# Darago v. Live Nation Entertainment, Inc.

> District Court, N.D. Ohio · August 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10369814

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** August 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN DARAGO, et al., ) CASE NO. 5:18-cv-2639
)
)
PLAINTIFFS, ) JUDGE SARA LIOI
)
vs. )
) MEMORANDUM OPINION
)
LIVE NATION ENTERTAINMENT, INC. )
et al., )
)
)
DEFENDANTS. )

This personal injury action, before the Court on the basis of diversity, arises out of
injuries sustained by plaintiff during an August 9, 2016 concert at an outdoor music venue in
Cuyahoga Falls, Ohio. Now before the Court is the summary judgment motion of defendants.
(Doc. No. 85 [“MSJ”].) Plaintiff opposes the motion (Doc. No. 89 [“Opp’n”]),1 defendants have
filed a reply (Doc. No. 94 [“Reply”]), and plaintiff has filed a sur-reply.2 (Doc. No. 97 [“Sur-
Reply”].) For the reasons that follow, summary judgment in favor of defendants is granted, and
this case is dismissed.

1 Plaintiff’s original opposition brief was filed at Doc. No. 88. Plaintiff subsequently sought leave to file a corrected
opposition brief instanter. (Doc. No. 89.) Plaintiff’s motion for leave is granted.
2 In response to a supplemental affidavit defendants filed contemporaneously with their reply (see Doc. No. 95),
plaintiff sought leave to file a sur-reply. (Doc. No. 97.) The Court finds that the supplemental affidavit was offered
in response to arguments raised in plaintiff’s opposition brief and its filing, therefore, does not merit the filing of a
sur-reply. See Power Mktg. Direct, Inc. v. Wilburn Moy, No. 2:08-cv-826, 2008 WL 4849289, at *2 (S.D. Ohio Nov.
6, 2008) (denying motion for leave to file sur-reply because plaintiff was “responding in the reply memorandum to
the argument Defendants raised in the memorandum in opposition”). Further, plaintiff’s proposed sur-reply goes
beyond responding to the supplemental affidavit and offers additional arguments. In fact, plaintiff has even sought
leave to exceed the page limitation set forth in the local rules for this filing. Nevertheless, in an abundance of
caution, the Court grants the motion for leave and the Court has considered plaintiff’s sur-reply (see Doc. No. 97 at
page ID numbers 2256–77 and attachments) as part of the summary judgment briefing. All page numbers refer to the
page ID number generated by the Court’s electronic docketing system.
I. BACKGROUND
A. History of Blossom
Blossom Music Center (“Blossom”) is an outdoor amphitheater in Cuyahoga Falls, Ohio.
Originally opened in 1968 as the summer home for the Cleveland Orchestra, today it also hosts a
variety of bands and musical artists each year for a series of concerts. (Doc. No. 89, Ex. 1
(Blossom Wikipedia Page [“Bl. Wi. Pg.”]) at 1608–09.) It is undisputed that the venue contains a
covered pavilion with permanent seating, a lawn area with standing room capacity, a pit area
immediately in front of the stage with additional standing room capacity, and a stage. A
barricaded buffer zone separates the “pit” from the performance stage so as to prevent guests
from approaching the stage and interfering with the performance. (Doc. No. 85-1 (Affidavit of

Ronald Tynan, Jr. [“Tynan Aff.”]) ¶¶ 14–15; see Doc. No. 52 (First Amended Complaint
[“FAC”]) ¶¶ 31–34.) Blossom has the capacity to hold approximately 21,051 concert-goers. (See
Bl. Wi. Pg. at 1608.)
In 1999, Blossom was operated by Cuyahoga Falls Concerts, Inc. (“CFCI”). (See Tynan
Aff. ¶¶ 4–5.) On October 13, 1999, CFCI entered into payroll service agreements with Cast &
Crew Productions Payroll, Inc. (“C&C”) and BTL Payroll, Inc. (“BTL”). (Id., Exhibits A and B.)
Relevant to the pending summary judgment motion, both agreements contained similar language
that sets forth the parties’ respective duties. The agreement with C&C, which covered employees
subject to bargaining agreements, is representative and provided, in relevant part:

2. Payroll Services. For the convenience of and at the specific request of
[CFCI], [CFCI] desires to have [C&C] become the designated
“EMPLOYER OF RECORD” and provide payroll services on behalf of
[CFCI] for all bargaining unit employees performing covered services . . .
. Said payroll services provided by [C&C] on the above referenced
production for the foregoing groups of covered employees shall be based
2
on the records of employment prepared by [CFCI] and provided to [C&C].
On the basis of such records supplied by [CFCI], [C&C] shall compute
and pay all taxable wages, allowances, penalties, fees, fringe benefits and
hourly pension, welfare or other Trust Fund payments called for under the
applicable collective bargaining agreements. In addition, [C&C] shall
compute and pay all required statutory payments and payroll taxes
required with respect to the aforementioned employee payments. In
addition, [C&C] shall issue Employee W-2’s or 1099’s for the above
referenced production for the foregoing groups of covered employees
which shall be based on the records of employment prepared by [CFCI]
and provided to [C&C]. Worker’s Compensation Insurance for employees
providing covered services will be provided to [CFCI] by [C&C].
Notwithstanding the foregoing, the parties understand and agree that day-
to-day supervision and direction of employees in the performance of their
covered services for the benefit of the particular production shall be the
sole responsibility of [CFCI].

(Id., Exhibit A ¶ 2, emphasis added, footnote omitted.) CFCI is not a party to this litigation.
B. Live Nation
Defendant Live Nation Worldwide, Inc. (“Live Nation”) is a party defendant, and the
path it took to becoming the operator of Blossom is both complex and relevant to the issues
presented on summary judgment. (See Doc. No. 95 (Supplemental Affidavit of Ronald Tynan, Jr.
[“Tynan Aff. Supp.”]) ¶ 8.) “In 2006, Live Nation Entertainment, Inc. (“LNEI”) acquired House
of Blues Entertainment, Inc. (“HBEI”), which included its subsidiary, House of Blues Concerts,
Inc. (“HBCI”).” (Id. ¶ 6.) “Following the acquisition, in 2006 HBCI became a wholly owned
subsidiary of HOB Entertainment, LLC (“HOB”).” (Id. ¶ 7.) Later still in 2006, HOB became the
wholly owned subsidiary of Live Nation. (Id. ¶ 8.) In 2009, CFCI merged into HBCI, which, as
previously noted, is a subsidiary of HOB, a subsidiary of Live Nation. (Id. ¶ 10; see id. ¶ 8.)
After CFCI’s merger with HBCI, Live Nation assumed all responsibilities relative to the
operations of Blossom as well as the aforementioned payroll agreements with C&C and BTL.
(Id. ¶ 11; see id. ¶ 8.)
3
C. Plaintiff’s Employment at Blossom
In 1982, plaintiff Kevin Darago (“Darago”) graduated from the University of Akron with
a degree in business administration and began a career in accounting. (Doc. No. 90 (Deposition
of Kevin Darago [“Darago Dep.”]) at 1669.) His most recent accounting position was with non-
party Coleman Professional Services (“Coleman”). He worked full-time for Coleman, beginning
in 2015 and ending sometime in September 2017. (Id. at 1670.) Owing to the injuries he
sustained on August 9, 2016, Darago claims that he has been unable to continue to perform the
duties of an accountant. (Id. at 1671.)
Darago’s employment history also includes part-time work providing security for
concerts at Blossom. In 2005, Darago responded to an advertisement in the newspaper providing

for an “open call” for people to work at Blossom. (Id. at 1676.) He applied because he enjoyed
music and thought it would be “something interesting to do.” (Id.) He originally interviewed with
either Brian Murphy (“Murphy”) or Craig “Bear” Taylor (“Taylor”) and was hired to work
security for the concerts as a member of the crowd management team. (Id. at 1678.) Murphy was
the supervisor of the pit area, and Murphy reported to Taylor, the Venue Security Supervisor for
Blossom. Both men are still employed by Live Nation at Blossom. (Id. at 1678, 1690–92; Doc.
No. 82-1 (Supplemental Deposition of Craig Taylor [“Taylor Dep. Supp.”]) at 1081–82; Tynan
Aff. ¶¶ 22, 23.) Darago was continuously employed at Blossom each summer between 2005 and
2016. (Darago Dep. at 1682.)

