Can the Black Widow sue Disney for creating a hostile work environment? And no – I’m not asking because of the movie itself (or the offensive remarks made her co-stars), but the apparently deliberate decision to exclude the Black Widow from the merchandising.
It’s an issue that’s all over Twitter right now (check out #wheresnatasha and #wheresblackwidow): Black Widow is conspicuously missing from the Avengers toys, tee shirts, and other goodies. If you search for Avengers on Target.com, for example, you wouldn’t even know that Black Widow was in the movie (which has caused me to rethink my devotion to all things Target). The Hulk himself even spoke up about this problem on Twitter:
And she isn’t being excluded because she’s not one of the leads. Both the plot and the promotions show that she is on equal footing with the guys (although, as we learned in the Sony hack, her salary may be lower because of her sex). So any argument that the Black Widow isn’t central to the plot of the Avengers movies is both incorrect and just plain offensive. And yet, somehow, she’s excluded from the toy team. And what’s the only difference? She’s not a guy.
And now we learn that it’s not just exclusion but actual outright replacement. The powers that be at Disney and the toy makers have decided to replace Black Widow on her own helicopter with two of the male characters instead. This goes beyond offensive to outrageous. To actually have your history wiped out and replaced is something that has happened to women for centuries but I thought wouldn’t happen in 2015.
But this is why we have labor laws: to prevent these kinds of problems in the real world, because as the outrage on Twitter shows, exclusion hurts. So women (and other protected classes) can bring hostile work environment claims if they haven been excluded, ostracized, or isolated based on their sex (or other protected status, such as race or age). See, e.g., Waldo v. Consumers Energy Co., 726 F.3d 802, 818 (6th Cir. 2013) (recognizing that ignoring and ostracizing a coworker, if based on “gender-based animus,” can give rise to a hostile work environment claim).
Why is it happening right now? The conventional wisdom is that Disney doesn’t think they need to sell to girls because girls buy their princess stuff. And, presumably, because they think girls aren’t into “geek” culture. That second point is demonstrably wrong. And the first point is short-sighted. My daughter, for example, loved Disney princesses when she was younger but lost complete interest in them by the age of five. Now, at eight, she loves the Black Widow and was so happy to see the Scarlet Witch (spoiler!) join the Avengers. She even said, right in the middle of the movie, “now there are two Avengers like me!” As soon as the movie was over she asked for Black Widow and Scarlet Witch action figures to fight with and would gladly wear a tee shirt with either woman on it. My eleven year old son, on the other hand, enjoyed the movie but had no interest in getting any Avengers-branded merchandise.
So Disney’s sexism is not only hurting women of all ages (especially little girls like my daughter), but they’re also losing out on potential customers. The lack of women in action roles on screen, and in toys offscreen, is something I’ve noticed for many years now. Unfortunately, my daughter has now noticed it as well. Fortunately, others have seen this problem too and are speaking up. Hopefully, Disney and Marvel will catch on soon and stop with this (mindless? blatent?) sexism. Otherwise, I’d love to give the Black Widow her day in court against her employer!
Marci Stahl, Esq., a [fictional] attorney at the [fictional] “Big Law Firm” Landman & Zack, is a case study of attorney ethics on Marvel’s Daredevil series on Netflix.
Landman & Zack is the mythical law firm we heard about in law school. First year associates probably are paid $190,000 a year, have to bill 720 hours a month, and represent morally ambiguous clients, like a Japanese whaling company. Some poor lawyer has to say with a straight face, “My client is simply conducting research, tasty research,” in a defamation and harassment suit against environmental activists. These lawyers learn to live without having a reflection thanks to suits made from endangered species. For the lucky few who do not have a nervous breakdown, they have the option to go to the Carousel at age 35, with the hopes of becoming a junior partner.
