Miller v. Live Nation Worldwide, Inc. et al

Filing 56

MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 2/1/2016. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
KENNETH K. MILLER,
Plaintiff,
v.

LIVE NATION WORLDWIDE, INC.,
et al.,
Defendants.

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Civil Action No.: CBD-14-2697

MEMORANDUM OPINION
Before this Court are Defendant Live Nation Worldwide, Inc.’s Motion for Summary
Judgment (ECF No. 38) (“Live Nation’s Motion”),1 and Defendant Noble Associates
Worldwide, Inc.’s Cross-motion for Summary Judgment Against Defendant Live Nation (ECF
No. 41) (“Noble’s Cross-motion”). The Court has reviewed Live Nation’s Motion, Noble’s
Motion as to Plaintiff’s claims, Noble’s Cross-motion, related memoranda, and applicable law.
No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented
below, the Court GRANTS in part and DENIES in part Live Nation’s Motion, DENIES
Noble’s Motion, and DENIES Noble’s Cross-motion.
I.

Factual Background
Kenneth K. Miller (“Plaintiff”) alleges that on May 4, 2012, he was attending a rock

concert at the Fillmore, a venue operated by Nation Worldwide, Inc. (“Live Nation”), in Silver
Spring, Maryland. Pl.’s Compl. 1-3. While observing the concert featuring the metal band

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Defendant Noble Associates Worldwide, Inc. (“Noble”) joins Live Nation’s Motion (hereinafter “Noble’s
Motion”) as to Plaintiff’s claims only. See ECF No. 40.

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Korn, Plaintiff was struck by a crowd surfer.2 Id. Plaintiff, who was attending the concert with
his teenage son, alleges that he was facing the stage, from the front row, when he was struck
from behind. Id. at 2, 4. Plaintiff alleges that Noble was supposed to provide security and
enforce the policy against crowd-surfing. Id. at 4.
Plaintiff alleges that there were several visible signs at the Fillmore prohibiting crowdsurfing.3 Id. at 4. Plaintiff further alleges that there was little or no crowd-surfing at the
beginning of the concert, but everything changed when Korn performed “Freak on a Leash,” a
song that is known to encourage crowd-surfing. Id. Plaintiff alleges that the security personnel
at the concert did not do anything to prohibit or discourage the crowd-surfing that ensued. Id. at
5.
As a result of the incident, Plaintiff suffered fractured vertebrae, and a severed right
vertebral artery. Id. at 6. Plaintiff underwent emergency surgery, and in the process, the surgeon
had to manipulate Plaintiff’s esophagus causing permanent injuries to his voice. Id. Plaintiff
alleges that as a result of the permanent injuries, he continues to experience pain in his
esophagus, difficulty eating, a stabbing pain in his right bicep, decreased strength in his right
bicep, and a numbness in his index finger and right thumb. Id. at 7. As a result of the severed
artery, Plaintiff has to take blood thinners for the rest of his life to prevent the possibility of a
stroke. Id.
On July 14, 2015, Noble filed its cross-claim against Live Nation (ECF No. 29)
(“Noble’s Cross-Claim”). In the cross-claim, Noble alleges that on the day of the concert,
Noble’s only obligation was to provide consulting services. Noble’s Cross-Claim 2-3. Noble

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“Crowd-surfing occurs when the crowd hoists one or more crowd members above the crowd and passes
the member around.” Brewer v. Monqui, Inc., No. 53939–6–I, 2005 WL 1725709, at *1 (Wash. Ct. App. July 25,
2005).
3
Live Nation and Noble do not dispute that there were several visible signs at the Fillmore prohibiting
crowd-surfing. See Live Nation’s Mot. 3.

