~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 victim know of the risk?
victim’s condition prevent him or her from appreciating the danger?
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.
Steven A. Adelman is an attorney with Janet, Jenner & Suggs in Baltimore.
He practices in the areas of serious personal injury, products liability and