Enter Marci Stahl, Esq., the former girlfriend of Foggy Nelson. Ms. Stahl admits to “Foggy Bear” Nelson that Landman & Zack represents Wilson Fisk, the crime lord who is not yet called The Kingpin. Fisk is the law firm’s highest billing client.
Nelson confronted Stahl that her firm was aiding Fisk in a criminal enterprise. Furthermore, Nelson went so far as to say Stahl had lost her soul at Landman & Zack. Stahl responds by sneaking Fisk’s client files out of Landman & Zack and giving them to the law firm Nelson & Murdock.
Marci Stahl’s actions are a piñata of ethical issues. Attorneys have a duty to counsel a client to NOT engage in illegal conduct. New York Rules of Professional Conduct 1.2(d). Furthermore, a lawyer may refuse to participate in conduct the lawyer believes to be unlawful. New York Rules of Professional Conduct 1.2(f). As stated in comment 10 to Rule 1.2(d), lawyers are to avoid assisting a client by preparing a fraudulent document or concealing wrongdoing. As such, a lawyer should advise a client if the requested conduct would violate the law. Id. If a client will not change their conduct and the lawyer’s participation would violate the law, the lawyer should withdraw from the case. Id. Moreover, there are cases where a lawyer would have to disaffirm any documents prepared for the client. Id; Rule 1.6(b)(3); Rule 4.1, Comment [3].
Ms. Stahl turned over client material to an adverse law firm. This is highly problematic for her, because a lawyer should not knowingly reveal confidential information. New York Rules of Professional Conduct 1.6(a) and NY CLS CPLR § 4503. A lawyer can reveal confidential information under the following conditions:
1) To prevent reasonably certain death or substantial bodily harm;
2) To prevent the client from committing a crime;
3) To withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
4) To secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
5)(i) To defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct;
New York Rules of Professional Conduct 1.6(b).
Ms. Stahl turned over information to Nelson & Murdock without the knowledge of her firm or consent of her client. The information was clearly “confidential.” However, it was also evidence of racketeering. As recognized by New York Courts, the “intent to commit a crime is not a protected confidence or secret.” People v. DePallo (2001) 96 N.Y.2d 437, 442.
The “Crime-Fraud” exception to attorney work product doctrine is not “intended to shield an attorney’s or his agent’s fraud or otherwise impede investigation of criminal activity.” In re Grand Jury Subpoenas Served upon John Doe (Sup.Ct. 1988) 142 Misc.2d 229, 232. The purpose of keeping attorney work product confidential is “to protect from disclosure to party adversaries the attorney’s mental thought process in determining the significance of evidence and the strategies and arguments he has developed in preparing a case for trial.” Id; 3A Weinstein-Korn-Miller, NY Civ Prac para. 3104.43, at 31-157.)
Landman & Zack’s work product is likely key evidence in the racketeering charges against Wilson Fisk. The fact lawyers assisted a criminal enterprise would make them part of a conspiracy, and subject to immediate disbarment if convicted. Attorneys have been charged in the past with racketeering in violation of 18 USCS § 1962(c), so this is not the stuff of comic book stories. See, Wade v Gaither (2009, DC Utah) 623 F Supp 2d 1277.
Stahl’s best argument for turning over client confidential material to Nelson & Murdock is that she engaged the firm to secure advice on compliance with her ethical duties and whether her client had broken the law. While this argument is problematic since the firm Nelson & Murdock had been adversarial to Wilson Fisk, thus on its face should violate Stahl’s duty to loyalty to Fisk, it is the least bad position for her. The better plan would have been turning the material over to the FBI in order to prevent her client from committing more crimes. However, with the way anyone who opposed Wilson Fisk kept ending up dead, it was objectively reasonable for Stahl to work with another law firm.
Tony Stark in Superior Iron Man is being very creepy with drones flying over San Francisco for “security.” The City by the Bay has become an Orwellian parable, thanks to the great story by Tom Taylor. While crime is low to non-existent, Stark states that because of the drone surveillance, people of San Francisco were “thinking up really creative ways not to be naked.”
