Lawsuit of the Day: ‘Hold Your Wee for a Wii’
In 2007, a Sacramento radio station held an ill-fated “Hold your Wee for a Wii” contest. Participants had to drink massive amounts of water and then hold it in to win the video game system. They were asked to drink eight 8-ounce bottles every 10 minutes, followed by 16-ounce bottles every 10 minutes, over a three-hour period. Jennifer Strange, 28, a mother of three, died as a result of the contest, of water intoxication.
Strange’s death has resulted in a waterfall of lawsuits. From the Sacramento Bee:
Since the contest, the radio station’s owners have fired 10 people, including the DJs involved; Strange’s fellow contestants developed what they say is an irrational fear of water and sued the broadcaster; Strange’s husband and children filed their own wrongful-death suit; and lawyers involved have submitted thousands of pages of claims and counterclaims.
Those suing say they have myriad problems: limited ability to drink water, trouble listening to the radio, sleeplessness, anxiety, depression, and the inability to ever play the Wii.
Even the winner of the Wii emerged a loser….
The winner of the contest, Lucy Davidson, said she was terribly sick afterward and vomited while still at the station. Now, she says, she can’t listen to the radio because she is afraid of contests, and in her job at Wal-Mart she experiences “an inappropriate emotional reaction” when she sees someone put bottled water in their carts.“I have come to realize that in a way I fear water,” she said in a June declaration.
While Davidson’s bladder has shown itself capable of handling copious amounts of liquid, will her lawsuit hold water?
Survivors say stunt left them twisted [Sacramento Bee]
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nice
Absolutely retarded. This is why the U.S. will ultimately fail.
Stay thirsty, my friends.
this suit be sinkin'
Oh, what a shocker, a real life lawsuit, that requires real life law. Non of this theory bs that predominates at the "top" law schools, but hardnose, black letter law. Oh, and guess what, IT'S A TOP STORY IN LEGAL NEWS. Know what that means? You're precious law degrees from places like HYS are meaningless! Unless you know the law, you're not going to do squat. Man, I love the levelling out we're experiencing in this society!
These people all need to shut up and go away. Idiots like this are what's wrong with America and every lawyer that is taking this case should be disbarred since they are the leeches that make people hate lawyers.
The spouse and children on Jennifer Strange have a legitimate claim against the radio station.
The rest of the specious claims should be dismissed. Their claims will be the new "McDonald's coffee" for tort reform. Thanks shyster attorneys representing these ridiculous plaintiffs. Know that your litigation bretheren hate you.
all this water talk makes me FIRSTY
"Those suing saying they have myriad problems:..."
Yay! Elie's back!
@ 7
Assumption of risk destroys all claims.
@7
Please educate yourself about the McDonald's Suit.
http://ken_ashford.typepad.com/blog/2009/01/the-truth-about-that-mcdonalds-hot-coffee-lawsuit.html
10-- Not necessarily. If they reasonably relied on the station's assurances that the contest was safe, and incurred damages based on that reliance, they may have a promissory estoppel claim against the station. Section 90 of the restatement is very clear on this. The damages could be quite substantial, given that fear of water must be a crippling problem.
#10 your assumption is too broad.
1. It would be hard to show implied assumption of the risk - you don't assume you will die
2. If there was an express (contractual) assumption of the risk - a court would probably view it critically
7, why do the survivors have a legitmate claim? No one forced the stroppy cow to drink the water, right? No one put anything funny in the water or did anything at all to her except telling her to drink water and not pee, right?
Next you'll say that if the station had a jump-off-a-bridge contest and people did it and died, it'd be the fault of the station, not the dead retards.
@ 11
Read it, still a bogus lawsuit.
Former Thelen and current Orrick partner The Glass Cock here, taking Kash's movie quote bait and responding to her question about the lawsuit holding water: NO! The defense is wrong! Because there is no way that these tire marks were made by a '64 Buick Skylark convertible. These marks were made by a 1963 Pontiac Tempest.
13 - I agree. I think these lawsuits have more merit than some of you think.
In addition to the assumption of risk argument, didn't the station have folks sign releases and waivers? If not, that was pretty stupid on the station's part.
@7 - I hate you
@13
See 14. Also drinking that much water is implied and or actual assumption of risk. They volunteered for the contest and consumed the water by their own hand. I can't imagine a better example of assumed risk, but here's one for you.
I volunteer to run into the burning building and then while in the burning building decide to play a game of solitaire. I win the suit? Come on, you're an ambulance chaser or one in training.
