Flash Gordon Inflicts Emotional Distress All Around

By

-

January 18, 2013

That’s right. The slogan for Flash Gordon, the epically bad 1980 sci fi movie, was actually “Get ready to kick some Flash.” That alone causes me emotional distress. Shouldn’t Flash be the one doing the kicking – not the one being kicked? And that was the best slogan they could come up with? That’s the slogan my son would have picked!

As a kid I never saw the Flash Gordon movie, but we had the book version of the movie (I have no idea why) and I loved pouring over the pictures of Ming the Merciless, the bizarre birdmen, and the women in beautiful dresses. (I was a kid and we only had CBS – I was pretty hard up for entertainment!).

My baby brother, however, is fascinated with the movie and insisted that I watch it with him over the holidays this year and I was blown away by how fantastically awful it is (the soundtrack by Queen is its only redeeming quality). Surely Mystery Science Theater 3000 spoofed it, right? The hero who can defeat the bad guys if he has a football-shaped object in his hands. The evil overlord with a ring of seducton. The comically slow battle between the spaceship and the feeble bird men. I’m just impressed that Timothy Dalton was able to overcome that movie and go on to become Bond (for a little while).

(No need to watch the entire movie – the trailer is much better…)

So while the comic strip was good enough to inspire Star Wars, the movie version was awful. But a bad movie isn’t grounds for a lawsuit (unless you’re one of the financial backers). One scene in the movie, however, is similar to an issue that’s come up in lawsuits several times. In a handy plot twist, Flash Gordon is executed by order of Ming and poor Dale has to watch him die. Later, of course, it turns out that Flash’s death was faked and he still lived! So the question becomes, could Dale sue somebody for believing her loved one was dead?

She could – although she probably wouldn’t win. Over the years people have sued for the distress they suffered when informed that loved ones had died when, in fact, their loved ones hadn’t died. These suits have met with mixed success.

In one suit, where parents were informed that their teenage daughter had died in a car crash, the Kansas Supreme Court held they couldn’t recover because they couldn’t show that the emotional distress they suffered was solely because of the mistake about the daughter’s death. Instead, the distress may have also been caused by the accident itself and their daughter’s problems afterwards. See Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 278, 662 P.2d 1214, 1222 (Kan.,1983).

On the other hand, a New York court allowed a daughter to recover for the emotional distress suffered when a hospital mistakenly told her that her mother had died. The key to the court’s liability in that case, however, was the hospital’s duty to advise the proper next of kin of the death of a patient. See Johnson v. State, 37 N.Y.2d 378, 379-380, 334 N.E.2d 590, 59, 372 N.Y.S.2d 638, 639 (N.Y. 1975).

In all of the sitautions, however, the suit has to be brought by an immediate family member. While Dale clearly had strong feelings for Flash, they weren’t even dating, much less married or otherwise related. So Dale, like the rest of us, is out of luck. We all suffered emotional distress watching Flash Gordon (or, in her case, watching Flash “die”), but we can’t sue anybody for the pain we suffered.

Hansel and Gretel: A Lawyer’s Fairy Tale

By

Josh Gilliland

-

January 15, 2013

0

The fairy tale of Hansel and Gretel is not one that ends with children growing up to be witch hunters, but learning to fight evil with something more powerful than any witchcraft: civil litigation and criminal prosecution.

Hansel and Gretel at its core has more legal issues than candy on a gingerbread house. Let’s follow the legal breadcrumbs.

Counting Pebbles: The Factual Overview

Once upon a time… a father, who was a down on his luck wood cutter, was unable to provide for his children and wife. The step-mother had a creative solution to the family’s financial problems: Leave the Children in the Woods.

“The children must go, we will take them farther into the wood, so that they will not find their way out again; there is no other means of saving ourselves!”

The Step-Mother, Hansel & Gretel

In their quest to be parents of the year, the father gave in to his wife’s demands and left his children in the forest to die, not once, but twice.

The abandoned children’s situation went from bad to worse with the discovery of a gingerbread house occupied by a witch. After being captured, Hansel was kept in a stable to be fattened up for slaughter, while Gretel was fed only crab-shells and exploited for child labor to help murder her own brother.

Gretel killed the Witch, who was planning to bake Gretel, by trapping the Witch in a very large oven, burning the Witch alive.

