CROWD SURFING AND CROWD SURGING: THE FINE LINE BETWEEN LEISURE AND LIABILITY

I. Introduction

Modern-day music festivals combine the most diverse talent with the most technologically advanced, large-scale festival productions in the world.1 Music festivals continue to influence and strengthen their respective musical genres and fanbases.2 Hundreds of thousands of concert enthusiasts journey to these music festivals both domestically and around the globe.3

However, such festivals can pose devasting risks to patrons and performers alike.4 Crowd surges, also called crowd crushes, are situations where a large group of people at a concert venue begin to move chaotically and it becomes impossible for some people to escape the forces of the movement.5 For instance, on November 5, 2021, a crowd of over 50,000 patrons packed in to NRG Park for the first night of the 2021 “Astroworld” Festival.6 Astroworld Festival was a music festival launched by Travis Scott in 2018 and annually held at the former site of Six Flags Astroworld in Houston, Texas.7 As Scott took to the stage to start his set, patrons careened towards the stage in a “human stampede,” which left 10 people dead and nearly 2,400 people injured.8 Over 275 lawsuits have been filed against Scott, as well as Live Nation Entertainment, Inc. (“Live Nation”) for their mistreatments of safety standards.9 As of now, only three of these disastrous cases have resolved.10

This is not the first instance where crowds have rushed concert and performance venue stages, leaving several injured, if not dead.11 In December of 1979, “The Who” was to perform at the Riverfront Coliseum in Cincinnati, Ohio.12 The venue offered “festival seating” which equated to first come, first serve seating for the event.13 During the pre-show soundcheck, the crowd, presuming that “The Who” had begun their concert, charged into the stadium.14 This concert crush resulted in 11 deaths.15 Numerous plaintiffs filed suits against the City of Cincinnati and “The Who” for alleged wrongful deaths and personal injuries.16

Likewise, on July 21, 1983, Diana Ross held a free concert in Central Park, New York. Nearly 300,000 people attended the performance.17 Unfortunately, this initial performance was interrupted by a torrential rainstorm.18 There were no safety plans implemented for weather-related disasters.19 The storm led to the “tremendous crowd” erupting in a commotion: soaked concertgoers “started running and [] ran on top of everybody.”20 More than 100 people were injured in this stampede, thirty people were taken to nearby hospitals for treatment, and one person was seriously injured when they fell of the concert scaffolding.21

Despite the outcome of the July 21 concert, Diana Ross was given the go-ahead by the New York Parks department to redo her performance the following evening.22 While no one was gravely wounded during this subsequent event, one attendee “was knocked down and trampled upon by the even larger crowd of attendees, suffering a serious fracture to his left leg.”23

Such catastrophes that arise from “the vagaries of myriad individuals jammed together in a heightened atmosphere” have been a cause of major concern for outdoor festivals, concert venues, and the entertainment industry altogether.24 The question imposed by such horrific events is whether there is an interplay between the premises liability of venues, personal responsibilities of patrons, and the limits of free speech of performers when mass tort casualty is caused by pure human interactions between spectators and performance art?

This note will discuss the following: (1) what is premises liability and how it affected Astroworld; (2) the correlation between festivalgoers and their personal responsibilities to mitigate their own risks; (3) First Amendment speech rights for performing artists and Travis Scott’s speech patterns; and (4) finally, this note will conclude by providing reasoning as to how festival sponsors, fans, and artists themselves can work together to ensure a safe and enriching musical experience.

II. Premises Liability and How it Relates to Astroworld

Premises liability accidents occur when a person suffers a particularized injury because of an unsafe condition on a landowner or occupier’s property.25 An unsafe condition is a condition in the workplace that is likely to cause injury, such as overly congested areas.26 However, the duty of the landowner/property owner varies on whether the person injured is either a licensee, invitee, or trespasser.27 (For the purposes of this comment, it will be best to assume that all patrons of Astroworld or similar concerts are licensees who have willingly purchased tickets for attendance.)

