Dix v. Live Nation Entertainment, Inc. ( 2020 )

Filed 10/26/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MARK DIX, et al. B289596
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC628255)
v.
LIVE NATION
ENTERTAINMENT, INC., et
al.
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Dan Thomas Oki, Judge. Reversed.
Callahan, Thompson, Sherman & Caudill, Lee A. Sherman,
and Randy Hy for Plaintiffs and Appellants.
Daniels, Fine, Israel, Schonbuch & Lebovits, Mark R.
Israel, Michael Schonbuch, and Geronimo Perez for Defendants
and Respondents.
__________________________
INTRODUCTION
While at Live Nation’s 1 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
1 Live Nation Entertainment, Inc., Live Nation Worldwide,
Inc., Hard Events, LLC, and Los Angeles County Fairplex
Association are collectively referred to as Live Nation.
2
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
3
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.”
4
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
5
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
2 As part of their opposition to summary judgment, the Dixes
submitted excerpts from seven deposition transcripts (Blair,
Bednarski, Vanessa Goodrie, Barry Gillies, Debra Martin, Robert
Flores, and Cory Meredith). Although the Dixes’ counsel had
provided a declaration for each deponent attesting that the
excerpts were “true and correct cop[ies] of pertinent portions” of
the deposition transcripts, the Dixes failed to submit the court
reporter’s certification pages. As to three of the transcripts
(Bednarski, Blair, and Goodrie), Live Nation had submitted
6
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
portions of the same deposition transcripts with certification
pages. Further, at the hearing on February 27, 2018, the Dixes’
counsel stated, “I have all the signed transcripts with me today,
including the signed certification pages.” However, the trial court
sustained Live Nation’s objections to the Dixes’ deposition
excerpts because they were not certified. The trial court refused
to consider the deposition excerpts. Under either a de novo or
abuse of discretion standard, the trial court improperly excluded
the deposition transcript excerpts. (See Ambriz v. Kelegian
(2007) 146 Cal. App. 4th 1519, 1527 [trial court abused its
discretion in sustaining authenticity and foundation objections to
deposition excerpts because objecting party “admitted the
authenticity” by using portions of the same transcript in support
of summary judgment motion and attorney’s declaration was
“sufficient” to authenticate the excerpts]; see generally Orange
County Water Dist. v. Sabic Innovative Plastics US, LLC (2017)
14 Cal. App. 5th 343, 368 [“[c]ourts are split regarding the proper
standard of review for the trial court’s evidentiary rulings in
connection with motions for summary judgment and summary
adjudication”]; Alexander v. Scripps Memorial Hospital La Jolla
(2018) 23 Cal. App. 5th 206, 226 [“[t]he weight of authority . . .
holds that an appellate court applies an abuse of discretion
standard” to evidentiary issues arising in the context of a
summary judgment motion, except evidentiary rulings turning on
questions of law, such as hearsay rulings, which are reviewed de
novo].)
7
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 Ethylone,
commonly known as bath salt.
C. The Dixes File This Action
Katie’s parents filed a second amended complaint
(complaint) on August 16, 2017, alleging five causes of action.
The Dixes alleged causes of action for negligence, premises
liability, public nuisance, wrongful death, and survival. The
complaint alleged that Ecstasy is a commonly ingested illegal
drug at electronic music festivals, such as Hard Fest; that Live
Nation had constructive and actual knowledge that Ecstasy
would be sold, distributed and consumed at Hard Fest; and that,
particularly when “temperatures topped 90 degrees,” Ecstasy
created a risk of serious injury or death from severe dehydration,
8
heatstroke and other cardiovascular risks.” The complaint
further alleged, “[a]fter being admitted into Hard Fest, [Katie]
consumed what she thought was pure [Ecstasy], which was
obtained from an unknown source at [Hard Fest] where the
unlawful sale of drugs and/or controlled substances was
rampant.”
The Dixes further alleged that Katie, after demonstrating
“common signs of dehydration and/or drug overdose,” became
“unresponsive and collapsed, sustaining a contusion to her head.”
The complaint alleged that “the overcrowded and understaffed
conditions at Hard Fest delayed the response of onsite security
and emergency medical service providers by approximately 30
minutes.” “During this delayed response, [Katie’s] condition
worsened, and she went into full cardiac arrest.” The complaint
further alleged that “the on-site security and emergency medical
services providers that did ultimately respond to [Katie] were
also inadequately trained and equipped.” As a result, Live
Nation was “unable to provide the immediate, necessary and
urgent emergency medical care and treatment that [Katie]
required while still at Hard Fest.” The complaint further alleged,
had there been “timely and proper medical treatment” at Hard
Fest, Katie “could have been saved.”
In their negligence cause of action, the Dixes alleged that
Live Nation owed a duty to Hard Fest attendees, including Katie,
“to provide facilities, security and emergency medical services
personnel sufficient to maintain order and safety at the Hard
Fest.” Despite knowledge that there would be “widespread illegal
and illicit [drug] activity,” Live Nation negligently and recklessly
failed to staff Hard Fest with enough adequately trained and
equipped private security personnel “to maintain order and
9
deter” the distribution and consumption of illegal drugs. The
Dixes further alleged that Live Nation failed to staff Hard Fest
with sufficient qualified emergency medical service providers to
deal adequately with the foreseeable numbers of attendees “likely
to, and [who] did, experience adverse reactions to the illegal
drugs consumed in the overcrowded event.” The Dixes also
alleged that Live Nation breached its duties by failing to “provide
the attendees with ready access to a sufficient supply of drinking
water to reduce the likelihood of [Ecstasy-related] dehydration
among attendees.”
D. Live Nation’s Motion for Summary Judgment
1. Moving Papers
In its motion for summary judgment, 3 Live Nation argued
that it was entitled to judgment because the Dixes “cannot
establish as a matter of law that [Live Nation] owed a duty to
ensure Katie’s safety against her own volitional choice to engage
in dangerous, prohibited activities during the Hard Fest.” Live
Nation argued that, based on the application of the factors set
forth in Rowland v. Christian (1968) 69 Cal. 2d 108 (Rowland),
“[w]hile [Katie’s] death is tragic, these facts do not create a duty
on the part of [Live Nation] to prevent her from voluntarily
ingesting a known illegal drug, or for [Live Nation] to ensure
3 Live Nation filed two nearly identical motions for summary
judgment, one on behalf of Live Nation Worldwide, Inc. and Hard
Events, LLC, and the other on behalf of Live Nation
Entertainment, Inc. and the Los Angeles County Fair
Association. Because the parties and trial court treated the two
motions as “identical,” we do as well.
