This past April, something really nice happened to George Wallace: A friendly nod from a Las Vegas jury made the funnyman more than a million dollars richer and sent him smiling to his bank. And for working comics everywhere who either travel for gigs around the country or do their gigs locally, Wallace’s win is certainly good news not least because it could happen to them in a similar situation. But the case also offers an opportunity for most industry observers to consider the other kinds of circumstances that could arise when working comics are hired to perform gigs at any venue. As it happens, each of these circumstances carries different consequences for the comedians as well as the venues that hire them. But first, here’s the story:
In December 2007, Wallace, the longtime resident showman at The Flamingo in Las Vegas, was hired to perform at a private party at a casino resort, the Bellagio, also in Las Vegas. However, sometime during the performance, Wallace tripped on some loose wires onstage and ruptured his Achilles tendon. Following his injuries, Wallace sued the Bellagio for negligence, claiming damages for loss of earnings in the present and in the future, medical expenses as well as for pain and suffering. This past April, after a full trial, the jury found the Bellagio liable for negligence and awarded Wallace the sum of $1.3 million. To be sure, Wallace’s injuries from his fall were not a joke at all: Aside from enduring tremendous pain and suffering, Wallace was also forced to quit doing his long running show at the Flamingo.
Before considering other situations that comedians might encounter when they go out to do gigs, perhaps it is useful to start by looking at why Wallace won his court case in the first place. For starters, when a person files an action for negligence, like Wallace did against the Bellagio, his point (in plain terms) is that the other person he is suing has failed to exercise the level of ‘care’ that the law requires people in those kinds of situations to exercise for the benefit and protection of other people. In each negligence lawsuit, the person who is suing is often the person who has been injured due to the carelessness of the person being sued. Needless to say, in order for the person who is alleged to have been negligent (or careless in layman’s language) to be on the hook for damages, the other person must have sustained an actual injury. No injury no damages.
In Wallace’s case, the carelessness (or want of due care) that he alleges against the Bellagio was that loose wires were allowed to be present onstage which then caused him to stumble during his performance. Speaking of the level of care required in these kinds of situations, the law applies the standard of a ‘reasonable person’ in each situation. In this case, the jury’s verdict in favor of Wallace means the jury thought that a reasonable venue in Bellagio’s situation would not allow loose cables onstage during a comedian’s performance any more than a reasonable store in Walmart’s position or Duane Reade’s position would allow puddles of water on the floor of their aisle during business hours when customers are present. In nailing the Bellagio for negligence, Wallace had the good fortune that some employee of the Bellagio itself had taken photos of the stage after the performance, which showed loose cables coming out of two speakers. To be sure, Wallace appreciated the employee’s help all right. “Thank God for that employee at the Bellagio,” Wallace remarked.
And when injury occurs in a negligence claim, a plaintiff like Wallace could actually claim damages for lost income both backwards and forwards against a defendant like the Bellagio. (Plus, of course, damages for things like pain and suffering and medical expenses.) In Wallace’s case, he sought millions of dollars in damages, first for the earnings he lost because of his injury and then for all the money he won’t be making in the future because of his injury. Well, he ended up not getting as much money as he’d originally asked because, obviously, it all comes down to what the jury believes is fair. In this case, the jury gave Wallace $1.3 million for lost income, pain and suffering and his medical bills. Interestingly, the jury gave nothing to Wallace for his expected loss of earnings in the future. Why? Simple answer: “He was back to making the money he was making before,” explained the jury foreman. (Wallace’s view that the injury had caused him to walk with a permanent limp apparently did not sway the jury when it came to matters like his claim for ‘future earnings’.)
As indicated above, aside from what happened to Wallace, there are other situations where comedians who are out there performing gigs could face some trouble onstage. Now, what if, for instance, somebody in the audience at the Bellagio would have attacked and beaten up Wallace while he was onstage because of something he said. Suppose that Wallace was so badly injured during such an attack that he couldn’t perform his gigs for a while. Could he, in those circumstances, have been able to go after the Bellagio seeking damages for his injuries? Well, as tempting as it might be to say he could sue them, the correct answer is most likely that he can’t. For starters, he wouldn’t be able to sue the Bellagio for negligence because here we’re not talking about some accident or some other case where the Bellagio failed to exercise reasonable care for his protection. Rather, we are dealing with what would be an intentional act by somebody else for whom the hotel would not be responsible. The attack here would be an assault and battery, which is an intentional tort. Generally, event venues like the Bellagio and others are not held liable for those kinds of random acts perpetrated by patrons at their facility. Why? Because they usually would not have foreseen such outbursts in advance and therefore couldn’t have been able to prevent them.
Yet it doesn’t mean that the attacker would go scot free. In such a case, Wallace would simply have to sue him directly for damages for assault and battery and take his chances that the guy isn’t some loser who has no ability to pay any jury award that Wallace can win against him. (Of course, it would be a different case if, for instance, Wallace were beaten up and robbed by muggers on Bellagio’s premises. In that case, we’d be back talking about negligence and liability of owners of premises and we’d be dealing with matters happening offstage rather than onstage.)
However, it is worth noting that there can also be a flip side to these encounters, especially since we’re talking about showbiz situations where matters can sometimes escalate rather quickly. In some situations, it may be that the comedian himself is the aggressor, perhaps against somebody in the audience. (One may recall how the comedy legend Richard Pryor reportedly once jumped off the stage during a performance and stabbed a guy in the audience with a fork. Why? The hapless guy had allegedly heckled Mr. Pryor. Then in a different instance, another comic stepped off the stage during a performance and decided to mingle with the audience, and while there he grabbed a guy’s head and brushed the poor guy’s face against his exposed crotch. Well, this time, a lawsuit followed.)
So, when a comedian at a performance does something wrong to a member of the audience, just who gets sued and for what exactly? Well, if you guessed that the offending comedian himself would get sued for assault and battery, you guessed right. No doubt, this one is an easy shot and pretty much anyone can figure that out. But could any of those audience members also turn around and sue the comedy club (or venue) that hired the comedian? Could they, for instance, say that the venue owed them a ‘duty’ to prevent what the comedian did to them? Well, the short answer here is that this one most likely won’t wash. Tough luck! Again, as stated above, a venue will generally not be held liable or responsible for the intentional (and wrongful) act of somebody else because usually situations where somebody just freaks out and does something crazy are generally not foreseeable in advance by those who run the venues. Again, the simple logic here, as in the one above, is that if you can’t foresee them, then you likely can’t prevent them.
Besides, somebody who’s been hired to perform as a comedian is more like an “independent contractor” who works for himself and determines how he does his job. He is not like an “employee” of the venue whose wrongful acts or misconduct can be attributed to the venue. Even if the comedian has a special arrangement with the venue to do repeat gigs there, such as the residency deal that Wallace had at the Flamingo, that still does not make him an employee of the venue and he remains an independent contractor who must answer for his own misconduct.
In the end, it is obvious that Wallace’s case ended pretty well for him ─ in a quite enviable million-dollar way. And of course, any other comedian in that situation would have hoped for the same result. But even more than that, in each situation where comedians are out there doing gigs, this case seems like a ‘teachable moment’ for both performers and venue owners alike.