Six months after AEG Live was found “not liable” in the Michael Jackson wrongful death lawsuit, another AEG subsidiary, which owns and operates the Staples arena in downtown Los Angeles, faces a legal showdown over a fatal accident there.
In a blistering reversal of earlier lower court rulings, a California appeals panel has ordered LA Arena Company to answer charges of negligence and unlawful business practices in the death of toddler Lucas Tang, who fell out skybox at Staples four years ago.
Alleged deficiencies in the front-row safety barriers, including their low height, figured in the family’s appeal.
“The company always knew that the barriers were constructed in a dangerous way,” Scott Wellman, an attorney for the Tang family said. “Their own witnesses testified that people would stand or sit on them. And still no one at Staples did anything to make them safer.”
In her first public interview, the victim’s mother, Hoai Mi Nguyen, expressed hope that the case might have the positive result of forcing changes in safety procedures at public venues everywhere. “The past has happened and there’s nothing we can do to bring Lucas back,” she said. “If this case is what it takes to prevent [similar accidents], I don’t want this to happen again to anyone else.”
Neither AEG’s spokesperson nor LA Arena’s attorneys responded to requests for comment.
LA Arena and AEG live, the promotion company exonerated in the Jackson lawsuit, are both offshoots of the Anschutz Entertainment Group, the sports and special-event giant. AEG recently won a contract to run the city-owned Los Angeles Convention Center, based in part on its record in managing Staples and the adjacent LA Live theater complex.
Jackson died at his Los Angeles home from medical complications in June 2009 while preparing for a concert tour arranged by AEG Live. A jury rejected his family’s claim that the promoter had hired a doctor-caretaker whom it knew to be incompetent.
The death of Lucas Tang resurrects issues of public safety at Staples that were first investigated by NBC’s affiliate in Los Angeles seven years ago. The station reported that during the final phases of Staples’ construction overworked city inspectors had failed to fully document whether certain fire safeguards were effective.
Frivolous and Patently False
The Tang ruling, handed down on February 13, simply grants Lucas’ parents the full-dress trial the lower court had denied them.
But the three judges who made up the review panel hammered LA Arena for offering “frivolous,” and “patently false” arguments in earlier proceedings, scolded trial Judge Susan Bryant-Deason for contradictory rulings on undisputed facts, and left little doubt that the evidence as they see it points to inadequate and unlawful safety features in Staples’ skyboxes.
The judges were particularly critical of Staples’ owner for not taking steps to prevent what they saw as a foreseeable accident. “As a landowner, LA Arena is not entitled to ‘one free fatal plunge’ before its duty to act in the face of a known danger is triggered,” the appeals panel declared.
In order to win damages at trial, the Tang family must show that LA Arena was at least partially at fault for Lucas’ fall from a front-row beverage bench, which was part of the safety barrier. The company has argued all along that the barriers were code-compliant and that Lucas’ mother, Hoai Mi Nguyen was solely responsible for what happened.
“There is no connection between LA Arena’s acts or omissions and Lucas’ death,” Dana Fox and Jeffry Miller, attorneys for the company, wrote in their appeals brief.
“Lucas was under the supervision of his mother when he fell,” they argued. “LA Arena had no control over Nguyen’s decision to place Lucas on the beverage bar.”
The accident occurred on the night of November 21, 2012, while the family was celebrating a Laker’s victory over the Golden State Warriors, which they had just witnessed from a third-tier skybox.
As the other guests, including Lucas’ father, Henry Tang, moved to the rear of the luxury suite, his mother, Ms Nguyen, placed the toddler on the beverage shelf at the end of the center aisle. She was intent on snapping photos of him against the backdrop of the arena.
The shelf was attached to a pony wall 16 inches high. The combined structure extended across the front of the skybox and was topped by a vertical Plexiglas shield of varying height. The entire assembly, including the glass and supporting wall, was known to regulators as a “guardrail” or “safety barrier.”
