Teenage Wasteland: Assumption of the Risk of Crowd Crush Injuries


	This article appeared in the November 2004 issue of the Maryland State Bar Association "Bar Bulletin"

Teenage Wasteland: Assumption of the Risk of Crowd Crush Injuries

Steven A. Adelman

Steve Adelman is an IAAM member and a frequent presenter on risk management issues for owners and managers of sports stadiums and arenas and performing arts venues. His practice includes venue safety, transportation law, products liability litigation and commercial litigation.

It is basic tort law that for a person to assume the risk of their own harm, they must first know of the risk and understand the danger it poses. This doctrine is tested continually at rock and alternative music concerts that feature general admission, or "festival" seating. At such concerts, where the highly coveted area closest to the band is available to anyone who can squeeze in there, the danger of being crushed in the crowd has been known since at least 1979, when 11 people in Cincinnati died trying to get into a concert by The Who.

Despite the danger of cramming a lot of people into a small amount of space, organizers keep offering concerts with festival seating, and fans, particularly teenagers and young adults, keep buying tickets. Even Cincinnati recently rolled back its own ban on festival seating events after 25 years. And 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, or even where the crowd is packed so tightly that the victim is crushed and stops breathing while still standing up.

One important legal issue in crowd crush cases is the extent to which the victim assumed the risk of his or her own injuries, thereby exonerating the concert organizers. 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 they knew of the risk. In a crowd crush case, organizers will ordinarily point to any warning signs they posted, or to exculpatory language on the back of the concert ticket, as evidence of the victim's knowledge of the risk. 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 or she should have appreciated the danger. Important considerations may include whether the victim could tell that the crowd 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 area can become dangerously overcrowded in a matter of moments.

Second, the demographics of rock and alternative music concerts present a two-edged sword. On one hand, the victim may be an underage drinker who used a fake ID to buy beer at the show, and who may have been intoxicated at the time they were crushed. 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 demographic for the concert organizers, the onus will be on them to have reasonable methods of catching fake IDs, limiting alcohol sales, identifying intoxicated patrons, and providing crowd management which starts from the presumption that many people in the festival seating area may be impaired.

The issue of underage drinking is particularly thorny. While it may be tempting to blame the victim for getting drunk and engaging in dangerous activity, the law generally protects minors from their choices, precisely because minors lack adults' ability to make good decisions in risky or dangerous situations.

Finally, if the concert organizers had the last clear chance to protect the victim, then 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 they reasonably should have seen the risk and taken action to prevent the harm, then they are required to have done so.

In short, the risky behavior of festival seating participants, including underage drinking to the point of intoxication and moving close to the stage despite warning signs, invites defendant concert organizers to argue assumption of the risk. For that argument to carry the day, the organizers must show that they did much more than just hire the bands, sell the beer, and hope for the best.