As a special Halloween Treat, we look at a recent Motion to Dismiss ruling by Judge Doumar.

The facts are colorful.  An unidentified SeaWorld employee, dressed as a clown, was working at the Howl-O-Scream event at Busch Gardens in 2018.  He intentionally startled Plaintiff while she was using a set of lockers to store her belongings.  The clown is described as "a fully costumed, make-up dressed, bald-head, angry-yet odd, smiling park employed clown."  The Plaintiff hit her head when she was scared and was injured.

But Judge Doumar put an end to the suit.  After previously granting a Motion to Dismiss, the colorfully pled Amended Complaint was still not enough in his view.  He dismissed all claims.

As to assault, the claim failed because the Court found there was no "reasonable apprehension of bodily harm" as the Plaintiff had no more than a split-second in which she knew the clown was lurking.

The Court's dismissal of the claim for negligence is more difficult to understand.  The opinion notes a possible misunderstanding between the Court and the parties regarding its previous ruling from the bench on the first motion to dismiss.  Regardless, the Court seems to conclude that because Plaintiff alleges that the clown's actions were intentional, there cannot be a claim of negligence against Seaworld for respondeat superior.  Other Virginia courts have historically disagreed.  See, e.g. Rockingham Mut. Ins. Co. v. Davis, 58 Va. Cir. 466, 472 (Cir. Ct. 2002) ("It is clear that respondeat superior can make an employer liable for intentional torts, as well as negligent ones.").  The dispute is usually whether the employee was acting within the scope of his duty.  Not so here, when it appears clear scaring the patrons seems to be exactly the nature of his employment.

It will be interesting to watch whether this one is subject to an appeal to the Fourth Circuit. Either way, we can all agree to beware of scary clowns.


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