Metropolitan News-Enterprise


Wednesday, July 1, 2009


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C.A.: Burning Man Festival Promoter Owed No Duty to Burned Man


By SHERRI M. OKAMOTO, Staff Writer


The First District Court of Appeal yesterday ruled that the promoter of Nevada’s iconic Burning Man Festival did not owe a duty of care to a participant who was unfortunate enough to trip and fall onto the fiery effigy that gives the event its name.

Affirming San Francisco Superior Court Judge Paul H. Alvarado’s grant of summary judgment in favor of Black Rock City LLC, Div. Four held that Anthony Beninati, a three-time attendee of the annual event, had assumed the risk of injury by participating in the commemorative Burning Man ritual.

Organizers of the Burning Man Festival, which takes place each year around the Labor Day weekend, describe it as an “experiment in temporary community dedicated to radical self-expression and radical self-reliance.”

The eight-day event is held in the Black Rock Desert, about 120 miles north of Reno, Nev., and on the penultimate night, a 60-foot tall wood sculpture in the figure of a man is set ablaze.

‘Burning Man Experience’

Once ignited, the wood sculpture burns until it topples and then serves as a large bonfire. Beninati asserted festival attendees were “authorized and invited to approach the flames to deposit tokens, mementos and other combustible objects into the fire” so that they could “participate more fully and completely in the Burning Man experience.”

Beninati testified that he had planned to attend the 2005 festival with a friend, but his friend was killed in a motorcycle accident that July, so he took a photograph of his friend to place in the Burning Man bonfire at that year’s event.

The bonfire was ignited near sundown on Sept. 3, 2005, and had fallen by the time Beninati said he came to the bonfire site.

He admitted at his deposition that he did not need to be told “fire was dangerous and caused burns” and that approaching the fire to burn his friend’s photograph was not “absolutely safe, because there [was] a fire present.”

As the fire died down, Beninati said he moved about seven steps toward the smoldering fire. He maintained that he was sober and thought it was safe when he walked into an area of low flames as he saw others do.

Burns Sustained

Beninati said he stopped at a spot where there was fire on either side of him, threw the photograph on the fire and watched it burn, then moved a few more steps forward.

His right foot “caught on something or [he] tripped on something,” which he said may have been a cable or something solid, causing him to fall into the fire. He sustained burns to both of his hands and later filed suit against Burning Man’s promoter, 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.

On appeal, Beninati argued that application of the doctrine was limited to “rule-based” sports or, at a minimum, to “active sports,” and did not apply to “ ‘low-impact’ cultural activities.”

But Presiding Justice Ignazio J. Ruvolo explained in his opinion for the appellate court that pursuant to the California Supreme Court’s ruling in Knight v. Jewett (1992) 3 Cal.4th 296, assumption of risk applies to all activities involving an inherent risk of harm to voluntary participants, if that risk cannot be eliminated without altering the fundamental nature of the activity. 

Although Knight addressed a claim for injuries occurring during a game of touch football, the plurality opinion by then-Justice Ronald M. George specified that the question of whether a defendant owed a legal duty to protect a plaintiff from a particular danger turned on the nature of the “activity or sport” in which the parties engaged.

Knight further provided that the primary assumption of risk doctrine applies, “[i]n addition to the sports setting” to cases involving the “firefighter’s rule,”  which provides that one who sets a fire owes no duty of care to a firefighter injured while engaged in fire suppression activities.

‘Self-Evident’ Danger

Ruvolo reasoned that Beninati chose to engage in an activity similar to that engaged in by a firefighter as part of the firefighter’s professional duties by voluntarily approaching the raging bonfire and that the dangerousness of such a situation was “self-evident.”

The justice also clarified that as used in the context of primary assumption of risk, an obvious risk is “one within the contemplation of the activity, whether or not it is actually observed,” so that “an obvious risk inherent in the activity undertaken by Beninati was that the flames and ash hid the location of fire embers and Burning Man debris,” which could cause him to fall and be injured.

Joined by Justices Timothy A. Reardon and Patricia K. Sepulveda, Ruvolo concluded that the risk of being burned was inherent in the Burning Man commemorative ritual and that the promoters of the event therefore owed participants no legal duty to prevent such harm.

The case is Beninati v. Black Rock City, LLC, 09 S.O.S. 4020.


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