10
[Katie] consumed adequate water and hydration to avoid injury
or death from overdose.”
Live Nation contended that, “[g]iven the tenuous, if any,
connection between any acts by Live Nation and [Katie’s]
voluntary, ill-advised decision to proactively seek out and
consume [E]cstasy, and in light of the profuse evidence reflecting
the painstaking efforts taken by [Live Nation] to ameliorate the
effects of any self-destructive acts or neglect by attendees, even if
[Live Nation] owed some hypothetical duty to [Katie], the Dixes
cannot prove [Live Nation] breached such hypothetical duty.”
Live Nation pointed out that Hard Fest was “a structured
event, professionally planned, and subject to governmental
oversight with cooperation from the county fire department, local
law enforcement, and the surrounding communities.” Live
Nation argued that the undisputed facts demonstrated that “the
safety of its attendees[ ] was safeguarded through comprehensive
security measures enacted after collaboration and consultation
with the [fire department], local law enforcement, and security
vendors and contractors hired by Live Nation.” Live Nation also
argued that “[s]ecurity professionals seeded throughout [Hard
Fest] . . . were instructed to observe and report . . . impaired
individuals . . . so the medical team could respond.” Live Nation
contended that it “provided over 160 free watering valves spread
across several watering stations for attendees to utilize.”
Finally, although it did not submit any expert witness
testimony, Live Nation argued that, even if a duty existed, “[the
Dixes] cannot demonstrate that any act of [Live Nation] was a
substantial factor in causing [Katie’s] death from [E]cstasy
overdose.” Live Nation contended that “no connection exists,
11
direct or indirect, between any act or omission on part of [Live
Nation] and [Katie’s] unfortunate overdose.”
2. The Dixes’ Opposition
In opposition to Live Nation’s motion, the Dixes contended
that “[Live Nation] had a duty to exercise reasonable, ordinary
care in providing a safe environment for [Katie] and other
attendees (business invites[sic]) [at Hard Fest]” According to the
Dixes, “it [was] reasonably foreseeable that numerous kids,
including Katie would take drugs [at Hard Fest] . . . suffer from a
drug overdose, dehydration, and/or physical exhaustion, and if
not tended to properly and timely, die.” Based on that
knowledge, the Dixes argued that Live Nation’s duties included:
“to provide an adequate number of properly trained and equipped
medical services sufficient to maintain safety; to properly train
its security to handle incidents such as this one, especially given
its knowledge that attendees would likely possess, distribute
and/or consume illegal drugs and experience severe adverse
reactions from illegal drugs; to ensure that proper timely medical
care would be provided to its attendees under the circumstances;
to maintain adequate medical facilities for the attendees during
the event; [and] to act reasonable under the circumstances once
medical assistance has begun.”
The Dixes further argued that disputed issues of fact
existed regarding whether Live Nation breached these duties.
The Dixes submitted evidence indicating that Live Nation did not
enforce its security protocols because it failed to train the security
personnel to follow the protocols. The Dixes argued that “there
[were] questions of fact as to how staff actually executed” Live
Nation’s “comprehensive security protocol.” The Dixes further
12
argued that the evidence showed that there were “insufficient
water stations for the number of attendees.”
In addition, according to the Dixes, triable issues of fact
existed because the evidence showed that Live Nation negligently
responded to Katie’s emergency and failed to provide her proper
and timely medical care. The Dixes submitted a declaration from
a physician board-certified in emergency medicine and medical
toxicology. The physician opined that, “had advanced medical
care been readily available at [Hard Fest], [Katie] to a reasonable
medical probability would have survived the drug ingestion. . . .
Only advanced medical treatment consisting of advanced airway
skills in conjunction with supplemental oxygen to breath[e] for
the patient and the use of an automatic defibrillator in a timely
fashion could have prevented her death. Given the prolonged
delay in the arrival of advanced medical care, Katie had no hope
of survival.”
E. The Trial Court’s Rulings and Judgment
In its written ruling the trial court granted Live Nation’s
motion for summary judgment. The trial court stated that
Rowland, supra, 69 Cal. 2d 108 set forth the “factors to consider
in determining whether a duty” existed under a negligence cause
of action. The trial court ruled that a review of the facts of this
case applied to the Rowland factors demonstrated that Live
Nation did not owe a duty to Katie. While stating that it was
foreseeable Katie would be harmed and that the degree of
certainty that Katie suffered injury was “absolute,” the trial court
ruled that Katie’s death “was not closely causally connected to
[Live Nation’s] conduct in promoting and producing Hard Fest.”
Moreover, neither Rowland’s moral blame factor nor the public
policy of preventing future harm weighed in favor of imposing a
13
duty on Live Nation. That Live Nation did not encourage or plan
attendees’ drug use but rather took “numerous steps to
discourage and prevent drug use,” showed that the “policy of
preventing future harm [was] not strong.”
The trial court characterized the Dixes’ contention that
Live Nation “had a duty to exercise reasonable care in providing
medical services once care had begun,” as a “claim that [Live
Nation] had a legal duty based upon nonfeasance, i.e., that there
was a special relationship that created a duty to act.” The trial
court pointed out that the Dixes “do not appear to have alleged
this in their [complaint]; as such, it is disregarded. The [Dixes]
do not, moreover, explain how or why [Live Nation] would be
liable to them for any alleged breach in the standard of care by
third-party medical providers.” The trial court did not rule on
breach of duty or causation.
The trial court entered judgment in favor of Live Nation on
March 7, 2018. The Dixes timely appealed.
DISCUSSION
A. Standards of Review
“We review a grant of summary judgment . . . de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party or a
determination a cause of action has no merit as a matter of law.”