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claims its responsibility was not to provide crowd control services, as it was originally stipulated
in the Services Agreement it signed with Live Nation. Id.
The Services Agreement between Noble and Live Nation, executed on September 9, 2011
and set to terminate on August 1, 2013, provides that Noble was required to “provide crowd
management services . . . including crowd management staff and security staff . . .”. ECF No.
39-2, p. A-1, ¶1. Noble was required to provide “(i) crowd control . . ., (iv) direction and control
of the audience to deter any crowd disturbances.” Id. More specifically, Noble was required to
“use best efforts to monitor, keep secure and maintain reasonable control over those individuals .
. . body-surfing in the general admission area located directly in front of the stage and/or in front
of a staffed barricade.” ECF No. 39-2, p. A-1, ¶4. The Services Agreement provided that the
agreement “may not be amended, revised or terminated orally but only by a written instrument
executed by the Party against which enforcement of the amendment, revision or termination is
asserted.” ECF No. 39-2, p. 3, ¶ 9(B).
Noble asserts in its Cross-motion that it was Live Nation’s responsibility to provide
crowd management services, and that Live Nation owes Noble defense and indemnification for
this incident. Noble’s Cross-Claim 3. Noble’s Count I, therefore, demands judgment against
Live Nation for indemnification and/or contribution for any and all judgment that Plaintiff may
receive against Noble. Id. at 4. Noble’s Count II for breach of contract alleges that under the
Services Agreement, Live Nation owes Noble defense and indemnification. Id. at 5.
II.

Standard of Review
Under the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is deemed genuine
only if the “evidence is such that a reasonable jury could return a verdict for the nonmoving

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party,” and a fact is deemed material only if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Supreme Court
has explained that the burden of proof lies with the movant to identify “those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court reviewing a motion for summary
judgment must view the evidence in the light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
This case involves a negligence claim. To establish a claim for negligence in Maryland,
the plaintiff must prove: “(1) that the defendant was under a duty to protect the plaintiff from
injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or
loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.”
Moore v. Jimel, Inc., 147 Md. App. 336, 337-38 (Md. Ct. Spec. App. 2002) (citing Valentine v.
On Target, 353 Md. 544, 549 (1999)); see also Rybas v. Riverview Hotel Corp., 21 F. Supp. 3d
548, 560 (D. Md. 2014) (citations omitted). Thus, to prevail, Defendants must prove that there is
no genuine dispute as to a material fact and that they are entitled to judgment as a matter of law
regarding any of the four elements above.
III.

Analysis
a. Maryland state law applies.
“A federal court sitting in diversity must apply the law of the state in which the court is

located, including the forum state’s choice of law rules.” Rybas, 21 F. Supp. 3d at 559-60. For
tort claims, “Maryland applies the law of the state where the alleged harm occurred (‘lex loci
delicti’).” Id. at 560. In this case, the Court has diversity jurisdiction under 28 U.S.C. §

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1332(a)(1). The alleged events took place in Maryland; therefore, the Court applies the
substantive tort law of Maryland.
b. Live Nation had a duty to protect Plaintiff from crowd-surfing and Live
Nation had actual or constructive notice that crowd-surfing was occurring at
the concert.
As already stated, to establish a negligence claim, a plaintiff has to assert: (1) that the
defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached
that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury
proximately resulted from the defendant's breach of the duty. Moore, 147 Md. App. at 337-38.
Whether there is enough evidence of the required elements in a negligence action is a question of
fact to be determined by the fact finder, but the existence of a legal duty is a question of law that
is decided by the court. Valentine v. On Target, 353 Md. 544, 549 (1999).
The parties do not dispute that Plaintiff was a business invitee at the Fillmore the night of
the incident. A business invitee is “one invited or permitted to enter another’s property for
purposes related to the landowner’s business.” Tennant v. Shoppers Food Warehouse Md. Corp.,
115 Md. App. 381, 388 (Md. Ct. Spec. App. 1997). A business invitor owes an invitee “a duty to
use reasonable and ordinary care to keep the premises safe and to protect the invitee from injury
caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety,
will not discover.” Southland Corp. v. Griffith, 332 Md. 704, 715-16 (1993). “Although the
business invitor has a duty to protect against unreasonably dangerous conditions, the business
invitor is not an insurer of the invitee’s safety.” Tennant, 115 Md. App. at 389. The business
invitor, therefore, has no duty to warn an invitee of an open, obvious, and present danger. Id.
A business invitor has a duty to protect its business invitees from the actions of third
persons. See Litz v. Hutzler Bros. Co., 20 Md. App. 115, 122 (Md. Ct. Spec. App. 1974).
However, this duty does not exceed the business owner’s general duty to such invitees. Id.

