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January 18, 2007

Wrongful Death

For the last week, the big news here in Sacramento has been the stupid "Hold Your Wee for a Wii" contest at KDND FM, in which one of the participants died. Now, the case has been taken by Sacramento's pre-eminent plaintiff's firm. I know these guys and trust me when I say they mean big money. But it's a perfect plaintiff's case too. Just look at these facts:

Nearly 40 minutes before kicking off the contest, the "Morning Rave" hosts discussed the dangers of water poisoning. One DJ mentioned he had once drunk two gallons of water.

"Can't you get water poisoning and, like, die?" asked another host.

"Your body is 98 percent water," a co-host responded. "Why can't you take in as much water as you want?"

Someone in the background was heard asking about "that poor kid in college," apparently referring to Matthew Carrington, who died in 2005 after an all-night fraternity hazing.

"That's what I was thinking," a host responded.

"Yeah, well, he was doing other things," someone else said.

About two hours into the contest, a woman who identified herself as Eva called the show. She warned the hosts that "those people that are drinking all that water can get sick and possibly die from water intoxication."

One host replied that "we're aware of that." Another said the contestants had signed releases, "so we're not responsible."

"And if they get to the point where they have to throw up, then they're going to throw up and they're out of the contest before they die, so that's good, right?" one host said. One of the hosts then asked a DJ stationed in the kitchen with the contestants, "Is anybody dying in there?"

"We got a guy who's just about to die," he said.

"Make sure he signs the release," the host replied.

I know what you're thinking. Hey, she signed a release. But with that fact pattern, I don't think the assumption of the risk defense will hold water.

So to speak.

Anyways dude, if I just had a referral fee on that lawsuit, I could probably retire now.

Posted by annika, Jan. 18, 2007 | TrackBack (0)
Rubric: Legal Mumbo Jumbo


Whoa. Yeah, that's a shitty fact pattern. It took the collaboration of a lot of really dumb people to make that one come together. A regular moron-a-thon. And DJs wonder why lawyers are always spoiling their fun. This is what happens when they don't.

It does make me wonder a little about those days back at OCS when they'd make us drink a minimum of 3 gallons of water a day -- and sometimes more.

Posted by: Matt on Jan. 18, 2007

Fuck Matt, I was on the trail end of the water discipline school, lol. Woe unto the candidate with an empty canteen. No wonder we had so many heat casualties.

Posted by: Casca on Jan. 18, 2007

But Matt, did they do it in that same timeframe as the radio contestants, then keep you from going to the bathroom? I think you all would've sweated it out if you were doing anything physical (no, I don't know what OCS involves, but I do imagine that there are physical components and classroom components, and that during the physical ones you might actually need that much water. Possibly.)

Anyway, on topic: Ouch! It's one thing to not know an activity is dangerous, but it's a whole other thing to proceed in the face of warnings. What the heck were they thinking?

Also (for the legal types out there (Anni, Law Fairy, etc.)): Multiple stories kept on mentioning the release forms/waivers. Would those really protect the radio station? I mean, on the one hand, I have a hard time imagining that a waiver would extend so far as to absolve this station from this event. On the other hand, there's a definite risk of death from skydiving, rock climing, etc., and I'm sure waivers there have some sort of force. So, would a CYA document really protect the radio station here?

Posted by: elmondohummus on Jan. 18, 2007

They all deserve to lose.

Posted by: shelly on Jan. 18, 2007

I know my feelings are simplistic but at what point are people responsible for their own actions? This seems purely political to me: A seemingly very nice woman died. Her husband, kids, family, and friends are obviously heartbroken. The local community, after the news went wall-to-fucking-wall with the coverage, saw the faces of victimhood and were saddened and shocked.....and more importantly wanted a scapegoat. After all, this is a story that does nothing but suck - most of all because of its insane stupidity.

But when all is said and done, why is this on the station? I'm not arguing the legal points that you lawyers brought up: I don't know the law like you all do. Just because the law states something, however, doesn't make it morally, ethically, or logically correct.

I have had this same argument, though, many times with people who think the tobacco companies are responsible for an individual choosing to suck on a coffin nail. I guess that I'll never "get it."

We live in a country full of victims.

Posted by: blu on Jan. 18, 2007

Methinks our girl is starting to think like a P.I. lawyer. Tsk. Tsk.

