McClendon v. Warner Bros. Entertainment, Inc. et al

Filing 36

RESPONSE in Opposition re 31 MOTION for Summary Judgment filed by Beverly McClendon. (Attachments: # 1 Affidavit Affidavit of Beverly McClendon, # 2 Affidavit Affidavit of Jewel Washington, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3 (1 of 5 pgs), # 6 Exhibit Exhibit 3 (2 of 5 pgs), # 7 Exhibit Exhibit 3 (3 of 5 pgs), # 8 Exhibit Exhibit 3 (4 of 5 pgs), # 9 Exhibit Exhibit 3 (5 of 5 pgs), # 10 Exhibit Exhibit 4)(Jackson, Wanda)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BEVERLY McCLENDON, And
BEVERLY McCLENDON As Next
Of Friend of the minor child,
JEWEL CIERA WASHINGTON,
Plaintiffs,
Vs.
WARNER BROS. ENTERTAINMENT,
INC., TYRA BANKS, BENNY
MEDINA, KERRIE MORIARTY,
And JOHN REDMANN,
Defendants.

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Civil Action
File No.: 1:10-cv-03254-CAP

PLAINTIFFS’OPPOSITION TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
NOW COME the Plaintiffs and respectfully submit this Brief in Opposition
to Defendants‟ Motion For Summary Judgment.
Summary Judgment in not appropriate in this case because there are several
material questions of fact in dispute. Pursuant to Fed. R. Civ. P. 56(c), summary
judgment may be granted only “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show there
is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.”

The party seeking summary judgment bears the burden of proving the
absence of a genuine dispute to any material fact. Herzog v. Castle Rock Entm‟t,
193 F. 3d 1241, 1246 (11 th Cir. 1999). Thereafter, the burden shifts to the nonmoving party. The non-moving party must go beyond the pleadings and present
evidence showing that a genuine issue of material fact does in fact exist.
Burchfield v. CSX Transp., Inc., 2009 WL 1405144, at *2 (N.D.Ga. 2009) (Trash,
J.). A material fact is one that would affect the outcome of the case under the law
and an issue is genuine if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Peterson v. Sprock, 2009 WL 383582, at *2
(N.D.Ga. 2009)(Story, J.) When considering a motion for summary judgment, the
Court must view all facts and inferences in favor of the non-movant.. Scott v.
Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). When the
parties‟ evidence conflicts, the Court credits the evidence of the non-movant.
Evans v. Stephens, 407 F. 3d 1272, 1277 (11 th Cir. 2005).

ALLEGATIONS OF THE PLAINTIFFS

This case involves a 15 year old child‟s appearance on the Tyra Banks Show
without parental consent. Plaintiff Jewel Washington was an avid fan of the Tyra
Banks Show (hereinafter the “show”) and watched in every day. She responded to

an internet solicitation to appear on the show in 2009. The show‟s topic was
labeled “sexorexia” by the producers. (Exh. 1, Def. response to requests for docs.)
Staff of the show contacted Plaintiff Jewel Washington and spoke directly with the
child before attempting to speak with her parent. Sometime after the initial contact
the show‟s producer, Vanessa Adamo asked to speak with the child‟s mother,
Plaintiff Beverly McClendon. Plaintiff Jewel Washington simply changed her
voice and pretended she was her mother. Neither defendant nor their staff has ever
spoken with Plaintiff Beverly McClendon. (McClendon Affidavit) The
Defendants never obtained the written consent from Plaintiff McClendon for her
daughter to travel and appear on the Tyra Banks Show. (McClendon Affidavit.)
The defendants claim they sought the signature of Beverly McClendon but were
duped by the 15 year old plaintiff when she forged her mother‟s signature. The
Defendant never bothered to request a copy of the license of Plaintiff Beverly
McClendon to at least compare her signature. The defendants have no written
policy or protocol in regards to obtaining parental consent for minors to appear on
the show. (Exh 2, Def. response to requests for docs. # 7) The Defendants
requested the driver‟s license of Tafoya Sutton only after he and Plaintiff Jewel
Washington had flown to New York. Tafoya Sutton is not related to the Plaintiff‟s
by blood or marriage and Plaintiff Beverly McClendon does not know him and has

