Nightclub Liability and Negligent Security at Hardcore and Punk Shows
Recently, I read an article explaining that Ridglea Theater in Fort Worth is banning a band called Terror from ever playing at their venue again. The venue explained that they are even going so far as to consider banning all hardcore shows going forward.
When I read the article above, my gut initially said “Stupid venue, let the kids have fun” and “Stop overreacting.” But, then something happened. Something strange.
For the first time in my adult life, I realized that I had a conflict. My guttural reaction failed to take into account that I’m a lawyer and more importantly, that I’m a father. But, not only am I a lawyer, I’m a lawyer who has obtained a reputation for suing bars and nightclubs. It is difficult to be able to patronize these places and understand fully what they’re about while simultaneously balancing an understanding of tort liability.
When you’re young, you think you’re invincible and you don’t understand concepts such as “negligence” or “liability”- that’s grownup speak. All you’re concerned about is having a good time and finding your voice. You don’t think too far into the future. While you may have aspirations, it is so difficult to understand that one wrong move can not only change the rest of your life but also that of your family.
Hardcore / Punk Music as a way of life
Hardcore is a spinoff of punk rock, but it’s more aggressive, brutal. According to musicindustryhowto.com hardcore is an “…all-encompassing full-volume assault… that emphasizes rhythm and intensity.” “Many hardcore bands feature politically and socially charged lyrics that speak to hardcore music’s ‘us versus them’ attitude.” I agree with this definition.
Many would argue that it’s more than music and is, instead, a way of life. For example, take the 1981 song “Straight Edge” by Minor Threat where Ian MacKaye proudly proclaims, “I’ve got the straight edge!” For the first time the term “straight edge” is coined spinning off a hardcore youth subculture identified by X’s on their hands to let the world know that they choose to live a positive lifestyle by voluntarily abstaining from drug and alcohol use. The straightedge subculture is alive today and has expanded into animal rights as well as taking a stance against other perceived social injustices. It is also true that at one point the Federal government (and some state and local governments) identified the militant straight-edge movement as a gang.
If you’ve never been to a hardcore show, it is violent. There’s really no way around that. It is a critical element to the music and to the energy of the moment. When most think of “mosh pits”, we think of people pushing each other and pogo-ing. That’s not the case here where the tightly packed crowd is usually engulfed by people ritualistically kicking, punching, windmilling, dogpiling, smashing, clobbering bystanders, stage-diving, jumping and head-walking – yes, you read that right. It is everything you’ve been taught to avoid by a sheltered culture.
Hardcore / Punk music as an outlet
There’s a lot to be angry about in the world. Hardcore is an outlet for that. This was true well before the advent of modern bourgie smash houses.
In 1977, in an interview with Peter Gzowski on the CBC, Iggy Pop, defined punk rock as “…a word used by dilatants, and… heartless manipulators about music that takes up the energies and the bodies and the hearts and the souls and the time and the minds of young men who give what they have to it. And give everything they have to it…. It’s a term that’s based on contempt; it’s a term that based in fashion, style, elitism, satanism, and everything that’s rotten about rock and roll.”
What’s fascinating here, is that at first glance, Pop’s definition of punk rock appears to be a complete disdain for the music and culture. Though, it’s not. Actually, it’s a very punk response. One of the ironic characteristics of punk is that once something is defined as punk, it immediately loses that quality.
Hardcore / Punk music as a reflection of society
Greil Marcus, in his book, Lipstick Traces: A Secret History of the Twentieth Century, examines the relatedness of punk rock and dada (or dada-ism) – the seemingly pointless (but very important) art movement which had roots in the May of ‘68 uprising. Significantly, groups such as “The Situationist International” would graffiti and flyer public spaces with slogans (“Consume more, live less”) that caused an existential crisis for some.
That’s what punk rock does. It holds a mirror to society while society tries to look away. And, hardcore does the same but with more rigor.
The first time I saw Terror live was in Orlando circa 2005 at Back Booth and I distinctly remember it being one of the most brutal shows I had been to.
