This past weekend, I paid money to get shoved and kicked around in a mass of people as three men on stage played some of the most abrasive music I have ever heard. The experimental hip-hop group “Death Grips” is known for putting on violent concerts full of mosh pits and stage divers. After waiting for years to see Death Grips, I looked forward to losing myself in the chaos. While I tried to stay in the moment during the show, the law student in me could not stop thinking about who could sue and be sued in the event of an injury.
Moshing is a dance tradition where participants “violently hurl their bodies at one another in a dance area called a ‘pit.’” One can trace the moshing tradition through the history of punk music. “Pogo-ing” at Sex Pistols concerts in the 1970s became “slam dancing” at Black Flag concerts in the 1980s. Bad Brains vocalist H.R. coined the term as he commanded his crowds to “mash,” which audiences misheard as “mosh” through H.R.’s Jamaican accent.
As more concertgoers partake in this tradition, the number of concert-related injuries has increased. The number of lawsuits increased correspondingly. Confoundingly, tort suits involving concert-related injuries can be very factually complex.
To demonstrate this complexity, let us imagine a hypothetical situation in which I sustained an injury in the mosh pit this past weekend. Even if a single blow caused my injury, it would have been impossible to discern who dealt the blow in the darkness. It would be difficult to file suit against Death Grips since the group never even addressed or encouraged the crowd. Thus, I might file suit against the venue since landowners can be liable for acts of third parties if the acts lead to foreseeable dangerous activity.
Even if I could demonstrate that the venue owner breached a duty, they could argue that I assumed the risk. If my ticket contained exculpatory language, I may have expressly assumed the risk, though such waivers may be declared invalid due to public policy. Even without express assumption of risk, the venue can argue for an implied assumption of risk, where I knowingly engaged in dangerous activity, thus relieving the venue of their duty of care.
However, it might be difficult to demonstrate whether or not I knowingly engaged in dangerous moshing. There were no warnings on my ticket or at the venue. If a friend had dragged me to the show without telling me what I was getting into, I might not have had a clue about the risks.
The intensity of the moshing began instantaneously. The calculus might change if I sustained an injury in the first minute of the show, as opposed to after an hour when I would have had a chance to escape. The genre of music might also be a factor. If Death Grips was a jazz trio, a mosh pit may not have been foreseeable for any party.
There are endless variables to play with regarding mosh-pit-related tort suits. Frustratingly, we are left without a clear framework to adjudicate these suits. Courts have not established guiding precedent because so many of these lawsuits end with private settlements.
This trend continues with the ongoing legal fallout of the 2021 Astroworld tragedy, where ten audience members were killed and hundreds more sustained injuries at a chaotic Travis Scott concert. There are open questions regarding the adequacy of security and the potentially negligent actions of Scott. However, courts have not yet had an opportunity to apply or create precedent, as Scott continues to privately settle the numerous civil suits against him. Music fans should follow the ongoing civil litigation against Scott should courts get an opportunity to clarify the rights and duties of moshers and venue owners.
 Mike Merucci, Goodbye to My Wallet and Car Keys | Death Grips Concert Review, Impact 89FM (Aug. 8, 2023), https://impact89fm.org/117999/music/goodbye-to-my-wallet-and-car-keys-death-grips-concert-review/ [https://perma.cc/8S6P-2DAC] [https://web.archive.org/web/20230925022028/https://impact89fm.org/117999/music/goodbye-to-my-wallet-and-car-keys-death-grips-concert-review/].
 William Tsitsos, Rules of Rebellion: Slamdancing, Moshing, and the American Alternative Scene, 18 Popular Music 397, 397 (1999).
 Paolo Ragusa, Moshing: The Art and Consequences of One of the Most Celebrated Concert Dance Forms, Consequence (Aug. 19, 2021, 10:00 AM), https://consequence.net/2021/08/moshing-history-essay/ [https://perma.cc/K5KN-CERS] [https://web.archive.org/web/20230925023504/https://consequence.net/2021/08/moshing-history-essay/].
 Luke Ellis, Talking About My Generation: Assumption of Risk and the Rights of Injured Concert Fans in the Twenty-First Century, 80 Tex. L. Rev. 607, 608 (2002).
 Id. at 69.
 See Restatement (Second) of Torts § 344 (Am. L. Inst. 1965).
 Alexander Drago, Assumption of Risk in the Arena, on the Field and in the Mosh Pit: What Protection Does It Afford?, 13 Ent. & Sports Law. 3, 4 (1995).
 Luke Ellis, Talking About My Generation: Assumption of Risk and the Rights of Injured Concert Fans in the Twenty-First Century, 80 Tex. L. Rev. 607, 609 (2002).
 Vimal Patel & Sophie Kasakove, What To Know About the Houston Astroworld Tragedy, N.Y. Times (Nov. 15, 2021), https://www.nytimes.com/article/astroworld-festival-what-to-know.html [https://perma.cc/D7AB-5DBD] [https://web.archive.org/web/20230925025823/https://www.nytimes.com/article/astroworld-festival-what-to-know.html].
 Ethan Millman, Third Astroworld Victim’s Family Settles Suit Against Live Nation, Travis Scott, Rolling Stone (Aug. 3, 2023), https://www.rollingstone.com/music/music-news/astroworld-victim-john-hilgert-family-settles-live-nation-travis-scott-1234800404/ [https://perma.cc/PK9B-YPDQ] [https://web.archive.org/web/20230925030032/https://www.rollingstone.com/music/music-news/astroworld-victim-john-hilgert-family-settles-live-nation-travis-scott-1234800404/].