Licensees have implied permission or consent by the owner to enter the land.28 Licensees are temporary license holders, as tickets are generally considered licenses — both non-assignable and revocable for any reason.29 Premises liability for licensees, such as concert attendees, dictates that the landowner must have a reasonable standard duty of care such that any risk of foreseeable injury is expunged, and any foreseeable injury is not caused by willful, wanton, or negligent conduct.30

When referring to premises liability for a concert venue, a reasonable factfinder31 must determine whether the injuries/death to attendee patrons was negligently caused “by failing to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition that [the concert venue] knew about or should have known about.”32 For an outdoor music festival to comply with said reasonable standard duty of care void wanton or negligent conduct, there must be a showing of proof that concert staff, patron employees, and the respective hired security team took reasonable steps to “guard customers, patrons, and other [licensees] from injury by either a crowd or one of its members through the use of ushers, guards, or other attendants, or by means of physical devices such as barricades, ropes, or railings.”33 A reasonable factfinder may or may not find that overcrowding at festivals and events could be recognized as an unsafe condition.34

A. The Foreseeability of Injury at Astroworld 2021

Astroworld and its respective patrons, Live Nation, and Scoremore Holdings, LLC., had an obligation in collaboration with the City of Houston and NRG Park35 to use “every device and employ every method sanctioned…as calculated to [e]nsure the safety of their patrons…[n]othing less could satisfy defendant’s obligation of reasonable care.”36 As such, “proprietors of places of amusement, public resort and convenience, such as theatres, [] owe a duty of great care, differing somewhat in degree, but all of a high order, to their customers to the end that they may escape injury while doing business with them.”37 While the preemptive safety plans for the Astroworld event meet such guidelines, the events of the actual date of loss speak to the alternative.

The initial safety plan for Astroworld, named the 2021 Event Operations Plan (EOP), Part 2: Security Plan, outlined the policy and procedures for restless crowds or riots.38 The instructions for event staff on “crowds exhibiting threatening or destructive behavior” strictly indicated that staff should “not engage the crowd…security AOD will determine if Law Enforcement response is necessary.”39 Furthermore, “traumatic injury resulting in death” implored additional staff to divert pedestrians away from the scene and to create a perimeter around the deceased, addressed as code “smurf.”40

Astroworld’s safety plan also failed to include any statements regarding crowd regulation or maximum crowd capacity.41 While there is no law that places a duty on “…proprietors of amusement places to prevent overcrowding of their premises[,]” the law does require that the venue “…guard against danger likely to arise therefrom.”42 Security attendants at Astroworld could not meet a constantly changing standard of care for concert-attendees when the festival grounds became overcrowded from their maximum capacity of 50,000 to a speculated 200,000 individuals.43 It became evident from opening hours that Astroworld “enthusiasm” would become a pressurized force against security teams.44

As the festival progressed, so did the rowdiness of the Astroworld crowd. Similar to the final countdown timer for New Year’s Eve events, Astroworld had a 30-minute timer prior to Travis Scott’s entrance onto stage.45 Due to the overcrowding, mixed with the expressiveness and anticipation of the event, “people compressed up against each other and were pushing forward and backward…[a]s the timer got closer to coming down to zero, it just — it got worse and worse…”46 As expressed by Robert Levine of Billboard.com, before Travis Scott’s appearance on stage, fans began jumping barriers to escape the amassing crowd, a “sign that should have alerted security that the situation was becoming dangerous.”47 According to one concertgoer, once Scott began his show, the crowd surged forward.48 Travis Scott continued his set for 40 minutes after initial reports of spectators being harmed reached first responders.49

Risk management is one of the pivotal cornerstones of business operations for concerts and other public events.50 Even though Astroworld’s event organizers failed to meet the reasonable standard of care required, other external factors plagued the festival, whereby concertgoers partially jeopardized their own safety and wellbeing.51

III. The Personal Responsibilities of Concert Patrons to Minimize Risk

Controlling crowds is a critical aspect of life safety in large assembly occupancy venue.52 While it is incumbent on concert venues and event organizers to maintain the highest expectations of safety standards, it is also incumbent on concertgoers to be cognizant of their surroundings, plan ahead, and maintain personal responsibility to minimize their own risks.53

A concert is an occasion, an event, and as such, it has its own special etiquette and “rules of engagement.”54 The main goal of concert etiquette is to establish a respectful audience that follows the guidance of the venue for both safety and self-responsibility.55 Festivals however are a different story.