The siblings escaped with the Witch’s pearls and precious stones, ultimately finding not only their way home to their father. As an added bonus, Hansel and Gretel’s step-mother had died in their absence.

Possible Civil & Criminal Causes of Action Against the Parents

Virtually every state has laws on parents providing for children. California law requires that “the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.” Cal Fam Code § 3900.

Hansel and Gretel’s parents had a legal obligation to support their children. This would require not just feeding the children, but not willfully leaving them in the woods to fend for themselves. Granted, the step-mother might not have legally adopted Hansel and Gretel, but she would be a legal guardian with the duty to not harm the children.

Leaving Hansel and Gretel in the woods overnight with the intent to abandon them would be child endangerment in any state. California defines child endangerment as follows:

(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.

Cal Pen Code § 273a.

A District Attorney could prove beyond a reasonable doubt that leaving Hansel and Gretel in the woods would meet every element of California Penal Code § 273a(a) with the many harms that could have befallen the children and ultimately did with the Witch.

At a minimum, Hansel and Gretel’s father and step-mother failed to provide for their children and willfully endangered them by leaving the children in the woods. There is simply no necessity defense to save oneself by leaving offspring to die in the woods. Moreover, civil causes of action against the parents would run the gambit from negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and conspiracy.

Season of the Witch

The old woman had only pretended to be so kind; she was in reality a wicked witch, who lay in wait for children, and had only built the little house of bread in order to entice them there. When a child fell into her power, she killed it, cooked and ate it, and that was a feast day with her.

Hansel & Gretel

A civil litigator would act like a kid who found a candy gingerbread house in bringing a case against The Old Witch. Additionally, a criminal trial would rival that of OJ Simpson, Casey Anthony, and the Lindbergh baby rolled into one on steroids.

The Civil Action

The civil action against the Witch would focus on the following facts:

The Witch Owned a Gingerbread House to Entice Children

The Witch kept Hansel in a stable, well-fed, with the intent of eating him

Gretel was fed only crab-shells

Gretel was forced to work for the Witch

The Witch planned to kill and eat both children

California law does not specifically address cannibalism or attempted cannibalism, however, it is a form of Battery (along with Murder and Desecration of a Corpse if the act is completed). To prove Battery, Hansel and Gretel would have to show that 1) the Witch touched them with the intent to cause harm; 2) that Hansel and Gretel did not consent to the touching; and 3) that Hansel and Gretel were harmed by the Witch’s conduct. 1-13 California Forms of Jury Instruction 1300.

Hansel and Gretel could prove all of the elements for Battery from 1) the Witch captured them; 2) Hansel was forcibly held in a stable; 3) the Witch shook Gretel awake after imprisoning Hansel; and 4) and the Witch’s physical conduct caused harm, not just physical, but likely emotional as well from their imprisonment.

Hansel and Gretel could also prove a claim of Intentional Inflectional of Emotional Distress because of the Witch’s willful conduct. The elements of this claim are:

1. The Witch engaged in a willful violation by kidnapping the children with the intent to eat them;

2. The Plaintiffs suffered serious emotional distress; and

3. The defendant’s willful violation of statutory standards was a cause of the serious
emotional distress.

BAJI 12.80.

The facts to prove the intentional infliction of emotional distress would include the imprisonment in the stable, feeding Gretel crab-shells, various insults and the Witch’s statements on whether Hansel was fat enough to be eaten.

The Criminal Trial

A District Attorney would melt the Witch with a bucket of water for her crimes against the children. The main charges would include Kidnapping, Aggravated Mayhem, Torture, and Attempted Murder.

Kidnapping is defined under California law as follows:

(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

(b) Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping.

(c) Every person who forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person, is guilty of kidnapping.

(d) Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping.

(e) For purposes of those types of kidnapping requiring force, the amount of force required to kidnap an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.

Cal Pen Code § 207.

The Witch purposefully had a gingerbread house with candy to entice unsuspecting to come onto her property to be captured and eaten. This action would fall under subsection (b); holding Hansel in the stable and threatening Gretel would violate subsection (a).

The Witch could also be charged with aggravated mayhem, because of the extreme indifference she showed to the children: Hansel was fattened in a stable to be slaughtered; Gretel was fed only crab-shells and underwent physical and emotional abuse for over a month while in the criminal custody of the Witch.

