Burning Man fire victim's suit goes up in smoke CALIFORNIA SUPREME COURT

Fireworks and flames marked the burning of the man as thousands watched on the playa Saturday night as the centerpiece of Burning Man 2005, September 3, 2005 in the Black Rock desert. Fireworks and flames marked the burning of the man as thousands watched on the playa Saturday night as the centerpiece of Burning Man 2005, September 3, 2005 in the Black Rock desert. Photo: Chris Stewart, The Chronicle, 2005 Photo: Chris Stewart, The Chronicle, 2005 Image 1 of / 1 Caption Close Burning Man fire victim's suit goes up in smoke 1 / 1 Back to Gallery

The state Supreme Court has refused to reinstate a lawsuit by a man who approached the flames at the Burning Man festival and got burned.

The justices voted unanimously Wednesday to deny review of an appeal by Anthony Beninati, who sought damages from the promoter of the annual celebration in the Nevada desert.

Beninati, a real estate manager from Los Angeles, was badly burned at the September 2005 event in Black Rock City, Nev. He was making his third visit to the weeklong festival, which ends with the torching of a 60-foot wood sculpture.

Once the Burning Man topples, some participants throw objects into the bonfire. Beninati approached with the photo of a friend who had recently died in a motorcycle accident.

He walked 7 to 10 feet into the burning embers, with flames on either side of him, threw in the photo, took a few more steps forward, then tripped - over a hidden obstacle, he said - and fell into the fire.

He was badly burned on his hands and legs and was airlifted to a hospital.

Beninati's suit accused Black Rock City LLC, the San Francisco-based promoter, of negligently allowing people to approach the fire without safe pathways.

In a June 30 ruling, the First District Court of Appeal in San Francisco said anyone who takes part in an event with obvious dangers - downhill skiing, mountain climbing or walking up to a bonfire - knowingly risks injury.

"The risk of falling and being burned by the flames or hot ash was inherent, obvious and necessary to the event," the court said in a 3-0 decision that upheld a judge's dismissal of the suit.

Evan Marshall, Beninati's lawyer, said Thursday that suits by people injured in risky activities have been dismissed in the past only when the plaintiff was in a dangerous profession, such as law enforcement, or took part in a hazardous sport.

Marshall said a jury should have been allowed to decide whether the promoter of a cultural event used reasonable care to protect participants from preventable injuries.

The case is Beninati vs. Black Rock, S175409.