Darago v. Live Nation Entm't, Inc.
| Decision Date | 16 August 2021 |
| Docket Number | Case No. 5:18-cv-2639 |
| Parties | Kevin DARAGO, et al., Plaintiffs, v. LIVE NATION ENTERTAINMENT, INC. et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Robert C. Meeker, Sr., Ben T. Manayan, Jr., Colin G. Meeker, Freeland D. Oliverio, Blakemore, Meeker & Bowler, Akron, OH, for Plaintiffs.
Bradley A. Wright, Nicholas P. Resetar, Roetzel & Andress, Akron, OH, for Defendants Live Nation Worldwide, Inc., Bring The Awesome, Inc., Mark Hoppus, Travis Barker, Matt Skiba.
This personal injury action, before the Court on the basis of diversity, arises out of injuries sustained by plaintiff during an August 9, 2016 concert at an outdoor music venue in Cuyahoga Falls, Ohio. Now before the Court is the summary judgment motion of defendants. (Doc. No. 85 ["MSJ"].) Plaintiff opposes the motion (Doc. No. 89 ["Opp'n"]),1 defendants have filed a reply (Doc. No. 94 ["Reply"]), and plaintiff has filed a sur-reply.2 (Doc. No. 97 ["Sur-Reply"].) For the reasons that follow, summary judgment in favor of defendants is granted, and this case is dismissed.
Blossom Music Center ("Blossom") is an outdoor amphitheater in Cuyahoga Falls, Ohio. Originally opened in 1968 as the summer home for the Cleveland Orchestra, today it also hosts a variety of bands and musical artists each year for a series of concerts. (Doc. No. 89, Ex. 1 [ ]) at 1608–09.) It is undisputed that the venue contains a covered pavilion with permanent seating, a lawn area with standing room capacity, a pit area immediately in front of the stage with additional standing room capacity, and a stage. A barricaded buffer zone separates the "pit" from the performance stage so as to prevent guests from approaching the stage and interfering with the performance. (Doc. No. 85-1 (Affidavit of Ronald Tynan, Jr. ["Tynan Aff."]) ¶¶ 14–15; see Doc. No. 52 (First Amended Complaint ["FAC"]) ¶¶ 31–34.) Blossom has the capacity to hold approximately 21,051 concert-goers. (See Bl. Wi. Pg. at 1608.)
In 1999, Blossom was operated by Cuyahoga Falls Concerts, Inc. ("CFCI"). (See Tynan Aff. ¶¶ 4–5.) On October 13, 1999, CFCI entered into payroll service agreements with Cast & Crew Productions Payroll, Inc. ("C&C") and BTL Payroll, Inc. ("BTL"). (Id. , Exhibits A and B.) Relevant to the pending summary judgment motion, both agreements contained similar language that sets forth the parties’ respective duties. The agreement with C&C, which covered employees subject to bargaining agreements, is representative and provided, in relevant part:
2. Payroll Services. For the convenience of and at the specific request of [CFCI], [CFCI] desires to have [C&C] become the designated "EMPLOYER OF RECORD" and provide payroll services on behalf of [CFCI] for all bargaining unit employees performing covered services .... Said payroll services provided by [C&C] on the above referenced production for the foregoing groups of covered employees shall be based on the records of employment prepared by [CFCI] and provided to [C&C]. On the basis of such records supplied by [CFCI], [C&C] shall compute and pay all taxable wages, allowances, penalties, fees, fringe benefits and hourly pension, welfare or other Trust Fund payments called for under the applicable collective bargaining agreements. In addition, [C&C] shall compute and pay all required statutory payments and payroll taxes required with respect to the aforementioned employee payments. In addition, [C&C] shall issue Employee W-2's or 1099's for the above referenced production for the foregoing groups of covered employees which shall be based on the records of employment prepared by [CFCI] and provided to [C&C]. Worker's Compensation Insurance for employees providing covered services will be provided to [CFCI] by [C&C]. Notwithstanding the foregoing, the parties understand and agree that day-to-day supervision and direction of employees in the performance of their covered services for the benefit of the particular production shall be the sole responsibility of [CFCI].
(Id. , Exhibit A ¶ 2, emphasis added, footnote omitted.) CFCI is not a party to this litigation.
Defendant Live Nation Worldwide, Inc. ("Live Nation") is a party defendant, and the path it took to becoming the operator of Blossom is both complex and relevant to the issues presented on summary judgment. (See Doc. No. 95 (Supplemental Affidavit of Ronald Tynan, Jr. ["Tynan Aff. Supp."]) ¶ 8.) "In 2006, Live Nation Entertainment, Inc. ("LNEI") acquired House of Blues Entertainment, Inc. ("HBEI"), which included its subsidiary, House of Blues Concerts, Inc. ("HBCI")." (Id. ¶ 6.) "Following the acquisition, in 2006 HBCI became a wholly owned subsidiary of HOB Entertainment, LLC ("HOB")." (Id. ¶ 7.) Later still in 2006, HOB became the wholly owned subsidiary of Live Nation. (Id. ¶ 8.) In 2009, CFCI merged into HBCI, which, as previously noted, is a subsidiary of HOB, a subsidiary of Live Nation. (Id. ¶ 10; see id. ¶ 8.) After CFCI's merger with HBCI, Live Nation assumed all responsibilities relative to the operations of Blossom as well as the aforementioned payroll agreements with C&C and BTL. (Id. ¶ 11; see id. ¶ 8.)