At the foot of the aisle, where Lucas was perched, the vertical glass was 35 inches wide and high enough to reach to his armpits, providing more than enough protection to keep him from toppling off the shelf and into the arena.
But to his right the glass dropped to just 10 inches along the section of the barrier and beverage shelf directly in front of seating area.
Ms Nguyen positioned Lucas on the shelf against the taller glass, within arms-length, and began taking pictures with her iPhone.
“I was holding the camera and I took the last picture of him,” she testified, “and I glanced at the fourth picture. When I glanced up to take the next one. I noticed he wasn’t there.”
In the wink of an eye Lucas had somehow slipped to his right, to the section of shelf with the 10-inch glass shield, and had tipped over it. A police report says she caught sight of a foot as he went over.
According to her testimony she screamed, “Lucas fell!” The child later died from the multiple injuries he sustained in the 25-foot fall to the stadium floor.
Denial of Trial
Faced with a lawsuit from the stricken family, LA Arena argued that the mother bore responsibility for her son’s death through negligent behavior, that Staples owed no “duty of care” to her or her family, and that the safety barriers complied with all applicable legal regulations.
Imposing a “duty of care” on the company, its lawyers argued, “is particularly unacceptable where, as here, the landowner acted in conformity with the law.”
But during a pre-trial deposition the city inspector responsible for insuring Staples’ code compliance found fault with the barrier’s construction and the beverage shelf.
Ken Gill, Assistant Engineering Bureau Chief of the LA Department of Building and Safety had been assigned to conduct the final “plan check” for Staples in 1999 when it was being built. He testified that he’d never received the design plans for the barriers from Staples’ owners and had never seen them before the arena opened for business in early 2000.
If he had, he said, he would not have approved them under existing building codes since “somebody can climb over this beverage bench and your effective guardrail height will be reduced from 26-inches to whatever dimension is shown here, about 10 and (one)-quarter-inch.”
The state and municipal codes he was referring to set a minimum height requirement of 26 inches for front row safety barriers in the balconies of public venues like Staples. The key question in the Tang case was where that measurement was to start from.
Lawyers for LA Arena insisted that the appropriate standard was from the foot of the safety barrier (the floor of the skybox) to the top of the glass shield and that the entire assembly where Lucas fell met the 26-inch requirement.
But in a sworn declaration, a building safety expert named Terry Knox who helped write the California Building Code testified that the measurement had to start from any climbing or walking surface. He said that the beverage shelf itself was just such a “footboard,” and that the 10-inch glass shield rising above it was not high enough to meet code requirements.
He also accused LA Arena of committing an additional code violation by failing to provide proof that the completed safety barrier had been approved and inspected by the LA Department of Building and Safety.
A senior LADBS inspector, Richard Fortman who helped monitor Staples’ construction, could not recall inspecting the disputed safety barriers and did not know anyone who had. He also acknowledged that LA Arena should have such inspection records on file if they exist, since his own department doesn’t keep them.
An expert on workplace safety, Gary Buffington, testified that California occupational safety and health (OSHA) regulations set an even tougher height standard for balcony guardrails – at least 34 inches. By this measure, he said, the 10-inch glass is both “dangerous” and an OSHA violation.
He also faulted LA Arena for not installing a catch net to prevent fatal falls and for failing to post signs warning of the danger of sitting or standing on the shelves.
LA Arena’s own star witness. Staples General Manager Lee Zeidman, didn’t do much to soften these broadsides. In a deposition he admitted the beverage shelves are “dangerous,” and that spectators do sit and stand on them. He also conceded that he “never took any action” to prevent such conduct, including the posting of warning signs, since no one had ever fallen from the skyboxes and he didn’t think such precautions were necessary.
When asked if the city had ever approved the safety barriers, Zeidman replied, “I’ve seen documentation.” But later he reversed himself and acknowledged “I don’t recall.”
LA Arena Absolved
In the end, LA Arena could offer no proof that the barriers had ever been submitted for approval or certified code-compliant by the city.
