Liability for Audience Actions

From Media & Entertainment Law Wypadkis

Contents 1 Duty of Care 2 Weirum v. RKO General 3 McCollum v. CBS, Inc. 4 Possible Differences Between Weirum and McCollom

Duty of Care

Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall Weirum. Element- Foreseeability of the risk is a primary consideration in establishing the element of duty. While it is true that foreseeability is ordinarily a question of fact, it may be decided as a question of law if “under the disputed facts there is no room for a reasonable difference of opinion.” CBS. 1st Am Defense- The First Amendment does not sanction the infliction of physical injury merely because achieved by word, rather than act. However, if you provide warnings then it makes it more of a 1st Amendment issue. The constitutional guarantees of free speech and free press do not permit advocacy directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Unprotected Speech- (1) (Jury) was directed or intended toward the goal of producing imminent lawless conduct and (2) (Court) was likely to produce such imminent conduct. CBS Poetry or Music Lyrics- Cannot be construed to contain the requisite "call to action" for the elementary reason that they simply are not intended to be and should not be read literally on their face, nor judged by a standard of prose oratory.

Scenario: DJ reads off a guy’s license plate and tells them to pull over when it is safe. You would advise them that there is risk of liability, to put in warnings, and you would want to put it in writing and to write A/C privilege on top.

Weirum v. RKO General

(Supreme Court of CA 1975) J. Mosk

• FACTS: Plaintiffs, decedent's wife and children, brought an action for wrongful death against defendant radio station. Decedent's car was negligently forced off the highway by one of two minors who were attempting to follow defendant disc jockey's automobile as part of a contest run by defendant radio station.
• ISSUE: Is the radio station liable for the acts of third parties that were stimulated by its broadcast.
• HOLDING: Yes. The court held that it was foreseeable that defendant's youthful listeners would race to arrive first at a location to claim a prize, and in their haste disregard highway safety.
• REASONING: The harm to decedent, although caused by third parties, was stimulated by defendant's broadcast. The principle that one is not obligated to act as a good samaritan did not apply because plaintiffs' complaint was grounded upon an affirmative act of defendant which created an undue risk of harm.
• 1) Is there a duty of care?
  • Ct. said the station owes a duty of care to the listeners – to prevent others from being injured
    • - determination of duty is a question of law – the court’s “expression of a sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection”
      • guidance of history
      • concepts of morals and justice
      • convenience of the rule
      • social judgment as to where loss should fall
      • FORESEEABILITY
        • • RKO argued this wasn’t satisfied
• 2) Is it foreseeable?
  • Ct. said foreseeability is a question of fact for the jury – the jury found that this was foreseeable
    • so on review the court is only looking at whether there is any substantial evidence, contradicted or uncontradicted which will support that conclusion
  • the record amply supports a finding or foreseeability
    • large teenage following
    • it was summer
    • promotion offered money and notoriety
    • racing would induce the people to disregard safety

What could the radio station do to limit liability after this case:

• a warning would transfer some liability to the drivers
• time it so that a different demographic was listening
  • Restatement Rule which allows no duty to control the conduct of third parties where there is no special relationship does not apply here, also because the defendant created the harm

McCollum v. CBS, Inc.

(Cal. App. 1988) J. Croskey The Ozzy case

• FACTS: Plaintiffs, the family and estate of a teenager, who committed suicide while listening to certain recorded music, sued defendants, the composer, performer, producer, and distributor of the music, for negligence, intentional tort, and encouraging the suicide through their music in violation of Cal. Penal Code § 401.
  • The family is appealing from a dismissal sustaining a demurrer without leave to amend (demurrer - basically a 12(b)(6)
• ISSUE: Are Defendants liable for encouraging suicide through their music.
• HOLDING: No. Defendants' actions are protected by the First Amendment. Speech is not protected if it has intent and likelihood to invade a person's rights.
  • Unprotected Speech includes:(freedom of speech and expression are extended to all artistic and literary expression except:)

• • • obscenity
    • libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, false advertising, solicitation of a crime, complicity by encouragement, conspiracy, etc.
    • speech or writing used as an integral part of conduct in violation of a valid criminal statute
    • speech directed to incite or produce imminent lawless action
• REASONING: Plaintiffs failed to allege any basis for overcoming the free speech protections of the First Amendment, and Plaintiffs failed to allege sufficient facts to show any intentional or negligent invasion of plaintiffs' rights.

Ct. affirms

• First Amendment Issue: Was there incitement of violence which would eliminate 1st Amendment protection? NO
  • Courts will generally stay away from the Constitutional issue, but not this one
  • Incitement – speech which is directed to incite or produce imminent lawless action
    • Elements:
      • 1. Was directed or intended toward the goal of producing imminent lawless conduct
      • 2. Was likely to produce such imminent conduct
    • so to recover here:
      • 1. music must have been directed and intended toward the goal of bringing about the imminent suicide of listeners
      • 2. must have been likely to produce such a result
• Ct. said that this was an unreasonable reaction to the music and not the intended consequence
  • EJ cautions we can’t deduce intent on demurrer = jury issue
• Tort Claim
  • Is there a duty of care? NO
    • Determined by looking at:
      • degree of certainty that plaintiff suffered injury
      • closeness of connection between the defendant’s conduct and the injury suffered
      • moral blame attached to the defendant’s conduct
      • policy of preventing future harm
      • extent of the burden of the defendant
      • the consequences to the community of imposing a duty to exercise care with resulting liability for breach
      • availability, cost, prevalence of insurance for the risk involved
      • FORESEEABILITY
  • Is it foreseeable?
    • ct requires a high degree of foreseeability because of the great burden on society of preventing the kind of “harm” of which plaintiffs complain by restraining or punishing artistic expression
    • ct. said this is normally a question of fact but it can be decided as a question of law here because “under the disputed facts there is no room for a reasonable difference of opinion”
    • the suicide was not a foreseeable risk or consequence of defendant’s remote artistic activities

Ct. says demurrer is proper because the facts are undisputed

• Court probably made many errors:
  • Did not grant plaintiffs leave to amend
  • Intentional harm to any particular victim is NOT the standard for tort liability (see Weirum)
  • Made rulings based upon issues that should have gone to jury
  • Wrong standard: victim was not a “reasonable person” but was a teen with alcohol and emotional issues
  • this seems to be the CA court protecting its industry

Possible Differences Between Weirum and McCollom

• specificity in how the art reached the audience
• immediacy in how the art reached the audience
• forseeability
• who died