Watters v. TSR, Inc.

• Decision Date: 05 June 1990
• Docket Number: Nos. 89-5844,89-5891 and 89-6021,s. 89-5844
• Citation: 904 F.2d 378
• Parties: , Prod.Liab.Rep.(CCH)P 12,474 Sheila WATTERS, Individually and as Administratrix, Estate of Johnny Burnett, Deceased, Plaintiff-Appellant, v. TSR, INC., a/k/a TSR Hobbies, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 378

904 F.2d 378

59 USLW 2012, Prod.Liab.Rep.(CCH)P 12,474

Sheila WATTERS, Individually and as Administratrix, Estate

of Johnny Burnett, Deceased, Plaintiff-Appellant, v. TSR, INC., a/k/a TSR Hobbies, Inc., Defendant-Appellee.

Nos. 89-5844, 89-5891 and 89-6021.

United States Court of Appeals, Sixth Circuit.

Argued April 5, 1990.

Decided June 5, 1990.

Mark Edwards, Charles A. Saladino (argued), Thomas A. Dockter, Paducah, Ky., for plaintiff-appellant.

Stephen E. Smith, Jr. (argued), McMurry & Livingston, Paducah, Ky., for defendant-appellee.

Before KEITH and NELSON, Circuit Judges; and CONTIE, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This is a wrongful death case in which the plaintiff appeals from an order granting summary judgment to the manufacturer of a parlor game called "Dungeons & Dragons." The plaintiff alleges that her late son was an avid player of the game, and that it came to dominate his mind to such an extent that he was driven to suicide. She asserts that the defendant violated a duty of care in publishing and distributing the game materials; that the defendant violated a duty to warn that the game could cause psychological harm in fragile-minded children; and that the boy's death, which was caused by a self-inflicted gunshot wound, was a direct and proximate result of the defendant's alleged wrongdoing.

The defendant's motion for summary judgment was based on the First and Fourteenth Amendments and on familiar principles of tort law. Without addressing the common law questions, the district court held that the United States Constitution bars the imposition of liability in a case such as this. Watters v. TSR, Inc., 715 F.Supp. 819 (W.D.Ky.1989). We see no need to reach the constitutional issue, because we believe that the law of Kentucky, on which the plaintiff's claim is based, would not permit recovery on the facts shown here. We shall affirm the district court's judgment on that basis.

I

Plaintiff Sheila Watters, a Kentucky resident, brought suit against defendant TSR, Inc., in a Kentucky circuit court. TSR, a Wisconsin corporation that has its principal place of business outside Kentucky, removed the case to federal court on diversity of citizenship grounds.

TSR's Dungeons & Dragons game is one in which the players assume the roles of characters in "adventures" suggested in illustrated booklets. These adventures, set in an imaginary ancient world, are narrated and orchestrated by a player known as the Dungeon Master. The results of various encounters between characters are determined by using dice in conjunction with tables provided in the published materials.

The rules of the game do not call for the physical acting out of any role. The game is usually played at a table or in some other comfortable setting. We have seen no indication in the record that the game's materials glorify or encourage suicide, or even mention it. It does not appear that the materials allude in any way to guns. Many schools and libraries use Dungeons & Dragons as a learning tool and as a means of promoting creativity. More than a million copies have been sold, according to TSR's records, and this figure does not include sales by the several other companies that produce and sell other role-playing games.

Mrs. Watters describes her son, Johnny Burnett, as a "devoted" Dungeons & Dragons player who became absorbed by the game to the point of losing touch with reality. She claims that as a result of his exposure to the game, "he lost control of his own independent will and was driven to self-destruction." The record does not disclose Johnny's age at the time of the tragedy.

TSR moved for summary judgment on various grounds, including these: (1) the First Amendment, as applied to the states by the Fourteenth Amendment, precludes a Kentucky court from imposing liability on the basis of what the defendant said or published; (2) TSR owed no duty to refrain from distributing the game or to warn of the possible consequences of playing it; and (3) Johnny Burnett having died at his own hand, the suicide was an intervening or superseding cause of his death. Granting summary judgment to the defendant on First Amendment grounds, the district court did not reach any of the state law issues.

