CIRCUIT COURT OF THE 9TH JUDICIAL CIRCUIT ORANGE COUNTY, FLORIDA -------------------------------------------------------------------x ALBERT GRIMMIE, JR., AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHRISTINA VICTORIA GRIMMIE, ALBERT GRIMMIE, JR., TINA GRIMMIE and MARCUS GRIMMIE,

Plaintiffs,

-against-

AEG LIVE SE, THE ORLANDO PHILHARMONIC ORCHESTRA PLAZA FOUNDATION, INC., and ABC CORPORATION, JOHN DOE and JANE DOE, corporations and individuals whose identities are not yet known,

Defendants. --------------------------------------------------------------------x

Case No. 2016-CA-011056-0

PLAINTIFFS' CONSOLIDATED RESPONSE TO (1) DEFENDANT AEG LIVE SE'S MOTION TO DISMISS

PLAINTIFF'S COMPLAINT OR, IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT AND

(2) DEFENDANT, THE ORLANDO PHILHARMONIC ORCHESTRA PLAZA FOUNDATION, INC.'S MOTION TO DISMISS PLAINTIFFS'

COMPLAINT AND/OR MOTION FOR A MORE DEFINITE STATEMENT

Plaintiffs, Albert Grinnnie, Jr. as Personal Representative of The Estate of Christina

Victoria Grimmie, Albert Grimmie, individually, Tina Grimmie and Marcus Grimmie, by and

through their undersigned counsel, respectfully submit this consolidated response to (1)

Defendant AEG Live SE's Motion to Dismiss Plaintiffs Complaint or, in the Alternative,

Motion for More Definitive Statement and (2) Defendant, The Orlando Philhatmonic Orchestra

Plaza Foundation, Inc.'s Motion to Dismiss Plaintiffs' Complaint and/or Motion for a More

Definite Statement:

190515

Filing # 52774101 E-Filed 02/21/2017 03:01:02 PM

PRELIMINARY STATEMENT

This case arises out of the tragic death of Christina Victoria Grimmie, a 22-year-old

singer, songwriter and music performer whose highly successful career was brntally cut short

when she was shot to death on June 10, 2016. During the seven years preceding her death,

Christina had risen from a 15-year-old YouTube sensation to rising professional star. At the time

of her death, she was engaged by defendant AEG Live SE ("AEG") to perform on tour with the

band "Before You Exit" (the "Spring/Summer 2016 Tour" or the "Tour"). The Tour began on

May 29, 2016 in Philadelphia and, for Christina, ended 12 days later at The Plaza Live Theater in

Orlando, Florida, the ninth stop on the Tour. The Plaza Live Theater is owned by defendant The

Orlando Philharmonic Orchestra Plaza Foundation Inc. (the "Orlando Philharmonic Orchestra").

Christina's killer, Kevin Loibl ("Loibl") was able to enter The Plaza Live Theater with

two 9mm Glock handguns, two full magazines and a large hunting knife. He was able to bring

these weapons into The Plaza Live Theater notwithstanding the presence of security personnel

hired by the Orlando Philhatmonic Orchestra, who conducted bag checks at the entrance of the

theater, but failed to detect Loibl's arsenal. Although the presence of security personnel

demonstrates that Defendants were aware of the possibility of violent actions at the theater,

including against Christina and the other performers, the security personnel stationed at the

entrance of The Plaza Live Theater did not use stationai·y metal detectors, metal detector wands

or body pat downs to ensure that attendees at the scheduled concert did not have firearms or

other weapons upon entering the theater.

In an apparent cost-cutting measure, defendant Orlando Philharmonic Orchestra fired The

Plaza Live Theater's general manager, who had been employed there for six years, a mere nine

days before the shooting, replacing him with a new general manager, Jim Heffelfinger, who had

only worked at the theater for 7-10 days before Christina's death.

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After Christina's performance, while she was conducting a "meet and greet" with fans,

Loibl fired three shots into her. His batTage was only stopped by Christina's older brother and

road manager, plaintiff Marcus Grimmie, who wrestled Loibl to the ground, before Loibl broke

free and killed himself. Marcus sustained a quadriceps tear on his left leg and body bruises as a

result of his heroic actions, and lives with the emotional distress resulting from witnessing his

sister being shot to death in front of him.

