Could the Goonies Really Keep One-Eyed Willy’s Treasure?

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October 10, 2012

The Goonies are awesome. The movie, the cast, the plot – it’s all great. Of course, with a movie that great, there’s always the risk of a remake, which should not be allowed. [Side debate: Has there ever been a good remake of a classic movie? The True Grit remake was incredible but that’s because it was so different from the first one and it was done by the Coen brothers. They’re an exception to all the rules.]

The kids are great (check out what they look like now). I’ve always loved Martha Plimpton and Corey Feldman was a ton of fun as Mouth. Chunk’s Truffle Shuffle, while not PC, was an instant classic. (Ironically, given that this is a blog about geeky lawyers, Chunk himself is now a transactional and entertainment lawyer in Beverly Hills.) And, of course, in what other movie could they turn a character like Sloth from one so completely scary when first seen into one so lovable by the end?

The kids are searching for the treasure to save their homes. The local country club is foreclosing on all of them to tear them down in order to build a golf club. (Country clubs and cemeteries are the biggest waste of prime real estate.)

But could the kids use the treasure they hid in Mikey’s marble bag to prevent the foreclosures? In some states, such as Florida, the answer would be no because treasure troves abandoned on state-owned lands are the property of the state. See Fla.Stat. § 267.061(1)(b). Oregon, however, doesn’t have a similar rule (the movie was based in Astoria, Oregon).

In 1904, in a classic opinion, the Oregon Supreme Court defined what could be considered a treasure trove and explained the rights of finders of treasure troves. As the court explained, a treasure trove is “money, or coin, gold, silver, plate, or bullion.” Ferguson v. Ray, 44 Or. 557, 561-569 (Or. 1904). Such a treasure, if found hidden in the earth or other private place, belongs to the king; but if found in the sea or upon the earth, it belongs to the finder. Id. The court then went on to analyze a series of old cases regarding what valuables are considered treasure trove (cups, a chalice, pyxes, and a paten, all silver) and what is not (Roman coins, because they were not made of gold or silver). Id.

In another Oregon case, a court had before it money that had been found by a group of boys, ages 7 to 11. Hill v. Schrunk, 207 Or. 71, 72-73, 292 P.2d 141, 142 (Or.1956). The money, which the boys had found when poking the bottom of a pond with sticks (my 8-year-old son does the same thing) found the money, which had been wrapped in oiled paper, which was folded and placed in a waxed paper sealed fruit jar, the fruit jar being placed in a small wooden cask which was again sealed at its joining with tape, and this cask secured in turn in a section of rubber innertube, the ends of which had been secured against the entry of water, the innertube being rigged with wire or ropes to secure it to the bottom of the pool. Given that some of the money was only a year old, and treasure troves carry with them “the thought of antiquity,” the court classified the money as mislaid property and therefore ruled that the boys were not entitled to keep it.

While the jewels in Mikey’s bag aren’t gold or silver, they are clearly a pirate’s booty and it would be reasonable to expect a court to find that, under all of the circumstances, the jewels fit within the definition of a treasure trove that the finder is entitled to keep. Whether they were valuable enough to save the Goonies’ homes is a question I’ll leave to the appraisers.

Oregon does have an administrative rule, however, that makes it a misdemeanor to knowingly and intentionally excavate, injure, destroy or alter an archaeological site or object on public or private lands without first obtaining an archaeological permit. See Oregon Administrative Rule 736-051-0090. While the Goonies could be charged with violating this rule, given their intentional hunt to find Willy’s treasure, it’s unlikely that Oregon would attempt to prosecute a bunch of poor kids who were trying to save their families’ homes.

And, as proof that the Goonies stands the test of time, I’ll leave you with a video from The Whiskey Rebellion: their ode to the Goonies.

Star Trek Red Shirts and Assumption of Risk

By

Josh Gilliland

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October 8, 2012

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Proving lawyers can do cosplay, Josh Gilliland & Jessica Mederson discuss assumption of risk and wearing a Red Shirt in Star Trek The Original Series.

No part of this video should be considered legal advice.

Assumption of Risk & Star Trek Red Shirts

By

Josh Gilliland

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October 3, 2012

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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.

