Attacked Onstage: When a Comedian Can Win But Won’t Sue

So, comedians, as we all know, set out to make people laugh when they’re at work. But the funny thing is, they sometimes also make people angry and mad as hell. In fact, so mad that sometimes some of these people actually do attack them. As in, (gasp!) attack them physically, that is. Cut to comedian Steve Brown and, well, there we go again: another day another incident onstage at a stand-up comedy show. Welcome to one of those unfunny occupational hazards of a comedian’s life. But first, here’s the story:

One Sunday evening in late January, Steve Brown was performing at a Columbia, South Carolina venue named Comedy House when an enraged audience member rushed the stage and attacked the comedian. In the videotaped confrontation that ensued, the man Marvin Toatley, described in media reports as a drunken heckler, attacked the comedian with a microphone stand as well as a chair. By the time the scuffle ended, the comedian had sustained a gash in the arm, four other people had been injured including security staff plus $400 in property damage. Toatley was arrested a few days later and charged with aggravated assault and battery plus a charge for malicious damage to property.

For his part, Brown described the incident as an “unprovoked attack” and opined that the comedy clubs should have “well equipped professional security to protect us the entertainers who bring their clubs so much money.”

So, naturally, this being America, people are wondering about where things are headed next, especially the question of who will be on the hook here if a lawsuit were to be launched? So far, though, there is no report of a lawsuit.

But if a lawsuit were to happen, what, if any, claims could there be in this pretty wild situation and against who exactly? Will it be against the comedy club, the assailant Marvin Toatley, or who? (In the interest of full disclosure, this blogger has been asked about these “what ifs” by some comedy watchers and this article is in no small part a response to their curiosity.)

Well, for starters, the most obvious person who could be successfully sued for the incident in this case is the attacker himself Marvin Toatley. Quite simply, the guy could be hit with a battery claim coupled with a demand for money damages. Under the law, when a person intentionally makes an “offensive” contact with the person of another a battery is said to have occurred. The idea of the contact in question being “offensive” is based on the fact that there is no justification for the said contact or touching. The kind of justification we’re talking about here could exist, for instance, where the person who was touched consented to the touching or where the touching itself was done under some sort of legal authority. In our case here, if the comedian were to choose to sue the man who attacked him, it is difficult to imagine any way in which the attacker will not be liable for the tort of battery, as described above. It is pretty obvious that the attack was intentional and the justification for it was zero.

Also, as long as comedian Brown still has the attacker in his sights and is laying tort claims on him, he could also tack on a claim for Intentional Infliction of Emotional Distress. This is a claim that is reserved for wrongful actions which are deemed “outrageous” and “utterly intolerable in a civilized society”. True, the bar is set higher for wrongful actions of this kind than would be the case for just an ordinary battery. Yet, for a stranger to rush the stage and so viciously attack a professional comedian doing his act is the sort of bizarre act that could well strike a jury as outrageous and utterly intolerable and therefore cause them to find the attacker liable for this tort claim.

Anyhow, suing the attacker seems to be the easy part. What if the comedian Steve Brown got more ambitious and decides to sue the comedy club Comedy House as well. Then what? Can he make anything stick? Well, not likely! As matters stand, the more tempting option here is for him to sue the comedy club for negligence in failing to prevent the assault. In so doing he would somehow be suggesting that the club knew the attacker was prone to that sort of violence and yet did nothing to forestall the incident that occurred. The problem with alleging negligence against the club here is that the plaintiff will have to show that the club knew or should have known that a member of the audience at one of the shows on its premises would rush the stage and attack a particular comedian doing his act. This is a pretty high bar for any plaintiff to clear in a negligence case. In our case here, we have an intentional action from a stranger who was not an employee of the club and who acted without prior warning.

Plus, the fact that prior to the attack, Brown allegedly picked on Toatley who was sitting in the front row as being “grumpy” would not help his claim against the club since the comedy club could not have foreseen these actions that were unfolding rather quickly in such a short span of time. Therefore, it was hardly in a position to have prevented them.

By the way, as a general rule, the law does not hold one person liable for the intentional actions of another person, except in rare circumstances such as where the offender is an employee or servant of somebody else, as in master-servant situations. So, bottom line is, a move against the comedy club for any claim sounding in negligence likely won’t fly.

But how about “premises liability”, like suing the owner of premises for injuries or other damages sustained on its property? Can Steve Brown hit up the Comedy House for money on this basis? Well, perhaps in other circumstances, yes, but not in this case. For instance, let’s suppose that Steve Brown had finished his show onstage inside the club and was thereafter mugged and injured by hoodlums while on his way to his car in the comedy club’s parking lot. In that situation, we might genuinely be looking at issues of premises liability, given that every owner of premises (or occupier of land) is required by law to take reasonably adequate steps to ensure the safety of visitors lawfully on their premises. If such a thing were to have happened, namely, that Brown was attacked as he walked to his car in the parking lot, it would be pretty difficult for the club to fight the conclusion that, as an owner of premises, it had failed in its duty of protection to its visitors. But that wasn’t the situation we have here.

So, there we have it, as far as what the picture would look like if the comedian should decide to file a lawsuit against anyone who can be sued over what happened to him onstage that fateful day. So far, as already noted above, there is no report yet of the comedian filing a lawsuit as a result of this incident. This strikes some folks as rather odd considering that America is the most litigious society in the world. Yet, for those who are especially wondering why he hasn’t at least sued the attacker yet, here’s the thing: lawsuits are expensive things and they cost money and take time.

Therefore, most reasonable people who do have a life do not lightly pursue litigation unless it makes sense to do so. This means winning against the “right” party or as they say, the guy with deep pockets. In the real world, nobody wants to go through the big pain of litigation just so they can win a case against some guy who can’t pay the damage award (the proverbial “man of straw”). Obviously, the comedian must have his reasons for opting not to sue, but if I were a betting man, I’d bet that it’s because he thinks the guy who attacked him has no money and he doesn’t want to waste his time suing someone who can’t pay. As usually happens in these sorts of situations, the comedy club is probably the party with the deeper pockets in this case but, alas, the comedian’s case against the club is rather weak.

Only time will tell what the comedian Steve Brown ultimately decides to do, but while he mulls his options, the good news is that he still has a number of years before the statute of limitation runs on his claims. If he still wants to sue, that is.

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