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“Liability for breach of this affirmative duty may arise from . . . dangers associated with
employees or other invitees when [the] business owner, ‘as a reasonably prudent person . . .
should have anticipated the possible occurrence and the probable results of such acts.’” Rhaney
v. Univ. of Maryland Eastern Shore, 388 Md. 585, 602 (2005) (citation omitted); see also
Jackson v. A.M.F. Bowling Ctrs., Inc., 128 F. Supp. 2d 307, 311 (D. Md. 2001) (“The duty to
protect . . . [a plaintiff] against unreasonable risk of harm extends to risks arising out of a
defendant’s conduct or the intentional or criminal acts of third parties.”). In Jackson, the Court,
relying on the Restatement (Second) of Torts, stated that a defendant “is not required ‘to take
precautions against a sudden attack from a third person which he has no reason to anticipate;’”
however, “he is . . . required to act when he knows or has reason to know that the plaintiff is in
danger or injured.” Jackson, 128 F. Supp. 2d at 311-12.
Live Nation4 argues that this case is like Lexington Mkt. Auth. v. Zappala, 233 Md. 444
(1964). Live Nation’s Mot. 11-12. Live Nation further argues in its Reply that it cannot be held
liable “for the tortious acts of an unidentified third party who crowd surfed in violation of the
clearly posted signs.” Live Nation’s Reply 1-2. In Zappala, the plaintiff, a business invitee,
sustained injuries after slipping and falling on a spot of oil or grease on the pavement of a selfservice parking garage. Lexington Mkt. Auth., 233 Md. at 445. The Court held that the plaintiff
failed to establish a case of constructive notice for the jury because there was no evidence that
the condition was caused by the business invitor or its employees, or that there was actual notice
of the condition. Id. at 446. Relying on Zappala, Live Nation argues that Plaintiff has not
offered any evidence showing how long the alleged crowd surfer was surfing prior to the
incident. Live Nation’s Mot. 12. Live Nation also argues that since crowd-surfing is a

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Although the Court is going to refer to “Live Nation’s arguments,” in light of Noble joining Live Nation’s
Motion, the Court also takes these arguments as Noble’s arguments regarding Plaintiff’s claims only.

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spontaneous activity, which is impossible to predict, it would be unreasonable to hold that it was
Live Nation’s duty to protect Plaintiff from crowd-surfing as soon as it occurred. Id.
This case is unlike Zappala where the Maryland Court of Appeals concluded that the
defendant lacked notice of the spill. In this case, a reasonable jury or fact finder could infer from
the evidence that Live Nation and Noble were aware that crowd-surfing was taking place at the
concert. As the Plaintiff stated in his deposition, he saw a couple of crowd surfers at different
times during the concert.5 Stephanie Steele, the corporate designee for Live Nation,
acknowledged in her deposition that Live Nation was aware of crowd-surfing activities at a
similar concert.6 This led Live Nation to determine it was necessary to place signs at the
Fillmore prohibiting crowd-surfing. See Stephanie Steele’s Depo., ECF No. 43-3, p. 149:11-18.
Edward Gilmore, Noble’s Director of Security for the Fillmore, stated in his deposition that
although Noble employees were aware of crowd-surfing, they were not told to stop it,7 and he
did not observe any other security personnel trying to stop the crowd-surfing. Edward Gilmore’s
Depo., ECF No. 43-5, p. 143:14-17. Instead, according to Mr. Gilmore, the security personnel
were assisting the crowd surfers over the barrier and did not tell them to leave the venue. Id., p.
144:1-20. Mr. Gilmore explained that crowd-surfing became an accepted practice, and there was
no reason for Noble personnel to report it to Live Nation personnel. Id., p. 163:20-21, p. 164:16.

