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Cal. Appeal Court Reaffirms Assumption of Risk Defense

In a very interesting case, California's intermediate appeals court has affirmed that state's assumption of risk defense.

Once a year, tens of thousands of participants pay hundreds of dollars in fees for the privilege of participating in the "Burning Man Project", which consists of creating "Black Rock City" in Nevada's Black Rock Desert. The atavistic gathering is dedicated to "community, art, self-expression, and self-reliance" [see here for a fuller description of Burning Man]. Anthony Beninati, the general manager of a company that rehabilitated property for resale, was attending his third Burning Man event. He approached the event's climax fire (a 60-foot-high wooden "burning man") to toss in a photograph of a recently deceased friend. Attendees were "authorized and invited to approach the flames," his complaint stated, "to deposit tokens, mementos and other commemorative objects into the fire so attendees can participate more fully and completely in the Burning Man experience." Unfortunately, he apparently tripped and fell so close to the fire that he was severely burned, occasioning more than $1 million in medical expenses that he sought to recover from the allegedly negligent organizers of the event. Negligent or not, said the appellate judges, the organizers were not liable to Beninati as a matter of law, since he was fully apprised of the risks of the Burning Man fire and chose to assume them. The court analogized to the firefighters's rule: if a rescuer who chooses to confront a negligently created hazard may not recover, one who confronts said hazard for his own self-fulfilling purposes may not either.

Beninati v Black Rock Inc., LLC is a refreshing reminder to those courts who have chosen to eliminate Assumption of Risk as a torts defense. Defendant's negligence is not sufficient for tort liability.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.