DECISION AND ORDER
On February 20, 2003, a deadly fire destroyed a nightclub inWest Warwick, Rhode Island, known as The Station. The firestarted as the featured rock band, Great White, began its liveperformance and the club was crowded with spectators, staff andperformers. The opening featured stage fireworks, ignited by theband's tour manager, as the band took the stage.
According to eyewitnesses, the fireworks created sparks behindthe stage which ignited polyurethane foam insulation on theclub's ceiling and walls. In minutes, the entire building was on fire and over 400 people1 were struggling toescape the crowded, dark and smoky space. The final toll: Onehundred people dead and over 200 injured.
Numerous lawsuits, both criminal and civil, were filedthroughout southern New England in both state and federal courts.Last year, in Passa v. Derderian, 308 F. Supp. 2d 43 (D.R.I.2004), this Court asserted jurisdiction over several of the civilcases that had been removed to this Court from Rhode IslandSuperior Court, and asserted jurisdiction as well over the casesthat had originally been filed in this Court. This Court'sexercise of original federal jurisdiction was based upon theMultiparty, Multiforum, Trial Jurisdiction Act of 2002,28 U.S.C. § 1369. Since that time, to the best of this Court's knowledge,all civil lawsuits resulting from the nightclub fire have beenconsolidated in this Court, pursuant to a First Amended MasterComplaint (hereinafter "the Complaint") filed and adopted jointlyby about 250 plaintiffs, against over 50 defendants. Althoughthis Court's jurisdiction relies upon federal law, Rhode Islandprovides the substantive law for these cases. Erie R.R. v.Tompkins, 304 U.S. 64 (1938); Ticketmaster-New York v. Alioto,26 F.3d 201, 204 (1st Cir. 1994); Passa v. Derderian, 308 F. Supp. 2d 43 (D.R.I. 2004). As of this writing, discovery has been stayedto permit an adequate time for service of, and response to, thenew Complaint and for the Court to deal with a number of motionsto dismiss.
Presently before the Court is the Motion to Dismiss, pursuantto Federal Rule of Civil Procedure 12(b)(6), brought by TVLBroadcasting, Inc., and STL Broadcasting, Inc. These twocorporations, at least one of which was formerly known as LINTelevision Corporation, do business in Rhode Island as WPRI-TV,Channel 12. In the interest of simplicity, these corporationswill be identified collectively in this opinion as "WPRI" or asDefendants.
WPRI was the employer of one of the owners of The Station,Jeffrey Derderian,2 who worked for WPRI as aninvestigative reporter. In his capacity as an employee of WPRI,Jeffrey Derderian, and a WPRI cameraman,3 were present atThe Station the night of the fire. The Complaint alleges thatWPRI is vicariously liable for Jeffrey Derderian's negligentactions the night of the fire, and that WPRI, through JeffreyDerderian, caused death and personal injuries to the Plaintiffs. Defendantsmove for the dismissal of the counts asserted against themstemming from the actions of Jeffrey Derderian. For the reasonsset forth below, the Court grants the Motion.
Standard of Review
Defendants move to dismiss the claims against them pursuant toFederal Rule of Civil Procedure 12(b)(6), for failure to state aclaim upon which relief may be granted. F.R.C.P. Rule 12 (b)states that as to subpart (6), if "matters outside the pleadingare presented to and not excluded by the court, the motion shallbe treated as one for summary judgment and disposed of asprovided in Rule 56, and all parties shall be given reasonableopportunity to present all material made pertinent to such amotion by Rule 56." In connection with the present Motion toDismiss, Plaintiffs have presented additional material to theCourt with their memoranda. However, because discovery has beenand remains stayed in this litigation, neither side has had anopportunity to develop a complete record in support of theirallegations or defenses. Consequently, the Court has chosen toexclude all extraneous information and affidavits, as well as allarguments in reliance thereon, in ruling on the present Motion toDismiss.
At present, the Court adheres to the narrow and limited focusappropriate to a Motion to Dismiss, analyzing only the well-pleaded Complaint for allegations necessary to support theclaims. In the course of its analysis, the Court will assume thatall allegations are true. The allegations and all reasonableinferences to be drawn from them will be construed in the lightmost favorable to the Plaintiffs. Aulson v. Blanchard,83 F.3d 1, 3 (1st Cir. 1996). As stated by the United States SupremeCourt, "the accepted rule [is] that a complaint should not bedismissed for failure to state a claim unless it appears beyonddoubt that the plaintiff can prove no set of facts in support ofhis claim which would entitle him to relief." Conley v. Gibson,355 U.S. 41, 45-46 (1957). Defendants' motion will fail if "thewell-pleaded facts, taken as true, justify recovery on anysupportable legal theory." Cruz v. Melecio, 204 F.3d 14, 21(1st Cir. 2000).
