By: Nick Christopherson

Travis Scott’s recent Astroworld music festival drew an estimated 50,000 fans to NRG Park in Houston on Friday, November 5.[1] Beginning in 2018, with the release of Scott’s new album, Astroworld, the annual music festival was an immediate hit and solidified Scott as an A-list celebrity for years to come.[2] The concert series has gained incredible momentum since its debut, and following a Covid-mandated cancellation in 2020, fans, artists, and industry ticket promoters arrived anxious to resume the music in 2021.[3]

However, the festivities came to a crashing halt after a crowd surge crushed hundreds of fans at the front of the pit.[4] Hundreds suffered injuries from asphyxiation—a lack of oxygen due to the pressure of the crowd—which caused many to fall unconscious or suffer heart attacks.[5] Hundreds were transported to the hospital, and eight died.[6] People described the scene as “a concert from hell” as bystanders performed CPR on strangers, ambulances wove in and out of the crowd, and people screamed “I can’t breathe.”[7] During the chaos, Travis himself continued performing, only stopping briefly to crowd surf an unconscious fan to safety before resuming his raucous act.[8]

So far, more than ninety civil actions have been filed over the incident naming Live Nation, Scott, and other artists who performed at the event as defendants.[9] One complaint alleges that Scott and Live Nation failed “to provide a safe environment at the Astroworld Festival . . . to provide adequate security . . . to adequately hire medical personnel . . . [and] to adequately respond to recurrent medical issues.”[10] The complaint further alleges gross negligence, claiming that defendants “knew, or had reason to know, of an unreasonable and foreseeable risk of harm to Plaintiff.”[11] But who is really to blame in this tragedy? And how should the law change to prevent this type of accident in the future?

Fortunately, a number of crowd crush cases exist to guide courts’ analyses in this matter.[12] When analyzing a negligence claim, a court will consider if the defendant had a duty to act reasonably, then a jury will determine whether the defendant breached this duty, whether the defendant’s breach was the “but for” cause of the plaintiff’s injury,[13] and whether a defendant’s actions were sufficiently linked to the plaintiff’s injury so as to find the defendant liable.[14]

Duty and “but for” causation are easy to establish. Plaintiffs can establish duty because, in tort law, business owners owe paying customers (such as sporting fans, concertgoers, or event attendees) special protections from unreasonable dangers.[15] The Restatement (Second) of Torts addresses crowd security in § 344 which states:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care . . .[16]

Due to the obvious applicability of this rule, duty is rarely litigated over in crowd crush cases.[17] Similarly, plaintiffs can also easily satisfy the requirement of “but for” causation in the Astroworld case because “but for” the concert’s existence, people would not have been crushed by a crowd.

The elements of breach and proximate causation are more difficult to predict. In determining breach, juries determine whether the defendant acted reasonably—whether defendant’s actions were similar to those of a reasonable person under the circumstances. Plaintiffs can prove this element by showing that the defendant failed to “guard customers, patrons, and other invitees from injury by either a crowd or one of its members through the use of ushers, guards, or other attendants, or by means of physical devices such as barricades, ropes, or railings.”[18]

There are conflicting views as to whether the defendants acted reasonably. On the one hand, the court-ordered investigators noted that “organizers added stronger fencing, more barricades, additional space for crowd control, and more security personnel, in light of the crowd control issues at the 2019 Astroworld show.”[19] On the other hand, the event’s fifty-six page security and emergency response plan failed to account for the occurrence of a crowd surge.[20] Nor did the organizers call off the show despite hundreds of people breaking through the concert gates earlier in the day.[21] Due to these conflicting facts, it is hard to predict whether a jury will find the organizers’ efforts to have been reasonable.

But the real lynchpin of these future lawsuits will be proximate causation,[22] which many courts determine by asking the jury to consider whether the plaintiff’s harm was foreseeable.[23] Foreseeability will be hard for both Scott and Live Nation to refute. For Scott, the artist has a history of producing violent and chaotic shows.[24] In 2015, Scott was arrested at his own concert in Lollapalooza for the charge of “inciting a riot.”[25] He was arrested two years later, in 2017, at the Walmart Arkansas Music Pavilion under the same charge.[26] In another concert, Scott spit and yelled at an audience member thought to have stolen Scott’s shoe, telling the crowd to “Get that b*tch” and to “F**k him.”[27] The artist has also encouraged fans to “rage” at his concerts and to create an atmosphere that mirrored the chaos of the World Wrestling Federation.[28] Based on this conduct, a jury will likely find fans’ injury foreseeable in the Astroworld case.

Live Nation should also have foreseen concertgoer injury. In 1979, eleven concertgoers were killed from a crowd surge similar to the one at Astroworld.[29] The source of the problem was determined to be “festival seating,” or general admission seating.[30] After the tragedy, Cincinnati city council banned festival seating at any venue in its jurisdiction, but the ban was lifted some twenty years later to accommodate the preferences of Bruce Springsteen.[31] Further, Live Nation need not look beyond its own history to see the problems with general admission seating. The Houston Chronical published that Live Nation has been connected to roughly 200 deaths and at least 750 injuries since 2006.[32] In fact, the company’s annual report lists “variability in venue security standards and accepted practices”[33] and “unintentional mass casualty incidents”[34] as some of the company’s most significant risks. Because these defendants should have foreseen these injuries, plaintiffs are likely to satisfy the proximate cause element of their claim. Thus, the outcome of these suits will likely be out-of-court settlements with the families of the victims.[35]

Nevertheless, while social media users have been quick to blame Travis Scott and “corporate greed” for this tragic outcome,[36] spectators have overlooked the primary culprit—America’s lack of crowd management regulations. A vast body of research exists on the scientific principles of crowds and their inherent dangers,[37] yet there is virtually no statutory law in the United States regulating crowd management and control.[38] This lack of regulation leaves injured concertgoers with only the long, expensive, and unpredictable remedies involved in a negligence suit. If left to continue, this statutory gap will continue to claim more lives.

