"Stop Me Before I Masturbate to Death"

Posted on June 10, 2010 by John Day

I file lawsuits for a living.  Thus, I understand that reasonable minds often differ about whether there is liability in a given situation, often because there is a dispute about the facts.  I also understand the idea of pushing the legal envelope - of attempting to expand the law to create a cause of action that will advance the overall cause of justice.

But a recent  lawsuit threw me for a loop.  David Carradine's widow has apparently sued the French production company that was handling the actor's last film, alleging that Mr. Carradine would still be alive if he had not been left in the hotel alone the night of his death.

Mr. Carradine was  was found dead on June 4, 2009 in his Bangkok hotel room --  a likely victim of auto-erotic asphyxia.  Allegedly, there is a  photo of Carradine  (published by a Thai tabloid) which shows a body suspended from a bar in a closet, with his hands bound together above his head. Carradine's genitals were also tied.  It is reported that the  family hired a doctor to do a private autopsy and determined that the cause of death was accidental asphyxiation. 

According to this report by ABC News,  Ms. Carradine "claims her husband's death could have been avoided if the production company, MK2 SA, had provided the actor with 'all the best amenities' and 'sufficient assistance.'"  The ABC News report goes on to say as follows:

The suit claims that Carradine was supposed to have dinner that night with the film's director but the assistant responsible for his schedule and transportation to the set and meetings left him behind at the hotel after failing to reach him.  When Carradine reached the assistant an hour later he was told "they were already across town and David Carradine would have to make his own arrangements that evening," the suit stated.  Carradine had only been in the city three days.

Let me get this straight.  Is the theory that if Mr. Carradine had been at dinner that evening he would not have decided to masturbate in his closet?  Or that  by telling Mr. Carradine that he would need to make his own arrangements that evening they should have reasonably foreseen that he would be so upset that he would place ropes around his neck and genitals and die?  Was the lack of "sufficient assistance" the failure to arrange the services of a hooker, so that Mr. Carradine would not have felt compelled to engage in alternative sexual behavior that would risk his life (more than taking up with a hooker in Bangkok)?   Are there some sort of special ropes that the company should have provided that have a quick-release mechanism that could have prevented this death?  
 
Perhaps there are facts here that have not found their way to the press. But I cannot imagine "facts" that are even remotely likely to be true that would give rise to liability under the circumstances as reported by a myriad of articles on the death and the litigation. 
 
There has been lots of litigation over the years concerning auto-erotic asphyxiation.  Most of these lawsuits are an attempt to recover accidental death benefits under a life insurance policy, the claimants asserting that the decedent was not engaged in an intentional act likely to lead to death but rather a sexual act.   My guess is that there are other cases where people argued that the suicide exclusion in a policy should not be applicable to a death of this type.  I understand these lawsuits.  But this claim, under the facts as reported, is ridiculous. 
 
Don't get me wrong.  I enjoyed David Carradine's work and feel sorry that his life ended so early, particularly in this way.  But a wrongful death lawsuit?  I just don't see it.
 
Some might suggest that this case will result in a hung jury, but I doubt it will survive a motion to dismiss.
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New Attorney General Opinion on Railroad Crossings

Posted on October 2, 2009 by John Day

The Tennessee Attorney General's Office has issued an Opinion that provides that "Tenn. Code Ann. § 65-12-108 does not require a train engine operator to blow a train’s whistle or horn before crossing a private drive.  Tenn. Code Ann. § 65-12-108 only requires that a train engine operator blow a whistle or horn at public railway crossings."

The Opinion references a recent decision from the federal court in East Tennessee:

In Artrip v. Norfolk Southern Railway Company, No. 2:08-CV-200, 2009 WL 152482
(E.D. Tenn. Jan. 22, 2009), the United States District Court for the Eastern District of Tennessee relied on Tennessee state law in holding that there is no requirement for a train engineer to sound a whistle when approaching a private railroad crossing. In Artrip, the plaintiff brought a claim against Norfolk Southern Railway Company after the decedent was struck and killed at a private railroad crossing in Sullivan County, Tennessee. Id. at *1. The plaintiff alleged that the train operator’s failure to sound a whistle warning before crossing the private drive was an act of negligence. Id. at *3. However, the District Court found no merit in plaintiff’s allegations of negligence, concluding that “although the locomotive did not blow its whistle, there was no requirement that it do so at a private crossing.” Id. at *13 (citing 49 C.F.R. § 222.25 and Tenn. Code Ann. § 65-12-108(1)). Summary judgment was granted in favor of the train operator, and the plaintiff’s claims were dismissed. Id. at *15.

Obviously, the Attorney General agreed with the decision of the federal judge. Read Opinion 09-161 here.

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