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Read your ticket

Needless to say, lots of things at Burning Man are dangerous. You're in the desert in the middle of the summer and you are responsible for every single provision that could keep you a live. A lot of people build things, but there is no safety inspection, no city codes, nothing really but the occasional health inspector making sure that you're not poisoning the whole city. There isn't necessarily going to be a warning sign that something is dangerous. There may not be safety harnesses or railings on unstable structures. Art cars may not have seat belts. Every now and then, someone gets killed by some sort of accident. The most common way that I know of is by getting run over by an art car. This will never ever happen to me as I tend to be covered in illumination at night. I like the night lights. I like to boogie.

And so there's an attitude among burners that we assume the risk of what we do. The shorthand for this is "Read Your Ticket."

So in 2005, some dumbass ran into the flames after the man had fallen. This is not to say he was the only dumbass that did this. Lots of dumbasses run into the flames after the man has fallen. But this particular dumbass tripped, fell, and burned himself severely. I think he was trying to leave a picture of a friend who had recently died in the flames. (I prefer to leave that sort of thing in the temple well before any torch is put to it, but to each his own....) It was pretty sad, as he lost use of one of his arms.

But he sued.

And the case went all the way to the California Court of Appeals in San Francisco. Fortunately, the court recognized the absurdity of the claim.
The complaint alleged that Black Rock1 was either the lessee or possessor of land upon which the Burning Man festival was held in 2005, or that it ―possessed, managed, maintained, operated, supervised, coordinated, and controlled the event, which included the burning of a 60-foot wood sculpture in the figure of a man during the penultimate night of the festival. It was further alleged that immediately following the toppling of the burning sculpture, festival attendees were ―authorized and invited to approach the flames to deposit tokens, mementos and other combustible objects into the fire so attendees can participate more fully and completely in the Burning Man experience. As to the single cause of action alleging negligence, the complaint averred that Black Rock negligently allowed attendees to approach the burning remnants of the Burning Man sculpture without provision for safe ingress and egress ―routes and corridors for those attendees who were ―moved by the event to directly participate in the burning ritual.
The guy is basically saying that somehow the people putting together Burning Man should have prevented people from being dumbasses. In a city of dumbasses.

This was not this particular dumbass's first rodeo.
Beninati attended the festival in the years 2002, 2003, and 2005. He is college educated and worked full time as a general manager for a company that rehabilitated real property for resale. He chose to attend the festival to get away from his ―workaholic‖ life, and to come together with a community of people with interests in art, alternative healing, and spirituality.

And so, with the knowledge of such important facts like "fire hot" and "there's no one to stop you from doing something really stupid." He approached the burning Man.
He testified at his deposition that he did not need to be told ―fire was dangerous and caused burns. Ever since his first visit to Burning Man, Beninati knew that being in close proximity to the event‘s huge bonfire posed a risk of receiving a burn. He also understood that he could fall or be pushed into the fire by other participants at the festival. In each of the prior years Beninati attended, he watched the Burning Man fire burn for three or four hours. Nevertheless, Beninati did not think it was dangerous to walk seven to ten feet into the fire to burn his friend‘s photograph, although he knew doing so ―was not ‗absolutely safe, because there [was] a fire present.‘

As the fire died down somewhat, a number of people approached and threw things into it. Beninati then saw someone walk toward the burning embers and he decided to follow the person‘s path, walking about seven steps toward the smoldering fire. No one asked or beckoned him to approach the fire. No one affiliated with Black Rock told him it was safe to walk into the fire. Beninati was sober, and thought it was safe when he walked into an area of low flames as he saw others do.

Beninati stopped at a spot where there was fire on either side of him. He threw his friend‘s photograph on the fire and watched it burn. He then took a few more steps forward. His right foot "caught on something or [he] tripped on something," which may have been a cable or something solid. He tripped and fell into the fire twice, badly burning both of his hands. When he exited the fire area, people poured water on him. Paramedics, who were present at the festival around the clock, transported him to obtain medical treatment.
The court went into analysis of California's assumption-of-the-risk doctrine.
While Beninati was not a firefighter, he deliberately, and with awareness of specific risks inherent in the activity, nonetheless chose to engage in an activity similar to that engaged in by a firefighter as part of the firefighter‘s professional duties. The risk of injury to those who voluntarily decide to partake in the commemorative ritual at Burning Man is self-evident. As in previous years, the festival participants had set ablaze a 60-foot combustible sculpture of a man which, because of its gigantic size, was built on an equally large platform made of combustible material and was held upright by wire cables. Once much of the material had burned, and the conflagration had subsided but was still actively burning, Beninati and others walked into the fire. At that point, the risk of stumbling on buried fire debris, including the cables which necessarily had collapsed along with the sculpture, was an obvious and inherent one. Thus, the risk of falling and being burned by the flames or hot ash was inherent, obvious, and necessary to the event, and Beninati assumed such risk.

. . .

Beninati misunderstands what is meant by ―obvious‖ when discussing the inherent risk. 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. For example, the court in Connelly noted that a risk to skiers includes hazards concealed by the snow surface itself. (Connelly v. Mammoth Mountain Ski Area, supra, 39 Cal.App.4th at p. 12.) Likewise here, 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, including the cables which had held up the sculpture. By continuing to walk into the fire, Beninati assumed the risk that he might trip and fall into the fire because he could not see the ground surface. This risk itself is one that is inherent in the burning of the effigy and the Burning Man commemorative ritual.

Beninati‘s alternative argument that Black Rock increased the risk of harm fails for lack of factual support. In his trial and appellate briefs, Beninati is critical of the lack of supervision of the festival site and the use of wire cables to stabilize the Burning Man sculpture.3 However, the record on summary judgment is utterly devoid of any evidence that the use of cables in this fashion was an avoidable risk, or that Black Rock did anything that increased the inherent risk of harm to Beninati normally associated with entering an area surrounded by fire.

. . .

For all of these reasons we conclude that the doctrine of primary assumption of risk applies to the activity engaged in by Beninati at the Burning Man Festival, and accordingly, Black Rock owed him no duty of care to prevent the injuries he incurred as a result.

Dubmass. Read your ticket.


( 2 comments — Say something )
Jul. 3rd, 2009 05:02 pm (UTC)
Beninati misunderstands what is meant by ―obvious

You keep using that word. I do not think it means what you think it means

Jul. 4th, 2009 01:42 pm (UTC)
Hm.... They're pretty covered but what if you run someone over with your art car? Do you need special insurance on that personally?

I do hate it when one guy screws an event due to his fuck-up. Glad it didn't happen this time.

( 2 comments — Say something )