-10
12, that's not even remotely what promissory estoppel is about, dumbass. WTF.
Given how obsessed people are with the WII, could this be UNCONSIONABLE - even with a waiver?
3 - very nice
otherwise, i'm waiting for the comment where this is a big joke.
if this is actually real, the NYT had a story about the dangers of water intoxication less than 2 years ago that caused quite a stir (pardon the almost pun). since i haven't done the research, can't say it right, but the clear defense is some variant of assumption of the risk/obvious danger. It actually kind of pisses me off how stupid this is. and for an f'ing Wii??? ridiculous.
22 = law student
24
No, it's a wannbe troll who wasn't smart enough to be first on Res 90.
They settle the goofy cases for nuisance value; they settle the wrongful death for whatever it's worth after discovery or some kind of partial summary judgment, up to the limits of their insurance coverage or less if the case looks like crap at that point. Possibly, they have to sue their insurance company. I bet the wrongful death gets at least to the point of deposing expert witnesses.
21-thanks
12-where the f did you go to law school? and i'm not even a prestige whore. omg.
11's link = epic fail.
The victim did nothing wrong?: "She placed it between her legs, so she could open the lid and put in cream and sugar. "
How dumb does someone have to be to place a coffee cup between her legs and not expect it to spill sitting in a vehicle--wearing sweatpants? Did she not notice how hot it was while holding the styrofoam cup? Heat is noticeable through styrofoam.
And I love the spelling of "frivilous" throughout the article...this nation is full of idiots.
Anyone else want to go boozing?
This is the lawsuit of the day:
http://wcbstv.com/local/swine.flu.nyc.2.1123989.html
Winner, Winner, Chicken Dinner
how about the station owners throwing everyone under the bus -- they fired 10 people. i can't imagine some poor schmuck studio engineer had any idea it was possible to die from drinking too much water, much less was in a position to stop the contest.
@14, the radio statio will end up paying the decedent's family some money. The contest was negligent as best and if you couldn't convince a jury that it was, you're a shitty lawyer.
@ 30
Another attempt to win the lottery. I hate PI lawyers today. Where's a good factory accident or plane crash when you need it.
You people are morons. I don't know how you can call yourselves lawyers. Yes, the people did stupid stuff to get hurt. They wouldn't have done it without the idiots who decided to hold this stupid contest. They're both responsible and that's why we have comparative liability, and why they'll lose at least some of these cases.
Same with the morons who don't understand the coffee case. Normal coffee as you make it at home does not cause third degree burns if you spill it on yourself, but McDonald's serves it hot enough that it will do just that, at a drive-through windows, after dozens of people have been injured as a result, and they've been repeatedly sued, and repeatedly lost big verdicts. What kind of idiot company keeps doing something that keeps injuring people?
hold your wee for the wii and don't pee then you can see what life is meant to bee. don't you agree?
@32
and it will be reduced to 6 dollars and a coupon for a free car wash once you figure in the contributory negligence.
30--you're right.
that's the kind of stuff that makes tort reform sound like a good thing even though it's not. anything for a buck. how the heck could the city have prevented that guy's initial bad health and subsequent exposure to swine flu, which tipped him over the edge? ugh!!!
Firsty?
I vaguely recall a similar case in Torts class where a radio station held a contest to see who could get across town the fastest (or something similar where you had to get around the city in the fastest time - e.g. an amazing race style deal) and one of the contestants had an accident while particpating and the vicitm recovered from the radio station.
Forgive me if my facts are loose, it's been 6 years since Torts class. Do any fo the law students know what this case?
Basically, it's negligent to sponsor a contest where one knows or should have known that the participants will be a danger to others. This case is different in that the harm is to the particpants. Except if they knew the particpants were drinking in front of there families perhaps there's an NIED claim for the family.
34
You're a mouth breathing moron that refuses to let people be responsible for their own actions. You're probably the idiot that would take the wrongful death case of the idiots in Zoolander that had the gasoline fight because you know it was like totally the fault of like the gasoline company because heaven forbid that a perosn would know like it's totall dangerous to cover yourself in gasoline and then light up.
5 = epic fail; what a 'tard...
34, i'm plaintiff-oriented and i also understand the mcdonald's case very well. actually agree with the result in that case. this case, sorry dude, you can call people idiots all you want, but motions to dismiss will be granted all around. i'd put money on that and I don't gamble.
