Kong, King of Strict Liability

Still Monkeying Around After 85 Years

In the original King Kong, an exuberant Carl Denham captured King Kong and brought Kong back to New York City. The former ruler of Skull Island was reduced to a shackled vaudeville act.

The box office from the opening night was $10,000 (roughly $189,056.06 adjusted for inflation). It appeared Denham was going to be very commercially successful, however, Denham’s show came to a violent halt after Kong was enraged by flash photography, resulting in a rampage across New York. The mayhem included Kong: dropping a woman out of a window who he mistook for Ann Darrow; picking a man up, biting him, and then dropping the unlucky pedestrian; knocking down the tracks for an elevated train, causing a full train to crash, followed by Kong smashing the train car with the commuters inside; and extensive property damage.

Plus a giant dead gorilla at 350 5th Avenue.

Carl Denham’s Liability

The lessor known 1933 Son of Kong begins with Denham being the defendant in eleven lawsuits and a grand jury about to issue an indictment against him. Denham escapes New York on the SS Venture, trying to avoid liability.

That $10,000 box office would not be enough to pay off all the plaintiffs.

Two observations: First, Song of Kong is absolutely right as a plot device that people would sue Carl Denham for King Kong’s rampage. Secondly, Denham’s escape from New York would not eliminate his liability. The plaintiffs’ could seek default judgments against Denham after they meet the notice requirements for Denham’s failure to defend himself.

Denham would be strictly liable for the damage caused by King Kong. It is well established in New York that “one who keeps wild animals on his premises must see to it at his peril that they do no damage to others.” Stevens v. Hulse, 263 N.Y. 421, 423-24, (1934). Wild animals are presumed to be vicious. Baugh v. Beatty, 91 Cal. App. 2d 786, 791, 205 P.2d 671 (1949). Moreover, a monkey is a wild animal (ferae naturae). Garelli v. Sterling-Alaska Farms, 25 Misc.2d 1032 (Supreme Court, Queens Cty., N.Y. 1960).

A court would find that Denham had a legal duty to protect people from King Kong in the theater. First, there is no question that Kong is a “wild animal” and would be presumed to be vicious as a matter of law. As such, Denham had a duty to keep patrons safe from Kong. The failure of the “chrome chains” to restrain Kong were the reason for the giant ape’s rampage across Manhattan. As such, the following damage from Kong’s escape would would fall on Denham for a wild animal causing death and destruction.

Denham might have an argument that if he had secured a charter from the legislature (presumably the state or city) for keeping King Kong for educational and entertainment purposes, then he would not be strictly liable for Kong’s damage, but held to a standard of negligence. Guzzi v. N.Y. Zoological Soc’y, 135 N.E. 897 (N.Y. 1922). Whether or not it was reasonably foreseeable the chains could not restrain Kong, or knowledge of how Kong would respond to flashbulbs, could change the outcome of lawsuits against Denham. However, it is unlikely Carl Denham did any sort of paperwork before King Kong’s Broadway premier.

After the events in Son of Kong, Denham’s treasure would be needed to pay off his default judgments. He likely had his bank accounts garnished and assets seized. If he had any money left over, he would need it for a criminal defense attorney. The case of Gideon v. Wainwright establishing that states had to provide criminal defendants the right to counsel was not until 1963.

King Kong was the Victim

Why do we care about an 85 year old movie about a giant ape? How is it people connect with a “creature” brought to life by stop motion animation?

One answer is King Kong is the victim. Carl Denham had a get rich quick scheme that removed Kong from his home. Kong goes from the apex predator of Skull Island to involuntarily conscripted Broadway act. Moreover, the revolutionary visual effects enabled movie goers to develop an emotional attachment to King Kong from his expressive features. Whether Kong was fighting dinosaurs or rampaging across New York, the audience have a character they can connect with on a human level. What happened to King Kong was not his fault; Kong was the victim of shortsighted greed. That is a timeless injustice that everyone can understand.