Mimi Carter, the foundation’s director of communications wrote “If you were parents of a child with epilepsy, you would not send your child to the movie. Why would you risk it?”
That leads to two questions. First, whether the movie production company can be sued for negligence or failure to warn. Second, could the company sue the foundation or Carter for product disparagement or defamation (against the producers in a per quod action).
On the first question, there have been nine reported cases of seizures during the film and the company is now aware of thousands of people receiving warnings from the foundation. The most obvious claim of negligence arises in the use of strobe effects with flashes of red, white, and black. Previous television shows and movies have been alerted to the same problem. Applying the Hand formula (B<PL), it would seem a small burden (b) and a rather high (l) even though the reaction remains relatively unlikely given the numbers of movie watchers. In addition, there is the question of whether the movie producers tested the film to determine the potential for such a reaction. This was the case it appears with the Japanese cartoon Pocket Monsters that sent a reported 700 people to the hospital. As noted in Weirum v. RKO General, “foreseeability . . . is a primary consideration in establishing the element of duty.”
There is the separate issue of the need for a warning when such effects are used. Under the Third Restatement, a warning defect occurs “because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings … and the omission of the instructions or warnings renders the product not reasonably safe.”
There is also the question of a design defect as a movie that is, under the test of 402A of the Second Restatement, more dangerous than “the reasonable expectations of the ordinary consumer”. Various sites discuss how an estimated 5% of those with epilepsy have photosensitive epilepsy. What is interesting is that the rate of photosensitive epilepsy is higher in children and young people. This would make the likelihood greater in films with larger audiences of young people. Yet, a film would appear closer to a service than a product for the purposes of strict liability. This would leave negligence.
The interesting aspect of this allegation is that it goes to a special effect — not the content as with prior lawsuits against films like Natural Born Killers. Lawsuit on the storyline or content run into serious first amendment problems. Moreover, there remains the tough question of proximate cause and the superseding intervening acts of others. Here the movie elected to use strobe effects with the knowledge that there are some audience members who could respond in seizures.
While hyper-sensitive consumers are usually required to protect themselves, they have little ability to do so without a warning. Moreover with the strobe effect, the rate of the flashing and its colors can be easily adjusted to avoid such responses, it appears. This could make for an interesting lawsuit.
What do you think?
Source: Baltimore Sun
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