But in one of her first rulings, the judge dismissed a code-related claim from the family on grounds that their lawyers had failed to name the specific codes being violated. She also ruled that they could not amend their filings to correct this omission.
She then granted a summary judgment motion from LA Arena and used it to obliterate what remained of the Tang’s case.
She sustained without individual consideration 109 blunderbuss objections by the company to every piece of evidence offered by Tang’s witnesses or contained in accompanying exhibits. Many of the objections extended to facts that the company had previously accepted as undisputed, such as the Tang’s description of skyboxes and Zeidman’s acknowledgement that patrons often sit on the beverage shelves.
In considering whether the company had a “duty of care” to the family, she brushed aside precedents calling for a jury determination of such fact-laden questions.
Instead, according to the family’s appeals brief, she took it on herself to rule “as a matter of law that Nguyen’s conduct absolved LA Arena of any duty to maintain a safe and code-compliant barrier.”
Disqualify the Judge
Throughout the litigation the judge’s rulings were so consistently one-sided that at one point the family’s lawyers asked her to disqualify herself. They based their plea on evidence that she and her husband, a film producer, have an on-going business relationship with another AEG subsidiary, the Regal Entertainment Group, the largest owner of movie theaters in the United States.
Among its holdings are the Regal, Edwards, United Artists and Consolidated Chains, with almost 7,000 screens in 39 states. This arrangement, according to the family’s counsel, “generated millions of dollars in profit for both Regal and Deason’s studios “while this case was pending before Mr. Deason’s wife.”
In addition, they claimed, the judge co-owns a company with her husband that provides “cast and crew talent services” for films shown in AEG-owned theaters and other venues and which earned her over $100,000 annually for several years.
When confronted with the recusal demand, Judge Bryant-Deason struck it down, and the appeals panel which reviewed the Tang case supported her decision.
“The success or failure of Deason’s films has nothing to do with Regal, which merely shows studio products,” the judges ruled.
They failed to consider whether film bookings by theater owners, and the number of screens devoted to a particular movie, might affect its popularity and the profits of the producer.
But they were careful to remind the parents in a footnote that they can make a peremptory challenge at trial to seek a new judge. And they were far less forgiving of the way the current one had handled the case itself.
They agreed with the Tangs that Judge Bryant-Deason had been wrong in disallowing one of their code-related arguments on procedural grounds and noted that their appeals brief is replete with references to applicable codes.
For this reason the panel reversed her decision to dismiss the family’s claim of “unlawful business practices” based on alleged code violations by the company. In any trial the family will be able to make liberal use – for the first time — of testimony from their code experts.
Arbitrary and Capricious
The appeals panel was equally skeptical of the judge’s handling of the 102 evidentiary objections from Staples’ owner. “Some of the objections – and the trial court’s sustaining of them — lack any semblance of legitimate legal reasoning,” they said.
“Had the trial court looked at the merits of LA Arena’s objections before sustaining them,” they continued, “it would have noticed that some of the objections are frivolous because they contradicted LA Arena’s own undisputed facts.”
The panel faulted the judge for not weighing the objections impartially, “as opposed to ruling in an arbitrary and capricious manner” and warned that “failure to exercise discretion is an abuse of discretion.”
As for the “duty of care” issue, the appeals panel decided that the judge had erred in focusing solely on the mother’s actions. Among other possible considerations, they reasoned, was the management company’s own failure to remedy a situation it knew to be dangerous.
“Once LA Arena became aware of patrons’ misuse of the shelf, it could have averted the harm by removing the shelf, or by using a higher glass barrier, or at least by placing warning signs on the shelf instructing patrons not to sit or stand on the shelf,” the panelists asserted
“Under the circumstances,” they added, “we find that LA Arena owes a duty of care to its customers”.
In reaching their decision the appeals judges relied heavily on the testimony of building official Ken Gill, in particular, his assertion that the barriers had never been submitted to the city for approval as the codes require. According to their written opinion, that testimony had convinced the judges that “LA Arena’s claim of conformity to the law is not supported by the evidence.” Moreover, they said, if a jury were invited to consider the evidence it might decide that a higher glass could have saved Lucas’ life.
