Ferguson v. Electric Factory Concerts

7 Pa. D. & C.5th 476
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMarch 19, 2009
Docketno. 2046
StatusPublished
Cited by1 cases

This text of 7 Pa. D. & C.5th 476 (Ferguson v. Electric Factory Concerts) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferguson v. Electric Factory Concerts, 7 Pa. D. & C.5th 476 (Pa. Super. Ct. 2009).

Opinion

MASSIAH-JACKSON, J.,

On September 9, 2008, following a five-day jury trial, defendants Electric Factory Concerts Inc., National Event Services Inc. and the Phillies were found liable for the injuries suffered by the plaintiff, Greg Ferguson. (All other defendants on the caption were dismissed from the case.)

The jury awarded Mr. Ferguson $150,000 and determined that Electric Factory Concerts Inc. was 10 percent negligent, and, National Event Services Inc. was 60 percent negligent, and, the Phillies was 30 percent negligent. Plaintiff-Ferguson was assaulted by a loud, disorderly and belligerent man while he was attending a Jimmy Buffett concert at Citizens Bank Park. The plaintiff suffered serious and permanent injuries.

After trial transcripts were received, a post-trial briefing schedule was arranged by counsel and the court. The parties agreed to waive oral argument. For the reasons which follow all of the defendants’ motions for post-trial relief are denied.

[478]*478A. BACKGROUND OF THE CASE

Electric Factory Concerts Inc. (EFC) promoted the .Timmy Buffett concert on August 27, 2005 at Citizens Bank Park. The Phillies organization holds the long-term lease of Citizens Bank Park for their baseball games. In addition, the Phillies generate income and revenue by hosting events such as concerts at the ballpark. The Phillies arranged for National Event Services Inc. (NES) to provide crowd management and event staffing for the August 2005 concerts. NES billed EFC for two Jimmy Buffett events (August 25 and 27) totaling $77,927.26. NES was paid by EFC, the concert promoters. There were more than 45,000 people in attendance at Citizens Bank Park on August 27, 2005. This was the first concert sponsored by the Phillies at Citizens Bank Park. EFC, NES and the Phillies have long-standing working relationships at many events and at various venues along the east coast. NES and EFC have worked together for other Jimmy Buffett concerts. The Phillies and NES have worked together for Phillies baseball games. See Toben, September 3, 2008, N.T. 80-90; Monzo, September 3,2008, N.T. 147, September 4, 2008, N.T. 19-20.

Carl Monzo, the president of National Event Services, described the “typical” Jimmy Buffett crowds on September 4, 2008, N.T. 46-48, at N.T. 47:

“People come in and they are in a festive, just a whole festive involvement. And everything about Jimmy Buffett and Margaritaville and his different songs and his restaurants. It all has that island feeling. And the people come dressed.
[479]*479“If you ride by the parking area of a Jimmy Buffett concert, you see flags up and blowup animals and palm trees and you name it. I have even seen them put sand down in the parking lot and make their little tailgating party on the sands they build up.”

The jury also heard Frank Lynch, the NES director of operations, explain at September 8, 2008, N.T. 51, describe the “Buffett crowd”:

“Jovial. Like I said, it’s the feel-good tour of the summer. Prior to King Chesy, which like Country Rocks, it’s that. That’s exactly what it is. It’s the Caribbean. It’s leave your troubles behind. It’s wading pools. People come in trucks, they put liners in their trucks and they fill their pickup trucks with water. I don’t know how the Phillies provide enough power for all the blenders and things going on in the parking lot. It’s just leave-your-cares-behind day.
“95 percent of them aren’t in their seats. They are dancing or singing, they’re ready. I mean when that concert is ready to go, they are ready....
“If you are not in your seats by two or three songs, you are not a Buffett fan. I mean, everyone is in; there is no one outside. And it’s electric. It’s electrifying. The crowd, it’s amazing. It’s a touchdown at the Eagles game, it’s a home run at the Phillies field, eveiybody is ampted.”

There should not be any misunderstanding that throughout the trial when any witnesses or counsel used the words “party mood” or “party atmosphere” or “festive” or “jovial” or “tailgating,” the references relate to patrons and concert goers who were drinking alcoholic beverages.

[480]*480B. LEGAL DISCUSSION

1. The Plaintiff Met His Burden To Prove the Negligence of All Defendants

Plaintiff-Ferguson was a paid ticket holder and a business invitee to the EFC sponsored concert hosted by the Phillies and secured by NES, whose services were paid by EFC. These three defendants owed common-law and contractual duties to Mr. Ferguson. This post-trial court refers to and accepts the comprehensive overview submitted in plaintiff’s brief in opposition to the defendants’ motions for post-trial relief, pp. 19-29.

The Phillies, NES and EFC were active participants in the common enterprise for the purpose of hosting the Jimmy Buffett concert for profit and mutual benefit. This was a joint business promotion and a joint venture engaged in by these defendants. In Gold & Company v. Northeast Theater Corporation, 281 Pa. Super. 69, 421 A.2d 1151 (1980), the appellate court reviewed well-established Pennsylvania tenets of joint ventures noting that each joint venturer is both an agent and a principal of the joint venture. 281 Pa. Super. at 73 n.1, 421 A.2d at 1153 n.1:

“A joint venture is an association of persons or corporations, who by contract, express or implied, agreed to engage in a common enterprise for their mutual profit. Richardson v. Walsh Construction Co., 334 F.2d 334, 336 (3d Cir. 1964).”

See also, McRoberts v. Phelps, 391 Pa. 591, 138 A.2d 439 (1958), relying on 30 Am.Jur. Joint Adventures, §§1, 3, 10, and numerous cases cited, that a joint venture is a special combination of two or more persons seeking a [481]*481profit, without any actual partnership or corporate designation. Compare, September 8, 2008, N.T. 126-127, where counsel for EFC acknowledges that the concert was a joint effort where each defendant had a relationship with each other, with EFC’s post-trial brief, pp. 25-44.

Our appellate courts have determined that whether a duty exists under a particular set of facts is a question of law for judicial determination. Herczeg v. Hampton Township Municipal Authority, 766 A.2d 866, 871 (Pa. Super. 2001), citing Huddleston v. Infertility Center of America Inc., 700 A.2d 453, 457 (Pa. Super. 1997). Forty years ago, the Pennsylvania Supreme Court commented about the “well established” Rule of Law which states that a possessor of land who holds that land open for business purposes has a duty to the patrons to prevent tortious acts by third parties to his patrons. Moran v. Valley Forge Drive-In Theatre Inc., 431 Pa. 432, 246 A.2d 875 (1968). See also,

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Bluebook (online)
7 Pa. D. & C.5th 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-v-electric-factory-concerts-pactcomplphilad-2009.