never met him. (McClendon Affidavit) Tafoya Sutton is simply a friend of Miss
Washington.
The Defendants had no desire for the truth, only for sensationalism. Either
the Defendants were on notice from the very beginning of their contact with
Plaintiff Jewel Washington that she was prone to fabrication or the Defendants
themselves were prepared and willing to make-up salacious facts for ratings.
In response to Plaintiffs‟ requests for production of documents, Defendants
provided a document called a “guest plug”. In the Defendants comments portion
of this document it states “I am a very outgoing, attractive teenager that is addicted
to sex. I had my first child when I was 12 years old and my second at 16. I cannot
keep my legs closed at all. I really do think that I need help. I have been pregnate
over 20 times and want to make something with my life but sex is holding me
back”. (Exhibit 1) These comments were entered into the Defendants‟ Guest Plug
Info Page on October 22, 2009. Plaintiff Jewel Washington has never had any
children and could not possibly have had a second child at 16, when she was 15
when she appeared on the show. (Affidavits of Plaintiffs) Dr. Drew Pinsky is an
addiction medicine specialist not a doctor of medicine or doctor of psychology.
(Defendants‟ statement of material facts) and the Defendants made no attempt to
confirm any information Plaintiff Jewel Washington provided them in relation to a
sexual addiction. Jewel Washington is has never been diagnosed as a sexual

addict, has never been treated, counseled or seen by any doctor, clinician or other
professional for sex addiction. (Affidavits of Plaintiffs)

Argument and Citation of Authority

I.

Summary Judgment as to Jewel Washington

The Defendant‟s contend summary judgment is proper for three reasons (1)
Plaintiff Jewel Washington is responsible for her own actions, consented to the
commission of the tort and is therefore precluded from recovery (2) Plaintiff Jewel
Washington assumed the risk and (3) the defendants‟ actions are not the proximate
cause of Plaintiff Jewel Washington‟s injury.

Consent By The Minor

The Defendant assert that Georgia has established 14 years as the age of
responsibility for purposes of negligence, therefore Miss Washington is
responsible for her own actions and her conduct precludes recovery as a matter of
law. Defendants have cited several cases in support of this proposition. Most of
the cases cited establish that at 14, a plaintiff is presumed capable of realizing

danger and of exercising the necessary forethought and caution to avoid an
accident. McKinnon v. Streetman, 192 Ga. App. 647, 649 (1989). The majority of
the cases cited as illustrative by the Defendants involved automobile accidents or
accidents involving physical injury wherein the peril was obvious to a child of 14
years of age. If appearing on a nationally televised show purporting to be a sex
addict was an obvious peril, consent would not be necessary. Georgia statute
O.C.G.A. § 51-11-2 precludes consent by a minor incapable of giving such
consent.
O.C.G.A. § 51-11-2 provides that as a general rule no tort can be committed
against a person consenting thereto if that consent is free, is not obtained by fraud,
and is the action of a sound mind. This code section precludes consent by a minor
incapable of giving consent, but does not preclude consent by a minor capable of
consenting. McNamee v. AJW, 238 Ga. App. 534, (1999), 519 S.E. 2d 298. A
minor acquires capacity to consent to different kinds of invasions and conduct at
different stages in his development. McNamee at 302. Contrary to Defendants
assertions, 14 is not the age that Georgia law has determined is the age when all
minors acquire the capacity to consent to a tort. Yes, case law and statute has
determined that a child over the age of 14 is deemed to have the mental capacity of
an adult and chargeable with the same standard of diligence for his own safety
when it comes to driving a car with defective equipment or making a will, but

