When Comedy Met Hypnosis in Court

dougT-show_photoAs life goes, the chance of witnessing something weird at a show goes with the territory in comedy. And when weird things do happen, it’s fair to say that an audience member taking matters to court may well find himself in plenty new territory when it comes to pulling out a win, whether they’re suing the comedian, the comedy club or anyone else in comedy land for that matter. This may be especially true if they are suing the comedy club for something that the comedian has done onstage. But first, here is the story:

In March 2014, comedian and hypnotist Doug Thompson was performing his signature DougT Hypnosis Show at the Funny Bone Comedy Club in Omaha, Nebraska, when audience member William Bendorf joined the group onstage for a comedy hypnosis session. (The hypnosis sessions usually consist of audience members volunteering to be hypnotized onstage, with the comedian causing them to believe and react as though various imaginary scenarios are in fact real. In one situation, the comedian got the participants to believe that an innocuous waist belt was in fact a dangerous snake, causing them to scamper to safety in various directions, some climbing over chairs in their bid to flee the stage.) At the end of the hypnosis session on this particular date, the comedian asked the participants to exit the stage and return to their seats in the audience via the stairs. Instead, Bendorf, ignoring the stairs, made straight for his seat in the audience and in the process plunged off the stage and suddenly hit the floor and suffered a leg fracture that required surgery. Bendorf claimed he was still in a trance at the time he fell off the stage, reported by some accounts to be roughly three foot high. “He was in that zone – that sort-of unconscious state. He didn’t snap out of it until he crashed to the ground… it was definitely a rude awakening,” said his lawyer, Richard Shicker. Well, this past December, Bendorf sued not the comedian but the comedy club itself, seeking damages for his injuries.

Speaking of filing a lawsuit over his injuries, perhaps the first question is why Bendorf chose not to sue the comedian at all. After all, it was his interaction with Thompson that caused the tragic fall to happen. The obvious claim in any suit against Thompson would have been “negligence,” meaning essentially that, given the circumstances of the case, a reasonable person in the comedian’s [Thompson] position should have been able to foresee that commanding someone who was still in a trance following a hypnosis to exit the stage in that condition was likely to result in the sort of fall that caused Bendorf’s serious injuries. In such a lawsuit, it would then have been up to comedian Thompson to make whatever defenses he might have and indeed there are a number of possible defenses open to him in such a lawsuit. But, of course, none of that stuff arises here because Bendorf simply opted not to sue the comedian.

And, by the way, all this doesn’t mean that Bendorf’s decision not to sue the comedian was a silly choice. Not necessarily, it turns out. After all, when it comes right down to it, a lawsuit of this sort is, let’s face it, an attempt to get money for one’s injuries or damages. That being said, if someone who has been or claims to have been injured can find some legal ground upon which to sue someone else who perhaps has more financial resources, it may actually be a smart idea to simply reach over and sue the deep pocket right away. (Incidentally, these kinds of calculations are fairly common in personal injury lawsuits such as this one. And who knows, perhaps Bendorf’s side might have made a different calculation about who to sue if Thompson were instead a rather famed millionaire comedian with tremendous resources.)

So anyhow, now that he has sued just the comedy club, then what? Can he win against the comedy club?  Well, again, just as in the situation with suing the comedian, if he’d decided to do so, the obvious claim here would be a “negligence” claim against the defendant Funny Bone Comedy Club since nothing was done intentionally by anyone. To cause the injury. The idea behind making a claim of this sort is that somehow the comedy club had control over the actions of the comedian and so was in a position to have prevented what happened to the plaintiff Bendorf.  We are talking here about something along the lines of an employer- employee relationship (or the old school master-servant relationship). In each of these situations, the person in control of the situation, say, the employer or the master, defines the scope of the work as well as how the work itself is to be done. So, it is easy to see how an injured person could go after the employer or the master for the particular misconduct of his employee or servant that allegedly resulted in the injuries. The point here being that the employer was negligent either in the way he hired the employee (“negligent hiring”) or in the way he supervised the work of the said employee (“negligent supervision”).

Fair enough! Yet this is precisely where the problem arises in many of these cases. In our case here, for example, can we say that a comedian performing at a comedy club is an employee of the comedy club and that the comedy club is in control of the way and manner the comedian performs his gig? Obviously we can say that much for a bar tender at a comedy club, but a performing comedian? Well, not so much.

To the contrary, a comedian performing at a comedy club is more like an “independent contractor” when talk turns to his or her relationship with the club. Simply put, an “independent contractor,” as the name suggests, is some outside guy who comes in to perform a particular task under a contract and who chooses the way and manner of getting his task done. Needless to say, someone in that kind of situation acts as his or her own boss and does not work as an employee of the other person who contracted him or her to do the job. Long story short, the fact that comedian Thompson is something of an “independent contractor” rather than an “employee” of Funny Bone makes this a pretty hard case for Bendorf to win.   Needless to say, speaking of an easier case for Bendorf to win against the club, it’s fair to say that if a light bulb, for instance, would have fallen on him while he was in the comedy club taking in a show that day, it’d be a different ball game altogether when it comes to suing the club.

In the end, Bendorf’s present case against Funny Bone looks like a tough uphill climb. And the sheer scale of this tough slog isn’t lost on his lawyer who reportedly admitted that he’d never encountered this kind of lawsuit in his 41 years working as an attorney. No kidding! Well, it turns out that his lawyer’s remark is true in more ways than one, including the fact that he has better odds of winning against the person who has not been sued (the comedian Thompson) than the  person who has indeed been sued (the comedy club).

 

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