Sheriff orders probe of radio contest death

Sacramento Bee ^ | 1/18/2007 | Christina Jewett - Bee Staff Writer

[GoldCountryRedneck]

Sacramento County Sheriff John McGinness assigned two homicide detectives Wednesday to investigate the apparent water-intoxication death of a Rancho Cordova woman who competed in a radio-station stunt to win a Nintendo gaming console.

Jennifer Strange (deceased), her husband, and children.

[frogjerk]

Looks to me from the pic that they were a family that could afford a Wii.

It wasn't the cost of the item. The problem with obtaining a Wii is that you just can't find them. The new gaming system supply problem is purposely caused by Microsoft, Nintendo, Sony, etc...to create hype and up demand.

[Chewie84]

Reminds me of somethign they used to do at one of my town's radio stations.
They used to have a weekly on- air event called, "Drunk B^&*h Friday" where they basically just bring a young woman to the station, get her really drunk, and record the funny conversations with her. Then, they abruptly stopped doing it. I wouldn't be at all surprised if one of the women drank too much and got herself killed.

[robertpaulsen]

"The interesting thing is that she did stop drinking and still died."

Could be there was something else wrong with her. Maybe she just overcame an illness. Maybe her enzymes or lipids or proteins or something were out of whack. She could have had low potassium, high blood pressure, history of migraines, an infection.

There's a thousand reasons that the water could have triggered something rather than caused something. Anything out of place or not normal on her last medical exam will be brought up as a possibility.

[robertpaulsen]

Good idea! As an added bonus, he can use the same headstone for Susan Odd and Jack Weird.

[Publius Valerius]

The radio station put her up to it.

The really difficult part about this is that most people don't know that drinking too much water can be fatal. Everyone thinks it's harmless fun, where the worst that can happen is that you might wet yourself.

So it's difficult to think of an analogy, because most things that are dangerous are fairly obviously dangerous. But let's say I run one of those NASCAR rides at the race track where you get into the car and it jostles around and shows moving pictures of the track like you're sitting in the driver's seat of a NASCAR race car. Doesn't SEEM dangerous--thousands of people do it all the time, but it can cause seizures in some people. If you're running that ride and you don't warn me that it can cause seizures, you're going to be on the hook for damages that I might suffer if I have a seizure. It's just the cost of doing business--when people get hurt, you pay.

I would say the same thing applies here. Just because she did this voluntarily doesn't let the radio station off the hook. It's still their stunt.

[art_rocks]

They didn't provide medical screening or care to verify if the contestant were ok.

The DJs knew it was dangerous and someone could die. They had no medical personnel available to give a medical opinion. This is where I think the station will lose its civil court case.

[Publius Valerius]

There's a thousand reasons that the water could have triggered something rather than caused something. Anything out of place or not normal on her last medical exam will be brought up as a possibility.

That's true, but there's a doctrine in the law called the "eggshell skull doctrine," which basically stands for the proposition that you take your victims as you find them. Maybe it so happens that 99.9% of the general public wouldn't have been injured by this stunt, but she was--and that's the point.

I'm not saying that the radio station will be found liable, but her other medical problems, if any, won't be a factor.

[ContemptofCourt]

"Although in the academic literature 'express assumption of risk' often has been designated as a separate, contract‑based species of assumption of risk distinct from both primary and secondary assumption of risk (see e.g., Prosser & Keeton on Torts (5th ed.1984) § 68, p. 496), cases involving express assumption of risk are concerned with instances in which, as a result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury‑causing risk. Thus in this respect express assumption of risk properly can be viewed as analogous to primary assumption of risk. One leading treatise describes express assumption of risk in the following terms: 'In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.... The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.' (Prosser & Keeton on Torts, supra, § 68, pp. 480‑481, fn. omitted, second italics added.)

"Since Li. [v. Yellow Cab Co. (1975) 13 Cal.3d 804], California cases uniformly have recognized that so long as an express assumption of risk agreement does not violate public policy (see e.g., Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 95‑101 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693] ), such an agreement operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff's cause of action. (See, e.g., Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597‑602 [250 Cal.Rptr. 299], and cases cited.)" (Knight v. Jewett (1992) 3 Cal.4th 296, 308‑309, fn 4.)

"[W]hat the language of [a release] means is a 'matter of interpretation for the courts and not controlled in any sense by what either of the parties intended or thought its meaning to be....' [Citation.]" (Citizens Utilities Co. v. Wheeler (1957) 156 Cal.App.2d 423, 432.) Mr. Conway's subjective understanding that he thought the release applied to what might happen " 'up the trail' not in the paddock area," without more, does not affect our analysis.