Did you know that mechanical devices are the greatest stimuli to womens' orgasms?

The chief one being a Mercedes 500 convertible, followed by a BMW convertible. Which one is it, Annie?

Posted by: shelly on Jan. 18, 2007

There was a local radio dickwadd here who was trying to stick up for the DJ's and saying that it wasn't their fault etc. Well, it wasn't all their fault, but I think they should be drowned in the ocean anyways for having such a stupid contest in the first place. That's what happens when you put people on the air who don't have enough talent to be interesting and resort to gimmicks.

Posted by: kyle8 on Jan. 19, 2007


You are a hard fellow for sure. Woe be it to a child of yours that comes into the house wearing a team jacket that keeps him no warmer than the plain version but costs twice as much. Blu, we are not all rewarded with the same accoutrements at birth. Some are strong, some swift, some dumb and most greedy wanters of something for nothing.

We cannot waive moral authority nor allow moral turpitude to be condoned or excused because individuals are "free" agents and in full control of their destiny.

Advertising has the power to subvert and diminish the will of free citizens such that their ability to distinguish what is good or bad for them is seriously impaired. This is especially true when advertisers are allowed by lassie fare (one bowl of kibble) capitalist societies to withhold and distort information while distributing drugs and devices disguised as important instruments of status and personal fulfillment.

We all make calculations every day about what constitutes acceptable danger to our welfare. We drive 75 miles an hour in a machine that has no hope of protecting us should there be a catastrophic failure of certain parts or of another driver and his/her machine. What is the alternative? But, if a manufacturer hides certain facts about the integrity of their vehicle so that your choice is deflected toward their entrant in the field should you or your heirs have no recourse because you were a free agent?

The woman who died of water intoxication was lured into an event that had a high likelihood of causing harm. Whether she acted recklessly in the face of the facts and warnings or did the station recklessly obscure the facts, is what the jury will decide.

Posted by: strawman on Jan. 19, 2007

Loosely defined, negligence is doing something a reasonably prudent person would not do, or failing to do something the reasonably prudent person would do, which results in harm to another person.

Would the reasonably prudent person have done what these dj's did?

Case closed.

Posted by: annika on Jan. 19, 2007

"The woman who died of water intoxication was lured into an event that had a high likelihood of causing harm. Whether she acted recklessly in the face of the facts and warnings or did the station recklessly obscure the facts, is what the jury will decide."

Fair enough.

Posted by: blu on Jan. 19, 2007


How does the law account for individual responsibility? Nobody poured that water down the woman's throat.

I'm sorry, but this was an accident. But, I guess there are no more accidents. A family is devastated, a community saddened, and lawyers see dollar signs, so somebody is going to pay.

I had a long talk last night with a media person here in Sacramento, and she was upset and surprised that the local and national media hasn't shown a bit of balance covering the story. At the press conference yesterday, she said that she was the only reporter asking about individual responsibility.

Posted by: blu on Jan. 19, 2007

"Advertising has the power to subvert and diminish the will of free citizens such that their ability to distinguish what is good or bad for them is seriously impaired."

No offense, Straw, but I call bullshit. I guess in your world people are perpetual victims with 2 digit IQs and an inability to make decisions based on analysis and logical reasoning.

I've managed to get through three decades of life without having my free will diminished. For those dopes out there that are overwhelmed by the power of marketing, I suggest you turn off your TV and pick up a book.

But, hey, your thought process falls right in line with your politics. You don't think people can take care of themselves thus the nanny state. At least, you are consistent in your logic.

Posted by: blu on Jan. 19, 2007

The tort law should provide economic incentives to minimize social harm. The relative benefit of allowing people to behave recklessly in paying people to do things that pose a substantial danger to life and limb, even when they've received warnings that doing so may lead to death, is not as high as the value of the lives endangered and the social incentives provided by judgment to prevent other similarly situated people from doing this in the future. There should be a duty of care to people whom one is paying to participat ein a contest; the contest host likely has more information about the risks than the general public and, more important, other people, including spouses and children, have an interest in this woman's life.