(Husman v. Toyota Motor Credit Corp. (2017) 12 Cal. App. 5th
1168, 1179 (Husman).) In general the standard of review
applicable to summary judgment rulings is “that any doubts as to
the propriety of granting a summary judgment motion should be
resolved in favor of the party opposing the motion.” (Reid v.
Google, Inc. (2010) 50 Cal. 4th 512, 535.) “‘We liberally construe
14
the opposing party’s evidence and resolve all doubts in favor of
the opposing party. [Citation.] We consider all evidence in the
moving and opposition papers, except that to which objections
were properly sustained.’” (Brown v. Goldstein (2019) 34
Cal. App. 5th 418, 432; see also McCaskey v. California State
Automobile Assn. (2010) 189 Cal. App. 4th 947, 957 [“[i]n
determining whether a triable issue was raised or dispelled, we
must disregard any evidence to which a sound objection was
made in the trial court, but must consider any evidence to which
no objection, or an unsound objection, was made”].) “‘[S]ummary
judgment cannot be granted when the facts are susceptible to
more than one reasonable inference . . . .’” (Husman, at p. 1180.)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th
826, 853 (Aguilar); Husman, supra, 12 Cal.App.5th at pp. 1179-
1180.) “‘If a plaintiff pleads several theories, the defendant has
the burden of demonstrating there are no material facts requiring
trial on any of them.’” (Wright v. Stang Manufacturing Co. (1997)
54 Cal. App. 4th 1218, 1228.)
If a defendant satisfies this initial burden, the burden
shifts to the plaintiff to present evidence demonstrating there is a
triable issue of material fact. (Code Civ. Proc., § 437c, subd.
(p)(2); Aguilar, supra, 25 Cal.4th at p. 850; Husman, supra, 12
Cal.App.5th at pp. 1179-1180.) Where the evidence presented by
defendant does not meet its burden, “the motion must be denied
without looking at the opposing evidence, if any, submitted by
plaintiff.” (Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19
15
Cal. App. 4th 1525, 1533.) Accordingly, plaintiff has no
evidentiary burden on summary judgment unless and until the
moving defendant first meets its initial burden. (Binder v. Aetna
Life Ins. Co. (1999) 75 Cal. App. 4th 832, 840.)
B. The Trial Court Erred When It Concluded that Live
Nation Did Not Owe a Duty to Katie
1. Applicable Law
“A plaintiff in any negligence suit must demonstrate “‘a
legal duty to use due care, a breach of such legal duty, and [that]
the breach [is] the proximate or legal cause of the resulting
injury.’”” (Kesner v. Superior Court (2016) 1 Cal. 5th 1132, 1142
(Kesner).) “Duty is a question of law for the court, to be reviewed
de novo on appeal.” (Cabral v. Ralphs Grocery Co. (2011) 51
Cal. 4th 764, 770 (Cabral).) “California law establishes the
general duty of each person to exercise, in his or her activities,
reasonable care for the safety of others. (Civ. Code, § 1714, subd.
(a).)” (Cabral, at p. 768.) Civil Code section 1714, subdivision (a),
provides in relevant part: “Everyone is responsible, not only for
the result of his or her willful acts, but also for an injury
occasioned to another by his or her want of ordinary care or skill
in the management of his or her property or person, except so far
as the latter has, willfully or by want of ordinary care, brought
the injury upon himself or herself.”
Although there is no duty to come to the aid of another
(Williams v. State of California (1983) 34 Cal. 3d 18, 23), “a duty
to warn or protect may be found if the defendant has a special
relationship with the potential victim that gives the victim a
right to expect protection.” (Regents of University of California v.
Superior Court (2018) 4 Cal. 5th 607, 619 (Regents); see Zelig v.
County of Los Angeles (2002) 27 Cal. 4th 1112, 1129 (Zelig) [duty
16
to assist or protect may arise if “a special relation exists between
the actor and the other which gives the other a right to
protection”]; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40
Cal. 3d 780, 789 (Lopez) [“some relationships by their very nature
are ‘special’ ones giving rise to an ‘initial duty’ to come to the aid
of others, regardless of whether there has been detrimental
reliance in a particular case”]; Rotolo v. San Jose Sports &
Entertainment, LLC (2007) 151 Cal. App. 4th 307, 325 (Rotolo)
[“[a] defendant who is found to have a ‘special relationship’ with
another may owe an affirmative duty to protect the other person
from foreseeable harm, or to come to the aid of another in the face
of ongoing harm or medical emergency”], disapproved on another
ground in Verdugo v. Target Corp. (2014) 59 Cal. 4th 312, 328-
329, 344, fn. 15 (Verdugo).) “‘“This rule derives from the common
law’s distinction between misfeasance and nonfeasance, and its
reluctance to impose liability for the latter.”’” (Zelig, at p. 1129.)
“Relationships that have been recognized as ‘special’ share
a few common features. Generally, the relationship has an
aspect of dependency in which one party relies to some degree on
the other for protection.” (Regents, supra, 4 Cal.5th at p. 620.)
The Supreme Court in Regents explained, “The corollary of
dependence in a special relationship is control. Whereas one
party is dependent, the other has superior control over the means
of protection. ‘[A] typical setting for the recognition of a special
relationship is where “the plaintiff is particularly vulnerable and
dependent upon the defendant who, correspondingly, has some
control over the plaintiff’s welfare.’”” (Id. at p. 621.)
Relying on the Third Restatement of Torts, the Court in
Regents held “a business or landowner with invited guests” is a
special relationship “that may support a duty to protect against
17
foreseeable risks.” (Id. at p. 620.) In Delgado v. Trax Bar & Grill
(2005) 36 Cal. 4th 224 (Delgado) the Court stated, “Courts have
found such a special relationship in cases involving the
relationship between business proprietors such as shopping
centers, restaurants, and bars, and their tenants, patrons, or
invitees.” (Id. at p. 235; see Lopez, supra, 40 Cal.3d at p. 789
[“[t]he relationship between a common carrier and its passengers
is just such a special relationship, as is the relationship between
an innkeeper and his or her guests, between a possessor of land
and those who enter in response to the landowner’s invitation
and between a psychiatrist and his or her patients”]; Peterson v.
