The penguin is indeed innocent, and the comedian Gallagher, who for a week has been the self-appointed Orange County Superior Court jester, is off the hook.
A 12-member jury decided Thursday that the irrepressible funnyman and his two-foot-tall penguin doll were not responsible for head and neck injuries an Orange County woman said she suffered after the stage prop allegedly hit her at a 1990 show in San Juan Capistrano.
Gallagher, whose flippant testimony this week had jurors laughing and the plaintiff’s attorney boiling, said from his Agoura home that he was “elated” at the verdict.
“And the penguin is very excited too,” the 47-year-old comedian said. “I told you all along the penguin was innocent. This has been the most fun I’ve ever had.”
Plaintiff Robin Vann, 29, of Rancho Santa Margarita, was understandably less buoyant after the jury’s denial of her bid to recoup $13,000 in medical bills, $20,000 in lost wages and punitive damages reportedly in excess of $100,000.
“I rather not speak right now; this has been a little upsetting,” said Vann, who says she has suffered through three years of head and neck aches after the alleged blow from the penguin, which contained a fire extinguisher. “At this point I don’t know what I’m going to do, but I do plan to appeal.”
Even before the verdict was read in the four-day trial, everyone acknowledged that Gallagher had stolen the show.
“I will say that in seven years on the bench, I’ve seen a lot of characters, but none so theatrical,” Judge William Froeberg said. “It was entertaining. It certainly wasn’t boring.”
Vann’s attorney, James R. Gorman, called Gallagher’s antics “ridiculous and inappropriate,” and he labeled the verdict “shocking.”
Gorman told jurors in his closing statements that Gallagher, thrown off balance and upset by an especially rowdy crowd at the Coach House on Sept. 29, 1990, spitefully threw the 10-pound, water-squirting penguin into the audience.
But the comedian testified that he was only swinging the penguin in front of him to deflect the crowd’s barrage of confetti-like string squirted from aerosol cans. He said the “near riot” was part of his show’s tradition of a participatory crowd–until the penguin unexpectedly took flight.
“I was looking cool then because none of (the string) was getting to me,’ he testified. “But then I lost it.”
The penguin, one of many gadgets he uses to soak and splatter his enthusiastic audiences, landed harmlessly on a table, knocked over drinks and slid onto the floor without hitting anyone, Gallagher testified.
Defense attorneys presented medical forms showing that Vann was in a car accident a year after the Coach House incident and that she claimed to suffer head and neck pain as a result of that crash. They also showed jurors medical reports that indicated Vann had a history of headache problems, conflicting with her testimony.
Gallagher, who missed Thursday’s proceedings because he did not feel well (“I have post-trial headache syndrome.”) said the case has inspired him to expand the role of penguins in his upcoming performances.
“I’ve already got them working on a new costume for me. . . . I’m going to be the Alleged Vicious, Malicious Penguin, and I’m going to run and slide on ice and growl at the kids,” he said. “And I’m going to have a whole bunch of penguins, the real kind, there too. It’ll be great.
“Just tell everybody to wear a helmet.”