Academic journal article Sport Marketing Quarterly

Foreseeability and Flying T-Shirts: Palsgraf Revisited

Academic journal article Sport Marketing Quarterly

Foreseeability and Flying T-Shirts: Palsgraf Revisited

Article excerpt

The beauty of tort law is that it retains an inherent flexibility responsive to societal developments and new technologies. Whether we are dealing with a horsedrawn carriage run amuck or a modern-day marketing promotion using a t-shirt cannon, courts still address the essential and fundamental issues of duty, breach of duty, causation and damages. A recent New York case illustrates a court's reliance on long-established precedent as it decided the case of the flying t-shirts.

In the case of Curran v. CXR Holding, Inc. (2006), the plaintiffs were attending a July 4th fireworks celebration at Jones Beach, New York, in 1999. The plaintiffs were an 11-year-old girl and her grandmother, who were sitting on a blanket at the beach with six of the minor plaintiff's siblings. At the time, the grandmother was in charge of seven children; the oldest child was 14 and the youngest was a newborn infant in a stroller.

The defendant radio station, CXR Holding, Inc., d/b/a/ WBAM-FM, (hereinafter "CXR") began launching t-shirts into the audience as a part of a promotion. The facts are disputed as to whether the defendant used a bungee cord cannon-type device or whether the tshirts were simply thrown into the crowd. The plaintiffs were injured when "a large, rowdy male beachgoer descended upon the blanket in an attempt to grab a 'flying' t-shirt" (Curran, 2006, p. 2). The plaintiff minor suffered a fractured leg which required two surgeries and her grandmother had an injured shoulder requiring two surgeries including the implantation of a metal anchor. The plaintiffs sued the defendant alleging that their injuries were a reasonably foreseeable consequence of the negligent actions of CXR. The defendant sought dismissal of the plaintiffs' complaint arguing that the proximate cause of the plaintiffs' injuries was the unforeseeable actions of the third party, the rowdy male beachgoer who fell upon the plaintiffs. The New York Supreme Court denied the summary judgment motion and the case will proceed to trial, assuming that the parties do not settle the matter.

In its order denying summary judgment, the court first addressed the question of whether the defendant, CXR, owed a duty of care to the plaintiffs. The question of duty is, of course, a matter of law to be decided by the court. The court noted that the duty is dependent upon the circumstances and the scope of the duty is defined by the risk of harm which is perceived. On this issue the court stated: "It is axiomatic that inducing young adults to run helter-skelter within a crowded beach to catch thrown or catapulted free t-shirts, creates a foreseeable risk of harm to uninvolved, thirdparty beachgoers, such as the plaintiffs herein"(Curran, 2006, p. 3).

In this situation, the court held that the permission to stage the event, which was given to the defendant radio station, obligated the defendant to ensure that reasonable, common sense safeguards were used. This would encompass, in the court's view, security and warnings and not allowing the t-shirts to be randomly distributed without regard for the safety of those on the beach.

The court noted that the defendants provided no security nor did it post any safety warnings or give any oral warnings. It was not reasonable for defendant to expect the plaintiff grandmother to relocate seven children and all their belongings. In fact, the courts stated that: "It could hardly be expected for Mrs. Tacchi [the grandmother] to attempt to walk the seven children through a gauntlet of frenzied rowdies" (Curran, 2006, p.3). Further, the court characterized the plaintiffs and other children as captives in the circumstance.

On the proximate cause argument the court was adamant that because the "operation, control, design and calculation of the geographical radius of this event was solely within the discretion of the defendant" (Curran, 2006, p.3), it was not appropriate for the defendant to argue that the injuries were solely caused by the actions of the rowdy beachgoer. …

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