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?
If the event was videotaped, either by the promoter or someone in the crowd, the footage will show how difficult it is t0r a security person standing outside the festival seating area to see if someone is being hurt inside.
The artist's duty of care is based on the grim history of festival seating.
If the defendants try to blame the plaintiff, it is vital to argue that the victim did not assume the risk of being crushed in the festival seating area and did not engage in comparative negligence.
This is the principle to cite when a defendant mentions the warning in fine print on the back of a ticket, or the hastily scrawled signs inside the arena warning fans that they enter the festival seating area at their own risk.
In other words, no place in the festival seating area was safe, so it did not matter where in the crowd your client stood.
While festival seating can exist anywhere there is no reserved seating, injuries are more likely in the bigger concert crowds at larger venues.
Crowd crush cases may offer drama, but they are fundamentally simple, based on facts that should be self-evident: Overcrowding leads to injuries; a party that can reasonably foresee harm has a duty to prevent it; and where powerful interests insist on pursuing a dangerous practice like festival seating, the victims are truly protected only by their lawyers.
Larry Nager, Festival Seating Back for Springsteen Concert, CINCINNATI ENQUIRER, Aug.