Weirum v. RKO General, Inc. – Case Brief
Weirum v. RKO General, Inc., 15 Cal. 3d 40, 539 P.2d 36, 123 Cal.Rptr. 468 (1975).
Facts: RKO General, Inc. (D) owned KHJ, a rock radio station with a large teen audience. KHJ conducted a contest in which a mobile disc jockey would announce his location and offer a cash prize to the first listener to reach it. A listener (a minor) attempted to follow the disc jockey to his next location. In his pursuit the listener negligently forced another car off the road, killing the driver. The decedent’s surviving wife and children (Weirum, P) brought suit against RKO. The trial court found in favor of Weirum and on appeal the court reversed. Weirum appealed.
RKO argued that hindsight is not foreseeability and there could be no negligence until after the first accident. RKO also argued that they were not liable because the First Amendment gave them the right to free speech.
Issue: If one’s affirmative act creates an undue risk of harm, is he liable for any actions taken by third parties resulting from that risk of harm?
Holding and Rule: Yes. If one’s affirmative act creates an undue risk of harm, he is liable for any actions taken by third parties resulting from that risk of harm.
D was liable because KHJ created an unreasonable risk of harm. It does not matter that an intervening act of a third party caused the injury, because this kind of behavior was foreseeable when the radio station began the contest. The general rule is that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct. The primary consideration in determining duty is the foreseeability of the risk. Foreseeability is a question of fact for the jury to decide. The court held that in this case, it was foreseeable that this promotion would cause third parties to race to the announced location. D relied on the rule stating that absent a special relationship, an actor is under no duty to control the conduct of third parties. However, the rule has no application if P’s claim is based on some affirmative act of D which created an undue risk of harm.
Disposition: For P – trial court’s judgment reinstated.