Gilligan's Island of Liability

Oh That Gilligan, It’s All His Fault.

It is time we talk about Gilligan’s Island. With a last name like Gilliland, I am the third generation to hear my last name mispronounced “Gilligan.” Being a sailor and hanging out with a guy called Skipper also does not help.

The story of Gilligan’s Island is one of a common carrier that went on a three hour cruise, only to end with the passengers stranded on a tropical island.

What duties did Skipper Jonas Grumby and First Mate Gilligan owe to the passengers? Given the number of times Gilligan sabotaged opportunities for escape, would the Skipper be liable for damages based on respondent-superior? Did the Skipper have a legal duty to protect the passengers from Gilligan’s destructive tendencies?  Did Skipper and Gilligan hold true to the legal obligation of the song to “do their very best, to make the others comfortable in their tropic island nest“?

The S.S. Minnow is a “common carrier” with its island charter business and subject to Federal law for carrying passengers for hire. A “common carrier” is defined under case law as “one who undertakes for hire or reward, to transport the goods of such as choose to employ him from place to place.” Babcock & Beene v. Herbert, 3 Ala. 392, 396-397 (Ala. 1842).

Judge David A. Depue stated the following about common carriers in 1869:

By law, common carriers are held to the strictest kind of accountability. They are absolute insurers of the safety of all property entrusted to them for the purpose of transportation, and can only discharge themselves from that liability by showing that the loss was occasioned by the act of God or public enemies.

Stephens & Condit Transp. Co. v. Tuckerman, Milligan & Co., 33 N.J.L. 543, 561 (E. & A. 1869).

The duties of a common carrier are to “highest degree of care and prudence” for the safety of its passengers, as well as the “utmost human skill and foresight.” Carlos v. MTL, Inc., 77 Haw. 269, 276 (Haw. Ct. App. 1994), citing Fuller v. Honolulu Rapid Transit & Land Co., 16 Haw. 1, 9 (1904) (quoting Coddington v. Brooklyn Ry. Co, 102 N.Y. 66, 5 N.E. 797 (1886).

It should be noted that a “common carrier is not an insurer of the safety of its passengers, and it has no duty to avoid all dangers which could not reasonably be foreseen.” Carlos v. MTL, Inc., 77 Haw. 269, 276 (Haw. Ct. App. 1994), citing Fuller, 16 Haw. at 9-10.

As such, the Skipper & Gilligan had a duty to protect the passengers from unreasonable risk of physical harm, provide first aid if injured, and to care for them until they could be cared for by others. See, Winfrey v. GGP Ala Moana LLC, 130 Haw. 262, 274 (Haw. 2013), citing Section 314A of the Restatement [(Second) of Torts].

The Shipwreck of the SS Minnow

The SS Minnow was shipwrecked after a storm at sea. The vessel was beached with multiple hull breaches in its wooden planking. While repairs to the hull might have been possible, the volume of water that penetrated the hull would have flooded the engines. This would make restoring the vessel impossible. There would have been no way to drain the oil and water out of the engines and restore the vessel to operation, because there was no replacement oil for the engines. The propulsion system would have been a giant rusting paperweight.

Was the storm reasonably foreseeable? Maybe. It would depend on weather reports, the accuracy of the weather reports, and whether there was time to respond. If the storm had been foreseeable, the crew of the SS Minnow did not act reasonably in ensuring the safety of the vessel and passengers. If the storm was an act of God, there would have been no liability for becoming shipwrecked. (See, MCARTHUR & HURLBERT v. SEARS, 21 Wend. 190, 200 (N.Y. Sup. Ct. 1839) and Stephens & Condit Transp. Co. v. Tuckerman, Milligan & Co., 33 N.J.L. 543, 561 (E. & A. 1869)).

The Skipper and Gilligan in the first episode made a raft with the intention of sailing for Hawaii and launching a rescue. Gilligan ate most of the food based glue and varnish during the construction of the raft. Gilligan also functions with diminished mental capacity to the point a Court might find him legally incompetent based upon expert testimony.

Given Gilligan’s self-destructive behavior, should Skipper Jonas Grumby have employed Gilligan in building the raft and rescue mission?

A Court would likely find Gilligan caused delays, if not outright sabotaged, rescue efforts. As such, it was unreasonable for the Skipper to have Gilligan help prepare the raft for the voyage to Hawaii.

Headhunting Torts

Gilligan scared his fellow castaways in the final moments of the first episode by climbing out of a cave and rubble in a headhunter’s outfit. This intentional act would constitute the intentional infliction of emotional distress. Upon their return to Hawaii, the castaways could sue the SS Minnow for Gilligan’s conduct, and Gilligan directly, by showing 1) Gilligan acted intentionally; 2) that the act of impersonating a headhunter was unreasonable; and 3) that Gilligan should have recognized that the act of dressing as a headhunter would have resulted in illness. Hac v. Univ. of Hawai’i, 102 Haw. 92, 105 (Haw. 2003), citing to Fraser v. Morrison, 39 Haw. 370 (1952), based upon the Restatement (First) of Torts, section 312 (1934).

The castaways would need to demonstrate they suffered bodily harm from Gilligan’s headhunter masquerade under the law in the 1960s. Gilligan did not physically harm anyone, so the case would be dissimilar than baseball players who dressed as a vampire and leather-clad warrior who attacked patrons in a club. Canseco v. Cheeks, 939 So. 2d 1122, 1123 (Fla. Dist. Ct. App. 3d Dist. 2006). The castaways would need to show they suffered nightmares or other physical manifestations of Gilligan’s assault in order to recover for damages.

Gilligan the Destroyer

The second episode of the Gilligan’s Island centered on building huts for the castaways. As expected, Gilligan injured the Skipper and Professor during the community hut construction. In the case of the Skipper, a lid was left off a barrel of water (known as a scuttlebutt among sailors) which the Skipper fell into. Gilligan also pulled a ladder out from under the Professor, causing both a fall and head injury. Mr. Howell also suffered battery from Gilligan.

Gilligan literally could not interact with others without causing physical injury or destruction of materials being built for the safety of the castaways. As such, the Skipper should have prohibited Gilligan from interacting with others, as terminating his employment was not an option on the island. This should have been done to protect the passengers from Gilligan and to avoid Gilligan having an “accident” at the hands castaways angry over another rescue attempt being destroyed.

50 Shades of Ginger

Ginger attempted to seduced Gilligan to achieve her goals on multiple occasions. One example is in the second episode in order to acquire tools to build a hut. Another is kissing Gilligan in order for Mary-Ann to place a jet pack on Gilligan. The women planned to launch Gilligan as a missile to Hawaii in order to save themselves.

Ginger was not above seduction with someone who might not have been legally competent to 1) agree to lend tools (and exploited for manual labor) and 2) trick into being launched into a sub-orbital flight. Ginger would argue that Gilligan consented to her advances, but the “consent defense” would fail if a) Gilligan were legally incompetent to authorize the conduct alleged; or b) Gilligan by reason of mental disease, disorder, or defect, was unable to make a reasonable judgment as to the nature or harmfulness of the conduct alleged. HRS § 702-235.

Expert testimony would be required to determine if Gilligan were legally competent. However, given his decision making skills and lack of impulse control with coconut cream pies, there is a strong argument Ginger unlawfully took advantage of Gilligan.