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Beninati v. Black Rock City

June 30, 2009

ANTHONY BENINATI, PLAINTIFF AND APPELLANT,
v.
BLACK ROCK CITY, LLC, DEFENDANT AND RESPONDENT.



(San Francisco City & County Super. Ct. No. CGC-06-455768). Trial Judge: Hon. Paul H. Alvarado.

The opinion of the court was delivered by: Ruvolo, P. J.

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

Appellant Anthony Beninati (Beninati) was a three-time attendee at the iconic Burning Man Festival (Burning Man), held annually at Black Rock City, Nevada. During his attendance at the 2005 festival, Beninati was himself burned when he tripped and fell into the remnants of the Burning Man effigy while participating in the festival's commemorative ritual. He sued Burning Man's promoter, respondent Black Rock City, LLC (Black Rock), seeking recovery for his personal injuries and property damage. The trial court granted summary judgment as to Beninati's single cause of action for negligence, concluding that Black Rock owed Beninati no duty of care under the doctrine of primary assumption of risk. We agree, and affirm.

II. PROCEDURAL AND FACTUAL BACKGROUND

A. General Procedural Background

Beninati filed a civil complaint in the San Francisco County Superior Court in August 2006. The complaint alleged that Black Rock*fn1 was either the lessee or possessor of land upon which the Burning Man festival was held in 2005, or that it ―possessed, managed, maintained, operated, supervised, coordinated, and controlled the event,‖ which included the burning of a 60-foot wood sculpture in the figure of a man during the penultimate night of the festival. It was further alleged that immediately following the toppling of the burning sculpture, festival attendees were ―authorized and invited to approach the flames to deposit tokens, mementos and other combustible objects into the fire so attendees can participate more fully and completely in the Burning Man experience.‖ As to the single cause of action alleging negligence, the complaint averred that Black Rock negligently allowed attendees to approach the burning remnants of the Burning Man sculpture without provision for safe ingress and egress ―routes and corridors‖ for those attendees who were ―moved by the event to directly participate in the burning ritual.‖

Black Rock filed an answer pleading six affirmative defenses including express and implied assumption of risk. Thereafter, Black Rock filed a motion for summary judgment on the basis that Beninati assumed the risk of injury by approaching the fire when the risk of getting burned was an obvious, avoidable, and inherent risk, and that Black Rock had no legal duty to minimize said risk. Following a hearing held on January 11, 2008, the court granted the motion. In its March 6, 2008 order, the court concluded, inter alia, that Black Rock owed no duty of care to Beninati under the primary assumption of risk doctrine. This timely appeal followed.

B. The Facts As Disclosed On Motion for Summary Judgment

The undisputed facts presented in support of, and in opposition to, the motion for summary judgment included the following:

The Burning Man festival is an annual week-long event held at a remote desert location at Black Rock City, Nevada. There are no permanent structures at the location, nor does Black Rock City have police or health care services. If needed, emergency medical assistance is on site to assist festival goers. While a number of large structures erected for the festival are burned, the culmination of the festival is the burning of a 60-foot tall wood sculpture in the figure of a man, from which the festival name is derived. The Burning Man blaze occurs in front of a crowd of thousands of people. Once ignited, the wood sculpture burns until it topples and then continues to burn in a gigantic bonfire. Persons who attend Burning Man throw objects into the fire ― ‗so attendees can participate more fully and completely with [sic] the Burning Man experience.' ‖

Beninati attended the festival in the years 2002, 2003, and 2005. He is college educated and worked full time as a general manager for a company that rehabilitated real property for resale. He chose to attend the festival to get away from his ―workaholic‖ life, and to come together with a community of people with interests in art, alternative healing, and spirituality.

Beninati was to attend the 2005 festival with a friend. However, six weeks before the festival's commencement, the friend died in a motorcycle accident. Therefore, Beninati went to the festival with a photograph of his deceased friend, intending to place the photograph in the Burning Man bonfire.

The Burning Man sculpture was ignited near sundown on September 3, 2005. When Beninati arrived at the bonfire site, the sculpture had already been ignited and had fallen. The flames upon his arrival were about 40 feet high. Beninati walked around the perimeter of the fire three times ...


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