COA: Stage collapses not foreseeable as a matter of law

The company hired to provide security to country duo Sugarland on the night of the deadly stage collapse at the 2011 Indiana State Fair could not have reasonably foreseen the stage collapse as a matter of law and, thus, is entitled to summary judgment, the Indiana Court of Appeals held Tuesday. The appellate court decision moves the state closer to the end of the last of several lawsuits filed against nearly three dozen defendants in the aftermath of the accident that killed seven concertgoers.

Maggie Smith, counsel for Jill Polet –  who, along with other members of her family, including her daughter, Jordyn, was injured in the deadly 2011 Indiana State Fair Stage Collapse – told the appellate court panel of judges Elaine Brown, Margaret Robb and Paul Mathias last month there were numerous questions of material fact surrounding Polet’s case against ESG Security.

ESG was among 35 defendants accused of playing a role in the seven deaths and numerous injuries at the Sugarland concert through their actions or inactions. In the case of Jill, Roeland, Jaymie and Jordyn Poelt, et al, v. ESG Security, Inc., 49A02-1510-CT-1631, Smith argued on behalf of the Polets that the security company had a responsibility to protect both the band and the concertgoers, and there were factual disputes as to whether the company had upheld that duty, thus making summary judgment inappropriate.

In its affirmation Tuesday of summary judgment in favor of ESG, the Indiana Court of Appeals referenced Goodwin, et al v. Yeakle’s Sport Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016), in which the Indiana Supreme Court found foreseeability is a component of both the proximate cause and duty elements of negligence and further found that when determining foreseeability as a matter of law, courts must engage “in a general analysis of the broad type of plaintiff and harm involved without regard to the facts of the actual occurrence.”

The Polets built their case on the premise of King v. Northeast Security, Inc., 790 N.E.2d 474 (Ind. 2003), which held that Northeast Security Inc., which had a security contract with a North Central High School, had a duty to protect a student who was injured by another student while waiting for a  ride home from school.

But Brown, writing for the unanimous panel, said King is not determinative in the State Fair case because, “The duty of Northeast in King to prevent injuries to students from other students is fundamentally different from a duty a security firm could have with respect to a stage collapse.”

Brown noted that the State Fair agreement called for security personnel at various times and locations, but never referenced a duty with respect to a stage collapse. Further, Brown pointed out that ESG was never involved in the decision-making process as to whether the concert should be delayed or cancelled.

Instead, using the Goodwin framework, Brown wrote that the broad plaintiff type in this case is an outdoor concert patron, and the harm is the probability or likelihood of a stage collapse caused by strong winds. Security firms do not usually contemplate that a stage might collapse, and further, expert testimony at trial showed that most security companies come into the job assuming that the stage was properly constructed and inspected, she wrote.

“In sum, we hold that a stage collapse due to high wind is not foreseeable as a matter of law,” Brown wrote. “Accordingly, we cannot say that ESG had a duty relating to the stage collapse.”