I AM THE BLAWG: THE LAW OF METALOCALYPSE – “THE CURSE OF DETHKLOK”
Season 1, Episode 1 “The Curse of Dethklok”
In what will be a continuing feature of this column, I am going to watch episodes of Metalocalypse and analyze any of the issues that come up. Some episodes have more issues than others, so I might not get through all of the issues in an episode in a given post. Really, I just want to be able to say that watching Metalocalypse is productive work for me.
In the first episode, Dethklok requires that fans sign “pain waivers” to release the band from liability at the Duncan Hills Coffee Jingle Batsfjord MassacreFest. Obviously thinking ahead of what can and will happen at their shows, it seems like a good plan for Dethklok, as the show results in fans being crushed, burned, dissolved, or otherwise maimed or killed. But could a waiver really allow Dethklok to escape liability for the deaths of hundreds of fans?
Yes, I know they are in Norway, and the laws there are different. I’m basing this on US law because I don’t have the time to learn Norwegian law. I’m sure you understand.
It is possible to get around potentially negligent conduct with the use of a waiver. Why would you want one? As with most things lawyers do, somebody is looking to get out of liability for potentially dangerous conduct. Basically, you want to insulate yourself from liability for negligent conduct.
Negligence is a branch of tort law that deals with parties that disregard a standard of care that results in damages. Negligent activity is any action that falls below the standard of care to which a reasonable person would conform to prevent injury to others from foreseeable risks of harm. If you start start firing a gun in to the air, this is negligent activity because you should know that those bullets are going to come down and could hurt someone. Negligence is concerned with stopping activity you should know is dangerous.
For a waiver to be valid to prevent liability for negligent conduct, it will have to be clear and unambiguous about the potential risks. It would not be valid if it just said that dangerous things might happen, and that you as the participant will have to be aware of these unnamed risks. Such a clause is not allowed because people need to know exactly what they are agreeing to, and by not telling them the potential risks, they cannot competently waive their rights. By spelling out the exact dangers, you can have a valid waiver.
For example, if you are on an African safari, there is a chance you might get eaten by a tiger. It’s not the organizer’s fault, but it might happen. By explaining up front that tigers are roaming about and you might get eaten, the organizer will be able to escape liability for tiger attacks. For Dethklok, requiring a signed waiver acknowledges that there is going to be an activity that might result in harm to some people that is beyond their control. It is possible that somebody will get hurt in the pit, and Dethklok can’t be responsible for that.
The problem here is that the activities giving rise to suits against Dethklok from the Batsfjord Murder MassacreFest were all voluntary. Dethklok knew or should have known that pouring boiling coffee (or whatever that might have been) would result in injury, which it clearly did. So, even if they didn’t intend to injure others, they could still be held liable for conduct. It is not possible for Dethklok to rationally argue that they did not intend to have this conduct occur. They klokateers were on the stage dumping coffee on the fans, and that won’t be covered by waivers. That conduct is intentional, and not negligent.
I talked about consent a few weeks ago, and, specifically, about how consent can prevent liability. Would that be applicable here? While you can consent to conduct, an agreement that spells things out beforehand would clear up any misconceptions. Even though there is consent here in the form of a signed waiver, though you can’t cover everything. Courts have been able to overturn consent on public policy grounds if the conduct is destructive to society. For the same reason that you cannot consent to somebody murdering you, you cannot consent to somebody dumping hot coffee on you if it will kill you.
So, Dethklok couldn’t get away with all of this through the use of a waiver.
Quick Answer from the Mailbag: You know those screaming videos that have a ugly picture with a loud scream in the middle of the video? What if someone intentionally sends the video knowing it will disturb the viewer? What if the viewer gets a heart attack from watching it?
The First Amendment generally protects speech that is offensive or disturbing. You have the right to say what you want, even if someone else does not like it. I’ll cover this in more detail in a future post.
There is potential liability for intentional infliction of emotional distress; however, this is a high bar to pass. To be able to recover, you need to have actual bodily harm that results from the conduct. If the person is just upset or scared, but has no real injuries, then generally there is no recovery. Further, mere words are not enough. The action that gives rise to the injury should be something that the average person would consider far outside of the bounds. If the sender knew that it would have this effect on the viewer, that would change things.
Antonin Skullia, Esq. is licensed by the one of the many fine states of this great union as an attorney and counsellor-at-law. While he is a licensed attorney, nothing in this article should be construed as specific legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only.
Reading this article, replying to its posts, or any other interaction on this site does not create an attorney-client relationship between you and the author. No attorney-client relationship has been created, nor should one be implied. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.
If you have specific issues you would like to see discussed in future columns, you may contact Antonin at antonin [dot] skullia [dot] esq [at] metalsucks [dot] net. However, Antonin will not be able to respond to any requests for specific legal advice.