San Francisco Community College Dist. (1984) 36 Cal. 3d 799, 806
(Peterson) [“[a]mong the commonly recognized special
relationships are that between a possessor of land and members
of the public who enter in response to the landowner’s
invitation”]; University of Southern California v. Superior Court
(2018) 30 Cal. App. 5th 429, 444 [“[t]he relationship between a
possessor of land and an invitee is a special relationship giving
rise to a duty of care”]; Rotolo, supra, 151 Cal.App.4th at p. 326
[“[c]ourts have found that a “‘special relationship”’ exists between
business proprietors and their patrons or invitees . . .”]; see also
Morris v. De La Torre (2005) 36 Cal. 4th 260, 274 [“[i]t is well
established that a proprietor’s special-relationship-based duty to
customers or invitees extends beyond the structure of a premises
to areas within the proprietor’s control”].) 4
4 The Supreme Court in Lopez, supra, 40 Cal. 3d 780
explained a bus carrier has a special relationship with its
passengers because “bus passengers are ‘sealed in a moving steel
cocoon.’ Large numbers of strangers are forced into very close
18
In Verdugo, supra, 59 Cal. 4th 312 the Supreme Court held
that a department store’s common law duty of reasonable care to
its customers did not include an obligation to acquire and make
available an automated external defibrillator (AED) for use in a
medical emergency. (Id. at pp. 336-337.) In analyzing the duty
issue, the Court noted, “There have been a few California Court
of Appeal cases that directly involved the question of a business’s
common law duty to provide first aid or medical assistance to a
patron who is injured or becomes ill on the business’s premises.”
(Id. at p. 337.) However, the Court pointed out that “all of the
most analogous California common law cases that have reached
this court have involved the distinct but related question whether
a business has a common law duty to take steps to protect its
patrons from criminal activity of third persons that endangers
such patrons on its premises.” (Ibid.) The Court stated that, in
both situations, “the legal duty to the patron arises from the
relationship between the parties and exists even though a
business has not itself caused the injury or illness in question.”
(Ibid.)
In considering the scope of the department store’s duty to
protect the health of its patrons and applying the analysis from
prior cases involving a business owner’s duty to protect patrons
against potential third party criminal conduct, the Court stated,
physical contact with one another under conditions that often are
crowded, noisy, and overheated. At the same time, the means of
entering and exiting the bus are limited and under the exclusive
control of the bus driver. Thus, passengers have no control over
who is admitted on the bus and, if trouble arises, are wholly
dependent upon the bus driver to summon help or provide a
means of escape.” (Id. at p. 789.)
19
“when the precautionary medical safety measures that a plaintiff
contends a business should have provided are costly or
burdensome rather than minimal, the common law does not
impose a duty on a business to provide such safety measures in
the absence of a showing of a heightened or high degree of
foreseeability of the medical risk in question.” (Verdugo, supra,
59 Cal.4th at p. 339; cf. Delgado, supra, 36 Cal.4th at p. 245
[“[h]eightened foreseeability is satisfied by a showing of prior
similar criminal incidents (or other indications of a reasonably
foreseeable risk of violent criminal assaults in that location) and
does not require a showing of prior nearly identical criminal
incidents”].) Finding that the burden in acquiring and providing
an AED at a department store would be “considerably more than
a minor or minimal burden” and that “the risk of [sudden cardiac
arrest] is no greater at [a department store] than at any other
location open to the public,” the Court held that the department
store did not owe a duty to its customers to acquire and make
available an AED. (Verdugo, at p. 340.) 5
5 Again, drawing from third party criminal conduct cases,
the Court held, “In considering the scope of a business’s common
law duty to take reasonable steps to protect the health of its
patrons while the patrons are on the business’s premises, we
draw a comparable distinction between (1) a business’s common
law duty to take precautionary steps prior to the time such an
injury or illness has occurred in light of the foreseeability that
such an injury or illness may occur, and (2) a business’s common
law duty to act to assist a patron from an ongoing threat to the
patron’s health and safety after the patron has experienced an
injury or illness on the business’s premises.” (Verdugo, supra, 59
Cal.4th at p. 338.)
20
2. Live Nation Owed a Duty of Care
Live Nation, as the operator of an electronic music festival,
had a special relationship with its 65,000 festival invitees. Once
they passed through security and entered the large enclosed
grounds for the 11-hour festival, the festival attendees were
dependent on Live Nation. In the event of a medical emergency,
Live Nation controlled not only if and when attendees would
receive medical care, but also the nature and extent of the care.
Attendees could not summon their own medical care. Attendees
also depended on Live Nation to provide adequate security.
Based on its prior experience with producing similar
festivals, Live Nation knew that a “major risk” of conducting an
electronic music festival was that attendees would “consume
illegal substances” and suffer “negative effects,” including
“overdose[s].” Recognizing the “high degree” of foreseeability of
illegal drug use and medical emergencies, Live Nation “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.” Rather than arguing
the burdens were too high, Live Nation assumed the burdens of
detecting unlawful drugs and providing medical care to
attendees. Under these circumstances, because of the special
relationship between Live Nation and Hard Fest attendees, Live
Nation owed a duty of reasonable care to Katie and the other
Hard Fest attendees. (See Delgado, supra, 36 Cal.4th at p. 237
[“foreseeability is a ‘crucial factor’ in determining the existence
and scope of a legal duty”]; Tarasoff v. Regents of University of
California (1976) 17 Cal. 3d 425, 434 [“[t]he most important of
these considerations in establishing a duty is foreseeability”].)
21
Live Nation’s argument that it did not owe Katie a duty
because she voluntarily consumed an illegal drug and died from
acute drug intoxication may be relevant to causation or
comparative fault, but not duty. Live Nation is essentially
arguing a comparative fault issue under the duty rubric.
