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
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
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?
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
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
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.
The Legal Issues of The Doctor Letting the Bad Guy Die
Doctor Who. From the first episode on November 23, 1963 to present date, it is one of the best science fiction series of all time (despite first airing the day after the Kennedy assassination).
The 11th Doctor, played by Matt Smith, has had the great fortune of excellent storytelling and acting. More importantly, Smith has helped with a significant bow tie Renascence.
Who Doesn’t Love Dinosaurs & Spaceships?
The episode Dinosaurs on a Spaceship also provides an opportunity to discuss issues in criminal law.
On a simple matter of principle, many geeks have dreamed of saying “dinosaurs” and “spaceship” in the same sentence for decades.
The legal issues involve the Doctor not just leaving the villain die, but outright causing his death. In short, the Doctor left a tracking device for incoming missiles on the villain’s spaceship to blow up the villain’s ship.
What did the bad guy do to deserve such a fate?
First, the villain’s name was Solomon. He came across a “Space Ark” that advanced reptiles (the Silurians or homo reptilia) used to escape Earth 65 million years ago before the mass extinction event killed off nearly all life on Earth (which in Dr. Who was caused by Cyberman controlled space freighter crashing into Earth, killing the 5th Doctor’s companion Adric in Earthshock). The Ark contained many species of dinosaurs and Silurians in suspended animation.
Recognizing the profit he could make from the dinosaurs, Solomon had his two robots wake up a limited number of Silurians at a time and then execute them by ejecting them into space.
The two words that best describe Solomon are “greed” and “cruelty.”
In the penultimate face-off with the Doctor, Solomon had one of his robots kill a triceratops to prove his intentions to escape with Queen Nefertiti (longer story on how she was there). There is a very sweet scene with the Doctor gently comforting the dying creature as it closes its eyes for the last time.
Brutally gunning down a triceratops is the moral equivalent of murdering a golden retriever. Whoever pulls the trigger only makes enemies in either case.
Juris Doctor Who
From a legal perspective, was the Doctor justified in 1) leaving a tracking device on Solomon’s spaceship and 2) leaving Solomon to die?
The tracking device would have been justified under the “Necessity Defense.” The “Necessity Defense” under Common Law generally requires the following:
(1) the defendant acted to avoid a significant risk of harm;
(2) no adequate lawful means could have been used to escape the harm; and
(3) the harm avoided was greater than that caused by breaking the law.
Additionally, California (and other states) allow the use of force under the following circumstances:
Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.
Cal Civ Code § 50
Applying Common Law and the California Civil Code, we can establish the following:
The Doctor acted to avoid the “Space Ark” from being destroyed by missiles by placing the tracking device on Solomon’s ship. The alternative was for everyone, including the dinosaurs, to be destroyed.
There was no other lawful means to escape the incoming missiles. While the TARDIS is bigger on the inside, fitting nearly 50 species of dinosaurs onboard in a matter of minutes would not be possible.
Placing the tracking device on Solomon’s ship avoided the greater harm of the Ark with everyone onboard from being killed.
The trickier issue is leaving Solomon to die. Solomon had murdered hundreds, if not thousands, of Silurians in cold blood. He has also threatened the Doctor and his traveling companions, including having one shot by a robot and the attempted kidnapping of another. Looking at California’s law permitting a person to protect themselves or a “guest” from wrongful injury with any necessary force, would the law allow leaving Solomon to die?
Given the timing of the incoming missiles and the danger Solomon had posed, the answer is likely yes. However, there is grey area, since Solomon was defeated and knocked to the deck when the Doctor transported off Solomon’s ship to use it as a decoy.
Furthermore, while there is no duty to rescue, there is an exception for when a person creates a hazardous situation.
Missiles being directed to Solomon’s ship thanks to a tracking device likely would count in the world of torts, but given the necessity of the situation (could the Doctor carry the evil man who liked to murder Silurians in under 5 seconds?), leaving him was justified.
However, if Solomon could be saved, wouldn’t it be better to convict him for his crimes instead of an instant execution?
Regardless of the legal issues presented, it highlights two important lessons for villains:
1) Never fight a man in a bow tie;
2) Never kill a triceratops and think you will escape.
