Crowds, Violence, and Tort Liability
Crowds, Violence and Tort LiabilityBy Robert S. Kelner and Gail S. Kelner
It was almost exactly one year ago on November 28, 2008, when, in a horrifying moment, a Wal-Mart worker was trampled to death and customers injured on the Friday after Thanksgiving. This occurred after a crowd of approximately 2,000 shoppers burst through the front doors of a Wal-Mart store in Valley Stream, New York, in a race for a limited supply of advertised sale items. Investigations which followed made it clear that there was inadequate crowd management. This holiday season is an appropriate time to analyze the duty of care of those in control of the sites of mass gatherings to protect participants from the foreseeable dangers of overexcited crowds and acts of violence in those settings.
A property owner has the duty to use reasonable care to prevent harm to those persons on its premises when it has the opportunity to control the conduct giving rise to injury and is reasonably aware of the need to do so. In assessing whether this responsibility has been breached, it must be shown that the conduct which caused the injury was foreseeable. A frequent defense is the contention that the proximate cause of the occurrence was an unforeseeable intervening act, a superceding cause of harm which exonerates the owner from liability. These types of cases may raise issues which are specific to injuries sustained in large gatherings. An intriguing element is the degree to which the tension or "heightened atmosphere" created by an excited crowd may inflate the "foreseeability" of a violent act fomented by this agitated environment.
In Rotz v. City of New York, 143 A.D.2d 301, 532 N.Y.S.2d 245(1st Dept. 1988), the court examined the principles germane to determining liability for injuries sustained when a crowd runs rampant. Plaintiff was injured when a stampede erupted during a free Diana Ross concert in Central Park. He was standing at the concert, surrounded by people who were "jammed in like sardines," when a commotion occurred and everyone started running. During this stampede, plaintiff was knocked down and trampled. He commenced an action against the City of New York, as the owner of the park, and against the producer of the concert. The gravamen of the complaint was the negligence arising from the failure to maintain the concert site in a "reasonably safe, suitable and well-controlled condition."
In assessing the liability of the City on defendants' motion for summary judgment to dismiss the complaint, the first issue was whether the City owed a duty to plaintiff. The court held that to the extent that plaintiff's claim was predicated upon insufficient police protection generally, the claim would fail. There was a complete absence of any showing that some special duty of protection was owed to this plaintiff, separate and distinct from the governmental obligation to provide police protection owed to the public at large. However, to the extent that liability was predicated upon the City's negligence as the owner and operator of the public park, it owed a duty to those, such as plaintiff, who had been invited to enter that park. This included the obligation to provide an adequate degree of general supervision of the invited crowd by exercising reasonable care against foreseeable dangers under the circumstances prevailing. The court defined the duty under these circumstances: "[T]his included the furnishing of an adequate degree of general supervision of such activities as would endanger others utilizing the park. What degree of care is reasonable necessarily depends upon the peculiar attendant circumstances of the particular case. Negligence arises from breach of duty and is relative to time, place and circumstance. Ordinary care must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect."
Once the court determined that the City owed a duty of care, it addressed the issue of foreseeability. It examined the risks or dangers that should reasonably have been anticipated by the City from the gathering of an extremely large crowd to hear a free concert by a renowned entertainer in Central Park on a summer evening. The court held that a jury could certainly find that, in the absence of appropriate supervision and crowd control, it was reasonably foreseeable that disorder, or even a riot could occur as a result of the " vagaries of myriad individuals ‘jammed together' in a heightened atmosphere." The court held: "[A] jury here could reasonably find that the risk of a riot or a stampede could have been averted, or its consequences contained, by adequate crowd control measures which would have inhibited or prevented the eruption of precipitating incidents such as individual or group altercations, arguments or other provocative causes and that defendant City failed to exercise the reasonable care necessary under the circumstances to avoid that foreseeable risk.
The court rejected defendants' claim that the stampede was an unforeseeable intervening event sufficient to relieve them of liability. It held that the imposition of liability would not be precluded even if defendant could not anticipate the precise manner of the accident, given that the general risk and character of injuries were foreseeable. On the issue of proximate cause, plaintiff submitted sufficient evidence to raise a triable issue of fact that defendant's failure to properly supervise the crowd was a substantial causative factor in the sequence of events which led to his injury. The court determined: "Whether defendant failed to provide adequate crowd control measures so as to avert that general risk reasonably to be anticipated here and, if so, whether the intervening conduct of third-parties in initiating the stampede... was a normal or foreseeable consequence of defendant's failure to adequately supervise the crowd are fact questions which should be resolved at trial..."
In Iacono v. MSG Holdings L.P., 8 Misc. 3d 1014(A), 801N.Y.S.2d 778 (Sup. Court, N.Y. Cty. 2005), plaintiff, a professional photographer, was injured while taking photographs during a riot at a boxing match. He contended that defendant was negligent both in failing to provide reasonable security to prevent the riot and in failing to control the riot once it began. Plaintiff contended that defendant knew there was "bad blood" between the camps for the two fighters, yet failed to implement reasonable security measures under the circumstances. The court found that plaintiff submitted sufficient evidence to raise triable issues of fact with respect to both the foreseeability of the riot as well as the failure to control it once it began. It held that a jury could find that in the absence of adequate supervision and control of the crowd, it was reasonably foreseeable that a riot could ensue in the "heightened atmosphere" of this event- a boxing match- which was itself predicated upon violence.
In Mancuso v. State, 226 A.D.2d 320, 642 N.Y.S.2d 225(1st Dept. 1996), claimant, a spectator at a basketball game, was injured when a fight broke out during the game. Whether the fight was foreseeable and the security provided by defendant, the stadium owner, was sufficient presented issues of issues of fact, precluding summary judgment.