California has “abandoned the time-worn contributory negligence
rule which completely exonerated a negligent defendant
whenever an injured plaintiff was partially at fault for the
accident . . . .” (American Motorcycle Assn. v. Superior Court
(1978) 20 Cal. 3d 578, 607.) Under California’s “pure”
comparative fault doctrine, the trier of fact “assign[s]
responsibility and liability for damage in direct proportion to the
amount of negligence of each of the parties” and “the damages
awarded shall be diminished in proportion to the amount of
negligence attributable to the person recovering.” (Li v. Yellow
Cab Co. (1975) 13 Cal. 3d 804, 828-829 (Li); see Horwich v.
Superior Court (1999) 21 Cal. 4th 272, 284 [“if the decedent had
been comparatively negligent, a wrongful death judgment will be
reduced proportionately”]; see generally Pfeifer v. John Crane,
Inc. (2013) 220 Cal. App. 4th 1270, 1285 [“The comparative fault
doctrine ‘is designed to permit the trier of fact to consider all
relevant criteria in apportioning liability. The doctrine “is a
flexible, commonsense concept, under which a jury properly may
consider and evaluate the relative responsibility of various
parties for an injury . . . in order to arrive at an ‘equitable
apportionment or allocation of loss.’’””].) 6 Given the special
6 After noting that Civil Code section 1714 “has shown great
adaptability” providing ample room for “judicial development of
important new systems of rules,” the Supreme Court in Li, supra,
22
relationship between Live Nation and Katie and Live Nation’s
duty of care, Katie’s alleged culpability does not eliminate or
diminish Live Nation’s duty. (See Kesner, supra, 1 Cal.5th at
p. 1157 [“It must be remembered that a finding of duty is not a
finding of liability. To obtain a judgment, a plaintiff must prove
that the defendant breached its duty of ordinary care and that
the breach proximately caused the plaintiff’s injury, and the
defendant may assert defenses and submit contrary evidence on
each of these elements”].) 7
3. Rowland Factors
““‘Courts . . . invoke[ ] the concept of duty to limit generally
‘the otherwise potentially infinite liability which would follow
from every negligent act . . . .’”’” (Kesner, supra, 1 Cal.5th at
p. 1143; accord, Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370,
397.) “The conclusion that a defendant did not have a duty
constitutes a determination by the court that public policy
13 Cal.3d at p. 816 held that section 1714’s language, “except so
far as the latter has, willfully or by want of ordinary care,
brought the injury upon himself [or herself],” did not preclude the
establishment of comparative fault. (Italics omitted.) The Court
held the section 1714’s “defensive” language should not be
construed so as to stifle the orderly evolution of such
considerations in light of emerging techniques and concepts.”
(Li, at p. 822.)
7 The Court in Cabral, supra, 51 Cal. 4th 764 rejected the
argument that the defendant owed “no duty” because the plaintiff
was injured “only as a result of his own negligence.” (Id. at
p. 781.) However, in Cabral, the jury found that plaintiff’s
negligence was a cause of the accident and assigned plaintiff 90
percent of the comparative fault. (Ibid.)
23
concerns outweigh, for a particular category of cases, the broad
principle enacted by the Legislature that one’s failure to exercise
ordinary care incurs liability for all the harms that result.”
(Kesner, at p. 1143.) “‘The history of the concept of duty in itself
discloses that it is not an old and deep-rooted doctrine but a legal
device of the latter half of the nineteenth century designed to
curtail the feared propensities of juries toward liberal awards.’”
(Ibid.; accord, Dillon v. Legg (1968) 68 Cal. 2d 728, 734.) “The
court may depart from the general rule of duty, however, if other
policy considerations clearly require an exception.” (Regents,
supra, 4 Cal.5th at p. 628; accord, Kesner, supra, 1 Cal.5th at
p. 1143; Rowland, supra, 69 Cal.2d at p. 112.)
When determining whether policy considerations weigh in
favor of an exception to a duty of care, the Court in Rowland held
that the most important factors are “the foreseeability of harm to
the plaintiff, the degree of certainty that the plaintiff suffered
injury, the closeness of the connection between the defendant’s
conduct and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved.” (Rowland, supra, 69 Cal.2d at
p. 113.)
Because a duty is premised on the special relationship
between operators of an electronic music festival and festival
attendees and Civil Code section 1714’s general duty to exercise
ordinary care in one’s activities, which includes the conduct of an
electronic music festival, we rely on the Rowland factors not to
determine “whether a new duty should be created, but whether
24
an exception . . . should be created.” (Cabral, supra, 51 Cal.4th at
p. 783; accord, Regents, supra, 4 Cal.5th at p. 628 [where a
special relationship has been identified, the Court applied the
Rowland factors to determine whether they “justified excusing or
limiting a defendant’s duty of care”]; Soto v. Union Pacific
Railroad Co. (2020) 45 Cal. App. 5th 168, 181, fn. 7 [“the Rowland
factors . . . apply when a statutory duty of care is found to exist
and the question presented is whether public policy supports a
departure from that general duty of care”]; see also University of
Southern California v. Superior Court, supra, 30 Cal.App.5th at
p. 452 [“some courts have considered the Rowland factors despite
concluding that there was no special relationship and no duty,
with the Rowland analysis supporting the conclusion of no
duty”].) 8 We conclude that use of illicit drugs and risk of
overdoses at electronic music festivals and the need for
immediate and adequate medical care are foreseeable
occurrences, and public policy considerations do not justify
precluding an injured festival attendee’s claims against the
festival operator.
Because a judicial decision on the issue of duty entails line-
drawing based on policy considerations, “the Rowland factors are
evaluated at a relatively broad level of factual generality. . . . [¶]
In applying the . . . Rowland factors, . . . we have asked not
8 Courts have also applied the Rowland factors in
determining whether a business owner owed a duty to an invitee.
(See e.g., Delgado, supra, 36 Cal.4th at pp. 245-246 [“[t]he
remaining Rowland factors similarly support a determination
that defendant had a special-relationship-based duty to respond
to the unfolding events by taking reasonable, relatively simple,
and minimally burdensome steps in order to address the
imminent danger that [defendant] perceived”].)
