A crowd surfer who was injured after being dropped to the floor during a concert in Indianapolis convinced the Court of Appeals of Indiana on Thursday that questions remained as to whether the event’s security assumed a duty of care when the incident took place.
In November 2009, then-teenager Seth Wiley attended a punk rock and metalcore concert at the Murat Centre Egyptian Room in Indianapolis.
During the concert, Wiley crowd surfed several times. Each time, ESG Security Inc. personnel helped him down to the ground when he reached the front of the audience.
But during his last surf, when Wiley reached the front the crowd kept moving him forward and he fell to the floor, suffering serious bodily injuries. At the time, ESG personnel were looking at or attending to another patron.
Wiley sued ESG, Murat and others in 2013 for damages alleging the defendants owed him a duty to make the premises reasonably safe to him, a business invitee, or to exercise reasonable care to warn him of the hazards of crowd surfing.
Wiley also claimed the defendants failed to observe these duties “by allowing members of the crowd, including [him], to engage in crowd surfing and by failing to warn [him] of the dangers of engaging in crowd surfing,” and that their negligence was the proximate cause of his injuries.
The complaint alleged that Wiley “did nothing to contribute to the cause of his injuries.”
In March 2021, ESG filed a motion for summary judgment arguing that it owed Wiley no duty of care as it related to crowd surfing and that Wiley incurred the risk of his injuries.
In his deposition testimony, Wiley testified that he relied upon ESG to catch him, as he had observed ESG guards assists others that night, and he did not recognize or understand potential dangers related to that activity.
For its part, ESG asserted “[t]he fact that ESG has procedures in place to catch violators of the crowd surfing policy and escort them from the protected ‘front of stage’ area does not mean ESG assumed a duty to catch Wiley each and every time he crowd surfed,” that Wiley should have known that crowd surfing was risky and that by proceeding to do so he “was incurring the risk of his  injury as a matter of law.”
The Marion Superior Court denied ESG summary judgment on the issue of duty, but granted summary judgment on the issue of inherent risk.
But the Court of Appeals of Indiana reversed in Seth Wiley v. ESG Security, Inc., 21A-CT-2117, finding genuine issues of material fact exist as to whether ESG assumed a duty the night of the incident with regard to patrons who crowd surfed at the concert and that Wiley did not expressly consent to relieve ESG of any such duty.
“Getting dropped or thrown to the ground from above the heads of other audience members is not the kind of harm normally expected for a concert attendee to suffer,” Judge Robert Altice wrote for the COA. “Thus, we decline to find that a hired security company’s duty of reasonable care to provide security to those on the premises for a concert required it to protect patrons from injuries related to the prohibited conduct of crowd surfing.”
However, it disagreed with ESG’s assertion that Wiley’s conduct relieved it of any duty it may have had to him.
“Because, here, there is no evidence that Wiley expressly consented to take his chances as to injury, Wiley’s conduct did not negate any duty that ESG had or may have assumed with regard to those who crowd surfed that night,” Altice continued. “In conclusion, we reverse the trial court’s grant of summary judgment in favor of ESG and remand for the trier of fact to determine if and to what extent ESG assumed a duty with regard to crowd surfing, and if so, for resolution of remaining issues including breach, causation, and comparative fault.”