Case 2:10-cv JD Document 1 Filed 02/26/10 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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1 Case 210-cv JD Document 1 Filed 02/26/10 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KIMBERLY MYERS JURY TRIAL DEMANDED 2412 Berwyn Court Vorhees, NJ Plaintiff, v. CIVIL ACTION NO. ANGELO CHRISTOPHER MOORE a/k/a Dr. Madd Vibe c/o Silverback Artist Management 9469 Jefferson Boulevard Culver City, CA FISHBONE c/o Silverback Artist Management 9469 Jefferson Boulevard Culver City, CA SILVERBACK ARTIST MANAGEMENT 9469 Jefferson Boulevard Culver City, CA THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA D/b/a/ World Cafe and/or World Cafe Live! and d/b/a WXPN and/or XPN Office of the Secretary 3400 Walnut Street, Philadelphia, Pa REAL ENTERTAINMENT- PHILADELPHIA, INC. D/b/a/ World Cafe and/or World Cafe Live! 3025 Walnut Street Philadelphia, Pa Defendants. COMPLAINT

2 Case 210-cv JD Document 1 Filed 02/26/10 Page 2 of 12 COMPLAINT PARTIES 1. Plaintiff Kimberly Myers is an individual residing at 2412 Berwyn Court, Vorhees, NJ who is a resident and citizen of the State of New Jersey. 2. Upon information and belief, Angelo Christopher Moore is believed to be a resident and citizen of the State of California. Mr. Moore is the lead singer of a music band called Fishbone and uses the stage name Dr. Madd Vibe. 3. Upon information and belief, Fishbone is a Los Angeles California based music band which may be a separate and distinct legal entity. 4. Upon information and belief, Silverback Artist Management ( Silverback ) is a California entity with its principal offices at 9469 Jefferson Boulevard, Culver City, CA and is the management company for Mr. Moore and Fishbone. 5. Upon information and belief, The Trustees of the University of Pennsylvania (the University of Pennsylvania ) is a Pennsylvania not-for-profit corporation with a registered address at 3400 Walnut Street in Philadelphia, Pennsylvania and which owns and/or operates a music venue known as the World Cafe and/or World Cafe Live! (the World Cafe ) located at 3025 Walnut Street, Philadelphia, Pa along with other defendants in this action. Upon further information and belief, the University of Pennsylvania also owns and/or operates the WXPN a/k/a XPN ( WXPN ) radio station operated from 3025 Walnut Street which features a radio show named the World Cafe which is responsible for presenting and promoting musical performances at the World Cafe. 6. Upon information and belief, Real Entertainment-Philadelphia, Inc. ( Real Entertainment ) 2

3 Case 210-cv JD Document 1 Filed 02/26/10 Page 3 of 12 is a Pennsylvania corporation with its principal place of business at 3025 Walnut Street, Philadelphia, Pa Upon further information and belief, Real Entertainment owns and/or operates the World Café along with other defendants in this action. 7. The University of Pennsylvania, Real Entertainment and WXPN are referred to collectively in this Complaint at the World Cafe and/or the World Cafe Defendants. JURISDICTION AND VENUE 8. This court has diversity jurisdiction over this civil action pursuant to 28 U.S.C as Plaintiff is a resident of New Jersey and the Defendants are all residents or, incorproated in and/or have principal places of business in Pennsylvania and California and there is complete diversity of citizenship/ 9. Venue is appropriate in the Eastern District of Pennsylvania as the performance and occurrences at issue took place in the Eastern District of Pennsylvania, and the harm alleged occurred in the Eastern District of Pennsylvania. FACTS A. THE INCIDENT 10. On or about February 23, 2010, Plaintiff Kimberly Myers attended a musical performance at the World Cafe which included a performance by Fishbone. 11. Upon information and belief, the performance was promoted as being presented by WXPN. 12. Plaintiff was a business invitee of all of the Defendants. 13. Prior to this musical performance, Plaintiff had never attended a Fishbone performance and was not familiar with their music, stage craft or performances. 14. Part of the way through the Fishbone performance, without any warning to Plaintiff, a 3