25
whether they support an exception to the general duty of
reasonable care on the facts of the particular case before us, but
whether carving out an entire category of cases from that general
duty rule is justified by clear considerations of policy. . . . [¶] By
making exceptions to Civil Code section 1714’s general duty of
ordinary care only when foreseeability and policy considerations
justify a categorical no-duty rule, we preserve the crucial
distinction between a determination that the defendant owed the
plaintiff no duty of ordinary care, which is for the court to make,
and a determination that the defendant did not breach the duty
of ordinary care, which in a jury trial is for the jury to make.”
(Cabral, supra, 51 Cal.4th at p. 772; accord, Kesner, supra, 1
Cal.5th at p. 1144.)
“The Rowland factors fall into two categories. The first
group involves foreseeability and the related concepts of certainty
and the connection between plaintiff and defendant. The second
embraces the public policy concerns of moral blame, preventing
future harm, burden, and insurance availability. The policy
analysis evaluates whether certain kinds of plaintiffs or injuries
should be excluded from relief.” (Regents, supra, 4 Cal.5th at
p. 629; accord, Kesner, supra, 1 Cal.5th at p. 1145.)
a. Foreseeability factors
“‘The most important factor to consider in determining
whether to create an exception to the general duty to exercise
ordinary care . . . is whether the injury in question was
foreseeable.’ [Citations.] In examining foreseeability, ‘the court’s
task . . . “is not to decide whether a particular plaintiff’s injury
was reasonably foreseeable in light of a particular defendant’s
conduct, but rather to evaluate more generally whether the
category of negligent conduct at issue is sufficiently likely to
26
result in the kind of harm experienced that liability may
appropriately be imposed. . . .”’” (Regents, supra, 4 Cal.5th at
p. 629; accord, Kesner, supra, 1 Cal.5th at p. 1145.) Prior similar
incidents are relevant in analyzing foreseeability. (Melton v.
Boustred (2010) 183 Cal. App. 4th 521, 537-538.)
“For purposes of duty analysis, “‘foreseeability is not to be
measured by what is more probable than not, but includes
whatever is likely enough in the setting of modern life that a
reasonably thoughtful [person] would take account of it in
guiding practical conduct.”. . . [I]t is settled that what is required
to be foreseeable is the general character of the event or harm‒
e.g., being struck by a car while standing in a phone booth‒not its
precise nature or manner of occurrence.’” (Kesner, supra, 1
Cal.5th at p. 1145; accord, Bigbee v. Pacific Tel. & Tel. Co. (1983)
34 Cal. 3d 49, 57-58.)
Here, a reasonably thoughtful electronic music festival
operator would consider the likelihood that illegal drugs would be
distributed and consumed at the festival and that drug overdoses
would occur. Live Nation knew from prior electronic music
festivals that attendees at Hard Fest would possess, distribute,
and consume “illicit drugs.” In its “Safety Overview” for Hard
Fest, Live Nation recognized that “possible overdose reactions”
from “illegal substances” was a “major risk” to Hard Fest
attendees. Because of these concerns and others, Live Nation
took steps to prevent illicit drug use at Hard Fest and to provide
attendees with medical care. Live Nation acknowledged the
foreseeability of the harm by taking steps to detect drugs and
providing medical care at Hard Fest. The foreseeability of
serious injury or death to electronic music festival attendees from
a festival operator’s negligence seems certain.
27
“The second factor, ‘the degree of certainty that the plaintiff
suffered injury’ [citation], may come into play when the plaintiff’s
claim involves intangible harm, such as emotional distress.
[Citation.] Here, however, we are addressing claims for physical
injuries that are capable of identification.” (Regents, supra, 4
Cal.5th at p. 630.) The Dixes alleged that Live Nation’s
negligence contributed to Katie’s death; “their injuries are certain
and compensable under the law.” (Kesner, supra, 1 Cal.5th at
p. 1148.)
“The third factor is ‘the closeness of the connection between
the defendant’s conduct and the injury suffered.’ [Citation.]
‘Generally speaking, where the injury suffered is connected only
distantly and indirectly to the defendant’s negligent act, the risk
of that type of injury from the category of negligent conduct at
issue is likely to be deemed unforeseeable. Conversely, a closely
connected type of injury is likely to be deemed foreseeable.’”
(Regents, supra, 4 Cal.5th at pp. 630-631.)
Here, Katie voluntarily consumed an illegal drug, and
someone, likely a Hard Fest attendee, supplied it. There was
relevant intervening conduct, but all of the conduct, including
Katie’s illegal drug consumption and overdose, was entirely
foreseeable at an electronic music festival. An attendee’s severe
injury or death from a drug overdose was a risk created, in part,
by an electronic music festival operator’s negligence in failing to
provide adequate security and appropriate medical care. The
injury was closely connected to Live Nation’s alleged negligent
conduct. (Kesner, supra, 1 Cal.5th at p. 1148 [“the touchstone of
the analysis is the foreseeability of that intervening conduct”].)
28
The foreseeability factors weigh against finding an
exception to the legal duty of ordinary care for operators of
electronic music festivals.
b. Policy factors
‘“A duty of care will not be held to exist even as to
foreseeable injuries . . . where the social utility of the activity
concerned is so great, and avoidance of the injuries so
burdensome to society, as to outweigh the compensatory and cost-
internalization values of negligence liability.’” (Regents, supra, 4
Cal.5th at p. 631; accord, Kesner, supra, 1 Cal.5th at pp. 1150-
1152.) Although Rowland’s foreseeability factors weigh against
recognizing an exception, “we must also consider whether public
policy requires a different result.” (Regents, at p. 631.)
The Supreme Court has held that “[w]e have previously
assigned moral blame, and we have relied in part on that blame
in finding a duty, in instances where the plaintiffs are
particularly powerless or unsophisticated compared to the
defendants or where the defendants exercised greater control
over the risks at issue.” (Kesner, supra, 1 Cal.5th at p. 1151; see
Regents, supra, 4 Cal.5th at p. 632 [“[s]ome measure of moral
blame does attach to a university’s negligent failure to prevent
violence against its students”]; Peterson, supra, 36 Cal.3d at
p. 814 [failures to implement “protective measures” to reduce risk
of assault at school campus parking lot “indicate that there is
moral blame attached to the [community college’s] failure[s] to
take steps to avert the foreseeable harm”].)