Aggravated Mayhem is defined as follows:

A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole.

Cal Pen Code § 205.

The State could prove under the facts the Witch’s actions manifested extreme indifference to the physical or psychological well-being of another person and would warrant a guilty verdict.

The same facts that demonstrate Aggravated Mayhem would also support a finding the Witch tortured Hansel and Gretel. Torture is defined as follows:

Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.

The crime of torture does not require any proof that the victim suffered pain.

Cal Pen Code § 206.

There is no question the Witch planned to murder Hansel and Gretel for food. Thus, this raises the charge of attempted murder.

To prove the Witch was guilty of attempted murder, the State would have to prove that 1) the Witch took at least one direct but ineffective step toward killing Hansel and/or Gretel and 2) the Witch intended to kill both Hansel and Gretel. 1-500 CALCRIM 600.

The jury instructions explain a “direct step” as follows:

A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.

1-500 CALCRIM 600.

The Witch had Hansel imprisoned in a stable and fed him with the intent to kill him as a meal. Additionally, the Witch attempted to physically inspect Hansel to see if he was fat enough to be slaughter.

In the case of Gretel, the Witch started the fire in her oven with the intent to bake Gretel alive. All of these actions demonstrated a definite and unambiguous intent to kill, as required by law to prove attempted murder.

Closing Arguments

Hansel and Gretel is about two witches: One witch is a case study in parental gross negligence and malfeasance where a step-mother convinced her husband to leave his children in the woods; the other witch is the traditional version of evil that eats children.

However, no witch is above the law. All of the wrongs inflicted by the parents and the witch would result in civil litigation and criminal prosecution.

My legally geeky wishes for 2013

By

Jessica_alegalgeek

-

January 9, 2013

0

We’re already over a week into the new year and I’m still working on my new year’s resolutions. While I work on those, however, I thought I’d share with you my wishlist of things I’d like to see in the 2013:

1. A good director signing on for Star Wars VII (a few top choices have already turned down the opportunity). I’m trying to stay optimistic – I really am – but I’m beginning to worry that this episode won’t be any better than the last three. If that happens, they (they being George Lucas and Disney) may officially kill my multi-decade love affair with Star Wars.

2. And while we’re discussing movies, can I please beg Joss Whedon to give Wonder Woman another chance? I know he’s very busy, but he’s also one of the most powerful people in Hollywood now, so I’m asking him to use his power to bring back his Wonder Woman movie!

3. On the legal side, I’d love to see some computer-assisted-review programs (a.k.a. predictive coding) that could review for privilege and confidentiality. I know it’s unlikely, but it would be so nice…

4. Meanwhile, on the technical side, why do all of the apps my kids want me to put on my smart phone have to access my location, my messages, phone numbers, etc? Can they please stop making apps that want all of my private information?

5. Back to Hollywood, I wish somebody would try to make a movie or mini-series out of one of Robert Heinlein’s best novels, like The Moon is a Harsh Mistress or The Cat Who Walks Through Walls. Starship Troopers and The Puppet Masters should not be the only Heinlein works given movie star treatment.

6. I want Xena again. Seeing Lucy Lawless play Ron’s love interest on Parks & Recreation is nice, but it really makes me miss Xena. Lucy still looks great and I think a revived Xena show, maybe on HBO or Showtime so they can be edgier, would be amazing.

7. I saw this HipKey debut at CES this week. The idea – that your iPhone will help you keep track of your keys (or kids) – is awesome. But I need a system that works with Droids. It also needs to prevent me from locking my keys in the car. And, if I’m really wishing, I need one that will also help me keep track of the phone itself. Is there an app for somebody who misplaces everything?

8. Community better come back and stay back! I’m worried about how it will hold up, post Dan Harmon, but I’m sure it will still be better than most other things out there and I really miss it!

9. Finally, I’d really love to see somebody wearing a Legal Geeks shirt. Maybe it’s narcissistic, but it would be beyond exciting to see our logo worn by some geek somewhere!

Troubling Tribbles: The Ultimate Invasive Species

By

Josh Gilliland

-

January 4, 2013

0

Just because something is cute and snugly does not mean it isn’t dangerous.

Nothing is better evidence of this then perhaps the most dangerous [fictional] invasive species:

A Tribble from Star Trek.