How Red Shirts Can Die

Turned into Cube and Crushed: In By Any Other Name, Yeoman Leslie Thompson was turned into cube and crushed in an alien’s bare hands.

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.

It's a Little Known Fact: The Legal Geeks & Cheers

By

Josh Gilliland

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October 2, 2012

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Jessica Mederson & Josh Gilliland discuss the classic TV show Cheers, including favorite characters and issues of contract law.

No part of this recording should be considered legal advice.

Wanna bet? Could Sammy Lose Cheers to Kramer?

By

Jessica_alegalgeek

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October 1, 2012

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Cheers is a great sitcom that stands the test of time. It’s still funny now, thirty years after it began (I’ve verified that by watching the first season again on Netflix this past week). Coach, Diane, Norm, Carla, Cliff (as a legal geek I was always a fan of him and his trivia), Woody, Lilith, Nick…every character was great. And that theme song is still fantastic…

In honor of its thirtieth anniversary (and the great oral history done by GQ), I had to go back and watch an episode with legal significance. During the third season, Kramer shows up (pre-Seinfeld fame and onstage infamy), going by the name Eddie Gordon. Eddie is an old drinking buddy of Sam’s who had been out drinking with Sam almost exactly a year ago. While drinking tequila (he always wants Jacqueline Bisset when drinking tequila), Sam made a bet with Eddie that he’d be able to marry Jacqueline within a year or he’d give the bar to Eddie. Sam even wrote the bet down, signing in front of witnesses.

Tom, a bar patron (and a wannabe lawyer who could never pass the bar), said the bet couldn’t be enforced because Sam was drunk when he signed it and it was a wager, not a contract. Despite the legal advice from a wannabe lawyer (a no-no), Sam didn’t want to go to court and testify that he had been drinking again. So Carla came up with another plan: find somebody else named Jacqueline Bisset and marry her instead. Carla and Tom were both wrong on the law, as often happens on TV, but it still made for a great story.

So what can Tom and other wannabe lawyers learn from this episode?

(1) Can a bar bet be enforced? Courts will not enforce transactions involving prohibited gambling games (because they conflict with the welfare and morals of society). See Schur v. Johnson, 38 P.2d 844 (Cal. App. 3 Dist. 1934). The Cheers bet, however, did not involve a illegal game of poker or other prohibited gambling activity so presumably could be enforced if it was otherwise a valid contract. (Speaking of bar bets, I’d never before heard the rumor that one of my favorite authors, Robert Heinlein, had a role in the beginning of Scientology). The problem with this wager, however, is that there is no mutual consideration (Sam loses the bar if he doesn’t marry JB, but what consideration does Eddie bring to the table?). Without consideration, there’s no contract. (It would be difficult to argue that the bar bet was an unilateral contract because Sam had to make both the promise [he’d give up the bar] and do the required act [marry Jacqueline Bisset], which violates the principles of unilateral contracts.)

(2) Can you sign a contract when you’re drunk? The law requires that a party to a contract have the mental capacity to enter into the agreement. As Tom pointed out, the general rule is that intoxicated people don’t have the capacity to sign a contract. See RESTATEMENT (SECOND) OF THE LAW OF CONTRACTSS § 12(2) (1981) (limiting lack of capacity to those who are under guardianship, minors, mentally ill, or intoxicated). However, intoxication does not always mean that a party can’t enter into an agreement. Instead, the court needs to determine the effect of the intoxication upon the party to the contract, with intoxication only being a defense if it’s so severe that the party couldn’t understand the terms and conditions of the agreement when the agreement was signed. See D.M. v. K.M., 2006 WL 3742801 (N.Y.Sup. 2006).

(3) Does a contract to buy a bar need to be in writing? Eddie was smart – he wrote down the bet with Sam and had it signed by Sam and other witnesses. While many contracts can be oral, contracts to buy real property (such as a bar) must be in writing to comply with the statute of frauds. See Del Pozo v. Impressive Homes, Inc., 95 A.D.3d 1268, 1270-1271 (N.Y.A.D. 2 Dept. 2012).