In Rishty v. DOM, Inc. 2009 WL 3647129( 2nd Dept.2009), a very recent decision, plaintiff was struck in the face by an unidentified individual while attending an alternative rock concert at defendant's club. He alleged that defendant failed to supervise and control the crowd. It allowed club patrons to engage in "moshing," an aggressive form of dancing involving physical contact, for an extended period of time before plaintiff was injured. Plaintiff claimed that he was struck by one of the moshing participants when the "mosh pit" spread over the dance floor. The court reiterated the basic principles at issue in stating that: "A property owner must act in a reasonable manner to prevent harm to those on its premises, which includes a duty to control the conduct of persons on its premises when it has the opportunity to control such conduct, and is reasonably aware of the need to do so... However, the owner of a public establishment has no duty to protect patrons from unforeseeable and unexpected assaults."
The court held that there were triable issues of fact as to whether the defendant should have been aware of and controlled the conduct of its patrons and, if so, whether the failure to do so was a proximate cause of plaintiff's injury. There was conflicting testimony. The club manager testified at deposition that there was no "moshing" while plaintiff submitted non-party affidavits that moshing was underway for more than fifteen minutes prior to the incident and that plaintiff was not participating when he was struck. In this case also, a "heightened atmosphere" was clearly an intangible element.
The analysis of the liability of the landowner or organizer of a public gathering becomes more complex when an injury arises out of the random act of individuals present at the event rather than the unrestrained actions of the crowd itself. These types of cases focus far more on whether the random act of the individual was an unforeseeable supervening cause sufficient to relieve the landowner of responsibility. This was the issue in Maheshwari v. City of New York, 2 N.Y.3d 288, 778 N.Y.S.2d 442(2004), where plaintiff's injuries were caused by a random criminal attack, at a large public gathering. Defendant produced a rock concert, Lollapalooza, at a facility owned by its co-defendant City of New York. Its responsibilities encompassed supervision of the parking areas for the event and included the provision of enough trained security personnel to police the stadium and ensure an orderly exit of patrons. Plaintiff attended the event to distribute flyers for his organization. While he was distributing the flyers in a parking area, he was assaulted by four unidentified intoxicated men in a seemingly random act of violence. No police officer had been assigned to this particular parking lot.
Plaintiff contended that criminal assaults were foreseeable at a Lollapalooza concert because this particular event attracted concert goers predictably prone to criminal behavior. He was essentially contending that there was a "heightened atmosphere" because of the type of patrons who attended, thus making a proclivity to violent acts foreseeable. He provided data from prior concerts, showing there had been arrests for criminal mischief and disorderly conduct. However, the court rejected this argument and noted that the offenses at prior concerts were of a lesser degree than criminal assault and would not lead defendant to predict that this violent type of attack could occur. It held that the random brutal attack was not the foreseeable result of a security breach, and that defendants had taken reasonable measures to deal with crowd control. It stated that such a random criminal act was not a predictable result of a large gathering. The court specifically distinguished Rotz which involved crowd control which was not the issue before it. The court in Maheshwari held that the criminal assault was an extraordinary intervening event which was neither foreseeable nor preventable in the normal course of events.
In Elba v. Billie's 1890 Saloon, Inc., 227 A.D.2d 438, 644 N.Y.S.2d 278 (2nd Dept. 1996), plaintiff was struck in the nose by another patron who was involved in an altercation at defendant's bar. Plaintiff claimed that the bar was packed with raucous patrons. However, the court dismissed the complaint, holding that it did not matter whether the bar was overcrowded or the crowd boisterous. Neither raised triable issues of fact. The cause of injury was an unexpected fight between patrons. In Napolitano v. Madison Square Garden Center, Inc. 195 Misc.2d 659, 760 N.Y.S.2d 807 (N.Y. Sup. App. Term 2003), plaintiff was injured during a brawl with another spectator while attending a hockey game at Madison Square Garden. The court dismissed his action for common law negligence, finding that defendant had undertaken reasonable security measures with adequate security guards. There was no evidence in the record that the fracas was either imminent or foreseeable.
However, the conduct of a third party is not always a superceding cause sufficient to exonerate defendant. In Vetrone v. Ha Di Corp., 22 A.D.3d 835, 803 N.Y.S.2d 156 (2nd Dept. 2005), the court held that the promoter of a New Years Eve party owed a duty of care to an injured security guard. The restaurant was filled beyond its capacity because the promoter had sold too many prepaid tickets. No more guests could be allowed to enter. The guard, who was stationed at the door, was injured while preventing angry additional guests with prepaid tickets from entering the facility. The court stated: "The fact that the third person's acts may constitute criminal conduct does not necessarily make them a superseding cause as a matter of law... To the contrary, intervening criminal acts may still give rise to liability under ordinary principles of negligence where there is a sufficient underlying legal relationship between the parties... and where the acts are "a 'reasonably foreseeable' consequence of circumstances created by the defendant."
The court held that it could not conclude as a matter of law that the assault upon plaintiff as he tried to close the door of the restaurant on a crowd of people holding prepaid tickets was unforeseeable. It could certainly be found to be a consequence of the promoter's conduct in overselling the event and then directing plaintiff to deny admission to a large group of people who were there to attend a New Years Eve party for which they had already paid admission.
Cases involving injuries to patrons of activities at crowded facilities require careful analysis under principles of common law negligence. As these types of cases are likely to raise issues of what constitutes adequate security measures under the circumstances surrounding the occurrence, it is important to assess the need for an expert in the field of security early in the action.