300 F.3d 683 (6th Cir. 2002), 00-5922, James v. Meow Media, Inc.

Docket Nº:00-5922.
Citation:300 F.3d 683
Party Name:Joe JAMES, et al., Plaintiffs-Appellants, v. MEOW MEDIA, INC., et al., Defendants-Appellees.
Case Date:August 13, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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300 F.3d 683 (6th Cir. 2002)

Joe JAMES, et al., Plaintiffs-Appellants,

v.

MEOW MEDIA, INC., et al., Defendants-Appellees.

No. 00-5922.

United States Court of Appeals, Sixth Circuit

August 13, 2002

Argued: Nov. 28, 2001.

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Michael A. Breen (argued and briefed), Kerry S. Morgan (briefed), Mike Breen Attorneys at Law, Bowling Green, KY, for Plaintiffs-Appellants.

Mark P. Bryant (briefed), William K. Shannon, Bryant & Kautz, Paducah, KY, Steven C. Jackson (briefed), Jackson & Jaggers, Paducah, KY, Joel N. Kreizman (briefed), Evans, Osborne & Kreizman, Ocean, NJ, Gerald O. Sweeney, Jr. (briefed), John T. Williams (briefed), Lord, Bissell & Brook, Chicago, IL, David L. Kelly, Denton & Keuler, Paducah, KY, Elizabeth U. Mendel (briefed), Richard H.C. Clay (briefed), Patrick Shane O'Bryan (briefed), Woodward, Hobson & Fulton, Louisville, KY, John David Cole, Sr. (briefed), Matthew P. Cook (briefed), Cole, Moore & Baker, Bowling Green, KY, Paul E. Salamanca (briefed), Lexington, KY, D. Wade Cloud, Jr. (briefed), James T. Drakeley (briefed), Hiersche, Martens, Hayward, Drakeley & Urbach, Addison, TX, Stephen E. Smith, Jr. (briefed), McMurry & Livingston, Paducah, KY, Bruce J. Ennis, Paul M. Smith (argued and briefed), Deanne E. Maynard (briefed), David C. Belt (briefed), Elizabeth A. Cavanagh (briefed), Jenner & Block, Washington, DC, Steven P. Mandell, Davidson, Mandell, Menkes & Surdyk, Chicago, IL, V. Thomas Fryman, Jr. (briefed), Greenebaum, Doll & McDonald, Lexington, KY, Mark S. Riddle (briefed), Greenebaum, Doll & McDonald, Louisville, KY, Kevin T. Baine (argued and briefed), Williams & Connolly, Washington, DC, Barry R. Ostrager (briefed), Mary E. McGarry (briefed), Simpson, Thacher & Bartlett, New York, NY, Ronald G. Sheffer (briefed), Sheffer, Hutchinson & Kinney, Louisville, KY, for Defendants-Appellees.

Before: GUY and BOGGS, Circuit

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Judges; and CARR, District Judge.[*]

OPINION

BOGGS, Circuit Judge.

On December 1, 1997, Michael Carneal walked into the lobby of Heath High School in Paducah, Kentucky, and shot several of his fellow students, killing three and wounding many others. The parents and estate administrators of Carneal's victims—Jessica James, Kayce Steger, and Nicole Hadley—(hereinafter collectively referred to as "James") appeal the judgment of the district court dismissing, for failing to state claims on which relief could be granted, their actions against several video game, movie production, and internet content-provider firms. According to James's complaint, Carneal regularly played video games, watched movies, and viewed internet sites produced by the defendant firms. These activities, James argues, "desensitized" Carneal to violence and "caused" him to kill the students of Heath High School. James claims that the distribution of this material to impressionable youth like Carneal constitutes actionable negligence under Kentucky law, entitling James to recover wrongful death damages from the distributing firms. Moreover, James contends that the defendant firms purveyed defective "products," namely the content of video games, movies, and internet sites, triggering strict product liability under Kentucky law.

The defendant firms argue that they owe no duty to protect third parties from how players, watchers or viewers process the ideas and images presented in their video games, movies, and internet sites. Specifically, the defendants contend that Carneal's actions were not sufficiently foreseeable to trigger the defendants' liability. Even if they were to owe such a duty to protect third parties from the consumers of their ideas and images, the defendants argue that Carneal's independent decision to kill his fellow students constitutes a superseding cause of the claimed damages and defeats the proximate cause element of James's prima facie case. The defendants further contend that tort liability for the non-defamatory ideas and images communicated in their respective media would raise significant First Amendment questions that ought to be avoided. Finally, the defendants note that James's theory of product liability is flawed as they have not distributed "products" under Kentucky law.

