Comparative Fault and Individual Responsibility

Comparative Fault and Individual Responsibility

The duty to behave reasonably is a function of ever-changing societal judgments that are reflected in settlements and jury verdicts

Steven A. Adelman

I am a pretty non-judgmental person. Few other types of workplaces promote yelling, dancing, otherwise inappropriate dress, consumption of substances (controlled or otherwise) that lower inhibitions and impair decision-making, and what would elsewhere be considered seriously antisocial behavior.  But for venue and event professionals, this is our world, and we are used to its joys and challenges.

Outside the industry, however, judgment is quite common. Which brings us to a discussion of comparative fault.

Under basic principles of tort law, everyone has the duty to behave as a “reasonable person under the same or similar circumstances.” So what is reasonable guest behavior at a live event? When evaluating patron (mis)conduct, our mothers were right: A a person is not excused from doing something dangerous or ill-advised simply because lots of other people are doing it, too.

For venues and event professionals, this is an important observation. In my presentations, I generally focus on what the operations staff can do to anticipate patron actions in order to take reasonable steps to prevent bad results. I focus on your actions because they are all you can control. Also, the law requires that venues address reasonably foreseeable threats, as most recently affirmed by a federal judge in Colorado who found enough evidence that the Aurora movie theater shootings were reasonably foreseeable that the issue should be decided by a jury.

As a matter of law, guests’ own actions also matter. The outside limit of patron responsibility is shown in the Arizona “Bullets and Burgers” shooting instructor fatality, where no one has blamed the nine-year-old girl with the Uzi, much less the tour promoter, the shooting range, or even her parents for giving her an automatic rifle.

At some indeterminate age when young people start going out with no grown-up supervision, they are supposed to behave reasonably, which means responsibly. This is not a bright line but an ever-changing societal judgment that is reflected in settlements and jury verdicts. One need look no further than the reader comments following any story about injuries from over-consumption of alcohol or drugs to see the next prospective jury pool in action.

So what does this mean for venue and event professionals?

  • First, only young children get a pass. Everyone else faces the argument that they exercised free will, that no one forced them to do the thing that caused them harm.

  • Second, even if a potentially dangerous patron activity is more reasonably foreseeable than a movie theater gunman, the venue’s liability will be reduced by the percentage of the victim’s own fault. Which, these days, may be a very significant reduction.

  • Third, knowing that victims must assume responsibility for their own harm does not liberate the venue or event organizer from their own duty to behave reasonably. It does, however, suggest a particularly unsentimental valuation of even tragic cases is often appropriate.

None of this should change event professionals’ focus on simultaneously encouraging safe guest behavior while preparing to address foreseeably unsafe behavior so it doesn’t cause serious harm. It should make you appreciate that the deck is not stacked against you.

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