A federal judge from the Western District of Pennsylvania has dismissed the claims of four disgruntled ticket buyers, who purchased tickets to the 2011 Super Bowl in Dallas, but were forced to watch the contest on television because their seats weren’t properly installed before the game.
The court dismissed the fraud claim because the buyers were not able to prove that the National Football League and the Dallas Cowboys Football Club, Ltd. intended to defraud them.
The breach of contract game was dismissed because the combined damages of the ticket buyers for ticket, travel, and hotel costs did not exceed $75,000.
By way of background, the court noted that the plaintiff purchased their tickets and that the NFL and the Dallas Cowboys sought to construct temporary seating to increase the stadium’s seating capacity for the Super Bowl to more than 100,000.
“Although being aware of the issues and problems plaguing the construction of the temporary seating, the defendants failed to commit sufficient resources to the undertaking so that an occupancy permit could be issued for every seat by game day,” according to the plaintiffs.
By game time, the defendants had failed to complete the construction of approximately 2,400 seats. “As a result, plaintiffs were (1) initially denied entry into the stadium, (2) required to spend hours traversing about and around the stadium in an effort to gain admission, (3) unable to obtain information about why they were unable to get in, (4) relocated to a section within the stadium that did not have seats and had an obstructed view, and (5) only able to watch the game without a seat either on monitors or with an obstructed view of the field,” according to the plaintiffs.
The plaintiffs went to describe the inconvenience and costs incurred.
“In their initial complaint plaintiffs alleged that their Super Bowl tickets constituted valid, enforceable contracts against the NFL and asserted a claim for breach of contract based upon its alleged failure to provide the seats designated on the face of the tickets,” wrote the court.
The plaintiff went on to amend their complaint. abandoning their claim for breach of contract and re-asserting “four tort claims arising out of the NFL’s failure to provide the seating reflected by the tickets: fraudulent misrepresentation by concealment (Count I), negligent/gross negligent misrepresentation by concealment (Count II), Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) (Count IV), and fraudulent inducement (Count V). Plaintiffs reasserted one claim for negligent misrepresentation against the Dallas Cowboys (Count III).”
The defendants, meanwhile, moved to dismiss all of the plaintiffs’ claims in the amended complaint, citing Pennsylvania’s “economic loss/gist of the action” doctrine. Additionally, the NFL argued that the claims for fraudulent misrepresentation, negligent misrepresentation, consumer protection and fraudulent inducement fail because “the NFL did not make any misstatement of fact, there was no duty to disclose the allegedly concealed information, and plaintiffs have failed to plead that they were induced by any misrepresentation or omission when they submitted the applications. And the Dallas Cowboys argue that there was no contractual or other relationship between it and plaintiffs and it is not amenable to suit in this jurisdiction in any event.”
The plaintiffs maintained that no contractual relationship existed between them and the NFL and/or the Dallas Cowboys. Furthermore, the plaintiffs suggested that the defendants “had a duty independent of any contractual relationship to disclose that the tickets were issued for seats that had not yet been constructed and for which no occupancy permit had been issued … . The plaintiffs “had no access to this critical information and defendants had a pecuniary interest in consummating the ticket transaction. The defendants breached that duty by knowing (or having reason to know) that there was no assurance that an occupancy permit would be obtained and failing to disclose that information in time for plaintiffs to make an informed decision about whether to purchase the tickets.”
In court agreed with the defendants, finding the gist of the action doctrine persuasive. “As a practical matter, the doctrine precludes plaintiffs from recasting ordinary breach of contract claims into tort claims,” it wrote citing eToll, Inc. v. Ellias/Savion Advertising, Inc., 2002 PA Super 347, 811 A.2d 10, 14 (Pa. Super. 2002).
“In general, the difference between contract claims and tort claims depends upon the origin of the duties alleged to have been breached by the defendant’s conduct. ‘Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.’ Id. (quoting Bash v. Bell Tel. Co., 411 Pa. Super. 347, 601 A.2d 825, 829 (Pa. Super. 1992)).
“The parties’ obligations arise solely from the plaintiffs’ purchase and the NFL’s sales of the Super Bowl tickets. Any duties imposed on the defendants were created as a result of those transactions. And the alleged breach was the failure to provide the very essence of what the parties’ contract obligated the defendants to provide: admission to and a spectator seat for the game. The asserted breach gives rise to liability grounded in the contract and the plaintiffs’ damages result from the defendants’ failure to provide what was promised by sales of the tickets.
“The plaintiff’s effort to convert the gravamen of the complaint into a tort action by referencing the defendants’ inability to know with certainty that occupancy permits would be obtained for all ticket sales falls short of the mark. At its base, the plaintiffs simply complain that the defendants were unable to live up to the contractual agreement. There is not one alleged fact to support the proposition that the defendants had the intent to sell worthless tickets or did not have the intent at the time of contracting to perform as reflected in the agreement. To the contrary, the plaintiffs merely point to the defendants’ asserted inability to know with certainty that they would be able to guarantee admission and a seat. And they highlight what at best can be viewed as negligent efforts by the defendants and their contractors to commit sufficient resources to follow through with the contractual undertaking.
“Making boiler plate allegations that a defendant’s failure to live up to its contractual obligations proves that the statements concerning its ability to perform were false, fraudulent or misleading reflects nothing more than the epitome of a self-serving attempt to bootstrap a contract claim into one for fraud,” wrote the court in granting the defendants’ motion to dismiss the plaintiffs’ negligent misrepresentation claims.
The court was also amenable to the NFL’ motion to dismiss the plaintiffs’ fraudulent misrepresentation by concealment and fraudulent inducement claims as well as their UTPCPL claim, relying primarily on the gist of the action doctrine again.
The controversy associated with Super Bowl XLV is far from over, however. A parallel action, involving hundreds of other ticket holders, is set for trial in Dallas in October.
Richard Pollock et al. v. National Football League And Dallas Cowboy Football Club, LTD.; W.D. Pa.; 2:12cv130, 2013 U.S. Dist. LEXIS 35865; 3/15/13
Attorneys of Record: (for plaintiffs) Paul L. Kutcher, LEAD ATTORNEY, Paul L. Kutcher, P.A., Brandon, FL. (for defendant NFL) Charles B. Gibbons, LEAD ATTORNEY, Brian H. Simmons, Buchanan Ingersoll & Rooney PC, Pittsburgh, PA; Daniel H. Gold, Thad Behrens, LEAD ATTORNEYS, PRO HAC VICE, Haynes and Boone, LLP, Dallas, TX. ( for Dallas Cowboys Football Club, LTD.: James V. Corbelli, LEAD ATTORNEY, Christopher M. Buell, Babst, Calland, Clements & Zomnir, Pittsburgh, PA; David W. Dodge, Levi G. McCathern, Paul A. Grinke, PRO HAC VICE, McCathern Mooty Grinke, LLP, Dallas, TX.
