Easter Egg Hunt Interrupted By Fatal Fall of Skydiver

20140422_inq_jwing22z-aThe Easter Egg hunt of the Dye family of New Jersey was interrupted by a rather unexpected event: the fatal fall of a skydiver. Arkady Shenker, 49, had jumped around 13,500 feet wearing a “wing suit” that might have malfunctioned. The result was tragic for everyone and could lead to some interesting tort liability questions.

In Torts, I often discuss my collection of “falling body” cases where people are killing or injured by falling bodies of one type or another. Macabre to be sure but it helps teach the principles of res ipsa loquitur. The family says that Shenker appeared to still be breathing when they ran to him.

The horrific accident could raise a product claim over the wing suit not only for Shenker but those who witnessed the accident. For Shenker’s family, there remains the question of plaintiff’s conduct in either assuming the risk or comparative negligence. There is also the question of causation and whether under res ipsa loquitur this is the type of accident that does not normally occur without negligence. One could see a wide array of accidents caused by people making bad judgments or freezing up at key moments.

As for the family, there is the negligent infliction of emotional distress. However, they were not related to Shenker and were not injured themselves physically. That could cause problems in some states. A few still require contact while others follow the zone of danger test. At one time, the tort was limited by the need for physical contact or injury. The “zone of danger” test expanded on that concept where a plaintiff demonstrates negligence causing emotional distress and that she was within the zone of physical danger of the negligent act. This test was expanded further in those states following Dillon v. Legg, 441 P.2d 912 (Cal. 1968), which questioned the viability or artificiality of the zone test:

“[P]laintiff is outside the zone of physical risk (or there is no risk of physical impact at all), but bodily injury or sickness is brought on by emotional disturbance which in turn is caused by defendant’s conduct. Under general principles recovery should be had in such a case if defendant should foresee fright or shock severe enough to cause substantial injury in a person normally constituted. Plaintiff would then be within the zone of risk in very much the same way as are plaintiffs to whom danger is extended by acts of third persons, or forces of nature, or their own responses.”

The bystander rule under Dillon requires that the victims be physically in a position to witness the injury (proximity) and that the plaintiff and the direct victim be closely related. That could be a problem here. However, it depends on the jurisdiction and how the claims are fashioned.

This case does seem to support those states pushing beyond Dillon in extending potential liability to non-family members. The exposure of children at such an event is particularly harmful.

20 thoughts on “Easter Egg Hunt Interrupted By Fatal Fall of Skydiver”

  1. Gus – No one is “required” to go out on these attention seeking ego trips that Veronica and I are referring to.
    The dangerous jobs people choose to do are not included in that group of “problem dumping on others” offenders.
    It’s the show offs who risk the lives of others and run up enormous rescue costs and efforts on the publics tab of which we speak.

  2. Darrell and Veronica Lucky for you that you are not required to do anything dangerous. ( Other than drive a car on the freeway perhaps ) You also are not required to rescue anyone who is an idiot , nor are you required to be a witness ( just turn away ) nor are you required to babysit idiots. So please drop the suggestion that more things should require jail time or your supervision. I am begging you to let me alone. 99guspuppet

  3. If at first you do not succeed …. sue sue sue again. In America …. lawyers have managed to expand the grounds for a suit to almost anything that could be construed as causing distress…. and the person who defines the distress is the plaintiff ! What a racket …l. American lawyers have insured business will be good for them … forever. And a plaintiff can put the tag on anyone with deep pockets. I just read in your blog, that possessing dirty pictures of kids can make you liable for monetary damages … no intent to do harm is required. ….. Since I support the right of anyone to look at whatever content they want… I suppose I should pay up as well. #AMERICAakaLawsuitWorld 99guspuppet

  4. Veronica – When I was younger and thought I knew it all, I too with my knowledge that I was invincible, did things like that but my upbringing was that my taking chances better not be putting others at risk. Unaware, at times I DID do it and lucky, no tragedy ever occurred.
    My KARMA for that was likely when a chance taker hit me head-on in my ditch.(I had the motorcycle, he the car) As bad as that was 50 years ago I’m glad I have not had to live with doing what he did.

    ONLY ONE person may have ever climbed Mt. Everest to my knowledge without being baby sat by a Sherpa. The story I read stated about 1929, a lone man went up and never returned. Many years after Hillary and his Sherpa summited, a historian and climber states he saw the 1929 climbers body or bones on the impossible to climb slope side and the thinking was he had to summit to have fallen there?????

    Nick – My point about substantial jail time is for before the illegal risk takers get themselves killed – like when caught before, while attempting or after successful ego trips like the WTC Memorial climber.

    Also I read the news story imbedded in this article which tells all about the flyer having both a chute and a spare and entanglement.

  5. Could be operator error. Beginner? Didn’t read the manual? Defective product? Watch this guy do it with a wingsuit. You won’t be disappointed.

  6. I was not sure if this article was satire initially or not … Seriously

    As a former Army paratrooper who has jumped militarily from 13,500 feet myself I am saddened by the skydiver’s death obviously

    And as far as Torts go, absent any drugs in the skydiver’s blood that would have prevented coherent opening of his equipment, it would appear that the wing suit manufacturer might have some liability here …

    But under the category of “You can’t make this stuff (sh*t) up you started the entire article with the sentence: “The Easter Egg Hunt of the “Dye” family …..”
    and then you proceed to tell the story of a skydiver “dying” after a Freefall …..


  7. Veronica, Lot of wealthy climbers are whining about the Sherpa strike. Elitists have taken advantage of them for decades. Not all climbers. I know a guy who is a good man and really took care of his Sherpa guides. But, many consider them servants, not guides.

  8. Just this past week, a number of sherpas were killed on Everest – setting up the ropes and tackle for the ‘mountain climbers’ attempting the Everest climb – they are asking for a large pay raise to compensate for their risk – but it shows the nonsense of things like this being attempted by those who have no clue what they expect others to risk FOR them. I would just BAN these types of ‘sports’ altogether. Everest has been climbed – good – it’s achieved – leave it at that.

  9. That said, I do agree w/ you Darrel. The cliffs of La Jolla have people always getting hung up causing lifeguards and firefighters, often w/ copters, having to save their stupid asses.

  10. Risk takers of this magnitude,(mountain climbing, avalanche causing ski/snowmobile activities, etc.) impose burdens on witnesses and rescue teams without responsibly considering the consequence’s for others of their selfish desire to have an adrenalin rush. Yeah, IMO we need to be holding them responsible which is often impossible??? Substantial jail time may be the only threat they fear enough to reconsider burdensome risk taking.

  11. ” I think if all this guy had was the wing suit and no emergency parachute”

    I know zero about wing suits. But I wonder if it is feasible to wear a parachute while using a wing suit. Maybe a reader has some experience with wing suits and can tell us.

  12. This was a “Married With Children” episode once. Except it was the mall santa that came crashing down in the Bundy’s backyard to the horror of the neighbor kids.

  13. Ouch! We have had hot air balloons come down on our property, but thankfully nothing as disturbing as this issue. I think if all this guy had was the wing suit and no emergency parachute, assumption of risk and/or comparative negligence may be a problem for his estate.

  14. Keebler, Lol! I’m reminded of the Classic WKRP sitcom when Les Nessman broadcast the horror of the station’s Thanksgiving promotion of live turkeys plummeting to their death in front of families.

Comments are closed.