In 1982, plaintiff Kevin Darago ("Darago") graduated from the University of Akron with a degree in business administration and began a career in accounting. (Doc. No. 90 (Deposition of Kevin Darago ["Darago Dep."]) at 1669.) His most recent accounting position was with non-party Coleman Professional Services ("Coleman"). He worked full-time for Coleman, beginning in 2015 and ending sometime in September 2017. (Id. at 1670.) Owing to the injuries he sustained on August 9, 2016, Darago claims that he has been unable to continue to perform the duties of an accountant. (Id. at 1671.)
Darago's employment history also includes part-time work providing security for concerts at Blossom. In 2005, Darago responded to an advertisement in the newspaper providing for an "open call" for people to work at Blossom. (Id. at 1676.) He applied because he enjoyed music and thought it would be "something interesting to do." (Id. ) He originally interviewed with either Brian Murphy ("Murphy") or Craig "Bear" Taylor ("Taylor") and was hired to work security for the concerts as a member of the crowd management team. (Id. at 1678.) Murphy was the supervisor of the pit area, and Murphy reported to Taylor, the Venue Security Supervisor for Blossom. Both men are still employed by Live Nation at Blossom. (Id. at 1678, 1690–92; Doc. No. 82-1 (Supplemental Deposition of Craig Taylor ["Taylor Dep. Supp."]) at 1081–82; Tynan Aff. ¶¶ 22, 23.) Darago was continuously employed at Blossom each summer between 2005 and 2016. (Darago Dep. at 1682.)
At the start of each concert season, Darago was required to "fill out additional paperwork." (Id. at 1692; see Tynan Aff. ¶ 11 [].) On April 30, 2016, Darago submitted a "Live Nation Entertainment Application for Employment—Part-Time/Seasonal" for the 2016 season. (Tynan Aff. ¶ 10, Ex. C.) According to the application, Darago, by applying for employment, agreed that "if [he] bec[a]me employed by Live Nation, [his] employment w[ould] be on an ‘at will’ basis." (Id. , Ex. C at 1280.) The application further provided that he understood that "Live Nation may demote or discipline [him], or take other action with respect to [his] employment...." (Id. ) He also agreed "to comply with all of Live Nation's employment policies and code of conduct." (Id. ) By signing the application, Darago further acknowledged:
that I have read the statements listed above, that I understand them and that they will become a part of the terms and conditions of my employment if I become employed by Live Nation.
(Id. ) He testified that he received a Live Nation handbook.3 (Darago Dep. at 1694.)
When he first began his employment at Blossom, Darago worked various crowd management positions. Eventually he was assigned to work in the "pit." (Id. at 1680.) Darago testified that he enjoyed working in the pit because "it was interesting." (Id. at 1680.) At all times relevant to the present action, Murphy supervised the pit area and the crowd management employees assigned to work in it. (Taylor Dep. Supp. at 1095; see Darago Dep. at 1691.) Throughout [Darago's] employment at Blossom, Murphy, Taylor, and Ronald Tynan, Jr. ("Tynan"), also a Live Nation employee and the General Manager for Blossom, had "the authority to supervise, direct, and control the course and scope of Darago's employment at Blossom." (Tynan Aff. ¶¶ 2, 22, 23, 25.) Employees posted to the pit are charged with enforcing the venue's rules and ensuring that guests do not approach the performance stage or otherwise wander into prohibited areas. (Id. ¶¶ 16–17; Darago Dep. at 1681.)
One of the rules the crowd management employees assigned to the pit were to enforce was Live Nation's prohibition against crowd surfing. (See Taylor Dep. Supp. at 1088; Darago Dep. at 1707; Tynan Aff. ¶ 30.) Crowd surfing involves lifting and passing a patron overhead by other patrons.4 (Taylor Dep. Supp. at 1088–89; Darago Dep. at 1698–99; Doc. No. 91 (Deposition of John Tussey ["Tussey Dep."]) at 1850; Doc. No. 89, Ex. 11 (Affidavit of Kevin Darago ["Darago Aff."], beginning at 1650) ¶ 8; see FAC ¶ 38 (photograph).) According to Darago, the crowd surfer's goal is to make his or her way to the front of the barricade so that they can be as close as possible to the stage and the performers thereon. (Darago Dep. at 1699–1700.) The practice is inherently dangerous because the patron being passed forward can be dropped and because those supporting the patron, including security personnel, run the risk of being kicked or punched. (Darago Dep. at 1705, 1711; Tussey Dep. at 1852;...
To continue reading
Request your trial