At this stage in the litigation, as reflected by the FirstAmended Master Complaint, about 250 Plaintiffs have sued over 50Defendants in an eighty-one count Complaint.4 In thecounts naming WPRI, Plaintiffs allege that the TV station "isvicariously responsible for the actions of . . . defendantDerderian on February 20, 2003, performed in the course of [his]employment for TVL and WPRI Channel 12." Complaint, ¶¶ 449, 455. Those actions as set forth in the Complaint are as follows: 276. On February 20, 2003, Jeffrey Derderian acted at times material hereto as an investigative reporter for WPRI Channel 12, owned by TVL and/or STC. Together with Channel 12 photographer Brian Butler, also employed by TVL and/or STC, Jeffrey Derderian was investigating and preparing an analysis of nightclub safety for his employer intended to be aired in the wake of a fatal Chicago nightclub fire. 277. Jeffrey Derderian knew of several hazardous conditions in The Station nightclub on February 20th prior to 11:00 p.m., including without limitation that the club was substantially overcrowded, that it lacked adequate and lawful egress, that non-flame-retardant and defective egg crate foam had been placed on the interior finish of the walls surrounding the stage where the band would perform, and that Great White would use pyrotechnics in close proximity to these walls. 278. Had Jeffrey Derderian been investigating any other nightclub but one he owned and operated, he would have, armed with this knowledge, brought it to the attention of the owners and operators of the nightclub in an effort to aggressively promote a newsworthy story and/or to promote safety and prevent tragedy. 279. Jeffrey Derderian's failure to call attention to these defects as an individual, as owner of DERCO, LLC, and as an investigative reporter for TVL and/or STC working for WPRI Channel 12, caused deaths and severe personal injuries to plaintiffs.Complaint, ¶¶ 276-279.
Plaintiffs craft their allegations in order to impute theknowledge that Jeffrey Derderian as landlord of The Station had of conditions in the club to Jeffrey Derderian as investigativereporter. Under the theory of dual agency, Plaintiffs then imputeall the knowledge of Jeffrey Derderian, in both his capacities,to his employer, WPRI. See First Catholic Slovak Union v.Buckeye Union Ins. Co., 27 Ohio App. 3rd 169, 170,499 N.E.2d 1303, 1305 (1986).
For purposes of ruling on the Motion to Dismiss, the Courtaccepts the notion of dual agency, and imputes this"super-knowledge" to Jeffrey Derderian. However, the Court wantsto emphasize that the allegations of negligence addressed in thisMotion and the Court's opinion are limited to actions taken byJeffrey Derderian in the course of his employment with WPRI. Noactions that may or may not have been taken by Jeffrey Derderianin his capacity as owner or landlord of The Station are germaneto the legal analysis herein, except to the extent that JeffreyDerderian had knowledge of those actions. Furthermore, thisdecision does not affect the status of other allegations againstDERCO, LLC, or against Jeffrey Derderian in his individualcapacity, or in his capacity as agent of DERCO, LLC, or aslandlord, owner and/or operator of The Station. Likewise, thisdecision does not affect the status of the allegations againstBrian Butler, or the allegations against WPRI that are derivedfrom its employment relationship with Brian Butler. Vicarious Responsibility
Plaintiffs' theory of liability against WPRI relies on thedoctrine of respondeat superior, pursuant to which an employermay be liable for the actions of an employee acting in the scopeof his employment. This Court has previously addressed thesubject of employer liability in Brotko v. United States,727 F. Supp. 78 (D.R.I. 1989), in which the Court wrote: To hold a private employer liable for the wrongful or negligent acts of an employee under Rhode Island respondeat superior law requires proof that the employee was acting in furtherance of his or her employer's business at the time that the harm occurred. Further, the employee must have acted within the express or implied authority of the employer.727 F. Supp. at 81. Plaintiffs allege that Jeffrey Derderian wasacting within the authorized scope of his employment for WPRI,and, for purposes of the Motion to Dismiss, the Court will acceptthis allegation as true. Responsibility for actions JeffreyDerderian took or failed to take, in his capacity asinvestigative reporter for WPRI, may be attributed to WPRI.
