Torts

Court Rejects "Scary Dexter" Lawsuit

|The Volokh Conspiracy |

In Njewadda v. Showtime Networks, Inc. (N.Y. trial ct. Jan. 29, 2019), plaintiff sued alleging that she stumbled and injured herself in Grand Central station because she saw a scary Dexter ad (apparently the one I reproduce above):

[S]he turned around and attempted to ascend the staircase to ascertain his whereabouts, when she saw and was confronted with, under the steps thereto, a semi sub-merged but dramatically oversized photograph, poster and or wraparound advertisement of the actor Michael C. Hall, who portrays himself as DEXTER, a Showtime series about a serial killer….

[T]he photograph, extending the full length of the steps from the top of the platform to the bottom, depicted a shocking, and menacing face of a Caucasian man (DEXTER) exhibiting an expression of fear or shock and was covered, draped or enwrapped in cellophane/plastic wrap ….

[T]he sight of [the] photograph startled, shocked and overwhelmed [p ]laintiff causing her to panic and become fearful, which fright, fear and anxiety caused her to panic and lose her balance on the steps resulting in her falling down the steps to the bottom thereof ….

Plaintiff essentially argued that the posting of such a supposedly distracting and frightening poster was negligent:

Plaintiff makes reference to the Dexter Advertisement as "a large, deliberately oversize wraparound and dramatically distorted poster of a man under the stairs visible only to pedestrians walking up the stairs", "a dangerously distracting foreign object [in] the ocular field or flow of human traffic upon said precarious staircase", "a deliberate induction of a kinetic psychocognitive impulse generator of fear in the viewer", "an ocular trap" and "a malignant optical distraction buried in the stairs that functionally operated, in certain foreseeable circumstances, as an ocular shock trap or hazard to unwary pedestrians ….

No liability, says the court; I think its analysis isn't quite sound (which focuses on supposed lack of duty on the part of some defendants and lack of a "physical act" by others). But I agree that the court should have found that, as a matter of law, the defendants didn't act unreasonably.

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  1. I sometimes think verdicts should be along the lines of “plaintiff is too damned stupid and clumsy to take care of herself, so we appoint a guardian, at her expense, without whose presence she is not allowed outside or in her kitchen or on any stairs within her house.”

    1. Yes. This is long overdue.

    2. Since you wouldn’t mind taking away her 1A rights, I guess she should lose her 2A rights as well, right?

      1. What 1A rights? The right to harass people with vexatious lawsuits and waste court time?

        Or the 1A rights of the advertiser?

    3. Emotionally, I can understand that. But simply being financially sanctioned for the frivolous lawsuit should be enough.

      They don’t do that nearly often enough, but it IS within the judge’s authority.

      1. I didn’t think anyone would seriously take me seriously.

    4. It’s a democrat lawsuit.

      1. It’s a Democratic country . . . well, except for the half-educated, superstitious, intolerant, can’t-keep-up parts.

        Which, thanks to our system’s structural amplification of rural voices and to vestigial voter suppression and gerrymandering, still gets a bit of a say in national debates. Fort a while longer, anyway, in an America whose electorate is becoming less rural, less white, less backward, less religion, and less intolerant.

  2. An incompetent, fragile stumbler has as much right to millions of dollars as an ordinary person, and is in much more need of it.

  3. Professor Volokh — any plans to post about the Massachusetts case (now decided by its highest court) about the woman who tweeted her boyfriend to encourage him to commit suicide, which he did, and she was convicted of manslaughter?

    Here is the link to the opinion: http://www.mass.gov/files/documents/2019/02/06/12502.pdf

    1. It looks like Prof. V. blogged about a similar case in 2011: http://volokh.com/2011/03/16/f…..e/#contact

  4. I, on the other hand, saw your reproduction on my desktop computer screen, recoiled in shock and horror, lurched backwards a few feet, and startled my cat. My cat yowled and zoomed off to her left. This dislodged a stack of Staples boxes, which toppled over. The top box contained fireworks that somehow exploded, which caused my Pasgraf-brand scale to tip over and hit me, causing significant injuries.

    You’ll be hearing from my solicitor.

    1. Following up on a story from a day or two ago, what if the poster frightened a cow, or frightened a dog who frightened a cow, who then ran over plaintiff….

      1. Nice touch. I’d forgotten about that post…wish I had added it to my fact pattern.

  5. Sadly, this wasn’t about the Dexter with the laboratory. He could be pretty scary at times, too.

  6. I was pretty scared that Jimmy Smits would ruin Dexter, then Lithgow came along, but then Julia Stiles came along and actually did ruin Dexter

    1. Amen, brother. Julia Stiles makes Amanda Peet look like Meryl Streep.

      Lithgow was really good, and the topper was getting rid of Rita once and for all. God was she annoying.

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