[1] McKenzie Sadeghi, Fact check: Post falsely claims Astroworld venue had maximum capacity limit of 20,000 people, USA Today (Nov. 11, 2021),

[2] Julian Kimble, Travis Scott is one of the most electrifying performers of our time, Wash. Post (Nov. 30, 2018),

[3] Ana Gonzalez, AstroWorld Festival 2020 has been postponed, but Travis Scott says event will make a return in 2021, Click 2 Houston (Nov. 18, 2020),

[4] Chris Boyette, Travis Scott was previously charged in connection with crowd mayhem, CNN (Nov. 8, 2021),

[5] David Goodman & Maria Jimenez Moya, ‘No Way Out’: A Sudden Life-and-Death Struggle at a Houston Concert, N.Y. Times (Nov. 6, 2021),

[6] Id.

[7] Cam Tyeson, A Horrifying Eyewitness Account From Travis Scott’s Astroworld Disaster Called it a ‘Concert in Hell,Pedestrian TVK (Nov. 6, 2021),; Tiffany Huertas, ‘I can’t breathe’: San Antonio woman describes chaos at Travis Scott concert, KSAT (Nov. 8, 2021),

[8] Mark Savage, Travis Scott festival tragedy: Were warning signs missed at Astroworld, BBC News (Nov. 9, 2021),

[9] Ray Sancez, Rosa Flores & Ed Lavandera, Deadly Astroworld Festival spiraled out of control for hours, Houston FD logs show, CNN (Nov. 12, 2021),; Nicolaus Li, Travis Scott Reportedly Facing Over 30 Lawsuits Following Astroworld Tragedy, Hypebeast (Nov. 10, 2021),

[10] Plaintiff’s Original Petition and Application for Temprorary [sic] Restraining Order and Temporary Injunction at 13, Villanueva v. ASM Global, LLC, Courthouse News,

[11] Id. at 10.

[12] See, e.g., Pooser v. Cox Radio, Inc., No. 04-08-00270-CV, 2009 WL 200449 (Tex. Ct. App. Jan 28, 2009) (involving plaintiff suing radio station after becoming injured in a standing-room-only section of a concert); Cunningham v. D.C. Sports & Ent. Comm’n, No. Civ.A. 03-839RWRJMF, 2005 WL 3276306, (D.D.C. Nov. 30, 2005) (involving crowd-surge related injuries at an Eminem concert); Prettyman v. Trenton Transportation Co., 73 Pa. Super. 353 (1919). For a full discussion of current crowd crush jurisprudence, see Tracy Hresko Pearl, Crowd Crush: How the Law Leaves American Crowds Unprotected, 104 K.Y. L.J. 1 (2016).

[13] Stuart M. Speiser et al., 2A American Law of Torts §9:3, (Monique C. M. Leahy ed., 2021) (“The essential elements for a negligence or gross negligence claim are: (1) the existence of a duty on the party of the defendant to conform to a specific standard of conduct to protect the plaintiff: (2) breach of that duty by the defendant; (3) injury to the plaintiff actually and proximately caused by the defendant’s breach”).

[14] Id. (stating that “to support a finding of proximate cause, there must be some evidence indicating that a foreseeable injury did in fact result from the negligence”).

[15] See Pearl, supra note 12, at 18. See also Robert Lind et al., Entertainment Law 3d: Legal Concepts and Business Practices § 10:36, Westlaw (database updated 2021) (“The venue owner and operator have a duty to provide reasonably safe means of ingress and egress, a duty to use ordinary care to keep the premises safe, a duty to discover and correct or warn of any dangerous conditions and a duty to protect attendees from negligent activities.”).

[16] Restatement (Second) of Torts §344 (Am. L. Inst. 2021).

[17] See Pearl, supra note 12, at 17.

[18] 8 Frumer & Friedman, Personal Injury Actions, Defenses, and Damages § 42.01 (Matthew Bender, rev. ed. 2015)

[19] Vanessa Romo, Astroworld’s safety plan called for deceased to be referred to as ‘smurfs’, NPR (Nov. 10, 2021),

[20] Id.

[21] Spencer Kornhaber, The Bleak Lessons of the Astroworld Nightmare, The Atlantic (Nov. 10, 2021),

[22] Steven A. Adelman, Won’t Get Fooled Again: Overcrowding at Concerts Causes Injury and Death—Despite Industry Denials. Don’t Be Fooled: Crowd Crush Cases Turn on Straightforward Questions of Foreseeability and Duty of Care, 40 JUN Trial 18, (2004) (discussing the past issues courts have focused on in crowd crush cases).

[23] See, e.g., Massey v. Jim Crockett Promotions, Inc., 400 S.E.2d 876 (W. Va. 1990) (considering whether it was foreseeable that there would be an altercation as a result of wrestlers and manager provoking the crowd).

[24] See Jack Morphet & Jorge Fitz-Gibbon, Travis Scott concerts known for violence and injuries, reports show, N.Y. Post (Nov. 7, 2021),

[25] Jake Woolf, Travis Scott on the Show that’s So Crazy, It Caused a Riot, GQ (May 15, 2017),

[26] Id.

[27] Alana Mastrangelo, Video resurfaces of rapper Travis Scott spitting at fan, calling crowd to “F**k Him Up”, GWN (Nov. 8, 2021),

[28] Rachel DeSantis, Travis Scott Talks ‘Raging’ in Resurfaced Video: ‘Always Wanted to Make It Feel Like It Was the WWF’, People (Nov. 8, 2021),

[29] Palmer Haasch, Crowd surges like the one at Travis Scott’s Astroworld concert have a long history, Insider (Nov. 11, 2021),

[30] Id.

[31] John Fox, Festival Seating Return is Past Due, City Beat (Aug. 14, 2002),

[32] Gabrielle Banks, Astroworld promoters oversaw other events where concertgoers trampled fellow fands, broke barricades, Houston Chronicle (Nov. 6, 2021),

[33] Live Nation Entertainment, Inc., Form 10-K, 23 (2021).

[34] Id. at 28.

