FOR EDUCATIONAL USE ONLY
Copr.
© West 2000 No Claim to Orig. U.S. Govt. Works
90
F.Supp.2d 798
143 Ed. Law Rep. 500,
RICO Bus.Disp.Guide 9874
(Cite as: 90 F.Supp.2d 798)
<KeyCite Citations>
United States District Court,
W.D. Kentucky,
Paducah Division.
Joe JAMES and Judy James, Co‑Administrators of the
Estate of Jessica
James and Thomas Wayne Steger and Sabrina Collins Steger,
Co‑Administrators of
the Estate of Kayce Steger and Gwen Hadley, Administratrix
of the Estate of
Nicole Marie Hadley, Plaintiffs
v.
MEOW MEDIA, INC., d/b/a www.persiankitty.com, Network
Authentication Systems,
Inc., d/b/a www.adultkey.com, www.porntech.com, Midway Home
Entertainment,
Apogee Software, Ltd., ID Software, Inc., Acclaim
Entertainment, Inc., GT
Interactive Software Corp., Interplay Productions, Inc.,
Nintendo of America,
Sega of America, Inc., Virgin Interactive Media,
Activision, Inc., Capcom
Entertainment, Inc., Sony Computer Entertainment d/b/a Sony
Interactive Studios
America, Lasersoft, Inc., Williams Entertainment, Inc.,
Time Warner, Inc.,
Polygram Film Entertainment Distribution, Inc., Island
Pictures, Palm Pictures
and New Line Cinema, Defendants.
No. CIV.A. 5:99CV‑96‑J.
April 6, 2000.
Parents of children
murdered by student brought action against makers and distributors of video
games, violent movie and purportedly obscene Internet websites for negligence,
strict products liability and for violations of Racketeer Influenced and
Corrupt Organizations Act (RICO) on ground that defendants' actions caused
children's deaths and subsequent loss of earning capacity. On defendants'
motions to dismiss, the District Court, Johnstone, Senior District Judge, held
that: (1) defendants could not have reasonably foreseen that 14‑year old
user would murder fellow students; (2) user's actions superseded any violations
on defendants' part; (3) intangible thoughts, ideas and messages contained
within video games, movies, and website materials were not "products"
for purposes of strict products liability; and (4) loss of potential earnings
was not "injury to property" sufficient to support action under
Racketeer Influenced and Corrupt Organizations Act (RICO).
Motions granted.
West Headnotes
[1] Negligence k1692
272k1692
Under Kentucky law, whether defendant owed duty is matter
of law for court to determine.
[2] Products Liability k62
313Ak62
Under Kentucky law, makers and distributors of video games,
violent movie and purportedly obscene Internet websites could not have
reasonably foreseen that 14‑year‑old user would murder fellow
students after playing with and viewing their products and information, and
thus did not owe duty of care upon which liability to victims could be imposed.
[3] Negligence k1713
272k1713
Under Kentucky law, whether intervening act is superseding
cause becomes factual question for jury only when actual occurrence of
intervening act is in dispute.
[4] Products Liability k62
313Ak62
Under Kentucky law, even if makers and distributors of
video games, violent movie and purportedly obscene Internet websites were
negligent in design, manufacture or distribution of their products, shooting
spree by 14‑year‑old who was allegedly influenced by games, movie
and websites was superseding cause of deaths of user's victims, thereby
relieving makers and distributors of liability for deaths of victims.
[5] Products Liability k62
313Ak62
Under Kentucky law, as predicted by the district court,
intangible thoughts, ideas and messages contained within video games, movies, and
website materials were not "products" for purposes of strict products
liability, and thus makers and distributors of games, movies and websites could
not be held strictly liable of to victims of shooting spree by 14‑year
user who allegedly performed murders as result of those ideas.
[6] Racketeer Influenced and Corrupt Organizations k69
319Hk69
Plaintiffs bringing civil action under Racketeer Influenced
and Corrupt Organizations Act (RICO) must identify subsection of RICO statute
that defendants allegedly violated. 18
U.S.C.A. § 1962.
[7] Racketeer Influenced and Corrupt Organizations k73
319Hk73
Plaintiffs asserting civil claim under Racketeer Influenced
and Corrupt Organizations Act (RICO) must allege existence of enterprise. 18 U.S.C.A. §§ 1961(4), 1962(c).
[8] Racketeer Influenced and Corrupt Organizations k72
319Hk72
Plaintiff alleging violation of Racketeer Influenced and
Corrupt Organizations Act (RICO) must allege facts that would establish that
defendant's "pattern of racketeering activity" was related to
enterprise. 18 U.S.C.A. § 1962(c).
[9] Racketeer Influenced and Corrupt Organizations k59
319Hk59
Personal injuries and mental suffering do not confer person
with standing to bring claim under Racketeer Influenced and Corrupt
Organizations Act (RICO), because those types of damages are not injuries to
"business or property." 18 U.S.C.A. § 1962.
[10] Racketeer Influenced and Corrupt Organizations k59
319Hk59
Loss of potential earnings was not "injury to
property," and thus makers and distributors of video games, violent movie
and purportedly obscene Internet websites were not liable to parents under
Racketeer Influenced and Corrupt Organizations Act (RICO) for loss of earnings
resulting from shooting deaths of their children by user of games, movie and
websites. 18 U.S.C.A. § 1962(c).
[11] Racketeer Influenced and Corrupt Organizations k62
319Hk62
Even if makers and distributors of video games, violent
movie and purportedly obscene Internet websites formed enterprise that resulted
in injury to parents of children murdered by 14‑year‑old user of
products, user's actions constituted superseding cause of parents' injuries,
thereby relieving makers and distributors of liability under Racketeer
Influenced and Corrupt Organizations Act (RICO) for deaths of victims. 18 U.S.C.A. § 1962(c).
*799
John B. Thompson, Coral Gables, FL, David A. Strauss, Chicago, IL, Michael A.
Breen, Mike Breen Attorneys at Law, P.S.C., Bowling Green, KY, for Joe James,
Judy James, Thomas Wayne Steger, Sabrina Collins Steger, Gwen Hadley.
Mark P. Bryant,
Paducah, KY, for Meow Media.
Steven C. Jackson,
Jackson & Jaggers, Paducah, KY, Joel N. Kreizman, Evans, Osborne &
Kreizman, Ocean, NJ, for Network Authentication Systems, Inc.
David L. Kelly,
Denton & Keuler, Paducah, KY, Gerold O. Sweeney, Jr., John T. Williams, Lord, Bissell & Brook,
Chicago, IL, for Midway Entertainment.
Richard H.C. Clay,
Woodward, Hobson & Fulton, Louisville, KY, John David Cole, Cole, Moore
& Baker, Bowling Green, KY, *800
D. Wade Cloud, Jr., James T. Drakeley, Hiersche, Martens, Hayward, Drakeley
& Urbach, P.C., Dallas, TX, Paul E. Salamanca, Lexington, KY, for ID
Software, Inc.
Stephen E. Smith,
Jr., McMurry & Livingston, Paducah, KY, Bruce J. Ennis, Jr., Deanne E.
Maynard, Paul M. Smith, Elizabeth A. Cavanagh, David C. Belt, Jenner &
Block, Washington, DC, for Acclaim Entertainment, Inc., GT Interactive Software
Corp., Interplay Productions, Inc., Nintendo of America, Sega of America, Inc.,
Virgin Interactive Media, Activision, Inc.,, Capcom Entertainment, Inc., Sony
Computer Entertainment.
V. Thomas Fryman,
Jr., Mark S. Riddle, Greenebaum Doll & McDonald, Louisville, KY, Kevin T.
Baine, Nicole K. Seligman, Jane E. Genster, Williams & Connolly,
Washington, DC, for Time Warner, Inc., New Line Cinema.
Mary Elizabeth
McGarry, Barry R. Ostrager, Simpson, Thacher & Bartlett, New York City,
Ronald G. Sheffer, Sheffer, Hutchinson & Kinney, Louisville, Ky, For
Polygram Film Entertainment Distribution, Inc.
MEMORANDUM OPINION
JOHNSTONE, Senior
District Judge.
This matter is
before the Court for ruling on Defendants' Motions to Dismiss [dkt.# 10, 47,
48, 49, 50, 52, & 53]. The Motions
have been fully briefed and are now ripe for review. For the reasons set forth herein, the Motions to Dismiss will be
granted and this case will be dismissed as to all Defendants.
Background Facts
and the Complaint
Plaintiffs brought
this action alleging negligence, strict liability, and RICO violations against
various groups of Defendants based on the underlying theory that the
Defendants' actions or lack thereof in creating and distributing a movie,
numerous video games, and various internet materials caused their daughters'
deaths and subsequent loss of earning capacity. As common to all counts, the following facts are set forth in
the complaint:
On the morning of
December 1, 1997, Michael Carneal, then fourteen years of age, took six guns,
including a pistol, to the Heath High School in McCracken County,
Kentucky. Carneal waited for a daily
voluntary student prayer session to end.
He then shot Jessica James, Kayce Steger, and Nicole Hadley, all three
of whom were members of the prayer group, to death. He wounded five others.... In the aftermath of the massacre the
police seized Michael Carneal's computer.
Carneal was an avid computer user who logged onto the Internet to
consume material that was obscene, obscene for minors, pornographic, sexually
violent, and/or violent in content.
