059: I See the Light!

Stella Case No. 059, Originally Published: 16 July 2003

Shawn Perkins of Laurel, Ind., took his family to Paramount’s Kings Island amusement park in Mason, Ohio, on 12 June 2001. As they left the park to go to their car, a thunderstorm was approaching. As the family reached the car, lightning struck and “the car [Perkins] was touching was blown apart,” claims the family’s lawyer, Drake Ebner.

Oh no! A lawyer for a lightning strike? Yep. This was no “act of God,” Ebner says. “That would be a lot of people’s knee-jerk reaction in these types of situations, frankly,” he says, clearly expecting criticism over the suit. He says the amusement park has “a duty of ordinary care” to warn visitors of any foreseeable danger, and the Perkins’s were not warned about the storm.

The amusement park “could have told the people not to go to their cars,” he says, “which are large metal objects that can attract lightning.” (Lawyers have to be careful to define every term they use. They have to justify their big fees somehow, and I’ll bet you never thought that was the definition of a car. See? He’s a professional; don’t try this at home!)

“A lot of voltage passed through his brain,” Ebner says. His suit, filed in Hamilton County (Ohio) Common Pleas Court, says that as a result of the lightning strike Perkins is suffering from brain damage, which has resulted in a “cognitive deficit and severe memory loss.” Perhaps not surprisingly, Ebner notes Perkins also has a fear of being outside.

“We believe that the weather system was predictable,” Ebner continued, building his case step by step. “Therefore, the risk and injury to Mr. Perkins was predictable and therefore avoidable.” If the park didn’t know about the storm, he adds, it should have known, perhaps by subscribing to a weather prediction service. “If you are a multimillion-dollar business, wouldn’t you?” Ebner asks.

However, he quickly adds, “I’m just not mentioning [the park’s multimillion-dollar gross income] for the concept of deep pockets for the suit.” Oh no — perish the thought! Such a thing never entered our minds. (Really! We swear! May lightning— well… strike that idea.)

“Think of the amount of money Kings Island spends to get people to the park,” he says, still lingering on the money issue. “Safety is not common sense.” It’s not?! No, he says: “You and I don’t run amusement parks.” (Speak for yourself, chum.)

“Because they are in the unique situation they are in — that says they need to do things that you and I don’t do.” Like, say, knowing to take cover in a thunderstorm?

Sources

• “Family Sues Kings Island,” Cincinnati Post, 17 June 2003
• “Kings Island Sued by Family,” Cincinnati Enquirer, 19 June 2003

Case Status

I only found one non-authoritative mention of the outcome of this case: “According to the online Clerk of Courts for Warren County: ‘Disposition: Dismissed Prior to Trial/Settled’.” I’d think Dismissed is most likely, especially since I didn’t find any references in Google searches to any decisions, let alone any award.

This case was a “runner-up” for the Stella Award for the most frivolous case of 2003.

My 2021 Thoughts on the Case

Act of God: “An event that directly and exclusively results from the occurrence of natural causes that could not have been prevented by the exercise of foresight or caution; an inevitable accident.” —West’s Encyclopedia of American Law, 2nd edition, The Gale Group, Inc. (emphasis added). Need I say more?

Letters

There was a prodigious amount of mail over the lawsuit over a newspaper’s review of the then-new Harry Potter book, whining that their “carefully orchestrated, multi-million-dollar marketing plans” were “irreparably harmed.” The back and forth is a great lesson in why so many frivolous suits prevail: even many readers of TSA thought it was a righteous case! And I had fun taking their arguments apart.

Beth in Minnesota: “I read your article with utter disgust and dismay. I am quite unsure how this early publicity could possibly negatively affect the sales of the book. Did the author really expect she would be able to control everything about the release of the book, down to the exact time the bookstores were allowed to sell it? Why isn’t she suing the bookstore owner?”

The owner of the store, a health food outlet, likely doesn’t have deep, money-filled pockets — and says he was never told of the sales embargo. But quite a few readers found that difficult to believe.

Tina in California: “All of the books shipped by Scholastic had a huge sticker on the box in BIG letters stating the rules of not opening until after midnight on the 21st. While the huge suit $$ are ridiculous, Scholastic is definitely within their rights to snort a bit.”

There’s a problem with that theory, though: the case write-up noted that the health food store got four copies of the book, yet a full case is 10 copies. I’m willing to bet that the box his copies came in had no such sticker, and thus he was not legally notified of the embargo. I believe that’s why he wasn’t named in the suit. Well, that and it’s better publicity to sue a “big, bad newspaper” than a little guy with a tiny store.

Desiree in Texas: “In my opinion, as an avid reader (and a bookseller at a well-known bookstore chain), the reporter demonstrated poor taste in knowingly publishing a plot summary of Harry Potter #5 before the street date. Publishers enact street dates on all books that are potential bestsellers and do not always send out pre-publication copies. Scholastic did nothing out of the ordinary in that respect. Street dates ensure that no bookstore has an advantage over any other and that all readers have the opportunity to read the book before someone spoils the ending. I do not see why the reporter and/or paper’s greed in using the ‘obvious scoop potential’ to make money is somehow more justified than Scholastic’s attempt to make money. That being said, I’m not sure that Scholastic’s lawsuit for $100 million in damages is justified either.”

