In case it wasn't clear before, walking into the 60-foot Burning Man effigy isn't a safe thing to do.
Just ask Anthony Beninati, who got literally burned in 2005 after venturing too close to the giant wooden fellow while on his third trip to the Burning Man festival in Nevada's Black Rock Desert.
Beninati sued for damages. But on Tuesday, San Francisco's 1st District Court of Appeal doused his hopes after finding that the "college-educated" man had assumed the risk of harm by walking directly into the effigy while remnants of it were still burning.
"The risk of injury to those who voluntarily decide to partake in the commemorative ritual at Burning Man is self-evident," Justice Ignazio Ruvolo wrote.
Justices Timothy Reardon and Patricia Sepulveda agreed.
Beninati, the general manager of a company that rehabilitated property for resale at the time of the 2005 accident, had approached the fire to toss in a photograph of a recently deceased friend. Attendees were "authorized and invited to approach the flames," his complaint stated, "to deposit tokens, mementos and other commemorative objects into the fire so attendees can participate more fully and completely in the Burning Man experience."
According to Tuesday's ruling, Beninati "did not think it was dangerous to walk seven to 10 feet into the fire" even with flames on either side of him. Beninati caught his foot on something, "tripped and fell into the fire twice, badly burning both of his hands." According to a lawyer in the case his injuries have resulted in more than $1 million in medical bills.
He sued Burning Man's promoter, Black Rock City LLC, for negligence. But San Francisco Superior Court Judge Paul Alvarado granted summary judgment after finding that the promoter owed no duty of care because Beninati had assumed the risk of injury by approaching the fire.
The 1st District affirmed while invoking the "firefighter's rule," which provides that anyone who sets a fire owes no duty to firefighters injured while fighting it.
While Beninati was not a firefighter, Ruvolo wrote, he deliberately chose to engage in activities similar to those handled by one.
"The risk of stumbling on buried fire debris ... was an obvious and inherent one," Ruvolo wrote in Tuesday's Beninati v. Black Rock City LLC, 09 C.D.O.S. 8329. "Thus, the risk of falling and being burned by the flames or hot ash was inherent, obvious and necessary to the event, and Beninati assumed such risk."
Beninati's appellate lawyers, Evan Marshall and Thomas Yuhas, attorneys with the Los Angeles Law Offices of Ian Herzog, didn't return calls seeking comment.
Defense counsel William Kronenberg of San Francisco's Murphy Pearson Bradley & Feeney, called the incident "an unfortunate accident to a very nice person."
But, he added, "if there ever was a case to apply the assumption of risk doctrine, this is it. This is person who was a well-educated man and experienced with the festival and appreciated the danger, who voluntarily exposed himself to a much higher degree of risk by walking into the Burning Man."
