Seattle, Wash. (September 11, 2025) - Seattle Partners Michael A. Jaeger and Jonathan Missen, with Associate Christian Brown, secured a Washington appellate court decision that affirmed an order granting summary judgment for Live Nation, the Grant County Sheriff’s Office and Phish in a lawsuit in which the plaintiffs sought to hold the defendants liable for injuries they suffered at a concert when they were struck with rocks by unknown assailants.
The trial court had agreed with the defendants that they only owed a duty to invitees to prevent reasonably foreseeable harm, and the harm in question was not reasonably foreseeable.
On appeal, the plaintiffs contended that "evidence of prior experience along with the nature and character of Phish concerts," including the sale of nitrous oxide gas outside of concert venues, put Live Nation "on notice that violent assaults were foreseeable as being within the 'general field of danger.'"
A panel of the Washington Court of Appeals, Division III, McKown v. Simon Property Group, which adopted a narrow definition of a business owner's duty to foresee harmful conduct by third-party actors. Under McKown, the place and character of a business may be relevant to the analysis of whether a duty exists, but evidence must show that the specific injury-causing act was foreseeable.
In the case at hand, the plaintiffs alleged that there is a nexus between the sale and use of nitrous oxide and violent behavior. However, they pointed to only a handful of such incidents across the country over a span of several years. As a result, the Court of Appeals found that the sale of nitrous oxide outside of the Phish concert would not have made random violent attacks inside the venue foreseeable to the defendants.
"Here, given that the plaintiffs are not relying on prior similar incidents, they must produce evidence to show that the nature of a Phish concert or even the nature of similar concerts is such that it either invited violence or random attacks or put Live Nation on notice that random attacks were foreseeable," the opinion stated. "They have not produced evidence of this nature and have thus failed to show that the defendants had a duty to protect them from the random attacks occurring inside the venue."