Tribbles are a purring ball of fur that snuggle and make people feel good, including Vulcans. The creatures were introduced in the Star Trek TOS episode Trouble with Tribbles; returned in the Animated Series episode More Tribbles, More Troubles; had cameos in Star Trek III: The Search for Spock and Star Trek Generations; and appeared again in the Star Trek: Deep Space 9 episode Trials and Tribble-ations.

An invasive species is an animal which is introduced into a completely new environment to the detriment of indigenous species. Examples include Zebra Muscles in the Great Lakes, Asian Carp, or Pythons in Florida.

The US Congress described the dangers caused by invasive species as follows:

When environmental conditions are favorable, nonindigenous species become established, may compete with or prey upon native species of plants, fish, and wildlife, may carry diseases or parasites that affect native species, and may disrupt the aquatic environment and economy of affected nearshore areas;

16 USCS section 4701(a)(2).

Tribbles lack the gross factor of Zebra Muscles or the terror of a 17 foot snake surprising a birthday party in Florida. While it is extremely unlikely Tribbles will play any role in Star Trek Into Darkness, Tribbles would pose a greater environmental threat to an entire planet than any of the current invasive species on Earth.

Tribbles are born pregnant and give birth when fed. While not as messy as getting a Gremlin wet, the mere introduction of a Tribble in an ecosystem would cause an immediate threat to the food supply and cause a Tribble population explosion. Even if hawks, alligators, lions, sharks and every predator on Earth developed a taste for Tribble, they would not be able to keep up with Tribble reproduction.

With that said, Tribbles might be the answer to the problem of world hunger; however, selling humanity on eating cute purring animals would be difficult.

There would also be challenges in mobilizing Tribble slaughterhouses and the industrial capacity to keep up with the rate of reproduction.

The United States Government and States have fought invasive species a number of ways. One is prohibiting conduct that introduces the animals into the ecosystem, such as the discharge of untreated water in the ballast tanks of foreign cargo ships in US waters. Other “hands-on” remedies include adding rotenone (a fish kill agent) to waterways in fighting Asain carp.

The Klingons in Star Trek The Animated Series created a Tribble predator called a Glommer to hunt and eat Tribbles.

Klingons creating a creature to hunt an invasive species carried a fair amount of risk, because they were adding another animal to the environment.

While the Glommer could have been engineered to only eat Tribbles and die when the food supply was exhausted, such a plan is not comparable to adding rotenone to a lake to kill Asian carp. Simply put, there is risk in adding another animal to the mix.

However, the Klingons did send a fleet to destroy the Tribble homeworld (Referenced in Trials and Tribble-ations). This plan for Tribble-cide was more in line with a traditional “fish kill” to eliminate an invasive species…if the invasive species were as cute as baby seals.

The Federation would have several options to control the introduction of Tribbles to Earth.

One option is to outright prohibit ships bringing Tribbles to Earth, much like the United States Congress (and the Coast Guard) prohibiting ballast water from being discharged in US waters from international shipping.

This plan would require Star Fleet’s equivalent of the Coast Guard conducting vessel inspections of star ships in orbit prior to any cargo being sent to the service. There also might be a technical solution of programming transporters to not beam Tribbles to Earth.

Another option is to classify Tribbles as exotic pets that are dangerous wild animals (like a ferret with rabies) and order the animals destroyed. (See, Raynor v. Maryland Dep’t of Health & Mental Hygiene, 110 Md. App. 165, 182 (Md. Ct. Spec. App. 1996)).

The Federation most likely enacted laws prohibiting the introduction of Tribbles to Earth, unless they had been “neutered.” The evidence for this “middle-ground” regulation were 1) the Tribble cameo in Star Trek III on Earth in the bar where McCoy was attempting to book a flight to Genesis and 2) a child is seen with a Tribble when the Enterprise-D is crashing in Star Trek Generations. There was no evidence later in Star Trek III of a Tribble population explosion and remediation efforts or the Enterprise-D survivors cooking Tribbles for food while awaiting rescue.

Further evidence for the “altered” Tribbles theory comes from More Tribbles, More Troubles. Cyrano Jones poorly attempted to genetically alter Tribbles to not reproduce, which ultimately Dr. McCoy corrected to create “safe” Tribbles that reproduced at a much slower rate. While this logic is based on the lack of a Tribble population explosion, it is a logical deduction given the fact a Tribble was present on Earth without incident in Star Trek III: The Search for Spock or Star Trek Generations.