[35] Andy Greene, Lawyers See ‘Huyndreds of Millions’ in Settlements—and Possibly Criminal Charges—in Atroworld Tragedy, Rolling Stone (Nov. 9, 2021),

[36] See, e.g., Ellen Durney, Travis Scott And Drake Are Being Sued For Negligence And “Inciting The Crowd” At The Astroworld Festival That Killed At Least 8 Fans, Buzz Feed News (Nov. 8, 2021),; J.D. Smith, Live Nation, not Travis Scott, caused the Astroworld tragedy, Black Media Daily (Nov. 13, 2021), (claiming the tragedy was “a corporate greed issue on the part of Live Nation”).

[37] For example, one study gave a disturbing description of the realities within a crushing crowd:

At occupancies of about 7 persons per square meter the crowd becomes almost a fluid mass. Shock waves can be propagated through the mass sufficient to lift people off of their feet . . . . People may be literally lifted out of their shoes, and have clothing torn off. Intense crowd pressures, exacerbated by anxiety, make it difficult to breathe. The heat and thermal insulation of surrounding bodies cause some to be weakened and faint. Access to those who fall is impossible. Removal of those in distress can only be accomplished by lifting them up and passing them overhead to the exterior of the crowd.

John J. Fruin, The Causes and Prevention of Crowd Disasters, Crowdsafe 3 (2002),; Eugene Trivizas, Crowd Dynamics and the Prevention and Control of Collective Disorders, 56 Police J. 142, 143 (1983); John J. Fruin, Crowd Dynamics and Auditorium Management, Crowd Safety & Risk Analysis, Auditorium News (May 1984),; Keith Still et al., Place crowd safety, crowd science? Case studies and application, 13 J. of Place Mgmt. & Dev. 4 (2020); Ris S.C. Lee & Roger L. Hughes, Exploring Trampling and Crushing in a Crowd, 131 J. Transp. Eng’g 575 (2005); G. Keith Still, Static Crowd Density (General), Crowd Safety & Risk Analysis, (last visited Nov. 14, 2021); Dirk Oberhagemann, Static and Dynamic Crowd Densities at Major Public Events, VFDB Technical Rep. (Mar. 2012),; Anders Johansson et al., From Crowd Dynamics to Crowd Safety: A Video-Based Analysis, 11 Advances in Complex Sys. 497 (2008).

[38] See Pearl, supra note 12, at 1.

By: Lanie Summerlin

Henderson v. Bluefield Hosp. Co.

In this civil appeal, the National Labor Relations Board (“NLRB”) appealed the District Court’s refusal to grant preliminary injunctive relief under section 10(j) of the National Labor Relations Act. The NLRB sought preliminary injunctions against two hospitals until NLRB agency adjudication of a complaint filed against the hospitals by the National Nurses Organization Committee (“Union”) was complete. The injunctions would have required the hospitals to bargain with the Union in good faith, and NLRB argued the injunctions were necessary to protect the nurses’ fundamental right to be represented through collective bargaining. The District Court denied these injunctions because it ruled the NLRB failed to prove this type of relief was necessary to preserve the remedial power of the NLRB. The Fourth Circuit affirmed the District Court’s decision and emphasized that the NLRB has the burden of proving irreparable harm absent the injunction. Ultimately, the Fourth Circuit held the NLRB failed to meet this burden because its theories of harm were speculative; the NLRB failed to explain why its own forms of relief available after completion of the agency process would be insufficient.

U.S. v. Bell

In this criminal appeal, Quintin Bell (“Bell”) challenged his convictions of four counts of drug trafficking and one count of illegal possession of a firearm. Bell argued the District Court erred in (1) denying his motion to suppress statements he made to police officers who were executing a search warrant on his residence; (2) admitting evidence of another arrest of Bell under Federal Rules of Evidence Rule 404(b); (3) denying Bell’s motion to disclose the identity of a confidential informant; and (4) enhancing Bell’s sentence to 480 months’ imprisonment due to his prior convictions. The Fourth Circuit held the District Court did not err in denying Bell’s motion to suppress his statements because Bell was not being interrogated at the time the statements were made; the officer’s question was directed to Bell’s wife and Bell voluntarily answered. The Fourth Circuit also held the District Court did not abuse its discretion by admitting evidence of Bell’s other arrest because this evidence’s relevance to Bell’s motive and intent was not substantially outweighed by the risk of unfair prejudice to Bell. In regards to the confidential informant, the Fourth Circuit held the District Court did not err in refusing to disclose the informant’s identity because Bell failed to prove the informant’s identity was necessary to establish his own guilt or innocence. The Fourth Circuit also reviewed Bell’s criminal record and held that his 480 month sentence was appropriate due to the nature of the crimes on his record. Overall, the Fourth Circuit affirmed Bell’s convictions. Judge Wynn dissented; he argued the Fourth Circuit should have remanded the issue of Bell’s statements to police officers to the District Court for a determination of whether Bell perceived himself as being interrogated. Judge Wynn also argued that Bell’s prior convictions do not qualify as predicate convictions to enhance his sentence.

VanDevender v. Blue Ridge of Raleigh

This civil appeal focuses on the District Court’s decisions as to two judgment as a matter of law (“JMOL”) motions filed by Blue Ridge of Raleigh (“Blue Ridge”). Blue Ridge operated a long-term skilled nursing facility in Raleigh, North Carolina, but consistently failed to meet state-mandated staffing levels and supplies requirements. The estates of three deceased ventilator-dependent patients at Blue Ridge brought claims of wrongful death nursing home malpractice against Blue Ridge. The jury awarded compensative and punitive damages to each Plaintiff. However, the District Court granted Blue Ridge’s motion for JMOL as to all three Plaintiffs’ punitive damages awards because it ruled the Plaintiffs had not produced sufficient evidence. The District Court denied Blue Ridge’s motion for JMOL as to Plaintiff Jones’s compensatory damages. Plaintiffs appealed the JMOL as to their punitive damages, and Blue Ridge cross-appealed the denial of JMOL as to Plaintiff Jones’s compensatory damages. The Fourth Circuit held the District Court erred in granting JMOL as to the Plaintiffs’ punitive damages. Based on the record, the Fourth Circuit held that a jury could determine Blue Ridge’s staffing policies and managerial decisions constituted willful or wanton conduct. It held that the District Court erred by requiring the Plaintiffs to prove malice, which is not required for willful or wanton conduct. The Fourth Circuit emphasized that Blue Ridge failed to follow state and federal laws on staffing and intentionally failed to follow its own patient safety policies. Additionally, the Fourth Circuit affirmed the District Court’s denial of Blue Ridge’s JMOL motion as to Plaintiff Jones’s compensatory damages. There was sufficient evidence that Blue Ridge breached the standard of care it owed to Plaintiff Jones by being understaffed without proper supplies. The Fourth Circuit remanded with instructions for the District Court to enter punitive damages for all three Plaintiffs consistent with North Carolina’s statutory limits.

