He Who Injureth Must Payeth: Medieval Dinner Serves Up Modern Tort

This happy honeymoon picture of South Dakota couple Dustin Wiseman, 37, and Melissa Wiseman, 38, recorded the scene for an alleged tort by Medieval Times in Buena Park. The couple was eating dinner when a Medieval sword fight allegedly felled Dustin with a metal shard that broke off from one of the swords. Wiseman suffered a severe injury to his eye and is now seeking $10 million from the company.

Notably, the sword was made of the distinctly non-Medieval metal of titanium. The injury to his left eye required three surgeries and he is now blind in that eye.

It would seem unlikely that there was another source for the titanium shard and that the factual causation would be likely conceded absent a case of fraud.

There could be a waiver form but this is the only warning published on the site:

Medieval Times is a live horse show in an enclosed arena. Persons sensitive to horses or with respiratory conditions, allergies or asthma attend at their own risk. Medieval Times uses stroboscopic effects which may be a factor in triggering epileptic seizures. Medieval Times is not responsible for lost or stolen property. Restaurant seating is subject to availability. Entry in the Castle constitutes consent to use any film, video or likeness to bearer. The possession or consumption of alcoholic beverages is prohibited under the legal age limit. Identification required. No refunds. No exchanges. No cash value. Valid only for date and time purchased. No substitutions. Not valid for special engagements.

It is hard to see the defense. It would not appear a case of contributory negligence given the fact that the couple was simply having dinner. It would also not seem a case of assumption of the risk since one does not assume the risk of being cut down by a shard. That leaves solely the question of damages.

There is also the question of the liability of the sword manufacturer. It would be interesting if the sword manufacturer warns that the swords are not rated for actual sword fighting. Some sites have rather confusing warnings like “Warning! Sharp edges blade (option) is very dangerous to be used during combat. We take no responsibility for effects of such using.”

Source: OC Weekly

19 thoughts on “He Who Injureth Must Payeth: Medieval Dinner Serves Up Modern Tort”

  1. OK “live by the sword, die by the sword,” but the issue here is different. ONE guy lived by the sword and a DIFFERENT GUY got hurt. He was living by the FOOD!

  2. If someone gets injured at the zoo, by an animal, without liability on the person’s part (no disobedience to the warning signs, etc.) is there liability? It would seem to me that is almost analogous.

  3. “Why was there a sword fight near the dinner party?”

    To better entertain the guests.

    Honestly, I’ve never attended one of these things and don’t know if that’s the norm or not. You may well have a good negligence theory–MT was negligent because the risk of a fleck of metal flaking off in a sword fight was foreseeable and could have been prevented by keeping the customers X feet away from the performance. I don’t know enough about the facts to say whether that’s the case or not. I do know that having an accident on their premises is not good enough by itself to create legal liability.

  4. I suspect the defense will be that this was a freak accident, but not our fault.
    Why was there a sword fight near the dinner party?

  5. No strict liability to Medieval Times. I’m not so sure there’s not a negligence defense. Sure, they have a duty to act in a reasonably prudent manner, but precisely how did they breach this duty? By having a sword fight with spectators nearby (i.e., precisely what they do all the time)? I suspect the defense will be that this was a freak accident, but not our fault.

  6. The article was not very explicit about what happened. Those who live by the sword, die by the sword. If the guy engaged in some activity that opened himself up to injury it is his own damn fault. Dont blame the sword. The sword is my witness.

  7. Hard to see how this is an assumption of risk (I am not a lawyer) that said I am also bling (legally) in one eye and therefore also have limitations but as someone who got virtually bupkis for permanent pain, disfigurement and disability ina forced settlement in a case where the defendant doc’s testimony was called perjurious by Pa Superior court, I find 10 million totally out of line, I know you have to state figure and this gets attention.

  8. Safety glasses will now be distributed to all diners. I gave a speech @ an insurance convention back in the 90’s. The other speaker was an eye surgeon. He toured the country giving speeches about the need to ALWAYS wear protective eyewear when hammering nails. He had done hundreds of surgeries[very difficult] removing microscopic shards of metal from guys simply nailing. This doc was really passionate about this. He had stage fright and told me before we spoke about how beta blockers were the only thing that allowed him to get up in front of audiences. A truly good man.

  9. This is not exactly like getting hit by a foul ball at a baseball game. It’s an unexpected circumstance that undoubtedly wasn’t disclaimed by the venue. They must and will pay, probably through their insurer, but undoubtedly less than the amount asked for, which is simply an attention getter.

  10. Noticed the first commenter, “Jim” is the same spammer who was just banned at Daily Kos for the same thing. Peddling watches. Wonder if this is the same spammer who was selling handbags a while back? “Jim,” if you want to advertise, buy an ad.

  11. Decision for the plaintiff, they’re disclaimer doesn’t imply danger from the actors, so as AY said comes down to whether there is an ability to pay and/or insurance. I didn’t know that titanium, which is supposed to be hard, splinters

  12. Sorry…. Forgot the obvious…..damages which are compensate under existing law…..

  13. Ouch…..meets all the elements… Duty, breach of duty damages…. Questions comes down to ability to pay…..hmmmm

  14. Seems like the theater is on the hook for this one, but I would probably believe their insurance carrier might subrogate some of the liability to the sword manuracturer if it can be shown somehow that titanium was a unsuitable metal for a sword, but that is something for someone familiar with metallurgy and metal fatigue with Titanium.

  15. IANAL, but $10 mil strikes me as eminently reasonable. I am almost blind in one eye (from birth), and have never seen the world in 3-D. It’s an enormous limitation, and this guy is only 37. Trust me, after a few years of serious impairment, he’s gonna wish he’d asked for more.

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