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Kimberly Myers v. Angelo Christopher Moore

September 22, 2011

KIMBERLY MYERS,
PLAINTIFF,
v.
ANGELO CHRISTOPHER MOORE, A/K/A DR. MADD VIBE; FISHBONE; SILVERBACK ARTIST MANAGEMENT; THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA D/B/A WORLD CAFE AND/OR WORLD CAFE LIVE! AND D/B/A WXPN AND/OR XPN; REAL ENTERTAINMENT-PHILADELPHIA, INC. D/B/A WORLD CAFE AND/OR WORLD CAFE LIVE!,
DEFENDANT.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

This case arises out of an incident that took place at a performance by the musical group Fishbone on February 23, 2010, at the World Cafe. At the performance in question, the lead singer of Fishbone, defendant Angelo Christopher Moore ("Moore"), jumped into the crowd, knocking the plaintiff to the ground, causing severe injuries.

Plaintiff filed suit against Moore, Fishbone, Silverback Artist Management ("Silverback"), the Trustees of the University of Pennsylvania, and Real Entertainment-Philadelphia ("Real Entertainment") for negligence in producing the concert and failing to warn the audience that the concert would feature "stage diving." Plaintiff also asserted claims of civil conspiracy against all defendants and assault and battery against Moore and Fishbone. Silverback is Fishbone's manager, and Real Entertainment is the owner and operator of the World Cafe.

Presently before the Court are three motions for summary judgment: (1) Silverback's Motion for Summary Judgment, (2) Silverback's Motion for Partial Summary Judgment on the issue of punitive damages, and (3) Real Entertainment's Motion for Partial Summary Judgment on the issue of punitive damages. The Court concludes that there are genuine issues of material fact involving Silverback's liability, and thus its Motion for Summary Judgment is denied. Similarly, the Court finds that there are genuine issues of material fact as to whether Silverback or Real Entertainment acted with reckless indifference to the rights of the plaintiff, and thus both motions for partial summary judgment on the issue of punitive damages are denied.

II. BACKGROUND

A. The World Cafe Performance

On February 23, 2010, plaintiff attended a Fishbone performance at the World Cafe,*fn1 a live music venue in Philadelphia, Pennsylvania. (Compl. ¶ 10.) During the performance, Moore leapt from the elevated stage into the crowd, knocking plaintiff to the ground and causing severe injuries. (Id. ¶ 14.) Silverback did not inform the World Cafe employees or the audience that Fishbone performances often involve such "stage diving." (Dep. of Jess Thibodeau ("Thibodeau Dep."), Pl.'s Resp. Ex. 2, at 44, 51.)

B. Silverback's Role

Silverback was Fishbone's manager at the time of the performance at issue, but the parties dispute two central questions about Silverback's role in the production of the performance: (1) whether Silverback was involved in booking the concert at the World Cafe; and (2) whether and to what degree Silverback exercised control over the crew that worked the day of the performance.

The parties dispute whether Silverback participated in booking the Fishbone performance at the World Cafe. Silverback's name appears above one of the signature lines on the contract between Fishbone and the World Cafe. (Pl.'s Resp. Ex. 18, at 1.) While the contract is not executed by Silverback, Neil Sulkes, the Manager of the World Cafe, testified in his deposition that a copy of the contract signed by a representative of Silverback exists "somewhere." (Dep. of Neil Sulkes ("Sulkes Dep."), Pl.'s Resp. Ex. 6, at 15.) However, Jon Phillips, the co-owner of Silverback, testified at his deposition that Silverback does not contract with venues on behalf of any of the artists it manages. (Dep. of Jon Phillips ("Phillips Dep."), Pl.'s Resp. Ex. 1, at 10--11.)

The parties also dispute the nature of the relationship between Silverback and the crew that worked the day of the performance. Silverback's contact person on Fishbone's tour was Jess Thibodeau. Phillips testified that Thibodeau was an independent contractor and not a Silverback employee. (Id. at 64.) Phillips also testified that Silverback was not responsible for paying any of the members of the crew that worked on Fishbone's tour. (Id. at 90.) However, Thibodeau testified that he kept an email address at Silverback and that his business cards contained Silverback's address, facsimile number, and logo. (Thibodeau Dep. 31--34.) Further, Moore stated that Silverback was, in fact, responsible for paying the crew members. (Dep. of Angelo Moore, Pl.'s Resp. Ex. 3, at 66--67.)

C. Real Entertainment's and Silverback's Knowledge

The parties dispute whether Real Entertainment knew in advance of the performance that Moore would stage dive. While it is unclear whether members of Fishbone or the touring crew ever notified Real Entertainment employees that stage diving would be a part of the performance, Moore is well-known in the industry for his antics on stage, including stage diving. Fishbone's MySpace internet page is headlined with a picture of Moore jumping into the audience at a performance; the same picture is featured on the cover of Fishbone's latest album, which was on sale at the World Cafe performance. (Pl.'s Resp. Exs. 22, 25.) ...


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