Defendants move to dismiss this action before any discovery has been conducted,

claiming that they owed no legal duty to protect Christina from potential criminal assault.

Defendants also make the perverse and invalid claim that Marcus has no individual claim for

negligent infliction of emotional distress, since he "voluntarily" stopped Loibl's murderous

bmrnge before he could hmm more people. Defendants' arguments m·e unwarranted under

Florida law, and their motions to dismiss should be denied.

STATEMENT OF FACTS1

Christina passed away the same evening after being shot by Loibl. The simple fact is

that, had defendants taken reasonable security precautions at The Plaza Live Theater, and

prevented Loibl from entering with his arsenal, Christina would be alive today.

Plaintiff Albert Grimmie, Jr. is Christina's father and the administrator of Christina's

Estate. He sues in his representative capacity and, along with his wife, Plaintiff Tina Grimmie,

individually for damages arising out of Christina's wrongful death. Marcus sues for his

emotional injuries arising out of Defendants' negligence.2

The relevant factual allegations are set fo1th in Plaintiffs' Complaint, and are set forth herein in smmnary fashion.

2 Although Defendants move to dismiss Marcus' claim for negligent infliction of emotional distress, they do not dispute that, if they can establish the other elements of negligence, AlbeJt

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In addition to AEG, the promoter which engaged Christina for the Tour that resulted in

her death, and the Orlando Philhannonic Orchestra Defendants, plaintiffs also name ABC

Corporation, John Doe and Jane Doe, the corporations and individuals who provided security

services at The Plaza Live Theater and whose identities are currently unknown to Plaintiffs.

Christina was born in Voorhees, New Jersey on March 12, 1994. By age 6, Christina was

singing and by age I 0, she was dabbling in piano playing and writing lyrics for songs. At age

15, in 2009, C1n·istina began posting videos of her performances on Y ouTube.

Mandy Teefey, the mother of the established musical performer Selena Gomez,

recognized Christina's talent when she viewed covers that Christina had posted on YouTube of

Celine Dion's "My Heart Will Go On," Hannah Montana's "Don't Wanna Be Torn," Miley

Cyrus' "Party in the U.S.A.," and Nelly's "Just A Dream" that C1n·istina performed with Sam

Tsui. Based upon the significant popularity and following that had been generated by Christina's

performances on YouTube by mid-2010, Brian Teefey, Mandy Teefey's husband, signed

C1n·istina to a personal management agreement dated as of June I, 2010.

In October 2010, Christina performed in the UNICEF charity conceit in Hollywood,

California. Christina also undertook her first professional tour in 2010.

In June of 2011, Christina released her first EP entitled "Find Me" which contained eight

songs. In July t1n·ough November 2011, Christina went on the "We Own The Night" tour and

opened for Selena Gomez performing in amphitheaters and arenas in the United States and

Canada. Christina performed on the Ellen DeGeneres show which aired on October 10, 2011. In

and Tina can recover damages under Florida law for their mental pain and suffering resulting from their daughter's death.

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late 2011, Christina went on to perform at the 39th American Music Awards and appeared as a

musical guest perfotming her hit song "Advice" on the Disney Channel's "So Random!"

In January 2012, Christina moved to Los Angeles, California with her mother Tina.

After signing with the Creative Artists Agency, Christina starred in a Disney.corn web show

called "Power Up: With Christina Grirnmie" which ran from March 29 to June 5. 2012.

In September 2012, Marcus moved to Los Angeles. In April 2013, Albert retired from

his job in New Jersey and moved to join his family in Los Angeles. As Christina's career moved

forward, she provided financial suppoti to her parents.

In August 2013, Christina released her first full length album of 11 songs, entitled "With

Love." Christina accompanied and opened for Selena Gomez's North American leg of her

"Stars Dance Tour" in 2013. In late 2013, Christina was approached by "The Voice," an NBC

singing competition, and ultimately successfully auditioned for the sixth season of the show

which aired from February through May of 2014. Christina was coached by Adam Levine on the

Voice and ultimately came in third place. Later in 2014, Christina went on The Voice tour with

prior contestants on the show.

