Get too close to the Burning Man fire and you assume the “obvious and inherent” risk of being burned, a California appeals court has ruled in dismissing a personal injury lawsuit against the operators of the iconic countercultural arts festival.

The burning of a 60-foot wooden sculpture in the figure of a man is the centerpiece of the Burning Man festival in the Black Rock Desert of Nevada. When the sculpture topples to the ground, revelers are allowed to toss tokens, mementos and other objects into the remnants of the sculpture.

Anthony Beninati sued the festival organizers, Black Rock City LLC, for negligence after he tripped and fell into the fire at the 2005 Burning Man, badly burning both his hands. He argued that the doctrine of primary assumption of risk does not apply to a “low-impact” cultural activity such as Burning Man, being limited to rule-based or, at least, active sports.

The seminal primary assumption of risk case -- Knight v. Jewett (1992) 3 Cal.4th 296 –- involved an injury during a game of touch football.

But the California 1st District Court of Appeal ruled June 30 that “the doctrine applies not only to sports, but to other activities involving an inherent risk of injury to voluntary participants like Beninati, where the risk cannot be eliminated without altering the fundamental nature of the activity.”

The risk that Beninati “might trip and fall into the fire because he could not see the ground surface” was “one that is inherent in the burning of the effigy and the Burning Man commemorative ritual,” the court concluded in a published decision affirming a trial judge who summarily dismissed the case.

Beninati approached the fire so he could throw a photo of a deceased friend into the flames. In his complaint, he alleged that staff formed a “safety zone” to keep spectators away from the fire while the sculpture burned but once the sculpture toppled, “all semblance of crowd coordination ceased and the crowd surged forward,” carrying him into the fire.

Black Rock was liable, the suit said, for operating the fire “in a manner that encouraged, invited and authorized participants to engage in individual burning acts near the fire without providing adequate and appropriate controls.”

But in his deposition, Beninati testified that he thought it was safe when he walked into an area of low flames as he saw others do. His right foot “caught on something or [he] tripped on something,” possibly one of the wire cables that had supported the sculpture and was hidden under ash and flames.

“Once much of the material had burned, and the conflagration had subsided but was still actively burning, Beninati and others walked into the fire,” Justice Ignazio J. Ruvolo wrote for the 1st District. “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.”

Ruvolo also said there was no evidence “raising even a reasonable inference that any action of inaction by Black Rock increased the risk of harm to Beninati, or that such risk could have been mitigated without altering the nature of the ritualistic Burning Man event in which Beninati was participating.”

In an appellate brief, Beninati said the festival was not a “deliberate free-for-all” but a “meticulously organized and controlled” event with “an array of rules set forth in the burning man survival guide.”

Nothing inherent in the Burning Man ceremony prevented Black Rock “from taking reasonable precautions for the safety of its participants, just as it controlled participants' activities in other respects,” he argued.

By Matthew Heller
6/30/09