Federal Appeals Court Reinstates Part Of Rush Guitarist's Lawsuit

The Ruling Says A Claim In The Lawsuit Filed By Alex Lifeson Against Ritz-Carlton Naples Should Be Decided By A Jury

By Aisling Swift, Naples Daily News, April 29, 2008

A Rush rock guitarist's son will have his day in court after all.

A federal appeals court reinstated part of the rock star's lawsuit, ruling that it's up to a jury to determine whether lies and embellishments by a Ritz-Carlton night manager caused Collier County sheriff's deputies to use force and Tasers to subdue guitarist Alex Zivojinovich's son, Justin, during a 2003 New Year's Eve party.

The U.S. Court of Appeals for the 11th Circuit ruled that a jury must decide whether statements made by a Ritz-Carlton night manager set off a series of events that caused injuries to Justin Zivojinovich. The reinstated claim involves remarks made by Ritz night-shift manager Frank Barner. Zivojinovich's father, known as "Alex Lifeson," and Justin's wife also had been plaintiffs.

The unanimous decision by the three-justice panel, handed down April 23, overturned a claim in an April 5, 2007 ruling that granted summary judgment to the defendants. The order, which affirmed all remaining defense claims involving the hotel, a manager and three deputies, means the son's case will be heard by a federal jury ? unless the hotel settles the lawsuit involving events at a $500-a-plate, black-tie party that rang in 2004.

Three deputies named in the lawsuit already were fully cleared when U.S. District Judge Paul A. Magnuson, sitting in Fort Myers, dismissed the lawsuit on April 5, 2007.

The appeals judges ruled that when Barner and front-desk employee Azure Sorrell allegedly lied to a dispatcher and when Barner allegedly lied to Deputy Christopher Knott, they knowingly put Justin Zivojinovich at greater risk of physical injury. As a result, they ruled, it became more likely that deputies would use force in removing him from the hotel if they believed he'd indicated force would be necessary to make him leave.

"We conclude that, under Florida law, Barner and the Ritz had a duty not to lie to law enforcement in a way that increased the risk that a guest would suffer injury," the judges wrote in their 31-page ruling. "Sorrell breached this duty when she said that ?disorderly people' were ?just basically trashing the place[,] . . . jumping on furniture, [and] ripping things apart' because this was untrue and, by exaggerating the severity of Justin's misbehavior, she increased the risk that the deputies would use force to remove him from the premises."

The judges ruled that when the Ritz sold Justin Zivojinovich a ticket to the New Year's Eve dinner, it had a duty to its guests to protect him from harm due to reasonably foreseeable risks of injury. "A reasonable jury could find that, but for Barner falsely telling Knott that Justin had responded belligerently to the threat of sheriff's deputies being called, Justin would not have been injured or that his injuries would not have been as severe," the judges wrote.

Naples attorney Michael R.N. McDonnell said the Zivojinoviches were very pleased with the ruling, but the reversal wasn't unexpected.

"I was really surprised at the initial judge's ruling, but I wasn't surprised by the appeal's court ruling," McDonnell said Tuesday, adding that Alex Zivojinovich had to undergo surgery for a broken nose and a painful recovery, as well as numbness in his hands for a year due to being handcuffed.

McDonnell has 15 days from April 23 to file a motion for a rehearing, but also may consider an appeal to the U.S. Supreme Court.

"We think these are important issues," he said.

Attorney Judith Mercier of Orlando, who represents the hotel, could not be reached for comment.

Richard Giuffreda of Fort Lauderdale, the attorney for the sheriff's office, said his clients are happy because it left all claims involving the sheriff's office untouched.

"Justice has been served," Giuffreda said. "There is nothing to appeal."

"Alex has lost completely," he added. " ... The Sheriff and the Sheriff's deputies involved have won the appeal as to all claims brought against them by all three of the plaintiffs: Alex, Michelle and Justin Zivojinovich. ... The plaintiff's owe my clients costs of nearly $60,000 because they lost. "

Giuffreda said the U.S. Supreme Court would have no interest in the case and there is no right to appeal to the nation's highest court. "The United States Supreme Court decides whether it wants to take a case and does not have to. Therefore, in my opinion, this case is over for my clients and they have won."

He also didn't think it was likely the federal appeals court would grant a motion for a rehearing.

Court records provide this account:

Justin Zivojinovich had been dancing boisterously and twice got onstage where bands were playing, at one point asking the audience to cheer the band. The second time, his father also jumped onstage, playing a conga drum for a few seconds.

Later, at 11:15 p.m., when Justin Zivojinovich began dancing with a male friend, Barner radioed the front desk, asking Sorrell to phone the sheriff's office to have him escorted out and to issue a trespass warning. She told the dispatcher two disorderly people were "just basically trashing the place . . . jumping on furniture, ripping things apart" and couldn't be controlled by Ritz security ? an account that wasn't true.

To ensure they had all necessary information, Barner also called a dispatcher to say two disorderly people were screaming and yelling, jumping on stage, commandeering the bandstand, and giving band members a hard time. He said he'd warned Justin Zivojinovich, but he yelled back, cursing and carrying on. At the time, Barner hadn't spoken with Justin Zivojinovich.

Deputies Knott, Scott Russell and Amy Stanford arrived and Barner exaggerated the events and claimed Justin Zivojinovich cursed and yelled when asked to leave the stage.

As his son was escorted out, Alex Zivojinovich pleaded with deputies, saying it was New Year's Eve and they hadn't done anything as his son asked to be allowed to go home.

Stanford warned the father to stand back and later pulled Justin Zivojinovich's right arm up, prompting him to scream that she was hurting him. As they entered a stairwell, he pulled his arm away, straightening it. Knott pushed him, causing Zivojinovich and Stanford to fall down the stairs, where Zivojinovich landed on his chest and Stanford fell over him.

A struggle ensued, with deputies using Tasers and Stanford hitting the elder Zivojinovich's face, and Russell punching him and breaking his nose. Although the elder Zivojinovich was paralyzed after being hit with a Taser, a deputy shot again. Justin's wife, Michelle, went to help her husband. After they were handcuffed and led out, the elder Zivojinovich questioned Knott's actions, spewing blood as he spoke and prompting Knott to accuse him of doing it on purpose.

The father and son were charged with a felony charge of resisting arrest with violence, which is punishable by up to five years in a state prison, but pleaded to a misdemeanor resisting charge and were sentenced to probation. Michelle Zivojinovich was charged with a misdemeanor, but it was dismissed.