NO. 98-14038

Plaintiffs Greg Dulli and the Afghan Whigs file this First Amended Petition complaining of Liberty Lunch and Wagon Yard, Inc. ("Liberty Lunch"), Jeannette Ward, Mileah Jordan, and Teitur Gentry.

1. This is an action by Greg Dulli and the Afghan Whigs against Liberty Lunch, one of its "security" guards and bouncers, Teitur Gentry ("Gentry"), its owner, Jeannette Ward ("Ward"), and one of its managers, Mileah Jordan ("Jordan"). Plaintiffs’ claims arise out of a series of incidents that began on the evening of Friday, December 11, 1998, and culminated early in the morning of Saturday, December 12, with the unprovoked and cowardly attack on Greg Dulli by Gentry, a Liberty Lunch bouncer. The attack was then followed by a series of slanderous false statements designed to cover up the reprehensible conduct of the club’s employees. Plaintiffs assert claims against Liberty Lunch and Gentry for assault and battery to the person of Greg Dulli, against Liberty Lunch for negligence, negligent hiring and retention, and premises liability, and against Liberty Lunch, Ward, and Jordan for slander. The facts are set forth below.

Venue

2. Venue is proper in Travis County, Texas pursuant to section 15.002 of the Texas Civil Practice and Remedies Code.

Parties

3. Plaintiff Greg Dulli is an individual who resides in Seattle, Washington.
4. Plaintiff Afghan Whigs, Inc. is a Delaware corporation.
5. Defendant Liberty Lunch and Wagon Yard, Inc. is a Texas corporation with its principal place of business located in Travis County, Texas. Liberty Lunch has appeared as a Defendant in this action.
6. Defendant Jeannette Ward is an individual residing in Travis County, Texas. She has appeared as a Defendant in this action.
7. Defendant Mileah Jordan is an individual residing in Travis County, Texas. She has appeared as a Defendant in this action.
8. Defendant Teitur Gentry is an employee of Liberty Lunch. He is believed to reside in Travis County, Texas.

