Day on Torts
Well, as you probably have heard, a woman who participated in a "Hold your wee for a Wii" contest died of water intoxication. According to the Sacramento Bee, "the contestants were given two minutes to drink an 8 ounce bottles of water every ten minutes. The winner was the last one to use the restroom."
An attorney has announced that suit will be filed against the station.
The allegations – and apparently undisputed facts – are that the disc jockeys laughed about the risk to participants and knew the risk of the stunt could be fatal. Indeed, according to the Bee article, "a nurse called into the program to warn that drinking too much water was dangerous."
The 28 year old woman had three children.
What are the merits of the claim? One famous, early case on the issue of liability of radio stations for conducting contests is Weirum v RKO General, Inc., 15 Cal. 3d 40, 123 Cal.Rptr. 468, 539 P.2d 36 (1975) which held a radio station liable for the death of a motorist caused when contestants racing toward the scene negligently forced an automobile off the roadway, killing its sole occupant. There are other, later cases more on point that discuss more analogous facts; Weirum addressed the death of a third-party, not a participant. Third-party cases raise different legal issues because they give rise to foreseeability and First Amendment concerns.
The death of a participant gives rise to different challenges. What did the participant know and when did she know it? Assuming that she did not know the risks of water intoxication (I do not know one way or the other), the case appears strong, especially if the employees of the station did (and the Bee article indicates that they knew no later than sometime during the contest and before the woman died.
The woman apparently signed a release of liability, which are generally enforceable under Tennessee law ( I do not know whether it would be under California law) but the release would not be valid in the face of willful misconduct or gross negligence. (For Tennessee law on the issue read Empress Health and Beauty Spa v. Turner, 503 S.W.2d 188 (Tenn. 1973) and Childress by and through Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989). If the articles I have read are accurate, there is at least a jury issue on the question of gross negligence – and maybe more.
I am hesitant to opinion on the validity of a case based on news reports. I would like to see the release – it has not been posted on www.smokinggun.com. If you find it, please send me a link.