For the reasons set forth below, we affirm the district court's dismissal of James's actions.

I

On December 1, 1997, Michael Carneal brought a .22-caliber pistol and five shotguns into the lobby of Heath High School in Paducah, Kentucky. At the time, Carneal was a 14-year-old freshman student at the school. Upon his arrival, Carneal began shooting into a crowd of students, wounding five. His shots killed an additional three: Jessica James, Kayce Steger, and Nicole Hadley. Carneal was arrested and convicted of murdering James, Steger, and Hadley.

Subsequent investigations revealed that Carneal regularly played "Doom," "Quake," "Castle Wolfenstein," "Redneck Rampage," "Nightmare Creatures," "Mech Warrior," "Resident Evil," and "Final Fantasy," which are interactive computer games that, in various ways, all involve the

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player shooting virtual opponents. Carneal also possessed a video tape containing the movie, "The Basketball Diaries," in a few minutes of which the high-school-student protagonist dreams of killing his teacher and several of his fellow classmates. Investigators examined Carneal's computer and discovered that he had visited "www.persiankitty.com," which appears to catalogue and link to sites with sexually-suggestive material. It also appeared that through "www.adultkey.com," www.adultkey.com, a site operated by Network Authentication Systems and designed to restrict access to certain websites to viewers over certain ages, Carneal was granted age verification sufficient to visit many other pornographic sites.

The parents, who also are the estate administrators, of James, Steger, and Hadley filed this action in the United States District Court for the Western District of Kentucky. James's complaint named as defendants the companies that produce or maintain the above-mentioned movie, video games, and internet sites. James stated essentially three causes of action against the defendants. First, James alleged that the defendants had been negligent in that they either knew or should have known that the distribution of their material to Carneal and other young people created an unreasonable risk of harm to others. James alleged that exposure to the defendants' material made young people insensitive to violence and more likely to commit violent acts. But for Carneal's steady diet of the defendants' material, James contended, Carneal would not have committed his violent acts.

Second, James asserted that the video game cartridges, movie cassettes, and internet transmissions that the defendants produced and distributed were "products" for purposes of Kentucky product liability law. According to James, the violent features of the movie, games, and internet sites were product defects. The defendants, as producers and distributors of the "products," are strictly liable under Kentucky law for damages caused by such product defects.

The third claim that James raised was that some of the defendants' conduct had violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. According to James, the defendant firms that maintained internet sites engaged in a pattern of racketeering activity by distributing obscene material to minors.

The defendants moved to dismiss all of James's actions for failing to state any claim on which relief could be granted. See Fed.R.Civ.P. 12(b)(6). The district court granted the defendants' motion. The district court held that Carneal's actions were not sufficiently foreseeable to impose a duty of reasonable care on the defendants with regard to Carneal's victims. Alternatively, the district court held that even if such a duty existed, Carneal's actions constituted a superseding cause of the victims' injuries, defeating the element of proximate causation notwithstanding the defendants' negligence. With regard to James's second cause of action, the district court determined that the "thoughts, ideas and images" purveyed by the defendants' movie, video games, and internet sites were not "products" for purposes of Kentucky law and therefore the defendants could not be held strictly liable for any alleged defects. Finally, the district court held that James had not stated a viable RICO claim against the defendant internet firms. Among other reasons, the district court explained that James had alleged RICO predicate acts, but had failed to identify an organization that had been corrupted, and had failed to show any injury

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to "business or property" as required for standing under RICO.

James now appeals the district court dismissal of his negligence and product liability claims. We can discern no argument in James's brief assigning error to the district court's dismissal of his RICO claim, and therefore consider such an argument waived. Accordingly, this appeal raises questions of only Kentucky law.

II

In this case, we review a district court's dismissal of a case for failure to state a claim on which relief may be granted. Fed R. Civ. P. 12(b)(6). In deciding a Rule 12(b)(6) motion to dismiss, the district court is required to assume that all allegations in the complaint are true and to decide whether those allegations provide a basis for legal relief. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This court reviews de novo a district court's granting of such a motion to dismiss. Helfrich v....

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