While no jury verdict can be prejudged, the appeals decision insures that the next round in the Tang case will be played out on a more even field, with less deference to a landowner who has enjoyed almost iconic status in LA business and political circles.
“When a landowner invites millions of people from the community onto its property, public policy should encourage the owner to provide a safe environment and impose liability for failure to do so,” the appeals judges concluded.
The company’s attorney’s have not filed for consideration by the state Supreme Court, so a trial seems likely.
Shortly after Lucas’ death, similar accidents or near-accidents occurred at three sports arenas in Texas and Arizona, and two spectators were killed in fatal plunges involving balcony-level safety barriers similar to those at Staples. In each case the owner or management company made corrections to the barriers, increasing their height, to insure that such accidents wouldn’t happen again.
Early in the Tangs’ lawsuit, Judge Bryant-Deason rejected their request for an injunction to compel LA Arena to re-mediate the Staples barriers. But at some point during the litigation the company quietly installed metal wedges on the beverage shelves to make it more difficult for spectators to use them for climbing or sitting.
For legal reasons the family may be barred from mentioning this modification at a trial, even though it raises questions about the company’s claims that the shelves were safe in the first place.
Troubled History of Staples Inspections
In what turns out to have been a prequel to the current skybox controversy, KNBC, the NBC affiliate in Los Angeles, broadcast two reports in late 2006 and early 2007 about other inspection problems at Staples at the time the safety barriers were installed.
While building and fire inspectors had signed off on Staples’ Certificate of Occupancy in early 2000, their inspection records were incomplete for important safety equipment designed to control the flow of toxic smoke in the event of fire. What was missing from city files, and Staples’ own documents, was proof that this system had received the kind of fully executed inspection and testing normally required for the issuance of a “CO” under prevailing building codes.
Instead, there was documentary evidence that city officials at AEG’s encouragement had fast-tracked critical code-compliance checks for this and other safety features in their haste to get Staples up and running.
In one city document uncovered by KNBC, a fire inspector named Neal Reitzel, who’d been assigned to Staples in 1999 and 2000, told his superiors that “the inspection schedule established by the Department of Building and Safety and the Arena contractors was not practical or achievable in light of the time frames established and the enormity of the project.”
“There was not enough time allowed for re-testing of deficiencies to meet the proposed Certificate of Occupancy date,” he wrote.
Though he was primarily concerned with fire equipment, he complained of the “extreme hardship” of having to perform inspections during “premature occupancy” of the building before “interior construction” had even been completed. He also spoke of “numerous disruptions and delays during the testing process” and “political pressure to accommodate the arena’s agenda.”
Seven years later, building inspector Richard Fortman wrote a scalding internal memo about his own agency’s inspection procedures. He’s same official who could recall no completed barrier inspections in the Tang case. The memo didn’t mention Staples, but was clearly a response to KNBC’s reports about the arena and other projects with similar inspection problems.
“Many attacks by various media have brought to light a few relevant issues,” Fortman wrote. “Our inspectors have lost sight of the ultimate goal which is to get the property [they’re examining] completely… signed off.”
“When the Principal… Inspector reviews the permit history,” he continued, referring to himself, “we discover that many of the inspectors should never have signed off on the inspection card… as there are too many things not done.”
After KNBC began airing its Staples investigation, AEG sued the station, NBC and its producer (this reporter), for allegedly impugning the safety of the arena. In late summer 2012, as NBC was about to move for summary judgment, AEG reversed course abruptly and asked the court to dismiss the lawsuit, under conditions that left KNBC’s findings intact.
[This story was prepared as a companion piece to a video interview of Lucas Tang’s parents. It is part of an on-going series of Frank Snepp Exclusives featuring big-issue investigative stories not covered anywhere else. Yvonne Beltzer served as associate producer.]