Written By: William Harding, Partner and Diya Parikh, Articling Student
7 Minute Read
Every year, thousands of people across Ontario attend concerts, music festivals and other large events. Crowds and packed venues are part of the experience but a serious injury is not. When someone is hurt because of unsafe conditions, poor crowd control, inadequate security or the actions of an intoxicated attendee, the question is often whether those responsible for the event took reasonable steps to keep people safe.
The Occupiers’ Liability Act
For many concert and festival injuries the starting point is Ontario’s Occupiers’ Liability Act. Section 3(1) provides that an occupier must take “such care as in all the circumstances of the case is reasonable to see that persons entering on the premises… are reasonably safe while on the premises.” An occupier is not necessarily only the registered owner. It can also be a person or company with responsibility for and control over the condition of the premises, the activities taking place there, or the people permitted to enter.
The venue may control the building while a promoter or contractor handles the event, security, staging or temporary structures. If someone is injured because of an unsecured barrier, poor lighting, temporary flooring, a spill or another unsafe condition, a big question will be who controlled that part of the event and whether reasonable precautions were taken.
Crowd Control and Security
Crowd management is another issue at concerts and festivals. Large groups may be moving toward the same stage, entrance or exit at once, and organizers are expected to plan for the crowd they invite onto the property. What is reasonable will depend on the size and layout of the venue, the number of attendees, barriers that are set up, staffing and whether there were warning signs that an area was becoming unsafe.
Security concerns can also arise where an attendee is injured by another person. A venue is not automatically liable every time a fight breaks out or someone acts unpredictably. Liability may become more likely where staff had warning that a situation was escalating. If an aggressive attendee had already caused problems, security had received complaints, or staff saw a situation escalating developing and failed to respond, the issue may be whether the injury was reasonably foreseeable and whether the response was adequate.
What Crocker Says About Event Organizers
Although Crocker v. Sundance Northwest Resorts Ltd. is not a concert case, it is useful in the event context because it deals with the responsibilities of a commercial event organizer. Sundance organized a tubing competition at its ski resort as a promotional event. Crocker participated while visibly intoxicated and had already suffered a cut above his eye during an earlier heat. Before the next heat, resort staff questioned whether he was in any condition to continue but allowed him to participate anyway. During that run, Crocker was thrown from the tube, suffered a serious neck injury and was rendered quadriplegic.
The SCC held that Sundance had a duty to take reasonable steps to prevent Crocker from continuing once it was clear that he was visibly intoxicated. The Court said that Sundance had organized and controlled the event for commercial gain and knew Crocker’s condition increased the risk of injury. That reasoning can apply more broadly where an event organizer knows that a condition, activity or attendee has created an obvious danger but fails to address it.
Alcohol Service at Concerts and Festivals
Alcohol service can also become relevant where an intoxicated attendee injures themselves or someone else. In Jordan House Ltd. v. Menow, the SCC found a hotel liable after staff continued serving a visibly intoxicated patron and then removed him, despite knowing that he could not safely care for himself and would likely have to walk home along a busy highway. He was struck by a vehicle shortly afterward.
The Court later considered the limits of commercial host liability in Stewart v. Pettie, that liability does not arise simply because someone has been overserved. There must also be a reasonably foreseeable risk of harm. In that case, the venue was not found liable because the patron had shown no obvious signs of intoxication and was accompanied by two other sober adults. The case makes clear that overservice alone is not enough and there must also be a reasonably foreseeable risk of harm.
Waivers and Ticket Terms
Concert and festival tickets often contain terms that try to limit the organizer’s liability. A waiver can matter but it does not automatically end a claim. In Crocker, the Supreme Court held that Sundance could not rely on their waiver because the provision had not been brought to Crocker’s attention, he had not read it and he did not know it was there. That does not mean every waiver will fail. Its wording, how it was presented and whether it actually covers the incident will matter.
Apportionment of Liability
Concert and festival claims often involve several defendants because different companies may control different parts of the event. Ontario’s Negligence Act allows responsibility to be divided where more than one person contributed to an injury. It also allows damages to be reduced where the injured person’s own negligence contributed to what happened.
Once again, Crocker is a good example of how responsibility can be shared in the event context. Although Sundance was found liable for allowing a visibly intoxicated Crocker to continue participating in its tubing competition, Crocker was also found 25% contributorily negligent because his own intoxication contributed to what happened. The SCC left that apportionment in place. In other words, the fact that an injured attendee may have contributed to the incident does not necessarily prevent a claim but it can affect how responsibility and damages are divided.
The Bottom Line
Being injured at a concert or festival does not automatically mean someone was negligent. At the same time, buying a ticket does not mean accepting every avoidable danger. Liability usually turns on what caused the injury, who controlled the area or activity, what risks were reasonably foreseeable and whether reasonable steps were taken once those risks became apparent. At large events, where several companies may be involved, determining responsibility often requires looking closely at how the event was organized, staffed and/or operated.
