Was Live Nation/MSG Liable for Bottle Thrown from Crowd?
Amanda Giovacco, an audience member, alleged that she was injured while attending a concert at Madison Square Garden. Aubrey Drake was the featured performer. Giovacco was hit in the head by an aluminum bottle thrown from the crowd. Litigation ensued. MSG and Live Nation moved to dismiss the complaint. Giovacco moved for summary judgment.
Live Nation, as promoter and producer of the concert, entered into an agreement with Drake’s production company, Away From Home Touring, Inc. The contract required Live Nation to provide security for the event. Live Nation also entered into a license agreement with MSG, the owner and operator of the Garden. Pursuant to the license agreement, Live Nation was allowed to use the arena for the concert and MSG was to provide security officers for the event.
Drake, as the performing artist, established prima facie that he owed no duty of care to Giovacco because he was not a party to the agreement between Drake’s production company and Live Nation. In opposition, Giovacco failed to raise an issue of fact as to the applicability of any of the exceptions to the general rule that a contractual obligation does not give rise to tort liability in favor of a third party. Giovacco did not provide any evidence that Drake launched a force or instrument of harm; or Drake had a contractual obligation to provide security at the concert; or there was any basis for her to claim that she reasonably relied to her detriment on Drake’s continued performance of his purported contractual obligation to Live Nation. And the record clearly demonstrated that Drake did not have complete control over the safety and security of Madison Square Garden, thereby displacing Live Nation’s duties.
However, Live Nation, as promoter and producer of the event, had a responsibility to ensure that the large crowd the event attracted for its financial gain did not pose an unreasonable risk to the concertgoers. By alleging that members of the crowd were throwing projectiles throughout the evening, Giovacco raised a triable issue of fact with respect to whether Live Nation had actual or constructive notice of the unsafe crowd conditions that caused her injuries. Moreover, testimony provided by Live Nation, along with the license agreement, established that Live Nation coordinated security with MSG.
And the Court denied Giovacco’s cross motion for summary judgment as against MSG—because she failed to demonstrate the absence of material facts with respect to foreseeability and proximate cause.