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“About 40 percent of the way through [the Korn concert] I noticed [2 crowd surfers] to my right about,
you know, 10, 15 feet away.” Plaintiff’s Depo., ECF No. 43-1, p. 67:1-8. “The couple crowd surfers that I saw 40
percent, give or take, through the concert were stopped by the security guards.” Id., p. 97:9-12. “Guards were
assisting crowd surfers.” Id., p. 97:9. During the “Freak on a Leash” song, Plaintiff recalled seeing three to five
crowd surfers. Id., p. 72:8-11. Based on videos that Plaintiff saw of the Korn concert, he saw approximately ten
crowd surfers when the group performed “Freak on a Leash.” Id., p. 71:17-25, p.72:1-4.
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At the Korn concert in Indianapolis (which took place before the concert at the Fillmore), there was a
crowd surfer. Stephanie Steele’s Depo., ECF No. 43-3, p. 149:11-18.
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“I was not told to stop crowd surfing [during the Korn concert], not anybody that, the contractors that
were with me, we weren’t told to stop it.” Edward Gilmore’s Depo., ECF No. 43-5, p.143:8-13.

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Based on the evidence in this case, a fact finder could reasonably infer that Live Nation
and Noble knew or should have known, based on past Korn concerts and what was happening
the day of the concert, that crowd-surfing was either occurring or likely to occur. A fact finder
could reasonably infer that Live Nation became aware with sufficient time to prevent more
crowd-surfing or warn invitees such as Plaintiff. See Troxel v. Iguana Cantina, LLC, 201 Md.
App. 476, 498-99 (Md. Ct. Spec. App. 2011) (where the court held that a fact finder could
reasonably infer from the evidence that the nightclub being sued knew or should have known
about the dangerous condition (violent incidents as a result of drinking) in its premises and had
an obligation to take reasonable steps to eliminate the dangerous condition under its control).
The Court rejects Live Nation’s argument that it is not responsible for the tortious acts of a third
person because the law on this issue is clear: if the business invitor could have anticipated the
possible occurrence (crowd-surfing) and the probable results (injury to the business invitee), then
liability may arise if the business invitor did not exercise reasonable care. Rhaney, 388 Md. at
602; see also Talmadge v. CEE-IT Live, LLC, No. CV020468634S, 2005 WL 834424, at *2
(Conn. Super. Ct. March 7, 2005) (The court held that the defendants had a duty to protect their
invitees from injuries associated with crowd-surfing, which the defendants were aware was
occurring at the concert). In this case, there is evidence to suggest that Live Nation was aware of
the crowd-surfing taking place at the concert and at previous Korn concerts. Whether Live
Nation exercised reasonable care is a question for the jury. See Brewer v. Monqui, Inc., No.
53939–6–I, 2005 WL 1725709, at *3 (Wash. Ct. App. July 25, 2005) (The court held that the
defendant, the possessor of land and concert promoter, owed a duty of reasonable care to
reasonably protect the plaintiff, who was injured by a crowd surfer, and whether the defendant
exercised such reasonable care was a material factual issue that could not be resolved on
summary judgment.)

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c. The Court cannot conclude that Plaintiff was contributorily negligent as a
matter of law.
Live Nation argues that Plaintiff was contributorily negligent as a matter of law when he
failed to take reasonable care for his own safety. Live Nation’s Mot. 9. Live Nation states that
Plaintiff “had a duty to exercise due care for his own safety by not placing himself in an area [the
front of the stage] where crowd-surfing was occurring.” Id. Live Nation also argues, by citing to
Moodie v. Santoni, 292 Md. 582, 589 (1982) and Menish v. Polinger Co., 277 Md. 553, 563
(1976), that although ordinarily the question of contributory negligence is for the jury to decide,
the judge decides this issue as a matter of law when the minds of ordinary and reasonable
persons cannot differ. Id. at 7-8.
In response, Plaintiff cites G.C. Murphy Co. v. Greer, 75 Md. App. 399, 402 (Md. Ct.
Spec. App. 1988) and argues that contributory negligence is a fact-intensive defense for the jury
to decide and it is only in the most rare of cases where the judge decides this issue. Pl.’s Opp.
16-17. Further, Plaintiff argues that a reasonable jury could find that he was not contributorily
negligent. In support thereof, Plaintiff advances five reasons: (1) Live Nation and Noble’s
finger-pointing at each other negates any suggestion that Plaintiff was contributorily negligent as
a matter of law; (2) a reasonable jury could find that Plaintiff had no reason to believe that
crowd-surfing would occur at the event because there were signs everywhere prohibiting crowdsurfing, no one crowd-surfed during most of the concert, and one of the two isolated people who
crowd-surfed during a song stopped and the other was safely lowered at the barricade; (3) a jury
could find that Plaintiff, knowing that crowd-surfing was prohibited, and not knowing that
“Freak on Leash” would incite crowd-surfing, could not have reasonably anticipated that a crowd
surfer would injure him; (4) a reasonable jury could find that Plaintiff did not negligently place
himself at risk of injury by attending the concert; (5) even if the jury could find that Plaintiff

