Kevin Darago v. Live Nation Worldwide, Inc.

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0125n.06
No. 21-3822
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
KEVIN DARAGO, ) Mar 21, 2022
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
LIVE NATION WORLDWIDE, INC., BRING THE ) COURT FOR THE
AWESOME, INC., MARK HOPPUS, TRAVIS ) NORTHERN DISTRICT OF
BARKER, MATT SKIBA, ) OHIO
)
Defendants-Appellees. )
Before: SILER, LARSEN, and MURPHY, Circuit Judges.
LARSEN, Circuit Judge. Kevin Darago performed security at Blossom Music Center, an
outdoor amphitheater that hosts concerts and is operated by Live Nation Worldwide, Inc. Part of
his job was to stop crowd surfers. Unfortunately, during a blink-182 concert, a crowd surfer kicked
him in the face while he attempted to stop her, resulting in vision loss. He sued the band and its
touring company for negligence. The district court granted summary judgment to the defendants.
We AFFIRM.
I.
Blossom Music Center is an outdoor amphitheater in Cuyahoga Falls, Ohio, operated by
Live Nation. Live Nation employed Darago, part time during the summers, to perform crowd
management for concerts at Blossom.
No. 21-3822, Darago v. Live Nation Worldwide
On August 9, 2016, blink-182, a pop-punk band composed of defendants Mark Hoppus,
Travis Barker, and Matt Skiba, headlined a concert at Blossom. The band toured under a touring
corporation, defendant Bring the Awesome, Inc. (BTAI).
BTAI hired NPB Companies, Inc. to provide personal security for the band during its 2016
tour. BTAI and NPB agreed to have Anthony Robinson, an NPB employee, serve as Security
Director for the band. Robinson’s job was to protect the band. Live Nation, on other hand, ensured
the safety of its employees and guests.
Before a concert at Blossom, a band’s touring personnel will often meet with Live Nation
management to discuss the production and any unique security issues the band might have.
Robinson did just that. He met with Ronald Tynan, Blossom’s General Manager, and Craig
Taylor, Blossom’s Venue Security Manager, before blink-182’s concert. At the meeting,
Robinson told them to “[b]e aware of” crowd surfing because it would happen. Tynan and Taylor
explained that Live Nation prohibited crowd surfing. Robinson said he understood but was merely
warning them that it would happen. Robinson also gave Tynan and Taylor a “security rider,” a
list of various requests from blink-182 for the show. The rider stated that blink-182 also prohibited
crowd surfing.
Following this meeting, Taylor met with Blossom’s crowd-management staff and briefed
them on expectations for the event. Darago didn’t attend, but his co-worker John Tussey did.
Taylor shared Robinson’s warning with the staff: “Be aware of possible crowd surfing.”
When Darago arrived for work at Blossom the night of the concert, he went straight to the
“pit” where he usually worked. The pit is the standing-room-only area of the amphitheater in front
of the stage and is separated from the stage by a metal barricade. Darago’s job was to ensure no
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one got behind the barricade and onto the stage. He would also receive crowd surfers and help
them back down to the ground.
Tussey filled Darago in on the staff briefing, explaining that they were “probably going to
have crowd surfing.” At this point, Darago and Tussey claim that Robinson approached their
group of security personnel. Robinson allegedly told them to allow crowd surfing and “let the kids
have fun.” Although Darago pointed out that Blossom’s policy prohibited crowd surfing,
Robinson still said “to allow it to happen.” Robinson claims he never said this. After Robinson
walked away, Taylor approached the group. Tussey told Taylor that Robinson had said to allow
crowd surfing. Taylor responded, “Well, I guess we’ve got to let ’em have fun.”
As the concert began, there were “one or two” crowd surfers. But as “[b]link started really
getting into their music,” Darago and Tussey claim that the band told the crowd, “Come on, let’s
get this thing started.” That “whipped” the crowd up, causing a lot more people to start crowd
surfing. One woman crowd surfed multiple times up to the barricade. After Darago helped her to
the ground for the third time, he told Tussey that they needed “to get rid of her.” Darago and
Tussey claim that Robinson approached them again and told them to let her return to the pit.