It's true, people taking risks that are well known and unavoidable, such as mountain climbing, shouldn't be able to sue people for doing those things and being harmed when the structure of the activity is entirely in the participant's hands or the risk is unavoidable. Risky behavior may be valuable, and people should be allowed to take risks. But this is more like "bare knuckle boxing" or paying someone to kill himself. That behavior is socially harmful; it leads to the death and maiming of people that have value to society, may not know the risks themselves, or may not undertake these risks but for the host's blandishments.

A notion of free will and individual responsibility should nto be applied in a cock-eyed way, because here the station and its employees had decisions to make too. We're not talking about the car that can't survive every accident or the death on the high school football field from normal playing activity. Unavoidable tragedies happen, even if people, including people with a duty of care, take reasonable precuations. But I shouldn't be allowed to pay you to do something for my amusement when I know it carries with it a deadly risk. And, if that risk transpires, I should be held accountable at least for my part of the ensuing harm.

It's doubly important that people be held to account when they know of deadly risks and do not warn participants. There is simply no social value in alcohol or water drinking contests, and people that promote these things when people get killed should be held to account.

The law should be hard-headed. It's not about compensated every wrong. There is such a thing as damnum absque injuria, injury without legal remedy. But it should be concerned with maximizing economic incentives to prevent socially harmful behavior, one of the most serious of which is the avoidable loss of life.

Posted by: Roach on Jan. 19, 2007

Thanks Roach. That's the best argument that I've read since the incident occured. I still am interested how the legal system accounts for for the individual's responsibility. Would a "reasonble" person decide to "compete" in that stupid contest? Maybe, Straw is right, and I give humanity too much credit. Sad and pathetic if true.

Posted by: blu on Jan. 19, 2007


Well argued.


I am actually a very big proponent of personal responsibility. I don't believe anything is ever forgotten, I believe the circumstances leading to very outcome can be understood and learned from. I have a no excuse policy for almost everything. Accidents are things that happen to us that could not be foreseen and avoided.

A finisher I fired 10 years ago had the gall to call me yesterday to tell me he had used me as a reference. Ten years ago he came into my office to tell me of and accident he had just had and the table that was ruined as a result. He said that while rolling the cart with the table on it he bumped into a door jamb pitching the table to the ground. I asked if he would, off the clock help with the repair and refinishing. He looked annoyed and repeated that it was an accident and, hence, he bore no responsibility. He lost his job.

I firmly believe that to the extent that they can (and here is where we part) people must take responsibility for their choices. But you don't want to allow for circumstances that manipulate by design the information that is required for an informed choice nor do you seem to care that the profit motive inherent in our system tries desperately to separate people from their money by means that often strain credulity. I am not so harsh on those that lose the battle. I think they went up against a stacked deck and should be compensated and the deck stacker punished meaningfully. 5 million to McDonald’s for excessively hot coffee that they had been warned about is not excessive. I would however, pay the victim something reasonable and put the balance into a general account established to restore those harmed where no award could be made due to the insolvency or some other scumbag maneuver of the plaintive

Blu, we live in a country where 60-70% of the population believes in the paranormal, angels, alien abductions, god, Taro cards, palmistry, iridology, acupuncture, chi, meridians, hot rocks, aroma “therapy”, chiropractic "medicine", massage “therapy”, telekinesis and a host of other things more far fetched. What is the responsibility of a society to provide its populace with the education that will allow them to make informed decisions and how hard is it really to dupe people? We live in a nation where the childish wish is elevated to serious consideration. Where universities psi departments pay people to study spoon bending, distant sight, alien abduction stories and whether 3 card Monte should be an Olympic sport.

Posted by: strawman on Jan. 19, 2007

And to top it all off...

She didn't win the Wii.

Posted by: RightWingDuck on Jan. 19, 2007

The station new there was a theoretical risk. As the on air discussion suggests, they didn't have a good idea beyond that. This really was a freelance medical experiment and should have been approved by a Medical Research Review Committee before being performed.