Facts Common to All Counts

9. Having recently released a new CD, "1965," which is receiving critical acclaim, the Afghan Whigs, an alternative rock band, embarked on a tour both to entertain its fans and to promote sales of its new CD. A successful promotional tour is crucial to the effective marketing of the band’s new CD. The second leg of the band’s three-part tour brought the band to Austin, where it was scheduled to perform at Liberty Lunch on Friday, December 11, 1998. Liberty Lunch was aware of the purpose of the concert in Austin and understood the significance of the band’s tour to the financial success of its new release.
10. Despite the band’s scheduled arrival Friday evening, Liberty Lunch’s front doors were locked when the Afghan Whigs arrived at the club. The band was there to perform a sound check in preparation for the band’s performance that evening. When its efforts to gain access to stage area were unsuccessful, the band, following a practice common in the industry, knocked loudly on the locked, metal fire doors at the club’s entrance. Gentry, among other employees of the club, then emerged from the club. Gentry performed various jobs for Liberty Lunch. He served as a "grip" or loader, assisting bands in setting up and taking down equipment for concerts. He also performed a security role, sometimes referred to as a "bouncer." In that capacity, Liberty Lunch clothed Gentry with the authority to use force against other persons in discharging his job responsibilities. When Gentry arrived at the locked front doors, he immediately became belligerent with the band for its efforts to gain access to the stage area. With an apparent attempt of machismo and trying to impress on all present his authoritative role on behalf of the club, Gentry singled out and berated Greg Dulli, the band’s leader, with threats and epithets. To defuse the situation, the band ignored Gentry’s invitation to violence. Gentry, for the time being, at least, gave the appearance of having regained his composure. As events later that evening would confirm, however, Gentry, as a bouncer for Liberty Lunch, harbored ill will and malice for Mr. Dulli and intended to get revenge for the humiliation he experienced in his failed efforts to establish himself as an authority for Liberty Lunch.
11. Because of Gentry’s irrationality and hostility in the sound check incident and his demonstrated penchant for violence, the band alerted Oscar, head of security at Liberty Lunch, about the risk Gentry posed to the safety and security of the band. Liberty Lunch was then on notice of the danger Gentry posed, both to the band and to Mr. Dulli. On information and belief, Liberty Lunch bouncers on prior occasions with other bands had engaged in violent or belligerent behavior and management was aware of the danger such conduct posed. In particular, Jordan, a club manager, later admitted that she and the club were aware of Gentry’s inclination to violence. The band’s concern about Gentry came as no surprise to Liberty Lunch. Oscar apologized to the band for Gentry’s hostile conduct. Oscar then assured the band, falsely, that Gentry would have no further contact with the band and would be sent home.
12. Later that evening, but before the band began to perform, Gentry and another club bouncer known as "Porkchop" were seen smoking marijuana on the premises of the club. Jordan, a club manager, was aware of this fact. Porkchop, whose purpose was to provide security to the band, later fell into an apparently drug-induced sleep, where he remained throughout most of the performance. At various times during the evening, Gentry (who had not been sent home) and Porkchop (when not sleeping) were observed drinking alcohol.
13. The Afghan Whigs performed for nearly three hours that night, including two encores at the urging of the audience. The members of the band, including Mr. Dulli, were pleased with the audience’s response and were happy to have had a successful performance. They held no animosity for Gentry, who had long since become insignificant.
14. After the performance, the band participated in a "meet and greet" with members of the music industry and invited guests. Gentry and Porkchop were not invited guests. With the approval and consent of Liberty Lunch, however, they were present in the club, which had long since been locked when the club was closed to the public. Gentry and Porkchop apparently continued to perform tasks associated with performance of their jobs with Liberty Lunch, including loading equipment and cleaning the club. At such time as Gentry finished his tasks for his employer (if, in fact, he did), Liberty Lunch permitted him to remain on the premises even though the club had been closed, its doors locked, and the public had left. Liberty Lunch allowed this to happen with full knowledge of the threat Gentry posed to the safety of Mr. Dulli and the band.
15. Although uninvited, Gentry then tried to join the meet and greet and to get near to Mr. Dulli. He accomplished that by making an unsolicited approach to one of the female vocalists in the band. With a gesture toward Mr. Dulli, Gentry asked the vocalist: "What’s a pretty girl like you doing with a bunch of Yankees?" When she attempted to defend the band, Gentry continued to ridicule Mr. Dulli (behind his back) for being from Cincinnati. Gentry attempted to distinguish himself by announcing that he, Gentry, lived in Austin and worked at the club. Gentry’s efforts to establish rapport with the vocalist through such conversation ultimately failed and he returned to his Liberty Lunch tasks.
16. As the meet and greet was beginning to conclude, Mr. Dulli walked across the music hall to use a restroom. His return route from the bathroom brought Mr. Dulli in close proximity to an area where Gentry and other club bouncers were lingering. Other than holding a cigarette in his left hand, Mr. Dulli was empty-handed as he neared the raised seating area. Gentry must have sensed Mr. Dulli was about to leave the club. Without warning and in a cowardly effort to avoid a direct confrontation, Gentry, one of the people Liberty Lunch had present in the club to provide security, blindsided Mr. Dulli and delivered a blow that forced him onto the ground. Then, when Mr. Dulli was down and making no effort to defend himself, Gentry kicked him in the side of his head. This caused Mr. Dulli to roll to his side. As other Liberty Lunch bouncers, security personnel, managers and employees looked on, Gentry again kicked Mr. Dulli while he was down, this time in the back of his head. A wound on the back of his head had opened and Mr. Dulli lay bleeding on the floor of Liberty Lunch, with a fractured skull. His pool of blood was still visible on the club’s floor during a concert the following night.
17. When a member of the band tried to stop Gentry from continuing to kick Mr. Dulli in the head, Porkchop, who (like all other club employees) had made no effort to restrain the vicious attack by Gentry, struck the band member in the side of the head. Despite the blow, the band member and others were eventually successful in stopping Gentry’s attack on Mr. Dulli.
18. Pleas from band members to the bar manager and other club employees to call the police and an ambulance fell on deaf ears. Liberty Lunch and its on-duty crew had not only caused the attack on Mr. Dulli, they were content to let him lie on the floor bleeding. Given the events that led to the attack and Liberty Lunch’s culpability, their refusal to call the police was no surprise. On information and belief, a guest at the meet and greet was successful in calling 911 and requesting emergency help.
19. Soon after they realized the potential consequences of what they had done to Mr. Dulli, the Liberty Lunch staff concocted a phony defense. They would claim that Mr. Dulli had attempted to attack Gentry with a baseball bat. The Liberty Lunch employees rallied around Gentry’s new-found defense. Someone then apparently realized that the "bat" story was implausible because there were no bats on the premises, so they simply changed the bat to a "2-by-4," and accused Mr. Dulli of attacking with a 2-by-4.
20. As the concocted defense was being modified, the bar manager, also promoting the bat story, claimed that the "bat" had already been retrieved from the scene of the attack and was under his custody. Because there was no bat, however, he refused to produce it either for the band or for the police, when they later arrived.
21. Under the guise of merely getting them into a separate place, Liberty Lunch’s manager, Jordan, ushered Gentry, first, and then Porkchop, into the club’s office, where, apparently unknown to either of them, the band’s tour manager was present. Rather than staying in the club until the police arrived, however, Gentry and Porkchop, with the aid and assistance of Liberty Lunch’s manager, sneaked out onto the street though the other office door. When it became apparent that the police were en route, Gentry and Porkchop fled the premises in order to avoid questioning or being taken into police custody. Witnesses saw Gentry jump into his pickup, spin his wheels into a fishtail, and then depart at a high rate of speed. Porkchop ran off on foot.
22. If the defense were as Gentry, Porkchop and Liberty Lunch have offered, they would have remained, cooperated with the police and justified their conduct, as any properly-trained security personnel under similar circumstances would have done. That they chose, instead, to flee with the assistance (if not insistence) of management underscores the flimsiness of their after-the-fact accusations against Mr. Dulli.
23. Liberty Lunch staff then refused to open the front doors to the club while emergency medical technicians were en route. After the emergency medical technicians arrived and knocked on the doors, the doors were finally opened so that they could take Mr. Dulli, who had sustained very serious injuries, to the hospital, where he was placed in the intensive care unit with a fractured skull.
24. On or about December 14, 1998, Jordan, on information and belief, perpetuated the Liberty Lunch’s false defense by giving an interview to a columnist for the city newspaper. Knowing of the substantial likelihood of widespread publication, Jordan, acting with express or implied authority from Liberty Lunch to talk to the press, falsely and maliciously told the columnist that Mr. Dulli "threatened our guy, then attacked him." Speaking with another reporter, Ward, the club’s owner, falsely and maliciously stated that Mr. Dulli "came at a stagehand with a two-by-four, and then he got decked." These statements were false and slanderous to Mr. Dulli. Upon information and belief, another Liberty Lunch employee maliciously slandered Mr. Dulli by falsely attributing to him the statement: "We have some unfinished business, Billy Goat Boy."
25. The tortious conduct of Liberty Lunch, acting by and through Ward and the club’s authorized employees Gentry, Porkchop and Jordan, has caused foreseeable, substantial harm and injury to Mr. Dulli personally and to the Afghan Whigs. The Afghan Whigs have been forced to cancel several of their scheduled concerts on their promotional "1965" tour.

