What legal troubles could Twitch face after the TwitchCon foam pit incident? Professionals weigh in

TwitchCon is wrapped, but for some attendees, they’ll be going home with more than just memories. For the three, and possibly more streamers, injuries sustained at the now infamous TwitchCon foam pit will be bitter reminders of the event.

For many observers, the first thing that came into their minds was Twitch’s liability over the injuries at TwitchCon and the potential for lawsuits. However, much of this was just speculation on Twitter, and no professional opinions were sourced.

Esports.gg was approached independently by an attorney and a health and safety professional. The attorney had defended sports facilities with Ninja Warrior-style attractions, trampolines, and other similar foam pits. The health and safety professional had spent several years advising kids’ play areas, carnivals, and other locations, which have had similar foam pits. Both shared their thoughts on the situation and what lay in store for Twitch. 

“Helmets” is the first word out of the H&S professional’s mouth. “Helmets or headgear. I’d want to see at least five to six feet of foam.” In the ideal setup, the platforms would be lower, practically submerged in the foam. In an indoor environment, they’d advise nets around the area to prevent spectators from falling in and participants from falling out. Helmets or headgear and other kinds of protective equipment would also be provided. 

“Then something like a crash pad or an inflatable. Something with a lot of give. They sell prefabricated inflatables in this exact configuration.” A cursory Google search suggests that an inflatable like this can be rented for around $200.

According to the attorney, who had toured several trampoline facilities, the setup at TwitchCon was also strange. “[in the facility] There were trampolines about three to four feet off the ground and then about six-foot depth of foam blocks. That amount of blocks plus the trampoline allows the force of anyone jumping in to disseminate properly.” That’s a far cry from the TwitchCon situation. “Here, with only a foot and then concrete, that force comes right back and causes injury.”

According to our sources, there’s “definitely a lot of legal trouble for Twitch upcoming.” However, Twitch’s lawyers will likely shift the blame to the company that set up the foam pit. If that isn’t TwitchCon employees themselves. 

Additionally, the convention center may be in the firing line for a. As the venue and host of TwitchCon, they’ll likely be one of the main parties involved in any lawsuit. 

Finally, sponsors of the attraction could potentially be sued. But most contracts relating to sponsorship would reportedly be indemnity agreements. So if the sponsors are sued, Twitch would likely have to defend and pay any associated costs on the sponsors’ behalf.

Our initial article suggested that the waivers signed were not as strong as initially thought. The attorney we spoke to confirmed our suspicions. There was even an exact legal precedent. 

“I practice on the East Coast, but I remember using this case, Tunkl v. Regents of the University of California, 383 P.2d 441 (Cal. 1963) to find out if a waiver is valid or violates public policy.”

According to this, waivers can be subject to heavy scrutiny due to a number of factors. Firstly, whether the waiver concerns a business that is publicly regulated (so the convention center, Twitch, and any potential company that set up the foam pit). Secondly, whether the business disclaiming liability is performing a service of great importance to the public, and thirdly whether that business is open to the public. All of these seem to fit the bill of TwitchCon and the convention center. “Twitch is regulated, community gatherings are important, and it’s open to the public with only having to buy a ticket.”

Next, it comes down to legal responsibility. It has to be determined If the business has presented the public with a standardized waiver; and whether, as a result of the waiver, the person comes under the control of the business and is at risk of their negligence. 

“Twitch presents a waiver that you have to sign to get in. Or, in this case, perform without the ability to bargain over terms. The waiver would be invalid because, essentially, with so many activities set up, a performer or the public would not have the means or capability of inspecting the safety of every single thing there. So if they see a foam pit, they don’t have the technical knowledge to know whether it’s safe or not.”

Our source caveats that the precedent is only valid if the case is still clear and unqualified by later rulings.

Ultimately, this spells bad times for Twitch. The company is already in the midst of a row with its creators over revenue splits, and will likely now face a lawsuit following TwitchCon. It is rumored that Twitch has already approached several parties with a settlement offer. However, the more likely situation is that Twitch will face several civil lawsuits consolidated due to the shared occurrence of negligence. Whatever the case, though, this story isn’t going away any time soon.