Clown’s actions toward Busch Gardens visitor not assault

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Where a clown at a Halloween event at Busch Gardens allegedly approached the plaintiff from behind, whispered something in her ear and then yelled out and startled her, that conduct did not support a claim for assault because it did not constitute an actual threat, harmful or offensive contact or apprehension of an immediate battery.

Background

This personal injury action arises from an incident that occurred on Sept. 30, 2018, when plaintiff attended the Howl-O-Scream event at Busch Gardens Williamsburg. Plaintiff claims that an unidentified employee of defendant SeaWorld Parks & Entertainment LLC, who was dressed up as a clown, intentionally startled plaintiff, causing her to hit her head on a set of lockers and suffer serious injuries.

Plaintiff’s second amended complaint appears to allege claims for: (1) assault; (2) negligence under a premise’s liability theory; (3) negligent training and supervision; (4) simple negligence and (5) gross negligence. SeaWorld now moves to dismiss plaintiff’s second amended complaint for failure to state a claim.

Analysis

Before the court turns to the merits of SeaWorld’s second motion to dismiss, the court notes the second amended complaint does not comport with the court’s bench ruling during the motion to dismiss hearing. It reasserts the negligence under a premise’s liability and negligent training and supervision claims that the court previously dismissed with prejudice, and seeks to assert a new claim of gross negligence, without leave of the court. Therefore, on the court’s own motion, these claims are stricken, and SeaWorld’s second motion to dismiss with respect to these claims is dismissed as moot.

Assault

The court finds that plaintiff’s second amended complaint does not adequately allege necessary elements of assault – i.e., any actual threat, “harmful or offensive contact” or any apprehension of an immediate battery. Rather, the court finds that plaintiff’s attempt to bolster her assault claim through the addition of the allegation that the unidentified employee of SeaWorld whispered something unintelligible in her right ear before hollering out falls short of plausibly placing plaintiff in reasonable apprehension of bodily harm.

The court reaches this conclusion because any inference of plaintiff’s apprehension of imminent battery by the unidentified employee of SeaWorld is discredited by the affirmative allegations that (1) before the employee hollering out plaintiff was bent over, facing the lockers, focused on securing her belongings unaware of what was going on behind her and (2) that she could not comprehend the forewarning unintelligible whisper. Moreover, the court finds that plaintiff’s allegations are insufficient to establish a cause of action for assault based on relevant case law in the Eastern District of Virginia as well in the Virginia state courts.

Negligence

The court finds that plaintiff’s second amended complaint fails to plausibly allege a claim of negligence against SeaWorld. At bottom, the court takes issue with the “duty” and “breach” prongs requisite to establishing simple negligence.

Even though plaintiff’s second amended complaint alleges that SeaWorld had a duty “to exercise reasonable care for Plaintiffs safety” plaintiff fails to provide any factual allegations to show how SeaWorld breached such duty in connection with the Howl-O­ Scream incident or how SeaWorld would be responsible for its unidentified employee’s alleged actions during the Howl-O-Scream incident.

Defendant’s second motion to dismiss granted in part, dismissed in part as moot.

Telles v. SeaWorld Parks & Entertainment LLC, Case No. 20-cv-6, Sept. 3, 2020. EDVA at Newport News (Doumar). VLW 020-3-464. 17 pp.