Ford v. Psychopathic Records, Inc. et al
Filing
77
ORDER denying 46 Motion to Dismiss for Failure to State a Claim; denying 51 Motion to Dismiss; denying 75 Motion to Amend/Correct. Signed by Judge Michael J. Reagan on 2/25/13. (caa)
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
JAMES FORD, JR.,
Plaintiff,
v.
PSYCHOPATHIC RECORDS, INC.,
INSANE CLOWN POSSE, LLC,
JUGGALO GATHERING, LLC, FAYGO
BEVERAGES, INC., HOGROCK,
INC.,TIMOTHY F. YORK, individually
and d/b/a Hogrock Campground,
Defendants.
TIMOTHY F. YORK, HOGROCK, INC.,
and JUGGALO GATHERING, LLC,
Third Party Plaintiffs,
v.
ATAIN SPECIALTY INSURANCE
COMPANY,
Third Party Defendant.
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Case No. 12-cv-0603-MJR
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MEMORANDUM AND ORDER
DENYING DEFENDANTS‟ MOTIONS TO DISMISS (Docs. 46, 51)
REAGAN, District Judge:
I. Introduction and Factual Background
Now before the Court are motions to dismiss Plaintiffs‟ second amended
complaint, filed by Defendant Faygo Beverages, Inc., (Doc. 46) and by Defendants
Psychopathic Records, Inc., Insane Clown Posse, LLC, Juggalo Gathering, LLC, Timothy
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F. York, individually and d/b/a Hogrock Campground, and Hogrock, Inc. (Doc. 51). 1
The Court, upon careful consideration of the facts and arguments presented by the
parties, will deny Defendants‟ motions to dismiss.
Plaintiff‟s second amended complaint alleges as follows.
Plaintiff
attended a concert performance by Insane Clown Posse, a hip-hop duo from Detroit,
Michigan. Their performance was part of an event called the 11th Annual Gathering
of the Juggalos that began on August 12, 2010, and ended on August 15, 2010, at Cave
in Rock, Illinois.
On August 15, during a segment of the show called “Faygo
Armageddon,” the band allowed members of the audience to come up on the stage
and assist band members in throwing soda bottles into the crowd. On the stage were
several trampolines which had been modified with sheet metal around the sides. The
trampolines were turned upside down, exposing the sharp metal sheeting to audience
members on the stage. Plaintiff was allowed to enter the backstage area and go onto
the stage with 60 to 75 other audience members. While engaged in throwing soda
bottles into the crowd, Plaintiff fell backward and was injured when his leg made
contact with the sharp sheet metal on one of the trampolines. Defendants owed a
duty of ordinary and reasonable care to audience members allowed on the stage,
breached that duty, and Plaintiff was injured thereby.
II. Analysis
In deciding a motion to dismiss for failure to state a claim on which
relief can be granted under Rule 12(b)(6), the Court‟s task is to determine whether
the complaint includes “enough facts to state a claim to relief that is plausible on its
Because both motions seek dismissal of Plaintiff‟s complaint on the basis that Plaintiff has alleged a
theory of premises liability and negligence, the Court will address them together.
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face.”
Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).
Seventh Circuit has clarified:
As the Court of Appeals for the
“Even after Twombly, courts must still approach
motions under Rule 12(b)(6) by „construing the complaint in the light most favorable
to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all
possible inferences in her favor.‟” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th
Cir. 2009), cert. denied, 130 S. Ct. 1141 (2010) (quoting Tamayo v. Blagoyevich,
526 F.3d 1074, 1081 (7th Cir. 2008)).
But legal conclusions and conclusory
allegations that merely recite the elements of a claim are not entitled to the
presumption of truth afforded to well-pled facts. See McCauley v. City of Chicago,
671 F.3d 611, 616 (7th Cir. 2011).
Therefore, after excising the allegations not accepted as true, the Court
must decide whether the remaining factual allegations plausibly suggest entitlement
to relief.
Id.
In other words, the complaint must contain allegations plausibly
indicating (not merely consistent with) an entitlement to relief. Id. (citing Twombly,
550 U.S. at 557). This determination is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” McCauley,
671 F.3d at 616 (citing Ashcroft v. Iqbal, 556 U.S. 662, 663-64 (2009)).
As a general rule, a Rule 12(b)(6) dismissal motion “must be decided
solely on the face of the complaint and any attachments that accompanied its filing.”
Miller v. Herman, 600 F.3d 726, 733 (7th Cir. 2010) (citing FED. R. CIV. P. 10(c)
and Segal v. Geisha NYC, LLC, 517 F.3d 501, 504-05 (7th Cir. 2008)). Accord
General Insurance Co. of America v. Clark Mall Corp., 644 F.3d 375, 378 (7th Cir.
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2011); FED. R. CIV. P. 12(d). Bearing this standard in mind, the undersigned turns to
Defendants‟ dismissal motions.