At the start of each concert season, Darago was required to “fill out additional
paperwork.” (Id. at 1692; see Tynan Aff. ¶ 11 [“every season Live Nation employees are
required to submit a new employment application”].) On April 30, 2016, Darago submitted a
4
“Live Nation Entertainment Application for Employment—Part-Time/Seasonal” for the 2016
season. (Tynan Aff. ¶ 10, Ex. C.) According to the application, Darago, by applying for
employment, agreed that “if [he] bec[a]me employed by Live Nation, [his] employment w[ould]
be on an ‘at will’ basis.” (Id., Ex. C at 1280.) The application further provided that he understood
that “Live Nation may demote or discipline [him], or take other action with respect to [his]
employment. . . .” (Id.) He also agreed “to comply with all of Live Nation’s employment policies
and code of conduct.” (Id.) By signing the application, Darago further acknowledged:
that I have read the statements listed above, that I understand them and that they
will become a part of the terms and conditions of my employment if I become
employed by Live Nation.

(Id.) He testified that he received a Live Nation handbook.3 (Darago Dep. at 1694.)
When he first began his employment at Blossom, Darago worked various crowd
management positions. Eventually he was assigned to work in the “pit.” (Id. at 1680.) Darago
testified that he enjoyed working in the pit because “it was interesting.” (Id. at 1680.) At all times
relevant to the present action, Murphy supervised the pit area and the crowd management
employees assigned to work in it. (Taylor Dep. Supp. at 1095; see Darago Dep. at 1691.)
Throughout [Darago’s] employment at Blossom, Murphy, Taylor, and Ronald Tynan, Jr.
(“Tynan”), also a Live Nation employee and the General Manager for Blossom, had “the
authority to supervise, direct, and control the course and scope of Darago’s employment at
Blossom.” (Tynan Aff. ¶¶ 2, 22, 23, 25.) Employees posted to the pit are charged with enforcing

3 Darago also signed a Live Nation Consolidated Acknowledgement Form in which he verified he received a copy
of the Live Nation Employee Handbook. (Id.)

5
the venue’s rules and ensuring that guests do not approach the performance stage or otherwise
wander into prohibited areas. (Id. ¶¶ 16–17; Darago Dep. at 1681.)
One of the rules the crowd management employees assigned to the pit were to enforce
was Live Nation’s prohibition against crowd surfing. (See Taylor Dep. Supp. at 1088; Darago
Dep. at 1707; Tynan Aff. ¶ 30.) Crowd surfing involves lifting and passing a patron overhead by
other patrons.4 (Taylor Dep. Supp. at 1088–89; Darago Dep. at 1698–99; Doc. No. 91
(Deposition of John Tussey [“Tussey Dep.”]) at 1850; Doc. No. 89, Ex. 11 (Affidavit of Kevin
Darago [“Darago Aff.”], beginning at 1650) ¶ 8; see FAC ¶ 38 (photograph).) According to
Darago, the crowd surfer’s goal is to make his or her way to the front of the barricade so that
they can be as close as possible to the stage and the performers thereon. (Darago Dep. at 1699–

1700.) The practice is inherently dangerous because the patron being passed forward can be
dropped and because those supporting the patron, including security personnel, run the risk of
being kicked or punched. (Darago Dep. at 1705, 1711; Tussey Dep. at 1852; see Doc. No. 92
(Deposition of Tony Robinson [“Robinson Dep.”]) at 2014.)
Given the dangers associated with crowd surfing, Live Nation has maintained a policy
that strictly prohibits crowd surfing, and this policy was in effect in 2016. (Tynan Aff. ¶ 18;
Taylor Dep. Supp. at 1088; Tussey Dep. at 1864; see Darago Dep. at 1701, 1706.) Signage is
posted around Blossom to alert patrons and guests of this policy, and an audio loop plays over
the public announcement system advising that crowd surfing is prohibited. (Tynan Aff. ¶ 19 &

Ex. D.) The sign and the announcement advise patrons that crowd surfers may be subject to

4 In contrast to crowd surfing, “moshing” is a practice wherein concert-goers (usually men) dance in a violent
manner by jumping up and down or in a circular motion intentionally colliding with each other. (Tussey Dep. at
1851; see FAC ¶ 38 (photograph).) It is undisputed that Darago’s injuries were not the result of moshing. (Darago
Dep. at 1695.)
6
ejection from the concert. (See Tynan Aff. ¶ 19, Ex. D at 1287; Darago Dep. at 1701–02.)
Notwithstanding the prohibition and the warnings, it is undisputed that crowd surfing
does happen at some concerts, and crowd management personnel are tasked with ensuring that
the surfer is ultimately returned safely to the ground. (Darago Dep. at 1705, 1710; Tussey Dep. at
1858, 1864; see Robinson Dep. at 2023.) Darago testified that he was instructed by another team
member in a method to minimize the risk associated with crowd surfing. (Darago Dep. at 1705;
Darago Aff. ¶ 13.) Specifically, “[t]wo pit personnel are required to receive a crowd surfer at the
barricaded area, a first guy and a support guy.” (Darago Aff. ¶ 11.) “[T]he ‘first guy,’ who
actually receives the crowd surfer, must turn the surfer, so that the surfer’s head arrives first, then
passes to a ‘support guy,’ who is behind the first guy; the support guy then assists the crowd

surfer down to the floor.” (Id. ¶ 12.) The key is for the first person to handle the surfer in a way
that insures that the patron’s feet are facing away from the stage, so that as she is passed forward
there will be less of a risk that she will kick someone. (Darago Dep. at 1705; Tussey Dep. at
1868–69.)
When a crowd management team member sees someone crowd surfing, he is supposed to
permit the patron one “trip” to the front of the barricade and then advise the patron that if he or
she is caught crowd surfing again, they will be ejected. (Taylor Dep. Supp. at 1091–92.) While
crowd management team members do not have the authority to eject a patron, supervisors do. A
security employee who wished to eject a patron for crowd surfing was to first submit the request

to the pit supervisor. (Darago Dep. at 1697–98; Tynan Aff. ¶¶ 21, 60.)