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negligently placed himself at risk of some injury, the kind of injury Plaintiff suffered, a broken
neck, is not the kind of injury he could have imagined he was exposing himself to. Id. at 29-32.
Contributory negligence is a total bar to recovery in Maryland, and is defined as the
failure to take ordinary care for one’s own safety. Faith v. Keefer, 127 Md. App. 706, 745 (Md.
Ct. Spec. App. 1999). “Before the doctrine of contributory negligence can be successfully
invoked, it must be demonstrated that the injured party acted, or failed to act, with knowledge
and appreciation, either actual or imputed, of the danger of injury which his conduct involves.”
State v. Thurston, 128 Md. App. 656, 665 (Md. Ct. Spec. App. 1999) (citing Hooper v. Mougin,
263 Md. 630, 634 (1971)). The defendant has the burden of establishing contributory
negligence. Id.
Live Nation is correct in stating that “the absence or presence of contributory negligence
is generally for the jury to decide.” See Moodie v. Santoni, 292 Md. 582, 589 (1982) (quoting
Jackson v. Forwood, 186 Md. 379 (1946)). “It is only where the minds of reasonable persons
cannot differ that the court is justified in deciding the question as a matter of law.” Williamson
Truck Lines, Inc. v. Benjamin, 244 Md. 1, 8 (1966) (citations omitted). To withdraw the issue
from the jury, “[t]he evidence must show some prominent and decisive act which directly
contributed to the accident and which was of such a character as to leave no room for difference
of opinion thereon by reasonable minds.” Baltimore & O.R. Co. v. Plews, 262 Md. 442, 454
(1971).
The Court rejects Live Nation’s assertion that Plaintiff was contributorily negligent by
placing himself in an area where crowd-surfing was occurring after knowing that crowd-surfing
carried a risk of injury. Live Nation’s Mot. 9. The issue of contributory negligence does not
turn on Plaintiff’s knowledge of the dangerousness of crowd-surfing, but rather it turns on
whether a reasonable person under similar circumstances would understand the inherent risks

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associated with crowd-surfing, and whether that person took the proper precautions for their own
safety. See Delaney v. U.S., No. WMN–15–867, 2015 WL 5474265, at * 3 (D. Md. 2015) (citing
Robertson v. Shell Oil Co., 34 Md. App. 399 (Md. Ct. Spec. App. 1977)). In Delaney, the
plaintiff, who worked providing security services to a federal facility maintained by the General
Services Administration (GSA), warned his employer that there was a metal tack strip that
needed to be replaced at Post 11. Id. at 1. Post 11 was inspected and the repairs were not made.
Id. Subsequently, the plaintiff tripped and fell when the metal strip lifted and caught his boot.
Id. The defendant moved to dismiss or in the alternative, for summary judgment. Id. The Court
treated the motion as a motion for summary judgment. Id. Similar to this case, the defendant
argued that the plaintiff was contributorily negligent as a matter of law. The Court rejected the
defendant’s assertion and reasoned that “[t]he issue of contributory negligence turns not on
Plaintiff’s knowledge of the defect but rather on whether a reasonable person under the
circumstances would understand the inherent risks associated with the defect and take proper
precautions for their own safety.” Id. at 3. The Court also concluded that “[w]hether Plaintiff
acted reasonably under the circumstances, including whether Plaintiff fully appreciated the
danger posed by the condition of the metal strip is an issue for jury consideration.” Id. at 3
(citing McKenzie v. Egge, 207 Md. 1 (1955)). Similar to Delaney, the Court cannot conclude
here that Plaintiff was contributorily negligent as a matter of law. The question of whether an
objectively reasonable person in the position of Plaintiff would have appreciated the risk posed
by crowd-surfing is an issue for jury consideration.
d. The Court cannot conclude that Plaintiff assumed the risk of his injuries as a
matter of law.
Live Nation also argues that Plaintiff’s claims are barred because he assumed the risk
when he stood in a crowd where crowd-surfing was taking place. Live Nation’s Mot. 10. Live