By John Van Swearingen

On February 6, 2017, the Fourth Circuit issued a published opinion in the civil case Beck v. McDonald. The plaintiffs appealed the dismissal of their case for lack of subject-matter jurisdiction. In the United States District Court for the District of South Carolina, the plaintiffs brought suit under common-law negligence, the Privacy Act of 1974, 5 U.S.C. § 552(a) (2012) (“Privacy Act”), and the Administrative Procedure Act, 5 U.S.C. §§ 701–706 (2012) (“APA”) following data breaches at the William Jennings Bryan Dorn Veterans Affairs Medical Center (“Dorn VAMC”). The district court dismissed all claims against the Dorn VAMC, holding the court lacked subject-matter jurisdiction since, due to the speculative nature of the claimed injuries, the plaintiffs lacked Article III standing to bring their negligence and Privacy Act claims. The plaintiffs also could not establish standing for injunctive relief under the APA due to their speculative claims. The Fourth Circuit affirmed the district court’s dismissal, holding that the plaintiff’s claimed injuries were speculative, and therefore, the plaintiffs did not satisfy the injury-in-fact requirement for standing.

Facts and Procedural History

On February 11, 2013, a laptop containing the personal information of around 7,400 patients was either misplaced or stolen from the Dorn VAMC. The Dorn VAMC failed to utilize the proper procedures for handling and storing unencrypted patient data. Dorn VAMC notified every patient tested with the laptop and offered each affected individual a free year of credit monitoring. The laptop was never found.

Plaintiffs filed suit on behalf of themselves and the assumed class of 7,400 affected persons. The claims included common-law negligence, declaratory relief and monetary damages under the Privacy Act, and injunctive relief under the APA.

Regarding the Privacy Act claims, the plaintiffs alleged “embarrassment, inconvenience, unfairness, mental distress, and the threat of current and future substantial harm from identity theft and other misuse of their Personal Information.” Further, the plaintiffs claimed that they were required to purchase credit monitoring services, monitor financial statements, and move their bank accounts to different institutions.

Regarding the APA claims, the plaintiffs sought to enjoin the Dorn VAMC from transferring any new patient information until the facility could demonstrate adequate security measures. The plaintiffs also sought an order requiring the Dorn VAMC to identify and destroy any improperly-maintained records.

A second set of plaintiffs brought suit against the Dorn VAMC regarding the July 2014 loss of four boxes of pathology reports. The boxes contained the information of some 2,000 individuals. These plaintiffs sued on behalf of themselves and this second presumptive class. The claims involved almost identical factual and legal issues as those of the first set of plaintiffs, and the cases were consolidated.

The district court dismissed all claims against the Dorn VAMC for failure to allege injury-in-fact necessary to satisfy Article III standing requirements. Therefore, the district court held, it lacked subject-matter jurisdiction. The plaintiffs appealed.

Article III Standing for Threatened Injuries

The injury-in-fact requirement for Article III standing was recently explored by the Supreme Court in Clapper v. Amnesty Int’l USA, No. 11–1025, (U.S. Feb. 23, 2013). In Clapper, the Court held that a “threatened injury must be certainly impending” in order to satisfy the injury-in-fact requirement for Article III standing. Further, a plaintiff could not “manufacture standing” by taking preventative measures against a non-imminent, uncertain harm.

The Negligence and Privacy Act Claims

The Fourth Circuit analyzed the plaintiffs’ claims under Clapper and found that neither the common-law negligence claims nor the Privacy Act claims met the standard of “certainly impending” injury.

Here, the plaintiffs did not plead that the loss of their personal information resulted in any actual harm due to identity theft. The plaintiffs lack evidence of any kind to support that their information was stolen for the purposes of exploitation through identity theft. Thus, plaintiffs’ claims are only speculative in nature – they do not “certainly impending” harms.

Clapper also held that a plaintiff could establish injury-in-fact by showing that a “substantial risk” of impending harm forced the plaintiff to incur costs to mitigate or avoid the harm.

Here, the plaintiffs plead that one-third of health-care data breaches result in identity theft, and the Dorn VAMC’s offer of free credit monitoring was a concession that the risk to plaintiffs was reasonably likely.

The Fourth Circuit noted that, if one-third of breaches result in identity theft, two-thirds do not, and therefore, the risk is not substantial. Further, notion that a harm is “reasonably likely” to occur does not render that risk of harm “substantial” or “imminent.”

Finally, the Fourth Circuit noted that, since the risk of identity theft was merely speculative, the plaintiffs here could not manufacture standing by incurring costs associated with identity theft protection services. Thus, since the injuries claimed under common-law negligence and the Privacy Act were only speculative – and therefore not “certainly impending – the plaintiffs lacked Article III standing.

The APA Claims

The APA confers standing to any “adversely affected” party suing thereunder, and thus, the plaintiffs do not require Article III standing to sue under the statute. However, City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983), which governs the standing requirements of a plaintiff seeking injunctive relief, requires a plaintiff to show that the threat of injury must be “real and immediate.” A “conjectural” or “hypothetical” threat will not merit injunctive relief. The test, therefore, echoes the language of Clapper.

Here, the plaintiffs plead that their information was taken in two separate data breaches, but they lacked a factual basis to assert any future breaches by Dorn VAMC past a mere possibility. Thus, the plaintiffs lacked standing to seek injunctive relief under the APA.


