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.
Festival seating may be relatively harmless for small crowds, or for larger crowds with enough space to spread out.
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.
Despite its dangers, festival seating has become more appealing to mainstream performers.
A typical comment comes from the editor of a concert industry magazine, defending U2's use of festival sealing 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.
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.