statute requires a person to be 16 before they can consent to marriage, unless
pregnant or the parents of a child born out of wedlock and that they reach the age
of majority before they can contract. McNamee recognized, as with other
jurisdictions, that there is no hard and fast rule as to the age at which a person
attains the capacity to consent to bodily invasions. In McNamee the Court held
that is was an issue for determination by the jury and summary judgment was
properly denied the 16 year-old defendant minor in the 15 year old minor‟s claims
of sexual battery, rape and negligence, based on the argument that the 15 year-old
minor consented to the sexual acts. Just as there is no hard and fast rule in Georgia
nor in other jurisdictions at to age at which a person attains the capacity to consent
to bodily invasions, there has been no determination in Georgia nor any other
jurisdiction as to when a minor acquires capacity to consent to relieving a talk
show host and a production company of their duty to obtain parental consent
before exploiting her likeness on national television.

Assumption Of The Risk

Defendants argue Plaintiff Jewel Washington assumed the risk of any injury by
her own actions. Assumption of the risk bars Plaintiff Jewel Washington from
recovery only if it is established that Miss Washington, without coercion of
circumstances, chooses a course of action with full knowledge of its danger and
while exercising a free choice as to whether to engage in the act or not. Atlanta
Affordable Housing Fund Limited Partnership et al. v. Brown et al., 253 Ga. App.
286, 558 S.E.2d 827, (2002). Plaintiffs contend there was coercion of
circumstances in this matter. Plaintiff testified in deposition that she was a huge
fan of the show listing it on her Facebook as a TV show she was interested in.
(Washington deposition pg.95:16)
The lure of stardom or the desire to simply to appear on television has created
what some would describe as trash television. One need only turn on the TV. to be
bombarded with a plethora of pure ignorance. People being torn out of their
clothes and broadcasting their paternity tests results in a completely deplorable
setting. Nevertheless there are the Kim Kardashians of the world who was
catapulted to stardom with a sex tape that went public. A reasonable person could
easily agree the attraction and lure of TV. stardom arguable serves as a coercion of
circumstances in the world we live in.

In addition, the affirmative defense of assumption of the risk requires both
actual and subjective knowledge of the risk. Atlanta Affordable Housing Fund
Limited Partnership et al. v. Brown et al., 253 Ga. App. 286, 558 S.E.2d 827,
(2002). Defendants have made no attempt to establish that Miss Washington
had actual or subjective knowledge of the risks and harm of appearing on a
nationally televised show which labeled her as a sex addict. The Defendants
have failed to establish that Miss Washington even contemplated damage to her
reputation and the research potential employers, colleges and the military
undertake when investigating and making decisions regarding employment and
admission and the inexhaustible numbers of pedophiles and sexual predators
who saw her likeness, all of which are obvious risks involved in such an
undertaking. There is difference between knowledge of a peril and a full
appreciation of the risk. To establish an assumption of the risk defense, the
Defendants must establish that the Plaintiff Jewel Washington (1) had actual
knowledge of the danger; (2) understood and appreciated the risks associated
with such danger; and (3) voluntarily exposed herself to those risks. Atlanta
Affordable Housing Fund Limited Partnership et al. v. Brown et al., 253 Ga.
App. 286, 558 S.E.2d 827, (2002). Defendants have totally failed to present
any evidence in this regard. Knowledge is the watchword of assumption of the
risk and means both actual and subjective knowledge. It is not simply

Plaintiff‟s comprehension of a general non-specific risk associated with such
conditions or activities but Plaintiff‟s knowledge that she has, in advance,
consented to relieving the Defendants of their obligation to get parental consent
for her to appear on the show and is willing to take her chances from the known
risk of failing to have her mother decided whether she should appear on the
show and allow Plaintiffs to exploit her for their monetary gain. Atlanta
Affordable Housing Fund Limited Partnership et al. v. Brown et al., 253 Ga.
App. 286, 558 S.E.2d 827, (2002).