4 Case 210-cv JD Document 1 Filed 02/26/10 Page 4 of 12 member of Fishbone believed to be Defendant Angelo Moore, whose stage name is Dr. Madd Vibe, negligently, recklessly and/or intentionally dove off the elevated stage into the audience in the area near Plaintiff. 15. Plaintiff had no prior warning or understanding that a member of Fishbone would dive off the stage into the audience. 16. As a result of this conduct, Plaintiff suffered serious injury including, but not limited to, a fractured skull, a broken clavicle (collar bone), perforated eardrum, hearing loss, lacerations, headaches and other physical and mental injuries. Some or all of these injuries may be permanent in nature. 17. After injuring Plaintiff, the band member who caused this injury (believed to be Mr. Moore) did not apologize to Plaintiff. Instead Fishbone continued its performance as if nothing had happened, even though Plaintiff was taken from the scene by ambulance. 18. In addition to serious bodily injury, Plaintiff has suffered other injuries and losses including, but not limited to, loss of income, loss of earnings, possible loss of future income and earnings potential, embarrassment, humiliation, loss of life s pleasures and other damages. B. FISHBONE s HISTORY OF STAGE DIVING 19. Upon information and belief, Fishbone was formed in 1979 by Angelo Moore and others. 20. Moore took the stage name of Dr. Madd Vibe and developed a frenetic stage persona, and in the mid 1980s started stage diving and crowd surfing whereby he would dive off the stage into the audience, would hope to be caught by audience members and be passed by audience members arms through the crowded audience. In this regard, Fishbone promotes itself on its MySpace website by stating, in relevant part 4

5 Case 210-cv JD Document 1 Filed 02/26/10 Page 5 of 12 the band s influence on pop-culture permeates to this day as some music icons and historians even credit frenetic frontman Angelo Moore as one of the first performers to stage dive and crowd surf during legendary performances in the mid-eighties garage punk clubs, as the band and their chaotic and colorful energy would incite some of the very first crowd surfing episodes in LA clubs, antics which have since become embedded as a staple of punk rock subculture. http//www.myspace.com/fishboneisredhot (accessed on Feb. 25, 2010) (emphasis supplied). 21. Mr. Moore and Fishbone continue to stage dive and crowd surf and use this reckless conduct as a means to promote themselves. 22. Indeed, on or about February 2, 2010, Fishbone released their latest album called Live in Bordeaux and the album cover depicts Mr. Moore stage diving and crowd surfing as follows 5

6 Case 210-cv JD Document 1 Filed 02/26/10 Page 6 of Upon information and belief, Fishbone s management company, Silverback actively promoted Fishbone as a musical performance which included stage diving and crowd surfing. 24. Upon information and belief, the February 23, 2010 performance at the World Cafe was part of a tour promoting Fishbone s latest album and the album artwork depicted above was also used to promote the tour. 25. Upon information and belief, the World Cafe linked their website to Fishbone s website which prominently displayed the Live in Bordeaux album cover depicting Dr. Madd Vibe stage diving and crowd surfing. 26. Upon information and belief, the World Cafe Defendants were aware, or should have been aware that the Fishbone performances included stage diving and crowd surfing and that such activities would or could be unreasonably dangerous to their business invitees such as Plaintiff. 27. None of the Defendants posted any warnings or otherwise acted to alert the Plaintiff, or any member of the audience, that there may be any stage diving, crowd surfing or other dangerous activity at the Fishbone performance. 28. None of the Defendants took any precautions to protect Plaintiff or any member of the audience from injury caused by stage diving, crowd surfing or other dangerous activities at the Fishbone performance. 29. Notwithstanding the foregoing, and in negligent, reckless, wanton, willful or intentional disregard of the life, health and safety of their business invitees, the Word Cafe Defendants failed to alert or otherwise warn patrons, including Plaintiff, that they would be exposed to danger resulting from a performer diving off an elevated stage into the audience where the 6