The Fourth Circuit affirmed the district court’s dismissal of the plaintiffs’ claims for lack of subject-matter jurisdiction. The speculative nature of the plaintiffs’ claims under common-law negligence and the Privacy Act meant the plaintiffs failed to establish the “injury-in-fact” requirement for Article III standing. Further, the speculative nature of the plaintiffs’ claims under the APA failed to meet the standing requirement for injunctive relief. Thus, the plaintiffs failed to establish standing for all claims, and dismissal for lack of subject-matter jurisdiction was proper.

Fourth Circuit Denies Review of Administrative Order & Civil Penalties Following a Fatal Coal Mine Accident

By Kelsey Hyde

On November 10, 2016, the Fourth Circuit published an opinion in the case of Consol Buchanan Mining Company v. Secretary of Labor.  The Fourth Circuit denied Consol’s petition for review of an order by the Federal Mine Safety and Health Review Commission, finding the appellant mining company negligent and subject to penalties for violations of mining regulations. The Fourth Circuit found the administrative law judge did not err in finding that Consol had fair notice of the dangerous conditions, which ultimately led to the avoidable death of a miner, and that Consol’s actions constituted “unwarrantable failure” to comply with the applicable mine-safety regulations.

Appellant’s Fatal Mine Accident & Subsequent Proceedings

The fatal accident that ultimately led to this action occurred on January 11, 2012, in a Virginia coal mine operated by appellant, Consol Buchanan Mining Co. (“Consol”). Consol’s mine had a six-inch main line that supplied water for various uses, including firefighting and suppressing coal dust. The line was constructed with several valves to allow water flow for such uses. At one point, the water line was above the floor of the mine, but had since been buried by the accumulation of dust and debris over several years. Because the line runs adjacent to the equipment trackways, valves were regularly struck by machinery traveling on the tracks, and Consol was aware that these valves were being hit and damaged by moving equipment. Consol had also removed certain leverage bars provided by the manufacturer to open and close the valves.

On the day of the accident, Section Foreman Gregory Addington (“Addington”) had been assigned to help oversee two other miners move a shuttle car across the mine. During this process, the crew struck a fire valve extending out from the main waterline which split the valve and sent a fountain of water shooting out into the mine. Ultimately, they were unable to fully close the valve because of the excessive debris that had accumulated, and because the proper leverage bar was unavailable. Moreover, the damage to the fire valve made it unable to bear the necessary level of water pressure. The valve was suddenly ejected, fatally striking one of the miners.

Following the accident, the Mine Safety & Health Administration (“MSHA”) conducted an investigation and eventually concluded the accident had resulted from the failed closure of the inoperable valve. MSHA then petitioned the Federal Mine Safety & Health Review Commission (“Commission”) to assess civil penalties against Consol for violating two mine safety regulations: (1) failing to remove unsafe mining machinery or equipment from service, based on reusing the damaged fire valve, in violation of 30 C.F.R. § 75.1725(a); and (2) failing to ensure all firefighting equipment was maintained in a usable and operative condition, based on making the leverage bars unavailable and unable to ensure valves could be properly closed, in violation of 30 C.F.R. § 75.1100-3. After an evidentiary hearing, an administrative law judge (“ALJ”) from MSHA found Consol in violation based on their “unwarrantable failure” to comply with the respective regulations, and imposed a civil penalty of $70,000 per violation. After an unsuccessful petition for discretionary review by the agency, the ALJ’s decision was made final and Consol petitioned the Fourth Circuit for review.

Challenges & Standards of Review on Appeal

Through this appeal, Consol challenged the MHSA order on the following three grounds: (1) Consol lacked fair notice that their acts were in violation because MSHA had not previously cited them for such infractions; (2) Addington, the foreman in the accident, was not acting as Consol’s agent and therefore negligence could not be imputed ; and (3) the ALJ erred in finding Consol demonstrated heightened negligence through their failure to comply with the mining regulations.

The Fourth Circuit reviewed the ALJ’s factual findings as they relate to these challenges under the “substantial evidence” standard, which involves assessing “relevant evidence such that a reasonable mind might accept as adequate to support the conclusion.” Almy v. Sebelius, 679 F.3d 297, 301 (4th Cir. 2012). For any legal conclusions, the Fourth Circuit operated under the de novo standard, offering deference to the agency’s interpretations of ambiguities, when necessary. After a full review of the record as a whole, the court proceeded with each of Consol’s three separate challenges under these standards of review.

Court of Appeals for the Fourth Circuit Adopts the “Reasonably Prudent Miner” Test

The court disagreed with Consol’s contention that they were not given adequate notice that their conduct would constitute a violation, and were thus deprived of due process of law when penalized for the violations. Although the court recognized parties subject to administrative sanctions are so entitled to adequate notice of what would constitute proscribed conduct, whether a party lacks such adequate notice hinges on a fact-specific analysis. To make this determination in the specific context of mining and MSHA regulations, the Fourth Circuit chose to adopt the “reasonably prudent miner” test, that both the agency and other Circuit courts have employed in related cases. The test considers “whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.” DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3083, 3087 (Dec. 2014).  The court found this rule more conducive with Congress’s intent to place the responsibility of maintaining safety on the mine operators, as well as the practical limitations of administrative agencies enforcement power if a rule of explicit notice for all potential violations were required. Applying this objective standard to the present case, based on all evidence in the record, the court found that a reasonably prudent miner would indeed recognize that actions and ongoing conditions at Consol’s mine were in violation of MSHA regulations, certainly placing miners at risk, and, thus, Consol had fair notice that their actions could result in sanctions.

