Dix v. Live Nation Entertainment, Inc.

• Decision Date: 26 October 2020
• Docket Number: B289596
• Court: California Court of Appeals Court of Appeals
• Parties: Mark DIX, et al. Plaintiffs and Appellants, v. LIVE NATION ENTERTAINMENT, INC., et al. Defendants and Respondents.

56 Cal.App.5th 590

270 Cal.Rptr.3d 532

Mark DIX, et al. Plaintiffs and Appellants,

v.LIVE NATION ENTERTAINMENT, INC., et al. Defendants and Respondents.

B289596

Court of Appeal, Second District, Division 7, California.

Filed October 26, 2020

Callahan, Thompson, Sherman & Caudill, Lee A. Sherman, and Randy Hy, Irvine, for Plaintiffs and Appellants.

Daniels, Fine, Israel, Schonbuch & Lebovits, Mark R. Israel, Michael Schonbuch, Los Angeles, and Geronimo Perez for Defendants and Respondents.

DILLON, J.^*

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 65,000 attendees each day, the majority of whom would be between ages 18 and 28. According to Live Nation, Hard Fest would feature "a large number of the industry's lead performing Electronic Music DJ's and music artists."

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 exhaustion" due to "dancing" and the "hot weather temperatures," Live Nation made free water available. Attendees could also purchase bottled water. Live Nation also provided "misting" stations and other shaded areas that offered protection from the sun. Three of the five performance stages at Hard Fest were air conditioned. Live Nation issued public service announcements informing Hard Fest attendees to stay hydrated and "doing drugs [was] uncool."

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 ground and hit her head. Although Katie was unconscious, Blair thought Katie might be having a small seizure, and Blair turned Katie on her side. Blair and Bednarski ran to security guards standing at the dome entrance and requested help. According to Bednarski, the security guards "walked, not in a hurry" to Katie and carried Katie by her wrists and ankles and put her on the concrete outside the dome.

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.

While waiting to depart for the hospital, Bednarski sat in the front of the ambulance while medics tended to Katie in the back. Bednarski heard the medics performing CPR on Katie, as well as the "thuds of the paddles." According to Bednarski, they were in the ambulance for a long period of time before it left for the hospital. During this delay, "the thud and the charging stopped, and there was pretty casual talking." Bednarski heard a supervisor yell at the medical crew that was attending Katie, " ‘Why did you stop resuscitating? You never stop resuscitating. You could have just killed this girl.’ "

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...