Unfortunately, she crowd surfed again. The last time, as Darago helped her to the ground, she
suddenly kicked him in the eye. As a result, Darago went blind in his left eye and has a large blind
spot in the right.
Darago then filed for workers’ compensation benefits, which he received. He also sued
several defendants, including Live Nation, BTAI, and the individual band members, in state court,
alleging several state law tort claims. Darago did not name NPB or Robinson as defendants. The
defendants removed the action to federal court, invoking diversity jurisdiction.
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No. 21-3822, Darago v. Live Nation Worldwide
Because Darago received his workers’ compensation benefits, the district court found that
Live Nation, as Darago’s employer, was immune from suit under Ohio law. Darago doesn’t
challenge that finding on appeal. BTAI and the individual band members (collectively “blink-
182”) moved for summary judgment, and the district court granted their motion. First, the court
found that blink-182 could not be liable for premises liability because they had no power to admit
or exclude people from Blossom. Second, the court determined that blink-182 could not be liable
for negligent hiring and supervision because Robinson lacked an employment relationship with
them. Third, the court found that blink-182 could not be vicariously liable for Robinson’s actions
because Robinson was an independent contractor; nor could they be liable under an agency theory
because they never represented to Darago that Robinson was their agent. The court also found
that Darago failed to show that Robinson was negligent. Finally, the court explained that blink-
182 could not be liable under any tort theory because Darago did not establish that blink-182
proximately caused his injuries. Darago now appeals.
II.
We review the district court’s summary judgment decision de novo. Franklin Am. Mortg.
Co. v. Univ. Nat’l Bank of Lawrence, 910 F.3d 270, 275 (6th Cir. 2018). “[S]ummary judgment
is warranted only if ‘there is no genuine issue as to any material fact’ and ‘the movant is entitled
to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a) and Villegas v. Metro. Gov’t
of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)). Darago appeals the district court’s determination
on the following claims: supervisory liability, negligent hiring and supervision, and premises
liability. We address these in turn.
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No. 21-3822, Darago v. Live Nation Worldwide
A. Supervisory Liability
Ohio law holds employers “liable for the negligent acts of [their] employees committed
within the scope of employment,” but generally not for those of independent contractors. Pusey
v. Bator, 762 N.E.2d 968, 972 (Ohio 2002). “The chief test in determining whether one is an
employee or an independent contractor is the right to control the manner or means of performing
the work.” Id. (quoting Bobik v. Indus. Comm’n, 64 N.E.2d 829, 829 (Ohio 1946)). If the
employer exercises control, then an employer-employee relationship exists. Id. But if “the work
is left to one responsible to the employer for the result alone,” then an independent-contractor
relationship exists. Id.Robinson was, at best, an independent contractor because blink-182 did not exercise
control over the manner of his work. Robinson remained at all times an employee of NPB. Blink-
182 did not pay Robinson directly; NPB did. And Robinson received his training from NPB.
While blink-182 could make suggestions regarding security, neither NPB nor Robinson was
required to follow them. Blink-182 never interfered with Robinson’s work, other than by
instructing him not to permit crowd surfing; instead, they left Robinson alone to handle security
because he was an “expert[].” Even Darago admits that blink-182 “did not control Robinson’s
day-to-day operations with regard to how security should be implemented.” So Darago has failed
to show that Robinson was blink-182’s employee.