7
D. The August 9, 2016 Concert and the Accident
The band blink-182 was the headliner for the concert at Blossom on August 9, 2016.
(Tynan Aff. ¶ 35; Darago Aff. ¶ 6; Doc. No. 85-7 (Affidavit of Michael Sullivan [“Sullivan
Aff.”]) ¶ 4.) The group is composed of performing artists: defendants Mark Hoppus, Travis
Barker, and Matt Skiba. Defendant Bring the Awesome, Inc. (“BTAI”) is a California
corporation and the legal entity under which blink-182 tours (the touring company and the band
members are subsequently referred to collectively as “blink-182 defendants”). (See Darago Dep.
at 1751; Doc. No. 85-8 (Affidavit of Mark Hoppus [“Hoppus Aff.”]) ¶ 4; FAC ¶¶ 5, 18, 20.) The
group is an American rock band known for its high energy performances (see FAC ¶ 19), and
there is no dispute that patrons at the band’s concerts have been known to crowd surf. (Robinson

Dep. at 2003, 2015, 2022, 2026.) Because band members had discovered from earlier concerts
the dangers associated with crowd surfing and similar behavior, the band prohibits crowd surfing
and related activities during its performances. (Id. at 2035–36.) This prohibition appears in the
band’s written rider that is incorporated into its contract with each venue. (Robinson Dep., Ex. 3
at 2055–60; see Tynan Aff. ¶ 36 & Ex. E.)
BTAI hired NPB Companies (“NPB”) to provide security for its 2016 tour. (Sullivan Aff.
¶ 8.) Tony Robinson (“Robinson”), an agent for and employee of NPB, was assigned to serve as
venue security director for the band. (Id. ¶ 9.) (Robinson Dep. at 1985–86, 1994–95.) Robinson
is not a party to this litigation.

Robinson testified that he received his training from NPB, and, at all times relevant to the
present action, he was employed by NPB. (Id. at 1991; see Sullivan Aff. ¶ 10.) Because each
venue had its own security personnel, Robinson explained that his focus was the safety of his
8
client-band/musical artist and crew. (Robinson Dep. at 1996; see Tynan Aff. ¶¶ 28, 32.) It was
the responsibility of the venue’s security staff to ensure that its employees and concert patrons
remain safe during the performance. (Tynan Aff. ¶¶ 28, 32; Robinson Dep. at 2007.)
Prior to each show at Blossom, Live Nation management will participate in a meeting
with representatives from the band or musical artist to discuss all production matters related to
the evening’s event. (Tynan Aff. ¶ 33.) The purpose of the meeting is to coordinate efforts
between Live Nation’s operational staff and those responsible for the performing band or artist.
(Id. ¶ 34; see Robinson Dep. at 2002.) On August 9, 2016, Live Nation management, including
Taylor, met with Robinson and other touring personnel to discuss the production for the concert
that evening. (Tynan Aff. ¶ 39.)5 Darago was not present at the meeting. (Darago Dep. at 1687,

1727.) While at no point during the meeting did Robinson, or anyone else, request that Blossom
permit crowd surfing at the concert, Robinson advised those in attendance that it was possible
that some patrons would crowd surf and that security should “[b]e aware of it.” (Tynan Aff. ¶ 40;
Robinson Dep. at 2015–16.)
Following the meeting with Robinson and others associated with the band, Taylor met
with his crowd management staff and briefed them on what to expect during the event. Robinson
did not attend the meeting. Nor did Darago, as he was coming from his accounting job and
arrived late to Blossom. (Darago Dep. at 1713–14.) Consistent with Robinson’s warning, Taylor
advised those in attendance to “[b]e aware of possible crowd surfing[.]” (Tussey Dep. at 1866,

1877.) When Darago arrived at Blossom, he reported directly to the pit where his co-worker,
John Tussey (“Tussey”), conveyed to him the warning about possible crowd surfers. (Darago

5 Tynan, Live Nation employee and General Manager for Blossom, was also at the meeting. (Tynan Aff. ¶¶ 2, 39.)
9
Dep. at 1714.)
What happened next is a subject of dispute. Darago testified that immediately thereafter
Robinson approached Darago, Tussey, and a few other crowd management team members
stationed in the pit. Robinson confirmed that there would be crowd surfing that evening, and they
were to “let the kids have fun.” (Id. at 1715, 1720; Darago Aff. ¶¶ 7, 9.) At that point, Darago
advised Robinson that crowd surfing is not permitted at Blossom, to which Darago submits
Robinson responded “Well, it is tonight. We’ll allow crowd surfing.” (Darago Dep. at 1720; see
Darago Aff. ¶ 9.) Robinson denies making these comments and testified that he never instructed
any Blossom crowd security member to permit surfing or had the authority to do so. (Robinson
Dep. at 2016, 2017.)

Nevertheless, it is undisputed that the opening act performed without incident. As soon as
blink-182 took the stage, however, the crowd became loud. (Darago Dep. at 1716–17.) After the
band played approximately four or five songs, some unidentified band member said, “Come on,
let’s get this thing started[,]” which, according to Darago, had the effect of “whip[ping]” up the
crowd. (Id. at 1717; Tussey Dep. at 1886–87.) There had been a couple of crowd surfers before
the comment, but Darago reported that, after the band member’s comment, crowd management
was very busy with patrons who were crowd surfing. (Darago Dep. at 1717; Darago Aff. ¶ 16;
see Tussey Dep. at 1887.)
Darago served as the “support guy,” while a second unidentified co-worker served as the
“first guy.” (Darago Aff. ¶ 15.)6 Darago remembered one female patron in particular who surfed

6 Darago testified that, immediately before the concert started, he instructed the “first guy” in the method he had
learned to assist crowd surfers because it was the first guy’s first day. (Darago Aff. ¶ 15.)

10
her way to the front of the barricade multiple times. After the third time Darago helped her to the
ground, Darago told Tussey that they need to get rid of her, noting that he (Darago) had helped
her crowd surf three times and Tussey had helped her “a bunch of times.” (Darago Dep. at 1718.)
According to Darago, Robinson was walking by at that moment, overheard his comment to
Tussey, tapped Darago on the shoulder, and instructed the pair to let the female patron continue
to crowd surf. (Id.; see Tussey Dep. at 1896.) Again, Robinson denies making such a statement
and testified that he was without authority to require a venue’s security team to permit crowd
surfing. (Robinson Dep. at 2017, 2018–19, 2020.)
The last time Darago received the female surfer, her legs flailed and she kicked him in
the face, injuring him. (Darago Dep. at 1718; Darago Aff. ¶ 18.) Darago testified that the “first

guy” who was helping him failed to turn the female surfer around, and she arrived feet first at the
barricade. (Darago Dep. at 1762; Darago Aff. ¶ 17.) For purposes of summary judgment, it is
undisputed that Darago lost the vision in his left eye and has suffered a reduction in vision in his
right. As a result of his injuries, he lost his full-time accounting job and has been unable to
successfully return to part-time security work at Blossom.
E. Workers’ Compensation Claim and Litigation
Following the incident, Darago filed for workers’ compensation benefits. Darago’s claim
identified “C and C Wd Studio Productions LLC” as his employer. (Tynan Aff. ¶ 64 & Ex. F.)
According to public records filed with the State of California, Secretary of State, “C and C Wd

Studio Productions LLC,” now dissolved, was an affiliate of C&C, one of the two payroll
companies engaged by CFCI. (Doc. No. 85-11.) At the time of the accident, Darago’s employer
of record was BTL, as per the payroll agreement with BTL. (Tynan Aff. ¶ 66; see id. ¶ 65 & Ex.
11
B.) However, for purposes of workers compensation, the polices of C&C and BTL were
combined under one policy. (Id. ¶ 66 & Ex. G (“Employer/MCO look-up”).) Darago ultimately
received benefits in the form of a lump sum payment of $110,000.00 for his injuries. (Darago
Dep. at 1733; see Tynan Aff. ¶ 67.)
On July 17, 2018, Darago brought suit in state court against Live Nation (improperly
named Live Nation Entertainment Inc.), BTAI, the individual members of blink-182, and various
other named and unnamed entities that have since been dismissed or are otherwise no longer
parties to this litigation. (See generally FAC.) Darago also named Ohio Bureau of Workers’
Compensation (“BWC”) as a party-plaintiff, citing BWC’s asserted subrogated interest in a right
of reimbursement. (Id. ¶ 73; see generally id.) On November 15, 2018, the action was removed

to federal court. (See Doc. No. 1 (Notice of Removal).) The amended complaint raises claims for
negligence; negligent hiring, training, and supervision; vicarious liability; and declaratory
judgment.7 (FAC at 590.)
By the present motion, defendants seek summary dismissal of all claims. As an initial
matter, Live Nation asserts that it is entitled to immunity under Ohio Rev. Code § 4123.74. All
defendants further posit that their actions were not the proximate cause of Darago’s injuries and
that they are entitled to a variety of affirmative defenses that serve as a complete bar to recovery
for Darago.