San Francisco has a population of over 835,000 people. Tony Stark could be sued in the largest invasion of privacy case of all time.
Invasion of Privacy in California
California might be short on water, but we are rich in privacy laws. The California Constitution states that, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal Const, Art. I § 1.
The state of California has enacted laws that would give anyone who is recorded by Stark’s drones a cause of action against him for invasion of privacy. Tony Stark has arguably subjected himself to civil liability suit based on the following:
A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.
Cal Civ Code § 1708.8(b), emphasis added.
What does this mean? A Stark Drone hovering outside your bedroom window recording your every moment would be an invasion of privacy.
Damages could be up to three times the amount of any general and special damages that are proximately caused by the violation of this section. Cal Civ Code § 1708.8(d). Moreover, punitive damages could be an option (and given the fact surveillance is constant AND naked photos of everyone, punitive damages should be a given). Id. Additionally, there is a civil fine of at least $5,000, but not more than $50,000, for each plaintiff. Furthermore, if Tony Stark commercialized the record images with a voyeur website, he would be subject to disgorgement of any profits. Id.
Tony Stark might be rich, but if he was fined $50,000 for each of the 835,000 people in San Francisco, Stark would likely be bankrupted.
Stark might argue the Terms of Service for his App gave him the right to record people. This likely would fail, given the severity of the intrusion. Moreover, no Judge will think, “Sure, you can click away all person freedom in an App Terms of Service Agreement.”
There is also the issue of recording naked children. For Tony Stark to be guilty of child pornography, the images would need to be of children engaged or simulating sexual conduct. Cal Pen Code § 311.11. Law enforcement can add that issue to the search warrant.
Tony Stark’s attorneys should strongly advise against the use of drones to record people in San Francisco. A very good [fictional] attorney could prove each element of the jury instructions for invasion of privacy:
That the people had a reasonable expectation of privacy in their homes;
That Tony Stark intentionally intruded into their homes to remotely record them with drones and technology in violation of Cal Civ Code § 1708.8(b);
That Stark conduct of recording each plaintiff at home is highly offensive to a reasonable person;
That each plaintiff was harmed, such as trying to find ways not to be seen naked; and
That Stark’s Drones were a substantial factor in causing the harm.
Tony Stark’s drones are creating significant civil and potentially criminal liability for the rogue super-hero. Stark’s attorneys should strongly recommend he cease all drone operations. Moreover, destroy all hard drives containing recorded images before Stark can reasonably anticipate litigation and be subject to the duty to preserve.
There are some jobs so inherently dangerous that there is only the knowing assumption of risk for engaging in the activity. One such job is being a Red Shirt.
In Star Trek, The Original Series (TOS), wearing a Red Shirt was like being marked for death.
The three seasons of Star Trek had 43 Red Shirts die (a total of 59 crew members “died” in TOS).
That means over 70% of mission fatalities in the series were Red Shirts (Thank you Matt Bailey at Site Logic for the excellent research & analysis).
Those statistics certainly give new meaning to the Vulcan saying of “live long and prosper.”
To put these numbers in perspective, other fictional characters with an abnormally high mortality rate include:
1) Serving as the commanding officer of the Battlestar Pegasus (Admiral Cain, Commander Fisk and Commander Garner were all killed in a matter of several episodes on Battlestar Galactica); and
2) A mom in a Disney movie.
Need evidence? Just ask Bambi. Or Nemo. Or Belle. Or Cinderella. Or Ariel. Or Jasmine. Or Snow White. Or Tod (from The Fox & The Hound). Or Mowgli (from The Jungle Book).
And may God have mercy on a Disney mom in a red shirt.
This was the only time a female Red Shirt died on an away mission with Captain Kirk.
Killed by Plant: One Red Shirt met his unfortunate end after being shot by a “Pod Plant” in The Apple.
The episode also included exploding rocks, lightning and tribal villagers killing Red Shirts.
