A Texas law student may have taken a $1 million “prove me wrong” challenge seriously, but the criminal defense lawyer who made the challenge on a TV news show appears to have done so with enough tongue in cheek to avoid liability for not paying up.

J. Cheney Mason

Dustin Kolodziej, a student at South Texas College of Law, filed a breach-of-contract lawsuit last week, seeking to enforce the “unilateral contract” that J. Cheney Mason of Orlando, Fla., allegedly offered to anyone who could disembark from an aircraft and travel from the busy Atlanta airport to a motel five miles away in under 28 minutes.

“I challenge anybody to show me, I’ll pay them a million dollars if they can do it,” Mason said on a December 2006 episode of NBC's “Dateline.” He was arguing that a client did not have enough time to murder three people in Orlando in 1997.

Kolodziej says he took Mason up on the challenge in December 2007, retracing the alleged route of the accused murderer, Nelson Serrano, from Atlanta to Orlando and back again and making the airport-to-motel trip within the allotted time, but the lawyer has “refused to pay Kolodziej the promised $1 million.”

“Mason made an offer of a unilateral contract when he issued the challenge,” the complaint says. “Kolodziej accepted that contract when he performed the challenge. Therefore, Mason and Kolodziej entered into a contract. Mason breached the contract when he refused to pay Kolodziej.”

In January 2008, Mason wrote Kolodziej, saying the offer was just a joke and that “[c]ertainly neither you (reasonably) or anybody else could think that there was a clear intention to pay anybody a million dollars or any other amount.”

A unilateral contract is one in which an “offeror” makes a promise and an “offeree” accepts the contract by performing it. As the Iowa Court of Appeals has noted, “Reward offers are usually unilateral contracts” and an offeree can sue for breach of contract “if the offeror does not provide the reward after the offeree has fulfilled the contract's requirements.” Poeckes v. City of Orange City, 707 N.W.2d 336 (2005).

In the most famous “prove me wrong” case, a British court ruled in 1892 that a woman was entitled to recover the 100 pound reward offered by the manufacturer of the Carbolic Smoke Ball to anyone who contracted the flu while using the product. “[T]he defendants must perform their promise, and, if they have been so unwary as to expose themselves to a great many actions, so much the worse for them,” Lord Justice Lindley said.

More recently, a Missouri appeals court said that “A claimant to a reward needs only to show substantial performance” in finding the daughter-in-law of Jesse James should collect the $10,000 reward offered to anyone who could prove that an imposter does not lie in the legendary outlaw's grave. James v. Turilli, 473 S.W.2d 757 (1971).

Kolodziej made a video documenting his recreation of Serrano's journey. But even if he substantially performed Mason's offer, he probably will not be able to show the offer was one that a “reasonable, objective” person would have understood as serious.

In the seminal case of Leonard v. Pepsico, 88 F.Supp.2d 116 (1999), a New York judge ruled that the defendant did not make a serious offer of a Harrier Jet in a TV advertisement. “[T]he tongue-in-cheek attitude of the commercial would not cause a reasonable person to conclude that a soft drink company would be giving away fighter planes as part of a promotion,” the court concluded.

The transcript of the “Dateline” broadcast indicates that Mason intended his offer as no more than a rhetorical device to emphasize his disagreement with the prosecution's timeline implicating Serrano in the three murders.

“28 minutes,” Mason said. “Can’t happen. Didn’t happen.”

By Matthew Heller
6/26/09