According to Tim Sandefur (Aug. 6), musician John Fogerty, best known for his work with Creedence Clearwater Revival, in April of last year “prevailed in a lawsuit brought by an audience member who alleged that Fogerty?s music was so loud as to harm his hearing at the concert. …The opinion [by Judge Martin Schoenfeld], studded with quotations from Fogerty?s songs, held that
there is no standard of care by which a jury could determine on the evidence presented that defendants had breached a duty owed to plaintiff. Without knowing what is ?too loud,? and without knowing how loud the concert actually was, a jury would have to engage in double speculation to conclude that defendants? music was ?unreasonably loud.? Second, the doctrine of primary assumption of risk bars the instant action.
Finding no relevant cases in which concertgoers had been allowed to sue over excessive volume, the court also noted:
Surely this dramatic absence of litigation, in what is perceived to be such a litigious nation, speaks volumes to the fact that the principle applicable to the social compact governing the volume at Rock & Roll concerts is caveat emptor…. Litigation by an ?eggshell ear? plaintiff is not an appropriate means to impose an unlegislated noise code upon performers…and their legions of screaming fans….
The case cite (per Sandefur) is Powell v. Metropolitan Entertainment Co., Inc., 195 Misc.2d 847, 849 n. 1 (N.Y.Sup. 2003).
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