Foreman Addington was an agent of the Mine Operator

            The court also disagreed with Consol’s assertion that Addington, the foreman involved in moving the shuttle car that eventually caused the accident, was not an agent of Consol. The court instead found the Addington’s negligence was properly considered in assessing Consol’s negligence. Here, the court looked to the Mine Act, which allows a mine operator to be liable for the negligence of anyone who qualifies as an “agent”, defined as any person “charged with responsibility for the operation of all or part of a coal or other mine or the supervision of the minders in a coal or other mine.” 30 U.S.C. § 802(e). Furthermore, applications of this definition by the agency itself, as well as courts of other Circuits, have yielded a broad definition of agency, not limited to concepts of liability at common law, but instead focused on whether the miner exercised managerial or supervisory responsibilities at the time of his negligent conduct. Here, the court found the ALJ properly determined Addington was serving as a supervisor of the other miners, and therefore Consol’s “agent.” The court did consider the record as a whole, but found the testimony of other miners, referring to Addington as “the boss” and indicating they would have certainly followed his instructions at the time of this valve accident, as most dispositive of his supervisor role at the time of this negligent conduct that led to the accident. As such, the court held that there was indeed substantial evidence to support the ALJ’s conclusion that Addington was Consol’s agent. 

The ALJ Did Not Err in Finding Appellant’s Violations Were “Unwarrantable Failure” to Comply with MSHA Regulations

            Consol’s final challenge, disputing the ALJ’s finding of aggravated negligence based on their “unwarranted failure” to comply with mining regulations, was similarly denied by the Fourth Circuit. An unwarranted failure to comply with such regulations involves conduct otherwise inexcusable or not justifiable, such that the aggravating conduct amounted to more than ordinary negligence. In the initial order, the ALJ considered a variety of “aggravating factors” to determine whether the operator’s conduct was not justifiable, including: the length of time of violative condition, a high degree of danger, the obviousness of the violation, any efforts to abate violative condition, notice of violation, or notice of necessity for further efforts to reach compliance. Again, reviewing the record as a whole under the “substantial evidence” standard, the court found substantial support for the findings regarding Consol’s display of these aggravating factors, including: the extended period of time over which the violations persisted, the obviousness of the open and broken valve, the significant danger these conditions posed to miners, Consol’s knowledge of frequent instances of damage to the valves, and even a prior incident of injury involving the damaged valves. Accordingly, the court found no error in the ALJ’s finding that Consol demonstrated an aggravated lack of due care, more than ordinary negligence, in failing to remedy these dangerous conditions of which they were on notice.

Fourth Circuit Denies Petition for Review

            Upon finding no error in the ALJ’s conclusions that appellant Consol had fair notice of dangerous conditions, and that the fatal accident in question occurred based on Consol’s unwarrantable failure to comply with the applicable regulations, the Fourth Circuit denied Consol’s petition for review of the agency’s order and imposition of civil penalties.


By M. Allie Clayton

On November 1, 2016, in the civil case of Ripley v. Foster Wheeler, LLC, a published opinion, the Fourth Circuit established that the government contractor defense is available in failure to warn cases. The Fourth Circuit reversed and remanded to the Eastern District of Virginia to determine if the government contractor presented sufficient proof to warrant removal under U.S.C. § 1442.

Facts and Procedural History

For over four years in and around the 1970s, Mr. Bernard Ripley worked as a boilermaker at the Norfolk Naval Shipyard. In 2014, when Mr. Ripley was diagnosed with malignant mesothelioma, he and his wife, Deborah Ripley, filed suit in Newport News Circuit Court, a Virginia state court. The Ripleys allege that Mr. Ripley was exposed to asbestos due to products that Foster Wheeler, LLC and Foster Wheeler Energy Corp. (“Appellants”) manufactured for the Navy, and that Appellants are liable for failing to warn Mr. Ripley of the asbestos hazards.

Appellants filed a Notice of Removal and removed the case to the United States District Court for the Eastern District of Virginia. Appellants asserted a government contractor defense, arguing that the suit stemmed from Appellant’s contract with the Navy, thus allowing removal pursuant to the federal officer removal statute 28 U.S.C. § 1442(a)(1). The government contractor defense allows a company that contracts with the military to avoid liability under state-law tort claims for design defects. When the Ripleys moved for remand, the district court granted the motion due to a decades-old practice in the district that denies the government contractor defense in failure to warn cases. Because the federal defense did not apply, according to the District Court, the federal courts had no subject matter jurisdiction. Appellants appealed the grant of the motion for remand.

The Issue

Does the government contractor defense apply to failure to warn cases? If it does, can Appellants, under the federal officer removal statute, remove to the federal district court in order to establish the defense?

The Federal Officer Removal Statute

The federal officer removal statute is an exception to the well-pleaded complaint rule. It allows a defendant to remove a case if the defendant establishes:

  • (1) it is a federal officer or a “person acting under that officer,” 28 U.S.C. §1442(a)(1);
  • (2) a “colorable federal defense”; and
  • (3) the suit is “for a[n] act under color of office,” which requires a causal nexus “between the charged conduct and asserted official authority.” Jefferson Cty., Ala. v. Acker. (alteration and emphasis in original).

The Federal Officer Removal Statute—As Applied

Appellants sought removal based on the government contractor defense as explained under Boyle v. United Technologies Corp.. In Boyle, the Supreme Court held that the government contractor defense applied to design defect cases. The reasons for applying the defense to defect cases were two-fold: (1) separation of powers suggested that the judiciary should be hesitant to intervene in matters of military procurement contracts; and (2) a higher risk of liability for contractors would increase costs to the government and decrease the supply of contractors.

The Eastern District of Virginia in McCormick v. C.E. Thurston & Sons, Inc. had previously held that the government contractor defense was “not available in failure to warn cases.” However, the Fourth Circuit found that most other jurisdictions, including the Second, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits, that have considered this issue held that the defense does apply to failure to warn cases. The Fourth Circuit further found that the reasons for applying the defense to defect cases were equally applicable in the failure to warn cases. The separation of powers consideration was still relevant due to the fact that it was a military contract. Also, the increased costs to the governments due to the increase risk of liability and the decreased supply of contractors was equally relevant in the general failure to warn context, beyond asbestos. Due to the overwhelming amount of opposing precedent and the valid rationales supporting the application of the defense, the Fourth Circuit “join[ed] the chorus and h[e]ld that the government contractor defense is available in failure to warn cases.”


