This Mod needs some help, important question

[DrGonzoESQ]

First, I'd like to say I'm continually impressed with the quality of responses this forum gets. It's one of the best on bluelight and as it's only remaining creater I'm really proud.
The situation I'm about to describe, DID NOT happen on Bluelight, it may not have happened at all, if it did it occured on an open IRC channel.
I need some help with research and opinion on this situation. This really is a pure hypothetical, and I repeat DID NOT involve bluelight. It was just a question that came to me from friends and I didn't have an answer but I'm researching it because I think it has real importance to our community.
A kid on an open IRC(Internet Relay Chat) channel took a potentially lethal dose of opiates live in the channel. He did this on web cam and bragged about it in the channel chat. Some members of the chat begged him to stop others egged him on. At one point a chatter called poison control, was advised to call 911. She changed her mind at the last minute and decided not to after other posters convinced her he was acting and or showing off. The kid died from the overdose.
What, if any liability do the channel opperators or channel participants have. Assume for research purposes that the channel permits/encourages free exchange of drug information(for harm reduction only)as well as social chat.
Feel free to offer legal theory with or without research(I'd REALLY Really Really love to see some research) but even just bare theory might help my research.
Thanks gang.
[ 23 January 2003: Message edited by: DrGonzoESQ ]

 

[Mahan Atma]

Criminal or civil liability?
Offhand, I don't see it for either (with the possible exception of someone who egged him on), but that's strictly off the top of my head. The semester just started so I've no time for research right now, sorry.
[ 23 January 2003: Message edited by: Mahan Atma ]

 

[DrGonzoESQ]

Both, and offhand I don't see any either, but once the chatter who called poison control undertook some action did she have duty to continue? And give some serious thought to the liability of channel ops or providers, just in an abundance of caution. Even stretching the theory is ok, being this is a hypo, add facts freely if you think they cause liability.
[ 23 January 2003: Message edited by: DrGonzoESQ ]

 

[Mahan Atma]

Originally posted by DrGonzoESQ:
Both, and offhand I don't see any either, but once the chatter who called poison control undertook some action did she have duty to continue?
I thought of that too - maybe civil liability, but not criminal. I think the policy-sort of question would be whether the person's starting to assist then discouraged/convinced others from doing so. It doesn't sound like it given the above description.
I don't know about the providers or others. There is no common law doctrine I know of that would create such liability, but perhaps some specific statute that deals with this? It would require a fair amount of research.

 

[DrGonzoESQ]

Yes it will require a fair amount of research (why I'm seeking help and ideas)...and everyone reading this interpret freely, don't stick to only the facts given(like they taught us in law school) add freely if you think adding facts can create liability.
With respect to the one who called poison control, once she undertook action to help she may have incurred a duty to complete the act, because by undertaking that duty she may have dissuaded others from assisting. Common law principle, if you start to help you are under duty to do so in a non-negligent manner. Question is reasonability of her actions given the input of other posters I think....and that's a factual question.
[ 23 January 2003: Message edited by: DrGonzoESQ ]

 

[Trancendance]

In which state(s) did these events occur (specifically, the state in which the person overdosed, and the state in which the person lived who decided not to call 911)?

 

[DrGonzoESQ]

Assume either same state or different states, even different countries. I know this is a broad question, that's why I'm seeking input. I don't want to know just for one state, I'm trying to formulate an overview of the law as it relates to these facts.
Analyse in any state you wish, add facts if you need to, if you know a state with applicable good samaritan laws or anything similar, add it. This is deliberately broad, I have my reasons, and I'll say again, this is hypothetical and DID NOT happen on Bluelight.
Thanks for looking
[ 24 January 2003: Message edited by: DrGonzoESQ ]

 

[Trancendance]

Warning: I am not a lawyer, and I only spent an hour or so researching and thinking about this issue.
First off, Good Samaritan laws do not impose a duty to rescue. All they do is immunize rescuers from any injury resulting from an attempted rescue undertaken in good faith.
For a discussion of these laws, see 798 A.2d 51
Second, a witness to a drug overdose is not under an obligation to rescue the person who overdosed unlessed the witnesses' negligent action(s) proximately caused the overdose. For a discussion of this issue, see 2000 WL 1683420, where a person who bought heroin for another was obligated to rescue that person. However, in this case, it seems as though the person's drug consumption was of his own volition. For a discussion of the very few exceptions to this, see footnote 2 in 77 Ohio St.3d 284
Third, even if a witness did proximately cause the death, the IRC would not be vicariously liable due to the lack of control or supervision over the chatters. Though not exactly on point, this case has a related discussion: 189 F.Supp.2d 1051
One thought though - Once poison control was called, are they under a duty to rescue? Can they just say "it's not our problem, call 911"? Was the situation described to them in sufficient detail to allow for rescue and/or impose liability for non-rescue?
Anyway, this is what my intuition and a short research session says.
Again, I am not a lawyer, this is not legal advice, etc. etc. etc.

