Teenage Wasteland
~Assumption of the risk of crowd crush injuries~
By Steven A. Adelman

It is basic tort law that for a person to assume the risk of his own harm he must first know of the risk and understand the danger it poses. This doctrine is tested continually at rock concerts that feature general admission, also known as “festival” seating. In this concert seating style, fans are not assigned a seat but are free to enter the stadium or arena and roam as close to the stage as possible. At such concerts, the danger of being crushed in the crowd has been known to concert organizers since at least 1979, when 11 people in Cincinnati died trying to get into a concert by The Who.

Despite the danger of cramming many people into a small amount of space, organizers continue to offer concerts with festival seating. These concerts, usually co-sponsored by a beer company, provide a recipe for disaster when alcohol is flowing and crowd-management concerns are ignored. Unwitting concertgoers – particularly teenagers and young adults – continue buying tickets without any knowledge of the dangers posed by festival seating. And in consequences foreseeable to concert organizers, fans keep getting hurt.

Compressive asphyxia, or crowd crush, can occur when the crowd falls on top of the victim because there is not enough space to stand. At some concerts, the crowd becomes so tightly packed that the victim is crushed and stops breathing while still standing up.

In crowd crush cases, the defendants traditionally raise the assumption of the risk defense. Essential questions in this analysis include the following:

Did the victim know of the risk?
Did the victim’s condition prevent him or her from appreciating the danger?
Did the organizers have the last clear chance to prevent the harm?

First, for an injured plaintiff to have assumed a risk, the defendant must show that this victim knew of the risk. In a crowd crush case, organizers will ordinarily point to any warning signs that they posted or to exculpatory language on the back of the concert ticket as evidence of the victim’s knowledge. The adequacy of any warning depends on its size, readability, specificity and placement. Blanket disclaimer language such as that the patron “proceeds at his own risk” does not, by itself, prove the existence of a waiver because a party’s intention to contract away another party’s liability must generally be expressed in clear, unequivocal terms by both parties. The effectiveness of a warning is generally a question for the jury.

Some organizers might contend that because the victim could see that the crowd was densely packed, he should have appreciated the danger. Important considerations may include whether the victim could tell that the space was dangerously overcrowded in time to get out, whether there were adequate means of egress, whether any crowd management personnel were close enough to provide help and whether the situation was dangerous at the time the victim entered the festival seating area. Particularly regarding this last point, people experienced with concerts can reasonably foresee that one consequence of a good headline act at a festival seating event is that fans will move as close as possible to the stage. In other words, an area that feels tight, but safe, can become dangerously overcrowded in no time.

Second, the demographics of rock music concerts present a two-edged sword. On one hand, the victim may be intoxicated or even be an underage drinker who used a fake ID to buy beer at the show. These appear to be compelling facts in favor of an assumption of the risk defense. On the other hand, if inexperienced drinkers who are a few years on either side of the legal drinking age are the target audience for the concert, then the onus will be on the organizers to have reasonable methods for monitoring alcohol sales, catching fake IDs, identifying intoxicated patrons and providing crowd management, which starts from the presumption that many people in the festival-seating area may be impaired. The people who put on rock and alternative music shows know that there are plenty of teenagers present – and in light of the beer sponsors’ banners draped over the stadium and the scant attention to fake IDs, underage alcohol consumption is highly foreseeable.

Finally, if the concert organizers had the last clear chance to protect the victim, they will be held liable for the resulting harm. Even if the organizers did not actually know that the victim was oblivious to the danger, if the organizers reasonably should have seen the risk and taken action to prevent the harm, then they are required to have done so.

In short, concert organizers are well aware of the risks of festival seating at rock and alternative music concerts. They know that fans push forward in the crowd as the headline act takes the stage. Organizers must take well-defined steps to prevent overcrowding and the inevitable injuries that follow. The frenetic behavior of festival-seating participants, including drinking to the point of intoxication, invites defendant concert organizers to argue assumption of the risk. For that argument to carry the day, however, the organizers must show that they did much more than just hire the bands, sell the beer and hope for the best.