The Court would like to call the reader's attention back toParagraph 279 of the Complaint, wherein Plaintiffs allege thatJeffrey Derderian's failure to call attention to the knownhazards "as owner of DERCO, LLC, and as investigative reporterfor TVL and/or STC working for WPRI Channel 12, caused deaths ofand personal injuries to plaintiffs." While it may be possible, under Plaintiffs' dual agency theory,to impute the knowledge of Jeffrey Derderian, the landlord, toJeffrey Derderian, the reporter, it is not possible to similarlycommingle his conduct. No actions taken by Jeffrey Derderian aslandlord of The Station and owner of DERCO, LLC, are attributableto WPRI because none of those actions were taken in thefurtherance of the business of WPRI, or with the express orimplied authority of WPRI. WPRI is only vicariously liable foractions taken or not taken by Jeffrey Derderian in his capacityas investigative reporter for the television station.
Plaintiffs allege that Jeffrey Derderian knew of the hazardousconditions that existed at The Station and that he failed to callthe attention of the owners and operators of the nightclub tothese hazards, and so failed to avert the fire which causedPlaintiffs' injuries. Plaintiffs allege that, as an investigativereporter, Jeffrey Derderian would have brought the hazards to theattention of the owners of the club, had it not been for the factthat he owned the club himself.
To make a prima facie case of negligence under Rhode Islandlaw, Plaintiffs must show that 1) Defendants owed them a legalduty to refrain from negligent activities; 2) Defendants breachedthat duty; 3) the breach proximately caused Plaintiffs' injuries;and 4) actual loss or damages resulted. Splendorio v. Bilray Demolition Co., 682 A.2d 461, 466 (R.I. 1996).
The Rhode Island Supreme Court has pointed out that "everynegligence case begins with a consideration of whether a legallycognizable duty runs from the defendant to the plaintiff."Kenney Mfg. Co. v. Starkweather & Shepley, Inc., 643 A.2d 203,206 (R.I. 1994). The existence of a duty is a question of law tobe determined by the court. Ferreira v. Strack, 636 A.2d 682,685 (R.I. 1994). The Rhode Island Supreme Court in Ferreiranoted that there is no "universal test" to determine theexistence of a duty, but instead the court employs "an ad hocapproach of considering all relevant factors." 636 A.2d at 685.
In Banks v. Bowen's Landing Corp., 522 A.2d 1222 (R.I. 1987),the Rhode Island Supreme Court considered the following factors: (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered an injury, (3) the closeness of connection between the defendant's conduct and the injury suffered, (4) the policy of preventing future harm, and (5) the extent of the burden to the defendant and the consequences to the community for imposing a duty to exercise care with resulting liability for breach.522 A.2d at 1225.
The Rhode Island Supreme Court noted that foreseeability is "the linchpin in determining the existence of any duty owed."Splendorio v. Bilray Demolition Co., 682 A.2d 461, 466. Thenotion of forseeability was most famously written about by NewYork's Justice Cardozo in Palsgraf v. Long Island R. Co.,162 N.E. 99 (N.Y. 1928).
The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. This does not mean, of course, that one who launches a destructive force is always relieved of liability if the force, though known to be destructive, pursues an unexpected path.162 N.E. at 100. For the purpose of the 12(b)(6) analysis, thisCourt must assume that Jeffrey Derderian knew about the foaminsulation and its extreme flammability; that he knew that theclub was overcrowded; that he knew that the exits wereinaccessible and that the band intended to set off fireworks.Given the knowledge of all those hazards, gleaned both from hisknowledge as landlord and as investigative reporter, the Courtdetermines that the potential of a dangerous fire must have beenforeseeable to Jeffrey Derderian. However something is stillmissing.
The Palsgraf Court wrote of "one who launches a destructiveforce." 162 N.E. at 100. In the present case, it was not JeffreyDerderian, in his capacity as an investigative reporter, who wasresponsible for any of the destructive forces that contributed to the fire. He was merely present. As owner of The Station, he knewof the foam insulation, he knew of the crowding, the exitproblems and of the band's plan to use pyrotechnics, and, becauseof his research into nightclub safety for the story for WPRI, heknew of the dangerous potential of these factors. He was presentand endowed with knowledge, a knowledge perhaps greater thananyone else present. But, does this super-knowledge impose uponhim a duty, or a special duty, to take control of the situationand try to change the course of events at the nightclub?