Posted by: michael on Jan. 19, 2007

I ask myself these kinds of questions all the time. For example, our son has autism and can't have a normal dental appointment, sitting in a chair like everyone else. His neurological system just won't let him do it. We tried for 9 years to do it the normal way because we knew insurance wouldn't pay for it. Finally, we just said we have to do it. We found a dentist who would do all the work while our son was under general anesthesia in the local children's hospital o.r. I'm ashamed I let him go for so long without having his teeth cared for. Dental insurance is paying for the dental part and medical insurance will only pay a fraction of the $8,000 hospital bill, though they paid 80% of the cost of anesthesia. He was in there for 1 hour. So who should pay? We believe our son's care is our responsibility but we're bummed out that he has autism, which drains every penny and more. My husband is going to sell his truck so we can pay the bill if we can't figure out a way to appeal it, which we've already done once to squeeze out $2,500 from our medical insurance. Anyway, I think the mom should have known she was doing something risky and those d.j.'s should never have tried something like that. And I think I should have taken care of my son's teeth a whole lot sooner.

Posted by: Joules on Jan. 19, 2007

Say five "Hail Marys" and perform an act of contrition.

Annie, the law should not need to protect stupid people from doing stupid things. What the Hell ever happened to taking responsibility for one's own decisions and acts?

We are all sorry the lady is dead; she did a dumb thing and paid the price. Should the radio station now take care of her family for life?

If you believe that it should, you are not a conservative, and our country will go to Hell in a handbasket. Too many stupid people out there to take care of...

Posted by: shelly on Jan. 19, 2007

Advertising has the power to subvert and diminish the will of free citizens such that their ability to distinguish what is good or bad for them is seriously impaired. This is especially true when advertisers are allowed by lassie fare (one bowl of kibble) capitalist societies to withhold and distort information while distributing drugs and devices disguised as important instruments of status and personal fulfillment.

While I, strangely enough, agree with you on the merits of this case. I wonder how you square your above view with the typical liberal rant on popular culture. Bill O'Reilly is being excoriated by your ideological brethren for his culture warrior stance.

Right wingers have for years said that the popular media was coarsening our culture, hurting the nation, and leading directly to social pathologies. They were all tarred with the same brush by the left. called fools, prudes, prohibitionists, etc. Meanwhile the left made heroes out of truly sick people like Larry Flynt.

So which is it? can advertisers, and Dj's really make people do bad things? Or do the images we see, and the songs we hear have little overall effect on us? What's it going to be, because it's got to be one or the other.

Posted by: kyle8 on Jan. 20, 2007

Blu, California law addresses your concerns regarding the contestant's responsibility, if any. If the decedent had any fault, that is an issue for the jury to decide. In deliberations, the jury will have the opportunity to assign a percentage of fault to the decedent (comparative negligence), and any verdict will be reduced accordingly. (If I was on the jury, I'd say no. People are entitled to assume that a contest they enter will not result in their death, unless that risk is obvious, which in this case it was not.)

Posted by: annika on Jan. 20, 2007


I understand what you are saying but I think you have made a false equation. To argue that the speech of a singer, pundit, and writer may be persuasive and cause some people to act badly is not an argument to suspend the first amendment. To incite to violence is already prohibited. To offer a prize for drinking 2 gallons of water does place a burden, as Annika says, on the sponsor since the expectation of safety is implicit and this is not the same a selling a recording of a song that talks about how sweet it is to end your life. If the CD had sharp poisoned edges then you might ban the recording but not for espousing a point of view even if that point of view is repugnant. We are a country that prides itself on the free, unencumbered exchanges of ideas. Bill O’Reilly thinks he would be happy in a totalitarian society that would decide for him and others what may be said. He has no faith in the values of the country he lives in if he feels they are so tenuous that a song, or an essay, or a journalist can usurp them.

I think the tobacco and alcohol industries should be, and have been, prohibited from advertising and are they are open to law suits because of the damage their products causes. If the danger had always been made clear then I, like you and Blu, would look harder at the user’s responsibilities.

Posted by: strawman on Jan. 20, 2007

Not a very satisfactory answer. In the first place I neverf said anything about censorship. Nor for that matter has O'Reilly(you can check it out, he has always been against censorship) But what we object to is the overwhelming embrace of crap culture by the mostly very left wing entertainment industry. and others on the left. Why is it you have people giving awards at every award show to criminals like Snoop Dogg and Little Kim, while reserving all their bile and hatred for people on the right.
Or portraying in movies anyone normal and decent as though they were the bad guys. Then having the audacity to say, well its not hurting anyone. YOu lefties are so full of crap, and the sad thing is you don't even know it.

