Brown v. End Zone, Inc.

259 A.3d 473

D'Anna BROWN and Cameron Dean

v.The END ZONE, INC. d/b/a Club Onyx, Rick's Cabaret International, Inc., Nah Nichols, Tez Real Estate, LP, and Tez Management, LLC

Appeal of: the End Zone, Inc. d/b/a Club Onyx

D'Anna Brown and Cameron Dean Cross-Appellants

v.The End Zone, Inc. d/b/a Club Onyx, Rick's Cabaret International, Inc., Nah Nichols, Tez Real Estate, LP, and Tez Management, LLC

D'Anna Brown and Cameron Dean Cross-Appellants

v.The End Zone, Inc. d/b/a Club Onyx, Rick's Cabaret International, Inc., Nah Nichols, Tez Real Estate, LP, and Tez Management, LLC

D'Anna Brown and Cameron Dean

v.The End Zone, Inc. d/b/a Club Onyx, Rick's Cabaret International, Inc., Nah Nichols, Tez Real Estate, LP, and Tez Management, LLC

Appeal of: the End Zone, Inc. d/b/a Club Onyx

No. 193 EDA 2020

No. 321 EDA 2020

No. 322 EDA 2020

No. 324 EDA 2020

Superior Court of Pennsylvania.

Argued April 15, 2021.

Filed June 29, 2021

William J. Fox, Philadelphia, for appellant.

Keith T. West, Philadelphia, for appellee.

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

In this consolidated action, Appellant/Cross-Appellee The End Zone, Inc. (d/b/a Club Onyx) appeals the judgment entered by the Court of Common Pleas of Philadelphia County upon a jury verdict in favor of Appellee/Cross-Appellant D'Anna Brown ("Brown").¹ In addition, Brown, along with Cameron Dean ("Dean") filed a cross-appeal from the judgment entered following the denial of their post-trial motion seeking (1) to remove the nonsuit entered against Brown in favor of Cross-Appellee Rick's Cabaret International, Inc. ("RCI")² and (2) to remove the nonsuit entered against Dean in favor of Cross-Appellee Tez Management, LLC.³

We affirm the judgment entered in favor of Brown against The End Zone and affirm in part the trial court's order entering nonsuit with respect to RCI. However, we reverse the trial court's entry of a nonsuit in favor of Tez Management, LLC and remand for a new trial limited to Dean's claims of liability and damages against Tez Management, LLC.

In August 2016, Brown and Dean jointly filed a negligence action (docketed at No. 01029-2016) against The End Zone, RCI, Nah Nichols, Tez Real Estate, LP, and Tez Management, LLC (collectively "the Defendants") to recover damages for serious injuries Brown and Dean sustained when a large fight broke out on August 10, 2014 at Club Onyx, a Philadelphia adult-entertainment venue.⁴ Brown and Dean claimed Defendants were negligent in inter alia , serving alcohol after-hours and failing to satisfy compliance requirements for security and alcohol service despite prior enforcement measures taken against The End Zone and Club Onyx by the Liquor Control Board (LCB) and the City of Philadelphia. Brown and Dean claimed the Defendants’ negligent operation of Club Onyx directly resulted in their injuries in the August 10, 2014 incident, which will be discussed further infra .

In May 2017, Brown filed a separate action (docketed at No. 04021-2017) against the Defendants sounding in fraud based on allegations that the Defendants forged Brown's signature on a release of liability document, or alternatively, falsely promised to pay Brown's medical bills in order to induce her to sign the release. Brown also raised an abuse of process claim as Defendants offered the allegedly forged liability release as a defense.

On August 8, 2017, the two cases were consolidated for discovery and trial. On April 29, 2019, the cases proceeded to a jury trial, which spanned several days of testimony. Brown testified that, on the night in question, she was working as an exotic dancer in the VIP room of Club Onyx where she earned approximately $3,000 to $6,000 each week depending on the tips she would make. Notes of Testimony (N.T.), Trial, 5/1/19, at 215-16, 229-30.

At approximately 3:50 a.m., a large fight broke out after a dancer named Mona Lisa struck one of the patrons with a vase. N.T., 5/6/19, at 35, 59. Brown was suddenly and severely injured when an unknown patron involved in the altercation threw a glass bottle that hit Brown in the mouth, causing her to become disoriented and momentarily lose consciousness. N.T., 5/1/19, at 247-48, 251-52. When Brown regained consciousness, a friend drove Brown to the emergency room where medical personnel discovered that Brown sustained multiple fractured front teeth on the top and bottom of her mouth and a broken bone in the top of her mouth. Id . at 252-64, N.T., 5/2/19, at 6-9.

Brown subsequently underwent surgery to replace the broken bone, required multiple sets of dentures, and was recommended to have further reconstruction surgeries, which included dental implants for her missing teeth. N.T., 5/2/19, at 9-14.