Law enforcement officials also learned that Carneal was a consumer of
violent computer and video games ... [and] that Carneal was a consumer of
movies containing obscenity, obscenity for minors, pornography, sexual
violence, and/or violence. One such
movie that Carneal consumed was The Basketball Diaries. In this movie a student ... graphically
massacres his classmates with a shotgun.... Dr. Diane Schetky ...an adolescent
psychiatrist ... concluded that Carneal was profoundly influenced by his
exposure to the above violent/pornographic media and that: '[t]he media's depiction of violence as a
means of resolving conflict and a national culture which tends to glorify
violence further condones his thinking.'
Michael Carneal was found guilty of second‑degree murder and
sentenced to twenty‑five years in jail without possibility of parole.
Based on the foregoing, Plaintiffs, the parents of the deceased
children, filed the instant complaint against three distinct groups of
Defendants.
The Basketball Diaries Defendants
In count one of the complaint, Plaintiffs sue the makers and
distributors of a movie *801 titled
The Basketball Diaries. [FN1]
Plaintiffs describe the movie as being "a nihilistic glamorization
of irresponsible sex, senseless and gratuitous violence, hatred of religion,
disregard of authority, castigation of the family, drug use, and other self‑destructive
behaviors." According to
Plaintiffs, the Diaries Defendants "fabricated a gratuitous and graphic
murder spree for the sole purpose of hyping the movie and increasing its appeal
to young audiences. This had the
effect of harmfully influencing impressionable minors such as Michael Carneal
and causing the shootings."
FN1. Plaintiffs name Time
Warner, Palm Pictures, Island Pictures, New Line Cinema, and Polygram as
Defendants in the complaint [hereinafter referred to as the Diaries
Defendants].
The
Video Games Defendants
In
count two of the complaint, Plaintiffs sue the creators and distributors of
various video games, [FN2] alleging that the Video Games Defendants
"manufactured and/or supplied to Michael Carneal violent video games which
made the violence pleasurable and attractive, and disconnected the violence
from the natural consequences thereof, thereby causing Michael Carneal to act
out the violence ... [and] trained Carneal how to point and shoot a gun in a
fashion making him an extraordinarily effective killer without teaching him any
of the constraints or responsibilities needed to inhibit such a killing
capacity."
FN2. Plaintiffs name
Midway Home Entertainment, Apogee Software, Inc., ID Software, Inc., Virtus
Corporation, Acclaim Entertainment, Inc., Atari Corporation, GT Interactive
Software Corporation, Interplay Productions, Inc., Nintendo of America, Sega of
America, Inc., Virgin Interactive Media, Activision, Inc., Capcom Entertainment,
Inc., EIDOS Interactive, Williams Entertainment, Inc., Square Soft, Inc. d/b/a
Square USA Inc. and Sony Computer Entertainment d/b/a Sony Interactive Studios
America as Defendants in the complaint [hereinafter referred to as the Video
Game Defendants]. Plaintiffs later
voluntarily dismissed Defendants Virtus Corporation, EIDOS Interactive, Square
Soft, and Atari Corporation. [See dkt.#
34, 41, 44 & 45].
The Internet Defendants
In count three of the complaint, Plaintiffs sue various owners of
internet websites. [FN3] According to
Plaintiffs, the Internet Defendants "distributed to Michael Carneal, a
minor, by means of the Internet, certain pornographic and obscene
material. This material influenced
Carneal in such a fashion that it was a legal cause of the injuries to
Plaintiffs' decedents. Such material, among other effects, served to further
attenuate actions from consequences in Carneal's mind, made virtual sex
pleasurable and attractive, provoked violence in Carneal, and disconnected the
violence from the natural consequences thereof, thereby causing Michael Carneal
to act out the violence."
FN3.
Plaintiffs name Meow Media, Inc. d/b/a www.persiankitty.com and Network
Authentication Systems, Inc. d/b/a www.adultkey.com and www.porntech.com as
Defendants in the complaint [hereinafter referred to as the Internet
Defendants].
In addition, Plaintiffs allege in count four
that the Internet Defendants
"engaged in a pattern of racketeering activity by distributing
certain obscene matter by means of the Internet through interstate commerce to
Michael Carneal, a minor in violation of state and federal obscenity and
obscenity to minor statutes."
Allegations Common To All Defendants
After making the foregoing specific
allegations as to each group of Defendants, Plaintiffs bring some twenty‑three
claims sounding in negligence and strict products liability in counts one
through three common to all Defendants.
Among these various claims are the allegations: that the Defendants knew or should have
known that copycat violence would result from the use of their products and
materials; that Defendants knew or
should have known that their products and materials created an unreasonable
risk of harm because minors would be influenced by the effect of their products
and materials and then would cause harm;
that Defendants knew *802 or
should have known that their products and materials were in an unreasonably
defective condition and likely to be dangerous for the use for which they were
supplied; and that Defendants failed to exercise reasonable care to inform
consumers of the dangerous condition of their products and materials or of the
facts which made their products and materials likely to be dangerous.
The Motions to Dismiss and the Failure to
State a Claim Standard
Defendants filed various motions to dismiss
these claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
arguing that Plaintiffs' allegations fail to state a claim upon which relief
can be granted. When evaluating a
12(b)(6) motion to dismiss, the Court liberally construes a plaintiff's claim
and will grant the motion to dismiss only if "it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Windsor v.
The Tennessean, 719 F.2d 155, 158 (6th Cir.1983)(citing Conley v. Gibson, 355
U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
In reviewing a plaintiff's claim, Rule 12(b)(6) requires the court to
accept all factual allegations as true because the purpose of the motion
"is to allow a defendant to test whether, as a matter of law, the
plaintiff is entitled to legal relief even if everything alleged in the complaint
is true." Mayer v. Mylod, 988 F.2d
635, 638 (6th Cir.1993). However, "[o]nly well‑pleaded facts ...
must be taken as true. The trial court
need not accept as true legal conclusions or unwarranted factual
inferences." Lewis v. ACB Business
Serv., Inc., 135 F.3d 389 (6th Cir.1998) (citations omitted).
Therefore, as the purpose of the motion to
dismiss is to challenge the legal theory of the complaint, the Court begins its
analysis by examining each cause of action separately to determine whether, as
a matter of law, Plaintiffs have stated a claim upon which relief can be
granted.
Plaintiffs' Causes of Action for Negligence
Plaintiffs allege various negligence claims
against all Defendants. To bring these
causes of action pursuant to Kentucky law, Plaintiffs must establish the three
fundamental elements common to all negligence claims: "a duty, a violation thereof, and consequent injury. The absence of any one of the[se] three
elements is fatal to the claim." M
& T Chemicals, Inc. v. Westrick, 525 S.W.2d 740, 741 (Ky.1974).
1). Did the Defendants Owe a Duty of Care?
Kentucky law dictates that "[e]very
person owes a duty to every other person to exercise ordinary care in his
activities to prevent any foreseeable injury from occurring to such other
person." Id. Plaintiffs allege
that Defendants breached the legal duty of ordinary care owed to them by: 1) designing, manufacturing, and
distributing products and materials they knew or should have known were likely
to affect minors in such a way as to result in harm to others; and 2) failing to warn the public of the
unreasonably dangerous condition and characteristics of their products and
materials. However, "[p]rior to
application of the universal duty of care to a particular set of facts, it must
appear that the harm was foreseeable and the facts must be viewed as they
reasonably appeared to the party charged with negligence, not as they appear
based on hindsight." North Hardin
Developers, Inc. v. Corkran, 839 S.W.2d 258, 261 (Ky.1992). Therefore, before Defendants can be charged
with owing a duty of care, the Court must first determine whether the injuries
in question were foreseeable.
[1] Plaintiffs argue that "whether the
murders ... were foreseeable is an issue of fact that must be decided by the
jury.... If the Defendants 'knew or should have known' of the potential for
harm to a plaintiff by an actor then liability attaches.... Plaintiffs have
pled as *803 much against all
defendants; those allegations must be
taken as true." [dkt.# 68, p. 10]. Essentially, Plaintiffs argue that
because they alleged foreseeability in their complaint, and because Rule
12(b)(6) dictates that a court must accept factual allegations as true for
purposes of a motion to dismiss, they have established that a duty was
owed. However, this court is
"required to accept only well‑pleaded facts as true, not the legal
conclusions that may be alleged or that may be drawn from the pleaded
facts." Blackburnv. Fisk
University, 443 F.2d 121, 124 (6th Cir.1971).
Under Kentucky law, whether a defendant owed a duty is a matter of law
for the Court to determine. See
Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky.1992).
Kentucky courts have stated that
"whether or not a duty exists is but a conclusion of whether a plaintiff's
interests are entitled to legal protection against the defendant's conduct. The existence of a duty is an issue of law,
and a court, when making the determination of such existence, engages in what
is essentially a policy determination."
Sheehan v. United Services Automobile Assoc., 913 S.W.2d 4, 6 (Ky.Ct.App.1996)(citing
Mullins, 839 S.W.2d at 248). Part of
the determination as to "whether a plaintiff's interests are entitled to
legal protection against the defendant's conduct" and therefore a duty
owed, depends on whether the plaintiff's injuries were foreseeable to the
defendant. For support of their
proposition that foreseeability is a question of fact which must be decided by
a jury, Plaintiffs cite as authority Schrand v. Grant, 1999 WL 540877
(Ky.Ct.App.)(a non‑final opinion that is not to be cited as
authority); Watts v. K.S. & H., 957
S.W.2d 233, 239 (Ky.1997); Finney
Company Inc. v. Monarch Const. Co., 670 S.W.2d 857, 863 (Ky.1984)(dissenting
opinion); and Workman v. Columbia
Natural Resources, 864 F.Supp. 638 (E.D.Ky.1994). Contrary to Plaintiffs' analysis, the common rationale found in
these opinions is that the issue of foreseeability is submitted to the jury
only in cases where there might be a reasonable difference of opinion as to
whether the injuries were foreseeable.