7 The claim for declaratory judgment seeks a “declaration determining the rights and obligations of [Darago] and []
BWC regarding the benefits conferred for and on behalf of [Darago], including coverage under [Ohio Revised Code]
Chapter 4123.” (FAC ¶ 74.)
12
II. STANDARD OF REVIEW
When a party files a motion for summary judgment, it must be granted “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the
record . . . ; or (B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
In reviewing summary judgment motions, this Court must view the evidence in a light
most favorable to the non-moving party to determine whether a genuine issue of material fact

exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970);
White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943–44 (6th Cir. 1990), impliedly
overruled on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113
L. Ed. 2d 190 (1991). A fact is “material” only if its resolution will affect the outcome of the
lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986). Determination of whether a factual issue is “genuine” requires consideration of the
applicable evidentiary standards. Thus, in most civil cases the Court must decide “whether
reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is
entitled to a verdict[.]” Id. at 252.

Once the moving party has presented evidence sufficient to support a motion for
summary judgment, the nonmoving party is not entitled to trial merely on the basis of
allegations; significant probative evidence must be presented to support the complaint.” Goins v.
13
Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991). The party opposing the motion for summary
judgment may not rely solely on the pleadings but must present evidence supporting the claims
asserted by the party. Banks v. Wolfe Cty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (Summary
judgment is appropriate whenever the non-moving party fails to make a showing sufficient to
establish the existence of an element essential to that party’s case and on which that party will
bear the burden of proof at trial). Moreover, conclusory allegations, speculation, and
unsubstantiated assertions are not evidence, and are not sufficient to defeat a well-supported
motion for summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 487 U.S. 871, 888, 110 S. Ct.
3177, 111 L. Ed. 2d 695 (1990). In other words, to defeat summary judgment, the party opposing

the motion must present affirmative evidence to support his or her position; a mere “scintilla of
evidence” is insufficient. Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003) (quotation
marks and citation omitted). Rule 56 further provides that “[t]he court need consider only” the
materials cited in the parties’ briefs. Fed. R. Civ. P. 56(c)(2); see also Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989) (“The trial court no longer has the duty to search
the entire record to establish that it is bereft of a genuine issue of material fact.”) (citing Frito-
Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)).
III. DISCUSSION
A. Workers’ Compensation Immunity

Live Nation argues that, as Darago’s employer, it is immune from all claims under Ohio
Rev. Code § 4123.74 “by virtue of the fact Darago applied for and received workers’
compensation benefits.” (MSJ at 1228.) Darago insists that immunity is improper at this stage in
14
the proceedings because there are questions of fact as to who employed Darago and whether
Live Nation paid workers’ compensation premiums on his behalf.
“[C]laims arising from injuries sustained in the course of employment are typically
addressed exclusively by Ohio’s Workers’ Compensation statutes.” Thomas v. PSC Metals, Inc.,
143 N.E.3d 1117, 1122 (Ohio 2018). Section 4123.74 “gives employers ‘who comply with
[Ohio’s workers’ compensation statutes]’ immunity ‘for any injury, or occupational disease, or
bodily condition, received or contracted by any employee in the course of or arising out of his
employment.” Id. (quoting Ohio Rev. Code § 4123.74). The statutory grant of immunity acts
as a balance of mutual compromise between the interests of the employer and the
employee whereby employees relinquish their common law remedy and accept
lower benefit levels coupled with the greater assurance of recovery and employers
. . . are protected from liability for negligence.

Id. (quoting Maynard v. H.A.M. Landscaping, Inc., 849 N.E.2d 77, ¶ 12 (Ohio Ct. App. 2006)
(further citation omitted)).
To be entitled to statutory immunity under § 4123.74, a defendant must establish the
following: (1) that it was the injured worker’s employer, and (2) that it paid workers’
compensation premiums on the injured worker’s behalf. See id. “The question whether a person
is an employer for the purposes of workers’ compensation immunity turns upon the key factual
determination of who had the right to control the manner and means of the person’s work.”
Below v. Dollar Gen. Corp., 840 N.E.2d 215, 218 (Ohio Ct. App. 2005) (citing Bostic v. Connor,
524 N.E.2d 881, ¶ 1 syllabus (Ohio 1988)); see Daniels v. MacGregor Co., 206 N.E.2d 554, 556
(Ohio 1965) (similar). Under the second prong, an entity may pay the workers’ compensation
premiums “either directly or indirectly to qualify for immunity under [§] 4123.74.” Thomas, 143
N.E.3d at 1123 (citing, among authority, Foran v. Fisher Foods, Inc., 478 N.E.2d 998 (Ohio
15
1985)).

1. Live Nation is Darago’s Employer
Darago insists that there is “confusion” as to whether Live Nation employed him, citing
the fact that the employer of record listed on his workers compensation claim was C and C Wd
Studio Productions LLC, a subsidiary of C&C. (Opp’n at 1576.) But this fact does not end the
inquiry because “for the purposes of workers’ compensation immunity an employee may have
dual employment status.” Below, 840 N.E.2d at 699; see Wolf v. Big Lots Stores, Inc., No. 07AP-
511, 2008 WL 1759073, at *2 (Ohio Ct. App. Apr. 17, 2008) (noting that “[t]he Supreme Court
of Ohio has clearly stated that, for purposes of [§] 4123.74, workers’ compensation immunity, an

individual may under certain circumstances be considered the employee of more than one
employer qualifying for immunity”) (citing, among authority, Stanadyne, Inc. v. Indus. Comm’n
of Ohio, 466 N.E.2d 171 (Ohio 1984)).
The concept of dual employment for purposes of workers’ compensation immunity most
often manifests itself in scenarios involving temporary hiring agencies and, for this reason, it is
referred to as the “loaned servant” doctrine. See Jones v. Shaffer Trucking Co., No. 2:05-cv-
1020, 2006 WL 8442724, at *5 (S.D. Ohio July 21, 2006). “If an employer ‘lends’ its employee
to a customer, and that customer ‘controls the manner or means of performing the [employee’s]
work,’ then that employee is an employee of the customer within the meaning of the Workers’

Compensation Act and, thus, the customer cannot be liable for any injury the employee receives
in the course of or arising out of his work for the customer.” Stinnett v. Halcore Grp., Inc., 847
N.E.2d 16, 19 (Ohio Ct. App. 2006).
16
In Daniels, supra, the plaintiff was hired by Manpower, a temporary employment agency,
and was instructed by Manpower to work in a customer’s facility. He was injured when he fell
from a ladder while installing a light fixture in one of the customer’s buildings. There was no
dispute that the plaintiff performed his work at the customer’s facility under the exclusive
direction and supervision of the customer. Daniels, 206 N.E.2d at 555, syllabus. But it was also
undisputed that Manpower retained “the exclusive right to hire and discharge its employees and
to determine which of its employees are to be assigned to its customers. It also reserve[d] the
right to remove and to reassign its employees from one customer to another even during the
course of a workday.” Id. Manpower also deducted “from its employees’ wages the income and
social security taxes and similar deductions, and no such deductions are to be made by its

customers. Manpower, and not its customers, [paid] all workmen’s compensation premiums and
unemployment compensation payments for the protection of its employees.” Id. An agreement
between Manpower and its customer further provided that the customer would not employ
Manpower’s workers “‘now or for a period of ninety days following the completion of work for
the [customer].’” Id. (quoting contract). Nonetheless, the Supreme Court of Ohio upheld the trial
court’s grant of summary judgment to the customer on the basis of workers’ compensation
immunity concluding that “reasonable minds could conclude only that the right to control the
manner and means of performing the work which plaintiff was doing when injured was in [the
customer].” Id. at 558.