Duty to Control Conduct of Third Persons
The general rule is stated in the Second Restatement of the Lawof Torts: There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.Torts, 2d., § 315.
This section of the Restatement has not been formally adoptedby the Rhode Island Supreme Court, but the concepts expressedtherein form the basis of that Court's legal reasoning inProspert v. Rhode Island Suburban Ry. Co., 28 R.I. 367 (1907).In that case, the Court held that the railway was not negligent towards its passenger when it failed to find refuge for her andher baby when the train was stalled on the tracks for over elevenhours, due to inclement weather. The Court held that the railwayhad a duty to plaintiff to carry her safely to her destination,and protect her from injury while in transit. The railway haddone all it could to fulfill that duty in carrying her as far asit could go. The Rhode Island Supreme Court wrote, It would indeed have been an act of humanity and kindness on the part of the conductor, as of any other person seeing the plaintiff helpless and exposed to injury from cold and snow, to have helped her to a place of safety, if possible; and the duty of so doing, resting in moral rather than in legal obligation, would have been a personal one, resting upon the conductor or the motorman as an individual, and not as an agent or servant of the defendant corporation, in the same way and to the same extent that it would have rested upon any individual, had the plaintiff seen fit to leave the car, and endeavor to struggle through the snow to a place of safety. The duty of assistance or rescue in distress in such case rests not in contract, or in legal obligation, but in moral obligation growing out of human relations and therefore, is not a proper ground of action for damages.28 R.I. at 369.
Judge Pettine, writing for this Court in Pietrafesa v. Boardof Governors for Higher Educ., 846 F.Supp. 1066 (D.R.I. 1994),expressed a similar concept concerning duty of affirmativeaction, in reliance on Prosser and Keaton on the Law of Torts,§ 56 at 374 (5th ed. 1984), Liability for misfeasance may be caused by the injury of any person to whom harm may reasonably be anticipated as a result of the defendant's conduct. Liability for nonfeasance, however, requires the finding of some relationship between the parties of such character that public policy justifies the imposition of a special duty to act on the defendant.
846 F. Supp. at 1074.
In the present case, Plaintiffs allege that WPRI is vicariouslyliable for Jeffrey Derderian's failure to act when he couldforesee the dangerous potential for fire in the nightclub. Thisis failure to take affirmative action, failure "to control theconduct of a third person as to prevent him from causing physicalharm" in the words of the 2nd Restatement, or "nonfeasance" as itis identified in Pietrafesa. For the acts or omissions ofJeffrey Derderian to be legally actionable, the Court mustdetermine that there was a special duty running from him, as areporter, to Plaintiffs which required him to protect them fromharm. In the alternative, the Court must determine that a specialrelationship existed between Jeffrey Derderian, again as areporter, and those third parties whose acts may have directlycaused Plaintiffs' injuries, and that, as a result of thatspecial relationship, Jeffrey Derderian had a special duty tocontrol those third parties.
In the Pietrafesa case, which involved an injury to a scientist on board an oceanic research vessel, the Court engagedin an extensive analysis of each defendant's job description todetermine whether or not they owed a special duty to theplaintiff. Specifically, the Court required "facts whichestablish or even imply that [defendant] Biscaye was chargedwith a duty to provide for safety on board the Endeavor."846 F. Supp. at 1077.
In Irwin v. Ware, 392 Mass. 745, 467 N.E. 2d 1292 (1984), theSupreme Judicial Court of Massachusetts explained the "uniformset of considerations" that would enable the court to find aspecial duty.
Foremost among these is whether a defendant reasonably could foresee that he would be expected to take affirmative action to protect the plaintiff and could anticipate harm to the plaintiff from the failure to do so. It has been said that such foreseeability can be based on reasonable reliance by the plaintiff, impeding other persons who might seek to render aid, statutory duties, property ownership or some other basis.467 N.E.2d at 1300. The S.J.C. goes on to catalog relationshipswherein a special duty has been established, including collegeand resident student, restaurateur and patron, common carrier andpassenger, theater owner and patron, supervisor and employee,motel owner and guest, mental hospital and patient, parent andchild, bank and patron, childcare facility and child, etc.467 N.E.2d at 1302-1303. In Luoni v. Berube, 431 Mass. 729, 729 N.E.2d 1108 (2000),the Supreme Judicial Court of Massachusetts wrote that, whenderived from common law, a special duty "is predicated on aplaintiff's reasonable expectations and reliance that a defendantwill anticipate harmful acts of third persons and takeappropriate measures to protect the plaintiff from harm."729 N.E.2d at 1111. See also Ferriera v. Strack, 652 A.2d 965 (R.I.1995).