Darago next argues that blink-182 is liable for Robinson’s negligence under the “loaned-
servant doctrine” because NPB loaned Robinson to blink-182. See Halkias v. Wilkoff Co., 47
N.E.2d 199, 205–06 (Ohio 1943), overruled on other grounds by Helmick v. Republic-Franklin
Ins. Co., 529 N.E.2d 464, 467 (Ohio 1988). Under this doctrine, “when one employer lends his
employee to another for a particular employment, the employee, for anything done in that
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employment, must be dealt with as the employee of the one to whom he has been lent, although
he remains the general employee of the loaning employer.” Ferguson v. Dyer, 777 N.E.2d 850,
852 (Ohio Ct. App. 2002); see also Halkias, 47 N.E.2d at 205. So the borrowing employer may
be vicariously liable for the acts of the loaned employee. Halkias, 47 N.E.2d at 205. Darago,
however, forfeited this argument by failing to raise it below. See Sheet Metal Workers’ Health &
Welfare Fund of N.C. v. Law Off. of Michael A. DeMayo, LLP, 21 F.4th 350, 355 (6th Cir. 2021).
And, in any event, whether one is a loaned servant turns on the same test used to determine whether
one is an independent contractor: control. See, e.g., Ferguson, 777 N.E.2d at 853. And there is
no evidence that blink-182 exercised control over Robinson.
Changing course, Darago asserts agency by estoppel, which “allows a principal to be
vicariously liable for the torts of an independent contractor.” Brown-Spurgeon v. Paul Davis Sys.
of Tri-State Area, Inc., No. CA2012-09-069, 2013 WL 1883214, at *5 (Ohio Ct. App. May 6,
2013). An agency by estoppel is created “only where the principal holds the agent out as
possessing authority to act on the principal’s behalf, or the principal knowingly permits the agent
to act as though he had such authority.” McSweeney v. Jackson, 691 N.E.2d 303, 307 (Ohio Ct.
App. 1996) (citation omitted). To prevail, Darago must show that (1) blink-182 “made
representations leading [him] to reasonably believe that [Robinson] was operating as” blink-182’s
agent; and (2) that he “was thereby induced to rely upon the ostensible agency relationship to
his . . . detriment.” Brown-Spurgeon, 2013 WL 1883214, at *5; see also Albain v. Flower Hosp.,
553 N.E.2d 1038, 1049 (Ohio 1990), overruled on other grounds by Clark v. Southview Hosp. &
Fam. Health Ctr., 628 N.E.2d 46, 48–50 (Ohio 1994). Darago fails to make that showing.
Darago claims that he believed Robinson was acting as blink-182’s agent when he
instructed Darago and Tussey to allow crowd surfing. But Darago has not shown that he
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reasonably relied upon any agency relationship that might have existed. Even if Robinson
instructed Darago to allow crowd surfing, Darago’s reliance on that instruction could not have
been reasonable because he was Live Nation’s employee, not blink-182’s. Neither blink-182 nor
Robinson had any authority to order any Live Nation employees, like Darago, to allow crowd
surfing despite Live Nation’s ban on that conduct. If there is fault here, it lies with Live Nation,
whose Security Manager, Taylor, allegedly instructed Darago to “let ’em have fun,” in violation
of its anti-crowd surfing policy. Darago was justified in relying on the instructions from his own
boss; but Live Nation has been dismissed from this suit, and Darago does not appeal that judgment.
Darago, therefore, fails to establish agency by estoppel.
In sum, blink-182 cannot be held vicariously liable for Robinson’s acts.
B. Negligent Hiring and Supervision
To prevail on a negligent hiring or supervision claim under Ohio law, Darago must
establish five elements: “(1) [t]he 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 plaintiff’s injuries.” Zanni v. Stelzer,
880 N.E.2d 967, 969 (Ohio Ct. App. 2007) (quotation marks omitted) (alteration in original).
The parties focus primarily on the first element. They assume, as did the district court, that
Darago’s negligent hiring and supervision claims fail if Robinson was an independent contractor.
But that position misstates Ohio law. “[A]n employer may be directly liable for injuries resulting
from its own negligence in selecting or retaining an independent contractor.” Albain, 553 N.E.2d
at 1044. It is, therefore, “irrelevant if the worker is classified as an employee or an independent
contractor.” Jackson v. Hogeback, No. CA2013-10-187, 2014 WL 2742945, at *7 n.5 (Ohio Ct.