Applying the principles announced in Daniels, courts in Ohio have looked to several
factors “[t]o determine the factual issue of who had the right to control the manner or means of
doing the work,” for purposes of the loaned servant doctrine and workers’ compensation
17
immunity. Below, 840 N.E.2d at 220 (citing Bostic, 524 N.E.2d at 883). “These factors include,
but are not limited to, who controls the details and quality of the work; who controls the hours
worked; who selects the materials, tools, and personnel used; who selects the routes; the length
of employment; the type of business; the method of payment; and any pertinent agreements or
contracts.” Id. (citing Bostic, supra); see, e.g., Crew v. Advics Mfg. Ohio, Inc., No. CA2019-05-
051, 2020 WL 526016, at *6 (Ohio Ct. App. Feb. 3, 2020) (Even though temporary employment
agency was responsible for issuing paychecks, maintaining workers’ compensation insurance,
and retaining all employment documents, customer was employer where agreement with agency
provided customer was responsible for day-to-day supervision of employee); Thomas, 143
N.E.3d at 1123 (customer was employer for § 4123.74 immunity where it trained, supervised,

and provided all tools and equipment for employee, despite the fact that staffing agency provided
workers’ compensation insurance).
Strictly speaking, Darago cannot be considered the “loaned servant” of either BTL or
C&C because he started in the employ of Live Nation and/or CFCI, the wholly owned subsidiary
of Live Nation’s subsidiary. See Cottrill v. Thermo Electron N. Am., LLC, No. 09CA34, 2010
WL 2010920, at *4 (Ohio Ct. App. May 17, 2010) (The “loaned servant” doctrine “necessarily
presumes that the servant remains in the overall employ of the original employer.”) (citing
Campbell v. Cent. Terminal Warehouse, 383 N.E.2d 135, 137 (Ohio 1978)). But the inquiry
remains the same: namely, who controlled the manner and means of Darago’s day-to-day

activities. See id. at *4; see Daniels, 206 N.E.2d at 558. The record demonstrates that Darago
filled out a Live Nation employment application; he was interviewed and ultimately hired by
Live Nation staff; he was subject to the rules and policies contained in Live Nation’s employee
18
handbook; and he was under the direct control and supervision of Live Nation employees.
Darago further acknowledged that only management employees working at Blossom—all Live
Nation employees—could disciple or discharge him. (Darago Dep. at 1724–25; see Tynan Aff.
¶¶ 2, 23, 25; see also Tussey Dep. at 1910–11 [confirming that, as a crowd management team
member at Blossom, he was employed by Live Nation].)
Moreover, Darago’s employment with Live Nation did not change by virtue of the
payroll service agreements with C&C and BTL. Even though C&C and BTL contractually
agreed to pay wages and workers’ compensation premiums for workers at Blossom, the contracts
specifically provided that the “day-to-day supervision and direction of employees in the
performance of their covered services for the benefit of the particular protection shall be the sole

responsibility of Producer.” (Tynan Aff, Ex. A at 1270.)8 Further, while the “producer” who
entered into the payroll agreements was CFIC, Live Nation has offered uncontroverted evidence
that it assumed responsibility for these agreements after CFCI merged with HBCI, a wholly
owned subsidiary of Live Nation. (Tynan Aff. Supp. ¶ 11.) It is clear that, aside from providing
payroll services and other administrative functions, neither BTL nor C&C played any role in
Darago’s employment at Blossom.9 (See Tynan Aff. ¶¶ 69–71.)
Darago fires back by noting that the “so-called application” he filed out in 2017 was for

8 In his deposition, Darago testified that C&C was the company that handled his workers’ compensation claim and
that he received his W-2’s from BTL. (Darago Dep. at 1743.) He conceded that C&C did not control his day-to-day
activities while he worked at Blossom, and he had no idea who C and C Wd Studio Productions, LLC was, nor had
he ever been to their office. (Id. at 1747, 1763.) He also candidly admitted that he did not know the relationship
between C&C, BTL, and Live Nation. (Id. at 1763.)
9 Courts have repeatedly emphasized that, for purposes of § 4123.74 immunity, the identity of the employer
“‘depends on who had the right to manage the manner or means of day-to-day control over the employee, not who
was responsible for administrative human resources matters.’” Crew, 2020 WL 526016, at *5 (quoting Cowan v.
Interdyne Corp., No. 1-12-16, 2013 WL 684653, at *3 (Ohio Ct. App. Feb. 25, 2013)); Cottrill, 2010 WL 2010920,
at *5 (noting that “the focus should not be on the administrative concerns or structure of business relationships, but
rather on who was controlling the actual labor that resulted in an alleged tort”).
19
Live Nation Entertainment and not for Live Nation Worldwide. (Opp’n at 1576.) He further
observes that he previously received paychecks from CFCI and that C&C and BTL eventually
became limited liability corporations. Given the number of entities mentioned in the record and
the complexity of the relationships between them, Darago suggests that he “could have been
employed by Musical Arts Association (Blossom Music Festival), CFCI, Case & Crew, Inc., and
BTL, Inc., initially, and by Cast & Crew, LLC, BTL, LLC, subsequently, HBCI or Live Nation
Entertainment.”10 (Id. at 1572.) According to Darago, this lingering confusion has created factual
disputes as to the identity of his true employer that render summary judgment on this issue
inappropriate.
At its essence, Darago’s argument is that the complexity of the corporate relationships

between Live Nation and its subsidiaries and the companies that provide payroll services results
in a question of fact. But the fact that the relationships are complicated, or that Darago did not
personally understand or appreciate the legal significance of these relationships or which entity
actually employed him, does not create genuine issues of material fact.11 Ohio law disregards
corporate structure in workers compensation immunity analysis and focuses on who controlled
the injured employee’s day-to-day activities. While plaintiff testified that he had no idea who

