Magistrate Judge John Facciola is an awe inspiring person. Jessica and I were honored to have the Judge join us for a discussion on Independence Day and the importance of the Judiciary in upholding inalienable rights. We hope you enjoy our 4th of July special podcast with a very remarkable Judge.
Oh That Gilligan, It’s All His Fault.
It is time we talk about Gilligan’s Island. With a last name like Gilliland, I am the third generation to hear my last name mispronounced “Gilligan.” Being a sailor and hanging out with a guy called Skipper also does not help.
The story of Gilligan’s Island is one of a common carrier that went on a three hour cruise, only to end with the passengers stranded on a tropical island.
What duties did Skipper Jonas Grumby and First Mate Gilligan owe to the passengers? Given the number of times Gilligan sabotaged opportunities for escape, would the Skipper be liable for damages based on respondent-superior? Did the Skipper have a legal duty to protect the passengers from Gilligan’s destructive tendencies? Did Skipper and Gilligan hold true to the legal obligation of the song to “do their very best, to make the others comfortable in their tropic island nest“?
The S.S. Minnow is a “common carrier” with its island charter business and subject to Federal law for carrying passengers for hire. A “common carrier” is defined under case law as “one who undertakes for hire or reward, to transport the goods of such as choose to employ him from place to place.” Babcock & Beene v. Herbert, 3 Ala. 392, 396-397 (Ala. 1842).
Judge David A. Depue stated the following about common carriers in 1869:
By law, common carriers are held to the strictest kind of accountability. They are absolute insurers of the safety of all property entrusted to them for the purpose of transportation, and can only discharge themselves from that liability by showing that the loss was occasioned by the act of God or public enemies.
Stephens & Condit Transp. Co. v. Tuckerman, Milligan & Co., 33 N.J.L. 543, 561 (E. & A. 1869).
The duties of a common carrier are to “highest degree of care and prudence” for the safety of its passengers, as well as the “utmost human skill and foresight.” Carlos v. MTL, Inc., 77 Haw. 269, 276 (Haw. Ct. App. 1994), citing Fuller v. Honolulu Rapid Transit & Land Co., 16 Haw. 1, 9 (1904) (quoting Coddington v. Brooklyn Ry. Co, 102 N.Y. 66, 5 N.E. 797 (1886).
It should be noted that a “common carrier is not an insurer of the safety of its passengers, and it has no duty to avoid all dangers which could not reasonably be foreseen.” Carlos v. MTL, Inc., 77 Haw. 269, 276 (Haw. Ct. App. 1994), citing Fuller, 16 Haw. at 9-10.
As such, the Skipper & Gilligan had a duty to protect the passengers from unreasonable risk of physical harm, provide first aid if injured, and to care for them until they could be cared for by others. See, Winfrey v. GGP Ala Moana LLC, 130 Haw. 262, 274 (Haw. 2013), citing Section 314A of the Restatement [(Second) of Torts].
The Shipwreck of the SS Minnow
The SS Minnow was shipwrecked after a storm at sea. The vessel was beached with multiple hull breaches in its wooden planking. While repairs to the hull might have been possible, the volume of water that penetrated the hull would have flooded the engines. This would make restoring the vessel impossible. There would have been no way to drain the oil and water out of the engines and restore the vessel to operation, because there was no replacement oil for the engines. The propulsion system would have been a giant rusting paperweight.
Was the storm reasonably foreseeable? Maybe. It would depend on weather reports, the accuracy of the weather reports, and whether there was time to respond. If the storm had been foreseeable, the crew of the SS Minnow did not act reasonably in ensuring the safety of the vessel and passengers. If the storm was an act of God, there would have been no liability for becoming shipwrecked. (See, MCARTHUR & HURLBERT v. SEARS, 21 Wend. 190, 200 (N.Y. Sup. Ct. 1839) and Stephens & Condit Transp. Co. v. Tuckerman, Milligan & Co., 33 N.J.L. 543, 561 (E. & A. 1869)).
The Skipper and Gilligan in the first episode made a raft with the intention of sailing for Hawaii and launching a rescue. Gilligan ate most of the food based glue and varnish during the construction of the raft. Gilligan also functions with diminished mental capacity to the point a Court might find him legally incompetent based upon expert testimony.
Given Gilligan’s self-destructive behavior, should Skipper Jonas Grumby have employed Gilligan in building the raft and rescue mission?
A Court would likely find Gilligan caused delays, if not outright sabotaged, rescue efforts. As such, it was unreasonable for the Skipper to have Gilligan help prepare the raft for the voyage to Hawaii.
Headhunting Torts
Gilligan scared his fellow castaways in the final moments of the first episode by climbing out of a cave and rubble in a headhunter’s outfit. This intentional act would constitute the intentional infliction of emotional distress. Upon their return to Hawaii, the castaways could sue the SS Minnow for Gilligan’s conduct, and Gilligan directly, by showing 1) Gilligan acted intentionally; 2) that the act of impersonating a headhunter was unreasonable; and 3) that Gilligan should have recognized that the act of dressing as a headhunter would have resulted in illness. Hac v. Univ. of Hawai’i, 102 Haw. 92, 105 (Haw. 2003), citing to Fraser v. Morrison, 39 Haw. 370 (1952), based upon the Restatement (First) of Torts, section 312 (1934).
