TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Wednesday, January 17, 2007

(Updated) "They signed releases so we're not responsible."

So said one of the DJs in the water intoxication death in the face of a warning, according to a news story.

During the contest, a listener - self-identified as a nurse - called the live radio broadcast and warned that the game was dangerous.

"I want to say that those people drinking all that water can get sick and die from water intoxication," said the caller.

"Yeah, we're aware of that," replied a DJ. "They signed releases so we're not responsible, okay?"

[Fellow contestant] Logsdon tells KOVR-TV news that they didn't hear that on-air warning in the room where he and the others were filling up way beyond comfort.

Ten employees, including the morning show DJs, have been fired.  NYT's Lede has more.  The TV station has frankly chilling audio.  And the Sacramento Bee has even more.

Update: Just came across a cached version of the morning show's website (Download wiiwinner.pdf) that indicates this:

Hold Your Wee for a Nintendo Wii!

Congrats to Lucy Davidson! She drank a gallon and half of water and held her wee for 3 hours to win the Nintendo Wii!!
pictures coming!

The station's website is quickly losing all references to the morning show, though their blog is still up, though old.  The DJs issued a statement via a MySpace page:

At this time we would like to express our deepest condolences to the family of Jennifer Strange. We want to thank all of our listners for their continued support...and we ask, that you join us by keeping Jennifer and her family in your thoughts and prayers. Lukas, Maney, and Trish

My inclination is that this is more of a management issue than a DJ issue, notwithstanding the idiotic "we have a release so we're not responsible" line, but it surely is a management issue worthy of at least civil suit. 

By an odd coincidence, the final exam I just finished graded happened to have an injury caused by a wacky morning show DJ throwing a football in the studio, and part of what I was looking for was a respondeat superior argument (and a direct negligence claim) that wacky morning show DJs are supposed to do stupid things, and the management is supposed to pay attention to such things.

Earlier posts are here and here.

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Assuming the release was worded properly, it *should* bar civil suits against the station. ("Should" meaning doctrinally, not morally.) It shouldn't, however, bar any regulatory or criminal sanctions, or prevent outraged listeners from demanding that the idiot DJs be fired.

Posted by: Elliot | Jan 17, 2007 4:46:41 PM

I think that's right, and I should have noted the potential impact of the waiver, though I suspect California is probably prone to an even narrower construction of express assumption of risk and waivers than most states.

While you can waive negligence claims, I wonder if there's perhaps an exception saying you can't waive gross negligence. (I know you generally can't waive intentional tort claims; I think states vary on gross negligence.) Does this rise to gross negligence? Dunno. I don't know California's standard, but I think you could probably at least get past summary judgment on an argument that it's reckless disregard, no?

The waiver could presumably also be used in implied assumption of risk argument if it informed the contestants of the risks. I suspect it's a form waiver that didn't tell them about the risk of water intoxication, etc., but that's just a guess.

Posted by: Bill Childs | Jan 17, 2007 5:08:23 PM

Unless the waiver said something like, "I am aware that drinking too much water can kill me," the suit will probably survive summary judgment.

Posted by: Elliot | Jan 18, 2007 3:42:04 PM

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