Vaporized:There is no shortage of Red Shirts who are shot with a laser beam and vaporized. Notable examples include Nomad killing three Red Shirts in The Challenging.
Vampire Cloud:A Dikironium Cloud was an alien that absorbed every red blood corpuscle from its Red Shirt victims in Obsession.
Beamed into Space by Sadistic Children: Get your phaser out if there are children performing a creepy chant “Hail, hail, fire and snow, call the angel, we will go, far away, for to see, friendly angel come to me.” Bad things are about to happen.
And the Children Shall Lead saw the deaths of two Red Shirts who were beamed into space, thanks to the pack of children in desperate need of therapy who used their mental powers to make the crew believe they were in orbit around a planet.
Killed by Alien: There are many incidents of aliens killing Red Shirts. Just take the death of the Security Officer by the Horta in The Devil in the Dark.
The Horta was the last of her race and laying eggs to repopulate her species. Construction threatened her children, prompting the mother to defend her offspring. While definitely not an evil life form, a Red Shirt was killed by the Horta’s highly corrosive acid.
Requirements for Assumption of Risk
For Starfleet to limit liability for people being turned into cubes or beamed into space, Starfleet recruits need to know the possible risk to their lives.
Assumption of Risk generally requires an express agreement (there can be implied assumption of risk from conduct), knowledge of the risk, and voluntary assumption of the activity (see, generally Assumption of Risk).
Military personnel and emergency rescue professional understand their jobs have risks that might kill or seriously injury them (this in the broadest sense is known as The Fireman’s Rule). However, just because firemen, paramedics and police know their job has the risk of death, does not mean there are not situations where they can recover from a part for their injuries. For example, under California Civil Code § 1714.9:
(a) Notwithstanding statutory or decisional law to the contrary, any person is responsible not only for the results of that person’s willful acts causing injury to a peace officer, firefighter, or any emergency medical personnel employed by a public entity, but also for any injury occasioned to that person by the want of ordinary care or skill in the management of the person’s property or person, in any of the following situations:
(1) Where the conduct causing the injury occurs after the person knows or should have known of the presence of the peace officer, firefighter, or emergency medical personnel.
(2) Where the conduct causing injury violates a statute, ordinance, or regulation, and the conduct causing injury was itself not the event that precipitated either the response or presence of the peace officer, firefighter, or emergency medical personnel.
(3) Where the conduct causing the injury was intended to injure the peace officer, firefighter, or emergency medical personnel.
Cal Civ Code § 1714.9
The “Fireman’s Rule” is defined under case law as “– a person who, fully aware of the hazard created by the defendant’s negligence, voluntarily confronts the risk for compensation.” Ries v. Lee, 115 Cal. App. 3d 332, at *334-335 (Cal. App. 2d Dist. 1981).
Case law provides excellent examples of when barring recover is proper on assumption of risk and when it is not. Consider the following:
Police officer who was in a high-speed chase was barred under the “fireman’s rule” from recovering damages he sustained during his pursuit of the driver in the course of his occupation. Ries v. Lee, 115 Cal. App. 3d 332 (Cal. App. 2d Dist. 1981).
A car driven by a second suspect hit a police officer after he arrested the first suspect. The police officer could recover, because assumption of risk for which the officer must face based on the public policy “. . . was not intended to be so all inclusive as to encompass intentional torts directed against the fireman or officer while trying to perform his duties after he has been called to the scene of a law violator.” Shaw v. Plunkett, 135 Cal. App. 3d 756, 759-760 (Cal. App. 1st Dist. 1982), citing Krueger v. City of Anaheim (1982) 130 Cal.App.3d 166.
Dog groomer was not barred from recovery after being bitten by a dog, because the beast remained at all times under the exclusive control of defendant, who had uncaged it and was holding it on a leash. The plaintiff had not determined if she would be able to groom the dog due to its vicious behavior and the dog remained in defendant’s exclusive control at the time of the bite. Prays v. Perryman, 213 Cal. App. 3d 1133, 1137 (Cal. App. 2d Dist. 1989).
