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Man Burned at Burning Man Gets No Love from Court: What 'Assumption of Risk' Means

A man burned at the Burning Man festival recently lost the appeal of his lawsuit against the festival's promoters. His case vividly depicts "assumption of risk," which can prevent a plaintiff from prevailing in a personal injury claim.

The San Franciso Chronicle reports that a California appeals court upheld a verdict that organizers of the annual Burning Man festival did not negligently cause the burns suffered by Anthony Beninati in 2005.

As recounted in the court's opinion, Beninati was attending his third Burning Man festival in 2005. As usual, the festivities concluded with the burning of a 60 foot effigy from which the festival draws its name. Once the structure collapses, participants often toss objects such as mementos into the bonfire.

Beninati went toward the bonfire in order to throw in the photo of a friend who had planed to attend Burning Man with him, but died six week before the festival. He tripped and fell into the fire, burning both hands badly.

Beninati sued the festival promoters, Black Rock City, LLC, for negligently causing his injuries by inviting participants to come forward and toss things into the fire without providing safe entrance and exits for doing so.

He lost at trial, and on appeal because he was found to have "assumed the risk."

Often, the assumption of risk defense comes into play in sports or activity related injury cases where the plaintiff is argued to know and accept certain risks. For example, football players generaly know that the game involves the risk of certain injuries.

Willingness to participate means they acknowledge and accept those risks. This removes the duty of event organizers to protect participants from injuries resulting from the risks assumed.

This can be explicit, such as signing a waiver before going tubing, or the risk can be so obvious as to not require an explicit waiver.

As for the Burning Man case, the court held that when it comes to an event built around a giant fire, when walking up close to it, "the risk of falling and being burned by the flames or hot ash [is] inherent, obvious, and necessary to the event." In other words, participants know that if they get to close to fire, they might get burned.