Christina recorded and perfotmed on a single released by Island Records in July 2014

entitled "Must Be Love."

In January 2015, Christina toured and co-headlined with the "Before You Exit" band, the

band with whom she later perfotmed on the Spring/Summer 2016 Tour which ended with her

death. During 2015, Christina performed shows, did various personal appearances including

perfotmances in the Philippines and Singapore, appeared in a commercial, was a fashion

consultant for Kohl's on The Voice and continued to write and record songs. In April/May 2015,

Christina was a contestant in the iHeart Radio/Macy's Rising Star Contest, won the contest, and

opened the 2015 iHeati Radio Music Festival in Las Vegas, Nevada in September 2015.

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In August, 2015, Christina filmed and had a lead role m a motion picture titled

"Matchbreaker," which premiered in Hollywood on October 4, 2016. In February 2016,

Christina released her second EP titled "Side A" and went on tour with Rachel Platten.

By the time she was engaged by defendant AEG to perform in its Spring/Summer 2016

tour, Christina had reached a number of significant milestones:

• Christina had over 3.5 million subscribers to her YouTube Channel "ZeldXLove64"

• There had been over 400,000,000 views of videos posted of Christina performing on her You Tube channel.

• Perfo1mances of Christina from The Voice singing "Wrecking Ball" and in a duet with Kurt Schneider singing "Just A Dream" were viewed hundreds of millions of times on other YouTube channels.

• Christina had over 900,000 followers on Twitter and 500,000 follows on Instagram.

• The Voice (NBC) had expressed interest in having Christina back as a fashion consultant for another season of The Voice.

• Christina had written or co-written almost forty new compositions to · be performed by her or others.

Christina's meteoric career was clearly still on the rise at the time of her death. For the

reasons set forth below, Defendants have offered no reason for dismissing this case at this early

stage before any discovery has been conducted. Their motions to dismiss should be denied.

ARGUMENT

It is axiomatic that, on a motion to dismiss pursuant to Florida Rule of Civil Procedure

l.140(b ), the trial court is confined to a consideration of the allegations found within the four

corners of the complaint and must assume those allegations are true. Caimona v. McKinley,

Ittersagen, Gunderson & Berntsson, P.A., 952 So.2d 1273, 1275 (Fl. App., 2d Dist. 2007).

Moreover, the trial court must draw all inferences in favor of the pleader and dete1mine whetlier,

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assuming all the allegations in the complaint to be true, the plaintiff would be entitled to the

relief requested. Huet v. Mike Shad Ford, Inc., 915 So.2d 723, 725 (FL App., 5th Dist. 2005).

Finally, Florida law does not require a pleader to set forth intricate and complex allegations

designed to plead a litigant to victory. Pleading is not an end in itself, but a means by which

justice is achieved. Accordingly, brevity and clarity in the statement of essential facts upon

which the claim for relief rests are the hallmarks of good pleading. Ranger Constr. Industries,

Inc. v. Martin Cos. of Daytona, Inc., 881 So.2d 677,680 (FL App. 5th Dist. 2004).

In this case, Plaintiffs have set forth three causes of action in their Complaint. Each

cause of action is supported by allegations sufficient to survive a motion to dismiss.

Accordingly, Defendants' motions to dismiss should be denied.

I.

PLAINTIFFS ADEQUATELY PLEAD THE ELEMENTS FOR A CAUSE OF ACTION FOR NEGLIGENCE

To succeed on a claim of negligence, a plaintiff must establish the four elements of duty,

breach, proximate causation, and damages. Of these elements, only the existence of a duty is a

legal question; once the existence of a duty is established, the remaining tlu·ee elements can only

be resolved by the fact-finder. Limones v. School District of Lee County, 161 So.3d 384, 389

(FL 2015).