Train employee was not barred from recovery for injuries he received after riding a switch engine between his areas of employment, because 1) riding the engine between the two places of employment had been customarily done by the employee and other employees, 2) such practice was not forbidden by the employer, and 3) riding the switch engine was the only method of travel between those points was along the railroad tracks. Associated Indem. Corp. v. Industrial Acci. Com., 18 Cal. 2d 40, 44-45 (Cal. 1941).
To Boldly Go…On An Away Team
The mission of Starfleet is to “seek out new life and civilizations” and “boldly go where no one has gone before.”
By the very nature of Starfleet’s mandate, there is risk with going boldly off into the unknown of space.
Moreover, there is no guarantee that every new life form and civilization is going to be friendly.
Or like the color red.
So, what does this mean for our brave Red Shirts?
Given a 70% mission fatality rate, they should recognize becoming a Security Officer or Engineer is profoundly dangerous (And possibly a bad life choice).
Considering a career in Science, Medical, or Command statistically looks safer (It is worth noting that the Lt. Areel Shaw, the only Starfleet lawyer in The Original Series, wore red).
However, Blue and Yellow Shirts have had been murdered by possessed shipmates as in Wolf in the Fold or killed with giant spears in The Galileo Seven. No career choice is ever totally safe, especially one that voyages into the unknown.
The Needs Of The Many Outweigh The Needs of the Few (in Red Shirts)
Red Shirts arguably are fully aware there are hazards in “boldly going where no one has gone before,” and voluntarily confront those risks by joining Starfleet. While that would certainly be true for “normal” injuries sustained in the line of duty, it is not a universal constant.
There are situations when a Red Shirt (or their surviving family) could sue a tortfeasor for injuries they have sustained.
The issue would be whether the injury was sustained in the “normal” course of Starfleet service (such as shorting out circuits in a Jeffries Tube or a battle with Klingons) or when someone intentionally created a dangerous situation directed against the Red Shirt while they were performing their duties. Examples of intentional conduct would include a scientist harboring a creature that will suck the salt out of people (The Man Trap) or not stopping a war game with a computer that vaporizes Red Shirts and destroys other Starships (The Ultimate Computer).
Finally, considering all of the Red Shirt fatalities based on intentional conduct, it is surprising that no plaintiffs law firms were created specializing in Red Shirt tortuous injuries.
The 1975 film Jaws is truly the first summer blockbuster. The film launched the career of Steven Spielberg as the grandmaster of epic adventure movies that could make people jump out of their seats. It also set Spielberg’s precedent for including a shooting star in his films.
And while a movie about a shark can result in unfortunate lawyer jokes, there is a very good question the film poses: Was Mayor Larry Vaughn and the Town of Amity negligent for keeping the beaches open after the first shark attack? Would the Mayor and Town of Amity have any defenses to a negligence lawsuit?
It’s time to set sail on a shark hunt and review the facts:
Let’s Go Swimming
The first victim in the film is Chrissie Watkins, a college girl who went skinny dipping on Amity Island after attending a beach party in May 1973.
The imaginary deposition exhibit of the fictional Chrissie Watkins’ Twitter profile, if Jaws was retold with social media.
Chrissie was accompanied to the water’s edge by Tom Cassidy, another college student who grew up on Amity. Tom is spared the fate of being a meal for a shark, due to the fact he was too drunk to go swimming. This might be the only time where drinking kept someone from dying (the odd corollary is that skinny dipping can be fatal). Unfortunately for Chrissie, Cassidy was passed out from the drinking and unable to hear Chrissie’s cries for help, preventing him from rendering any aid.
This Was No Boating Accident
The original autopsy report stated Chrissie’s cause of death was from a shark attack. This promptly causes the Chief of Police to close the beaches.