10 Darago gratuitously added to the laundry list the Musical Arts Association, which is the parent organization of the
Cleveland Orchestra and the owner of the physical building and facility known as Blossom. (Bl. Wi. Pg.) While
several Live Nation employees testified that they were employed at Blossom, none suggested that they were
employed by the Musical Arts Association or the Cleveland Orchestra, and there is absolutely no evidence that
Darago was ever employed by or had anything to do with either entity.
11 Darago’s argument that the employment application was actually prepared by LNEI, a wholly owned subsidiary
of Live Nation, is of no legal significance. The Consolidated Acknowledgement Form, filled out by Darago at the
time he applied in 2016, specifically provide that “[t]his document serves as acknowledgement of Live Nation
Entertainment, Inc’s (and all of its affiliates and subsidiary employers, including but not limited to Live Nation
Worldwide, Inc., all subsidiaries and affiliates of House of Blues Entertainment, Inc., and Ticketmaster LLC
(collectively “Live Nation”) Code of Business Conduct and Ethics, Employee Handbook, the Proprietary
Information Agreement, Arbitration Agreement and Acknowledgment of Receipt of Harassment/Sexual Harassment
Policy.” (Darago Dep., Ex. 4 at 1801, emphasis added.)
20
employed him (see, e.g., Darago Dep. at 1737), the undisputed facts—including those conceded
by Darago in his deposition—demonstrate that Live Nation controlled his work.
Darago’s citation to the unreported decision of Hornyak v. Res. Alloys, L.L.C., No.
104302, 2016 WL 7626325 (Ohio Ct. App. Dec. 29, 2016) does not change the analysis or the
result. In Hornyak, the Ohio Eighth District Court of Appeals denied summary judgment to the
customer-employer under the loaned servant doctrine because “[i]t is not apparent that [the
customer-employer] was the employer who in fact contracted with the temporary agency and
paid the workers’ compensation premiums.” Id. at *5. No Ohio court since Hornyak has required
the employer-customer of a staffing agency to have a written agreement as to the payment of
workers’ compensation premiums in order to qualify for immunity under § 4123.74. More

importantly, in Root v. Stahl Scott Fetzer Co., 88 N.E.3d 980, 993 (Ohio Ct. App. 2017), the
Eighth District subsequently reaffirmed that the control test “controls” the determination as to
whether an affiliated company was entitled to workers’ compensation immunity. There, the court
denied workers’ compensation immunity to a sister corporation where there was “no evidence
that [the sister corporation] had any direct control over” the injured worker and there was no
evidence that the sister company contributed to the employee’s workers compensation premiums.
Id. at 993–94.
By contrast, in the present case, the payroll services agreements specifically provided for
the payment of workers’ compensation premiums on behalf of CFCI employees, and it is

undisputed that Live Nation assumed the responsibilities under those agreements after CFCI
merged with HBCI. (See Tynan Aff. Supp. ¶ 11. ) See, e.g., Crew, 2020 WL 526016, at *5–6
(applying the “control” test and distinguishing Hornyak on ground that the employer-customer
21
both controlled the employee and there was a contract covering the payment of workers’
compensation premiums); Thomas, 143 N.E.3d at 1124 (similar). Because there are no genuine
issues of material fact as to whether Live Nation controlled Darago’s day-to-day activities at
Blossom, Live Nation has met the first prong of the workers’ compensation immunity test.
2. Live Nation Paid Workers’ Compensation Premiums for Darago
Turning to the second prong, Darago argues that, “[o]ther than [Tynan’s] self-serving
statement, [Live Nation] has not provided any evidence, document or otherwise, that it paid
workers’ compensation premiums, let alone paid the premiums on behalf of Darago.” (Opp’n at
1463.) Darago presumably refers to Tynan’s original affidavit wherein he avers that “it is my
understanding that Live Nation paid a premium and/or additional monies for Workers’

Compensation coverage.” (Tynan Aff. ¶ 9, emphasis added.) “Parties must demonstrate that their
summary judgment affidavits are made on personal knowledge.” Giles v. Univ. of Toledo, 241
F.R.D. 466, 469 (N.D. Ohio 2007). “Affidavits based on mere ‘information and belief,’ as
opposed to facts the affiant knows to be true, are not proper.” Id. (emphasis in original). Courts
have found that averments that convey the affiant’s “understanding” as to certain facts are
tantamount to averments premised on “information and belief” and are insufficient to support
summary judgment under Rule 56. See, e.g., id. at 470; Star Ins. Co. v. Hazardous Elimination
Corp., No. 05-4762, 2007 WL 316569, at *13 (E.D.N.Y. Jan. 30, 2007) (affidavit based on
affiant’s “understanding,” without specifying any basis for the understanding, could not be

considered on summary judgment). The Court agrees that such a statement would be insufficient
to satisfy the second prong.

22
But there are other ways to satisfy the second prong. “An employer can show compliance
with Ohio’s workers’ compensation statutes by obtaining certification from the Industrial
Commission or by showing that the injured employee received workers’ compensation benefits.”
Thomas, 143 N.E.3d at 1123. Darago does not deny that he received workers’ compensation
benefits but argues that it is not enough to demonstrate that someone paid the workers’
compensation premiums. The court rejected a similar argument in Thomas. There, the court held
that it did not matter whether the customer-employer or the temporary agency paid the premiums
so long as someone paid them. The court found that it was undisputed that the employee received
workers’ compensation benefits and that the employer had entered into an agreement whereby
the staffing agency was to pay the premiums. Id. at 1124; see Crew, 2020 WL 526016, at *6

(customer-employer satisfied second prong of immunity test where the employee did not deny
that he received workers’ compensation and the agreement provided that the staffing agency
would be responsible for providing workers’ compensation for all assigned employees). It is
undisputed that Darago received workers’ compensation benefits, and the payroll agreements
provided that BTL and C&C would ensure that all employees of CFCI would be covered by
workers’ compensation insurance. It is further undisputed that Live Nation assumed all duties
and responsibilities under the agreements after the merger of CFCI. This evidence, alone, is
sufficient under Ohio law.
However, Live Nation has also submitted Tynan’s supplemental affidavit in support.

Appended to this supplemental affidavit is an invoice that verifies that Live Nation was billed for
Darago’s workers’ compensation premiums. (Tynan Aff. Supp. ¶ 16; Doc. No. 95 (BTL
Employee Fringe Report) at 2129.) Citing the invoice issued by BTL, Tynan avers that “As
23
General Manager of Blossom and Live Nation Worldwide, Inc. employee, . . . I can confirm that
Live Nation Worldwide, Inc. paid the invoice and therefore paid Workers’ Compensation
premiums on Darago’s behalf at the time his injury occurred.” (Tynan Aff. Supp. ¶ 17.) This
affidavit evidence, properly supported by Tynan’s personal knowledge as General Manager of
Blossom and Live Nation employee, also satisfies the second prong of the workers’
compensation immunity test.
Reasonable minds could conclude only that Live Nation was Darago’s employer and that
it paid workers’ compensation premiums on his behalf. Accordingly, the Court determines that,
as a matter of law, Live Nation is entitled to complete immunity under Ohio Rev. Code §
4123.74. Live Nation’s motion for summary judgment as to all claims asserted against it is

granted.
B. Negligence as to blink-182 Defendants
1. Premises Liability
In Darago’s negligence claim (Count 1), he alleges generally that defendants
“collectively owed a duty of ordinary care to” him, and that this duty required defendants to
“maintain a safe work area and environment” for him. (FAC ¶¶ 47, 48.) blink-182 defendants
argue that they owed no duty of care to Darago, as they were neither the owner nor occupier of
the premises and that, in any event, they are absolved of any liability under the doctrines of
assumption of the risk and open and obvious danger.