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No. 21-3822, Darago v. Live Nation Worldwide
App. June 16, 2014). So long as “some sort of employment relationship existed, regardless of its
type,” Darago can meet the first element of his negligent hiring and supervision claims. Id.Yet Darago’s claims still fail. To show negligent hiring, a plaintiff must provide evidence
that an employee “had a past history of criminal, tortious, or otherwise dangerous conduct about
which the [employer] knew or could have discovered through reasonable investigation.” Byrd v.
Faber, 565 N.E.2d 584, 590 (Ohio 1991); see also Groner v. deLevie, No. OOAP-1244, 2001 WL
438701, at *7 (Ohio Ct. App. May 1, 2001). Darago provides no evidence that Robinson had a
history of tortious or criminal conduct when he was hired; a fortiori, he cannot show that blink-
182 was aware of any unsavory propensity at that time. This theory, therefore, cannot survive
summary judgment.
Darago presents a more developed theory of negligent supervision, but it also fails.
Darago’s theory goes like this: blink-182 must have been aware of the crowd surfing because it
was occurring in front of the band while it played. Robinson was responsible for the crowd surfing
because he allegedly told Darago and Tussey to permit it. So blink-182 behaved negligently by
failing to correct Robinson’s behavior during the concert. The flaw? Darago provides no evidence
that blink-182 was aware of Robinson’s alleged instruction to Darago and Tussey. The mere fact
that blink-182 saw crowd surfing—which Live Nation was responsible for managing—would not
have put the band on notice that Robinson was facilitating it. Absent proof that blink-182 was
aware of any negligent conduct by Robinson, Darago’s claim fails. See Groner, 2001 WL 438701,
at *8.
C. Premises Liability
“[T]o have a duty to keep premises safe for others” under Ohio law, “one must be in
possession and control of the premises.” Simpson v. Big Bear Stores Co., 652 N.E.2d 702, 704
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(Ohio 1995). Possession and control means having “the power and right to admit people to the
premises and to exclude people from it, and involves a substantial exercise of that right and power.”
Id. (quoting Wills v. Frank Hoover Supply, 497 N.E.2d 1118, 1120 (Ohio 1986)).
Darago believes that blink-182 “had the authority to seek removal of a Live Nation
employee or a guest if [they] had a problem with the employee or the guest.” Therefore, Darago
says, blink-182 controlled Blossom. But the record belies the claim. Blink-182 was “responsible
for the production of the performance itself, while Live Nation [was] responsible for the operation
of the venue,” including “crowd management and security.” Although blink-182 could “make
requests to Live Nation to facilitate the production of [their] performance, . . . all venue operations,
including crowd management and security,” were ultimately at the discretion of Live Nation.
Blink-182 confirmed that they did “not own, possess, control, and/or operate Blossom” and that
they were required “to abide by Live Nation’s venue policies and rules, including the prohibition
of crowd surfing.” Darago relies almost exclusively on Robinson’s purported authority to “request
a relocation of” security staff and “the ejection of crowd surfers.” But, even if Robinson were the
band’s agent, Darago offers no authority suggesting that the mere ability to request the removal of
an individual is sufficient control for purposes of premises liability. On this record, there is no
question that the ultimate authority to admit or remove people from the premises rested solely with
Live Nation.
Darago also argues that Robinson “instructed pit crew members to allow crowd surfing”
and that Taylor acquiesced to this request. But this is not evidence of an ability to admit or exclude
people from Blossom. As a last resort, Darago also claims that blink-182 had control, at the very
least, over the pit. But the pit, like the rest of Blossom, is operated by Live Nation. And even
then, Darago has pointed to no evidence suggesting that blink-182 had any unique ability to admit
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or exclude people from the pit. In short, blink-182 did not control Blossom, which is fatal to
Darago’s premises-liability claim.
***
We AFFIRM the district court’s judgment.
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