Five years after severe weather brought the stage of the Indiana State Fair grandstand to the ground, killing seven people and injuring dozens of others, the final defendant in the ensuing litigation is asking that summary judgment in its favor be upheld.
Those who were injured, including Jill Polet and her family, the estates of decedents and family members, sued 35 defendants, including ESG Security, alleging their actions or inactions led to the deaths and injuries of the victims at the August 2011 Sugarland concert.
Counsel for the plaintiffs argued before a panel of the Indiana Court of Appeals on Oct. 25 that the case against ESG should go to trial. ESG was the only defendant in the lawsuit that did not take part in a $39 million settlement in late 2014. Instead, the security company took its case to trial and was ultimately granted summary judgment and dismissed from the case in September 2015.
But Maggie Smith, counsel for Polet, argued before appellate judges Margret Robb, Elaine Brown and Paul Mathias that summary judgment should be reversed and the case should instead be sent to a jury trial.
Smith told the court that ESG had admitted hundreds of facts into the record and the company maintained that each of those facts were indisputable and could not be construed in favor of Polet or the other plaintiffs. But to each of those facts, the plaintiffs have a response, Smith said, so a jury should be allowed to hear the disputed facts and weigh them to determine if ESG was at fault.
Smith based her argument before the Court of Appeals on the fact that ESG held itself as a professional security company and, as such, had a responsibility to protect both the band and the concert-goers. She repeatedly referenced an expert witness for the plaintiffs who said that security guards working for a company that advertises itself as a professional security company have a duty to protect those around them when they are on the job.
But Robb, who led the panel, questioned the scope of ESG’s defined duties that night, saying that it seemed like its job was to ensure only authorized persons had access to the backstage area where Sugarland was preparing for the show. Smith said the language of the contract was not that limited and even included a clause that said the State Fair had hired ESG to “provide protections of all persons, including, without limitation, patrons.”
But Theodore Blanford, counsel for ESG, told the panel that the expert Smith repeatedly referenced was trying to rewrite the terms of the contract ESG had with the Indiana State Fair on the night of the collapse.
There were two agreements in place that night, Blanford said — a tour rider and a production rider. The tour rider was written between Sugarland and the State Fair and gave a broad definition of what type of security Sugarland expected from the State Fair, while the production rider laid out the parameters for the security company’s role on the night of the concert, he said.
Those parameters called for ESG to play more of a production security role, as Robb had implied, with guards stationed near the backstage entrance and the stage to keep concertgoers away from the performers or equipment, Blanford said.
But in her rebuttal, Smith referenced the testimony of Indiana State Fair Director Cindy Hoy, who said “those contracts asked for specific security of which we contract out to ESG to fulfill those obligations.” That testimony implies that ESG had security duties under both the tour and production riders, Smith said.
Referring back to the expert testimony Smith mentioned, Brown asked Blanford if ESG had an assumed a duty to warn the State Fair and its patrons of the oncoming weather and its subsequent dangers and make an effort to stop the show, regardless of whether that duty was spelled out in its contract.
But if ESG had tried to make such a call, it would have gone unheeded, Blanford said. In fact, he said Hoy had previously admitted that only she and other State Fair leaders would have had the power to cancel the show that night.
Robb, with a question similar to Brown’s, then wanted to know if ESG should have communicated its concerns about the weather with the concert decision-makers in the hopes that the State Fair leaders would have listened to the security guards.
But if the State Fair had wanted ESG to have that kind of authority, Blanford said, its leaders should have communicated that to the security company. Further, the attorney noted that Indiana State Police troopers were also at the concert that night, so they would have been in charge of ensuring the safety of the crowd.
But Smith said there was evidence that some ESG employees had taken on a crowd-safety role in spite of any contractual restrictions. She pointed to the testimony of Thomas Short, an ESG employee who held his arms out and began walking the crowd away from the stage when the weather became particularly bad. That action showed that Short believed he had a duty to protect the concertgoers, Smith said.
Mathias seemed to struggle with that argument, telling Smith that there was a difference between ESG making the best of an emergency situation and accepting a duty.
“ESG never had any decision-making authority about what was going to happen to that concert, so for them to almost be a Good Samaritan and have responsibility thrust upon them seems to me to not be what the law requires,” he said.
Smith once again repeated that according to the expert, even though ESG did not make any decisions or take any action related to safety and security issues, it should have done so.
Outside of weather considerations, Smith also told the appellate judges that ESG had breached its duty with regard to the Sugar Pit, a special section for State Fair patrons to watch the concert on the ground near the stage. In hindsight, Smith said it was clear that the design of the pit was unsafe, but ESG’s security guards had not inspected the pit prior to the show. As security professionals, the guards had an obligation to inspect the pit and sign off on it before concertgoers arrived, according to the plaintiffs’ expert testimony.
But Blanford said there was no industry standard for such a section that ESG’s guards could have referred to when doing a safety inspection. Further, such an inspection was not part of the company’s duties listed in the production rider. Once again, Blanford said the argument that ESG should have conducted a safety inspection was proof that Smith’s expert witness was trying to redefine the terms of ESG’s contract.
Regardless of whether a jury chooses to believe the plaintiffs’ findings or ESG’s findings, Smith repeatedly told the judges that under Indiana summary judgment standards, the dozens of disputed facts in the case meant that it must be sent to a jury to weigh the evidence.
The case is Jill Polet, et al. v. ESG Security, Inc., et al., 49A02-1510-CT-1631.•