A landowner owes a duty of care to its invitees. See generally Simmers v. Bentley Constr.
Co., 597 N.E.2d 504 (Ohio 1992). This duty to keep a premises safe only arises when the
landowner was in possession and control of the premises at the time in question. Simpson v. Big
24
Bear Stores Co., 652 N.E.2d 702, 704 (Ohio 1995). “The test to determine whether the owner or
occupier had control is, generally, whether they had the power and right to admit people to (or
exclude) from the premises.” Wolf v. Bison Baseball, Inc., No. 09AP-905, 2010 WL 1254597, at
*2 (Ohio Ct. App. Mar. 31, 2010) (citing Simpson, 652 N.E.2d at 704).
The Court observes that the undisputed record establishes that blink-182 defendants had
no power or right to admit (or exclude) people from the premises. (See Sullivan Aff. ¶ 5; Hoppus
Aff. ¶¶ 7, 21; Robinson Dep. at 2000, 2019.) For this reason alone, blink-182 defendants cannot
be held liable under a theory of premises liability.
2. Negligent Hiring
Count Two alleges a claim of negligent hiring. (FAC ¶¶ 54–63.) Relevant to blink-182

defendants, Darago alleges that defendants permitted unsupervised and untrained managers and
employees to permit crowd surfing, despite the inherent dangers associated with such an activity.
(Id. ¶¶ 59–60.) Ohio law recognizes the tort of negligent hiring. Byrd v. Faber, 565 N.E.2d 584,
589–90 (Ohio 1991). It is Darago’s position that BTAI was negligent in its hiring of Robinson,
and that Robinson’s negligence, in turn, caused his injuries. To establish a negligent hiring claim,
the plaintiff must demonstrate: (1) the existence of an employment relationship; (2) the
employee’s incompetence; (3) the employer’s actual or constructive knowledge of such
incompetence; (4) the employee’s act or omission causing the plaintiff’s injuries; and (5) the
employer’s negligence in hiring or retaining the employee as the proximate cause of the

plaintiff’s injuries. Plotner v. Swanton Local. Bd. of Educ., 85 F. Supp. 2d 747, 755 (N.D. Ohio
2000) (citing Staten v. Ohio Exterminating Co., Inc., 704 N.E.2d 621, 623 (Ohio 1997)). blink-
182 defendants insist that the record fails to support any of these elements.
25
Beginning with the employment relationship, blink-182 defendants argue that, at best,
Robinson was an independent contractor. Generally, an employer can be liable for the conduct of
its employees through respondeat superior, but a defendant is not liable for negligent acts of an
independent contractor. Pusey v. Bator, 762 N.E.2d 968, 972 (Ohio 2002). The key
determination regarding whether an individual is an employee or an independent contractor is
whether the defendant had the right to control the individual’s everyday tasks. See Herndon v.
Torres, 791 F. App’x 547, 552 (6th Cir. 2019). In the absence of material factual disputes, this
inquiry can be resolved as a matter of law. Id.
The record evidence demonstrates that Robinson was at all relevant times an employee of
NPB. BTAI hired NPB to handle personal security for the band, and NPB assigned its employee,

Tony Robinson, to oversee that security. (Doc. No. 85-6 (Affidavit of Perrin Beattle [“Beattle
Aff.”]) ¶¶ 7, 9.) Robinson testified that he was trained by NPB, and that at all times relevant to
the present lawsuit, he was an agent of NPB and remained employed by NPB. (Robinson Dep. at
1985–90, 1991, 2000; Beattle Aff. ¶¶ 12, 13.) He further testified that, while performing artists
can make suggestions regarding the show and the security provided during the show, they do not
have the authority to direct his work. (Robinson Dep. at 1997–98, 1999.) Darago offers no
contrary record evidence demonstrating an employment relationship between blink-182
defendants and Robinson.
Nonetheless, Darago argues that he can still hold blink-182 defendants liable for

Robinson’s actions upon an agency theory. Specifically, Darago suggests that blink-182
defendants held Robinson out as having apparent authority to act on their behalf. (Opp’n at
1595.) He argues that blink-182 defendants held out Robinson out as their “security agent” by
26
permitting him to attend the pre-concert meeting with Live Nation management to discuss
security and points to the security rider Robinson provided to each venue on behalf of the band.
(Id. at 1598.) But Darago did not attend the pre-concert meeting and he testified that he had not
seen the band’s security rider prior to the accident. (Darago Dep. at 1727, 1732.) Moreover, there
is no evidence in the record that Darago ever interacted with BTAI or the individual band
members. Without some evidence that blink-182 defendants represented to Darago that Robinson
was their agent or that blink-182 defendants knowingly permitted Robinson to hold himself out
as their agent, Darago cannot establish a relationship via apparent agency. See Mortg. Elec.
Registration Sys., Inc. v. Mosley, No. 93170, 2010 WL 2541245, at *10 (Ohio Ct. App. July 26,
2010).

Further, Darago cannot demonstrate that Robinson was negligent. Darago insists that
Robinson personally instructed him to permit crowd surfing—and, in particular, instructed him
to let the female patron who ultimately kicked him in the face continue to crowd surf. In his
deposition, Darago testified that when Robinson first instructed him to permit crowd surfing and
to “let the kids have fun[,]” he informed Robinson that such a practice would not be permitted by
the venue’s normal policy, but Robinson responded “Well, it is tonight. We’ll allow crowd
surfing.” (Darago Dep. at 1720.) He testified that, later, when he wanted to eject the female
patron, Robinson said “No, let her go.” (Id. at 1718.) Presumably these statements are offered
both to establish that blink-182 defendants should have been aware that Robinson was holding

himself out as the agent for the band, and to show that Robinson’s conduct caused Darago’s
injuries. As previously noted, Robinson, who is not a party to this litigation (nor is his employer,
NPB), denied making any such statements.
27
“It is well established that a court may not consider hearsay when deciding a summary
judgment motion.” Tranter v. Orick, 460 F. App’x 513, 514 (6th Cir. 2012); see Wiley v. United
States, 20 F.3d 222, 226 (6th Cir. 1994) (citing Beyene v. Coleman Sec. Servs., Inc., 854 F.2d
1179, 1181 (9th Cir. 1988) (stating that “[i]t is well settled that only admissible evidence may be
considered by the trial court in ruling on a motion for summary judgment”)). Darago does not
seriously contest that Robinson’s statements are hearsay, nor does he point to any other evidence
in the record that would demonstrate that Robinson is responsible for his injuries.
Instead, Darago argues that the statements are admissible, and therefore can be
considered on summary judgment, under Fed. R. Evid. 803(3).12 Pursuant to Rule 803(3), an
exception to the rule against hearsay, a witness can testify as to “[a] statement of the declarant’s

then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health)[.]” Fed. R. Evid. 803(3). The Sixth
Circuit has further explained that “Rule 803(3) allows witnesses to recount hearsay statements
(that is, statements offered to prove the truth of the statements’ factual content) when the
statement’s original declarant is expressing his or her then-existing state of mind.” United States
v. Kilpatrick, 798 F.3d 365, 386 (6th Cir. 2015). Robinson’s statements do not qualify under
Rule 803(3), as they do not go to Robinson’s then-existing statement of mind, nor can they be