21, 27-- I'm on law review at Stetson. Now STFU and actual read section 90 before you pretend to know what promissory estoppel is about.
-- 12.
Lots of guys in my high school used to entice poor people to do dangerous things. It was no big deal.
34, how many lawsuits and verdicts (repeatedly and big no less) has McDonald's lost besides the one discussed above?
Just because you make up shit doesn't make it right, what kind of idiot just makes up arguments?
In 1981, there was an associate at the firm who I will refer to as Prometheus. He literally lived chained to his desk, worked long hours, alienated his wife and family all in a desperate effort to make partner (we knew he would never make partner but didn't mind his efforts). When Prometheus was passed over for partner, he experienced a cardiac infarction and died. It was a tragic event for which I will remember since we had to dismiss the staff for the remainder of the day since most did not have the stomach to work through such an event. Later on, Prometheus's family tried to extract money from the firm by threatening to bring a wrongful death action, claiming we worked him to death and then intentionally inflicted emotional distress on them by not promoting him to partner. The firm invited the lawsuit but alas, the family was wisely counseled not to bother with such frivolity. Strange's case is about as strong as Prometheus's "wrongful death" action.
39. no. stop. it has been public knowledge for a while that people can die from water intoxication. rushing in traffic doesn't necessarily mean you will die. water beyond a certain point, certain death. yes, the radio station people where dumbasses for having the contest. but just because they're dumbasses doesn't mean that you are compelled to join them in dumbassness and put your own life at risk for an f'ing wii. and to say that they didn't know that water can kill when the information is out there and readily available is no support for the plaintiffs' cases. we have a responsibility to put our lives on the line for a wii. a million bucks in this economy?? different story.
43 = epic fail. Not for the substance of your comment but because you went to Stetson.
48, wtf??? AND for the substance of his comment. omg. very scary that this person may actually represent people one day. and we see why lawyers have bad names playing out right before us. v f'ing scary.
Section 90? The Restatement? Useless in real life. You are a loser.
47 here. that was a responsibility NOT to put our lives on the line for a wii.....
46/PE: You either never learned what 'literally' means, or the associate actually had chains keeping him tethered to his desk. Which is it?
This comment is addressed to post no. 52.
You have obviously never worked a day at a peer firm. If you were free to roam in a jungle but trapped there never to savor civilization, would you still be free or are you a prisoner confined to savagery? My next question, if you have the competence to answer it, is, do you need actual chains to be chained to a desk? Why don't you ask that question to an associate that works for a peer firm. You appear to be a fool, literally.
The Good Samaritan is about someone who gave someone else some water. These people need to hire Elie.
http://en.wikipedia.org/wiki/Parable_of_the_Good_Samaritan
48-50: Promissory Estoppel as a doctrine is alive and well, not to mention highly relevant. The fact that you don't know this speaks poorly of your legal acumen. For instance, searching "all states" under loislaw for the string "promissory estoppel" for the past year reveals 196 cases. Pushing it up to three years increases it to 587 cases. That, of course, doesn't include all the promissory estoppel cases that settle, don't lead to a written opinion, aren't in loislaw's database, etc. Perhaps *you* guys/girls should be going to Stetson to get a real legal education.
-- 12/43.
49: wtf, you ask? 48 was just rightly pointing out that STTTeTTTson is a fucking joke.
12 is perhaps the daftest lad in the history of modern civilisation. (I'm British.)
Stetson dude, the Restatement 90/promissory estoppel thing is a running joke on this site. 12/43/55 isn't serious.
nothing like the McDonald's case. there, most of the damages were punitive b/c of McDonald's repeated violations OSEA standards for the maximum temperature at which you can serve beverages.
53-- You need actual chains to be literally chained to a desk, yes. Literally. I accept without question that associates can be figuratively chained to desks. Your writing doesn't seem quite up to snuff. Perhaps you should recruit some associates to help you, under the banner of "business development."
-- 52.
53, I'm pretty sure that you need actual chains to be "literally" chained to a desk.
56, I was agreeing with 48. i'll cut you some slack on this one.
This comment is addressed to post no. 61.
Get ready for a response from PE soon.
43, I go to Law School too. You are an idiot.
law.stetsoncologne.edu won't load, does "stetson" have a website?
21, 43: Huh? Space crickets. Assuming you're right, what would the radio station be estopped from doing or claiming? It's not seeking to enforce the benefit of some bargain to have people drink water. So, from raising an assumption defense in a tort case? Is that what you're saying? I just got here, but I'm pretty confused about this theory. Would love someone to enlighten me.
