Zamora v. Columbia Broadcasting System

• Decision Date: 19 November 1979
• Docket Number: No. 78-1718-Civ.-WMH.,78-1718-Civ.-WMH.
• Citation: 480 F. Supp. 199
• Parties: Ronny ZAMORA, a minor, by and through his father and next friend, Frank Zamora, Individually; and Yolanda Zamora, Individually, Plaintiffs, v. COLUMBIA BROADCASTING SYSTEM, a New York Corporation; American Broadcasting Company, a New York Corporation; and National Broadcasting Company, a Delaware Corporation, Defendants.
• Court: U.S. District Court — Southern District of Florida

480 F. Supp. 199

Ronny ZAMORA, a minor, by and through his father and next friend, Frank Zamora, Individually; and Yolanda Zamora, Individually, Plaintiffs, v. COLUMBIA BROADCASTING SYSTEM, a New York Corporation; American Broadcasting Company, a New York Corporation; and National Broadcasting Company, a Delaware Corporation, Defendants.

No. 78-1718-Civ.-WMH.

United States District Court, S. D. Florida, Miami Division.

November 19, 1979.

Ellis S. Rubin, Nelson A. Faerber, Jr., Charles H. Sinclair, Miami, Fla., for plaintiffs.

William B. Killian, Timothy B. Dyk, Alan N. Braverman, Ronald E. Guttman, CBS, Inc., New York City, Steel, Hector & Davis, Miami, Fla., Wilmer, Cutler & Pickering, Washington, D. C., for defendant Columbia Broadcasting System.

William Snow Frates and James B. Tilghman, Jr., Frates, Floyd, Pearson, Stewart, Richman & Greer, P. A., Miami, Fla., for defendant American Broadcasting Co.

Daniel P. S. Paul, Paul & Thomson, Miami, Fla., Floyd Abrams, Cahill Gordon & Reindel, New York City, for defendant National Broadcasting Co., Inc.

MEMORANDUM OPINION AND FINAL JUDGMENT

HOEVELER, District Judge.

Ronny Zamora, a minor, together with his father and mother sued the National Broadcasting Company, Columbia Broadcasting System and American Broadcasting Company for damages. Diversity and requisite amount are asserted as the bases for jurisdiction. In brief, the plaintiffs alleged that Ronny Zamora, from the age of five years (he was age 15 when this action was filed) has become involuntarily addicted to and "completely subliminally intoxicated" by the extensive viewing of television violence offered by the three defendants. The defendants are charged with breaching their duty to plaintiffs by failing to use ordinary care to prevent Ronny Zamora from being "impermissibly stimulated, incited and instigated" to duplicate the atrocities he viewed on television. The minor plaintiff, it is further charged, developed a sociopathic personality, became desensitized to violent behavior and became a danger to himself and others.

On June 4, 1977, in Miami Beach, Florida, Ronny Zamora shot and killed his 83 year old neighbor, Elinor Haggart. The complaint does not allege the circumstances under which the shooting took place. We must conclude from the complaint (as was a well-publicized fact) that young Zamara was convicted of charges growing out of the killing. The complaint further alleges that he has been deprived of his liberty and imprisoned; has become a sociopathic personality and cannot lead a normal life. The complaint also alleges that both parents have sustained certain losses for which they make claim. There is no allegation that any particular program incited young Zamora to the action in question or that his viewing of one network was more or less frequent than his viewing of others. Neither is there any allegation as to when in the ten-year span referred to the suggested duty (and consequent failure to respond) applied to any one or all of the defendants, nor whether the minor plaintiff's conduct was the product of pre-duty exposure or post-duty influence.

The defendants moved to dismiss the complaint contending variously that to permit the claims as stated would abridge their first amendment rights; that no duty of the type alleged exists by statute or otherwise and that in any event, the complaint wholly fails to set forth a legal or factual basis to support the charge of proximate cause. The Court agrees with these positions. The complaint was dismissed by separate order giving the plaintiffs leave to amend. The plaintiffs have elected not to amend. By the terms of the Court's prior order, this order becomes the final judgment of the Court.