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Nation further contends that the fact that Plaintiff may not have expected the severity of the
injury he allegedly sustained is irrelevant to whether he assumed the risk of an injury. Id.
In response, Plaintiff argues that assumption of risk is a subjective inquiry which goes to
whether the defendant had a duty to the plaintiff at all. Pl.’s Opp. 15. Plaintiff cites Schroyer v.
McNeal, 323 Md. 275, 283 (1991) for the proposition that Defendant must prove that (1) the risk
of danger was fully known to and understood by the plaintiff, and (2) knowing and appreciating
the precise risks, the plaintiff intentionally subjected himself to those risks. Id. Plaintiff again
relies on G.C. Murphy Co. v. Greer, 75 Md. App. 399, 402 (Md. Ct. Spec. App. 1988) and
adopts here the identical arguments originally made with respect to contributory negligence,
which can be found in Section III(c) above.
In its Reply, Live Nation cites to ADM P’ship v. Martin, 348 Md. 84, 91-92 (1997) and
Liscombe v. Potomac Edison Co., 303 Md. 619, 630 (1985) and argues that the assumption of
risk inquiry is an objective inquiry rather than a subjective inquiry. Live Nation’s Reply 3. Live
Nation asserts that the Court has to analyze whether Plaintiff (1) had knowledge of the risk of
danger, (2) appreciated that risk, and (3) voluntarily exposed himself to it. Id. at 3-4. In
addition, Live Nation states that the court in Liscombe and Schroyer did not hold that the
assumption of risk inquiry contemplated whether there was a risk of suffering the precise injury
that the plaintiff sustained; instead the assumption of risk injury merely looked at whether the
plaintiff knew and appreciated that there was a risk of danger. Id. at 4. Live Nation then
suggests that, based on his deposition, Plaintiff understood and appreciated the danger of
standing in a crowd when crowd-surfing was taking place; therefore, it is irrelevant that Plaintiff
could not have predicted the exact injury he suffered. Id. at 4-5.
In Maryland, assumption of risk, like contributory negligence, is a bar to recovery.
Prudential Securities Inc. v. E-Net, Inc., 140 Md. App. 194, 226 (Md. Ct. Spec. App. 2001).

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While contributory negligence “consists of some act of negligence on the part of a plaintiff
which directly contributed to the happening of the accident,” assumption of risk “means the
voluntary act of incurring the risk of an accident which may not occur and which the person
assuming the risk may be careful to avoid.” Wiggins v. State, 232 Md. 228, 240 (1963). The
defendant must prove three elements to establish the defense of assumption of the risk: (1) the
plaintiff had knowledge of the risk of the danger; (2) the plaintiff appreciated that risk; and (3)
the plaintiff voluntarily confronted the risk of danger. Thomas v. Panco Mgmt. of Maryland,
LLC, 423 Md. 387, 395 (2011) (citing ADM P’ship v. Martin, 348 Md. 84, 90-91 (1997)). “The
question of whether the plaintiff had knowledge and appreciation of the particular risk at issue is
ordinarily a question for the jury, ‘unless the undisputed evidence and all permissible inferences
therefrom clearly establish that the risk of danger was fully known to and understood by the
plaintiff.’” Id. (quoting Schroyer v. McNeal, 323 Md. 275, 283 (1991)) (emphasis in original).
“Where it is clear, however, ‘that a person of normal intelligence in the position of the plaintiff
must have understood the danger, the issue is for the court.’” Id. (emphasis in original).
The Court of Appeals of Maryland has stated that “ . . . in order for a plaintiff to have
assumed the risk of his or her injuries as a matter of law, we require that a plaintiff ‘must’ have
known that the risk was ‘actually present,’ not that he or she ‘would,’ ‘should,’ or ‘could’ have
known that the risk ‘might well be present.’” Id. at 398 (citing Poole v. Coakley & Williams
Const., Inc., 423 Md. 91, 123 (2011)). Under Maryland law,
[c]ourts may only impute knowledge to the plaintiff, as a matter of law, when
there is undisputed evidence of awareness, e.g., physical interaction with or
sensory perception of the dangerous condition . . .; the risk of danger is so obvious
that any person of normal intelligence will be taken to comprehend it . . .; or the
risk is an usual and foreseeable consequence of the plaintiff’s conduct . . . .
Id. (internal citations omitted). Aside from these circumstances, the Maryland Court of Appeals
has held that “[w]here there is a dispute whether the risk is assumed or not, that question is