Proximate Cause
The Defendants further contend that their actions in not obtaining the requisite
intent are not the proximate cause of Miss Washington‟s injury. It cannot be said,
as is required, that the actions of the Plaintiff Washington, “preponderate in
producing the injurious effect” therefore the actions of the Defendants are too
“remote and contingent” to be the proximate cause of the injury. Meadows v.
Diverse Power, Inc., 296 Ga. App. 671, 673 (2009). While Miss Washington
pretended to be her mother on the phone, the Defendants had never spoken to her
mother; Beverly McClendon in life therefore had no reasonable basis to know she
was who she represented herself to be. While Miss Washington forged her
mother‟s signature, a cursory look at Beverly McClendon‟s signature on her

license would have clearly indicated the consent form was not signed by the same
person. Furthermore, for the Defendants to assert to have actually obtained verbal
consent from Beverly McClendon for Miss Washington to appear on the show with
Tafoya Sutton while she was in the hospital, just out of intensive care is more than
mere negligence but reckless and incredulous. Ms. McClendon was never in the
hospital during the relevant time. (Affidavit of Beverly McClendon)
Proximate cause is always to be determined on the facts of each case upon
mixed considerations of logic, common sense, justice, policy and precedent.
Atlanta Affordable Housing Fund Limited Partnership et al. v. Brown et al., 253
Ga. App. 286, 558 S.E.2d 827, (2002). The determination of proximate cause is
undeniably a jury question, only to be decided by the court if reasonable persons
could not differ as to both the relevant facts and the evaluative application of legal
standards. Atlanta Affordable Housing Fund Limited Partnership et al. v. Brown et
al., It is entirely conceivable that reasonable persons might believe that the
Defendants lack of policy to obtain parental consent and incredulous measures
purported to have been taken in this case evidences a level of negligence and
recklessness which negates the actions of the minor child.

II.

Summary Judgment as to Beverly McClendon

Violation of Right to Privacy

Defendants argue summary judgment is appropriate as against Plaintiff Beverly
McClendon for two reasons (1) The violation of the right to privacy is a personal
right, and Georgia does not recognize a „relational‟ right to privacy and (2) The
negligence claim fail because the Defendants owe no duty to Plaintiff McClendon.

Defendants contend that under Georgia law there is no „relational‟ right of
privacy on behalf of the parents. This is not entirely true. Georgia recognized a
relational right to privacy in Bazemore et al., v. Savannah Hospital et al., 171 Ga.
257, 155 S.E. 194 (1930). In Bazemore, the parents of a deceased child set out a
cause of action for the unauthorized publication of the picture of said child. The
parents alleged the Defendants disregarded their right to privacy and
commercialized the pictures for pecuniary gain and the exposure of the pictures
being to the chagrin, mortification, humiliation, insult and injury of the petitioner
parents. The court in Bazemore found the suit was not based on injury to the
deceased child; the wrong was committed after the death of the child. The right of
action is an action on the part of the plaintiff parents. Bazemore, at 197. In

addition, the concurrence of Justices Russell, C.J and Hine, J., opined that the
petition would set out a cause of action if the child had not died. More importantly,
Defendants can cite no case law that expressly rejects a „relational‟ right to privacy
in Georgia. In Waters v. Fleetwood, 212 Ga. 161, 91 S.E. 2d 344 (1956), the court
pronounced that Georgia law has never passed on the question of whether or not
there might be a „relational‟ right of privacy because the Court in Bazemore was
not a unanimous decision.
Negligence Claim
The Defendants contend Plaintiff Beverly McClendon‟s negligence claim fails
to establish that she is owed a legal duty and in the absence of such a duty her
claim is not actionable. Contrary to this assertion, the Defendants had a legal duty
to obtain Plaintiff McClendon‟s consent prior to having her child, Miss
Washington appear on the show. Ms. McClendon had a legal right, above all
others, to make the decision whether or not Plaintiff Washington was to appear on
the show. Pursuant to O.C.G.A. § 19-7-1 (a), until a child reaches the age of 18 or
becomes emancipated, the child shall remain under the control of his or her
parents, who are entitled to the child‟s services and the proceeds of the child‟s
labor. It is well settled in Georgia that a child does not have the legal capacity to
enter into a contract. A contract purported to be entered into by a child of fifteen
years of age is voidable and unenforceable. Vinson v.State, 124 Ga. 19, 52 S.E.

