Victoria Sarlo v. Beasley Broadcasting of Philadelphia, et al., PCCP, October Term, 2016, No. 02028

Plaintiff commenced a personal injury negligence action by filing a Complaint alleging she suffered multiple injuries to her face and jaw after being tossed from a mechanical bull she was riding at a local bar (hereinafter the “Bar”). Rawle & Henderson LLP’s client, a radio station and its disc jockey (“DJ”), were accused of “encouraging” her to re-mount the mechanical bull by “promising” free drinks to the house if she successfully rode the bull during her second attempt.

Upon analyzing the legal basis of the Complaint against the radio station, it appeared that plaintiff’s negligence claim against the radio station lacked a valid basis to proceed since the mechanical bull was owned and operated by the co-defendant Bar.

We filed Preliminary Objections to plaintiff’s Complaint. The basis of the Preliminary Objections was the legal insufficiency of the Complaint in that it failed to assert a viable legal claim for recovery. Specifically, we asserted that plaintiff’s Complaint failed to either identify any duty owed to plaintiff or allege how any duty caused plaintiff to be injured. In response, plaintiff filed an Amended Complaint.

In her Amended Complaint, plaintiff alleged that our client’s DJ “encouraged” her to remount the mechanical bull and offered “free drinks” to the crowd if plaintiff successfully rode it after her first failed attempt. Plaintiff also asserted that the radio station failed to warn plaintiff of the dangers associated with the mechanical bull.

Plaintiff also claimed in her Amended Complaint that the DJ “was acting as an agent of the Bar and/or with the actual or apparent authority to offer free drinks to the crowd in order to entice plaintiff to attempt another ride.”

We filed Preliminary Objections to Plaintiff’s Amended Complaint for its failure to state a valid legal claim, again asserting the lack of any legal duty and legal causation.

The Court entered an Order sustaining our Preliminary Objections and dismissing Plaintiff’s Amended Complaint without prejudice. The Court permitted plaintiff to file a Second Amended Complaint.

Plaintiff filed her Second Amended Complaint, making slight modifications to the language in her pleading. We filed Preliminary Objections to Plaintiff’s Second Amended Complaint.

Once again, the Court entered an Order sustaining our Preliminary Objections without prejudice, though giving plaintiff permission to file a Third Amended Complaint.

Plaintiff then filed her Third Amended Complaint. Plaintiff attempted to bolster her characterization of the DJ as an “agent” of the Bar and his conduct as causing her injuries.

We filed Preliminary Objections, contending that Plaintiff’s fourth attempt to plead a viable negligence cause of action failed again—simply because there is no viable cause of action. We argued that Plaintiff’s negligence claim against the   station could not stand, either under an “agency” theory or as the alleged “occupier” or “possessor” of the Bar. Moreover, under any theory, the alleged conduct could not be the “cause-in-fact,” and the “legal, proximate cause” of her alleged injuries.

At its core, we argued that Plaintiff’s claim was based on the conduct of the party who, in fact, operated and controlled the mechanical bull, the alleged or arguable “offending” condition, and who, legally, was responsible for operating and controlling the mechanical bull she voluntarily rode. We also argued that the allegations against our client, even if true, amounted to no more than “cheerleading.”

Though plaintiff attempted to characterize our DJ as an agent of the Bar, she pleaded that the Bar’s employee “…maneuvered the mechanical bull or programmed” it so she would fall off and the Bar would not have to give free drinks. We also noted there were no facts pleaded that the DJ operated or controlled the mechanical bull, or controlled the actions of the Bar employee, who was, in the words of plaintiff, “…operat[ing] the mechanical bull… in such a fashion to ensure that the Plaintiff would not successfully ride.” We candidly conceded that even if some agency relationship existed between the DJ and the Bar as plaintiff alleged, such relationship could have done nothing more than bind the Bar to provide the free drinks allegedly offered to the crowd by the DJ.

We also argued that our client could not be considered the “possessor” of the Bar, potentially triggering a legal duty, since, as pleaded, the co-defendant Bar owned and ran its bar (and bull) on the day in question.

Finally, we argued there was no proximate cause—both cause-in-fact, and legal cause. What allegedly caused plaintiff to fall and get hurt was the operation of the mechanical bull which Plaintiff claimed was “maneuvered’ or “programmed” by the Bar to cause her to fall and not any alleged promise of “free drinks.”

On May 24, 2017, the Court sustained our Preliminary Objections and finally dismissed the Third Amended Complaint with prejudice.