Questions have long swirled around who is liable for tragedies at concerts

In the wake of a crowd surge at the Astroworld music festival in Houston that left nine dead, questions have arisen about who is liable in such tragedies.

More than a dozen lawsuits have already been filed against Travis Scott, the rapper who launched the annual festival in his hometown, and Live Nation Entertainment, the concert promoter that organized the event. But legal experts who spoke with NBC News said these liability cases are far from straightforward and noted that the legal precedent is mixed.

The issue is further complicated because there aren’t any state or federal laws related to crowd surge or “crush” incidents. The lack of legislation belies the fact that crowd crush incidents happen several times a year in the U.S. at sporting events, Black Friday sales, religious gatherings and concerts.

“There are laws that deal with how many trash receptacles there are at a venue or how loud the decibels are, but surprisingly few on how to regulate the crowd,” said Danny Cevallos, an MSNBC legal analyst.

In Texas, the parties in charge of a concert have a duty to “exercise reasonable care” to protect the audience “against an unreasonably dangerous condition on the premises, so long as the defendants knew or should have known about that dangerous condition,” Cevallos told NBC News.

Attorneys for the plaintiffs in these cases will thus need to prove that the named parties in the suit “knew or should have known” that a crowd surge could happen. But that’s where it can get tricky.

“I see courts making mistakes again and again in how they interpret this,” said Tracy Hresko Pearl, a professor at the University of Oklahoma College of Law who has done extensive research into crowd crush incidents. “There’s a lot of data on crowd science, but instead courts show a lot of reliance on conventional wisdom about the kind of music it was, who was in the crowd or what the venue capacity was.”

This is often discriminatory and problematic because it ignores the scientific evidence, according to Pearl. She said the wrong things can get scapegoated, including venue capacity, security personnel and crowd demographics, and the venues and planners are often not found liable.

She referred to two crowd crush cases where the courts ruled very differently. In one, at a Guns N’ Roses concert, the court found the venue liable, implying that the nature of the fans should have made the possibility of a crush foreseeable. In another, involving church members, the court determined that the venue could not have foreseen a crowd crush.

Cevallos noted that in Scott’s case, it might be more difficult for him, the venue or event organizers to say they had no idea a crowd crush would happen since his concerts have had other similar incidents. In 2015, he was arrested and charged with disorderly conduct after he told a crowd in Chicago to ignore security and rush the stage. In 2017, he was arrested on suspicion of inciting a riot during a performance in Arkansas.

“But we need to be very careful about attributing blame since arguably the job of a performer is sometimes to get the crowd riled up and use hyperbole,” Cevallos said. “What about a song like ‘Burning Down the House’? Is the performer responsible for an audience member burning down the place?”

In crowd crush cases, Pearl said courts should rely on scientific findings about crowd dynamics, which show that density is a far more reliable indicator of the possibility of a crowd crush. She said if a crowd has a density of five or more people per square meter, there’s a high risk of a crowd crush.

Pearl is advocating for laws that would require venues to take certain steps to reduce the risk of crowd crush, including keeping crowds at a safe density.