Posted by: kyle8 on Jan. 21, 2007

Good question, Kyle. We make choices every moment of every day. If we are uncertain or ignorant about something, we can learn more about it before we make a decision. There's an aspect of this matter that can't be dealt with in court--the inner thoughts and feelings of the individuals involved. No matter what the court decides, everyone lives with the consequences of the woman's death for the rest of their lives. Human free will is a marvelous and terrible thing.

Posted by: Joules on Jan. 21, 2007


The capitalist system of profit without regard for morals or ethics is always making choices. Many of those choices reward the moneymakers who are not necessarrily those that live the "best" life. Lil' Kim or Snoop, James Brown (felon, wifebeater) and so many others on the left and right, that put asses in the seats, sell the books, etc. COrporations will not, or rarely, act against their best interests. MAnytimes their best interests read making money, means ignoring the bad behavior of the talent. George Bush was a drunk and arrested for a DUI, Lil Kim committed perjury, Robert Downey a drug user, Rush Limbaugh a drug user, Mark Foley a sexual predator, Richard Nixon, Oliver North a felon and Negroponte his operator and Ronnie a nowing participant. Kyle there is no end to the crap culture as you so eloquently put it, in this country. The abuses of the population by careless manufacturers, false advertisers, scheming polititions, braying religious leaders, Cardinals protecting child molestors, GI's murdering those they were sent to liberate, animal lovers ruining scientific research, environmentalists burning down ski lodges and housing developments, congressmen taking money for influence, Bill Reilly lying about the facts of his life, and on and on.

I don't think anybody has a monolopy nor is there a simple solution to it.

Posted by: strawman on Jan. 21, 2007

Thanks for finding that out for me, Annika. You and I part ways on the risk being obvious: To me it was - that's why I was so fired up. What is obvious, however, is that most of my fellow posters - many of them bright and articulate - don't agree with me.

Posted by: blu on Jan. 21, 2007

"If the danger had always been made clear then I, like you and Blu, would look harder at the user’s responsibilities."


Civilized society has known for a very long time -not for decades but for centuries - that smoking kills. The suits against the tobacco companies ought to be an embarrassment to intelligent, free people. But, we live in a country of sheep where everybody is a victim, so the suits will keep coming.

Posted by: blu on Jan. 21, 2007


Centuries? You want to reconcider that my brother?

Germ theory is only 150 years old.

A humane society must recognized the strengths and weakness of its population and act accordingly to protect the strong from taking advantage. Or the majority from legislating minority needs and rights out of existance.

Blu, do you still believe Dawin said surrvival of the fitest and that "social Darwinism" is a reasonable way to view the dynamics of modern society?

Posted by: strawman on Jan. 22, 2007

No, I don't want to reconsider it. The references to the dangers of smoking is ubiquitous in very old literature. Even before humans could utilize the modern scientific method to "prove" that smoking killed, folks understood its dangers. Don't bother arguing the facts here, Straw, they are what they are. We've known for a very long time that smoking kills. Certainly, there is no excuse for anybody who lived after the late 19th century at the very least to claim he or she didn't know smoking was harmful.

Amazingly enough, Straw, despite all the marketing that you claim should have made me smoke one cigarette after another and despite having friends all througout my life who have smoked, I have yet to take a single puff. Sorry to screw up you belief that humans are all naive, idiotic sheep that must be protected by Marx and the nanny state.

And why are you discussing Spencer in this context? Social Darwinism has nothing to do with people choosing to do an activity that they know will harm them.

Posted by: blu on Jan. 22, 2007


You continually miss my point. SOME, repeat, SOME people, some of your brothers and sisters need the assistance of a benevolent state to insure their wellbeing and to protect them from the cruel.

That's all. Sounds very christian to me? No? This is not Socialism nor is it communism, just basic humanism. Longer than humans have had this belief you tout about tobacco, they have known about the variation in the capabilities of their neighbors accross the river or further back in the cave. Why do you try so hard to be hard?

I'm glad you never smoked, aren't you special! I guess that means the 100's of billions spent on advertising is a waste. Who knew!

Posted by: strawman on Jan. 22, 2007

hey did you know Bronco Bomber smokes cigarettes? If he won, that would make him the first smoking president since FDR, right?

Posted by: annika on Jan. 23, 2007

Hmmm, a smoking Muslim.....not good for the pretty boy. Hillary's going to clobber him with that stuff.

Posted by: blu on Jan. 23, 2007