26.   Paragraphs 1 through 25 are incorporated herein by reference.

27.   The foregoing conduct constitutes assault and battery to the person of Greg Dulli by Gentry, within the course and scope of his employment with Liberty Lunch. Gentry intentionally, knowingly or recklessly caused bodily injury to Mr. Dulli. Having given Gentry the authority to use force in connection with his employment, Liberty Lunch is vicariously responsible, under the doctrine of respondeat superior, for Gentry’s conduct, which arose out of and was, ostensibly, in furtherance of Liberty Lunch’s business.

2. Negligence, Negligent Hiring, Negligent Retention, and Premises Liability

28.   Paragraphs 1 through 25 are incorporated herein by reference.

29.    The foregoing conduct demonstrates that Liberty Lunch was negligent, and that Liberty Lunch negligently hired and/or retained Gentry. Having control over the security and safety of the premises, Liberty Lunch failed to use ordinary care to protect its invitees from the foreseeable acts of others. With full knowledge that Gentry was potentially dangerous, Liberty employed and retained Gentry as security personnel for the club. Liberty Lunch was specifically aware of the threat Gentry posed to Mr. Dulli and the Afghan Whigs, but negligently retained him to work on the night the band performed in the club and allowed him to remain in the premises after the club had closed, the doors had been locked, and the general public had been excluded. Moreover, Liberty Lunch negligently allowed its employees, including Gentry and Porkchop, to consume alcohol and smoke marijuana while working as security personnel. Liberty Lunch’s negligent conduct gave Gentry the opportunity he would not otherwise have had to cause Mr. Dulli bodily injury that foreseeably resulted in both physical injuries to Mr. Dulli and economic injuries to both Mr. Dulli and the Afghan Whigs.

III. Slander

30.  Paragraphs 1 through 25 are incorporated herein by reference.

31.  The foregoing conduct constitutes slander by Liberty Lunch, Ward and Jordan. With full knowledge that their statements would be widely publicized, and with full knowledge of the negative impact their statements would have on Mr. Dulli and the Afghan Whigs, Ward and Jordan each gave false accounts of the circumstances surrounding Mr. Dulli’s injuries to the press. In a prophylactic effort to protect Liberty Lunch from liability for its employees egregious conduct by propagating the story of the employees’ false "defense," Ward and Jordan made these statements maliciously, either with knowledge of their falsity or with a reckless disregard for whether they were true or false.

IV. Damages

32.  Defendants’ conduct, described above, caused substantial damages to Mr. Dulli and the Afhgan Whigs. Mr. Dulli’s damages include severe bodily injuries; past and future physical pain and mental anguish; past and future medical expenses; and past and future lost earnings and lost earning capacity. The Afghan Whigs’ damages include foreseeable economic injuries, including, but not limited to, losses resulting from its cancelled concerts. Plaintiffs are also entitled to punitive damages for Defendants’ conduct, and pre-judgment and post-judgment interest.

Plaintiffs respectfully pray that Defendants be cited to appear and answer, and that, upon trial of this case, they be awarded judgment against Defendants for the relief requested in an amount in excess of the jurisdictional limits of this Court, and all other relief to which they are entitled.

Respectfully submitted,

SCOTT, DOUGLASS & McCONNICO, L.L.P.
600 Congress Avenue, Suite 1500
Austin, Texas 78701-2589
(512) 495-6300
(512) 474-0731 Fax

 

By _______________________________
Thomas A. Albright
State Bar No. 00974790
Sara M. Wilder
State Bar No. 00794847

ATTORNEYS FOR GREG DULLI
AND THE AFGHAN WHIGS

The foregoing was served via hand-delivery on the following counsel of record on this 11^th day of January, 1999:

Geoffrey P. Pivateau
Wintroub, Rinden, Sens & McCreary
400 West 15^th Street, Suite 304
Austin, Texas 78701

_____________________________________
Thomas A. Albright