Defendants assert that Plaintiff‟s Second Amended Complaint fails as a
matter of law because, aside from the conclusory nature of the complaint, Plaintiff
has failed to establish that Defendants owed him the duty required to establish his
negligence/premises liability claims. Defendants contend that because Plaintiff has
failed to demonstrate that they exercised possession and control over the property
where the accident allegedly occurred, no duty exists and Plaintiff‟s claims must be
dismissed. Anticipating that Plaintiff will argue that he has filed a general negligence
action rather than a premises liability action, Defendants contend that under either
theory, Plaintiff must establish that Defendants owed him a duty of care.
An essential element in a premises liability cause of action is the
existence of a duty owed by the defendant to the plaintiff. Strahs v. Tovar's
Snowplowing, Inc., 812 N.E.2d 441, 447 (2004). A defendant owes a plaintiff a
duty only if it has “possession and control of the real property on which the tort
occurred.”
Godee v. Illinois Youth Soccer Ass'n, 764 N.E.2d 591, 594–95
(Ill.App.Ct. 2002) (citing Esser v. McIntyre, 642 N.E.2d 803, 807 (Ill.App.Ct. 1994)
(“In order for a defendant's duty of care to arise under the common law of
premises liability, the defendant must have possession and control of the real
property on which the tort occurred.”)). Defendants assert that, because they did
not exercise any possession or control over the area where Plaintiff‟s injury occurred,
they are not liable for the injury and this action must be dismissed.
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As Defendants anticipated, Plaintiff responds that Defendants mistake
his theory of the case. Plaintiff asserts that his complaint is brought under a general
negligence theory and not premises liability. Upon review, the Court finds that
Plaintiff alleges, inter alia, that Defendants controlled the objects that were allowed
to be on the stage, controlled access to the stage and controlled the number of
audience members who were allowed to be on the stage. Plaintiff does not allege
that Defendants exercised possession and control over the property where the
accident occurred. Plaintiff‟s claims sound in negligence and not in premises liability.
In order to state a claim for negligence in Illinois, a plaintiff must allege:
“(1) the defendant owed a duty of care; (2) the defendant breached that duty; and
(3) the plaintiff's resulting injury was proximately caused by the breach.” Hooper v.
County of Cook, 851 N.E.2d 663, 668-69 (Ill.App.Ct. 2006) (citing Espinoza v.
Elgin, Joliet & Eastern Ry. Co., 649 N.E.2d 1323 (1995)). “Under general common
law negligence principles, all persons owe a duty to all others to use ordinary care to
guard against injuries resulting from the reasonably foreseeable consequences of his
acts.” Esser, 642 N.E.2d at 807 (citing Ono v. Chicago Park District, 601 N.E.2d
1172 (Ill.App.Ct. 1992)).
The complaint alleges that Defendants owed Plaintiff a duty of ordinary
care to guard against his being injured by “the dangerous instrumentality of the sheet
metal siding of the trampolines on the stage”; Defendants breached that duty by
allowing him to come on stage where the modified trampolines created a hazard; and
he was injured by Defendants‟ breach.
The complaint also alleges that it was
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reasonably foreseeable that allowing too many members of the audience onto the
stage while the trampolines were on it would likely lead to serious injury.
Contrary to Defendants‟ contentions, Plaintiff need not “establish” that
they owed him a duty of care in order to avoid a 12(b)(6) dismissal. Under federal
notice pleading standards, Plaintiff‟s allegations are sufficient to state a claim for
common law negligence.
Tamoyo, 526 F.3d at 1083.
Plaintiff‟s claims provide
enough detail to give Defendants fair notice of what the claims are, the grounds upon
which they rest and to show that the claims are plausible. See Bausch v. Stryker
Corp., 630 F.3d 546, 559 (7th Cir. 2010) (quoting Windy City Metal Fabricators &
Supply, Inc. v. CIT Tech. Financing Services, 536 F.3d 663, 667 (7th Cir. 2008)
(“In deciding whether a complaint can survive a motion to dismiss, we have
consistently said: “As a general rule ... notice pleading remains the standard.”).
In summary, Plaintiff has alleged enough facts to state a claim for relief
that is plausible on its face. A dismissal pursuant to Rule 12(b)(6) is not warranted.
III.
Conclusion
For the foregoing reasons, the Court DENIES the motion to dismiss filed
by Defendant Faygo Beverages (Doc. 46) and DENIES the motion to dismiss filed by
Psychopathic Records, Inc., Insane Clown Posse, LLC, Juggalo Gathering, LLC, Timothy
F. York, individually and d/b/a Hogrock Campground, and Hogrock, Inc. (Doc. 51). As
a final matter, the Court DENIES the joint motion to modify the Scheduling and
Discovery Order filed by Plaintiff, Defendants Psychopathic Records, Inc., Insane Clown
Posse, LLC, and Faygo Beverages, Inc., and Defendants/Third-Party Plaintiffs Juggalo
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Gathering, LLC, Timothy F. York, individually and d/b/a Hogrock Campground, and
Hogrock, Inc. (Doc. 75).
IT IS SO ORDERED.
DATED this 25th day of February, 2013
s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge
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