"[W]here the court would conclude as a matter of law that it was
clearly unreasonable to foresee the potential harm from the misconduct
involved," the question is not one for a jury. See Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d
328, 334 (Ky.1987).
At this juncture, the Court must decide as a
matter of law whether the facts, as alleged in the complaint and accepted as
true for the purposes of the motion to dismiss, present a situation where there
might be a reasonable difference of opinion in regards to the foreseeability of
Plaintiffs' injuries. Simply put,
would reasonable people conclude that it was foreseeable to Defendants that as
a result of disseminating their products and failing to warn of the materials contained
therein, a fourteen‑year‑old boy who played their video games,
watched their violent movie, and viewed their provocative website materials
would go to a friend's house, steal guns, take the guns to school the next day,
and gun down his classmates during a prayer session?
[2] Under the facts alleged in the complaint,
which are accepted as true for purposes of these motions, the Court concludes
as a matter of law that it was clearly unreasonable to expect Defendants to
have foreseen Plaintiffs' injuries from Michael Carneal's actions. Because the injuries were unforeseeable,
Defendants did not owe a duty of care upon which liability can be imposed.
In arriving at this decision, the Court
relies on and is bound by the Sixth Circuit's rationale in Watters v. TSR,
Inc., 904 F.2d 378 (6th Cir.1990). There, the mother of a boy who committed
suicide filed negligence and strict liability claims against the manufacturers
of a game called Dungeons & Dragons.
See id. She alleged that as a
result of her son Johnny's exposure to the game, he lost control and *804 committed suicide. See id. at 380. As in this case, the decedent's mother alleged that the
defendant had violated a duty of care in disseminating the game and by failing
to warn of the "possible consequences" of playing the game. See
id. at 381. Similarly, the defendant
argued that it did not owe a duty of care because Johnny Burnett's suicide was
unforeseeable. See id. Although the claims were premised on state
law, this Court decided the matter on constitutional grounds reasoning that the
First Amendment barred the imposition of liability. See id. On appeal, the
Sixth Circuit affirmed the outcome of the case but reasoned that the matter
should have been decided on state law grounds. See Watters, 904 F.2d at 381.
In resolving the matter pursuant to Kentucky law, the Sixth Circuit
reasoned that, "[t]o submit this case to a jury on either theory, it seems
to us, would be to stretch the concepts of foreseeability and ordinary care to
lengths that would deprive them of all normal meaning." Id.
Here, as in Watters, it would also
"stretch the concepts of foreseeability" to submit this case to a
jury. Reasonable people would not
conclude that it was foreseeable to Defendants that Michael Carneal, a boy who
played their games, watched their movie, and viewed their website materials,
would murder his classmates. Even
accepting the pleaded facts as true, that Michael Carneal was an avid consumer
of violent video games, nihilistic movies, and obscene internet materials and
was influenced by all of these events, does not make the murders foreseeable to
the Defendants. Just as Johnny
Burnett's suicide in Watters was unforeseeable to the distributors of the game,
Dungeons and Dragons, so was Michael Carneal's killing spree unforeseeable to
the Video Games, Basketball Diaries, and Internet Defendants. The fact that Michael Carneal chose to kill
his classmates rather than himself does not make his actions any more
foreseeable. As the Sixth Circuit
reasoned in Watters:
The defendant
cannot be faulted, obviously, for putting its game on the market without
attempting to ascertain the mental condition of each and every prospective
player. The only practicable way of
insuring that the game could never reach a 'mentally fragile' individual would
be to refrain from selling it at all‑‑‑ and we are confident
that the courts of Kentucky would never permit a jury to say that simply by
marketing a parlor game, the defendant violated its duty to exercise ordinary
care.... Were the courts of Kentucky prepared to say that works of the imagination
can be linked to a foreseeable danger of anti‑ social behavior, thereby
giving rise to a duty to warn, one would expect to find Kentucky caselaw to
that effect in lawsuits involving television networks, book publishers, or the
like. There is no such caselaw.
Id. at 382. The facts in
this case also present a situation where the manufacturers and distributors
would likewise be charged with attempting to ascertain the mental condition of
consumers before marketing their materials.
Plaintiffs argue that "[t]his case is factually unrelated to
Watters " and suggest that "[s]urely the Sixth Circuit Court of
Appeals and the Kentucky courts would find the smut in this action utterly
unlike the creative "learning tool" in Watters." [dkt.# 68, p.
14‑15]. Instead, Plaintiffs state their claims are "akin" to
those found in Byers v. Edmondson, 712 So.2d 681 (La.App. 1st Cir.1998), cert.
denied, 526 U.S. 1005, 119 S.Ct. 1143, 143 L.Ed.2d 210 (1999). In Byers, a shooting victim brought
negligence and intentional tort claims against the directors, producers, and
distributors of the movie, "Natural Born Killers." See id. at 684. The victim, who was rendered paraplegic by the shooting, alleged
that the shooter "went upon a crime spree ... as a result of seeing and
becoming inspired by the movie." Id. The movie defendants moved to
dismissed the claims on the basis that they did not owe a *805 duty to the plaintiff.
See id. The trial court
dismissed the action, but on appeal the Louisiana Court of Appeals reversed the
dismissal of the entire action and remanded the matter for further
proceedings. See id.
Plaintiffs argue that the holding in Byers supports their position
because the Louisiana Court of Appeals "found that a cause of action
premised in negligence had properly been asserted by the shooting victim."
[dkt.# 68, p. 16]. An examination of the Byers opinion reveals just the
contrary. The appellate court did not
find that a negligence action had been properly asserted. Rather, it affirmed the trial court's
dismissal of the negligence claims holding that "a defendant does not owe
a duty to protect a person from the criminal acts of third parties absent a
special relationship which obligates the defendant to protect the plaintiff
from such harm." Id. at 687. And, while the appellate court reversed the
trial court's dismissal of the intentional tort claims, it did so only on the
grounds that the plaintiff had alleged enough facts to establish a cause of
action for an intentional tort claim.
See Byers, 712 So.2d at 687, 689.
Here, Plaintiffs do not bring their claims pursuant to intentional tort
theories but instead base their claims on theories of "negligence, product
liability and violation of the Racketeer Influenced and Corrupt Organizations
Act." [dkt.# 68, p. 6; see also
dkt.# 1]. Plaintiffs' reliance on Byers is wholly misplaced because that court
refused to impose a duty on the movie defendants and affirmed the dismissal of
the negligence claims.
Other courts across the country have also refused to impose a duty
on defendants in like situations. For
example, in McCollum v. Columbia Broadcasting Systems, Incorporated, the
plaintiffs filed suit alleging that Ozzy Osbourne's song, "Suicide
Solution" caused a child to commit suicide. See 202 Cal.App.3d 989, 249
Cal.Rptr. 187 (1988). In dismissing
the action, the California court reasoned:
[I]t is simply not acceptable to a free and democratic society to impose
a duty upon performing artists to limit and restrict their creativity in order
to avoid the dissemination of ideas in artistic speech which may adversely
affect emotionally troubled individuals.
Such a burden would quickly have the effect of reducing and limiting
artistic expression to only the broadest standard of taste and acceptance and
the lowest level of offense, provocation and controversy. No case has ever gone so far. We find no basis in law or public policy in
doing so here.
Id. at 1005‑06, 249 Cal.Rptr.
187. Another example is Zamora v. CBS
where a plaintiff filed suit alleging that his exposure to television violence
caused him to become "desensitized to violent behavior," to develop a
"sociopathic personality," and to kill his eighty‑three‑year‑old
neighbor. See 480 F.Supp. 199 (S.D.Fla.1979).
The Florida court dismissed the complaint on the basis that the
defendants did not owe a duty and reasoned that:
[T]he plaintiffs seek the imposition of a duty (a standard
of care) which has no valid basis and would be against public policy. A recognition of the 'cause' claimed by the
plaintiffs would provide no recognizable standard for the television industry
to follow. The impositions pregnant in
such a standard are awesome to consider.
Here the three major networks are charged with anticipating the minor's
alleged voracious intake of violence on a voluntary basis; his parents' apparent acquiescence in this
course, presumably without recognition of any problem and finally that young
Zamora would respond with a criminal act of the type in question. Again, wholly apart from additional
procedural problems which should be noted, the question is appropriate; how and why should the Court create such a
wide expansion in the law of torts in Florida? (passing for the moment the
important considerations presented by the First Amendment). The clear answer is that *806 such expansion is not
warranted. Indeed, this Court lacks
the legal and institutional capacity to identify isolated depictions of
violence, let alone the ability to set the standard for media dissemination of
items containing 'violence' in one form or the other.
Id. at 202
(emphasis added); see also Davidson v.
Time Warner, Inc., 1997 WL 405907 (S.D.Tex.1997)(holding that it was
unforseeable to producers of rap music that by distributing 2Pacalypse Now,
which contained a song about "cop killings," a person would kill a
police officer); Sakon v. Pepsico.,
Inc., 553 So.2d 163, 166 (Fla.1989)(holding that it was unforeseeable that a
child would imitate a stunt in a commercial).