 

[Trancendance]

By the way, I am not aware of, nor did I find any reference to, a duty to continue rescue once the process of rescue has begun.
It seems counterintuitive that such a doctrine would exist, for myriad policy reasons (with the obvious exception of medical professionals, etc.).

 

[DrGonzoESQ]

Originally posted by Trancendance:
By the way, I am not aware of, nor did I find any reference to, a duty to continue rescue once the process of rescue has begun.
It seems counterintuitive that such a doctrine would exist, for myriad policy reasons (with the obvious exception of medical professionals, etc.).
It's an OLD common law doctrine, the logic behind it is that once you begin rescue you are obliged to behave reasonably, and not abandon the rescue because you may have prevented someone else from beginning a rescue. I'm sure the doctrine exists, haven't had time to pull cases. You have a link to that fed case? that interests me, if not I can pull from book when I get to the office.
Thanks for looking, I know this is a broad question, and hard to answer, there may very well be no liability, but I need to check this out and appriciate the help.
[ 24 January 2003: Message edited by: DrGonzoESQ ]

 

[miamistu]

Ok, as I repeatedly say in my posts my First year criminal law class was 5 years ago and although, I certainly did better than most (and Im being humble with that statement), my memory isn't perfect (although it probably would be if it wasn't for those damn drugs).
Anyway, in addition to the civil liability previously mentioned, you might have a simple negligence claim either for running a board that is likely to encourage drug use (with respect to the internet board) or for encouraging someone to do a dangerous and illegal act (with respect to the chat participants)
(obviously there'd be comparative negligence and youd have to stretch to find a duty but many of my friends are PI lawyers and where there is negligence and resulting injury the court almost always finds a duty (unless your justice Cardozo in that stupid Palsgraf case)
I'm also pretty sure there is a doctrine which imposes criminal liability for encouraging another person to do a crime and it doesnt take much to implicate this doctrine (unlike conspiracy or accomplice liability which have a whole list of elements). (I believe common law simply refered to it as solicitation).
Soooo if ppl were encouraging him to use drugs and he died (and this would require tons of research and Im not even sure with respect to the internet whose criminal law would apply, probably both where the solicitation occurred and where the illegal act took place)you could find them all guilty of solicitation. A resulting death might even (depending on state criminal law) allow for a felony murder charge.
With respect to the internet board yoyu certainly could argue solicitation and possibly conspiracy and again get to felony murder in the same way. I have personally seen a prosecutor threaten (although not follow through) to bring a felony murder charge against a 20 year old girl who was unfortunate enough to have someone OD at her apartment while she was throwing a party where drugs were openly used.
Also many states have the catch all "criminally negligent homicide" which basically requires only 1) negligence and 2) death resulting from the negligence, both arguably present here.

 

[miamistu]

Oh and obviously you can argue negligence/and or criminally negligent homicide with respect to the idiots who talked the person out of calling for help. (see above for my comments about "duty")

 

[alert]

(had to edit...email if you have a question, sorry you were correct but had to edit anyway)
[ 24 January 2003: Message edited by: DrGonzoESQ ]

 

[Trancendance]