I never used the term "chains." Go re-read the comment you impudent sloth. There is a difference between being in chains and "lived chained." You can live literally chained to your wife without the involvement of actual chains. The message was lost on you. This generation of lawyers is what broke our business model. The poor quality of law graduates and modern day lawyers is the reason for all these layoffs and lack of client confidence in how we do business. You are further proof of that failure.
66, they would be estopped via section 90 from claiming that waiving negligence/wrongful death claims was part of the consideration for participating in the contest, at a bare minimum. Therefore, any claim would go forth without worrying about an assumption of risk defense.
-- 21/43.
@34 - Coffee is supposed to be hot. If you don't want to get burnt then don't pour it in your f-ing lap. Anyone who would award that stupid lady anthing more than a punch in the face should be drug out to the street and shot.
What these Boston girls are not aware of is the adverse environmental implications of their sharts. Now, a healthy amount of methane, similar to other greenhouse gases, is commonly found in our atmosphere. However, when an excess amount of these gases are emitted, heat becomes trapped by way of a process called "global warming."
Along with a proportion of solids, sharts are basically pockets of gas that our bodies eventually emit because they are useless. One such shart gas is methane.
So while everyone is laughing and having a good time about Boston girls sharting, it is really no laughing matter. By my estimation they are directly liable for at least 2 polar bear carcasses in 2009 alone.
23--NYTimes article = irrelevant. The winner of the contest works at WalMart. Do you think folks are passing around the NYTimes in the break room there? It's hard to argue that the danger is open and obvious when regular people (which likely includes 90% of jurors) don't read sophisticated publications.
[You would come off as such a prick to jury with a line like "This 28-year old mother of 3, who was desperate enough to subject herself to a humiliating contest, didn't know of water intoxication!?! Doesn't she read the Times! Excuse me, I dropped my monocle."]
Your average juror has never heard of the "obvious" dangers of water intoxication, but they have heard of a dead mother of who died trying to win her children a toy that she (presumably) couldn't otherwise afford. The defendants would get hammered in court.
In Dungeon Master Emeritus's world, the literal and figurative get very mixed up. It's hard for him to keep them straight since he literally lives through his virtual personas. His true existence as a lonely associate who equates firm prestige with personal ability and finds solace for his virginity in online games is hardly to be called a life.
12/43/55 - You're either went to a T14 trolling school, or you should hang onto those BARBRI books.
America is doomed. #2 is right on.
#12 - there is no hope for you. You are an indefatigable tool and all that is wrong with this country. Tort law and the foolhardy application of negligence law is costing this society in so many ways that it will soon bankrupt us, if it hasn't already.
Ah, memories of Doriane Coleman...
62:
Thx.
-56
12, 43 -
I see what you're saying now, but I have to say it seems like very murky territory, and I'm not sure it's going to help you much. I think 13 gets it right. I'm not sure there's a contractual waiver here, and even if there is and it could be enforced, I'm not sure the risk can't be assumed otherwise. I'd be happy to be proved wrong if you can. Either way, you'd still have to make out the tort, which seems easier said than done here.
PE - Did you live chained to your desk or to your wife when you were an associate coming up the ranks?
PE's ex-wife = literally chained to pool boy's nutz
What is it about 6pm on a Tuesday that's bringing out all these trolls who are too dumb to understand the running memes on ATL?
80-I read the comment above about the running joke. Good for you. I thought it was interesting, and another commenter seemed to want to pursue it. What's wrong with that?
You're right, though. I don't spend as much time here as you do, and I'm probably not as well-versed in the "running memes on ATL" as you seem to be.
Dear "partner emeritus:"
You are one douchey douche, my friend! I normally don't respond to troll liars, but I feel compelled because you are seriously one over-the-top idiot! I sure hope you're just some goon law student wasting time during the summer because you can't get a clerkship with your average grades and horrible interview skills . . . because if some poor jurisdiction actually admitted you -- yikes! Please let us all know which one so we know never to pro hac a case there!
As if I even need to point all this out . . . but no attorney who was a partner in 1981 is probably still actively practicing. No such attorney knows how to use the internet, or would even care to post on message boards (hahaha . . . just thinking about my dad posting on message boards makes me laugh). No such attorney reads ATL, because, really ATL is really pretty lame and I feel guilty every time I read it (I just took the bar . . . I imagine I will stop caring completely once I start work in September). Finally, absolutely no such attorney -- even if they know how to use the internet -- even they LIKE message boards -- knows how to upload a picture of an avatar, and chooses that damn actor from "Babe" of all people!!