(4) Could Sam marry just any Jacqueline Bisset or did he need to marry the actress? The bet said Sam had to marry Jacqueline Bisset, but what did that mean? When a contract includes an ambiguous provision (which means that the term could have more than one meaning), the court will look to the parties’ intent to determine what the provision should mean. See Banco Esprito Santo, S.A. v. Concessionria Do Rodoanel Oeste S.A., 2012 WL 4069808 (N.Y.A.D. 1 Dept.,2012). In this case, it’s clear that both parties intended the term to mean Jacqueline Bisset the actress, so Carla’s suggestion would not have held up in court. Thank goodness it was enough to outsmart Eddie!

The Legal Geeks Discuss Firefly

By

Josh Gilliland

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September 28, 2012

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Jessica Mederson and Josh Gilliland discuss the contract issues in Firefly.

No part of this discuss should be considered legal advice.

Firefly & Lessons in Contract Law

By

Josh Gilliland

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September 27, 2012

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Firefly was wickedly creative, well-written and had fantastic humor. Spaceships and wardrobe that ranged from Western to Steampunk to Chinese aside, Firefly presented excellent Contract formation issues.

Contract formation consists of 1) Offer; 2) Acceptance; 3) Consideration; and 4) Performance.

In the world of Firefly, it was often 1) Offer 2) Acceptance 3) Gunfight (also known as breach). Let’s review three episodes to examine these contract issues.

Shindig

Consideration in Contract Law involves something of “value” being given up by a promissor to a promisee in exchange for something of value given by a promisee to a promissor (Nice summary in Wikipedia). In Shindig, the consideration for earning Warrick Harrow’s cattle shipment job was surviving a sword fight with one of Inara’s clients (it also could be a condition precedent, because Mal did have to survive the fight).

Since the old idea that consideration can be a peppercorn, a sword fight does not seem too crazy in a future with space cowboys fighting an oppressive regime.

The Train Job

The Train Job was the second episode in the series. Malcolm Reynolds formed an oral contract with a crime boss named Adelei Niska to steal medical supplies from a train. Niska made a payment for the work to be performed, which involves extracting cargo from a fast-moving train with Alliance soldiers onboard.

The heist was a success, with the exception the Captain and Zoe were stuck on the train and ultimately needed to be “rescued” by Inara after being detained in town.

However, once Mal and Zoe reached the destination of the cargo, they learned the medicine was vital for the survival of a mining town where everyone was suffering from the effects of mining.

Mal’s following actions are best described as contract rescission, which is the unwinding of an agreement. Mal decided to return the stolen medicine to the town and the money back to Niska. Granted, since this was an action show, there was a gunfight and someone sucked through a jet intake before Niska’s men accepted the rescission (non-traditional contract remedies were later sought by Niska in War Stories).

Out of Gas

The contract issues in Out of Gas focused on a salvage ship that found the crippled Serenity with only Mal onboard.

Serenity was heavily damaged from an engine room fire and needed a new compression coil.

The salvage captain boarded Serenity and shot Mal after seeing Mal was telling the truth about Serenity’s damage (this was after Mal offered anything of value in the ship’s hold).

The actions up until the shooting showed the parties went beyond offer and acceptance to performance, because the salvage captain boarded Serenity with the compression coil in hand.

Given the fact payment had not been determined, there was an uncertain term to the contract. However, there was sufficient evidence to show a contract had been formed based upon the conduct of the parties (boarding Serenity with the part Mal requested from the salvage captain).

After being shot, Mal armed himself with the gun from the “Mule” and ordered the captain and crew off his ship. While there was no payment made for the compression coil, the salvage captain breached his agreement when he shot Mal. Keeping the compression coil would have been the proper damage recovery (sure, there is a separate cause of action for shooting someone).

Curse Your Sudden But Inevitable Betrayal

The remedy for a breach of contract is either money damages or equitable remedies. Gunfights in the series aside, Out of Gas focused more on the equitable remedy of specific performance. In the instance of The Train Job, returning Niska’s money was designed to put him in the same place as he was before the contract with Malcolm Renyolds.

So let me make this abundantly clear. I do the job and then I get paid.

Captain Malcolm Reynolds

Firefly essentially was about engaging in contract work for payment. Each episode has different themes on issues of formation, breach or remedies. While the show was certainly not a transactional space adventure with cowboys, the contract issues are very prevalent.