21st Century update to the Chrissie Watkins autopsy report.
However, the Mayor countermands the Police Chief’s order to close the beaches. Moreover, the pathologist does an about face and changes his report to say Chrissie Watkins died of a boating accident.
There is an intense exchange between the Mayor and Police Chief over the importance of keeping the beaches open and the danger of yelling “shark” to the Island’s economy.
You Knew It Was Dangerous
Against the Police Chief’s wishes, the beaches are kept open. And on June 29, in view of the public, a dog named Pippet and a boy named Alex Kintner are victims two and three.
The very public death of Alex Kintner launches a major shark hunt by all the wrong people going out on boats for the bounty offered by his family (Remember, the carry capacity of a boat is length times beam, divided by 15. This rule is grossly ignored by many of the amateur shark hunters). In spite of horrifically poor seamanship, the want-a-be shark hunters actually catch a tiger shark without killing themselves.
What We Are Dealing With Here Is A Perfect Engine, An Eating Machine
Chief Brody brings in a shark expert named Matt Hooper, who contradicts the autopsy report saying Watkins died of a boating accident. Additionally, Hooper wants to cut open the tiger shark to find out if it was the shark that killed Alex Kintner.
The Mayor refuses to verify if the tiger shark indeed killed Alex Kintner. However, Brody and Hooper perform an autopsy themselves in the middle of the night to learn there was still a killer shark off Amity Island.
Hooper and Brody set out to sea to find evidence of the shark, only to find Ben Gardner’s chewed up boat. Hooper finds a giant shark tooth during an in-the-water investigation of the boat. However, Hooper dropped the tooth when Gardner’s decapitated head floated by his face.
Despite being confronted with Brody and Hooper’s report, the Mayor keeps the beaches open for the 4th of July, with additional lookouts for sharks.
4th of July Attack
As one can expect, the 4th of July goes horribly wrong, with a sailor in a dingy being killed and the Police Chief’s son being hospitalized for shock after a close encounter with the shark.
This final attack gave Brody the ability to force the Mayor to authorize Brody to hire Quint the shark hunter.
All Along the Shark Tower
The most on point case to the facts from Jaws is the 1976 case of Wamser v. St. Petersburg, 339 So. 2d 244 (Fla. Dist. Ct. App. 2d Dist. 1976).
In Wamser, a minor was attacked by a shark at a public (and free) city beach. The boy was attacked by a shark while swimming with his father approximately 25 feet from shore and approximately 15 to 20 feet north of the lifeguard stand. Wamser, at *245. The father and son knew there were sharks in the Gulf of Mexico, but they did not know of any shark attacks at the beach. Id.
The beach lifeguard was about to investigate a shark sighting when the victim was attacked by the shark. Wamser, at *245.
Deposition testimony showed the District Recreation Supervisor had a 24 year history with the city beach. He had never heard of a shark attack over his employment with the city. Id.
Two lifeguards also testified that they had never seen a shark in the area and any reports had turned out to be porpoise sightings. Id.
Having no Florida case on point for injuries caused by wild animals in their natural habitat, the Court relied on a Texas case and the Restatement of Torts.
The general rule is “the law does not require the owner or possessor of land to anticipate the presence of or guard an invitee against harm from animals ferae naturae unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality.” Wamser,at *246, citing Gowen v. Willenborg, Tex.Civ.App.1963, 366 S.W.2d 695; Williams v. Gibbs , 1971, 123 Ga.App. 677, 182 S.E.2d 164; Restatement of the Law of Torts, Ch. 20, § 508; 3A C.J.S. Animals § 174.
Based on the above, the Court held the following:
In the instant case there was nothing to indicate that the city had knowledge of a shark hazard. To the contrary, the record shows that the attack at a previously safe beach was unexpected. In the absence of reasonable foreseeability of the danger, there was no duty on the part of the city to guard an invitee against an attack by an animal ferae naturae, or to warn of such an occurrence.