Ugh. And the name "partner emeritus" just make my stomach roll. I can't imagine you'll have an easy time making partner somewhere. Sit back, relax, lay off the message boards, trolling, etc., have a bloody mary, and enjoy life for a moment. It will do you a world of good.
And, of course, no real attorney would think that this water-intox.-death lawsuit was frivolous or meritless. This is first month of torts kinda stuff. And in California? Where any waiver of liability has to survive that gosh-awful 7-point-or-so factor test? I guarantee you the plaintiffs are about to P-A-I-D.
Sorry to be so mean. I am serious about the bloody mary, though.
74 - It's obvious you don't practice law. If you are an attorney you must do some type of transactional B.S. Move to a country that doesn't have tort law. Try India. The victims of the Bhopal tragedy have been waiting over 25 years for a court date which will never happen.
You're awesome 12. Way to keep it alive. Rest 90 Lives.
71, 23 here. my mother has a high school education and she knows about water intoxication. how? you ask. she read it in the New York Times dipshit.
a wii seems like a pretty weak prize for holding your pee for the rest of your life
82 - you're a fucking idiot. PE is schtick. And yes partners at BIGLAW firms read ATL including the comments. Some of us actually post comments as well.
Nothing like an ignorant first year lecturing everyone about the law, the practice of law, and the history of the legal profession.
I suggest you tone it down before you "start work in September" or you will be the douche first year associate that all the other attorneys avoid. Remember you practice law. Find an attorney with some gray hair and pay attention. You'll be surprised how much you didn't learn in law school.
and 71, when that story came out, SEVERAL news outlets picked it up because it was such a 'wtf' kind of story. appears you're one of the lawyers involved in this fiasco. get out now. you're not going to win, and i'm pro-plaintiff.
85/23--that is also irrelevant. If you believe that the average American reads the NYTimes, you have high expectations. Most people who read the Times (like your mother) is of above-average intelligence.
Unfortunately for you, intelligence is apparently not genetic.
VTY,
71
and might i add 71, that the lawyer who communicates to a jury that he or she thinks the jury and all people who work at walmart are illiterate dumbasses is the biggest prick of all.
89, I probably will never meet you, but i will laugh loudly when this bullshit case is either thrown out of court on a motion to dismiss or by the jury itself. as for your intelligence comment, all of your comments speak for themselves. and you are still a dipshit.
This comment is addressed to post no. 82.
Anyone who uses the term "yikes" or suggests drinking a bloody mary is a eunuch that cannot walk tall amongst real men. You are not a peer and will never be one. If you think the water intoxication case has merit, you definitely belong on a jury, not at counsel's table. That is all.
91--Thank you for taking your ball and going home.
See you in court (hopefully).
--71
a google search for "water intoxication" yields 131,000 hits.
a google search for "drinking too much water" yields 46,700 hits.
nuff said.
Former Thelen and current Orrick partner The Glass Cock here, taking a break from speaking the truth as to Partner Emeritus' lack of relevance to real equity partners (I believe I refer to him as "that barnacle on the ship of PPP" in Partners meetings) to join ranks with the old fool in looking down upon the author of post no. 82.
How does every ignorant, uneducated, financially bereft jackass in this country still manage to find, and hire, a lawyer to represent him or her in these backassward suits? And why does it take so long to get rid of them from the court system? Ugh. It makes me embarrassed to be a lawyer (yet again).
A couple of posts referenced the McDonald's coffee case. The facts were that McDonalds served its coffee about 20 degrees hotter than many restaurants and that the woman who spilled the coffee got 3rd degree burns all over her lap (genital area) and needed skin grafts. McDonalds had over 100 other burn complaints and chose to do nothing. The woman ultimately pocketed about 200K -- hardly a jackpot for 3rd degree genital burns and weeks in a hospital. The woman in the Wii lawsuit also has a claim. While she might not have been an expert on medicine (not understanding the risks of drinking lots of water without urinating) the radio station did the promotion and caused the situation. It would not be that unreasonable to figure that the station would not do such a promotion if it were dangerous. I remember when this story broke out -- I saw the family portrait of a typical working class young family with three kids. Of course, when I saw the picture the mother had just died -- needlessly died. I am not a personal injury plaintiff's lawyer -- in fact in my 15 years as a lawyer I have spent about 1/3 of my caseload defending civil lawsuits in some capacity.