DrGonzo-
As far as I understand it, there is no per se duty not to abandon a rescue, but rather, there is a duty not to abandon IF that abandonment puts the injured person in a worse position than they were before the attempted rescue:
Restatement 2nd Torts § 324.
Duty Of One Who Takes Charge Of Another Who Is Helpless
One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or
(b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.
So, the only possible way that I can see that the attempted rescuer could be liable here is if other people, who would have called 911, were dissuaded from doing so because they thought she was doing it.
---
Also, I did some research into the issue of poison control's liability, and I found a law review article on point, here's a summary quote from the article:
"The Article does not assert that a citizen has a constitutional right to state protective services by reason of his or her residency within the state. Once a state initiates rescue, however, it has a duty to complete it. The state must not abandon the citizen after it has induced the citizen to rely upon state protection."
-From 23 CLMJLSP 487
---
Also, as to the discussion above, check out the FSupp2d case cited in my post. I seriously doubt that a court would impose negligence liability on an IRC, since it operates in real time and is analogous to a phone line. They are not aware of the content of the chat lines. Implying negligence on them would be like faulting AT&T for drug deals over their phone lines.
---
Finally, in terms of strategy, even if the encouragers and abandoned rescuer MIGHT be found liable, is it really financially worth bringing a lawsuit? When you multiply the likelihood of victory by the likely assets of these people, I don't really see the point.

 

[miamistu]

In response to TranceDance-
Your argument that an IRC is like a phone line probably wouldnt fly. Napster tried a similar argument. (We are like AOL and you cant hold AOL liable if someone e-mails music that is copyrighted) The court basically said that Napster encouraged and facilitated the file transfer so it was more than just a service provider (like AOL or the phone lines).

 

[Trancendance]

Did you read the fsupp2d case I cited above? It distinguishes the napster case.
Here's the summary:
Owner of copyrighted works which were posted on USENET newsgroup brought infringement action against, inter alios, Internet service provider (ISP) which temporarily stored infringer's posts on its USENET servers. On cross-motions for summary judgment, the District Court, Cooper, J., held that ISP's storage of posts on its USENET servers for fourteen days came within scope of Digital Millenium Copyright Act's safe-harbor provision for "intermediate and transient storage." Defendant's motion granted.
The key was that USNET servers are immediate and transient, like IRC.
[ 24 January 2003: Message edited by: Trancendance ]

 

[miamistu]

I must confess, I did not read that case. I just thought of the Napster example. I am also not as familiar as you are with the computer lingo as you appear to be.
The way I understand it the idea is that a usenet group (I believe, correct me if im wrong) has a billion different topics and ppl can chat about anything. It basically just provides the forum. A usenet group is entirely distinguishable from Napster or Bluelight (both of which, at least arguably encourage illegal activity). Of course Bluelight will say it doesnt encourage illegal activity just as Napster did. .
This issue is very complex and I believe the Napster case originally went the other way and was reversed by the 9th circuit. Other courts may weigh in differently. One case surely wont be the answer. Anyway, those cases are not entirely on point anyway as they deal with a specific section of the copyright law, not applicable here.

 

[Trancendance]

I agree that it's not a clear cut issue at all, as so little case law exists on this topic.
Also, and I could be wrong on this, I think IRC is more analagouse to AIM type software than BBS software like Bluelight. That's why I think that IRC couldn't excercise control over its content.
And as I mentioned above, I can't imagine that there's financial incentive to proceed with this case, especially given the doubtful nature of the claims.
The problem with all these internet related cases is that there's so little case law, so doctrines are fuzzy at best.
That said, cases advancing the common law abandonment of rescue cause of action are few and far between. So, this case rests on many tenuous notions.
Of course, all of these thoughts are based on only a little research, and I'm not even a lawyer. These issues are of great interest, so I'd love to hear other people's thoughts on this.

 

[DrGonzoESQ]

Good stuff guys, I'm still doubting liability would exist, but I'd like to play with the facts and see if we could come up with some that create liability, thats what I was doing with the girl who called poison control...and I think she's probably not liable as a reasonable person might have concluded the other posters were right, but what if they hadn't said anythign about his faking and she said, I'm calling 911, then didn't and nobody else did? Thoughts?
This has an important application btw,even though it's a hypothetical it's not just legal mental masturbation. I'm doing this for a reason. What about liability for a website with a chat function that permits drug discussion in the name of harm reduction? Little different than generic IRC...thoughts?
[ 24 January 2003: Message edited by: DrGonzoESQ ]

 

[miamistu]

My replies assumed you were talking abouta (harm reduction site). I agree, a generic IRC probably still wouldnt be liable (crimianlly or civilly). But for the reasons posted above, the chatters or a (harm reduction site) might be. Especially if theres an angry prosecutor on a mission.
[ 24 January 2003: Message edited by: DrGonzoESQ ]
[ 24 January 2003: Message edited by: DrGonzoESQ ]