This Court can state with certainty that no patron of TheStation would have observed Jeffrey Derderian and his cameramanat the nightclub and entertained a reasonable expectation that heor she would consequently be protected from any harm that mightoccur. Similarly, Jeffrey Derderian in his capacity as aninvestigative reporter had no such relationship with the thirdparties present at The Station such that he had a duty to exertcontrol over their actions.
Again, turning to our neighbor to the north, the SupremeJudicial Court of Massachusetts, in analyzing a case of a socialhost's liability for a car accident involving an intoxicatedparty guest, stated, "We think the factor of control shouldcontinue to be the dominant consideration in a case of this type. . . In the absence of a right to exercise effective control,the defendant was not subject to a duty to act to protect theplaintiffs." Cremins v. Clancy, 415 Mass. 289, 612 N.E.2d 1183, 1186 (1993).
The issue of control comes into focus in this case when theCourt evaluates the choices confronting Jeffrey Derderian at TheStation that night. Plaintiffs allege in the Complaint thatJeffrey Derderian had a duty to bring his knowledge of thehazards at The Station "to the attention of the owners andoperators of the nightclub in an effort to aggressively promote anewsworthy story and/or to promote safety and prevent tragedy."Complaint, § 278. Jeffrey Derderian could have told the nightcluboperators to send 100 patrons home to eliminate overcrowding, hemight have warned them of the flammability of the foaminsulation, or he might have tried to prevent the ignition of thefireworks. No doubt he wishes he had.
But, in the words of the Rhode Island Supreme Court inProspert, this would have been "an act of humanity andkindness," resting, "not in contract, or in legal obligation, butin moral obligation growing out of human relations and therefore,is not a proper ground of action for damages." 28 R.I. 367, 369(1907). Because Jeffrey Derderian, as an investigative reporter,had no special duty to protect the Plaintiffs, and no specialduty to control the actions of third parties at the nightclub, hehad no legal duty to take any kind of affirmative action at TheStation on the night of the fire. His failure to take affirmativeaction does not constitute negligence, and no negligence can be vicariously imputed to WPRI. Furthermore, no additionaldiscovered factual information could create a duty based onPlaintiffs' allegations. Therefore, it is the considered opinionof this Court that the Rhode Island Supreme Court would notimpose a duty on an investigative reporter to warn the patrons orthe owners of a nightclub of impending danger in this type ofsituation.
First Amendment issue
The allegations against Defendants are quoted in their entiretyearlier in this opinion. However, in their memorandum of lawDefendants raise an additional legal issue that the Court willbriefly address.
Defendants have responded at length to a claim that Plaintiffseither never raised, or, possibly, raised and withdrew: that WPRIhad a duty to broadcast a news report, prior to the fire,describing the hazardous conditions in the nightclub that wereknown to Jeffrey Derderian, as a result of his investigativereporting. Any such duty, Defendants assert, would violate theirconstitutional right to free speech under the First Amendment,and represent an impermissible regulation of the editorialprocess. See DeFilippo v. National Broadcasting Co., Inc., R.I.446 A.2d 1036 (1982); Brandt v. Weather Channel, Inc., 42 F.Supp.2d 1344 (S.D. Fla. 1999). No claims alleging that Defendantshad a duty to broadcast a warning about conditions at The Station can be found in the First Amended Master Complaint.Consequently, the Court determines that no such claim is a partof Plaintiffs' case, if indeed it ever was, and no claims of thisnature need be responded to by Defendants, or addressed by theCourt.
Similarly, Plaintiffs have raised an additional issue in theirmemorandum, concerning Jeffrey Derderian's alleged conflict ofinterest in serving as an investigative reporter conducting aninvestigation of a property which he owned. This conflict,Plaintiffs assert, represents a breach of journalistic ethics.While this may or may not be true, any such breach is a matterbetween Jeffrey Derderian and his employer, and cannot form thebasis of legal action undertaken by Plaintiffs against WPRI.
For the aforementioned reasons, this Court grants Defendants'Motion to Dismiss portions of counts 37, 38 and 39; only to theextent that those counts allege vicarious liability for thealleged negligence of their employee Jeffrey Derderian. Ajudgment shall not enter at this time.
It is so ordered.