12 Darago also suggests that such statements would be not be considered hearsay under Fed. R. Evid. 801(d)(1)
because they would qualify as prior inconsistent statements of a declarant. (Opp’n at 1598.) Darago is mistaken.
These statements that were allegedly made at Blossom were not made under oath in a previous proceeding that
conflict with Robinson’s testimony that was subsequently offered in this matter. See Fed. R. Evid. 801(d)(1)(A); see
also Williams v. United Dairy Farmers, 188 F.R.D. 266, 273 (S.D. Ohio 1999) (“In this case, the alleged statements
of Freeman and Munyan were conveyed at the kitchen table of the Freeman home; and thus, because the statements
were not made in a previous trial or hearing subject to the penalty of perjury, they do not qualify as non-hearsay
under Rule 801(d)(1)(A).”) They would also not qualify as prior consistent statements under Fed. R. Evid.
801(d)(1)(B)(i). While Darago claims Robinson instructed him to allow crowd surfing, Robinson testified, under
oath, that he did not. (Robinson Dep. at 2016, 2017.)
28
considered statements about Robinson’s emotional, sensory, or physical condition. They are
simply alleged instructions given to Darago.13 These statements are the only evidence Darago
offers to support a finding that Robinson caused his injuries. Without some competent evidence,
Darago is unable to establish that blink-182 defendants are responsible under a theory of
respondeat superior for Robinson’s actions.
3. Proximate Cause
blink-182 defendants also argue that they cannot be liable under any tort theory—
including premises liability and negligent hiring—because they did not proximately cause
Darago’s injuries. “Ohio law requires a plaintiff alleging negligence to establish that a genuine
issue of material fact exists as to the following elements: that the defendant owed a duty of care

to the plaintiff, that the defendant breached that duty, and that the breach of duty was the cause in
fact and proximate cause of injury to the plaintiff.” Petre v. Norfolk S. Ry. Co., 458 F. Supp. 2d
518, 527 (N.D. Ohio 2006) (citing Nye v. CSX Transp., Inc., 437 F.3d 556, 563 (6th Cir. 2006)).
“Proximate cause is generally established where an original act is wrongful or negligent and, in a
natural and continuous sequence, produces a result that would not have taken place without the
act.” Id. (citing Strother v. Hutchinson, 423 N.E.2d 467, 471 (Ohio 1981)); see State Farm Mut.
Auto. Ins. Co. v. VanHoessen, 682 N.E.2d 1048, 1049 (Ohio Ct. App. 1996) (“Negligent conduct

13 In support of his Rule 803(3) argument, Darago suggests that the statements “would be offered to show fear of not
being employed by any employer as a security personnel if he did not allow crowd surfing, which was, in his mind,
a dangerous activity and against Blossom’s and Live Nation Worldwide’s policy.” (Opp’n at 1598.) Such a theory is
pure speculation and not supported by the record. In fact, Robinson testified that he was not required to follow his
client’s instructions, and that if a band requested that crowd surfing be permitted, notwithstanding a policy
prohibiting it at the venue, he would tell the band that they could not do it. (Robinson Dep. at 1998–99.)

29
is the proximate cause of an injury if the injury is the natural and probable cause of the conduct,
i.e., if it is foreseeable.”).
An injury may have more than one proximate cause. See Murphy v. Carrolton Mfg. Co.,
575 N.E.2d 828, 829 (Ohio 1991). “When an injury is the natural and probable consequence of
negligent conduct, that the negligence of others unites with that negligence to cause injury does
not relieve the original offender from liability.” VanHoessen, 682 N.E.2d at 1049–50. But
plaintiff’s burden to demonstrate proximate cause “requires more than merely showing that the
defendant caused a condition that provided the opportunity for other causal agencies to act.”
Petre, 458 F. Supp. 2d at 527. “Further, the issue of proximate cause is usually a question of fact,
however, if the plaintiff’s evidence on the issue requires mere speculation or conjecture to

determine the cause of the resulting injury, the defendant is entitled to summary judgment.” Id.
(citations omitted).
It is undisputed that no member of the band, nor any individual associated with blink-182
or BTAI, ever instructed the patrons to crowd surf. (Darago Dep. at 1732; Hoppus Aff. ¶¶ 15–16,
18.) Darago testified, however, some unidentified member of the band said “Come on, let’s get
this thing started.” (Darago Dep. at 1717.) According to Darago, this comment “whipped” up the
crowd. (Id.) Notwithstanding the fact that BTAI had a policy against crowd surfing, Darago
speculates that the purpose of the statement was to “try[] to get [the crowd] to go ahead and start

30
crowd surfing.”14 (Id.) At best, the ambiguous remark by some unknown band member
demonstrates that blink-182 defendants animated the crowd and “caused a condition that
provided the opportunity for other causal agencies to act.”15 See Petre, 458 F. Supp. 2d at 527.
And neither this stray remark, nor Darago’s speculation as to the motivation behind the remark
and its responsibility for his resulting injuries, satisfies his burden to show proximate cause. Id.
Moreover, Darago’s own testimony identifies the “causal agenc[y]” that acted and, in
doing so, supplies an alternative proximate cause for his injuries. Specifically, Darago testified
that the “first guy,” a fellow crowd management employee who was helping him with the crowd
surfers, failed to turn around the female patron who injured him and permitted her to crowd surf
feet first, which made it possible for her to kick Darago in the face when Darago eventually

helped her to the ground. (Id. at 1762–63; see Darago Aff. ¶¶ 17–18.) According to Darago, this
employee’s inadequate training on the proper technique for assisting crowd surfers—for which
Darago conceded the band was not responsible—caused his injuries. (Darago Dep. at 1762–63;
see Darago Aff. ¶¶ 17, 20 [Darago noting that he “did not expect or anticipate that [he] would be
suddenly kicked by a crowd surfer, since the same crowd surfer was not kicking or flailing her
feet when she arrived at the barricade on previous occasions”].)
Because Darago has failed to come forward with any evidence that, if believed, would

14 Darago claims that his speculation is supported by the testimony of Tussey, who Darago suggests testified that, in
his experience, “such announcements are designed to incite the crowd into a frenzy and are cues to begin moshing
and crowd surfing.” (Opp’n at 1604.) Such a statement misrepresents Tussey’s testimony. In his deposition, Tussey
explained that “[s]ometimes [performing artists] would say ‘These guys [security personnel] aren’t up here
[meaning the pit] for nothing. Let’s start passing bodies.’” (Tussey Dep. at 1865.) “They may say ‘Come on, let’s
get this crowd going. You know, these guys aren’t here for nothing.’” (Id.) Neither Darago, nor Tussey, testified that
any band member mentioned crowed surfing or the passing up of bodies, and there is no evidence that any band
member advised the patrons that the security personnel in the pit were there for the purpose of helping them to
crowd surf.
15 In fact, Darago testified that the crowd became loud immediately after blink-182 took the stage, even before the
unidentified band member made the comment. (Darago Dep. at 1716–17.)
31
demonstrate that blink-182 defendants proximately caused his injuries, blink-182 defendants are
entitled to summary judgment on the negligence claims asserted against them for this additional
reason.'©
TV. CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is GRANTED, and
all claims in the FAC asserted against defendants are DISMISSED. Further, because Darago may
not recover damages on his negligence claims, and there is no basis upon which to find BWC has
a right to reimbursement, the declaratory judgment claim asserted against BWC is also
DISMISSED. This case is closed.
IT IS SO ORDERED.

Dated: August 16, 2021
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

‘6 Because the Court concludes that, as a matter of law, the negligence claims do not survive summary judgment on
the merits, it need not consider blink-182 defendants’ alternative arguments that they are entitled to dismissal under
the doctrines of assumption of the risk and/or open and obvious dangers. Of course, the fact that Darago argues that
the affirmative defense of open and obvious danger is not available to blink-182 defendants because they neither
possessed nor controlled Blossom, only serves to underscore the fact that Darago cannot make out a premises
liability claim against these defendants. See Simpson, 652 N.E.2d at 704 (“It is fundamental that to have a duty to
keep premises safe for others one must be in possession and control of the premises.”); see also Martin v. Lambert, 8
N.E.3d 1024, 1031 (Ohio Ct. App. 2014) (Under the common law of premises lability, possession, occupation, and
control of the premises are all prerequisites to liability). Further, because Live Nation is entitled to complete
immunity under Ohio Rev. Code § 4123.74, the Court need not consider whether it is liable for failing to properly
train the unidentified “first guy,” or whether it is entitled to any available affirmative defense.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10369814. Public record. Not legal advice.