Festivalgoers occasionally forgo the pleasantries of concert etiquette in favor of newfound liberties without self-control.56 Reminiscent of a “Black Friday” shopping spree, festivalgoers often disregard normative standards and rules associated with a respective event or venue, in favor of amusement and self-indulgence.57 The personal responsibility of patrons is a large factor in avoiding festival deaths, but festival organizers must be aware that irresponsible attendees can hinder what is designed to be an entertaining experience.58

All attendees at Astroworld were required to purchase their tickets off of the officialwebsite, which specifically indicated that patrons should not “crowd surf, engage in moshing, or stage diving – good vibes only.”59 In opposition to the rules and regulations laid out on that ticketing website, fans jumped barricades, crowd surfed, and broke down safety fences.60 Eight more breaches occurred prior to the concert, with an estimated 3,000 to 5,000 unpaid patrons rushing past security into NRG Park.61 The reckless behavior of the crowd to enter into NRG Park outweighed the personal responsibilities of each patron to conduct themselves in a safe manner, thereby ensuring tragedy.

Comparably, on July 4th, 1984, the City of Miami Beach held a large concert with a fireworks display.62 During this concert, a reckless fan shot off one of their own homemade fireworks, striking and burning another concertgoer.63 While speculative, had the fan who brought his own fireworks considered the safety of other persons within a dense area, the injury might not have occurred at all.

Not all tragedies regarding festival attendees stem from negligent or irresponsible attendees themselves. Sometimes, common misconceptions or rather miscommunications can sway attendees to make catastrophic decisions.64 For example, prior to “The Who”’s Riverfront Coliseum concert the awaiting crowd mistakenly charged into the closed doors m under the assumption that “The Who” had begun their first come first serve show.65In reality, the band was actually conducting their pre-show soundcheck.66

Striking that delicate balance between festival goers being more responsible and festivals being more receptive to working towards creating a safer environment for everybody may be what’s required to prevent more tragic deaths from happening further down the road.67

IV. First Amendment Issues between Artists, such as Travis Scott, and Spectators Leading to Mass Tort Casualty

Event crowd control and event management by a venue can be shaped by the character of the crowd.68 However, the actions of a performance crowd can be heavily influenced by the performer that the crowd came to see.

For instance, on July 23, 2016, singer/songwriter Gwen Stefani held a concert at PNC Music Pavilion in Charlotte, North Carolina, in a venue owned and operated by Live Nation.69 The pavilion had roughly 8,000 theater style seats close to the stage, and an extended lawn that could fill/seat roughly 10,000 people.70 After the first twenty minutes, Stefani invited her patrons to “come down a little closer so I can see you a little better [. . .] I don’t think anyone’s going to care, like just fill it in and like and you know, who cares about your lawn chairs, you can get new ones.”71 As soon as this announcement was made, patrons who were seated on the lawn, swiftly moved through the reserved area, climbing over chairs and railings, leading to a crowd crush.72 Gwen Stefani’s speech, though seemingly innocent in nature, led to tort action for sustained injuries.73 Stefani’s commentary poses a major question: Why is it important to artists to regulate their speech at concert events and festivals?

The First Amendment restricts “abridging [] freedoms of speech.”74 Simply put, the First Amendment gives Americans the right to express themselves verbally without governmental interference.75 Some forms of speech, such as symbolic speech, can be regulated.76 Symbolic speech occurs when the speaker intends to convey a particularized message and the surrounding circumstances provide a strong likelihood that the message would be understood by those who view it.77 Despite symbolic speech being considered a nonverbal form of communication partially protected by the First Amendment, symbolic speech can be linked to “fighting words,” which are not protected forms of speech.78 Fighting words are considered to be those words which “by their very utterance[,] inflict injury or tend to incite an immediate breach of the peace.”79 Some factors for “fighting words” include speech coupled with aggressive conduct, the volume of the speech, speech laced with profanities, whether the speech is communicated to a police officer or an average person, and whether the speech includes racial slurs.80

Coupled together, fighting words and symbolic speech can negatively influence others, especially when brought about by a public figure, such as Travis Scott through his “raging.”

A. Re-defining Rager Culture and Travis Scott’s Influence on “Raging.”

Rager Culture, as described by the Dallas Observer, is the “glorification of chaos and cacophony, the romanticization of transgression and moral subversion in artistic expression, especially during a performance.”81 Rager culture has existed since the late 80’s, embodying the practices associated with music genres like hardcore and punk (and more specifically, moshing and stage diving).82 Music associated with rager culture relied on heavy instrumentals to charge fans up as a form of catharsis.83 Those original elements of “raging” have since been modified to a more grotesque form.