The embargo isn’t a legally binding contract on anyone who does not agree to it. Bookstores that wanted to sell the book apparently were happy to make such an agreement. The newspaper, however, was not a party to it. For Scholastic and author J.K. Rowling to insist that it must comply with its marketing scheme isn’t reasonable, making the suit against the paper ridiculous. “Poor taste” is not valid grounds for a lawsuit.

Tom in Ohio: “The lawsuit against the New York Post is an abuse of the process. I was thinking, even before your article arrived, that perhaps the lawsuit itself was part of the campaign. Perhaps I’m way too cynical, but I would expect the lawsuit to be quietly dropped now that the publicity has been reaped. What really frosts me is that it was unnecessary. Everybody was hyping the book anyway.”

Many others considered that a possibility too.

Rodney in Japan: “I hope I’m wrong, but I suspect that the seamiest aspect of this lawsuit is that its only purpose is to provide additional hype for the book — as if they needed any more of that! Whether I’m right or wrong, I hope the judge, recognizing the frivolity — if not the duplicity — of Scholastic’s claim, will toss it out with as little fanfare as possible, minimizing the benefit Scholastic and its lawyers are able to reap from the publicity.”

Geoffrey in California: “I have to disagree with your stance against Scholastic’s lawsuit against the New York Daily News. As you stated, Scholastic spent $3 million in an effort to coordinate the release of a book, sales of which are largely dependant on the suspense of the fans. The blatant disregard of loudly and profusely declared release dates is dangerously close to copyright infringement and a serious legal challenge is certainly warranted. The author and publisher made sure that everybody knew that nobody was to read the book before June 21st, and the courts should decide whether or not they should have that power. What possible purpose could be served by printing the review on June 18th rather than June 21st? It was a pointless publicity stunt that real newspapers should be above, and I hope it blows up in their faces. And I have to say, you seem to have a negative opinion toward the huge success this book achieved on its opening weekend. I admit that I hope for the success of this book, being a fan, but I have never noticed that kind of slant in your previous writing. Whether or not you enjoy the books, there are untold millions of fans earned by the author’s previous books, and there is no reason the next book should not have massive sales. Rowling has earned it.”

Rowling definitely has earned her place in publishing (and financial) history. She created a terrific premise and cast of characters and deserves her riches. Yet you don’t think the newspaper also has the right to make money. “What possible purpose” did the newspaper have to print the review before the embargo? To make money, of course! That’s what they’re in business to do. If it’s OK for Rowling, why don’t you allow others to have that same right?

Several readers also suggested that, while Scholastic and Rowling were “right” to sue, the amount was “excessive” and should be donated to charity. If they’re right — if their business and profits were damaged — why in the world should they give any winnings to charity? Your discomfort over the amount is telling: you don’t think it’s right that they should profit from the supposed “damage.” If they don’t deserve monetary damages, why do they deserve to sue?

A number of readers also objected to the newspaper “ruining the surprise” by publishing a plot summary. People who didn’t want the “surprise” revealed to them shouldn’t have read the story! As noted in the case write-up, the paper warned readers, “If you don’t want to know anything about how Harry and his pals spend their fifth year at the Hogwarts School of Witchcraft and Wizardry, stop now and buy the book when it’s officially released Saturday.”

Once the book was released, did sales suddenly stop because the people who bought it the first day knew what the plot was? Yeah, right. Unsurprisingly, the book is still #1 on the New York Times’ Children’s Hardcover Best Seller list — and #2-5 are other Harry Potter titles, despite their “surprises” being “ruined” long ago.

Adam in B.C., Canada: “At the bottom of each edition of the Stella Awards, you include a [copyright] notice. How is your attempt to control the distribution of Stella any different than Scholastic’s attempt to control the distribution of its intellectual property? Suppose someone violated your copyright notice and re-broadcast an edition of Stella, minus the notice. Are you saying you’d just sit back and let that go, saying, ‘well, it’s the free press, I can’t do anything about it’? If your objection is to the hundred million dollars Scholastic is suing for, then fine — that does seem a little much (though the Daily News can surely afford it). But it seems you’re objecting to Scholastic’s legal right to protect what they own — a right that you yourself employ.”

You’re comparing apples and oranges, Adam — there’s a big difference between printing 1/450th of a work as part of a review and publishing the entire work, which you suggest is somehow equivalent. The Potter case write-up, for instance, is about 950 words. You’re saying I should be upset over a major newspaper running two of those words (even in a row!) of one of my issues? I don’t think so.

But let’s not make law up here — copyright law is quite clear on what is “fair use” of a copyrighted text. The concept is discussed nicely on the U.S. Copyright Office’s web site. Specifically, that page notes “The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: ‘quotation of excerpts in a review or criticism for purposes of illustration or comment’….” This is not new ground here; the concept of “fair use” is many decades old. [2021 Note: the text of the page has changed since 2003, but the premise still stands. -rc]

Last, if you think any newspaper can “afford” to toss away $100 million over one story, you’re really out of touch with the economics of business. And isn’t that part of the problem with runaway lawsuits? Juries who think “they can afford it” regardless of whether the case has actual merits end up giving away huge rewards over frivolous matters, which now constitutes 2.33% of this country’s Gross Domestic Product. In other words, lawsuits will cost the classic American “family of four” $3,400 this year. “A little much” indeed.

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