Django Actually – Contract Questions in Django Unchained and Love Actually

By

Jessica_alegalgeek

-

December 28, 2012

0

What do Django Unchained and Love Actually have in common? Not much, except a tie to Christmas and contract questions. Love Actually is my favorite Christmas-themed movie (thanks largely to Liam Neeson, Colin Firth, and Hugh Grant). Django Unchained, on the other hand, is not a feel-good Christmas movie at all but was released on Christmas day this year (and is a good movie dealing with a very difficult subject).

In addition to their connections to Christmas, both Django Unchained and Love Actually also raise contract questions. In Django Unchained, Dr. King Schulz tells Django that he’ll give him his freedom and $75 if Django helps Dr. King find and capture (dead or alive) three wanted men. In Love Actually, rock star Billy Mack (the great Bill Nighy) promises to perform naked on Christmas Eve if his Christmas pop song, Christmas is All Around, is the number one Christmas song that year. Are either of these promises binding agreements?

To have an enforceable contract, there are a few basic elements that must be met: (1) an offer; (2) acceptance of the offer; (3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding. See Tyco Valves & Controls, L.P. v. Colorado, 365 S.W.3d 750, 772 (Tex.App.–Houston [1 Dist.] 2012). Contracts, with some limitations, may be either verbal or written.

In Django Unchained, Dr. King was clearly making an offer that Django accepted. There was no misunderstanding over the terms of the agreement and both parties agreed to and wanted the contract to be binding. So it’s enforceable, right? Maybe. One of the many, many injustices wrapped up in slavery – and the U.S. legal systems’s role in perpetuating that horrible system – was that courts refused to enforce contracts to which a slave was a party. See Sanders v. Devereux, 1860 WL 5729, at *3 (Tex. 1860) (stating that, in general, a slave can neither sue nor be sued, nor can he make any contract which either a court of law or equity can enforce).

The Texas Supreme Court provided one exception to that rule, however, stating a slave can maintain a legal action to obtain his freedom, although he must do so through a guardian. Id. So there is a slight chance that Django would have been able to make Dr. King free him once he helped Dr. King find the three wanted men, although he would have had to find somebody to bring the lawsuit on his behalf. Fortunately, Dr. King followed through on his promise, even though he probably didn’t have to.

On a much, much lighter note, in Love Actually, Billy Mack also makes a promise to the people of Great Britain – he’ll get naked if they make his song number one. The contract at issue here (and I’m doing all of this assuming US law would apply as I’m no expert on English law) is actually a “unilateral contract.” This type of contract consists of a promise on the part of the offeror (Billy Mack) and performance of the requisite terms (making his song No. 1) by the offeree (the music-buying audience). See Tacoma Auto Mall, Inc. v. Nissan North America, Inc., 169 Wash.App. 111, 129 (Wash.App. Div. 2, 2012).

Unlike a regular contract, which is usually executed before either party performs, a unilateral contract is only executed if the offeree performs (e.g., makes Billy’s song No. 1). Once the offeree performs, then the offeror is bound by the terms of the contract. So once his song became No. 1, Billy Mack was contractually bound to follow through on his promise. (Another example of a unilateral contract is the wanted dead or alive reward posters that featured so prominently in Django Unchained. The courts offer to pay for the delivery of the bad guy and once the bounty hunter shoots the bad guy in reliance on that offer, the courts are obligated to pay up.)

Of course, anyone who tried to sue Billy Mack if he didn’t get naked would have to show that she purchased his song in reliance on his promise. There’s also the possibility that a court may refuse to enforce the contract – involving public nudity – because it’s contrary to public policy. See Liberty Mut. Fire. Ins. Co. v. Mandiie, 192 Ariz. 216, 220 (App. 1997) (recognizing that contracts contrary to public policy are void).

So both movies’ contractual plot lines are questionable, not that movies ever worry too much about getting the law right. Other than that, the two movies have nothing in common, although I recommend watching both of them this holiday season.

An Attorney’s Christmas Special: Legal Issues in Christmas Movies

By

Josh Gilliland

-

December 24, 2012

0

There is no shortage of Christmas movies that have an overall theme of compassion, giving and showing good will to others.

