Last week Amplify reported on AEG and Plaza Live’s motions to dismiss in the Christina Grimmie wrongful death lawsuit. Both defendants were moving to have the case thrown out as the family of the late singer filed for compensation for Christina’s lost income and for emotional distress placed on her brother, who tackled the shooter to the ground.
The Grimmie shooting was one incident in what felt like a stream of recent attacks on the live entertainment industry in recent years, including the Bataclan shooting in France, the Manchester Arena bombing in England, the Irving Plaza shooting in New York, and, two days before and a few miles from Grimmie’s killing, the Pulse Nightclub massacre in Orlando.
As lawsuits emerge to determine promoters, venues, and other industry professionals responsibiliy for safety and security, Amplify reached out to the head of Adelman Law Group and VP of the Event Safety Alliance, Steven Adelman, for his expert opinion. Adelman spoke to Amplify about the Grimmie case and why the law is sympathetic to venues and promoters.
In a motion to dismiss, AEG’s lawyers are suggesting that the duty to provide safety and security is in the hands of the venue. Does that seem like a viable argument to dismiss their duty of care?
Usually the venue bears at least partial legal responsibility for providing a reasonably safe place for the artist to perform. That’s the same as the venue’s duty to provide a reasonably safe place for patrons to enjoy the artist’s performance. The house bears the first responsibility for providing reasonably safe conditions in which to work or play.
Those basic duty of care propositions can all be changed by contract. The house can say, ‘Yes, it’s our duty to provide a reasonably safe venue for patrons, but we are going to outsource security and we’re going to make the security company sign a contract in which the security company agrees to indemnify and hold the venue harmless in the event there are any alleged security issues.’ That’s a very common thing.
Lawyers for the Orlando Philharmonic Orchestra Foundation (the entity that owns Plaza Live where the shooting occurred) are seeking to dismiss the liability case because they say the shooting was ‘not reasonably foreseeable.’ Did this kind of attack seem ‘reasonably unforeseeable’ at the time (June 2016)?
We can look at it in two different ways. The plaintiffs will say that given in June 2016, active shooters and related security threats were common enough that Plaza Live should have reasonably foreseen, if not this actual guy, then someone posing a threat like the one that he did. As I read the complaint, the plaintiffs take the position that even if this exact guy was unforeseeable, that doesn’t end the venue’s duty of care. They are saying something like this was reasonably foreseeable and therefore that’s why, even small clubs like this one, have some kind of security outside the door which Plaza Live did. Unfortunately, their security was doing bag checks, but not pat downs. There was no hand wanding or no walk-through magnetometers. There had been enough bad guys coming into ticketed events with guns and that’s why you have private security guards checking for weapons. That’s the plaintiff’s argument in a nutshell.
Plaza Live would say in turn, consider the literally millions and millions of people who have walked through turnstiles, gone through ticketed areas without being armed, without posing any kind of threat. It’s way too simple to look back retrospectively and say someone should have foreseen this guy. No. The vast majority of shows never have anyone coming in bearing a weapon, much less watching the entire show while drawing the attention of no one and then going to a meet and greet afterwards still saying nothing and engaging in no behavior that called attention to him until he took out his weapon and fired it at the unsuspecting performer. The venue will try to show that that scenario has literally never happened before. That is the very definition of unforeseeable.
A lot of the argument currently hangs on what ‘reasonably foreseeable’ means according to the law.
I think we are starting to see a change in what is reasonably foreseeable. There’s this interesting push-pull going on and increasing recognition by triers of fact (juries or judges who rule on motions) that all these security measures may be fine for protecting the public when something does happen, but it is very hard to predict when something will happen or exactly what that might be. The future is running up against the present.
Is it too early in the case for a motion to dismiss to be considered?
AEG has good lawyers, I’m sure, and they understand that a motion to dismiss has very low odds of being granted for purely procedural reasons. But sometimes lawyers write motions to dismiss to ‘educate the judge,’ to give the judge a version of the case in an effort to control the narrative.
Right now AEG has filed a motion to dismiss. It is a very low bar that the Grimmie family has to clear because the judges don’t want to get rid of cases before the parties have started exchanging information. If there is any sort of legally plausible claim, motions to dismiss will be are denied. Regardless of the merit of AEG’s argument, it is probably too early for them to win.
Do you think any other cases could set a precedent for this one?
We keep seeing a bunch of incidents, but they aren’t the same. Bataclan is not the equivalent of Manchester. We are lulled into this idea that we are under siege by the same phenomenon, but my point is that we are not. If you look at each individual incident, if you have the emotional strength to take each incident on its own terms, you realize pretty quickly that they are not all the same.
I think as an industry, we are working really hard to fix a problem as if it is a problem, singular. As opposed to addressing a series of unfortunate events that are different enough from each other that, if you are an emergency planner as I am, it would be a waste of time to plan for the next Bataclan or the next Pulse nightclub.
I think this why these venues are going to be exonerated for these highly unusual, hard to predict incidents. Because they are too complicated. It is too complicated to figure out what calculations a bad guy is going to make at any given security structure.
What you’re saying is that legally these incidents are not truly that similar and quite unforeseeable?
The line that I used for the Irving Plaza nightclub shooting in New York last year is that the common denominator with that shooting and the others was “Someone had a beef and a gun.” Except that now I suppose we have to say “Someone has a beef and a weapon” because we would have to include bombs or vehicles driven through crowds, among other things. Because they are different to varying degrees, each suggests something different could have stopped this incident. For poor Christina Grimmie, the thing that would have conceivably stopped her assailant would have been a security guard who did a body pat down. But three miles away, one night later at Pulse a security guard prepared to do a security pat down was there and it changed nothing.
Obviously, the industry does not want these kinds of incidents happening. Are there measures you think promoters or venues should be taking to prevent these occurrences and therefore avoid these ugly lawsuits?
There are measures that are being taken. This relatively small venue is kind of on the tipping point of where measures are more or less common. There is a laundry list of fairly well-established security measures from which venues can choose from.
Unfortunately, regarding Christina Grimmie, most of them really wouldn’t have changed anything. There are two measures that would have likely made a difference. Had there been security doing body pat downs given what the shooter was apparently wearing on his body, one would have hoped that would have been detected. Alternately, if the shooter had been required to walk through a magnetometer or been hand wanded, one would hope that the weapons would have set off the alarm. To be fair, at smaller venues like this one, magnetometers are not industry standard. Maybe they should have? To my knowledge, smaller clubs usually rely on a guard or two at the front and do a quick visual and a bag check and that’s about it.
For active shooters, I recommend training security guards to do a proper pat down. That’s more valuable and frankly much less alarming than some more radical proposals. I also think it is going to be more consistent with what juries are going to say is the legal duty of care for venues and event professionals regarding highly improbable catastrophic acts of violence.
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