Travis Scott and other artists have redefined rager culture by eliminating the artistic elements of “raging” and solely emphasizing chaotic elements, such as mosh pits, crowd surfing, and rebellion against authority figures – all of which stem from and are inspired by the artists’ own rowdiness and expressive nature.84 Artists today who thrive on rager culture, instead of relying on mesmerizing lyrics, beautiful melodies or rhythm once preferred by rap fans, now rage on energy and disturbed speech alone.85

The original unwritten rules regarding raging (such as assisting other concertgoers if they fall and not pulling people into situations where heavy crowding exists) do not apply in festival settings where Travis Scott is involved.86 Scott’s fans, known as “ragers,” are heavily influenced by Scott’s actions, both on and off the stage.87 As such, Scott’s actions have led to radical crowd influence and incidents of crowd aggravation and injury.88 The following incidents are just a few examples of Travis Scott’s record of reckless conduct relating to festival crowds.

In July of 2015, Scott performed at a music festival held in Chicago, Illinois, called “Lollapalooza.” After arriving to the stage 30 minutes after his set was originally supposed to start, Scott encouraged the fans to jump the barricades and rush the stage.89 Chicago officials said Scott encouraged fans to vault security barricades.90 Additionally, Scott led a call-and-response with the crowd, chanting “[w]e want rage.”91 The scene became so chaotic that officers attempted to detain Scott during his performance and Scott briefly fled the scene.92 Scott was arrested and plead guilty to charges of reckless conduct.93

Another example of Scott’s recklessness occurred during Openair Festival in Switzerland (another music festival) in July of the same year.94 During Travis Scott’s crowd surf, a young fan tried to steal Scott’s shoes.95 This prompted Scott to stop crowd-surfing and climb over a security barrier to identify the man.96 Scott spit on the fan and then proceeded to demand that the crowd “[g]et that mother[******], get him! You tried to take my shoe? You want to be a thief? [****] him up!”97 The crowd proceeded to aggressively lift the concert-goer up and crowd surf him towards the back, where he was then escorted away by security.98

Comparably, in 2017, Scott encouraged people to rush the stage at his show in Rogers, Arkansas, and, in a similar manner to the “Lollapalooza” incident, several people were injured, including a security guard and a cop.99 Scott was arrested for inciting a riot, endangering welfare of a minor and disorderly conduct.100

B. Travis Scott’s Influence over Astroworld 2021

On December 9, 2021, Travis Scott publicly addressed the Astroworld tragedy.101 He asserted that he could not hear the screams from audience members begging him to stop the show as he had “music in his ears.”102 Scott contended that he was not in control of the performance and that the show would end “right after the guests get on stage.”103 Other than this message, Scott asserted that he did not receive any other communications (such as “smurf calls”).104 Scott’s claims of ignorance to the matter, rather than providing answers to concerned questions, create more opportunities for similar tragedies to occur in the future.105

However, over the years, Travis Scott has glorified images and videos of his fans crashing security gates in order to gain access into his concerts.106 Travis Scott’s history of discourse incited his fans to ignore the Astroworld rules and regulations and instead barge through security gates and fences to enter into NRG Park to see his performance, thus setting the stage for catastrophes that would wreak havoc on the event.107 By not regulating his speech both in-person and through the internet, Travis Scott has influenced his festivalgoers to “rage,” skirting pre-determined rules set forth by venues that protect against foreseeable harm.

It is important for artists to regulate their speech at concert events and festivals because artists have the most influence and authority over their crowd.108 With just a few words in between songs, the artist could have more of an impact on the crowd than any authoritative figure.109 A performer’s words have great impact: they can be used in numerous circumstances, such as halting performances to assist fans in medical distress, express concerns about overcrowding, and ultimately prevent what could be massive tort injury or casualty.110 Unfortunately, the Astroworld tragedy is and will continue to be an example of an artist’s failing to prevent festivalgoer harm.

V. Conclusion and Solutions

There is no perfect answer that will truly solve the issue of crowd surges and crowd control at festival events.111 Theoretically, artists can pre-script their events not only with what songs will be performed, but what comments will be made on stage as well, further ensuring that concertgoers will not be subject to any potential words or statements that could create an unreasonable zone of harm. Likewise, those in attendance of the event should be aware of their surroundings to avoid creating their own harms (maybe avoiding the occasional mosh pit or crowd surf). Finally, event managers and event security must prepare for the particular kind of crowd that might attend the festival and plan security measures accordingly. Regardless of how a solution to the issue of crowd surging unfolds, all those who are involved in a festival, whether they be a festivalgoer, security, or the performer themselves, must become cognizant of each other’s safety.112