Brown also suffered a concussion from the incident and reported experiencing persistent headaches, jaw pain, light sensitivity, and memory lapse. Id . at 14-19. Moreover, Appellee Brown indicated that she experienced psychological problems, such as depression, anxiety, and suicidal ideations, which ultimately led to her voluntary commitment into a mental health institution. Id . at 15-21.

Brown testified that she was eventually unable to pay for her dental reconstruction and forwarded her dental bills to Nah Nichols, manager of The End Zone. Id . at 22. While Nichols initially gave Brown checks for $875 and $1,500, Defendants claimed these funds were disbursed when Brown agreed to sign a liability release, which Brown denied. Id . at 26, 36-38, 257-59.

Plaintiff Dean also sought to recover damages for injuries he sustained during the August 10, 2014 altercation at Club Onyx, while he was working as a Floor Host. N.T., 5/6/19, at 30, 53. Dean was injured when he was struck in the head by an unknown patron with a large metal pole. N.T., 5/1/19, at 82; N.T., 5/6/19, at 39-40. Dean was taken to Thomas Jefferson Hospital where he received thirteen stitches to close his head wound. N.T., 5/1/19, at 85. N.T., 5/6/19, at 42.

The parties stipulated that Dean was barred from seeking damages for his injuries against The End Zone and RCI due to his receipt of workers’ compensation benefits as an employee of The End Zone.⁵ N.T., 4/29/19, at 14-15. However, the parties agreed Dean could still pursue his claims against Tez Real Estate, LP, and Tez Management, LLC. Id .

Brown and Dean also presented the testimony of Ed Anakar, who served as the corporate designee of The End Zone, Tez Real Estate, LP, and Tez Management, LLC. Anakar admitted that, prior to the incident in question, twenty-four instances of violence had occurred at Club Onyx, which involved shootings, fights, assaults, visibly intoxicated patrons, and disorderly operations. N.T. 4/29/19, at 77, 84-101; Plaintiff's Exhibit 1. After these incidents, The End Zone's continued operation of Club Onyx was made contingent on its compliance with additional conditions on its liquor license and occupancy permit through a conditional licensing agreement with the Liquor Control Board and a consent order by the City of Philadelphia. See N.T., 4/29/19, at 108-125; Plaintiff's Exhibits P-1 and P-2.

The conditional licensing agreement of May 21, 2013 required The End Zone become and remain compliant with the responsible alcohol management provisions (RAMP) of the Liquor Code, which included but was not limited to training of its alcohol service personnel and managers. See Plaintiff Exhibit P-1. The consent order of July 24, 2012 required The End Zone to comply with various security measures, including but not limited to hiring appropriately qualified security officers and to performing criminal background checks on its employees. See Plaintiff Exhibit P-2.

Appellant and Dean presented the expert testimony of Russell Kolins, a security practitioner and consultant. Kolins opined that the Defendants "had an obligation to provide security in a reasonable manner and failed to properly hire, vet, train, and supervise its proprietary staff, security staff that Defendants referred to as ‘Floor Hosts.’ " N.T. 5/1/19, at 74. Further, Kolins found that the Defendants failed to provide reasonable security by permitting visibly intoxicated individuals into the club and allowing those persons to be served alcoholic beverages by its staff. Id . at 76. Moreover, Kolins concluded that on August 10, 2014, the Defendants "failed to provide security and serve alcoholic beverages in a reasonable manner" and these failures were the direct and proximate cause of Brown's injuries. Id .

At the conclusion of Brown and Dean's presentation of evidence in their case-in-chief, on May 6, 2019, the trial court entered a nonsuit in favor of RCI, Nah Nichols, Tez Real Estate, LP, and Tez Management, LLC. N.T., 5/6/19, at 157-58. The only claims that survived nonsuit were Brown's claims against The End Zone. As Dean had only brought claims against Tez Real Estate, LP, and Tez Management, LLC, the nonsuit ended Dean's participation in the trial.

The Defendants presented their evidence, which included the expert testimony of William LaTorre, a security and liquor compliance consultant, who was a former district commander in the Pennsylvania State Police assigned to the Bureau of Liquor Control Enforcement. LaTorre opined that The End Zone had in place and followed an adequate security plan and responded to the August 10, 2014 incident in a reasonable and appropriate manner. N.T. 5/2/19, at 146-47.⁶

On May 10, 2019, the jury returned a verdict in favor of Brown, finding The End Zone's negligence caused Brown's injuries and that The End Zone had committed "fraud by forgery" in presenting a liability release form that Brown had never signed. The jury awarded Brown $820,000 in compensatory damages: $800,000 for the negligence claim and $20,000 on the fraud claim.

In addition, the jury determined that the conduct of The End Zone was outrageous and in reckless disregard of Brown's safety. As such, the jury awarded Brown $500,000 in punitive damages: $450,000 for the negligent...