"While she might not have been an expert on medicine (not understanding the risks of drinking lots of water without urinating) the radio station did the promotion and caused the situation"
97, read 94. No expertise required. Just a question to oneself: "hmm, could it really be safe to drink that much water?" It's common sense, anything in gross excess can be dangerous. And your comment--"I am not a personal injury plaintiff's lawyer -- in fact in my 15 years as a lawyer I have spent about 1/3 of my caseload defending civil lawsuits in some capacity"--indicates to me that you are mostly a transactional lawyer who has been asked your opinion periodically for purposes of helping litigators with their cases.
Regardless, there's no question that this is a very sad tragedy, but it's not a compensable one.
here's how the analysis works:
radio station, were you stupid and possibly liable?--yes;
but is there any defense? hmmm;
well, is it possible that plaintiffs' should have know of this danger?--let's see..
okay, well, it looks like this was a big story a few years ago and it looks like there is A LOT of info out there that should have informed plaintiffs--but is that enough?
well, let's take a look at the incentives versus the risks?
Oh, we see that the plaintiffs did this to themselves for a wii, hmmm--small, indeed very to the 100th power small incentive.
dicta re--if the incentive were higher, then perhaps there would have been more of an induced pressure by the radio station for contestants to take a risk;
HOWEVER, given the amount of information available and the low incentive to take the risk, we think that this case is nuuuuuttttts.
97 in again. My work history is basically a mix of a few different areas. Early in my career, I was a public defender for 3 years. I then worked for 3 years doing almost exclusively med mal defense. For the past 8 years, I do a variety of stuff. Lots of construction law (claims litigation, bonding issues, admin law prequalification matters) -- I do some dec actions against insurance companies but I also sometimes work assisting clients with tort litigation matters (though I do not try those cases). Did I know that if you drink too much water and hold in urine that it would be very dangerous? Yes, probably I did -- and I have known that most of my life. Most of us on this board know that too -- we are almost all lawyers or law students and we are just "smarter" and that includes common sense. Still, this was a young woman who may have reasonably believed that it would not be dangerous since it was sanctioned by a radio station and pre-planned out (for all I know she could have thought that Nintendo was in on this too). I might go on a ride at an amusement park that looks very dangerous -- but I would think it was safe because of it being at the park (and being inspected and connected with a legitimate business). If it actually was dangerous, my estate should have a claim. If some guy on the street not connected with a legitimate business and not doing a planned out event just went up to a person, my analysis would be different. This was a pre-planned promoted matter where a legitimate business was involved (the radio station) and it appeared to be possibly related to a very large international company (Nintendo) -- so, yeah, I think the radio station should be responsible. The employees should have thought, wait a minute, shouldn't we check this out first. Why not do another silly stunt -- (eating bugs or whatever) that may not be dangerous?
98: I guess that's why people LITIGATE. Jesus. Did you learn in law school that "common sense" (under your definition) or the fact that the woman could have investigated the risk is some kind of ironclad defense for the radio station, who could've undertaken to do the same exact thing?
This comment is addressed to post no. 100.
While I congratulate you on your career accomplishments (i.e., preparing tax returns, drafting wills and partaking in some real estate closings in Mineola, NY), I think this area of law is out of your league and your analysis is flawed. Any moron, including any lawyer, knows that the limit of water intake per day is maximum 8-10 glasses. This is taught in secondary health class. She should have known the risks or at a minimum that knowledge was imputed to her since she is a high school graduate. While this incident is tragic, I find it more opprobrious that an attorney would take this case and try to extort a quick settlement.
Dear PE,
Yes, "any moron knows that the limit of water intake per day is maximum 8-10 glasses." Of course, those who, unlike yourself, are not morons would know that 8-10 glasses of water per day was bandied about in the media as a _minimum_ requirement. Water intoxication requires far more than 8-10 glasses.
Idiot.
