Won’t Get Fooled Again: Litigating Crowd Crush Cases

Steven A. Adelman

In 1979, the British rock band The Who sold out its December 3 concert at Cincinnati’s Riverfront Coliseum. All 20,000 tickets were general admission – every seat and all the standing room was up for grabs. When the promoter opened the doors, the waiting crowd rushed the entrance to get the best positions inside. The result was pandemonium.

“When a person fell, it created a vacuum, and the people on the bottom could not get up,” said one survivor. Eleven fans were crushed to death.

From 1992 through 2002, there were 232 deaths from crowd-safety failures at concerts and festivals around the world, and more than 66,000 people were injured. During a single week in 2003, a stampede to exit the E2 nightclub in Chicago left 21 dead by asphyxiation or heart attack; 100 others died either trying to escape or from injuries after they escaped a pyrotechnics fire at a Great White concert at the Station, a club in West Warwick, Rhode Island.

Yet, rather than working to prevent further deadly incidents, the concert industry – taking its cues from such megastars as Bruce Springsteen and U2 – embraced the overcrowded conditions that lead to these disasters.

Lawyers who handle crowd crush cases must understand at least five important facts:

• Leading authorities have named festival seating the principal culprit in most crowd crush cases.

• Even “respectable” artists now demand festival seating at their shows.

• The documented history of problems makes foreseeability the linchpin of any legal analysis of a crowd crush case.

• Entering the festival seating area to get close to the band does not mean that the person who is injured when doing so assumes the risk of severe injury or death.

• The defendants will probably include media behemoths that can spend lavishly to defend their policies.

The National Fire Protection Administration’s (NFPA) Life Safety Code, NFPA 101, defines festival seating as “a form of audience/spectator accommodation in which no seating, other than a floor or ground surface, is provided for the audience/spectators gathered to observe a performance.” That people get hurt in festival seating areas comes as no surprise to these experts. The NFPA says festival seating at live entertainment events should be “expected to result in overcrowding and high audience density that may compromise public safety.”

The meaning of “overcrowding” is set forth in the National Building Code published by the Building Officials and Code Administrators International (BOCA), which specifies that the “occupant load of any space or portion thereof shall not exceed one occupant per three square feet … of occupiable floor space.”

Jake Pauls, a safety consultant and member of the NFPA Technical Committee on Assembly Occupancies, has a simple explanation for the crowd dynamic in a festival seating area: “People caught in a crowd crush behave as a liquid. No individual can control his or her movement or assist others close by.” Outsiders can do little to help victims in crowd crush situations.

Festival seating may be relatively harmless for small crowds, or for larger crowds with enough space to spread out. But the combination of big crowds in small spaces leads to disaster.

Three weeks after the incident at The Who’s concert in 1979, the Cincinnati city council banned festival seating at all venues within its jurisdiction. But elsewhere, promoters continued to sell tickets for open floor space in front of bands, with tragic results.

Despite its dangers, festival seating has become more appealing to mainstream performers. Cincinnati, for example, lifted its 23-year ban on festival seating at the insistence of mainstream rock-and-roll icon Bruce Springsteen. Inspired by the band U2 – which sells out stadiums and arenas around the world and will not sign a contract with any venue unless it permits festival seating – Springsteen decided he could raise his performances to new heights if more of his fans were closer to him. He “really liked the energy, liked the vibe” at a U2 show, explained the general manager of the Cincinnati arena where Springsteen performed.

Corporations that promote and produce rock concerts also downplay the risks, at least when bands they promote are playing. A typical comment comes from the editor of a concert industry magazine, defending U2’s use of festival seating by saying that it is a problem only for some bands: “If there is a band that can pull off festival seating safely, it is U2. Their crowd isn’t going to be as volatile as, say, a Red Hot Chili Peppers crowd.”

Foreseeability of Harm

Crowd crush cases are grounded in basic tort law, especially the foreseeability of harm. Injured concertgoers will prove their case if they are in the class of people to whom any defendant has a duty of care; that defendant breached its duty; there is a causal link unbroken by a third party in the crowd; and the concertgoers were harmed as a result.