I. HAS A CAUSE OF ACTION BEEN STATED?

The parties agree that the determination of whether the allegations in the complaint set forth a claim cognizable by the Courts, is essentially one of law. Due to the novel basis for the claim, there is little precedent within which to seek other than general instruction.

Prosser and Wade in their work, Cases and Materials on Torts, 5th Edition (1971), p. 150 state:

"Negligence is the word used to describe the conduct of the defendant. But a cause of action for negligence requires more than such conduct. There must be a duty, and there must be consequences. The traditional formula for the elements necessary to such a cause of action include the following:

1. A duty, which is an obligation recognized by law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. (Emphasis supplied)

2. A failure to conform to the standard required. This is commonly called the breach of duty. These two elements go to make up what the courts usually have called negligence; but the term frequently is applied to the second alone. Thus, it may be said that the defendant was negligent but is not liable because he was under no duty to the plaintiff not to be . . ."

Essentially, the plaintiffs claim the defendants breached a duty they owed Ronny Zamora. That duty, it is suggested, was generally to avoid making "violent" shows available for voluntary consumption by him and his parents. Plaintiffs do not suggest defendants breached a statutory duty. No supporting case or common law basis (other than the most general) is asserted as the underpinning for the claim. Yet, this Court is asked to determine, as a matter of law, that the allegations in the complaint are sufficient to create a cause of action against the defendants. The questions of duty and proximate cause are, initially at least, questions of law and here,

"It becomes essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred." Prosser Law of Torts, Section 42 at 244-45 (4th Ed.1971).

Is there or should there be here "an obligation, recognized by the law requiring the actor to conform to a certain standard of conduct . . ." Simon v. Tampa Electric Co., 202 So.2d 209, 213 (Fla. 2nd DCA 1967). As there is no such obligation (as demanded by plaintiffs) presently articulated in the law, the merit—the legal validity—of the claim must be examined. In so doing, a consideration of the commentary of Harper and James "Law of Torts" Vol. 2 (1956), p. 1132, Section 20.4 is appropriate.

"It should be noted at this point that many courts and legal writers have stressed the fact that policy considerations underlie the doctrine of proximate cause. Of course, they do, but the policies actually involved often fail to get explicit treatment. One consideration which is common to all cases under any system is the practical need to draw the line somewhere so that liability will not crush those on whom it is put. Even under comprehensive social insurance for all vicissitudes to the body there would have to be limits on the kinds of injuries to be compensated (many kinds like worry—loss of enjoyment, prestige, etc., probably would not be) and on the amount of compensation."

and from p. 1133

"another policy consideration which pervades all the cases is the need to work out rules which are feasible to administer and yield a workable degree of certainty."

Such considerations, no doubt, fathered the common law doctrine applied in Florida, that negligence unconnected with physical injury will not provide the basis (the legal "cause") for mental or emotional injuries, Kirksey v. Jernigan, (Fla.1950) 45 So.2d 188; Ellington v. United States, (M.D.Fla.) 404 F.Supp. 1165, except in limited circumstances;¹ the concept that the nature of the claims presented in Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931) would cause exposure to the actor of "indeterminate" classes, amounts and times, and the statement of the 5th Circuit in DeBardeleben Marine Corp. v. United States, 451 F.2d 140, 148 (5th Cir. 1971):

"The usual publishers of newspapers, treatises, and maps lack the financial resources to compensate an indeterminate class who might read their work. Potential liability would have a staggering deterrent effect on potential purveyors of printed material."

Of interest also is the holding and language of Yuhas v. Mudge, 129 N.J.Super. 207, 322 A.2d 824 (1974) where the plaintiff was injured by a product advertised in defendant's magazine.

"To impose the suggested broad legal duty upon publishers of nationally circulated magazines, newspapers and other publications, would not only be impractical and unrealistic, but would have a staggering adverse effect on the commercial world and our economic system. For the law to permit such exposure to those in the publishing business who in good faith accept paid advertisements for a myriad of products would open the doors `to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.'" Id. at 825.

The complex of weaknesses presented by plaintiffs' complaint join in requiring dismissal.² The generality which gives rise to defendants' purely procedural attack also requires the finding that the 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.³ Again, wholly apart from additional procedural problems which should be noted,⁴ 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...