As this court has said before, " '[t]he standards which a release such as this one must meet are well established. "To be effective, a release need not achieve perfection...." [Citation.] Thus, "[a]s long as the release constitutes a clear and unequivocal waiver with specific reference to a defendant's negligence, it will be sufficient. [Citations.] For it to be valid and enforceable, a written release exculpating a tortfeasor from liability for future misconduct must be clear, unambiguous and explicit in expressing the intent of the parties. [Citation.] If a tortfeasor is to be released from such liability the language used 'must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.' [Citation.]" [Citation.]' [Citation.]" (Allabach, supra, 46 Cal.App.4th at p. 1015.)

Conway v. Holman Ranch, California Court of Appeals, 2003 WL 22138983 (September 16, 2003)

----

The bottom line is that the civil case will come down to the language on the release, which is not public at this time.

[robertpaulsen]

"If you're running that ride and you don't warn me that it can cause seizures, you're going to be on the hook for damages that I might suffer if I have a seizure."

And how would that sign help you if you read it? Do you know that you're susceptible to seizures?

I mean, if you don't know, then the sign does you no good at all, does it?

If you DO know that you're susceptible to seizures, wouldn't common sense tell you not to get on that ride? Shouldn't you be aware of what might cause a seizure? Isn't it in YOUR best interest to find out what might cause a seizure?

That's called personal responsibility. No sign necessary.

[He'sComingBack!]

Poor kids. Stupid mother. Idiotic Radio Station.

I heard she was 28 years old and competing for a "Wii"? (computer A.I. device for gaming I believe). She had time to participate in this childish contest with 3 kids? This is a tragic and stupid story on so many levels.

Prayers for her family.

[republicofdavis]

By the way, it's not really a hip-hop station. It's Top 40. Some of the music is hip-hop, some is rock (like Nickelback), some straight pop (Kelly Clarkson). It's very popular with young women, probably not so much with urban yutes.

[krb]

I think they should give her family a Wii even though she didn't win.

[Frapster]

Types of Negligent Homicide

The first of these, negligent homicide, is the killing of another person through gross negligence or without malice. It can also be considered a death that is the result of the negligent operation of a motor vehicle, which includes the operation of a boat or snowmobile. In some states, the term negligent homicide replaces the terminology of manslaughter (involuntary) with similar defining. Unintentional killing(s) in which the actor(s) should have known they were creating substantial and unjustified risks of death by conduct that grossly deviated from ordinary care summarizes the relationship between the definitions of these terms (Samaha, 2002, p. 536).

[Brilliant]

I'm not sure that's necessarily the case. This case doesn't seem particularly good for assumption of risk to me. Usually, the doctrine applies to things like horseback riding, skiing, swimming, sky diving, etc. where there is a public policy preference to permit people to engage in the activity in question, and a recognition by the courts that if you don't permit assumption of risk, the business that caters to that activity will simply shut its doors. It also usually deals with a situation where the parties involved understand the risk.

But in my view, this case really isn't the kind of case where a court is going to say, "Sure, we want to facilitate this kind of activity."

Someone posted that they wondered how pie eating contests or hotdog eating contests would react to this. Maybe if you're a judge, that thought process would prompt you to uphold the assumption of risk clause in this case, but I don't think they are just going to read the release and make sure that they used the magic words "assumes the risk." My guess is that they will be looking for ways to throw it out.

[Publius Valerius]

And how would that sign help you if you read it? Do you know that you're susceptible to seizures?

It gives a person fully and complete information about the risks associated with the stunt. And, frankly, society simply places the burden of disclosure on the purveyor of the stunt because that equals the least cost on society.

From a policy standpoint, is it really good policy to place the burden of discovering risks on the customer? Let's say your doctor prescribes you a drug. Is it REALLY good policy to require the patient to research the drug, its potential side effects, the long-term risks of taking the drug, potential dangerous interactions with other drugs, etc? Or is it better policy to require the drug company to conduct that research and disclose it to the customer? Which has the lowest cost to society? Surely you would agree that the lowest societal cost is requiring the drug company to disclose the risks, but how does that square with your notion of "personal responsibility?"

[GoldCountryRedneck]

...they should give her family a Wii ...

If they prevail in the civil suit just filed, they'll get the whole radio station!!

[ContemptofCourt]

I disagree. Again, I think that the court will look to the language of the release. The problem, IMO, with your policy-based argument is that such a ruling would effectively kill liability release over a broad spectrum of uses.

Then again, I'm a defense attorney, so my bias is probably showing....

[Xenalyte]

I love eating contests. Every so often, you can catch a show about the participants - it's intriguing, especially that little teensy Japanese guy who can eat like twice his own weight.

[Xenalyte]

Are you kidding? Wiis are all OVER Houston.

Hell, if I wanted to make the drive, I can get a PS3 at the Best Buy three blocks away right this second.

[Xenalyte]

I want to know who that is on the left. The two I suppose to be the parents - seated in the middle - don't look old enough to have had one as old as Leftie looks.