Careful
consideration of the Sixth Circuit's analysis in Watters and the rationales
found in case law from other jurisdictions lead this Court to believe that
Kentucky courts would not impose a duty of care on the Defendants. Nothing Defendants did or failed to do
could have been reasonably foreseen as a cause of injury. In addition to the foreseeability factor,
this Court also finds another basis for holding that Defendants did not owe a
duty of care. In Watters, the Sixth
Circuit articulated a significant observation in regards to the imposition of a
duty of care in cases such as this.
See 904 F.2d at 383.
Explicitly, it stated:
A Kentucky court considering the application of Kentucky's
common law in this situation would obviously be aware of the constitutional
problems looming in the background‑‑and if possible, we believe,
such a court would avoid applying the common law in a way that would bring the
constitutional problems to the fore.
The constitutional problems would be avoided, of course, by holding that
the plaintiff failed to show a justiciable issue as to any breach of a
recognized legal duty‑‑and that is where we think Kentucky courts
would come out.
Id. This Court
adopts this observation as a further reason for rejecting Plaintiffs' argument
that a legal duty should be imposed.
Because Defendants owed no duty to Plaintiffs as a matter of law, the
negligence claims must be dismissed.
So that Plaintiffs
will fully understand the problems in bringing their negligence claims, the
Court will proceed to address a second barrier‑‑the superseding
cause doctrine.
2). The Superseding
Cause Doctrine
The Sixth Circuit
has stated that "there can be no liability for negligence if the
negligence is not shown to have 'caused' the injury complained of."
Watters, 904 F.2d at 383. In Kentucky,
the chain of causation may be broken by "facts [that] are legally
sufficient to constitute an intervening [superseding] cause." Montgomery Elevator Co. v. McCullough, 676
S.W.2d 776, 780 (Ky.1984). If an
intervening act is not a "normal response" to the original tortious
act, it is an "extraordinary" act which breaks the chain of
causation. See RESTATEMENT SECOND OF
TORTS § 444. Ultimately, if the act
consists of facts "of such 'extraordinary rather than normal' or 'highly
extraordinary' nature, unforeseeable in character, [it will] relieve the
original wrongdoer of liability to the ultimate victim.' " Montgomery Elevator, 676 S.W.2d at 780
(quoting House v. Kellerman, 519 S.W.2d 380, 382 (Ky.1974)).
[3] Plaintiffs
argue that whether Michael Carneal's actions were a superseding cause is a
question of fact that must be decided by a jury. Contrary to Plaintiffs'
argument, the Kentucky Supreme Court has held that "[t]he question of
whether an undisputed act or circumstance was or was not a superseding cause is
a legal issue for the court to resolve, and not a factual question for the
jury." House v. Kellerman, 519
S.W.2d 380, 382 (Ky.1974). Whether an intervening act is a superseding cause
becomes a factual question for the jury only when the actual occurrence of the
intervening act is in dispute. See *807 id. at 383. Here, Plaintiffs admit in their complaint
that Michael Carneal's conduct was an intervening act and it is undisputed that
Plaintiffs' daughters died at the hands of Michael Carneal. Therefore, whether
Michael Carneal's intervening acts were a "superseding cause" is a
legal issue for this Court to resolve.
The Sixth Circuit's
opinion in Watters demonstrates the operation of the superseding cause doctrine
in Kentucky. See 904 F.2d at 383‑84. When holding that Johnny Burnett's suicide
was an intervening, superseding cause which relieved the manufacturers of the
game Dungeons & Dragons of liability, the Sixth Circuit stated that
"[c]ourts have long been rather reluctant to recognize suicide as a
proximate consequence of a defendant's wrongful act ... We cannot tell why
[Johnny committed suicide]. His death
surely was not the fault of his mother, or his school, or his friends, or the
manufacturer of the game he and his friends so loved to play. Tragedies such as this simply defy rational
explanation, and courts should not pretend otherwise." Id.
Plaintiffs argue
that "[u]nlike Watters, the issue before this Court is whether the
criminal act of homicide by a child supersedes an original actor's
liability. Watters is a fact specific
decision limited to suicides." [dkt. # 68, p. 19‑20]. Instead,
Plaintiffs "direct the court's attention to Waldon v. Housing Authority of
Paducah, 854 S.W.2d 777 (Ky.App.1991), a Kentucky decision that considers
whether an intervening criminal homicide supersedes the original negligent
actor's liability." [dkt.# 68, p. 20]. In Waldon, a tenant in a public
housing project was shot and killed outside her apartment. See id. at 778. The Housing Authority was sued on the
grounds that its negligence caused the victim's death because it knew that
threats had been made against the victim but did nothing to prevent the
shooting. See id. The Housing
Authority moved for summary judgment and argued that the intervening criminal
act superseded its liability. See id. The trial court granted summary judgment,
but on appeal, the appellate court rejected the argument and held that
"[e]ven an intervening criminal act does not relieve one for liability for
his or her negligent acts or omissions, where the criminal act is a reasonably
foreseeable consequence of the defendant's negligent act." Id. at 779. Thus, according to Plaintiffs, "[i]f Carneal's criminal
acts were a reasonably foreseeable consequence of Defendants' negligent
production and distribution of violent, pornographic products, the proximate
cause of the Plaintiffs' daughters' murders is '[c]learly a jury question.'
" [dkt.# 68, p. 22].
Plaintiffs argue
that the holding of Waldon is "dispositive in this action." The Court does not agree. Actually, the appellate court reversed
summary judgment in Waldon because there were issues of fact as to whether the
Housing Authority should have realized that its acts or omissions involved an
unreasonable risk of harm to the tenant:
1) the Housing Authority knew that the shooter, a man named Williams,
had repeatedly threatened to kill the victim;
2) the Housing Authority knew that Williams was staying in the apartment
complex with his relatives without permission;
3) the Housing Authority took no action to evict Williams or discourage
his presence in the area; and 4) there
were no security guards to patrol the complex even though crimes frequently
occurred there. See id. Because of the existence of these factors,
the appellate court concluded that there was a jury question on the issue of
proximate cause due to the foreseeability of criminal conduct. See id. The appellate court reasoned that since the
intervening criminal act was foreseeable to the Housing Authority, the shooting
could not be deemed a superseding cause which would relieve the Housing
Authority of liability. Contrary to Plaintiffs' argument, the Waldon analysis
is inapposite to this case because here, Michael Carneal's intervening criminal *808 acts were not foreseeable to the
Defendants.
[4] To help courts
make the superseding cause determination, the Kentucky Court of Appeals
reviewed existing case law on the subject and articulated that a superseding
cause possesses the following attributes:
1) an act or event that intervenes between the original act
and the injury; 2) the intervening act or event must be of independentorigin,
unassociated with the original act; 3)
the intervening act or event must, itself, be capable of bringing about the
injury; 4) the intervening act or event
must not have been reasonably foreseeable by the original actor; 5) the intervening act or event involves the
unforeseen negligence of a third party [one other than the first party actor or
the second party plaintiff] or the intervention of a natural force; 6) the original act must, in itself, be a
substantial factor in causing the injury, not a remote cause. The original act must not merely create a
negligent condition or occasion; the
distinction between a legal cause and a mere condition being foreseeability of
injury.
NKC Hospitals,
Inc. v. Anthony, 849 S.W.2d 564 (Ky.Ct.App.1993). Assuming Plaintiffs established that the original act of
negligently designing, manufacturing, and distributing was a substantial factor
in causing Plaintiffs' injuries, the superseding cause doctrine would arise and
break the chain of causation: 1)
Michael Carneal's shooting spree intervened between the original act of
negligently disseminating the materials and the decedents' deaths; 2) the shooting spree was of independent
origin; 3) the shooting spree was
capable of bringing about the deaths;
4) Michael Carneal's shooting spree was not reasonably foreseeable to
Defendants; and 5) the shooting spree
involved the unforeseen conduct of a third party, Michael Carneal.
The acts of Michael
Carneal in murdering his classmates were so "highly extraordinary in
nature" and "unforeseeable in character," that they operate to
"relieve [Defendants] of liability to [Plaintiffs]." See Montgomery Elevator, 676 S.W.2d at
780. Just as Johnny Burnett's suicide
was not a "normal response" to TSR disseminating the game Dungeons
and Dragons in the Watters case, neither was Michael Carneal's shooting spree a
"normal response" to Defendants disseminating their movie, games and
website materials in this case.
Pursuant to the superseding cause doctrine, the Defendants in this
matter can be no more liable for the decedents' unforeseeable deaths than was
the Dungeons & Dragons manufacturer liable for Johnny Burnett's
unforeseeable suicide in Watters.
Plaintiffs argue
that "[i]f this Court elects to entertain Defendants' assertion of the
superseding cause defense, ... the argument must still be denied because it has
been abrogated by the pure comparative fault doctrine adopted by the Kentucky
Supreme Court." [dkt.# 68, p. 23]. Plaintiffs state that, "[w]hen an
original actor's negligence and an intervening actor's negligence both play a
role in causing the Plaintiffs' injuries, 'the comparative fault doctrine
demands that fault and thus damages be apportioned among the tortfeasors.'
"[dkt.# 68, p. 25 ]. Thus, according to Plaintiffs, "a common law doctrine
like superseding cause that forgives the liability of a negligent actor is
'manifestly contradictory' to the purposes of the comparative negligence
system." [see id.]. Contrary to Plaintiffs' argument, the United States
Supreme Court has held that the superseding cause doctrine is not inconsistent
with the comparative fault doctrine.
See Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837‑38, 116
S.Ct. 1813, 135 L.Ed.2d 113 (1986).
Under the superseding cause doctrine, the intervening actor becomes
solely responsible for injuries whereas under the comparative fault doctrine,
fault is apportioned among all tortfeasors.
In essence, the superseding cause eliminates the original actor's
negligence as a cause of the injuries and absolves him of liability. The district court *809 in Carlotta v. Warner aptly explained, "[t]he doctrine
of comparative negligence does not mean that plaintiff is entitled to a
recovery in some amount in every situation in which he can show some negligence
of the defendant, however slight. If the
plaintiff fails to establish that defendant's negligent act or omission was a
substantial factor in causing harm to the plaintiff, or if there was a
superseding cause, defendant will not be liable in any amount." 601 F.Supp. 749, 751 (E.D.Ky.1985).
Despite Plaintiffs'
arguments to the contrary, the superseding cause doctrine is applicable in this
matter. Michael Carneal's actions
constitute an unforeseeable intervening act which possess all the attributes of
a superseding cause as set forth by the Kentucky Court of Appeals in NKC
Hospitals. In addition, his actions
comply with the Restatement Second of Torts' approach to the superseding cause
doctrine, which has been adopted in Kentucky:
the actions were "highly extraordinary" in nature; "unforeseeable in character;" and
were not a "normal response" to the original tortious act. Therefore,
as a matter of law, Michael Carneal's actions were a superseding cause which
broke the chain of causation and absolved the Defendants of liability. Alternatively, Plaintiffs' negligence
claims would be dismissed for this reason.
Plaintiffs' Cause
of Action for Strict Liability
Plaintiffs allege
claims for strict liability due to the alleged inherent dangerousness of the
products in question. Pursuant to the
Restatement Second of Torts § 402A, "[o]ne who sells any product in a
defective condition unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused to the
ultimate user or consumer, or to his property." Claims brought under this theory shift the focus "from the
conduct of the actor, which is the problem in negligence cases, to the
condition of the product."
Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776 (Ky.1984). Plaintiffs claim the games, movie, and
internet materials were made and distributed "in a defective and
unreasonably dangerous condition" because of their content and lack of
warnings.
Kentucky courts
have stated that the underlying purpose of the strict liability doctrine is to
allow an injured party to reach back to the manufacturer or distributor of a
product following some form of failure on the product's part. Worldwide Equipment, Inc. v. Mullins, 11
S.W.3d 50 (Ky.Ct.App.1999). Thus, the
very essence of the strict liability doctrine is that the use of a product
caused an injury. Here, however, the
actual use of the products in question, i.e., video games, a movie, and website
materials did not cause any injury. No
one was injured while Michael Carneal was actually playing the video games or
watching The Basketball Diaries movie or while he was viewing website
materials. Rather, Plaintiffs contend
that their daughters' deaths were caused by the way Michael Carneal interpreted
and reacted to the subliminal messages contained in the products. Therefore, it is not the tangible physical
characteristics of the products that Plaintiffs claim make the products
defective, but instead the intangible thoughts, ideas and messages contained
within the products. And, it is these
subliminal messages about which Plaintiffs claim Defendants had a duty to warn
the public.
The common theme in
Defendants' Motions to Dismiss these claims is that thoughts, ideas, and
expressive content are not products.
Although Kentucky has adopted the theory of strict liability presented
in the Restatement Second of Torts and has enacted the Kentucky Products
Liability Act, neither the Restatement Second nor Kentucky's Product Liability
Act provides a definition for "product." See Dealers Transport Co. v.
Battery Dist. Co., 402 S.W.2d 441 (Ky.1965);
K.R.S. § 411.300. As an initial matter, the Court must determine as a
matter of law whether thoughts, ideas, and messages contained *810 in a movie, video game, or
website material constitute a "product" for purposes of strict
products liability. See e.g., Bryant
v. Tri‑County Elec. Membership Corp., 844 F.Supp. 347, 353
(W.D.Ky.1994)(stating that the determination of a "product" is a
question of law).
1). Are Thoughts,
Ideas, and Subliminal Messages "Products" Within the Ambit of the
Strict Liability Doctrine?
Plaintiffs argue
that "intangibles" are products and "subject to strict liability
[when] the 'intangibles' are sold to and consumed by the public." [dkt.#
68, p. 29]. In support of their argument, Plaintiffs cite Comshare Incorporated
v. United States, 27 F.3d 1142 (6th Cir.1994). There, a computer software company sued the government to obtain
an income tax refund because the company had spent millions of dollars
purchasing computer program source codes but had not been given the
"tangible property" investment tax credit. See id. The Sixth
Circuit held that Comshare was entitled to the "tangible property"
tax credit because "the intangible information on Comshare's master source
code tapes and discs could not exist in usable form without the tangible
medium." Id. at 1149.
In addition,
Plaintiffs cite a commercial transactions case, Advent Systems Limited v.
Unisys Corporation, 925 F.2d 670 (3d Cir.1991). In Advent Systems, the Third Circuit held that once a computer
program is downloaded onto a diskette, it becomes a "good" under the
Uniform Commercial Code. See 925 F.2d at 675.
Contrary to Plaintiffs' analysis, these holdings are inapposite because
they do not discuss strict liability theories and are unrelated to products
liability law. While computer source
codes and programs are construed as "tangible property" for tax
purposes and as "goods" for UCC purposes, these classifications do
not indicate that intangible thoughts, ideas, and messages contained in
computer video games, movies, or internet materials should be treated as
products for purposes of strict liability.
Plaintiffs also
cite a products liability case, Bryant v. Tri‑County Electric Membership
Corporation, 844 F.Supp. 347 (W.D.Ky.1994).
In Bryant, the court held that electricity was a product for purposes of
strict liability because it was "created, harnessed, measured, transported,
bought and sold, like products generally." 844 F.Supp. at 352. Again,
contrary to Plaintiffs' analysis, this holding is distinguishable because in
that case, the physical properties of electricity caused the harm. Here, Plaintiffs base their strict
liability claims on the intangible characteristics of the products, rather than
on their physical properties.
[5] The Sixth
Circuit has stated that "[w]here the state supreme court has not spoken,
[the district court's] task is to discern, from all available sources, how that
court would respond if confronted with the issue." See Miles v. Kohli & Kaliher Assocs.,
917 F.2d 235, 241 (6th Cir.1990).
While there is no Kentucky case law on point, there is authority from
the Sixth Circuit rejecting similar state law claims when reasoning "[t]he
governing principles seem clear enough."
Watters, 904 F.2d at 380. In
Watters, the Sixth Circuit reviewed existing precedents and concluded,
"[a]s far as we have been able to ascertain, ... the doctrine of strict
liability has never been extended to words or pictures. Other courts have looked in vain for
decision so expanding the scope of the strict liability doctrine." Id. at 381. Inherent in this statement is the rationale that intangible
thoughts, ideas, and messages contained within games, movies, and website
materials are not products for purposes of strict products liability.
Counsel for the
Plaintiffs fail to appreciate the critical distinction between intangible
properties, such as those which caused harm to Plaintiffs, and tangible
properties for which strict liability can be imposed. The Ninth Circuit explained this distinction *811 in Winter v. G.P. Putnam's Sons by stating:
A book containing Shakespeare's sonnets consists of two
parts, the material and the print therein, and the ideas and expression
thereof. The first may be a product,
but the second is not. The latter,
were Shakespeare alive, would be governed by copyright laws; the laws of libel to the extent consistent
with the First Amendment; and the laws
of misrepresentation, negligent misrepresentation, negligence, and
mistake. These doctrines applicable to
the second part are aimed at the delicate issues that arise with respect to
intangibles such as ideas and expression.
Products liability law is geared to the tangible world.
938 F.2d 1033,
1034 (9th Cir.1991). This reasoning is
further supported by the Restatement Third of Torts. Although Kentucky courts have yet to adopt the Restatement Third
of Torts, the Court predicts that the Kentucky Supreme Court, as it has always
done in the past, will eventually adopt the newer edition of the Restatement of
Torts. There, the word
"product" is defined and a distinction is made between tangible and
intangible properties. Moreover, the
commentary for § 19(a) of the Restatement Third notes that courts "have,
appropriately refused to impose strict product liability" in cases where
the plaintiff's grievances were "with the information, not with the tangible
medium." Id. at cmt.d.
Pursuant to the
teachings of the Sixth Circuit's opinion in Watters, which is now further
supported by the analysis found in the Restatement Third of Torts, the Court
finds as a matter of law that intangible thoughts, ideas, and expressive
content are not "products" within the realm of the strict liability
doctrine.
2). Causation
Assuming arguendo
that the doctrine of strict liability could be extended to include the
thoughts, ideas, and messages contained in video games, movies, and website
materials, Plaintiffs nevertheless would have to establish causation in order
to state a claim based on strict liability theories. See Morales v. American Honda Motor Co., Inc., 71 F.3d 531, 537
(6th Cir.1995). As was previously
discussed, causation may be defeated by an intervening act that constitutes a
superseding cause. The Court has
already determined as a matter of law that Michael Carneal's actions
constituted a superseding cause which broke the chain of causation. Therefore, in the alternative, Plaintiffs'
strict liability claims would fail for lack of causation.
