STEVEN A. ADELMAN and ROBERT K. JENNER

Overcrowding at concerts causes injury and death—despite industry denials. Don’t be fooled: Crowd crush cases turn on straightforward questions of foreseeability and duty of care.

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.¹ 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.² 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.³

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

Lawyers who handle crowd crush cases must understand these 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.”⁴ 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.”⁵

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.”⁶

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.”⁷ 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.⁸ But elsewhere, promoters continued to sell tickets for open floor space in front of bands, with tragic results.⁹

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.¹⁰

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.”¹¹