Here, music festival operators, such as Live Nation, benefit
financially from the festivals. Moreover, at electronic music
festivals, given their vast scale and perimeter security, attendees
are dependent on the operator to provide a safe environment and
29
adequate medical care in the event of an emergency. An attendee
cannot obtain medical care on his or her own. Compared to the
operator of the music festival, attendees are relatively powerless
or unsophisticated. Some moral blame attaches to a music
festival operator’s negligent failure to prevent foreseeable harm
to attendees. This factor weighs against creating an exception to
a duty of ordinary care.
“The overall policy of preventing future harm is ordinarily
served, in tort law, by imposing the costs of negligent conduct
upon those responsible. The policy question is whether that
consideration is outweighed, for a category of negligent conduct,
by laws or mores indicating approval of the conduct or by the
undesirable consequences of allowing potential liability.”
(Cabral, supra, 51 Cal.4th at pp. 781-782.) Here, Live Nation has
not identified any undesirable consequences of allowing potential
liability. Moreover, Live Nation recognized the need for adequate
security and medical care at Hard Fest. Further, because Hard
Fest was a “mass gathering” of over 5,000 people, the county
required the approval and implementation of a medical action
plan to “ensure” that attendees “have access to the appropriate
level of care.” After inspection, the fire department approved
Live Nation’s medical plan and issued Live Nation a public safety
permit. Public policy supports adequate security and medical
care at electronic music festivals. This factor also weighs against
creating a duty exception for the operation of electronic music
festivals.
As for the burden that a tort duty would impose on the
defendant and the community (see Kesner, supra, 1 Cal.5th at
p. 1153; Rowland, supra, 69 Cal.2d at p. 113), Live Nation has
already recognized the risks and undertaken the burden to
30
provide security measures and medical care at its electronic
music festivals. Under these circumstances, there is no reason to
create an exception to the duty to exercise reasonable care in
one’s activities.
The final policy factor in a duty analysis is the availability
of insurance for the risks involved. (Regents, supra, 4 Cal.5th at
p. 633; Rowland, supra, 69 Cal.2d at p. 113.) Live Nation has
“offered no reason to doubt” an electronic music festival
operator’s ability to obtain insurance coverage for the conduct of
an electronic music festival. (See Regents, at p. 633.)
Live Nation’s reliance on Sakiyama v. AMF Bowling
Centers, Inc. (2003) 110 Cal. App. 4th 398 (Sakiyama) is
misplaced. 9 In Sakiyama, after leaving an all-night “rave” party
held at defendant’s roller skating rink, two teenagers were killed
and another two were severely injured in a single car accident.
The accident occurred over an hour after the teenagers left the
party and about 30 miles away from the skating rink. (Id. at
p. 403.) Although the skating rink owner “took numerous steps
to confiscate and remove both drugs and drug paraphernalia from
the facility,” one of the teenagers purchased Ecstasy at the party
and at least three of the teenagers took the drug. (Ibid.)
Recognizing that “preventing vehicle accidents which result from
drug use and/or fatigue [was] an important goal,” the court in
Sakiyama held that the skating rink owner “had no duty to
prevent [attendees] from driving whenever they chose to leave,
9 At the hearing on Live Nation’s motion for summary
judgment, the trial court stated, “The bottom line, in my mind,
right or wrong, is I believe Sakiyama [was] controlling in this
instance. It’s certainly not going to hurt my feelings if the Court
of Appeal disagrees with me.”
31
even if they were too fatigued or impaired to do so safely.”
(Id. at pp. 410, 412.)
Even assuming the skating rink owner knew drugs would
be used during the all-night party, the court further held the
owner “that leases its facility for a one-night event does not owe a
duty of care to a person injured hours later at a remote location
as a result of voluntary drug use and/or fatigue.” (Sakiyama,
supra, 110 Cal.App.4th at p. 406.) The court held that its
conclusion of no duty was “consistent with social host liability
decisions which have held that defendants who simply provide
venues for drinking alcohol do not owe a duty of care to plaintiffs
injured by guests who drive from the facilities while intoxicated.”
(Id. at p. 412.)
In reaching its holding, the court in Sakiyama
distinguished Weirum v. RKO General, Inc. (1975) 15 Cal. 3d 40
(Weirum). In Weirum a radio station with “an extensive teenage
audience” held a contest for listeners to locate a radio disc jockey
who was driving around Los Angeles. While attempting to locate
the peripatetic disc jockey, teenagers negligently caused the
death of a third party driver in another vehicle. (Id. at p. 43.)
The Court held that the radio station owed a duty to the decedent
driver because “it was foreseeable” that the youthful radio
listeners “in their haste would disregard the demands of highway
safety.” (Id. at p. 47.) Because the intervening conduct, “reckless
conduct by youthful contestants,” was foreseeable, the Court held
“[i]t [was] of no consequence that the harm to decedent was
inflicted by third parties acting negligently.” (Ibid.) According to
the court in Sakiyama, the radio station in Weirum “had ongoing
direct involvement in the act that caused the accident and
injuries,” while the skating rink owner “had no such direct link to
32
the unfortunate accident in this case.” (Sakiyama, supra, 110
Cal.App.4th at p. 408.)
Here, in contrast to Sakiyama where the accident occurred
after the event ended and 30 miles away, all conduct at issue
occurred wholly within the grounds that Live Nation exclusively
controlled. Knowing that overdoses could result from the
consumption of illegal drugs, Live Nation invited 65,000
attendees to an 11-hour event inside large secured grounds. Live
Nation assumed responsibility to provide security and medical
care. In the event of an overdose or other medical emergency, an
attendee was dependent on Live Nation to provide appropriate
medical care. As in Weirum, supra, 15 Cal. 3d 40, Live Nation
thus had “ongoing direct involvement” in the unfortunate
accident. Further, Live Nation’s position as an operator of an 11-
hour music festival with 65,000 attendees was far from what
could be considered a “social host.”
C. Breach of Duty and Causation Present Triable Issues
of Material Fact
The Dixes argue that triable issues of material fact exist
regarding the breach of duty and causation elements of their
negligence cause of action. We agree.