Although few reported decisions have arisen specifically from concert injuries, there is relevant authority. Crowd crush cases turn largely on one of the most venerable of all tort decisions, Palsgraf v. Long Island Railroad Co. In that case, a woman was injured when a package full of dynamite exploded at a railway station. The court ruled that the defendant did not need “notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.”

Applying Palsgraf’s foreseeability-of-harm requirement to the festival seating scenario, the question is: Who reasonably could have foreseen a person’s being crushed in the densely packed crowd and therefore had a duty to try to prevent the risk? Typically, the defendants include the owner and operator of the concert venue, the concert promoter and/or producer, the security company for that specific event, and the performer onstage at the time the person was injured.

The concert venue

A key defendant is the venue itself, whose duty of care is well established by law. The venue bears a dual burden for crowd safety: It is liable for any injuries caused by a hazard the venue itself creates and for negligently failing to remove a hazard created by others, once it has either express or implied notice of the hazard.

This second burden is particularly important in crowd crush cases because the danger, at least in a sense, is created by third parties. The most direct risk to the victim is the too-close proximity of other fans. Because crowd crush injuries have occurred with some frequency, they have become foreseeable to the concert industry, which establishes a venue’s duty to take reasonable precautions.

The Restatement (Second) of Torts underscores a venue’s common law duty to prevent harm from dangers created by others. Specifically, A7344 addresses crowd security.

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to:

• discover that such acts are being done or are likely to be done, or

• give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. (Emphasis added.)

Injuries are clearly a foreseeable consequence of crowding people together, and venues that profit from large crowds owe a “duty of reasonable care to business invitees” on their premises.

The promoter

At a professional wrestling exhibition in Raleigh County, West Virginia, wrestler “Sweet Stan” attacked a spectator he thought had thrown an object into the ring while the wrestlers were trying to incite the crowd. The spectator and his wife sued to recover for his injuries. The court held that if the promoter had instructed the wrestler to provoke and incite patrons, then the promoter was liable because such provocation would foreseeably result in fights and injuries.

Similarly, both the owner-operator of Independence Hall – a Baton Rouge, Louisiana, concert hall – and the promoter of a rock concert held there ignored the foreseeable risk of harm by keeping the house lights off at intermission. The court found that they breached their duty of care to a woman who fell in a dark hallway at a time when they should have reasonably expected patrons to visit the snack bar or restrooms.

The crowd security company

The security company’s ability to foresee harm should be informed by the history of problems at other, similar events. In the West Virginia wrestling case, for example, the head of the security company admitted that, based on his experience with professional wrestling shows, even he thought the 12 security guards his company provided were not enough.

An early request for production should yield any personnel-training manual, policy and procedure guide, and hiring criteria. If a gym membership and an impressive physique are enough to get hired for a concert security job, the jury should know that this is the extent of the security company’s regard for concertgoers’ safety. If the event was videotaped, either by the promoter or someone in the crowd, the footage will show how difficult it is for a security person standing outside the festival seating area to see if someone is being hurt inside.

The artist

The artist’s duty of care is based on the grim history of festival seating. After hundreds of deaths and thousands of crowd crush injuries, no performer can credibly say that such occurrences are unforeseeable. As a practical matter, performance contracts contain the occasional nugget regarding the duty of care. In a pending federal case, for example, a rider to the contract between the artist and the promoter states that the promoter assumes the duty of protecting the producer, the artist, and the patrons. But the artist did not pass his entire duty of care to the promoter. The same rider defines breach of contract and lists inadequate security as a breach. If the artist or his crew had decided that security was insufficient, he could have refused to perform.

Denying the performer’s motion to dismiss based on the absence of a duty of care to his fans, the district court made two significant observations: The duty turns on the nature of the contractual duty and the ‘special relationship’ created between the tortfeasor and the injured party. There is no categorical bar against imposing a duty on a singer to a concertgoer.