The castaways would need to demonstrate they suffered bodily harm from Gilligan’s headhunter masquerade under the law in the 1960s. Gilligan did not physically harm anyone, so the case would be dissimilar than baseball players who dressed as a vampire and leather-clad warrior who attacked patrons in a club. Canseco v. Cheeks, 939 So. 2d 1122, 1123 (Fla. Dist. Ct. App. 3d Dist. 2006). The castaways would need to show they suffered nightmares or other physical manifestations of Gilligan’s assault in order to recover for damages.
Gilligan the Destroyer
The second episode of the Gilligan’s Island centered on building huts for the castaways. As expected, Gilligan injured the Skipper and Professor during the community hut construction. In the case of the Skipper, a lid was left off a barrel of water (known as a scuttlebutt among sailors) which the Skipper fell into. Gilligan also pulled a ladder out from under the Professor, causing both a fall and head injury. Mr. Howell also suffered battery from Gilligan.
Gilligan literally could not interact with others without causing physical injury or destruction of materials being built for the safety of the castaways. As such, the Skipper should have prohibited Gilligan from interacting with others, as terminating his employment was not an option on the island. This should have been done to protect the passengers from Gilligan and to avoid Gilligan having an “accident” at the hands castaways angry over another rescue attempt being destroyed.
50 Shades of Ginger
Ginger attempted to seduced Gilligan to achieve her goals on multiple occasions. One example is in the second episode in order to acquire tools to build a hut. Another is kissing Gilligan in order for Mary-Ann to place a jet pack on Gilligan. The women planned to launch Gilligan as a missile to Hawaii in order to save themselves.
Ginger was not above seduction with someone who might not have been legally competent to 1) agree to lend tools (and exploited for manual labor) and 2) trick into being launched into a sub-orbital flight. Ginger would argue that Gilligan consented to her advances, but the “consent defense” would fail if a) Gilligan were legally incompetent to authorize the conduct alleged; or b) Gilligan by reason of mental disease, disorder, or defect, was unable to make a reasonable judgment as to the nature or harmfulness of the conduct alleged. HRS § 702-235.
Expert testimony would be required to determine if Gilligan were legally competent. However, given his decision making skills and lack of impulse control with coconut cream pies, there is a strong argument Ginger unlawfully took advantage of Gilligan.
June 23, 1989: The date the super-hero movie genre was reborn thanks to Tim Burton’s Batman. The movie overcame jokes of “Mr. Bat-Mom” and that Michael Keaton did not have the chops to be the Caped Crusader.
The naysayers were wrong. Keaton did a great job, just as Ben Affleck will do a great job.
I saw the movie opening day with my brother and good buddies. We arrived at the Century 10 theater in Mountain View two hours early for the first show. There was already a line of people who had spent the night to see the film that went deep into the parking lot. One attendee dressed for the occasion with horned Viking helmet.
The Century 10 (now Century 16) theater had six ticket counters at the box office. Everyone had lined up behind one window on the far left. Our group lined up at the one at the far right. We stood our ground, because the theater operated all of the windows, not just one ticket counter.
There were mild shouts of anger when the window we were standing by opened first. My brother, friends, and I were the first ones in the theater.
Lessons Learned: Do not have a line mentality. Look around and get in the one that makes sense. It’s what Batman would do.
Jesse Toves sat down with Josh Gilliland to talk about his comic Trouble, Guts, & Noir, plus his work on Battlestar Galactica, Caprica, and Defiance. Both discuss comic books, super hero movies, and a whole lot more.
We are huge fans of The Geekie Awards. Please help pass the word on our Geekie Awards submissions by visiting our Blog page & our Podcast page and sharing them on Twitter, Facebook, and Google+.
Josh filmed this video at during the Arkansas Bar Association Annual Conference in the Washington, DC themed suite of the Arlington Hotel, in Hot Springs, Arkansas.
Magneto in X-Men Days of Future Past threatened to assassinate President Richard Nixon and a substantial number of his cabinet during the Sentinel product demo gone horribly wrong. The story took place before, during, and after the Paris Peace Accords, which was signed on January 27, 1973.
As such, the attempted assassination had to be in the final days or January or early February 1973 (which magically looked like summer). We can assume the cabinet members included:
Vice President Spiro Agnew, who may or may not have been at the Sentinel demonstration;
Secretary of State William Rogers;
Secretary of the Treasury George Shultz (Unlikely at the demo);
Secretary of Defense Melvin Laird;
Attorney General Richard Kleindienst;
Secretary of the Interior Roger C. B. Morton (Unlikely at demo);
Secretary of Agriculture Earl Butz (Unlikely at demo);
Secretary of Labor James D. Hodgson (Unlikely at the demo)
It was unlikely the other cabinet members were in attendance. However, there was a high likelihood that the Speaker of the House Carl Albert would be in attendance. It is hard to say whether or not Senator James Oliver, the President Pro Tempore would have attended the ceremony. Given the high cost of the project and national defense interests, it would make sense for Congress to have key players attend the demonstration.