79, (1905). The requirement of consent in Georgia is the right that belongs to the
parent and in this case Plaintiff McClendon.
O.C.G.A. § 51-1-10 provides, “If a tort shall be committed upon the person or
reputation of the wife, the husband or wife may recover therefore; if the wife shall
be living separate from the husband, she may bring an action for such torts and
also torts to her children and recover the same to her use,” and as the Defendants
have argued,
“As a general rule no tort can be committed against any person consenting
thereto if that consent is free, not obtained by fraud, and is the action of a
sound mind, the consent of a person incapable of consenting, such as a
minor, may not affect the rights of any other person having a right of
action”. O.C.G.A. § 51-11-2 (Emphasis supplied)
Plaintiff Beverly McClendon is the “other” person contemplated by the
statute as having a right of action. She is within the class of persons who are
sought to be protected. The requirement of procuring a parent‟s consent in matters
relating to their child protects not just the child but the parent‟s right to make the
decision on what is in the best interests of the child.
Miss Washington‟s consent and willingness to appear on the show are of no
consequence to Ms. McClendon‟s negligence claim. Actionable negligence
consists of a violation of some duty owed to another person. In order for a

violation of the statutory duty of obtaining parental consent to contract a minor, the
person claiming it must be within the class for whose benefit the statute was
passed. In determining whether the violation of the statutory requirement is
negligence per se as to the person upon which a cause of action will rest, the court
is to look to the particular statute in respect to its purposes, that is the evils it was
intended to guard against and the persons it was intended to protect. Jones v. Dixie
Drive-It-Yourself System, 97 Ga. App. 669, 670, 104 S.E. 2d 497 (1958). The
defendants did not have a valid contract, waiver and release, authorizing Plaintiff
Washington to appear on the show. The requirement of obtaining parental consent
to contract with a fifteen year old is designed to protect a parent‟s right to control
their child. Plaintiff Beverly McClendon is within that class of persons whose
rights the statute is designed to protect.

WHEREFORE, the Plaintiffs pray Defendants‟ Motion For Summary Judgment
is DENIED.

Respectfully submitted this 3nd day of January, 2012.

s/WANDA S. JACKSON, ESQ.
GA BAR NO.: 387955
ATTORNEY FOR BEVERLY

McCLENDON and BEVERLY
McCLENDON as Next Of Friend
Of the minor child, JEWEL CIERA
WASHINGTON
WANDA S. JACKSON, P.C.
3800 CAMP CREEK PARKWAY
BLDG 1200, STE 150
ATLANTA, GA 30331
Telephone: [phone]
Email: [e-mail]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BEVERLY McCLENDON, And
BEVERLY McCLENDON As Next
Of Friend of the minor child,
JEWEL CIERA WASHINGTON,
Plaintiffs,
Vs.
WARNER BROS. ENTERTAINMENT,
INC., TYRA BANKS, BENNY
MEDINA, KERRIE MORIARTY,
And JOHN REDMANN,
Defendants.

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Civil Action
File No.: 1:10-cv-03254-CAP

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this day, January 3, 2012, I have
electronically filed Plaintiffs‟ Opposition To Defendants‟ Motion For Summary
Judgment with the Clerk of Court using the CM/ECF system which will
automatically send email notification of such filing to the following attorneys
record:
1. Thomas M. Clyde
2. Marcia Bull Stadeker
s/WANDA S. JACKSON, ESQ.
GA BAR NO.: 387955
ATTORNEY FOR BEVERLY
McCLENDON and BEVERLY

McCLENDON as Next Of Friend
Of the minor child, JEWEL CIERA
WASHINGTON
WANDA S. JACKSON, P.C.
3800 CAMP CREEK PARKWAY
BLDG 1200, STE 150
ATLANTA, GA 30331
Telephone: [phone]
Email: [e-mail]