In other words, although the performer might argue that he stopped playing once it was obvious from the screaming and crying that people were getting hurt, the fact that he did not exercise the authority negotiated for him in his own contract is itself compelling evidence that he breached his duty of care.

Besides claiming that each possible defendant is individually liable, you can link the parties that put on the concert by showing that they jointly controlled the risk. Several types of joint control can give rise to a duty for each party. The classic of action” might be written into certain contracts, such as provisions allowing several parties to independently assess crowd safety, or it can be proved through evidence of parallel behavior that implies tacit agreement or cooperation. Or the defendants might all have followed an industry-wide standard or custom regarding crowd safety.

The Victim’s Role

As in any lawsuit, humanizing your client is essential. In a concert injury case, you may face more of a challenge getting the jury to focus on your client as a person who was simply standing where he or she was allowed to be, doing what he or she was supposed to do. If the defendants try to blame the plaintiff, it is vital to argue that the victim did not assume the risk of being crushed in the festival seating area and did not engage in comparative negligence.

For a victim to have assumed a risk, completely barring recovery, he or she must have knowingly and voluntarily accepted the risk that caused the injury. For example, an entire body of case law denies recovery to fans hurt in the stands at baseball games because courts have concluded that the risk of harm is so “open and obvious” that anyone watching a game should know that he or she risks being hit by a ball. Since spectators can ensure their safety by staying in the screened area behind home plate, sitting anywhere else in the ballpark implies that the fan weighed the odds and made an informed choice. The defendant in that scenario bears no further duty.

But festival-seating concertgoers are different from baseball fans. At a ball game, the assumption of risk bars any recovery because the risk of being hit by a ball is a “customary part of the sport.” Getting crushed by a crowd to the point of asphyxiation does not occur with the frequency, or fair warning, of getting hit by a foul ball. Yet even if concert disasters were more common and well publicized, that would still not relieve organizers or performers of their duty of care. On the contrary, when the parties putting on the concert “should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required.”

This is the principle to cite when a defendant mentions the warning in fine print on the back of a ticket, or the hastily scrawled signs inside the arena warning fans that they enter the festival seating area at their own risk. This further duty by the defendants applies to any venue, including those that stage rock concerts or festivals, “where there is reason to expect that the invitee’s attention will be distracted . . . or that after a lapse of time he may forget the existence of the condition, even though he has discovered it or been warned.”

Similar logic applies to the defense that the victim was comparatively or contributorily negligent. To show that the victim’s injury was caused by overcrowding and inadequate security — not his or her own conduct — you must establish that your client could not find a “place of safety,” or that overcrowding restricted his or her free movement.

In other words, no place in the festival seating area was safe, so it did not matter where in the crowd your client stood. Ready support for this proposition is in the NFPA’s Life Safety Code and the BOCA code, which says that the lack of adequate room to stand or move exposes patrons to the possibility of being crushed in the crowd anywhere in a festival seating area.

Defendants in crowd crush cases will probably have big names with big litigation budgets. While festival seating can exist anywhere there is no reserved seating, injuries are more likely in the bigger concert crowds at larger venues. Odds are, you will be taking on juggernauts like Clear Channel Communications, Infinity Broadcasting, or a municipal stadium authority.

If a radio station co-promoted the concert, as is often the case, you may face Clear Channel Communications. According to its website, the company owns, programs, and sells airtime for over 1,200 radio stations in the United States.

Another likely defendant is SFX, a Viacom subsidiary that owns 44 U.S. amphitheaters and boasts on its website that a “staggering 62 million people attend over 26,000 events” it promotes or produces each year. Given these companies’ huge income and the muscle of corporate parents like Viacom backing them up, you could be waking a sleeping giant.

Crowd crush cases may offer drama, but they are fundamentally simple, based on facts that should be self-evident: Overcrowding leads to injuries; a party that can reasonably foresee harm has a duty to prevent it; and where powerful interests insist on pursuing a dangerous practice like festival seating, the victims are truly protected only by their lawyers.