Crown v. Anthony Kiedas et al.
Case No. (Law) 104901
27
HEADNOTES: [**1]
A servant is not responsible for the intentional torts of his master.
In this case, a concert booking agent was found to have no duty to control the
conduct of members of the band for whom he acted.
In this case, no special relationship was alleged between the concert booking
agent and the plaintiff in order to establish any duty of protection against
the members of the band for whom the former acted.
JUDGES:
Judge Thomas A. Fortkort
OPINIONBY: FORTKORT
OPINION: [*371] This case is before the
Court on the Demurrer of defendant Lindy Goetz/L.G. Management to the
plaintiff's Motion for Judgment. After hearing oral argument, the Court took
the matter under advisement. For the reasons set forth below, the Demurrer is
sustained. The plaintiff may amend the Motion for Judgment as to Lindy
Goetz/L.G. Management, if she wishes to do so, within 21 days of this letter
date.
The events giving rise to this litigation are given in the plaintiff's Motion
for Judgment and in the parties' memoranda. The defendants Anthony Kiedas, John
Fruscianti, Chad Smith, and Michael Balzary, appearing as "Red Hot Chili Peppers," held a concert on the campus of George Mason
University on
Count II claims $ 1,000,000 in consequential damages from the defendants Lindy
Goetz/L.G. Management and Variety Artists International. The plaintiff contends
that these defendants knew or should have known that the band members had acted
in a violent and sexually abusive manner before and after previous concerts,
and that the assault and battery as described in Count I of
the Motion for Judgment were likely to occur. The plaintiff claims that
these defendants owed a duty to the plaintiff not to expose her to the
likelihood of such assaults, and that as a result of the breach of that duty, the band members injured the plaintiff.
Count III of the Motion for Judgment contends that the defendants Commonwealth
of Virginia and George Mason University owed a duty to
the students in public universities in Virginia to protect them from the acts
of persons brought onto campus and to ensure that the activities of
campus-sponsored organizations [**4] do not
expose the student body to unnecessary and foreseeable risks. The plaintiff
claims that the Commonwealth and GMU knew or should have known that the band
members had acted in a violent and sexually abusive manner before and after
previous concerts. She also claims that as a direct result of the breach of
duty by the Commonwealth and GMU, the plaintiff sustained injuries from the
band members. In this Count, the plaintiff seeks consequential damages of $
1,000,000. The plaintiff also asks for $ 1,000,000 in punitive damages from all
defendants.
The Court has before it today the Demurrer of defendant Lindy Goetz/L.G.
Management. As grounds for the Demurrer, the defendant
[*373] claims that he did not owe any duty of care to the
plaintiff to protect her from the harm caused by the band members. In their
Memoranda on the Demurrer, both parties cite Marshall v. Winston, 239
Va. 315, 389 S.E.2d 902 (1990), in providing Virginia law as to the duty to
protect another from the criminal acts or intentional torts of third parties:
Generally, a person owes no duty to control the conduct of third persons in order
to prevent harm to another . . . . This is especially the case when the
third [**5] person commits acts of
assaultive criminal behavior because such conduct cannot reasonably be foreseen
. . . .
The general rule applies unless "(a) special relationship exists between
the actor and the third person which imposes a duty
upon the actor to control the third person's conduct, or (b) a special relation
exists between the actor and the other which gives to the other a right to
protection." Restatement (Second) of Torts § 315 (1965).
The plaintiff contends that the duty of Lindy Goetz/L.G. Management is based
upon both sections of this exception to the general rule. Under subsection (a),
she claims that Lindy Goetz had a special relationship with the band members
that imposed on him a duty to control their conduct. The plaintiff bases this
claim on Goetz's contractual relationship with the band members, his
negotiation of their contract with GMU, and his knowledge of their violent and
sexually abusive conduct toward women. She also claims under subsection (b)
that a special relationship existed between her and Lindy Goetz that imposed on
him a duty to protect her from the injury.