7 Case 210-cv JD Document 1 Filed 02/26/10 Page 7 of 12 plaintiff could not escape harm from such activity. COUNT I NEGLIGENCE Plaintiff v. Moore and Fishbone & Silverback 30. The foregoing and subsequent paragraphs are incorporated herein by reference as if set forth fully herein. 31. Defendant Moore acted negligently, recklessly and/or intentionally when he dove off the elevated stage into the audience in the area near Plaintiff in order to crowd surf. 32. Defendants Moore, Fishbone and Silverback acted negligently, recklessly and/or intentionally when they devised and promoted a performance to include stage diving and crowd surfing. 33. Defendants Moore, Fishbone and Silverback failed to provide any warnings to unsuspecting audience members such as Plaintiff that there would be stage diving and crowd surfing. 34. Defendants Moore, Fishbone and Silverback failed to take undertake any precautions or safety measures to protect unsuspecting audience members such as Plaintiff from injury from stage diving and crowd surfing. 35. Defendant Moore and Fishbone s negligent, reckless and/or intentional misconduct was described in a review of the February 23, 2010 performance at the World Cafe by another attendee as follows The energy was already higher than at 99% of World Cafe Live shows, but what put this concert over the edge was Fishbone's extended performance of "Alcoholic." Though it was only a few songs into the set, the crowd was pretty much divided between the people ready to dance and let loose (generally 7

8 Case 210-cv JD Document 1 Filed 02/26/10 Page 8 of 12 the younger audience members) and those content to rock back and forth to the beat the whole show (older). I somehow wound up surrounded by the latter and was aching to relocate. So when Moore braced himself and jumped off the stage into the crowd, I finally had my chance. Immediately after Moore plunged, the crowd parted like the Red Sea a couple dozen people flocked to Moore to help him along while another few dozen darted in the opposite direction to avoid abetting the crowd surfing. And for anyone who has attended a World Cafe show before, you know that if the place isn't totally sold out, there are distinct gaps in that audience. So when Moore decided to stage dive, he was putting his life in the hands of a two-thirds capacity crowd who probably didn't expect to do much besides dance with themselves all night. As I said balls like honeydews. When my neighbors ran away, I moved toward the fracas perfect timing too, because someone flipped Moore over directly into me and a couple other fans, and we were able to shepherd him back to the front of the stage. I (and a couple dozen friends) saved Angelo Moore's life. And I have the scratch marks to prove it. http//phillyist.com/2010/02/25/playlist_rewind_fishbone_and_englis.php (accessed on February 26, 2010) (emphasis supplied). 36. As a result of Defendants misconduct, Plaintiff suffered injury. 37. The defendants conduct in having performances which include stage diving and crowd surfing represents a reckless, wanton or willful indifference to the health, welfare and safety of unsuspecting audience members and is outrageous. 38. But for of Defendants negligent, reckless, intentional, wanton and/or willful misconduct, Plaintiff would not have suffered injury. 8

9 Case 210-cv JD Document 1 Filed 02/26/10 Page 9 of 12 WHEREFORE, Plaintiff requests compensatory and punitive damages from the Defendants jointly and severely each in an amount in excess of $75,000. COUNT II ASSAULT AND BATTERY Plaintiff v. Moore and Fishbone 39. The foregoing and subsequent paragraphs are incorporated herein by reference as if set forth fully herein. 40. Defendant Moore acted negligently, recklessly and/or intentionally when he dove off the elevated stage into the audience in the area near Plaintiff in order to crowd surf. 41. Plaintiff had no knowledge that Defendant Moore would stage dive or crowd surf. 42. Plaintiff did not consent to being touched by Defendant Moore. 43. Plaintiff was injured as a result of Defendant Moore diving into the audience from the elevated stage in order to crowd surf. 44. Plaintiff had no advance knowledge that Defendant Moore would attempt to dive into the audience and was unable to avoid being injured. 45. Defendant Moore s conduct was negligent, reckless and/or intentional. 46. Defendant Moore s conduct was outrageous. 47. The other members of Fishbone knew that Defendant Moore would be stage diving and crowd surfing and aided, abetted and encouraged this behavior and they were motivated by their own personal and pecuniary interests. 48. The other members of Fishbone promoted Moore s stage diving and crowd surfing. 9