Who Would Be President if Everyone at the Sentinel Demo Died?
Knowing who was in attendance would have a major impact on the Presidential Line of Succession in case of a mass assassination. This is why one cabinet member does not attend State of the Union Address, in the event of a Tom Clancy-type attack taking place on the United States Capitol Building.
The short order of Presidential succession goes from President to Vice President, followed by the Speaker of the House; then the President Pro Tempore of the Senate; then the Secretary of State; then Secretary of the Treasury; then the Secretary of Defense; then Attorney General; then Secretary of the Interior, then Secretary of Agriculture; followed by the Secretary of Commerce; Secretary of Labor; and further down other cabinet members.
If Magneto had killed President Nixon, the Vice President, the cabinet members present, and possible Congressional leadership in the Presidential Line of Succession, there was a high chance someone like Senator James Oliver or Secretary of the Interior Roger C. B. Morton would have become the 38th President of the United States.
And that would have been weird and terrifying, but would show the Constitution was prepared for a nightmare situation.
Good thing the 1970s did not see a Constitutional crisis where someone never elected President or Vice President became President. Just imagine one Congressional term with three Vice Presidents….
Do No Threaten A President
Threatening a President is a bad life choice. US law states that:
(a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.
(b) The terms “President-elect” and “Vice President-elect” as used in this section shall mean such persons as are the apparent successful candidates for the offices of President and Vice President, respectively, as ascertained from the results of the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. The phrase “other officer next in the order of succession to the office of President” as used in this section shall mean the person next in the order of succession to act as President in accordance with title 3, United States Code, sections 19 and 20.
18 USCS § 871.
Magneto’s threat on Nixon and the cabinet was not done through the mail, but in person and televised. A World War 1 Era 1917 statute prohibits any person from “knowingly and willfully . . . [making] any threat to take the life of or to inflict bodily harm upon the President of the United States…” Watts v. United States, 394 U.S. 705 (U.S. 1969).
The Watts case took place during the Vietnam War. An 18 year-old voiced his feelings towards the Draft and stated: “They always holler at us to get an education. And now I have already received my draft classification as I-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.” Watts v. United States, 394 U.S. 705, 705 (U.S. 1969).
The young man was convicted of knowingly and willfully threatening President Johnson. Id.
The United States Supreme Court reversed, holding both that the 1917 statute was Constitutional, but that the Defendant lacked the “willfulness” required by the statute. The Court did not fully state “willfulness” required “an apparent determination to carry them into execution,” but the Government failed to prove the Defendant was a true threat to the President.” Watt, at *706, citing Ragansky v. United States, 253 F. 643, 645 (C. A. 7th Cir. 1918).
The case against Magneto being a “true threat” against the President is extremely clear. Magneto dropped RFK Stadium around the White House, ripped a bunker out from many stories below the White House, and aimed multiple guns at the President for a public execution. There is no question that Magneto was a true threat to the President before Raven (or Mystique) and the X-Men stopped him.
…and while Mystique certainly took many steps to murder Bolivar Trask, she did not go through with it. President Nixon might have given her a pardon for her saving the day.
June 15, 2014 would have been my mother’s 60th birthday. Cancer kept her from being here, but it is very fitting that today is also Father’s Day.
My grandparents ironically did not become parents the day my mother was born. They would not adopt her for several days later, before taking her home from the hospital.
Adoption is one of the most important bodies of law we have in America. It ensures that children are raised by parents who love them, opposed to state bureaucracy.
A retired state court judge in Arkansas told me that adoption cases were his favorite cases to preside over, because of the fact he was helping children. God bless everyone brave enough to adopt a child, and the attorneys and judges who make the process work in the best interests of a child.
My grandfather is the model of fatherhood. A dedicated farm boy, who worked his way through college in a candy store, to ultimately become a dentist. Former patients still speak fondly of him, despite the passage of 30 years since he retired. He served our country during World War II in the Navy in the Pacific, returned to Iowa, and met his future bride on the bus ride home. The University of Iowa dedicated an entire dental clinic in his honor this year. He is very proud of his support to help others become dentists.
My grandfather went into the healing arts because of his older sister Ruth who helped raise him. Ruth was a nurse and she ultimately would become President Eisenhower’s personal White House nurse in the 1950s.
There is no question my mother’s time as a teenager candy striper and becoming a paramedic were in no small part because of her father. She too believed in helping others. I literally have no idea how many people are alive today because of the 10 years she spent as a paramedic. It was her favorite career and one cut short while injured in the line of duty. It was impressive that firemen who had not worked with her in over 15 years attended her memorial, complete with a fire engine to remember one of their own.
Fatherhood is not easy. The entire point of being a dad is to safely raise a child to go on into the world. It takes hard work, from simply being there, to helping teach a child to read, and instilling proper values. The list of what a Father must do goes on. It would be pure Hell for any Father to watch both a wife and then a daughter die of cancer.
For all of the Fathers out there, thank you for being a Dad.
And Mom, Happy Birthday.
