The lawsuits claim that the radio station advertised its sponsorship of the Great White concert and provided a master of ceremonies.

09:03 AM EDT on Tuesday, September 27, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- A federal judge has refused to remove radio station WHJY as a defendant in lawsuits stemming from The Station nightclub fire.

The suits claim WHJY is liable because it was a sponsor of the February 2003 Great White concert that began with a burst of pyrotechnics, igniting the club's foam soundproofing and leading to the deaths of 100 people.

Clear Channel Broadcasting, and its subsidiary, Capstar Radio Operating Co., the successor to WHJY Inc., asked Senior U.S. District Judge Ronald R. Lagueux to dismiss the claims against them.

Lagueux refused to dismiss the claims contained in a master complaint adopted by about 250 plaintiffs and filed against about 50 defendants. But he did dismiss one count contained in a complaint by a small subset of plaintiffs from Connecticut.

In a decision written Thursday, Lagueux said, "To the extent that plaintiffs can establish that WHJY had control over the planning and operation of the concert, then the court can find that WHJY owed a duty . . . to the plaintiffs. That duty, if proven to exist, may have been breached when WHJY failed to take any steps to prevent the ignition of the fireworks inside the small and crowded nightclub."

The lawsuits claim that WHJY advertised its sponsorship of the concert, hung a banner outside The Station inviting people to "party with WHJY," distributed free tickets, met with other sponsors to coordinate promotional activities and provided a disc jockey to serve as master of ceremonies.

The disc jockey, Michael Gonsalves, known as Dr. Metal, died in the blaze.

The suits claim that because Gonsalves was master of ceremonies, "WHJY had the authority to stop or delay the performance in the face of concerns over safety and equipment," according to the judge's decision.

Also the judge said, the suits claim that "WHJY was familiar with Great White's music and performance style, and knew or should have known that Great White 'had repeatedly, openly and illegally used unlicensed pyrotechnics on its tour on numerous occasions prior to February 20, 2003.' "

The suits claim WHJY had a "duty of care to The Station's patrons, which it negligently breached causing death and personal injury to the plaintiffs."

In considering a motion to dismiss charges at this point in the legal process, the judge had to assume the allegations are true.

Lagueux wrote, "These allegations support the reasonable inference that WHJY discussed the concert with The Station ahead of time, that WHJY had the opportunity to set down some conditions or guidelines before it agreed to sponsor the concert, and that WHJY had an agreement with The Station and the other sponsors about which group would handle which duties before and during the concert.

"Most significantly," Lagueux wrote, "Mike Gonsalves, as master of ceremonies, was on the stage, presumably aware of the plans to set off the fireworks, and certainly appears to have had the opportunity to delay the concert in order to investigate the propriety of those plans."

Lagueux rejected some legal arguments as "red herrings."

For example, the judge rejected the plaintiffs' claim that WHJY had engaged in "naked licensing" by allowing its trademark to be used without inquiring into the safety of the band's performance. Lagueux said plaintiffs had taken the "naked licensing" idea from federal trademark law, but he said, "This legal principle has no bearing whatsoever on plaintiffs' claims of negligence against WHJY."

Also, Lagueux noted that the defendants had argued that the First Amendment protects activities such as advertising and hanging a banner. But the judge said the lawsuits only mention those activities to show the defendants' control over events, and he said he "does not believe it will be useful for defendants to further pursue a defense based on the First Amendment."

Lagueux agreed to dismiss a claim made by Connecticut plaintiffs, including the estate of Jude B. Henault. That claim was based on a legal theory that WHJY and 24 other defendants entered into a "joint venture" in planning, sponsoring and promoting the concert. The 24 other defendants included nightclub owners Jeffrey and Michael Derderian, Great White lead singer Jack Russell and West Warwick fire inspector Denis P. Larocque.

To pursue such a claim, the plaintiffs would have to show that those defendants had an agreement to share profits and losses, and Lagueux wrote that "despite all indulgent inferences, the court is unable to imagine what kind of an agreement could include the State of Rhode Island, the fire marshal, the Town of West Warwick and the fire inspector."