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.”12
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.13
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
(a) discover that such acts are being done or are likely to be done,
or
(b) give a warning adequate to enable the visitors to avoid the
harm, or otherwise to protect them against it.14
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.15
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.16
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.17
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.18
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.19
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.”20
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 industrywide standard or custom regarding crowd safety.21
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