A Burning Man At The Burning Man Festival

As it turns out, you can’t run into a fire and then sue for getting burned. In 2005, a California man, Anthony Beninati, attended the Burning Man Festival held in the Nevada Black Rock Desert. This week long festival sees a temporary city, aptly titled Black Rock City, created in the Nevada desert by festival participants. The festival began in 1986 and has grown from 20 participants at the first event to over 65,000 in 2014. The festival has many aspects including art installations, theme camps, and as its name suggests – a burning man. The ‘man’ is a giant wooden figure which is burned on the Saturday before Labor Day.

Once the burning man falls down, festival participants can throw objects on the bonfire. This is how Beninati was injured. A friend had recently died in a motorcycle accident and Beninati was throwing a photo of his friend on the flames, walking about seven to ten feet into the burning embers, “with flames on either side of him,” to do so. He then walked further into the fire, tripped over something, and fell. He suffered burns on his hands and legs and had to be airlifted to a hospital to receive medical treatment.

Beninati filed suit against the San Francisco based promoter, Black Rock City, LLC. He alleged negligence on the part of the promoter, for “allowing people to approach the fire without safe pathways.”

In order to prove a defendant is negligent, a plaintiff must show that the defendant had a duty of care to the plaintiff, that the defendant breached that duty, that defendant’s breach caused harm to the plaintiff, and that the plaintiff was actually injured. If a plaintiff can prove all these elements, then a defendant may be held liable for the injuries the plaintiff suffered. However, the law recognizes several defenses to negligence, one of which is assumption of the risk. Assumption of the risk means that a plaintiff who “takes on a risk of loss, injury, or damage cannot maintain an action against a party that causes the loss, injury, or damage.” Black’s Law Dictionary 143 (9th ed. 2009). Essentially, if you put yourself into a situation where you may be harmed and you are then harmed, you have assumed the risk of that harm and cannot seek compensation for your injuries.

Typically assumption of the risk is applied in the sports situations. The question in Beninati’s case was whether assumption of the risk extended to a non-sports activity. The California court discussed two distinct categories of assumption of the risk: primary and secondary. Under primary assumption of the risk, “there is `no duty’ on the part of the defendant to protect the plaintiff from a particular risk.” Beninati v. Black Rock City, LLC, 175 Cal.App.4th 650, 657 (Cal. Ct. App. 2009). If there is no legal duty on the part of the defendant, then the plaintiff’s claim is barred. Under secondary assumption of the risk, “the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.” Id. In that instance, the trier of fact may apportion fault between the parties.

The court stated that “[t]he risk of injury to those who voluntarily decide to partake in the commemorative ritual at Burning Man is self-evident.” Id. at 658. The court explained that, “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.” Id. As the court found the doctrine of primary assumption of the risk applied to Beninati’s case, Black Rock City was not held liable.

Cultural festivals, like Burning Man, are fun and unique events that bring together people from all walks of life. However carefree the atmosphere at these events may be, it is still important to remember to make safe and responsible choices when participating in festival activities. If you choose not to, you may quite literally get burned.