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Nevo v. Knitting Factory Brooklyn, Inc.

Supreme Court of New York, Second Department

April 26, 2017

David Nevo, respondent,
v.
Knitting Factory Brooklyn, Inc., appellant, et al., defendants. Index No. 500693/12

          Havkins Rosenfeld Ritzert & Varriale, LLP, New York, NY (Steven H. Rosenfeld of counsel), for appellant.

          Marcel Weisman, New York, NY (Ezra Holczer of counsel), for respondent.

          JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE, BETSY BARROS, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the defendant Knitting Factory Brooklyn, Inc., appeals from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated November 12, 2015, as denied that branch of its motion which was for summary judgment dismissing the first, third, and fourth causes of action insofar as asserted against it.

         ORDERED that the order is affirmed insofar as appealed from, with costs.

         The plaintiff alleged that he sustained personal injuries while attending a "metal" music concert at the defendant Knitting Factory Brooklyn, Inc. (hereinafter the Knitting Factory). The plaintiff, a first-time attendee of a general admission metal music show, allegedly was pushed from behind into a "mosh pit" and sustained injuries when, as he was attempting to exit the mosh pit, one of the mosh pit participants hit him in the eye.

         According to the deposition testimony of the general manager of the Knitting Factory, there were two state-licensed security guards on duty that evening and the show was almost sold out. The general manager also testified that, at the Knitting Factory, "moshing" would be stopped if and when it became unsafe and affected bystanders.

         The plaintiff commenced this action against, among others, the Knitting Factory, alleging that it was negligent in the ownership, operation, direction, supervision, possession, and control of the venue where the incident occurred. The Knitting Factory moved, inter alia, for summary judgment dismissing the first, third, and fourth causes of action, each sounding in negligence, insofar as asserted against it, on the basis of the doctrine of primary assumption of risk. In the alternative, the Knitting Factory argued that the incident was caused by an unforseen and sudden act of a third-party over which it had no control and which amounted to an unforeseeable criminal act and that adequate security measures had been taken. The Supreme Court denied that branch of the motion.

         A property owner must act in a reasonable manner to prevent harm to those on its premises, which includes a duty to control the conduct of persons on its premises when it has the opportunity to control such conduct, and is reasonably aware of the need to do so (see Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 518-519; Rishty v DOM, Inc., 67 A.D.3d 662, 663). The doctrine of primary assumption of risk "applies when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'" (Custodi v Town of Amherst, 20 N.Y.3d 83, 88, quoting Bukowski v Clarkson Univ., 19 N.Y.3d 353, 356). A person who chooses to engage in such an activity "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the [activity] generally and flow from such participation" (Morgan v State of New York, 90 N.Y.2d 471, 484). The duty owed in these situations is "a duty to exercise care to make the conditions as safe as they appear to be" (see Turcotte v Fell, 68 N.Y.2d 432, 439). The doctrine has generally been restricted "to particular athletic and recreative activities in recognition that such pursuits have enormous social value' even while they may involve significantly heightened risks'" (Custodi v Town of Amherst, 20 N.Y.3d at 88, quoting Trupia v Lake George Cent. School Dist., 14 N.Y.3d 392, 395), and are, therefore, "worthy of insulation from a breach of duty claim" (Custodi v Town of Amherst, 20 N.Y.3d at 89).

         Here, even assuming, without deciding, that attending a metal music concert where "moshing" takes place is a qualified activity to which the doctrine may properly be applied (see Brosnan v 6 Crannell Street, LLC, ___A.D.3d ___, 2017 NY Slip Op 01840 [2d Dept 2017]; compare Duffy v Long Beach City Sch. Dist., 134 A.D.3d 761, 763-764, and Wolfe v North Merrick Union Free Sch. Dist., 122 A.D.3d 620, 621, with Schoneboom v B.B. King Blues Club & Grill, 67 A.D.3d 509), under the facts presented here, the Knitting Factory failed to eliminate triable issues of fact as to whether it met its duty to exercise care to make the conditions at the subject venue as safe as they appeared to be (see Custodi v Town of Amherst, 20 N.Y.3d at 88; Turcotte v Fell, 68 N.Y.2d at 439), and did not unreasonably increase the usual risks inherent in the activity of concert going (see Braile v Patchogue Medford Sch. Dist. of Town of Brookhaven, Suffolk County, N.Y., 123 A.D.3d 960; Zayat Stables, LLC v NYRA, Inc., 87 A.D.3d 1063; Abato v County of Nassau, 65 A.D.3d 1268; Muniz v Warwick School Dist., 293 A.D.2d 724; Greenburg v Peekskill City School Dist., 255 A.D.2d 487). The Knitting Factory also failed to eliminate triable issues of fact as to whether the plaintiff assumed the risk of injury (see Maddox v City of New York, 66 N.Y.2d 270, 278; Abato v County of Nassau, 65 A.D.3d 1268; cf. Schooneboom v B.B. King Blues Club & Grill, 67 A.D.3d 509), whether the plaintiff's alleged injuries were foreseeable, and whether it provided adequate security measures and, if not, whether its failure was a proximate cause of the plaintiff's alleged injuries (see Rishty v DOM, Inc., 67 A.D.3d 662).

         Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the causes of action sounding in negligence insofar as asserted against it, regardless of the sufficiency of the ...


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