By Starleigh Smith
via GothamCityEsq.com “Cultivating the Power of Genius”
Trump impersonator, Phillip Wilburn, sued Joey Badass after being pushed off a stage at an MTV event. TMZ reports Joey Badass clapped back with a well-known tort defense called the assumption of risk.
This argument is weak sauce. Let me tell you why.
The assumption of risk defense protects against frivolous lawsuits.
Defendants can respond to tort lawsuits in a few different ways. First, he can say, “I didn’t do it!” The second choice is, “no legal remedy exists for this complaint.” A third choice is, “the plaintiff knew it was dangerous and did it anyway!”
The third argument is called the assumption of risk.
Joey Bada$$ is arguing that Phillip Wilburn knew, or should have known, that performing on stage next to him was dangerous. What?!
Performing at an event is not supposed to be dangerous! You know what is dangerous? Unless Phillip Wilburn knew he was going to be the event punching bag he did not assume the risk of being injured on stage! To be fair, Wilburn was impersonating President (then candidate Trump) at the event. But I’m still not buying the argument.
The assumption of risk argument can shut down frivolous lawsuits before either party spends too much time on them.
Joey Badass does not have a reputation for violence
Let’s pretend for a minute that Joey’s argument is legit. How could Phillip Wilburn know he assumed the risk?
For starters, Wilburn could know he is at risk if Badass had a reputation for violence. But Badass doesn’t, in fact, have a reputation for violence.
Next, Wilburn might have knowledge of risk if he agrees to participate in a traditionally violent event. MTV Wonderland doesn’t really have that reputation either.
But, maybe MTV told Wilburn this specific event would be different. Perhaps it expected one violent episode. Except, I think Joey Badass provided the only violence for the episode. So that argument probably won’t work either.
Joey Badass should have spent more time developing an actual defense against this lawsuit. The assumption of the risk argument just doesn’t work in this case.
Starleigh Smith is a third-year law student at Washington and Lee University School of Law. She has a bachelor’s degree in English from Florida State University (Go Noles!). When she is not busy with school, Starleigh spends her free time with her husband and three children hiking, watching movies, traveling, attending soccer games, and cooking (always cooking).