In early May, a Dallas man named Robert Tucker filed a lawsuit against Dick, his agent the United Talent Agency (UTA) and a Dallas club named Trees where Dick had a show this past December. In the lawsuit, Tucker seeks damages against Dick, UTA and Trees for offensive physical contact, intentional infliction of emotional distress and defamation by conduct, plus separate claims for negligence against UTA and Trees, and yet another claim in premises liability against Trees.
Now here’s what happened: In December 2010, Dick was performing at a club in Dallas, Texas, and was dressed in a red skirt (with no underwear beneath), plus a black top and a wig. Then, as Dick moved among the audience, Tucker asked him for an autograph. Dick then allegedly pulled up a bar stool beside Tucker and proceeded to force his genitals against the left side of Tucker’s face. The night before, Dick reportedly pulled the same act in another club in Austin, TX, when while standing onstage, he pulled another patron’s head into his groin.
The claim against Dick gives Tucker personally his best chance of winning something in this lawsuit. Under the law, an offensive physical contact or battery occurs when one person deliberately makes physical contact with another person without their consent and without lawful excuse. Also, an intentional infliction of emotional distress occurs where one person does a wrongful act so egregious and outrageous that it crosses the line of decency and what can be tolerated in a civilized society. Defamation by conduct occurs where one person’s conduct damages the other person’s reputation by creating the false impression that the other person who is suing is something that they are not or that they did something they did not in fact do. At the minimum it seems that Dick may well be liable for causing an offensive physical contact or battery. He didn’t have Tucker’s consent to do what he did to him and it is hard to see what lawful excuse he had for his actions. And Dick’s odds of beating the other claims against him are not so good.
But the case against UTA (his agent) and Trees (the club that booked him) is not so straightforward and is a harder case to win. Yet, this would mark the first time that anyone is trying to make the folks who do business with Dick accountable for his bad boy behavior.
Here, Plaintiff Tucker is trying to rope them in along with Dick under a theory called “vicarious liability” where one person is held liable for the actions of another. And Tucker is making a big deal of the fact both UTA and Trees knew of Dick’s bad boy behavior and that they still arranged shows for him just so they can make money off his bad behavior.
But the catch here is that “vicarious liability” claims usually cover master-servant relationships, as in employer or employee situations where the employee is subject to the “control” and direction of the employer. In this case, Dick as a comedian is more of an independent contractor doing business with UTA and Trees, and is not their employee.
Plus, when we are dealing with an intentional (mis)conduct, like the actions taken by Dick in this case, it is pretty hard to show that one person authorized another to commit a wrongful act (or “tort”), especially when the person who committed the wrongful act is not an employee but an independent contractor. Again, since Dick is not an employee of either UTA or Trees, and he is not subject to their control and direction in the way he did his job as a comedian, Tucker’s claim against them for negligence in choosing to work with Dick despite their knowing about his past behavior likely won’t get far.
But of all the claims against Dick’s business partners here, the case against Trees for premises liability is the one that in other circumstances might have some legs. This is because having paid money to watch the show, Tucker is an “invitee” to the club and Trees, as an occupier of land, owes him a duty to take steps to keep the premises safe for his visit. Yet, that duty does not cover all circumstances and would only extend to dangers that the club owner could actually prevent. This is because Trees is not an insurer for Tucker or anyone’s safety.
And regardless of what Trees may have known about Dick’s past behavior, it is hard to show that Trees could have foreseen and prevented Dick’s sudden and unexpected mistreatment of a member of the audience who had merely asked for his autograph. After all, it’s not as if we are not talking here about a loose overhead electric bulb falling onto Tucker’s head – quite simply, Dick is the problem here. Period!
In the end, the obvious lesson for comedians from this case is that as far as consequences go, there is a line between what they say and what they do – whether onstage or offstage. Translation: though they may not get in trouble for making offensive and outrageous remarks while doing a shtick onstage (thanks to the First Amendment), comedians – just like everybody else – may yet get in trouble for acting out in physical ways.