Many of these films set a high bar for “feel good” family entertainment.

There is also no shortage of lawyers who watch Christmas movies.

And where lawyers are watching movies, they are considering different legal issues.

Let’s review some of the big legal issues in some of the holiday classics.

It’s a Wonderful Life

There is no question It’s a Wonderful Life is one of the best Christmas movies, if not Jimmy Stewart’s finest film.

Here are some of the issues that cause lawyers pause:

Zu Zu’s statement that “teacher says, every time a bell ring, an angel gets his wings” is an alert that the “separation of church and state” may have been violated in a public school.

Mr. Gower’s near miss with manslaughter due to poisoned medication and child abuse by hitting George Bailey.

Young George Bailey would have committed murder if he knowingly delivered poisoned medicine to a sick child.

Just what was Violet’s job?

Mr. Potter kept the $8,000 and avoided getting arrested.

A Christmas Story

There is justified concern a child could hurt themselves with a BB Gun. The safe alternative gift recommended by different characters in A Christmas Story is a football.

However, footballs might be just as dangerous as a Red Rider BB Gun, given the number of concussions professional players have suffered. While there is no totally safe sport, a baseball might have less risk of physical injury, but more risk for broken windows.

ELF

Elf raises many legal issues.

Consider the following:

How was Buddy adopted by Papa Elf?

Was there a claymation judge at the North Pole?

Did the orphanage ever file a missing person report for a baby disappearing ?

How was Buddy legally re-integrated into society after spending 30 years at the North Pole? He should have had a birth certificate, but how did he get a Social Security Number after age 30 without any red flags going off?

The Polar Express

Did any of the parents in The Polar Express teach their kids stranger danger?

How about not getting in a vehicle with a stranger?

This is a disturbing part of an otherwise very sweet story of believing and helping others.

Scrooged

How did the network lawyers handle Elliott Loudermilk’s siege of the control room? Did Christmas cheer keep everyone from filing charges? How about Brice Cummings, who is tied up by Loudermilk and endures unwanted physical advances from the Censor?

Miracle on 34th Street

The single best Christmas courtroom drama is the 1947 Miracle on 34th Street. Moreover, the hero is a lawyer defending Santa Claus, at great personal risk to his own career. The attorney’s duty of loyalty to his client causes him to quit his law firm and consider opening his own practice in order to protect Kris Kringle from being put in an insane asylum.

The film also touches on the difficultly of being the District Attorney and Judge in a high profile case. The Judge quickly learns his own grandchildren and wife are ashamed of him for ordering a lunacy hearing to put Santa Claus in an insane asylum. The DA endures judgmental glares from his wife, including the wife permitting the DA’s son to testify on the child’s belief in Santa Claus, to the harm of his father’s case.

Nothing screams “You’re sleeping on the sofa” on Christmas Eve then committing Santa Claus to an insane asylum. Simply put, there is no judicial relief for any attorney (or judge) who ends up on his wife’s Naughty List for not spreading Christmas cheer.

Where Are You Christmas?

How the Grinch Stole Christmas raises many issues of burglary and identity theft. Additionally, why didn’t the Grinch wear pants?

More importantly, the movie also ends with a touching dedication to Ron Howard’s mother, “who loved Christmas most of all.”

There are mothers across the planet who put their hearts into creating a wonderful Christmas experience for their children. Ron Howard’s tribute spoke for many people and is a very fitting way to end a Christmas movie.

Santa Claus & The Torts of Christmas

By

Josh Gilliland

-

December 20, 2012

0

We all know the song….

He sees you when you’re sleeping,

He knows when you’re awake,

He know if you have been bad or good, so be good for goodness sake…

Could a Plaintiff sue Santa Claus for watching them sleep and all other aspects of their daily life?

What other liability is Father Christmas personally incurring as he decides who is naughty or nice?

For example, how does Santa know if you have been bad or good?

Are there elves remotely forensically imaging computer hard drives and using computer-assisted review to recognize patterns of nice and naughty conduct?

Does Santa have another team of elves running keyword searches over the billions of text messages sent each year? Could a Plaintiff sue Santa Claus for violations of the Stored Communication Act?

Let’s review the possible Torts and Crimes committed annually by Santa Claus.