Defendant the Orlando Philharmonic Orchestra does not, and cannot, dispute that, as the

party in possession of The Plaza Live Theater, it had a duty to exercise due care to protect others

from injury resulting from a dangerous condition on the premises. Welch v. Complete Care

Corp., 818 So.2d 645,649 (FL App., 2d Dist. 2002). While The Orlando Philhannonic Orchestra

is correct in contending that it can only be held liable if Loi bl' s attack on Christina was

foreseeable, it misstates Florida law in claiming that Plaintiffs must allege that prior similar

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crimes on the premises had taken place, or more generalized evidence of crime on or near the

owner's property. Rather, the foreseeability of a particular criminal act is to be dete1mined in

light of all the circumstances rather than by a rigid application of a mechanical "prior similar"

rnle. Foster v. Po Folks, Inc., 674 So. 2d 843, 844 (Fl. App., 5th Dist. 1996); Holiday Inns, Inc.

v. Shelburne, 576 So.2d 322, 331 (Fl. App., 4th Dist. 1991), disapproved of on other grounds,

Angrand v. Key, 657 So.2d 1146 (Fl. 1995). The fact that a party in control of ce1iain premises

unde1iook certain precautionary measures may be evidence that a defendant had actual or

constrnctive lmowledge of a dangerous condition. Lipkin v. Nmwegian Crnise Line Ltd., 93 F.

Supp. 3d 1311, 1323 (S.D. Fl. 2015).

In this case, Plaintiffs have alleged that the Orlando Philharmonic Orchestra took

precautionary measures by hiring security personnel to perform a bag check of patrons at The

Plaza Live Theater. Defendant would not have undertaken such measures if they did not have a

reasonable concern that patrons might bring weapons into the theater. Since the possibility of

criminal activity was, accordingly, foreseeable, the remaining issues relating to the Orlando

Philharmonic Orchestra's liability are intrinsically factual, and cannot be resolved on a motion to

dismiss. In any event, at such an early stage in the case, Plaintiffs' Complaint should not be

dismissed until it has had an opportunity to conduct discovery concerning the reasons for the

security precautions undertaken by the Orlando Philhmmonic Orchestra.

The Orlando Philham1onic Orchesh·a seeks to minimize the danger of a potential criminal

act by claiming that the attendees on the night of Christina's murder were "primarily teenage

girls between the ages of 13 and 17 ." This contention is outside the four corners of the

Complaint and should be disregarded by this Comi. In any event, even if this contention were

true - and Loibl was clearly not a teenage girl - it only raises questions about the reasons for the

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security precautions (albeit ineffectual and inadequate) that the Orlando Philharmonic Orchestra

unde1iook.

Defendant AEG concedes, as it must, that a duty to exercise reasonable care to protect

others from foreseeable risks of hmm can arise from the general facts of the case. Clay Elec.

Cooperative, Inc. v. Johnson, 873 So.2d 1182, 1185 (FL 2004). AEG's claim that Plaintiffs have

failed to allege any basis for there to have been a duty owed by it to Christina is belied by two

paragraphs of the Complaint that are neither quoted nor referenced in AEG's motion:

51. Upon infmmation and belief, AEG Live, as the promoter of the Spring/Summer 2016 Tour, had the right and ability to dete,mine, or to partake in the dete,mination of, the security measures that would be undertaken at the venues where the tour performances occurred, including the selection of security companies.

* * *

54. Upon information and belief, AEG Live approved Christina to be one of the perfo1mers on the Spring/Summer 2016 Tour and paid her for performances on the tour.

Complaint, 1il 51, 54. The foregoing allegations are sufficient to show that AEG had a duty to

take reasonable steps to protect Christina. This is because whenever one unde1iakes to provide a

service to others, whether one does so gratuitously or by contract, the individual who unde1iakes

to provide the service thereby assumes a duty to act carefully and to not put others at an undue

risk of hmm. Clay Elec. Cooperative, Inc. v. Johnson, 873 So.2d 1182, 1186 (Fl. 2004).