Plaintiffs' Cause
of Action for RICO Violations
Plaintiffs allege
in count four of their complaint that the Internet Defendants violated federal
RICO statutes. Specifically,
Plaintiffs state that:
The Internet Defendants engaged in a pattern of
racketeering activity by distributing certain obscene matter by means of the
Internet through interstate commerce to Michael Carneal, a minor, in violation
of state and federal obscenity and obscenity to minor statutes. This distribution of contraband material by
the Internet Defendants violates 18 U.S.C. § 1961 et seq. Plaintiffs are
"injured parties" under the federal RICO statute and as such are
entitled to treble damages against the "Internet Defendants" [dkt.#
1].
The Sixth Circuit
has described the federal RICO Act as being "designed to give prosecutors
an additional weapon against organized crime and to help protect legitimate
businesses from infiltration by racketeers." See Drake v. B.F.Goodrich Co., 782 F.2d 638, 644 (6th Cir.1986)
(citations omitted). Congress included a civil remedies provision in the Act to
authorize recovery for injury to a person's business or property. See 18 U.S.C. § 1964(c). By including a
civil remedy, Congress intended to allow those who were "injured by the
infiltration of organized crime into the legitimate *812 business arena" to recover damages. Parties are attracted to the civil RICO
statute because any amount of damages a jury awards is then tripled under the
statute and recovery for both costs and attorneys' fees are allowed. See 18 U.S.C. § 1964(c). However, because the RICO civil remedies
provision authorizes recovery only for certain types of claims and injuries,
not every plaintiff asserting a RICO claim will have standing to bring the
claim. As an initial matter, the Court
must determine whether Plaintiffs have standing to assert their RICO cause of
action.
Standing to Bring
a Civil RICO Action
The RICO civil
remedy provision provides that:
"[a]ny person injured in his business or property by reason of a
violation of section 1962 of this Chapter may sue therefore in any appropriate
United States district court and shall recover threefold the damages he
sustains and the cost of the suit, including a reasonable attorney's fee." See 18 U.S.C. § 1964(c). In order to have standing to assert a civil
RICO claim, a plaintiff must properly plead three elements: 1) that a violation of § 1962 has
occurred; 2) that he has suffered an
injury to his "business or property;" and 3) that his injury was
proximately caused by the violation of § 1962. See 18 U.S.C. § 1964(c); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479,
496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985).
The First Element
of A Civil RICO Claim‑‑A Violation of § 1962
To demonstrate the
first element of a civil RICO claim, that a violation of § 1962 has occurred, a plaintiff must allege
that § 1962 was violated by a person associated with an enterprise, the actions
of which affected commerce and were related to a pattern of racketeering
activity. See 18 U.S.C. § 1962(a)‑(d). Plaintiffs state in their complaint that
the Internet Defendants "engaged in a pattern of racketeering activity by
distributing certain obscene matter by means of the Internet through interstate
commerce [,] ... [that] [t]his distribution of contraband of material by the
Internet Defendants violates 18 U.S.C. § 1961 et seq. [and that] Plaintiffs are
'injured parties' under the federal RICO statute." [dkt.# 1]. The
statement that Defendants distributed obscene materials in violation of state
and federal obscenity laws only serves as the predicate act of racketeering
upon which to base a § 1962 violation.
The predicate act itself is insufficient to establish that § 1962 was
violated. Instead, a plaintiff is
required to plead facts demonstrating a violation of § 1962. Here, Plaintiffs merely state that "18
U.S.C. § 1961 et seq." was violated.
Plaintiffs' use of the inclusive language "et seq.," is
insufficient to satisfy the requirement that a plaintiff must allege a
violation of § 1962 for several reasons.
[6] First, as
Plaintiffs' complaint omits a specific reference to § 1962, it fails to inform Defendants as to which subsection of §
1962 they are charged with violating.
Section 1962 prohibits various types of activity and provides different
theories upon which to base a claim.
For example: § 1962(a) prohibits
a person from investing illegally gotten proceeds in an enterprise; § 1962(b) prohibits a person from using
racketeering activity to acquire control or interest in an enterprise; § 1962(c) prohibits a person from conducting
an enterprise through the use of a pattern of racketeering activity; and § 1962(d) prohibits any person from
conspiring with another to violate subsections (a), (b), or (c). As such, it is essential that a plaintiff
specify upon which subsection of § 1962 his cause of action is predicated.
Second, Plaintiffs'
failure to make a specific reference to § 1962 makes it difficult to discern
for the purposes of the motion to dismiss whether they have stated a claim upon
which relief can be granted. The
elements of each subsection are different so it is important that the complaint
set forth each essential element in order to properly state a claim. With the spirit of accepting liberal
pleadings, the Court will *813
attempt to glean from the pleadings under which subsection of § 1962 Plaintiffs
bring their claim. Plaintiffs have not alleged that Defendants invested illegal
proceeds, attempted to acquire control of an enterprise, or engaged in any type
of conspiracy, therefore the only applicable subsection found in § 1962 would
be subsection (c) which prohibits a person from conducting an enterprise
through the use of racketeering activity.
To state a cause of action pursuant to § 1962(c), a plaintiff must
allege: 1) conduct; 2) of an enterprise; 3) through a
pattern; 4) of racketeering activity. See 18 U.S.C. § 1962(c); Sedima, 473 U.S. at 496, 105 S.Ct. 3275.
An enterprise is
defined as "any individual, partnership, corporation, association or other
legal entity, and any union or group of individuals associated in fact although
not a legal entity." See 18
U.S.C. § 1961(4). The Supreme Court has stated that an enterprise is an entity,
or a group of persons associated for a common purpose of engaging in a course
of conduct. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524,
69 L.Ed.2d 246 (1981). The
"enterprise" is not to be confused with the "pattern of
racketeering activity." See
id. Rather, it is an entity apart and
distinct from the pattern of activity in which it engages. See id.
Put simply, the enterprise is the "vehicle" through which a
person conducts the racketeering activity.
The existence of an enterprise is a separate element which must be
alleged in order to show that a violation of § 1962 has occurred and that the
first element of a civil RICO claim has been established. See id. at 583, 101 S.Ct. 2524. Plaintiffs' complaint fails altogether to
even mention the word "enterprise," let alone allege that Defendants
belonged to or associated with an enterprise.
Again, with the
spirit of accepting liberal pleadings the Court will attempt to glean from the
pleadings the existence of any allegations which could be interpreted as
constituting an enterprise and thereby "saving" Plaintiffs'
claims. By definition, the companies
named as the Internet Defendants would qualify as an enterprise since these
companies could be used as a vehicle to conduct racketeering activity such as
distributing obscene materials to minors.
The fundamental flaw with this interpretation of the pleadings is that
if the Court accepts that Plaintiffs intended for the named companies to be the
enterprise, then the named companies cannot also be the named RICO
defendants. It is well‑established
among the majority of appellate circuits that a corporation cannot serve dual
roles as both the RICO defendant and the enterprise in a plaintiff's
complaint. See e.g., Libertad v.
Welch, 53 F.3d 428, 441 (1st Cir.1995)(stating that the "RICO enterprise
cannot be named as the RICO defendant");
Bennett v. U.S. Trust Co. of New York, 770 F.2d 308 (2d
Cir.1985)(holding that under section 1962(c), "a corporate entity may not
be simultaneously the 'enterprise' and the 'person' who conducts ... the
racketeering activity"), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88
L.Ed.2d 776 (1986); B.F. Hirsch v.
Enright Refining Co., 751 F.2d 628, 634 (3d Cir.1984)(stating, "a
violation of section 1962(c) by a corporate entity requires an association with
an enterprise that is not the same corporation"); Haroco, Inc. v. American National Bank &
Trust Co., 747 F.2d 384, 400 (7th Cir.1984)(stating, "section 1962(c)
requires separate entities as the liable person and the enterprise"),
aff'd on other grounds, 473 U.S. 479, 105 S.Ct. 3292, 87 L.Ed.2d 346 (1985)(per
curiam); Rae v. Union Bank, 725 F.2d
478, 481 (9th Cir.1984) (stating "if Union Bank is the enterprise, it
cannot also be the RICO defendant");
United States v. Computer Sciences Corp., 689 F.2d 1181, 1190 (4th
Cir.1982)(" 'enterprise' was meant to refer to a being different from ...
the person whose behavior the act was designed to prohibit"), cert.
denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983); Bennett v. Berg, 685 F.2d 1053, 1061 (8th
Cir.1982)( "defendant may not be both enterprise and person associated
with enterprise").
*814 [7]
Plaintiffs' failure to allege the existence of an enterprise alone is fatal to
establishing the first element of their RICO claim, that a violation of section
1962(c) has occurred. See e.g.,
Advocacy Organization for Patients & Providers v. Auto Club Ins. Assoc.,
176 F.3d 315, 330 (6th Cir.1999)(affirming dismissal of RICO claim for, among
other reasons, failure to sufficiently allege enterprise), cert. denied, ‑‑‑
U.S. ‑‑‑‑, 120 S.Ct. 172, 145 L.Ed.2d 145 (1999). Assuming that Plaintiffs had sufficiently
pleaded facts demonstrating the existence of an enterprise, Plaintiffs would
then be required to demonstrate that Defendants used the enterprise to conduct
their "pattern of racketeering activity."
[8] In the
complaint, Plaintiffs simply state that the Internet Defendants engaged in
conduct constituting "a pattern of racketeering activity." This statement is insufficient as a
plaintiff is required to allege facts which would establish that the
defendant's "pattern of racketeering activity" was related to the
enterprise. See United States v.