II

"Where 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, 346, 80 L.Ed. 688, 56 S.Ct. 466 (1936) (Brandeis, J., concurring), quoting Liverpool, New York and Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 28 L.Ed. 899, 5 S.Ct. 352 (1885).... Quite simply, '[i]t is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States 196 U.S. 283, 295, 49 L.Ed. 482, 25 S.Ct. 243 (1905)." Webster v. Reproductive Health Serv., [--- U.S. ----, ----], 106 L.Ed.2d 410, 441, 109 S.Ct. 3040, 3060 (1989) (O'Connor, J., concurring.)

We see no reason to depart in this case from the venerable and salutary principle that constitutional questions should be decided only where necessary. While the constitutional question was the only one addressed in the briefs on appeal, the underlying common law issues were adequately dealt with in the briefs filed with the district court. The propriety of a grant of summary judgment is a pure question of law, and although it is often very helpful, in diversity cases, for an appellate court to have the benefit of the district court's thinking on questions of state law, we do not believe a remand is called for in the present situation. The governing principles seem clear enough, even though there is no Kentucky caselaw directly in point.

III

"Actionable negligence," under Kentucky law, "consists of a duty, a violation thereof, and consequent injury." Illinois Central R.R. v. Vincent, 412 S.W.2d 874, 876 (Ky.1967), as quoted in M & T Chemicals, Inc. v. Westrick, 525 S.W.2d 740, 741 (Ky.1974). "Every 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," Westrick, 525 S.W.2d at 741, and it is "[a] fundamental principle of negligence ... that there is no liability without fault." Id. (Emphasis supplied).

Liability without fault, or "strict liability," may sometimes attach where an injury is caused by an inherently dangerous product. As far as we have been able to ascertain, however, the doctrine of strict liability has never been extended to words or pictures. Other courts have looked in vain for decisions so expanding the scope of the strict liability doctrine. See, e.g., Herceg v. Hustler Magazine, Inc., 565 F.Supp. 802, 803 (S.D.Tex.1983), and Cardozo v. True, 342 So.2d 1053, 1056-57 (Fla.Dist.Ct.App.), cert. denied, 353 So.2d 674 (Fla.1977). See also Beasock v. Dioguardi Enterprises, Inc., 130 Misc.2d 25, 29-30, 494 N.Y.S.2d 974, 978 (1985) ("The publications themselves did not produce the injuries and thus cannot serve as the basis for the imposition of liability under a theory of either strict products liability or breach of warranty...."). We are satisfied that there could be no recovery of damages in a case such as this without proof that the defendant was actually at fault--that the defendant violated its duty to exercise "ordinary care" to prevent "foreseeable injury."

The plaintiff's complaint alleges that the defendant violated its duty of ordinary care in two respects: it disseminated Dungeons & Dragons literature to "mentally fragile persons," and it failed to warn that the "possible consequences" of playing the game might include "loss of control of the mental processes." To 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.

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.

As to the supposed breach of a duty to warn, Kentucky law imposes a general duty on manufacturers and suppliers to warn of dangers known to them but not known to persons whose use of the product can reasonably be anticipated. Garrison v. Rohm and Haas Co., 492 F.2d 346, 352 (6th Cir.1974), citing Post v. American Cleaning Equipment Corp., 437 S.W.2d 516 (Ky.1968).

Johnny Burnett was certainly one of the class of people whose use of the game could reasonably have been anticipated, and there is no contention that he or his mother, Mrs. Watters, knew of any danger in using it. (An affidavit executed by Mrs. Watters indicates that she knew the game was often played at the public library; that Johnny and his friends played the game constantly after school and on weekends over a period of several years; and that never, either before or during the period when he and his friends were immersed in the game, did Johnny cause his mother any problems.) But if Johnny's suicide was not foreseeable to his own mother, there is no reason to suppose that it was foreseeable to defendant TSR.

In moving for summary judgment on the breach of duty question, defendant TSR put Mrs. Watters to her proof on foreseeability and knowledge--on whether TSR knew of some danger that made the suicide foreseeable. Mrs. Watters was not free simply to rest on her pleadings; she was required, by affidavits, depositions, answers to...