Partner Emeritus,
Is it your contention that an ambitious young attorney should not drink bloody marys? Even with brunch?
okay, so you guys are suggesting that by virtue of this radio station's promotion, the reasonable person would assume that it was safe to drink an unlimited amount of water? Oh, okay. Look, I get the points you guys are making, but, regardless of what this radio station was promoting, a person has a responsibility to watch out for themselves. And, in that same vein, I do not at all agree that the reasonable person would think that Nintendo has time to be aware of some random radio station's wii giveaway. So plaintiffs are hard pressed to get the jury to agree one could think Nintendo sanctioned this (although there is a very remote chance the radio station did in fact get Nintendo to sponsor, but i doubt it). And when the jury gets wind of how much info there is on this, even if many of them didn't themselves know, they're not going to agree that the deceased's actions were reasonable. Look at it practically. I know that whenever i drink a certain amount of water, I feel weird. I bet that's true for most people. And it's unreasonable to suggest that the radio station forced this person to drink beyond the point of safety. I get the points, but I don't buy them and I doubt a jury will either. There's got to be a limit and this case crosses it.
Yes, I have prepared wills, tax returns and performed real estate closings -- but I have also tried almost 20 jury trials and about 10 non-jury trials. I was lead counsel on a 10 day trial once. I have about 8 published opinions in a jurisdiction where most decisions are not published. I have also argued appellate cases before each appellate court. No, I am not the most experienced p.i. attorney (never would claim that I was) but how was my analysis flawed? If you give the appearance that it is a safe but silly stunt (kind of like my eating bugs example) it is not unreasonable for somebody to participate in that stunt. If fear factor had a game where a bug that was deadly when eaten was substituted for a harmless bug, if a participant ate that bug, I would not blame that person for that act. So, I would guess this woman might have figured that the station would ensure the stunt was not a deadly one -- so she figured she was not risking death (do we even have to debate this point). What is really even more tragic is that while I am not "rich" -- if my kid wanted a wii it would be no big deal for me to buy it. Since I don't want my kid spending tons of time on that stuff -- she can make do with my playstation 2 golf, auto racing and football games (she has no interest). This family did not have the kind of money that I, or many of us who post here have. Anyway, I would be interested in a counterargument to my position instead of the observational point that I don't have a huge amount of p.i. experience (how many on this board are really exclusively p.i. lawyers).
106, the point that you and the supporters of this are missing is that she had the choice to stop drinking, especially once she started feeling weird. and this is not a fear factor bug switch scenario. in that case, i'd see the claim bc there really is a reasonable expectation of safety there--large network, etc. NOT here. your argument is akin to the suggestion that a bar had a drinking contest and an of age contestant drank too much and died so it's the bar's fault. and you say, but the dangers of alcohol are well known, but guess what, so are the dangers of drinking too much water. and if one person specifically didn't know, that doesn't suffice to defeat the reasonable person standard. what would a reasonable person have done? yeah, you take the plaintiff how you find them, but that is with respect to physical condition, not ignorance when, given the amount of info out there, that ignorance was not reasonable.
and your resume does not make you uniquely qualified to validate this claim. regardless, we'll all see how it shakes out. this case now has my interest and i'll be following it.
I am not sure whether eating a bug or drinking lots of water would make me more weird feeling. In college, I had to eat hot peppers as a stunt -- and live goldfish. The peppers were worse than the goldfish. I am not necessarily suggesting that the plaintiffs should win summary judgment against the station (though it strikes me that I might charge the station with involuntary manslaughter because it does rise to the gross negligent standard in my opinion). I don't know exactly how much water she drank -- but once it became clear it was a lot of water -- the station had an additional obligation to warn/stop the participant (again, they could have stopped the promotion at any point). Maybe this woman figured that the worst thing that would happen would be that she would pi$$ in her pants -- clearly she did not actually know she was risking her life. Under the circumstances (a well planned out promo that had the appearance of being possibly even sanctioned by Nintendo) I do not think it unreasonable for her not to realize the risk of death. Also, my view is that if Nintendo knew about this promotion -- even though they did not create it -- it had an obligation to try to stop the station from running it.
I'm actually from Sacramento, and vaguely remember the incident (and the pre-incident promotion) 1st thing to remember, this was in 2007 so people were still desperate to get their hands on the system.
2nd, and the reason these claims may fail, is that I can't imagine anyone in the Sacramento area being UNAWARE that water intoxication can cause death. There was a very very high profile case of a Sacramento teen dying of water intoxication up at CSU Chico in a hazing incident not terribly long before this.
I'm doing this off memory (no google, no wikipedia, the horror!) to show what even the most absent of this region's denizen's had to have known, especially the disc jockeys who report on these types of stories.
Still, the first thing that came to my mind when this promotion came around the first time was; "better be careful or they will end up like that Chico student." I can't believe that wouldn't have been many other peoples' first thoughts either.
Finally, I'd be curious to know if the radio station had medical care standing by.