The Fourth Circuit went against precedent that the District Court relied on in remanding the case back to the state court. Because of this shift in doctrine, the Fourth Circuit reversed and remanded the case to the District Court to determine if the Appellants have presented enough proof to warrant removal pursuant to 28 U.S.C. § 1442.


By Daniel Stratton

On December 29, 2015, the Fourth Circuit affirmed in part, and reversed in part, a district court’s dismissal of an inmate’s Federal Tort Claims Act (“FCTA”) claim, after he was stabbed and severely beaten by fellow inmates  in the published civil case Rich v. United States. The appellant, Joshua Rich, argued on appeal that the district court incorrectly dismissed his claim after determining that the FCTA’s discretionary function exception applied to the prison officials’ conduct. The Fourth Circuit, after reviewing Rich’s appeal, affirmed the district court’s determination that the prison officials’ decisions on prisoner placement were shielded by the discretionary function exception, but reversed the lower court’s decision regarding Rich’s opportunity to engage in discovery about the prison officials’ claims that they properly searched Rich’s attackers before placing them in proximity to Rich.

Rich is Sentenced to Fifty-Seven Years, Claims He was Targeted by Aryan Brotherhood While Incarcerated

In 2008, Rich was sentenced by the U.S. District Court for the District of Utah to fifty-seven years’ imprisonment, following his conviction for armed bank robbery, and for carrying a firearm in relation to the crime. He entered the U.S. Bureau of Prison (“BOP”)’s custody in September 2008.

Rich alleges that he was targeted by the white supremacist group, the Aryan Brotherhood, almost immediately after entering the BOP’s prison system for refusing to participate in the group’s criminal activities. Rich was transferred to several prisons over the course of 2008 to 2011 and required separation from the Aryan Brotherhood. In February 2011, Rich was moved to a U.S. penitentiary in West Virginia, USP Hazelton. While at USP Hazelton, Rich was attacked by five inmates on August 5, 2011, after they were put into the same recreation area, or “cage.”

Rich was severely beaten and stabbed multiple times. His injuries included laceration to his liver, among others, and he underwent several invasive surgeries as a result. A nine-inch homemade knife was recovered in the cage where the attack occurred.

Rich sued the federal government under the FCTA, claiming negligence on the part of the prison officials when they failed to protect him from harm. He argued that the prison’s correctional officers should have kept him separated from his attackers, and that those officers had failed to properly screen or search the other inmates before placing them in the same cage as Rich. The government moved to dismiss Rich’s claim, asserting that the discretionary function exception applied to both the prison officials’ decisions about separating Rich and his attackers and to the way in which the officers searched the attackers. The district court agreed with the government, and additionally found that Rich was not entitled to any discovery about whether the prison had any directives mandating a particular approach to performing pat downs and searches. As a result, the district court granted the government’s motion to dismiss for lack of subject matter jurisdiction.

The FCTA, the Discretionary Function Exception, and Their Application to Federal Prisons

The United States is generally immune from suit under the legal doctrine of sovereign immunity, however the FCTA provides an exception. Under the FCTA, sovereign immunity is waived when the federal government “would be liable to the claimant in accordance with the law of the place where the act or omission occurred” for torts like negligence when they are committed by federal employees acting within the scope of their employment.  The FCTA’s discretionary function exception limits this waiver, however, in situations where an employee must perform a discretionary function or duty.

To determine whether conduct fits within this exception, courts generally apply a two-pronged test. First, the court determines if the challenged conduct involves an element of judgment or choice. If a statute, regulation, or policy sets out a specific course of action to the degree that there is no exercise of discretion, then the exception does not apply. If the action does involve an element of judgment, the court must then tackle the second prong, which is to determine whether the judgment was based on considerations of public policy. If it was, then a government employee defendant can assert that the court lacks subject matter jurisdiction under the exception.

If a defendant disputes the allegations in a complaint that could establish subject matter jurisdiction, a court may engage in an evidentiary hearing to determine if there are facts that support the jurisdictional allegations. Generally, under these circumstances, a plaintiff’s allegations in his complaint are not afforded a presumption of truthfulness. However, if the jurisdictional facts are intertwined with merit facts central to the complaint, a presumption of truthfulness will attach to the plaintiff’s claims. While the application of the discretionary function exception to decisions about the separation of prisoners is an issue of first impression for the Fourth Circuit, other circuits have weighed in on this issue previously.

The Fourth Circuit Decides that the Discretionary Function Exception Applies to Decisions about Separating Prisoners

The Fourth Circuit began its analysis by determining if the discretionary function exception applied to the prison officers’ decision to place Rich and his attackers in the same cage. The first step in this analysis was to apply prong one of the two-pronged test. Noting that the BOP is tasked with protecting and caring for all persons in its custody, the Fourth Circuit explained that the BOP retained discretion in implementing those tasks. Prison officials must consider and balance several factors when determining if an individual inmate may require separation. This, the Court concluded, satisfied the first prong of the test.

The Court, noting the issue of first impression, drew on other circuits’ experiences in determining whether the second prong was met. Other circuits, including the Seventh, Ninth, Eleventh have previously held that prisoner placement and potential threats to prisoners against one another was a standard part of the public policy considerations of maintaining order and security in federal prisons. Those circuits viewed factors such as available resources, proper classification of inmates, and appropriate security levels as inherent in various policy questions. Following in the other circuits’ footsteps, the Fourth Circuit agreed that prison officials should be afforded discretion in determining prisoner placement and separation. This, the Court held, meant that the discretionary function exception shielded prison officials from liability regarding whether they should have kept Rich separated from his attackers.  The Fourth Circuit, in turn, affirmed the lower court’s refusal to grant discovery on this issue.

Turning to the question of whether Rich should be granted discovery as to his allegations that the prison did not properly search the attackers before putting them in his recreation cage, the Fourth Circuit diverged from the district court. On this claim, the Fourth Circuit found that the disputed jurisdictional facts were intertwined with the merits of Rich’s claim that the prison had not properly executed pat downs of the attackers. Citing the fact that the prison officials’ signed declarations that they had performed pat downs of the attackers stood in contrast to Rich’s allegations, the Fourth Circuit explained that the allegations applied to both the merits of Rich’s claim as well as the jurisdictional questions over his claim.