The first question before the Court in ruling on [**6] the Demurrer
is whether a special relationship existed between Lindy Goetz and the band
members such that Goetz, who was acting as agent for the Red Hot Chili Peppers Band, is responsible for their intentional torts. The
Restatement offers as examples of this special relationship that of a parent
controlling the conduct of his child, a master controlling the conduct of his
servant, a possessor of land or chattels controlling the conduct of a licensee,
and a person taking charge of dangerous person controlling the conduct of that
dangerous person. Restatement (Second) of Torts §§ 316-319. The parent-child,
master-servant, and [*374]
licensor-licensee examples given in Restatement §§ 316 to 318 are clearly
inapplicable to Goetz's relationship with the band members.
The master-servant relationship, however, is worthy of some discussion here
because this relationship exists between Red Hot Chili
Peppers and Lindy Goetz and confusion may arise as to which party is
responsible for the acts of the other. Restatement § 317 states the duty of a
master to control the conduct of the servant:
A master is under a duty to exercise reasonable care so to control his servant
while acting outside the scope [**7] of his employment as to prevent
him from intentionally harming others or from so conducting himself as to
create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant
is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant,
and
(ii) knows or should know of the necessity and opportunity for exercising such
control.
This Restatement section is applicable when the servant is acting outside the
scope of his employment; if the servant is acting within the scope of his
employment, the master may be vicariously liable for his conduct under the
agency principle of respondeat superior. In the case presently before
the Court, however, it is the servant who is charged with liability for the
conduct of the master. A servant cannot be held liable for the intentional acts
of the master under basic principles of tort law; foreseeability of the
master's conduct, for example, is in no way available to the servant. Although Red Hot Chili Peppers and Goetz stand in a master-servant [**8] relationship to one another, the relationship is
inapplicable in determining Goetz's liability.
The Restatement offers one final example of the special relationship mentioned
in § 315(a) which merits consideration in ruling on the Demurrer presently
before the Court. Restatement § 319 describes the duty of one in charge of a
person having dangerous propensities: "One who takes charge of a third
person whom he knows [*375] or should know
to be likely to cause bodily harm to others if not controlled is under a duty
to exercise reasonable care to control the third person to prevent him from
doing such harm." Restatement (Second) of Torts § 319.
The Virginia Supreme Court recently addressed this type of special relationship
in Fox v. Custis, 236 Va. 69, 372 S.E.2d 373 (1988), finding that a
probation officer and a parole officer did not have a special relationship with
a parolee who committed numerous torts in violation of his parole. The Court
determined that the officers in Fox did not "assert custody in the
sense that the parolee is in the personal care and control of the
officer."
As to the present case, this Court finds no duty on the part of Lindy Goetz to
control the conduct of the defendant band members. Although for the purposes of
Demurrer the band members may be presumed dangerous, Goetz cannot be considered
to have asserted custody over the band members as is required under Fox
for a finding of liability. Goetz's contractual relationship with the band
members, his negotiation of their contract with GMU, and his knowledge of their
violent and sexually abusive conduct toward women do not rise to the level of
"taking charge" of these third persons as defined by Restatement §
319 and Virginia case law.
The second question in ruling on the Demurrer is whether a special relationship
existed under Restatement § 315(b) between Lindy Goetz and the plaintiff which
would give the plaintiff a right to protection provided by Goetz from the
conduct of the band members. Restatement § 314 gives as
examples of this special relationship that of carrier-passenger, business
invitor-invitee, and innkeeper-guest. The Virginia Supreme Court has
addressed this special relationship [**10] as
well in cases in which a tenant seeks to recover damages from his landlord for
injuries inflicted on the tenant by a third person. In Klingbeil Management
Group Co. v. Vito, 233 Va. 445, 357 S.E.2d 200 (1987), for example, the
Court found that no special relationship exists between the landlord and tenant
which would give rise to the landlord's duty to protect the tenant from the
intentional torts of third parties.
The plaintiff argues in her Memorandum in Response to the Demurrer that
The Court therefore sustains the Demurrer because the plaintiff has not
properly alleged a special relationship between Lindy Goetz and the members of Red Hot Chili Peppers which would give rise to Goetz's duty to control the
conduct of the band members, or between Lindy Goetz and the plaintiff which
would establish Goetz's duty to protect the plaintiff from the band members'
actions. However, the plaintiff may amend the cause of action against Lindy
Goetz/L.G. Management, if she is able and wishes to do so, within twenty-one
days of this letter date.