Qaoud, 777 F.2d 1105, 1115 (6th Cir.1985)(stating that "[t]o establish
that an enterprise's affairs have been conducted "through" a pattern
of racketeering activity, there must be a nexus between the enterprise and the
racketeering activity") (citations omitted). Again, Plaintiffs' complaint fails to allege the existence of an
enterprise let alone plead facts establishing that Defendants used an
enterprise to conduct a pattern of racketeering activity. Plaintiffs' RICO
claim must be dismissed for failure to state a claim upon which relief can be
granted.
As the Court has
determined that Plaintiffs' RICO cause of action must be dismissed due to
Plaintiffs' failure to allege the first essential element of the claim,
normally there would be no need to address the remaining elements of the
claim. However, as Plaintiffs' omissions
could be cured by amending their complaint, the Court will proceed to analyze
the remaining elements of their RICO claim in order to demonstrate why the
claim would fail regardless of the technical pleading omissions.
The Second Element
of a Civil RICO Claim‑‑Injury to Business or Property
[9] Assuming
arguendo that Plaintiffs had properly alleged that § 1962 was violated by a
person associated with an enterprise, Plaintiffs would then be required to
demonstrate the second element of their claim:
that they suffered an injury to "business or property" as a
result of the RICO violation. Personal
injuries and mental suffering do not confer a person with standing to bring a
RICO claim because those types of damages are not injuries to "business or
property." See Fleischhauer v.
Feltner, 879 F.2d 1290, 1300 (6th Cir.1989), cert. denied, 493 U.S. 1074, 110
S.Ct. 1122, 107 L.Ed.2d 1029 (1990).
In an attempt to
satisfy the requirement that they be injured in their business or property,
Plaintiffs argue that their deceased daughters' loss of earning capacity
constitutes an injury to property. The
Sixth Circuit has stated that " 'injury to property' for RICO purposes is
generally determined by state law."
Isaak v. Trumbull Savings & Loan Co., 169 F.3d 390, 397 (6th
Cir.1999). Plaintiffs argue that under
Kentucky law, earning capacity constitutes an interest in property. As support for this proposition, Plaintiffs
cite Inman v. Inman, 578 S.W.2d 266 (Ky.Ct.App.1979), as "recogniz[ing]
that individuals hold a property interest in earning capacity." [dkt.# 1].
There, the Kentucky Court of Appeals considered whether a professional license
that enhanced a spouse's earning capacity should be placed in the category of
"marital property" for the purposes of distributing marital assets
following a divorce. See id. at
267. The Inman court stated that it
had "strong reservations about placing a professional license in the
category of marital property" but recognized that there were inequitable
situations such as where one spouse puts another through graduate or
professional *815 schoolonly then to
be faced with a divorce and no maintenance payments. See id. In such
situations, the Inman court reasoned that "treating a professional license
as marital property is the only way in which a court can achieve an equitable
result." See id. at 268. In arriving at this decision though, the
Inman court explicitly stated that it "wish[ed] to place very strict
limitations on apportionment of property pursuant to such findings." See id. at 269. The case was then remanded for the circuit court to determine
what interest the spouse had in her husband's license to practice
dentistry. See id. at 270. The circuit court made its findings and the
husband appealed the court's decision.
When the case went up on appeal for a second time, the Court of Appeals
reversed its prior determination. The
Kentucky Supreme Court then granted review to decide the applicability of the
"law‑of‑the‑case doctrine" which mandates that an
appellate court on a subsequent appeal be bound by its decision on the former
appeal. When reviewing the underlying matter, the Kentucky Supreme Court
analyzed case law from other states, all of which rejected the notion that a
professional license is marital property, and concluded, "[t]his court
cannot accept the proposition that an educational degree ... is ... marital
property." See Inman v. Inman,
648 S.W.2d 847 (Ky.1982). Contrary to
Plaintiffs' analysis, not only is the Court of Appeals' opinion in Inman
regarding marital property totally inapposite to the determination of whether a
deceased child's loss of earning capacity constitutes a property interest, but
the rationale contained therein has since been rejected both by the appellate
court that wrote the opinion and by the Kentucky Supreme Court. See Inman, 648 S.W.2d at 848.
Plaintiffs attempt
to persuade the Court that the line between "injury to property" and
pecuniary losses resulting from personal injuries is blurred. However,
Plaintiffs have offered no other cases to support their proposition that under
Kentucky law, earning capacity constitutes an interest in property. Instead of
providing any other Kentucky case law, Plaintiffs make a citation reference to
a Colorado case, In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978),
which was discussed in the Inman opinion.
In doing so, Plaintiffs place emphasis on a quoted passage from the
Colorado case as stating "[c]lassification of earning capacity as property
is not ... farfetched.... a court, in defining the statutory concept ... is in
distinguished company when it refuses to be hamstrung by narrow definitions of
'property.' " Again, contrary to
Plaintiffs' analysis, an examination of the full text of this passage reveals
two fundamental flaws with any reliance thereon: 1) Plaintiffs' quoted passage is found in the dissenting opinion
of the case rather than in its main text;
and 2) the case holding rejects the notion that a professional license
that enhances earning capacity should be considered marital property. Thus, although Plaintiffs may attempt to
persuade this Court "that it would be in distinguished company if it
refused to be hamstrung by narrow definitions of 'property,' " there is no
authority to support Plaintiffs' proposition that under Kentucky law, earning
capacity is construed as an interest in "property." Under traditional concepts of
"property," the RICO claim cannot proceed because Plaintiffs cannot
demonstrate an "injury to property."
[10] Despite the
absence of Kentucky case law supporting their proposition, Plaintiffs argue
that "RICO applies to injuries asserted in this action, namely the
destruction of the children's property rights to their future earnings."
The Seventh Circuit, when confronted with a claimant trying to bring a civil
RICO claim for loss of earnings stemming from personal injuries noted,
"[p]erhaps the economic aspects of such injuries could, as a theoretical
matter, be viewed as injuries to 'business or property,' but engaging in such
metaphysical speculation is a task best left to philosophers, not the federal
judiciary." *816 See Doe v. Roe, 958 F.2d 763, 768
(7th Cir.1992). Here, even if the Court undertook some philosophical approach
and construed earning capacity as a property right, the Court nevertheless would
be unable to adopt such an interpretation because it would contravene Congress'
intent in enacting the RICO statute.
See e.g., Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204,
66 S.Ct. 992, 90 L.Ed. 1172 (1946).
Federal courts,
when interpreting Congressional intent in enacting the RICO civil remedies
provision, have widely held that personal injuries and the losses resulting
therefrom do not constitute "injury to property" so as to fall within
the ambit of the RICO statute. For
example, in Grogan v. Platt, a case on point, the Eleventh Circuit rejected
claims for lost earnings and loss of support as a basis for civil RICO
recovery. See 835 F.2d 844 (11th
Cir.), cert. denied, 488 U.S. 981, 109 S.Ct. 531, 102 L.Ed.2d 562 (1988).
There, the families of two murdered FBI agents sought recovery of their sons'
loss of earnings and loss of support under the civil remedies provision of the
RICO Act. See id. Instead of focusing
on whether economic damages such as lost earnings constituted an injury to
property under the RICO statute, the Eleventh Circuit reasoned that the proper
inquiry was "whether Congress intended the damages that plaintiffs seek in
this case to be recoverable under civil RICO." Id. at 846. In deciding the issue, the Eleventh Circuit
"[relied] on the assumption that Congress intends the ordinary meanings of
the words it employs," and stated, "[i]n our view, the ordinary
meaning of the phrase 'injured in his business or property' excludes personal
injuries, including the pecuniary losses therefrom." Id. at 847. The Eleventh Circuit reasoned that the
families of the murdered FBI agents were seeking a recovery that Congress had
not designed RICO to afford. The
Eleventh Circuit held that the families could not recover lost earnings and
loss of support damages under RICO because "those pecuniary losses ... are
most properly understood as part of a personal injury claim" and not as a
claim for injury to business or property.
See id. at 848.
In Drake v. B.F.
Goodrich Company, the Sixth Circuit espoused similar reasoning. See 782 F.2d 638 (6th Cir.1986). In Drake, the survivors of deceased workers
who were exposed to toxic substances argued they should be allowed to bring a
RICO claim to recover the decedents' lost wages. See id. The district court refused to allow the
survivors to file the claim so they appealed the district court's decision. On appeal, the Sixth Circuit rejected the
argument that pecuniary injuries derived from personal injuries confers a party
with standing to assert a RICO claim.
In doing so, the Sixth Circuit specifically acknowledged that
"[t]he phrase 'business or property' ... retains restrictive
significance" which prevents such claims. See id. at 643‑44. Other circuits have also refused to allow a
plaintiff to assert a RICO claim based on pecuniary losses which are derived
from personal injuries. See e.g., Bast
v. Cohen, Dunn & Sinclair, P.C., 59 F.3d 492 (4th Cir.1995); Doe v. Roe, 958 F.2d 763, 770 (7th
Cir.1992); Oscar v. University Students
Co‑operative Ass'n, 965 F.2d 783 (9th Cir.1992)(holding that "a
showing of 'injury' requires proof of concrete financial loss, and not mere
'injury to valuable intangible property interest' ... [and that] personal
injuries are not compensable under RICO").
The common
rationale underlying these opinions is that pecuniary losses associated with
personal injuries are not recoverable under the civil RICO provision because
Congress created the civil remedies provision solely to afford relief to those
injured in the legitimate business arena.
