No Secondary Liability Seen Yet, By Band's Reps, for Sexual Assault

Jorgensen was indicted on charges of fourth-degree criminal sexual contact and attempted luring or enticing a child in the second degree in connection with the incident. He pleaded guilty to a lesser charge of lewdness observed by a child and sentenced to two years of probation to be served in his home city of Minneapolis, according to a published account about the case.

K.G. and her mother filed a civil suit against Jorgensen, Owl City, and the band's lead singer, Adam Young. The suit also named the band's manager, Stephen Bursky, management company Foundation Artist Management, and its talent agent Creative Artists Agency as defendants.

The suit stated that K.G. was 13 when she first met Jorgensen after an Owl City concert at the Verizon Center in Washington, DC, in April 2012. According to the complaint, Jorgensen, then 28, and other members of the band and crew congregated outside their tour bus for purposes of meeting underage girls, and he approached K.G. and obtained her Facebook name.

Over the next year, the suit claimed, Jorgensen repeatedly messaged K.G., asking her on a daily basis to send him nude photos of herself and offering to send photos of his private parts. In April 2013, Jorgensen invited K.G. to an Owl City concert in Pittsburgh. Thereafter, he allegedly continued to send messages to K.G. on Facebook, Skype, by text message and video chat, and the two exchanged photos. In August 2013, Jorgensen invited K.G. to attend an Owl City concert in Atlantic City and to stay alone with him in a hotel on the night of the concert.

On the morning of the concert, Jorgensen brought K.G. to the beach in Atlantic City and sexually assaulted her, the lawsuit claims. The two spent the rest of the day together, and were readily visible to the band's lead singer, Young, and other members of the band and crew, the suit also states, although they are not alleged to have witnessed or been aware of the alleged sexual misconduct.

After the concert, K.G. and Jorgensen again met on the beach, where he sexually assaulted her a second time, the suit charges. He also tried to coerce her to go with him on the band's tour bus, displaying “no concern or worry that any of the co-defendants would question his bringing a 14-year-old on a tour bus,” the lawsuit states. The also suit says Jorgensen's co-defendants “allowed, permitted, condoned, acquiesced, and/or ratified [Jorgensen] to commit sexual assaults and sexual molestations upon K.G. … by encouraging, tolerating, ratifying, and/or condoning a culture within the Defendant, Owl City, of sexual deviance with minor fans.”

Owl City, Young, Bursky, Creative Artists Agency and Foundation Artist Management moved to be dismissed from the complaint. Federal District Judge Jerome Simandle dismissed counts for assault and battery, false detention and imprisonment, intentional and negligent infliction of emotional distress, intentional misconduct and/or gross negligence and a per quod claim by K.G.'s mother without prejudice. Judge Simandle said the plaintiff did not allege any facts for a finding that the moving defendants directly participated in any assault of K.G., or to support a claim finding them vicariously liable.

The moving defendants argued that the plaintiff failed to establish they owed her a duty of care, because they had no special parens patriae relationship with her. K.G. and her mother, on the other hand, maintained the moving defendants owed a duty to the minor plaintiff and to underage female fans to vet their band members and to deny employment to sexual predators.

The plaintiffs concede that no New Jersey court has recognized such a special duty in the entertainment context, but asked District Judge Simandle to conduct an analysis of the moving defendants' duty. Judge Simandle said those defendants' duty could be analogized to the duty to a business invitee to make business premises reasonably safe. “Those who are responsible for a concert venue and the selling of tickets to the concert owe a constellation of duties to reasonably assure the safety of concert patrons,” he said, citing Thompson v. Garden State Arts Ctr. Partners, A-3299-05T5 (N.J. Sup. Ct, App. Div. 2007). New Jersey Superior Court case that recognized owners of concert venues have a duty to protect patrons from the “foreseeable” criminal acts of third parties occurring on their premises.

“Where the featured performers are known to attract minor patrons, such as star-struck girls who idolize the musicians and purchase tickets, the law may impose a heightened duty as to matters within management's control to protect the young patrons from unlawful sexual conduct of performers,” Judge Simandle said.

In the present case, imposition of liability on the moving defendants fell short because the assaults did not occur in the concert venue, the district judge noted. However, he said he couldn't rule out “the possibility that such a cause of action, against an appropriate defendant, could be stated in an amended complaint.”

The lawyer for K.G. and her mother, Scott Leonard of Leonard Legal Group in Morristown, NJ, said he intended to file an amended complaint that will set forth additional facts to make a case against the moving defendants.

Lawrence Lustberg of Newark, NJ's Gibbons, the lawyer for Owl City, Young, Bursky, Creative Artists Agency and Foundation Art Management, said the plaintiff will be unable to meet the court's requirements to state a claim against his clients, arguing that “the facts are not there.” Lustberg said he considered the claims against his clients frivolous and that plaintiff's counsel will face sanctions if the complaint against them is dismissed with prejudice.

“There is zero evidence and no allegations that anybody knew what Jorgensen was doing with this person,” Lustberg claims.

Jorgensen's lawyer, Louis Barbone of Jacobs & Barbone in Atlantic City, did not return a call about the case.

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Charles Toutant writes for the New Jersey Law Journal, an ALM sibling publication of Entertainment Law & Finance. He can be reached at [email protected].