, both defendants have moved for summary judgment asserting that the plaintiff was injured as a result of a random and spontaneous event. They further assert they do not owe a duty of care to protect persons like the plaintiff from spontaneous random injury because such injury is not foreseeable. The plaintiff objects to the motions. For the reasons set forth below, the motions for summary judgment must be denied.
BACKGROUND
The plaintiff's deposition indicates that on November 6, 2000, she attended a concert at the Webster Theater. While she was standing at a metal barricade in front of the stage, she noticed security personnel between the barricade and the stage. While at that spot, the pushing of the crowd behind her caused her to become pressed against the barricade to the point where she requested help from a security guard who placed her on the other side of the barricade.
After catching her breath, she re-entered the crowd area. During the concert, the plaintiff noticed incidents of "crowd surfing" but did not see any of the offenders removed by security personnel. Plaintiff also noticed the absence of security personnel along the sides of the room and in the crowd. While standing in the crowd, the plaintiff stated that the crowd surged and a girl hit her causing her to fall and hit her elbow sustaining injury. Plaintiff did not see the girl prior to the accident.
As explained during oral argument, crowd surfing occurs when a person is lifted up by persons in the crowd and passed forward from the arms of one person to another toward the concert stage.
The deposition of Hugh Kearney, event coordinator employed by L.A.L. Detective Agency, Inc., indicates that the concert on November 6, 2000 attracted a large crowd and there was a lot of crowd surfing. As the crowd surfers approached the stage, security personnel would catch the surfers as they came over the barrier and return them to the crowd.
DISCUSSION
Summary judgment is to be rendered if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. Appleton v. Board of Education, 254 Conn. 205, 209 (2000). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 494, 500 (1988).
As a general rule, negligence cases are not susceptible to summary adjudication but should be resolved by trial in the ordinary manner Fogerty v. Rashaw, 193 Conn. 442, 446 (1984). The issue of whether a defendant owed a duty of care, however, may be appropriate for summary judgment because the question is one of law. Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997).
The defendants assert that they did not owe a duty to the plaintiff to protect her from injury from acts of random spontaneity that were not foreseeable. In support of this assertion they rely on a New York case, W. Stratford v. 6 Crannel Street, Inc., 759 N.Y.S.2d 231 (App.Div.3d Dept. 2003). In W. Stratford, the plaintiff while walking on to a crowded dance floor at a nightclub, was pushed to the floor and punched and kicked by unknown assailants. While the patrons at the nightclub were dancing in a style known as "moshing," that involved jumping and repeated physical contact, the attack on the plaintiff was not related to the dancing. The trial court in W. Stratford granted summary judgment in favor of the defendant because the attack was not reasonably foreseeable to the nightclub.
At the time of the alleged concert incident, the plaintiff was a business invitee and the defendants owed her a duty to keep the concert premises in a reasonably safe condition. Baptiste v. Better Valu-U Supermarket, Inc., 262 Conn. 135, 146 (2002). In other words, the defendants owed plaintiff a duty to exercise reasonable care to protect her from dangers actually known by them or reasonably foreseeable. Id., 138-41. Moreover, the test of whether a duty of care exists does not require that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is would the ordinary person in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result. Jaworski v. Kiernan, 241 Conn. 399, 405 (1997).
In the present case there is an issue of fact as to whether the manner in which the defendants handled the crowd surfers encouraged further activity of this kind. Allowing repeated uncontrolled crowd surfing and the attendant surging and movement within the crowd, poses a foreseeable risk that someone in the crowd could be injured. The defendants had a duty to protect their invitees from this type of harm. Whether the plaintiff's injury were the result of this type of crowd movement as opposed to an unrelated spontaneous act, poses an issue of causation rather than duty. This is an issue that should be resolved at trial.
On the present record, construing the facts in favor of the plaintiff, summary judgment must be denied.
So Ordered.
Devlin, J.