Invasion of Privacy

Privacy is essentially the right to be left alone. While the word “privacy” does not appear in the US Constitution, there are many common law and statutory remedies for invading someone’s private life. California went so far as to even write a right of privacy into the California Constitution, which states:

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.

Santa is watching us all the time, even when we are asleep.

Courts have held to be spied upon while in bed is an invasion of privacy. See, Oziel v. Superior Court, 223 Cal. App. 3d 1284, 1301 (Cal. App. 2d Dist. 1990) & Commonwealth v. Kean, 382 Pa. Super. 587 (Pa. Super. Ct. 1989).

The tort of the intrusion into private affairs requires a Plaintiff prove the following in California against Santa Claus:

John Doe claims that Santa Claus violated his right to privacy. To establish this claim, John Doe must prove all of the following:

1. That John Doe had a reasonable expectation of privacy in sleeping at home in his bed;

2. That Santa Claus intentionally intruded in John Doe’s protected activity by watching John Doe 24 hours a day since Doe’s birth;

3. That Santa Claus’s intrusion would be highly offensive to a reasonable person;

4. That John Doe was harmed; and

5. That Santa Claus’s conduct was a substantial factor in causing John Doe’s harm.

In deciding whether John Doe had a reasonable expectation of privacy in sleeping at home in his bed, you should consider, among other factors, the following:

(a) The identity of Santa Claus;

(b) The extent to which other persons had access to John Doe’s bedroom while Doe slept and could see or hear John Doe; and

(c) The means by which the intrusion occurred.

In deciding whether an intrusion is highly offensive to a reasonable person, you should consider, among other factors, the following:

(a) The extent of the intrusion;

(b) Santa Claus’s motives and goals; and

(c) The setting in which the intrusion occurred.

1-18 California Forms of Jury Instruction 1800

The Trial of Santa Claus for violating John Doe’s privacy rights would raise many interesting questions that would focus on Santa Claus’s abilities to watch others. How does Santa see you when you are sleeping? Does Santa focus on specific individuals to check on behavior? Or, is it something Santa cannot himself focus, like hearing the roar of a crowd at a baseball stadium, instead of one conversation? Simply put, does Santa simply know when everyone is sleeping vs setting up a global camera network to spy on people?

What are John Doe’s damages to Santa knowing when Doe is sleeping? How is Doe harmed by Santa being aware of Doe’s sleep habits? Santa is not publishing Doe’s activities, but merely rewarding good conduct annually with a present under the Christmas Tree. With that said, there is still a creepy factor to knowing a man is watching Doe sleep.

Negligent Infliction of Emotional Distress

There is a good argument that Santa Claus watching John Doe can cause negligent infliction of emotional distress.

Generally, to prove this tort, a party must establish the following:

(1) Defendant’s negligence caused Plaintiff’s emotional distress,

(2) Resulting in physical harm manifested by objective symptomology, and

(3) A reasonable person would have suffered emotional distress under the circumstances.

Kunesch v. Noyes, 29 Mass. L. Rep. 625 (2012).

John Doe would first have to demonstrate negligence on the part of Santa Claus and that Doe suffered physical harm that a reasonable person would also suffer.

Doe cannot simply say he suffered from stress at a deposition. Doe ideally would have physical harm, such as loss of sleep, ulcers, and related harm that can either be confirmed by a medical professional or reported to others to verify the harm.

Trespass of the Bells

Santa Claus is trespassing in homes across the planet. Under California Penal Code section 602(m), a person commits a misdemeanor by “Entering and occupying real property or structures of any kind without the consent of the owner, the owner’s agent, or the person in lawful possession.”

A very good argument can be made that Santa is not trespassing, because he is invited into homes for gifts by the homeowners leaving cookies and milk out for him.

If Santa is invited into homes with the cookie invitation, he technically is an “invitee.” As an invitee, the homeowner would have a duty to Santa Claus to inspect the property for anything dangerous and warn Santa of any dangers (See, Black’s Law Dictionary iPad App). As such, if someone is leaving out cookies and milk, also starting a large fire or leaving toys out as a trip hazard would put Santa at risk of injury.

The Naughty or Nice List

The public has a right to be concerned with someone who can watch the world sleep.

However, if people also leave cookies and milk out to invite Santa Claus into their homes, any claims for invasion of privacy are lost by the implied social contract to be nice in exchanged for gifts.