Rock concertgoers have suffered traumatic injuries and even deaths while attending performances. However, those who participate in such events today are much more likely to be injured by crowd surfing, stage diving, or “moshing” – activities unrelated to intentional torts like assault and battery.

Unfortunately, state legislatures have yet to pass adequate statutes describing the safety standards that all 21st-century music concert promoters and venue owners must meet while presenting programs to concertgoers. This legislative vacuum now causes many legal parties to seek settlements – instead of letting cases be presented to trial juries. In other cases, the insurance companies just flatly deny any type of recovery on questionable legal grounds.

Before reviewing the legal arguments and defenses most common in these cases will help to provide simple definitions for the concert activities referenced above.

• Stage diving. Either a concertgoer or member of a performing band will leap from the concert stage into the crowd – expecting to be lifted above the heads of everyone and moved about for an uncertain distance while the music is playing;
• Crowd surfing. This looks a lot like stage diving – however, it doesn’t begin with someone leaping from a stage. Instead, concertgoers leap up into the air – or are lifted there by friends – hoping they’ll be moved about above everyone’s heads as though “surfing” above the crowd. This activity ends when a person voluntarily jumps down — or people drop the person accidentally. Sometimes, the groups are so thick with bodies forcefully moving around that they can’t keep their arms raised long enough to continue supporting the surfers;
• “Moshing” or mosh pit activities. In general, “moshing” is a type of rough dancing with others that may include thrusting or hurling your own body up against someone else’s while the music is playing. Actual separate areas are sometimes provided for this activity called “mosh pits.” In other cases, concertgoers just claim space near their seats and start dancing in this manner.

A general review of the legal arguments and defenses often put forth in crowd surfing and other concertgoer injury cases.

Defendants’ Negligence

Most plaintiffs in these cases will usually allege that the performing bands, the venue owners, and the security teams failed to adequately warn and protect all concertgoers against various dangers. Some of the most persuasive negligence arguments include claims that the defendants used festival seating and general admission tickets. These practices are more likely to produce crowd-crush injuries, and fewer barriers as those in attendance push forward, trying to get closer to the stage area. Open spaces are easier to develop, allowing many free-spirited concertgoers to simply begin “moshing” or dancing wildly near others.

Other common negligence arguments may include statements that the venue failed to provide adequate on-site medical care and/or the proper means for quickly transferring injured parties to nearby medical facilities.

Plaintiff’s Assumption of the Risk

In response, the defendants will try to shift the burden of care onto the plaintiffs by claiming that they are responsible for their own injuries – since they assumed the risk of potential harm when they decided to attend the concert (or when they decided to take part in some of the more dangerous behaviors).

• Ticket warnings. Concert promoters often print warnings in small print on the backs of the tickets sold to those attending, telling them about all the dangers they may encounter during musical performances;
• Signs are posted, or flyers are handed out. Venue owners may post signs or hand out flyers at the concerts warning concertgoers to refrain from certain activities.

Of course, courts are often hesitant to find that these warnings are adequate or that the average concertgoer can fully understand what types of risks they are said to be assuming.

Likewise, it’s often considered against public policy to imply that parties attending any type of public event have waived all rights to later bring lawsuits for their injuries. In addition, plaintiffs may convincingly argue that since they did not sign these warnings, they did not give their consent.

One or more legal scholars have now suggested that concert promoters might want to sell special tickets –requiring signatures — for those wanting to enter the “mosh pits.” However, this could provide added security problems and create long lines for those entering and exiting these areas.

Of course, the defendants’ insurance companies may set forth several common or novel arguments, hoping to avoid paying most claims. For example, an insurance company may simply allege that all injuries result from simple assaults and battery.

When that happens, the lawyers must clearly plead facts indicating whether the harmful acts were intentional – or even foreseeable – given the dangers of allowing large energetic crowds to indulge in highly physical activities.

Unfortunately, lobbying groups in California and other states have banded together to try and prevent legislatures from codifying standards for the concert industry – perhaps hoping this might help reduce the number of lawsuits and the amounts eventually awarded. California Senator Nell Soto’s Concert and Rave Safety Law was defeated, even though it proposed the creation of specific safety standards and sought to establish a reliable injury-tracking system for concerts.

Since legislative support is lacking, many plaintiffs and their lawyers have looked to spectator sports lawsuits, hoping to make similar arguments regarding injured concertgoers. However, the case law supporting injured parties at baseball games and racing car events doesn’t translate well to concertgoers’ injuries. The risks involved in those activities are widely known and recognized by most public members – unlike what some concertgoers find at today’s constantly changing concert venues.

Furthermore, baseball stadiums and racing car venues now have lengthy experience providing protective nets and restraining walls to protect those attending their events. So, there is little helpful case law to inform plaintiffs with concertgoer injuries since their venues are noticeably different.

• A minimum legal safety duty to the public was not met. Precautionary steps were not taken to protect the public from reasonably foreseeable dangers.
• Limited knowledge of dangers can be presumed. All modern concertgoers do not fully know all the possible risks that may develop in every venue. Different music bands can present their own unique safety challenges;
• Inadequate warnings were provided. Unless a plaintiff was required to sign a fully legal waiver regarding all injuries, s/he should be allowed to fully pursue all stated claims;
• Depending on the local jurisdiction, appropriate comparative negligence arguments will be rebutted. (In the limited areas where contributory negligence standards apply, a plaintiff’s attorney will argue that the party did not contribute to the defendant’s negligence).
• The plaintiff did not at any time willingly take part in any alleged dangerous activity leading to their own injury.

If you’re suffering from any type of concert injury, our firm is ready to review your case so we can file a lawsuit to compensate you for your medical expenses, lost earnings, pain and suffering, and other financial losses. Call our Sacramento personal injury attorneys at (916) 921-6400 or (800) 404-5400 for free, friendly advice.

Our firm’s attorneys have established a strong reputation for winning generous verdicts and settlements for clients like you.

You can learn more about how our firm handles personal injury cases by visiting www.autoaccident.com.

^{Editor’s Note: updated [cha 7.13.23] Photo by William White on Unsplash eBs bw [cs 1530]}