Perhaps the term “dance club” is a misnomer here; we’re really talking about moshing (also called slam dancing) which is an informal term referring to dancing to music in a violent manner by jumping up and down and deliberately colliding with others.

Sounds like a sure-fire way to get hurt and that’s just what happened in two cases that have now made their ways up to the New York appellate courts. Each, though, came to a different result.

In one case, a 36 year old concertgoer, David Schoneboom, was injured at a club in Manhattan listening to his favorite group, “The Crumbsuckers.” Earlier in the evening he had watched from the balcony performances from the first two groups: “Kill Your Idols”  and “Subzero.” Why the balcony? Simple. Schoneboom said that it was too violent on the floorwhere he saw moshing was ongoing.

Nonetheless, when his favorite group came on to play, he admits he went down to the floor near, but not into, the area where the moshing was taking place. And that’s when he got shoved from behind into the side of his knee and ended up with a torn anterior cruciate ligament and a torn meniscuswhich required reconstructive knee surgery.

Schoneboom sued the club claiming that it was the club’s negligence in failing to prevent the violence which caused his injury. Not so, said both the trial judge who dismissed the complaint and the appellate court which upheld the dismissal in Schoneboom v. B.B. King Blues Club & Grill.

As we mentioned, here, the lower court determined that Mr. Schoneboom had assumed the risk of being injured,  because he fully appreciated the risk of colliding with a slam dancer and nonetheless elected to place himself in close proximity to that activity.

In the other recent appellate court case involving injuries related to moshing, a 15 year old boy was injured at Club Warsaw in Brooklyn when attending a concert by the group “Senses Fail.” The boy, Elliot Rishty, claims he placed himself 4-5 rows away from any moshing but that the mosh pit spread and he was then elbowed or struck in the nose by a moshing participant. He sued.

The trial judge found that the alleged occurrence was not foreseeable and therefore dismissed the complaint. The appellate court, though, in Rishty v. DOM, Inc., reversed and ruled that a trial should be held to determine whether the defendant should have been aware of and controlled the conduct of its patrons and, if so, whether the failure to do so was a proximate cause of Elliot’s injury.

In an unavailing argument, the defense urged that even if the spread of the mosh pit violence were foreseeable and controllable, Elliot had assumed the risk of any alleged moshing that may have been involved in causing his injury.

The decisions in these two cases, coming within two weeks of one another by two different appellate panels, appear to be irreconcilable. So, we contacted the attorneys, obtained facts not disclosed in the decisions and reviewed the appellate briefs of the parties.

Here are some of the factors that appear to distinguish the cases from one another

  • Martin Schoneboom was 36 years old at the time, had participated in moshing at over 30 concerts and saw violent moshing escalating throughout the evening before deciding to stand near the mosh pit.
  • Elliot Rishty was only 15 years old at the time, there’s no evidence he’d ever participated in moshing and it appears that moshing may have been ongoing at his concert for only 15 minutes or so before he was struck.

When there are important areas of law on which different appellate department panels rule opposite one another, then New York’s highest court, the Court of Appeals, may decide to accept an appeal in one of them so as to resolve the issues for the entire state and bind all appellate divisions (there are four of them).

In the two  cases discussed here, it’s unlikely the Court of Appeals would accept such an appeal. The issues as presented in these two cases do not appear to be that far-reaching and the different factual scenarios may explain the contrary holdings.

Rishty v. DOM, Inc. is now headed for trial. We will report on future developments – either a settlement or a trial verdict – and we will continue to explore related assumption of risk case decisions as they are issued.

  • I always hate to see people get injured, especially a youngster looking to enjoy a concert. However, moshing is not a new fad and people readily know which kinds of bands will result in mosh pits. I’m sure the 15 year old knew what kind of music he was listening to, and what kind of activity might go on at a concert.
    Until concert goers realize it’s not fun or cool to hurt others, moshing will continue and establishments can’t really be held responsible for that.

  • David Schoneboom

    some of your facts are errant in the depiction of my case.I had been on the floor for two opening acts with mainly well behaved 35 to 45 year olds (as it was a 25th anniversary reunion concert of a band from my youth).the 3rd opening act attracted a small younger violent crowd that cleared the floor of most other patrons. no security were active visible or perhaps even present.that scene seemed to disperse after that band, and the crowd (myself included) returned for the headline performers at which point I was assaulted.I still believe the club should have protected its patrons better, especially knowing the type of acts it had booked.

  • There are no “errant” facts in my post and Mr. Schoneboom points to none. Some of the facts he mentions are accurate but that does not mean I was erroneous in any way. It simply indicates that there were lots of facts in this case, some of which Mr. Schoneboom feels should have carried the day for him and others of which the judges felt were critical in their finding dismissing the case. While I agree with the court’s decision, it’s unfortunate that Mr. Schoneboom suffered physical injuries and I wish him all the best.