Assumption of Risk: Mosh Martyr
Supreme Court, New York County: Schoneboom v. B.B. King Blues Club
What do Kill Your Idols, Sub Zero and the Crumb Suckers have in common? They were all heavy metal bands (no offense to the bands if they take issue with the court’s characterization) playing B.B. King’s on August 3, 2006. Mr. Schoneboom was a big-bad-band fan. For him, you’re never too old for a little “slam dancing,” the more “aggressive” form of the ever-popular and intimate “moshing.” 36-year-old Schoneboom was a veteran of the slam-dance two step, having attended more than a hundred concerts where he frolicked in the mosh pits at least thirty to forty times.
The events in question took place during the Crumb Suckers set (in case you were wondering).
The night had begun pleasant enough. While Kill Your Idols was performing, plaintiff went to the lower level to get a better view of the slam dancing going on. A “good time” was being had by all as the fans bounced around off each other in a kinetic frenzy of fun and fisticuffs. After the set, plaintiff returned to his seat in the upper level, away from mosh central. Then Sub Zero came on. As Schoneboom describes it, the slam dancing now seemed “quite a bit more malicious.” Dancers were throwing themselves into non-participants, elbows were being thrown and celebrants were "taking potshots at perimeter people.” For this set, plaintiff remained in the demilitarized zone of the upper level.
But when the Crumb Suckers were about to come on, Schoneboom threw caution to the wind. He found his way to a spot 10 -12 feet from stage, directly in front of the moshkateers. At seven minutes into the performance, plaintiff “felt a shove from behind into the side of his knee which felt like a kick,” but didn’t see which mosher had mashed him. Plaintiff ended up with a knee injury and surgery. He then sued B.B. King’s.
Much to his dismay, the court slam-danced Schoneboom right out of court.
“If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed his duty” to exercise reasonable care. This is a longstanding rule of law that applies to all sorts of activities, including ball games, horseback riding and even samba dancing.
Schoneboom staked out his turf near the stage and the mosh pit only moments after having observed the more “malicious” slam-dancing that occurred when Sub Zero was performing. “Here, plaintiff not only elected to assume the risk of concert-going in a mosh dancing venue but was in the position, given his experience, to fully appreciate the risk.”
As for the injury, that he did not appreciate.
For Schoneboom court was a bust and there would be no dancing for dollars.
Case dismissed.