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usually left to the jury . . . because the role of the fact finder is to assess the credibility of the
evidence and to draw a conclusion from among the inferences which may be reasonably drawn
from that evidence.” Id. at 399. (citing Poole, 423 Md. at 124). “[F]or a court to impute
knowledge as a matter of law, the evidence and all permissible inferences must make clear that
the plaintiff had full, actual, and subjective knowledge of the risk or that ‘a person of normal
intelligence in the position of the plaintiff must have understood the danger.’” Id. at 400 (citing
Poole, 423 Md. at 125) (emphasis in original).
In this case, the Court cannot conclude that Plaintiff assumed the risk as a matter of law.
There is no undisputed evidence that Plaintiff fully knew and understood the risk of the danger.
Although Plaintiff had seen crowd surfers at the concert, he did not see anyone getting hurt by
the crowd surfers. At most, Plaintiff saw crowd surfers that were stopped by the security guards
or guards that were assisting the crowd-surfers. Plaintiff’s Depo., ECF No. 43-1, p. 97:9-12.
Live Nation points the Court to Plaintiff’s deposition where he states that he “understood that it
was possible” that a crowd surfer could fall in the process of crowd-surfing, and where Plaintiff
acknowledges that he was aware that there was a “limited risk” of for example getting kicked in
the shoulder or “smacked in the head.” Live Nation’s Reply 5. These acknowledgements from
Plaintiff support a conclusion that he “would,” “should” or “could” have known that there were
risks associated with crowd-surfing. However, this evidence does not show that Plaintiff “must”
have known that the risk of being injured by a crowd-surfer was actually present. Since there is
no undisputed evidence that Plaintiff knew and understood the risk of the danger he was facing,
and since there is a dispute as to whether Plaintiff assumed the risk, this issue is to be decided by
the jury and not by the Court.
e. Live Nation is entitled to summary judgment as to Noble’s cross-claims for
breach of contract and indemnity.

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In its motion, Live Nation argues that it is entitled to summary judgment as to Noble’s
claims for breach of contract and indemnity because there is no evidence that the Services
Agreement was modified or revised. Live Nation’s Mot. 12. Live Nation states that the Services
Agreement required Noble to provide crowd management services and crowd control. Id. Live
Nation posits that Noble has not produced evidence of any agreement or writing that amended
the Services Agreement; therefore, Noble cannot claim that the scope of the services it was
required to provide was somehow revised. Id. at 13.
Noble responds that starting on April 2012, Live Nation took over all security operations
at the Fillmore, and Noble was only required to provide “consulting services” for the next six
months. Noble’s Cross-motion 3. Noble explains that as part of these consulting services, it was
supposed to provide consultants but not security guards. Id. It is Noble’s position that as a
consultant, if it observed crowd-surfing, it was not permitted to take any direct action. Id. 3-4.
Therefore, Noble states, on the date of the alleged incident, any decision regarding crowd
management was within the sole discretion of the Fillmore and Live Nation. Id. at 4.
In its reply, Live Nation argues that Noble has failed to present any evidence of a written
agreement between Live Nation and Noble where Live Nation promised to take over all security
operations at the Fillmore. Live Nation’s Reply, ECF No. 47, 2. Without such a written
agreement modifying the Services Agreement, Live Nation argues, Noble was responsible for
crowd management services at the concert. Id. at 3. Therefore, Live Nation continues, since
Noble was responsible for providing crowd control services, to the extent that lack of crowd
control services was a cause of Plaintiff’s injuries, then Noble breached the contract. Id.
The Court finds that under the Services Agreement Noble was required to provide crowd
management services, and any changes to the agreement should have been made in writing.
Under Maryland law, courts adhere to the principle of the objective interpretation of contracts.