Nor was the city under a duty to obtain information from local agencies to determine the frequency with which sharks appeared in and around the beach area, since there was no attack on record in the history of the beach to indicate the necessity for obtaining such information.
Wamser,at *246.
Cage Goes in the Water, Man Goes in the Water, Shark’s in the Water (And A Lawyer is at the Courthouse)
Given the number of victims and case law pertaining to shark attacks, we can expect the following findings of liability:
Chrissie Watkins: No liability, based on Wamser v. St. Petersburg, 339 So. 2d 244 (Fla. Dist. Ct. App. 2d Dist. 1976). There was no prior evidence of shark attacks in the area, thus no threats to put the Town on notice of a possible danger. To quote Warmser, “In the absence of reasonable foreseeability of the danger, there was no duty on the part of the city to guard an invitee against an attack by an animal ferae naturae, or to warn of such an occurrence.”
Alex Kintner: Big time liability for wrongful death. After the death of Chrissie Watkins, the Town was on actual notice of a threat of a shark. The Mayor’s act to keep the beaches open and arguably force the pathologist to change his findings from “shark attack” to “boating accident” could result in a finding of gross negligence, because it demonstrated a conscious and voluntary disregard of the need to use reasonable care by not closing the beaches and warning swimmers about sharks. There arguably is criminal liability for the Mayor’s actions for reckless disregard for life that resulted in a child being eaten alive.
Pippet the Dog: Depending on state law, likely able to find the owner was owed compensation for the value of his dog on a destruction of property theory.
Ben Gardner: No liability on the doctrine of assumption of risk. Gardner went out looking for a giant shark for the purpose of killing it. This undertaking is inherently dangerous and was done under his own free will.
Sailor on 4th of July: Town likely would be liable for the death of the sailor, based on the same theory as Alex Kintner. Moreover, there was notice there was still a man-eating shark in local waters and the Mayor kept the beaches open.
There might be defenses for the town, because of the following:
1) The public was on notice of a shark threat after the first two attacks, so arguably the sailor assumed the risk of going out on the water;
2) There were shark watchers out, also putting the sailor on notice of the threat;
3) Arguably, the Mayor could claim he acted reasonably, because the Mayor never saw the large shark tooth from Ben Gardner’s boat (only Hooper saw it) and that the tiger shark hard been found.
However, the defenses might not hold water, given that Hooper did report the tooth to the Mayor and that Gardner had been killed by a shark. Moreover, the Mayor refused to have an autopsy on the tiger shark, arguably showing disregard for an expert’s opinion. Furthermore, Hooper’s opinion that the tiger shark did not kill Kintner was confirmed by the unauthorized autopsy before the 4th of July attack.
Quint the Grizzled Shark Hunter: As with Ben Gardner, assumption of risk should preclude any recovery from surviving family members.
Farewell and Adieu Fair Spanish Ladies
Jaws did not inspire me to become a lawyer, but it certainly has wonderful legal issues.
While not every victim can be considered a wrongful death case, several of the victims’ families would be entitled to compensation for the Mayor’s actions in responding to the shark attacks.
The blood in the water at any trial would cause a jury damages awarding frenzy based on the following:
1) The Town being on notice of the shark threat;
2) Changing the autopsy report from “shark attack” to “boating accident”;
3) The appearance the Mayor “influenced” the pathologist to change his report; and
4) Keeping the beaches open with the knowledge of the man-eating threat.
The case of Amity would be very different than Wamser v. St. Petersburg, because of the knowledge of the threat after the first attack on Chrissie Watkins. However, recovery would hinge on whether the victim was an invitee at a public beach or someone who assumed the risk by going on a shark hunt.
Additionally, given the risk in hunting sharks (an endangered species best left alone), I encourage those interested in oceanography to follow my example and simply have a clown fish. Remember, there are no known reports of clown fish attacks resulting in the death of a human being.