1. Triable Issues of Fact Preclude Summary
Judgment Regarding Breach of Duty
Even assuming that Live Nation carried its initial burden
on summary judgment to show that breach of duty “cannot be
established” and the burden shifted to the Dixes (Code Civ. Proc.,
§ 437c, subd. (p)(2)), the Dixes set forth specific facts showing
that triable issues of material fact existed regarding whether
Live Nation breached its duty of care. (Ibid.; see Aguilar,
33
supra, 25 Cal.4th at p. 850.) The Dixes submitted evidence that
Live Nation did not adhere to its planned “extraordinary”
security procedures at Hard Fest. For example, the Dixes
submitted the deposition testimony of Robert Flores, a security
supervisor at Hard Fest, who responded to Katie’s emergency.
Contrary to Live Nation’s security plan, Flores testified that he
was not instructed to identify impaired attendees at Hard Fest;
that he was not advised of a procedure for dealing with attendees
suspected to be under the influence of drugs; that he was not
provided any information about what action to take if confronted
with a medical emergency; and that he was not informed of any
items that were prohibited at Hard Fest.
The Dixes also presented evidence from which a reasonable
jury could infer that Katie obtained the drug she ingested at
Hard Fest. Further, the Dixes submitted admissible evidence
that Live Nation negligently responded to Katie’s emergency.
Accordingly, triable issues of fact exist regarding whether Live
Nation breached its duty to Katie. (Sharufa v. Festival Fun
Parks, LLC (2020) 49 Cal. App. 5th 493, 497 [to determine
whether a “defendant is entitled to summary [judgment] . . . .we
review the entire record and ask whether a reasonable trier of
fact could find in plaintiff’s favor”]; Smith v. Wells Fargo Bank,
N.A. (2005) 135 Cal. App. 4th 1463, 1474 [“if any evidence or
inference therefrom shows or implies the existence of the
required element(s) of a cause of action, the court must deny a
defendant’s motion for summary judgment . . . because a
reasonable trier of fact could find for the plaintiff”]; see also
McHenry v. Asylum Entertainment Delaware, LLC (2020) 46
Cal. App. 5th 469, 479, review granted July 15, 2020, S262297 [a
triable issue of material fact exists if “‘the evidence would allow a
34
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof’”].)
2. Live Nation Did Not Meet Its Initial Burden of
Showing the Dixes Did Not Have Sufficient
Evidence of Causation
Live Nation argues that the “proximate cause of [Katie’s]
death was her decision to consume an illegal drug.” However,
Live Nation did not support this argument with citation to any
legal authority. Live Nation therefore forfeited the argument.
(See People v. Bryant, Smith and Wheeler (2014) 60 Cal. 4th 335,
363 [“[i]f a party’s briefs do not provide legal argument and
citation to authority on each point raised, “‘the court may treat it
as waived, and pass it without consideration””’]; In re Marriage of
Davila & Mejia (2018) 29 Cal. App. 5th 220, 227 [‘“[i]ssues not
supported by citation to legal authority are subject to
forfeiture’”].)
Even if Live Nation’s causation argument is considered,
because the Dixes alleged that Live Nation’s negligent conduct
contributed to Katie’s death (see Crown Imports, LLC v. Superior
Court (2014) 223 Cal. App. 4th 1395, 1403 [“‘[t]he pleadings define
the issues to be considered on a motion for summary judgment’”]),
to obtain summary judgment in its favor, Live Nation was
required to present evidence sufficient to negate the Dixes’
contention. (Code Civ. Proc., § 437c, subd. (p)(2).) In the trial
court, although Live Nation disputed the Dixes’ contention that
Katie would have survived the drug overdose had there been
appropriate medical care readily available, Live Nation did not
offer any supporting evidence. (See Salasguevara v. Wyeth
35
Laboratories, Inc. (1990) 222 Cal. App. 3d 379, 385 [“medical
causation can only be determined by expert medical testimony”].)
Under these circumstances, Live Nation did not carry its
initial burden to negate the causation element of the Dixes’
negligence cause of action. (See Henderson v. Equilon
Enterprises, LLC (2019) 40 Cal. App. 5th 1111, 1116 [“[t]o meet its
initial burden in moving for summary judgment, a defendant
must present evidence that either ‘conclusively negate[s] an
element of the plaintiff’s cause of action’ or ‘show[s] that the
plaintiff does not possess, and cannot reasonably obtain,’
evidence necessary to establish at least one element of the cause
of action”]; Y.K.A. Industries, Inc. v. Redevelopment Agency of
City of San Jose (2009) 174 Cal. App. 4th 339, 354 [“[w]here the
evidence submitted by a moving defendant does not support
judgment in his favor, the court must deny the motion without
looking at the opposing evidence, if any, submitted by the
plaintiff”].)
In any event, the Dixes submitted an unrebutted expert
opinion that “had advanced medical care been readily available,”
Katie “would have survived the drug ingestion.” (See Towns v.
Davidson (2007) 147 Cal. App. 4th 461, 472 [“[g]enerally, a party
opposing a motion for summary judgment may use declarations
by an expert to raise a triable issue of fact on an element of the
case provided the requirements for admissibility are established
as if the expert were testifying at trial”].) 10
10 Relying on People v. Sanchez (2016) 63 Cal. 4th 665, Live
Nation argues that the expert’s opinion improperly was “based on
an unsubstantiated hearsay” document. However, the trial court
36
DISPOSITION
The judgment is reversed. The Dixes shall recover their
costs on appeal.
DILLON, J. *
We concur:
PERLUSS, P. J.
SEGAL, J.
correctly overruled Live Nation’s hearsay objection because the
holding in Sanchez does not prohibit an expert witness from
relying on hearsay. The Court in Sanchez held that “any expert
may still rely on hearsay in forming an opinion, and may tell the
jury in general terms that he [or she] did so.” (Id. at p. 685; see
Evid. Code, § 801, subd. (b) [expert opinion may be “[b]ased on
matter . . . whether or not admissible . . .”].) Accordingly, the
Dixes’ expert witness properly relied on hearsay in forming his
opinions.
*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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