These people may have been dumb as a box of rocks, but everyone knows that drinking too much water kills.
97, 100, 106 and 108 back again. Do I think the plaintiff should win a summary judgment motion? Probably not. Though, again, I think the plaintiff has a reasonable case under all of the circumstances. Also, was this person an egg shell plaintiff or not? Did she drink "way more" water than any other contestant, or was it a bit more -- but her system could not take the water as well as others. I don't think she brought a funnel with her (another college memory) and quickly consumed a full water cooler container (and if she did this immediately as she walked into the station, before anyone could stop her, that would change my analysis). She should have known that she could die because she felt weird? I don't go to the emergency room every time I get sick (and "feel weird") though I possibly could be in serious harm. I would not impute the knowledge of a college hazing stunt to this particular plaintiff -- she probably was not well versed in college greek life. It was a very dangerous stunt that the radio station promoted -- and they could have stopped it at any point (or made a dangerous stunt less dangerous by having a fixed amount of water that a participant could drink in the maximum amount). Any takers on the McDonald's law suit case? I did not know the real details on that one until about 5 years after it happened (though the whole tort reform movement exaggerated huge verdicts all the time) -- and it turns out it was a legitmate lawsuit. When I represented doctors and hospitals years ago, many of the lawsuits were not legit. 10 years into the litigation, no expert witness report would be produced (and docs sometimes paid a 15K surcharged on their med mal insurance by having an active case). That was remedied in my jurisdiction (now you need a certificate of merit at the time you file a lawsuit). It has reduced lawsuits by about 1/2 in that area.
I'm from Sacramento too, and am a defense attorney. Believe me, I'm no friend of plaintiffs' attorneys. However, this case is different.
Have any of you heard the audio tapes from the day of the contest? Several nurses/medical personal called into the station and said, "This contest is dangerous, please be careful." The DJs laughed it off and kept going. In retrospect, knowing that the lady died, their laughter is extremely creepy to listen to. The audio is, I'm sure, a big reason why so many people got fired.
I'm amazed at the number of posters on here who claim that the dumb lady should have known about potential dangers of water intoxication. I respectfully disagree. I think a lot of people do not know.
However, the defense attorneys are probably confident that they will find enough people who think like the ATL commenters to put on a jury: the case has not settled yet and is proceeding to trial. Jury selection is any day. I could not believe it when I read the article. Reading these comments though, I understand why the defense is willing to take a gamble.
hmmmm, very interesting. thanks for the back story. changes my perception a bit, particularly the medical professionals calling in. okay, food for thought. and not a lawyer involved in this case, fyi.
A Walmart employee proves that she is better at something (anything!) than a group of people. That's newsworthy right there. The real tragedy of this case is that only one member of this group of people who inhabit the double digit side of the i.q. scale managed to remove herself from the gene.....pool.
@3 - FTW buddy.
The victim assumed the risk. Verdict in favor of the radio station. Case closed.
114 here again. Another issue is that even if there is negligence, it could be argued that respondeat superior does not apply here because the DJ's were acting well beyond the scope of employment by having a dangerous contest on their radio program. Thus even if there is negligence, the proper defendants would be the DJ's themselves, not the radio stations who did not sanction this activity whatsoever.
114/115:
Congratulations on failing torts.
"I have come to realize that in a way I fear water," she said in a June declaration.
umm, I fear people who fear bottled water...
It's been a while, but for assumption of risk to apply the plaintiff, wouldn't a reasonably prudent person in plantiff's shoes have to have been aware of the risks?
I respectfully disagree about respondeat superior. The DJs absolutely acted with the station's approval.
I agree about the surviving plaintiffs' lawsuits being silly. They are unlikely to succeed. But for Jennifer Strange and family, I think there is a chance she will win.
I think they should just stop making waves and allow the incident to become water under the bridge.
The Sacramento Bee's website has audio from the broadcast on the day of the contest:
http://www.sacbee.com/995/story/1293545.html
It is not common knowledge, which goes to voluntarily and knowingly assuming the risk, that one can perish from drinking too much water.
How does the wrongful death statute read in California? I know I could use Westlaw, but I'm lazy, and don't care enough. Is it punitive or strictly compensatory in nature?
Everyone is looking at this from a pure negligence standpoint, but I think a good attorney could make a wantonness claim better than a negligence claim. This is especially true if several people did call the radio station advising of the dangers and they continued to hold the contest.
could the people participating in the contest hear what the callers were saying??