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Ubom v. SunTrust Bank, 198 Md. App. 278, 286 (Md. Ct. Spec. App. 2011) (citation omitted).
Under this principle, unless a contract’s language is ambiguous, courts give effect to the
language as written without concern for the subjective intent of the parties at the time the
contract was formed. Id. Courts only look to the four corner of the contract, and “ascribe to the
contract’s language its customary, ordinary, and accepting meaning.” Id.
In this case, the contract is not ambiguous. Under the Services Agreement, Noble was
required to “provide crowd management services . . . including crowd management staff and
security staff . . .”. Noble was required to provide “(i) crowd control . . ., (iv) direction and
control of the audience to deter any crowd disturbances.” ECF No. 39-2, p. A-1, ¶1. More
specifically, Noble was required to “use best efforts to monitor, keep secure and maintain
reasonable control over those individuals . . . body-surfing in the general admission area located
directly in front of the stage and/or in front of a staffed barricade.” ECF No. 39-2, p. A-1, ¶4.
Any changes to the agreement had to be made in writing. The Services Agreement provided that
the agreement “may not be amended, revised or terminated orally but only by a written
instrument executed by the Party against which enforcement of the amendment, revision or
termination is asserted.” ECF No. 39-2, p. 3, ¶ 9(B). This requirement was restated in a
different section of the Services Agreement, where it was stipulated that “[Live Nation] and
[Noble], upon mutual agreement, may designate material additions or changes to the Scope of
Work, which shall be confirmed in writing and signed by authorized representatives of the
Parties.” ECF No. 39-2, p. A-1, ¶6. There is no written instrument before the Court that
amended the Services Agreement. For this reason, the Court grants summary judgment in favor
of Live Nation as to Noble’s contract claim.
Live Nation is also entitled to summary judgment as to Noble’s claim for indemnity.
Under the Services Agreement, Live Nation agreed to “indemnify, defend and hold harmless

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[Noble] . . . from any and all claims or liabilities . . . for . . . injury to persons . . . arising from
[Live Nation’s] negligence or willful misconduct.” ECF No. 39-2, p. 2, ¶ 5(B). Under the
Services Agreement, Noble was responsible for crowd management services. Noble failed to
provide these services and this omission contributed to Plaintiff’s injury. Consequently, Live
Nation is not required to indemnify Noble.
f. Noble’s Cross-motion for summary judgment against Live Nation is denied.
In the Cross-motion, Noble argues that if the Court were to look solely to the Services
Agreement, under paragraph 5(B), it is clear that if Plaintiff establishes a prima facie case of
negligence, the sole negligent actor is Live Nation because Live Nation was required to provide
crowd control services. Noble’s Cross-motion 4-5. Therefore, Noble argues, Live Nations owes
Noble defense and indemnification, including attorney’s fees. Id. Noble further argues that even
if the Court determines that Noble is not entitled to contractual indemnification, Noble is entitled
to common-law indemnification and attorney’s fees under the “active/passive” doctrine. Id. at 5.
The Court already determined that under the Services Agreement, Noble was required to provide
crowd control services. Therefore, Noble is not entitled to indemnification and attorney’s fees as
a result of Plaintiff’s injuries.
IV.

Conclusion
For the foregoing reasons, the Court GRANTS in part and DENIES in part Live

Nation’s Motion. Live Nation’s Motion is granted as to Noble’s contract and indemnity claims
and it is denied as to Plaintiff’s claims. The Court also DENIES Noble’s motion for summary
judgment as to Plaintiff’s claims, and DENIES Noble’s Cross-motion against Live Nation.

February 1, 2016

/s/
Charles B. Day
United States Magistrate Judge

CBD/yv

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