The Court argued that a period of discovery would give Rich the opportunity to challenge the prison officials’ declarations that they carried out the searches. The Court also explained that even if they accepted the declarations as fact, those did not resolve the question about whether the pat down searches were carried out correctly. The Fourth Circuit reasoned that because the pat downs were to be conducted as outlined in the Correctional Services Manual, this suggested the existence of specific directives which Rich should be permitted to find in discovery.

Because inmates who have a history of weapons possession are required to undergo visual searches, including a body cavity search, prior to entering a recreation area, discovery could reveal whether any of the attackers had such a history and if such a search was undertaken.

The Court finally noted that Rich could potentially establish jurisdiction under this claim if he could show that the discretionary conduct engaged in by the prison officers was marked by carelessness or laziness, because such conduct cannot be grounded in policy decisions.

The Fourth Circuit Vacates and Remands to Allow Discovery on the Prison Officials’ Pat downs

While the Fourth Circuit affirmed that the discretionary function exception shielded the decision to place Rich and his attackers in the same recreation cage, the Court vacated and remanded to allow Rich to engage in discovery on the issue of whether and how prison officials performed pat downs and searches.

By: Michael Klotz

Today, in the published opinion of Joseph Antonio v. SSA Security Inc. the Fourth Circuit affirmed the decision of District Judge Alexander Williams, Jr. of the District Court of Maryland. The issue on appeal was whether the Maryland Security Guards Act (“MSGA”) imposes liability on a security guard employer beyond the common law liability imposed under the doctrine of respondeat superior. The Fourth Circuit certified this question of state law to the Court of Appeals of Maryland, which concluded that the MSGA does not expand the doctrine of respondeat superior. On this basis, the Fourth Circuit affirmed the lower court decision granting summary judgment to the Defendant.


This case involves one of the largest residential arsons in Maryland history. On December 6, 2004, several men burned more than a dozen of homes in “Hunters Brooke,” a newly developed neighborhood in Charles County, Maryland. At the time of the fire, Hunters Brooke employed SSA Security, Inc. to provide security services for the complex. The evidence indicates that Aaron Lee Speed Sr. and William Fitzpatrick, who were working as security guards for SSA Security, Inc., carried out this arson. The motive for their crime was racial animosity against the African-Americans and other minorities living in the community. Ninety percent of the homes damaged were either owned by minorities or under contract to be purchased by minority buyers.

Procedural History

The Plaintiffs, thirty victims of the fire, filed this lawsuit against the arsonists in their individual capacities, as well as against SSA Security, Inc., ABM Industries Inc. (the parent company of SSA Security, Inc.) and Security Services of America, LLC (the predecessor of SSA Security, Inc.). The district court granted summary judgment to SSA Security, Inc. on the negligence-based claims of the Plaintiffs and on their claim under the MSGA. On appeal, the Fourth Circuit affirmed the decision granting summary judgment on the negligence-based claims, but certified to the Court of Appeals of Maryland the question of whether Maryland Security Guards Act expands the scope of respondeat superior such that an employer may be held liable for the off-duty criminal acts of a security guard employee that have been planned (at least in part) while on duty.

 Applicable Law

The Maryland Security Guard Act states as follows: “A licensed security guard agency is responsible for the acts of each of its employees while the employee is conducting the business of the agency.” On March 2, 2015, the Court of Appeals of Maryland responded to the certified question posed by the Fourth Circuit. The Court of Appeals of Maryland analyzed the plain language of the MSGA, its context in the Maryland code, the legislative history behind this statute, and the policy considerations behind the law. On this basis, the Court of Maryland concluded that the law “has the same meaning as Maryland’s common law doctrine of respondeat superior.” Thus, the MSGA does not extend respondeat superior liability to an employer when an employee, working as a security guard, plans a crime during working hours.


The decision of the Fourth Circuit, once the certified question had been answered by the Court of Appeals of Maryland, was straightforward. The Fourth Circuit had already concluded that summary judgment was correctly granted to the Defendant on the negligence-based claims of the Plaintiffs. Given that the Court of Appeals of Maryland held that the MSGA does not expand respondeat superior liability beyond the existing common law standard, summary judgment was correctly granted on this claim.

By: M.H. Matthews*


* Fellow in Law, University College, Oxford; CUF Lecturer in Law, Oxford University. In writing this Article I have, with the kind permission of the Oxford University Press, drawn on the material that appears in chapter 3 of MARTIN MATTHEWS, JONATHAN MORGAN & COLM O’CINNEIDE, HEPPLE & MATTHEWS’ TORT: CASES AND MATERIALS (6th ed. 2008). I have also benefited from the comments of David Partlett and Mike Green, and additionally from views expressed at the Symposium. The usual exemption applies.

By: Gregory C. Keating*


* William T. Dalessi Professor of Law and Philosophy at the Gould School of Law at the University of Southern California. I am grateful to Nataline Viray-Fung for valuable research assistance, to the participants in this Symposium, to the attendees at a faculty workshop at Bar Ilan University in Israel, and to Arial Porat for many helpful comments. I am also grateful to Seana Shiffrin for several illuminating discussions of harm. Errors remain mine.

By: John C.P. Goldberg*

Benjamin C. Zipursky**


* Professor, Harvard Law School.
** Visiting Professor, Harvard Law School (Spring 2009); Professor & James H. Quinn Chair in Legal Ethics, Fordham University School of Law. Thanks to Mark Geistfeld, Stephen Perry, Tony Sebok, Robert Stevens, Ernest Weinrib, and members of the New York City Torts Group for helpful comments. Thanks also to the Symposium organizers for inviting us to reengage with the Restatement (Third). Although our writings on its physical-harm provisions have been critical—constructively so, we hope—we are pleased to have another opportunity to acknowledge the fine and important work of Reporters Mike Green, Gary Schwartz, and Bill Powers.