At another hardcore show circa 2004 in New Jersey, I remember a young man suffering a spinal injury which likely affected him for the rest of his life. But, despite the ambulances, the music kept on playing and the patrons kept on dancing – dancing like such a tragedy didn’t just happen to one of their own (and could never happen to one of them)!
There is something freeing and spiritual about a conglomeration of friends and strangers, on stage, huddled and singing/screaming with their favorite band. It’s a feeling that’s indescribable despite my ill-attempts. It is belonging, acceptance, unity, and catharsis all at once. It’s also something that can’t be learned or felt any other way than through experience.
Ok, but what does this have to do with the law?
But in the search for this euphoria (and in search for individualism free from corporate culture), comes risk. Going to shows since the mid-to-late 90’s, I can tell you that bad things happen at these places and I got to see those things up close.
As a lawyer that sues bars and nightclubs, I’ve struggled to learn the great balancing act of: letting the kid’s have fun versus a serious oversight by ownership and management.
Despite the backlash, the owner of the Ridglea Theater isn’t wrong. He is clearly concerned about keeping a business running with insurance coverage rather than someone getting injured and suing the business. He is doing exactly what he’s supposed to be doing to avoid liability – taking a proactive approach to keeping venue patrons safe and free from harm. This is the type of behavior we expect from bars and nightclubs (though many fall short). Unfortunately, it is a behavior that most in the hardcore scene take as an affront to their lifestyle and to the miniscule outlet of freedom they so longingly desire to protect.
I do understand the passion of the patrons (or ex-patrons) who feel they were deprived of certain key elements of engaging in a full-fledged hardcore show. With this mix, however, there is no compromise. The venue either needs to be willing to open itself up to liability while allowing the show to run its course, or, no show at all, at least without the freedom that we’ve come to know as being associated with hardcore.
But, what about waivers and assumption of the risk?
It is true. For a venue like Ridglea Theater, a waiver might help avoid liability in certain circumstances. However, a waiver may not withstand public policy considerations for keeping patrons safe. Bars and nightclubs have a responsibility to keep their patrons free from known dangers or harms. This venue knows of harms associated with this particular music culture and has decided (or is deciding) to prevent those harms in the future. It is irrational to blame a venue for taking steps to keep you safe. However, it is that paternalism which is diametrically opposed to the freedom hardcore embraces.
This is why nightclubs hire security – to keep patrons safe (it’s another quiver in their cap once the eventual lawsuit comes to let the world know that they took precautions). Nightclubs need to make sure that they hire the right security. That the security is properly trained to act in accordance with expected circumstances at the venue. In other words, the security needs to act with the requisite standard of care. Security can’t and shouldn’t hurt patrons and should not escalate matters.
Hardcore and Punk concerts: At your own risk?
It is also true that the men and women who engage in these shows do so at their own risk. Anyone who knows anything about this type of music and scene, understands that they are at risk of physical injury simply by being a spectator or for merely being present. Assumption of the Risk is a legal doctrine that prevents plaintiffs from recovering when they’re injured during circumstances where they accepted the types of risk involved. There are two types of assumption of the risk: express and implied.
Express assumption of the risk is more consistent with the signing of a waiver. An express declaration and agreement to give up certain rights.
Implied assumption of the risk is based on knowledge of the circumstances and despite that knowledge, still putting yourself in harm’s way.
Assumption of the risk is not a total prohibition for liability. States have different rules regarding comparative fault and contributory negligence. In most states, a Plaintiff who was themselves negligent, will still be allowed to pursue a claim of negligence against a tortfeasor for the percentage of fault the tortfeasor is found liable. Some states, such as Florida’s newly enacted law, hold that if the Plaintiff is more than 50% at fault, the Plaintiff is barred from recovery. Other states provide that if a Plaintiff is 99% at fault, they can still recover that 1% from the tortfeasor. And, yet, other states hold that if the Plaintiff is 1% at fault, they are totally prohibited from recovery.
If venues such as Ridglea Theater host hardcore shows while subjecting their business and insurer to substantial liability, these venues may eventually close and will eliminate resources that the hardcore scene depends on.
Authored by Corey Friedman
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