On Point - A New Take On Legal News

Liability Waiver No Defense in Radio Stunt Death?

Jennifer Strange

Even if contestants in a California radio station's water-drinking competition signed a liability release, that should not be much of a defense against a lawsuit in the death of one of the contestants.

An attorney for Jennifer Strange's family has announced plans to sue Entercom Sacramento, the owner of the radio station that staged the fatal "Hold Your Wee for a Wii" contest on Jan. 12. The hosts of KDND's "Morning Rave" show offered a new Nintendo Wii video game system to the contestant who drank the most water without going to the bathroom.

Strange, a 28-year-old mother of three, apparently succumbed to “hyponatremia” or water intoxication shortly after drinking nearly two gallons of water while taking part in the contest.

"Jennifer, I heard you're not doing too well," one of the DJs said to her before she gave up, according to excerpts from the audiotape of the show.

"My head hurts," she responded. "They keep telling me that it's the water, that it'll tell my head to hurt and then it'll make me puke."

Contestant James Ybarra said station personnel handed him a liability waiver form which he signed without reading. Such forms are routinely used by broadcasters and, in California, a “clear, unambiguous and explicit” waiver is a defense to a claim of ordinary negligence.

The chilling audiotape, however, suggests the station was grossly negligent.

At least one of the KDND hosts, indeed, was aware of the risks of the contest. "Don't you get water poisoning and like die?" she asked, adding later, "Maybe we should have researched this more."

"If it gets dangerous for somebody, their body will automatically throw it up," another host responded. "And if you throw up the water, you're out of the contest."

A woman who called into the show also warned, "Those people that are drinking all that water can get sick and possibly die from water intoxication."

But the contest continued regardless, with Strange finishing in second place and the hosts joking about her distended stomach. "Look, it's totally sticking out," one of them said. "That is so funny."

“We did it like we were drinking shots,” contestant Gina Sherrod told the Sacramento Bee. “Instead of saying `cheers' we would say 'Wii' and then shoot it.”

Assumption of risk may not help Entercom here either. The doctrine requires that the injured person “knew of and appreciated the specific hazard which caused the injury” and both Ybarra and Sherrod say they had no idea what risk they were taking.

Entercom has canceled the "Morning Rave" and fired 10 of the employees involved in the contest, including the on-air talent. But those individuals and the station should still face severe legal consequences.

UPDATE ... Strange's husband filed a wrongful death complaint Jan. 25. "At no time before the contest did the decedent sign a release of liability contractually relieving any Defendants of their duty of care in organizing and running the contest," it says.

By Matthew Heller
1/17/07