It is hard to imagine that when Congress enacted civil RICO it
contemplated that a child's earning capacity would be regarded as property, the
loss of which would be recoverable threefold.
Losses such as those sustained by Plaintiffs are more properly *817 associated with state tort claims
rather than federal civil RICO claims.
Plaintiffs are not seeking the kind of recovery the RICO civil remedies
provision was designed to afford. The
Second Circuit explained, "[t]he requirement that the injury be to the
plaintiff's business or property means that the plaintiff must show a
proprietary type of damage. For
example, a person physically injured in a fire whose origin was arson is not
given a right to recover for his personal injuries; damage to his business or his building is the type of injury for
which § 1964(c) permits suit." Bankers Trust Co. v. Rhoades, 741 F.2d 511,
515 (2d Cir.1984) (dictum), vacated on other grounds, 473 U.S. 922, 105 S.Ct.
3550, 87 L.Ed.2d 673 (1985). The
pecuniary losses derived from the wrongful death of their children simply
cannot transform Plaintiffs' injuries into an injury to business or
property. Plaintiffs are unable to
establish the required "injury to property" element of their RICO
claim, and without this element, Plaintiffs have no standing on which to bring
their claim.
Although the Court
has determined that Plaintiffs' RICO claim must be dismissed for failure to
properly plead the first element of the claim and has also determined that it
would fail for a lack of standing as to the second element, the Court will, at
the risk of beating the proverbial dead horse, proceed to explain why
Plaintiffs' claim would also fail as to the third element.
The Third Element
of A Civil RICO Claim‑‑A Violation of Section 1962 Caused
Plaintiffs' Injuries
Again, assuming
arguendo that Plaintiffs had established the first two elements, that section
1962 was violated by a person associated with an enterprise and that they
suffered an injury to their business or property, the Court would then turn to
the third element, that Plaintiffs's injuries were caused by the violation of §
1962. To satisfy this element, a
plaintiff must allege facts which would establish that his injuries were a
direct result of the § 1962 violation.
It is insufficient for a plaintiff to allege that he was injured by the
defendant's commission of the predicate act, in this case distributing obscene
materials to minors. The Sixth
Circuit's analysis in Advocacy Organization for Patients and Providers v. Auto
Club Insurance Association is illustrative of this point. See 176 F.3d 315 (6th Cir.), cert. denied, ‑‑‑
U.S. ‑‑‑‑, 120 S.Ct. 172, 145 L.Ed.2d 145 (1999). There, the Sixth Circuit affirmed the
district court's dismissal of a plaintiff's civil RICO claim brought under §
1962(b) for failure to state a claim upon which relief could be granted. See id. at 330. In explaining why a dismissal was proper, the Sixth Circuit
stated:
[A]ccording to 18 U.S.C. § 1964(c), plaintiff can only seek
a civil remedy under RICO if her business or property was injured by reason of
the § 1962(b) violation. Contrary to
plaintiff's assertion, one does not violate § 1962(b) by committing mail fraud
or extortion. Instead, one must use
racketeering activity to gain control or interest in an enterprise. In other words, plaintiff cannot simply
allege that she was injured by the underlying acts of mail fraud and
extortion. Rather, she must allege
that she was injured by a violation of § 1962(b). In this case, in order to be injured by a violation of §
1962(b), plaintiff must show that her alleged injuries resulted from Auto Club
having maintained an interest in itself as an enterprise.
Id. (quotations
omitted). Applying this analysis to
Plaintiffs' allegations reveals another fatal flaw in their complaint. Plaintiffs were required to plead facts
sufficiently demonstrating that their injuries resulted from Defendants' use of
an enterprise to conduct a pattern of racketeering. Plaintiffs' complaint lacks
such allegations. See Craighead v.
E.F. Hutton & Co., Inc., 899 F.2d 485, 494 (6th Cir.1990)(explaining that a
§ 1962(a) claim must fail when a plaintiff fails to allege injuries stemming
directly from the § 1962 violation).
*818
Again, assuming that Plaintiffs had properly pleaded that their injuries were a
direct result of the § 1962 violation, their claim would fail on the premise
that they could not establish that the § 1962 violation proximately caused
their injuries. The Supreme Court has
established that a "plaintiff ... can only recover to the extent that he
has been injured in his business or property by the conduct constituting the
violation." Sedima, 473 U.S. at
496, 105 S.Ct. 3275 (emphasis added).
Moreover, the Supreme Court has explicitly stated that a plaintiff's
right to sue under the civil RICO provision requires a showing that the
defendant's violation of the Act was not only a "but for" cause of
the injury but was the "proximate cause" as well. See Holmes v.
Securities Investor Protection Corp., 503 U.S. 258, 268‑70, 112 S.Ct.
1311, 117 L.Ed.2d 532 (1992);
Fleischhauer v. Feltner, 879 F.2d 1290, 1300 (6th Cir.1989). Thus, assuming as true for the purposes of
the motion to dismiss that the Internet Defendants violated the RICO Act as
alleged in the complaint, Plaintiffs were still required to show that
Defendants' actions proximately caused their daughters' deaths and subsequent
loss of earning capacity.
[11] The Sixth
Circuit has stated that " '[c]ivil RICO is a statutory tort, so causation
principles that generally apply in tort cases apply in civil RICO cases.'
" Kaufman v. BDO Seidman, 984 F.2d
182, 185 (6th Cir.1993)(quoting Reynolds v. East Dyer Development Co., 882 F.2d
1249, 1253 (7th Cir.1989). At this
juncture, the Court's analysis regarding the causation element becomes subsumed
by the Court's previous analysis regarding the causation elements under both
negligence and strict liability theories.
In short, Michael Carneal's intervening acts served as a superseding
cause which broke the required causal connection needed not only for Plaintiffs
to establish negligence and strict liability but also to establish civil RICO
liability. Because Plaintiffs cannot
demonstrate the requisite causal connection between their "injuries"
and the acts of racketeering Defendants are alleged to have committed, they
have failed to establish the third element of their RICO claim. Plaintiffs' RICO claim must be dismissed.
[FN4]
FN4. Moreover, even if Plaintiffs
had properly alleged and established the requisite elements to assert their
RICO claim, it would be subject to dismissal for independent and sufficient
grounds such as: 1) the failure to
state which internet websites Michael Carneal visited, what type of
"materials" were distributed, and how the distribution of such
"materials" violated federal and state decency laws; and 2) Defendants' various affirmative
defenses such as statutory compliance.
First Amendment Issues
By
now it is clear that this case raises various constitutional concerns. However, the Supreme Court has stated,
"[w]here there is no need to decide a constitutional question, it is a
venerable principle of this Court's adjudicatory processes not to do so for
'[t]he Court will not 'anticipate a question of constitutional law in advance
of the necessity of deciding it.' " Ashwander v. TVA, 297 U.S. 288, 56
S.Ct. 466, 80 L.Ed. 688 (1936). In
Watters v. TSR, Incorporated, this Court decided similar claims on
constitutional grounds and did not analyze the claims pursuant to Kentucky
law. See 715 F.Supp. 819
(W.D.Ky.1989), aff'd on other grounds, 904 F.2d 378 (6th Cir.1990). On appeal, the Sixth Circuit reiterated to
this Court the principle that "constitutional questions should be decided
only where necessary." See
Watters, 904 F.2d at 380. Although
history may repeat itself, this Court has learned its lesson well. Therefore, since Kentucky law adequately
resolves the issues presented in this matter, the Court will not address the
constitutional issues looming in the background. Nevertheless, had the Court confronted the constitutional
issues, it would have relied on its previous analysis in Watters where it
explained:
The theories of
liability sought to be imposed upon the manufacturer of a *819 role‑playing fantasy game would have a devastatingly
broad chilling effect on expression of all forms. It cannot be justified by the benefit Plaintiff claims would
result from the imposition. The
libraries of the world are a great reservoir of works of fiction and nonfiction
which may stir their readers to commit heinous acts of violence or evil. However, ideas expressed in one work which
may drive some people to violence or ruin, may inspire others to feats of
excellence or greatness. As was stated
by the second Mr. Justice Harlan, 'one man's vulgarity is another man's
lyric.' Atrocities have been committed
in the name of many of civilization's great religions, intellectuals, and
artists, yet the first amendment does not hold those whose ideas inspired the
crimes to answer for such acts. To do
so would be to allow the freaks and misfits of society to declare what the rest
of the country can and cannot read, watch and hear.
Id. at 822.
Conclusion
Under existing law, which this Court has no power to change, the
Court has ruled that:
1) Plaintiffs' negligence claims must be dismissed because Defendants
owed no legal duty of care since Michael Carneal's actions were unforseeable.
Alternatively, Michael Carneal's intervening acts constituted a superseding
cause which absolved Defendants of liability;
2) Plaintiffs' strict products liability claims must be
dismissed because thoughts, ideas, and expressions contained within Defendants'
movie, games, and website materials do not constitute a "product"
within the realm of the strict liability doctrine; and
3) Plaintiffs' RICO claims must be dismissed because
Plaintiffs cannot establish essential elements needed to support a civil RICO
Act recovery.
This was a tragic
situation, but as the Sixth Circuit stated in Watters, "[t]ragedies such as this simply defy
rational explanation, and courts should not pretend otherwise." 904 F.2d at 384.
An order dismissing
this case in its entirety will be entered.
END OF DOCUMENT