US appellate court applies assumption of risk in dismissing mosh pit case

February 2010

Live events industry

A New York appellate court has, for the first time, applied the doctrine of primary assumption of the risk to a claim of injury sustained in or in the vicinity of a mosh pit. In Schoneboom v. BB King Blues Club, 2009 NY Slip Op 08160 (November 12, 2009), the Appellate Division, First Department held that a club patron was barred by the doctrine of primary assumption of the risk from seeking damages for injuries suffered when an identified person in a group of slam dancers slammed into him. The First Department decision affirmed the order of Justice Marcy Friedman, sitting in Supreme Court, New York County, granting summary judgment. Justice Friedman had noted that the 36-year-old plaintiff testified that he was standing in the vicinity of “a lot of people bouncing around, bouncing off each other,” but that he did not participate in the fun. Notwithstanding this rather interesting claim, Justice Friedman held that the plaintiff, an experienced concertgoer, assumed the risk of being struck by a fellow concertgoer when, although conscious that an aggressive type of moshing was in progress, he deliberately placed himself in proximity to it. Justice Friedman had also rejected the plaintiff’s contention that he did not consent to the risk because he did not actually participate in moshing, stating that “[i]t is well settled that ‘a spectator generally will be held to have assumed the risks inherent in the game, including the specific risk of being struck.”

See the full report on the mosh pit case at the Havkins, Rosenfeld, Ritzert & Carriale LLP ‘Legal Insights’ online journal: and Ben Challis will examine the potential liabilities from crowd surfing, mosh pits and stage diving in his next Legal News column for IQ magazine (

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