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Dec 09 2012

Kate Middleton Prank Call Will Not Result in Liability

We’ve all heard the horrible story – a pair of Australian DJs somehow fool a hospital switchboard to connect them to the nurse caring for pregnant Kate Middleton, one of them pretending to be Queen Elizabeth the other pretending to be Prince Charles. The nurse despite the poor impressions of the DJs gives out health information regarding Kate Middleton. The call goes viral as the DJs reveal the prank and the next day or so, the nurse commits suicide in shame. The public outcry is swift and severe calling for the heads (and jobs) of the DJs. But can legal action (criminal or civil) be taken against them? The answer is no (at least under US law). The simple explanation is that the result of their call was not foreseeable nor even likely to lead to the result. On the criminal justice front, there was no intent to do any harm to the nurse nor was harm foreseeable enough to expose them to criminal liability.

Kate photo courtesy of The Nation.

Civil liability for another person’s suicide is usually limited to two circumstances – (1)An institution or medical professional that has sufficient control over an individual with suicidal tendencies that does not take sufficient steps to prevent the suicide and (2) Someone who causes an accident resulting in brain trauma that results in a suicide. Think about how expansive the liability would be if it were otherwise. Any slight insult or social wrong that upsets a person to the point of suicide could result in tremendous liability for minor wrongs. This was a joke, in poor taste to some perhaps, but a rather routine form of prank common to morning radio shows. In fact, the day following the prank, reporters asked Prince Charles how his daughter-in-law was doing and he laughingly replied- “She’s doing well. But how do you know I’m not a radio station.” So even members of the Royal Family understood the nature of the prank. From America’s Funniest Home Videos, to Punk’d, to Candid Camera, these gags have become mainstream humor. In fact, another viral video recently hitting the web is of a prank from a Brazilian TV show that has unknowing persons enter an elevator which then goes dark. While the lights are out, a child dressed as a zombie/ghost enters the elevator through a secret compartment and stands silently when the lights get turned back on. The folks are of course scared stiff as this “apparition” suddenly appears in the elevator and then screams at them suddenly. Now if one of those folks suffers a hear attack during that prank, I think that would be actionable as that result is completely foreseeable.

Without any knowledge of a person’s prior mental history, it is very hard to predict future suicidal tendencies. In fact, most psychiatrists will tell you that any future human behavior is difficult to predict. As a senior trial lawyer for the City of New York, I tried the first case in the state that attempted to hold the City liable for a police officer’s suicide. The officer had his gun taken away from him earlier in the same year for drinking on the job. After some counseling, his weapon was restored to him and he used it to take his life. Not surprisingly, the trial jury found in favor of the widow and awarded her over a million dollars. I won on appeal however when the appellate court agreed with our legal argument that the City had no reason to believe he was suicidal and that he could have used any number of other implements and methods available to him in his home even if he did not have his gun. In throwing the case out, the appellate court stated that “Despite our sympathy for those who have suffered as a consequence of decedent’s death, [the suicide was not reasonably foreseeable] to the City.” Cygan v. City of New York. 165 AD2d 58 (1st Dep’t 1991).

Here it could not have been reasonably foreseeable that a nurse would be so shattered by being taken in by this prank that she would take her own life. She obviously was excited to have her 15 minutes of fame and to have the rare opportunity to speak to Her Majesty and His Royal Highness. It clouded her judgment to make sure she was speaking to the actual folks prior to divulging any information. No one could possibly predict the end result.

So as much as some may want these DJs to suffer for the consequences of their boorish and sophomoric behavior, there is just no legal basis to do so.

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