10 Case 210-cv JD Document 1 Filed 02/26/10 Page 10 of Fishbone is responsible for the actions of Defendant Moore. WHEREFORE, Plaintiff requests compensatory and punitive damages from the Defendants jointly and severely each in an amount in excess of $75,000. COUNT III NEGLIGENCE Plaintiff v. University of Pennsylvania and Real Entertainment 50. The foregoing and subsequent paragraphs are incorporated herein by reference as if set forth fully herein. 51. Plaintiff was a business invitee at the World Cafe. 52. The World Cafe knew or should have known that members of Fishbone would attempt to stage dive and crowd surf during the Fishbone performance on February 23, By way of example, Fishbone s newest album cover featured a picture of Mr. Moore stage diving and crowd surfing and the World Cafe Defendants utilized and/or had their web pages link to the album artwork from Fishbone s latest album depicting stage diving and crowd surfing. 53. The World Cafe knew or should have known that stage diving and crowd surfing poses an unreasonable risk of danger to its patrons. 54. The World Cafe knew or should have known that patrons such as Plaintiff would not know, understand or realize that they might be in danger from stage diving and/or crown surfing at the Fishbone performance. 55. The World Cafe Defendants failed to warn Plaintiff of the danger. 56. The World Cafe Defendants failed to protect Plaintiff from the danger. 10

11 Case 210-cv JD Document 1 Filed 02/26/10 Page 11 of The World Cafe Defendants failed to guard against the danger. 58. The World Cafe Defendants allowed Fishbone to perform knowing that stage diving and crowd surfing would occur. 59. Allowing a performance where there was expected to be stage diving and crowd surfing without taking any safety precautions or warning patrons represents a reckless, wanton and/or willful disregard for the health, welfare and safety of patrons such as Plaintiff. 60. Defendants conduct was outrageous. 61. The World Cafe Defendants actions and/or omissions were in reckless, willful, wanton or intentional disregard to the health, safety and welfare of its patrons including Plaintiff such that punitive damages are appropriate. 62. The World Cafe Defendants breached their duties to Plaintiff and as a result Plaintiff was severely injured. WHEREFORE, Plaintiff requests compensatory and punitive damages against The Trustees of the University of Pennsylvania and Real Entertainment-Philadelphia, Inc. jointly and severely, each in excess of $75,000. COUNT IV CIVIL CONSPIRACY and/or CIVIL AIDING AND ABETTING Plaintiff v. All Defendants 63. The foregoing and subsequent paragraphs are incorporated herein by reference as if set forth fully herein. 64. Each of the above named defendants performed tortious act(s) in concert with other pursuant 11

12 Case 210-cv JD Document 1 Filed 02/26/10 Page 12 of 12 to a common design with the other Defendants. Such conduct includes planing to have a performance by Fishbone wherein Mr. Moore would stage dive from the elevated stage onto members of the audience creating a grave risk of serious injury to audience members without giving any warning to the audience or Plaintiff. 65. Additionally, and/or alternatively; each Defendant had knowledge that another Defendant s conduct constituted a breach of duty and gave substantial assistance and/or encouragement to the other Defendant; 66. Additionally, and/or alternatively; each Defendant gave substantial assistance to other Defendant(s) in accomplishing a tortious result and such Defendant s conduct, separately considered, constituted a breach of duty to Plaintiff. 67. Plaintiff was injured by the Defendants conduct including their concerted actions. 68. Defendants misconduct is actionable under the Restatement (Second) of Torts Section 876. WHEREFORE, Plaintiff requests compensatory and punitive damages against each of the defendants jointly and severally, in an amount in excess of $75,000. NEIL E. JOKELSON & ASSOCIATES, P.C. BY NEJ2239 NEIL E. JOKELSON, ESQ Atty I.D. #02486 DAVID E. JOKELSON, ESQ, Atty I.D.#73734 DEREK E. JOKELSON, ESQ, Atty I.D.#81047 th 230 South Broad Street, 10 Floor Philadelphia, PA Telephone (215) Facsimile (215)