Miller v. Live Nation Worldwide, Inc.
| Decision Date | 01 February 2016 |
| Docket Number | Civil Action No.: CBD-14-2697 |
| Parties | KENNETH K. MILLER, Plaintiff, v. LIVE NATION WORLDWIDE, INC., et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Before this Court are Defendant Live Nation Worldwide, Inc.'s Motion for Summary Judgment (ECF No. 38) ("Live Nation's Motion"),1 and Defendant Noble Associates Worldwide, Inc.'s Cross-motion for Summary Judgment Against Defendant Live Nation (ECF No. 41) ("Noble's Cross-motion"). The Court has reviewed Live Nation's Motion, Noble's Motion as to Plaintiff's claims, Noble's Cross-motion, related memoranda, and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court GRANTS in part and DENIES in part Live Nation's Motion, DENIES Noble's Motion, and DENIES Noble's Cross-motion.
Kenneth K. Miller ("Plaintiff") alleges that on May 4, 2012, he was attending a rock concert at the Fillmore, a venue operated by Nation Worldwide, Inc. ("Live Nation"), in Silver Spring, Maryland. Pl.'s Compl. 1-3. While observing the concert featuring the metal bandKorn, Plaintiff was struck by a crowd surfer.2 Id. Plaintiff, who was attending the concert with his teenage son, alleges that he was facing the stage, from the front row, when he was struck from behind. Id. at 2, 4. Plaintiff alleges that Noble was supposed to provide security and enforce the policy against crowd-surfing. Id. at 4.
Plaintiff alleges that there were several visible signs at the Fillmore prohibiting crowd-surfing.3 Id. at 4. Plaintiff further alleges that there was little or no crowd-surfing at the beginning of the concert, but everything changed when Korn performed "Freak on a Leash," a song that is known to encourage crowd-surfing. Id. Plaintiff alleges that the security personnel at the concert did not do anything to prohibit or discourage the crowd-surfing that ensued. Id. at 5.
As a result of the incident, Plaintiff suffered fractured vertebrae, and a severed right vertebral artery. Id. at 6. Plaintiff underwent emergency surgery, and in the process, the surgeon had to manipulate Plaintiff's esophagus causing permanent injuries to his voice. Id. Plaintiff alleges that as a result of the permanent injuries, he continues to experience pain in his esophagus, difficulty eating, a stabbing pain in his right bicep, decreased strength in his right bicep, and a numbness in his index finger and right thumb. Id. at 7. As a result of the severed artery, Plaintiff has to take blood thinners for the rest of his life to prevent the possibility of a stroke. Id.
On July 14, 2015, Noble filed its cross-claim against Live Nation (ECF No. 29) ("Noble's Cross-Claim"). In the cross-claim, Noble alleges that on the day of the concert, Noble's only obligation was to provide consulting services. Noble's Cross-Claim 2-3. Nobleclaims its responsibility was not to provide crowd control services, as it was originally stipulated in the Services Agreement it signed with Live Nation. Id.
The Services Agreement between Noble and Live Nation, executed on September 9, 2011 and set to terminate on August 1, 2013, provides that Noble was required to "provide crowd management services . . . including crowd management staff and security staff . . .". ECF No. 39-2, p. A-1, ¶1. Noble was required to provide "(i) crowd control . . ., (iv) direction and control of the audience to deter any crowd disturbances." Id. More specifically, Noble was required to "use best efforts to monitor, keep secure and maintain reasonable control over those individuals . . . body-surfing in the general admission area located directly in front of the stage and/or in front of a staffed barricade." ECF No. 39-2, p. A-1, ¶4. The Services Agreement provided that the agreement "may not be amended, revised or terminated orally but only by a written instrument executed by the Party against which enforcement of the amendment, revision or termination is asserted." ECF No. 39-2, p. 3, ¶ 9(B).
Noble asserts in its Cross-motion that it was Live Nation's responsibility to provide crowd management services, and that Live Nation owes Noble defense and indemnification for this incident. Noble's Cross-Claim 3. Noble's Count I, therefore, demands judgment against Live Nation for indemnification and/or contribution for any and all judgment that Plaintiff may receive against Noble. Id. at 4. Noble's Count II for breach of contract alleges that under the Services Agreement, Live Nation owes Noble defense and indemnification. Id. at 5.
Under the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is deemed genuine only if the "evidence is such that a reasonable jury could return a verdict for the nonmovingparty," and a fact is deemed material only if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Supreme Court has explained that the burden of proof lies with the movant to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court reviewing a motion for summary judgment must view the evidence in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
This case involves a negligence claim. To establish a claim for negligence in Maryland, the plaintiff must prove: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." Moore v. Jimel, Inc., 147 Md. App. 336, 337-38 (Md. Ct. Spec. App. 2002) (citing Valentine v. On Target, 353 Md. 544, 549 (1999)); see also Rybas v. Riverview Hotel Corp., 21 F. Supp. 3d 548, 560 (D. Md. 2014) (citations omitted). Thus, to prevail, Defendants must prove that there is no genuine dispute as to a material fact and that they are entitled to judgment as a matter of law regarding any of the four elements above.
"A federal court sitting in diversity must apply the law of the state in which the court is located, including the forum state's choice of law rules." Rybas, 21 F. Supp. 3d at 559-60. For tort claims, "Maryland applies the law of the state where the alleged harm occurred ('lex loci delicti')." Id. at 560. In this case, the Court has diversity jurisdiction under 28 U.S.C. §1332(a)(1). The alleged events took place in Maryland; therefore, the Court applies the substantive tort law of Maryland.
As already stated, to establish a negligence claim, a plaintiff has to assert: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty. Moore, 147 Md. App. at 337-38. Whether there is enough evidence of the required elements in a negligence action is a question of fact to be determined by the fact finder, but the existence of a legal duty is a question of law that is decided by the court. Valentine v. On Target, 353 Md. 544, 549 (1999).
The parties do not dispute that Plaintiff was a business invitee at the Fillmore the night of the incident. A business invitee is "one invited or permitted to enter another's property for purposes related to the landowner's business." Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 388 (Md. Ct. Spec. App. 1997). A business invitor owes an invitee "a duty to use reasonable and ordinary care to keep the premises safe and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover." Southland Corp. v. Griffith, 332 Md. 704, 715-16 (1993). "Although the business invitor has a duty to protect against unreasonably dangerous conditions, the business invitor is not an insurer of the invitee's safety." Tennant, 115 Md. App. at 389. The business invitor, therefore, has no duty to warn an invitee of an open, obvious, and present danger. Id.
A business invitor has a duty to protect its business invitees from the actions of third persons. See Litz v. Hutzler Bros. Co., 20 Md. App. 115, 122 (Md. Ct. Spec. App. 1974). However, this duty does not exceed the business owner's general duty to such invitees. Id."Liability for breach of this affirmative duty may arise from . . . dangers associated with employees or other invitees when [the] business owner, 'as a reasonably prudent person . . . should have anticipated the possible occurrence and the probable results of such acts.'" Rhaney v. Univ. of Maryland Eastern Shore, 388 Md. 585, 602 (2005) (citation omitted); see also Jackson v. A.M.F. Bowling Ctrs., Inc., 128 F. Supp. 2d 307, 311 (D. Md. 2001) (). In Jackson, the Court, relying on the Restatement (Second) of Torts, stated that a defendant "is not required 'to take precautions against a sudden attack from a third person which he has no reason to anticipate;'" however, "he is . . ....
To continue reading
Request your trial