In this case, AEG undertook to arrange Christina to perform at nine different venues over

12 days, and to arrange for security at those locations. AEG objects that Plaintiffs did not attach

a copy of any relevant contracts to the Complaint. As AEG knows, counsel for Plaintiffs

requested copies of contracts relating to the tour before the commencement of the litigation, and

AEG refused to provide them. Since Plaintiffs are not in possession of the relevant contracts,

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Plaintiffs should be permitted to obtain them through the discovery process and attach them to

their Complaint thereafter by amendment. See Safeco Ins. Co. of America v. Ware, 401 So. 2d

1129, 1130 (Fl. App., 4th Dist. 1981). AEG's motion to dismiss on this basis is prematm·e under

the circumstances.

II.

PLAINTIFF MARCUS GRIMMIE ADEQUATELY PLEADS THE ELEMENTS FOR A CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Both AEG and the Orlando Philharmonic Orchestra move to dismiss Marcus' claim for

negligent infliction of emotional distress, making the bizane claim that the injuries he suffered

when he attempted to wrestle the gun away from Loibl, and thereby stop his homicidal attack,

were not the result of a physical impact. Defendants' contention that Marcus cannot recover for

emotional injuries resulting from a "voluntary" action ignores the well-established principle

under Florida Jaw that a to1tfeasor is responsible for the injuries sustained by one who endeavors

to rescue someone who was put in danger because of the to1t. This so-called rescue doctrine

applies where a plaintiff can show that (1) the defendant was negligent; (2) as a result of the

defendant's negligence, a person was in imminent peril; and (3) the rescuer acted reasonably

under the circumstances. Menendez v. West Gables Rehabilitation Hosp., 123 So.3d 1178, 1181

(Fl. App., 3d Dist. 2013).

In this case, March satisfies each of the elements necessary for application of the rescue

doctrine. Specifically, Marcus alleges that (1) Defendants were negligent in failing to provide

adequate security at The Plaza Live Theater; (2) as a result of this negligence, Christina (and

possibly others at the theater) were put in imminent danger of peril; and (3) Marcus wrestled

Loibl to end the attack. Marcus' physical injuries, accordingly, were caused by Defendants'

negligence.

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Further, Defendants' contention that a party cannot seek damages for negligent infliction

of emotional distress where that party voluntarily attempts to stop a criminal act is unsupported

by any Florida authority. Defendants' reliance on Jordan v. Equity Properties and Development

Co., 661 So.2d 1307 (Fl. App., 3d Dist. 1995) is unavailing since, in that case, it was

uncontroverted that the plaintiff did not suffer any physical injuries as a result of her encounter

with the person who tried to rob her. See Alfaro v. Briggs & Stratton Corp., 2007 WL 3012617,

at *1, fu. 1 (M.D. Fl., Oct. 12, 2007). That case did not hold, as Defendants contend, that a party

who is injured while trying to stop a criminal act cannot recover for negligent infliction of

emotional distress. Accordingly, Marcus' claim should not be dismissed.

III.

PLAINTIFFS HA VE PROPERLY NAMED FICTITIOUS DEFENDANTS

The Orlando Philharmonic Orchestra makes the strange claim that Plaintiffs' Complaint

should be dismissed because the Complaint names unknown parties that provided security at The

Plaza Live Theater. In making this claim, the Orlando Philharmonic Orchestra relies on a single

case which it misreads. Nash v. Wells Fargo, 678 So.2d 1262 (Fla. 1996) did not hold that all

patties to a lawsuit must be specifically named in the complaint. Rather, that case held that such

patties must be named prior to trial. Id., at 1264. Only tln·ough the discovery process will

Plaintiffs be able to identify the additional patties whose negligence contributed to Christina's

death. The discovery process should be permitted to go forward so that Plaintiffs can uncover

the names of those patties.

CONCLUSION

For the foregoing reason, Defendants' motions to dismiss should be denied, or, in the

alternative, Plaintiffs should be provided an opportunity to file an amended complaint to cure

any deficiencies in the pleadings.

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Dated: February_, 2017

885 Third Avenue th Floor New York, NY 10022 (212) 209-3050 Attorneys for Plaintijfj,

~ ~ N. Cain Jr. . ·' ) t:rpi" Mandelbaum, Fitzsimmons, Hewitt & Cain, P.A. 4207 SW 34th Street Orlando, Florida 32811 (407) 674-7841 Attorneys for Plaintiffs

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