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: Day on Torts

"Stop Me Before I Masturbate to Death"

By John Day

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I file lawsuits for a living. Thus, I understand that reasonable minds often differ about whether there is liability in a given situation, often because there is a dispute about the facts. I also understand the idea of pushing the legal envelope - of attempting to expand the law to create a cause of action that will advance the overall cause of justice.

But a recent lawsuit threw me for a loop. David Carradine's widow has apparently sued the French production company that was handling the actor's last film, alleging that Mr. Carradine would still be alive if he had not been left in the hotel alone the night of his death.

Mr. Carradine was was found dead on June 4, 2009 in his Bangkok hotel room -- a likely victim of auto-erotic asphyxia. Allegedly, there is a photo of Carradine (published by a Thai tabloid) which shows a body suspended from a bar in a closet, with his hands bound together above his head. Carradine's genitals were also tied. It is reported that the family hired a doctor to do a private autopsy and determined that the cause of death was accidental asphyxiation.

According to this report by ABC News, Ms. Carradine "claims her husband's death could have been avoided if the production company, MK2 SA, had provided the actor with 'all the best amenities' and 'sufficient assistance.'" The ABC News report goes on to say as follows:

The suit claims that Carradine was supposed to have dinner that night with the film's director but the assistant responsible for his schedule and transportation to the set and meetings left him behind at the hotel after failing to reach him. When Carradine reached the assistant an hour later he was told "they were already across town and David Carradine would have to make his own arrangements that evening," the suit stated. Carradine had only been in the city three days.

Let me get this straight. Is the theory that if Mr. Carradine had been at dinner that evening he would not have decided to masturbate in his closet? Or that by telling Mr. Carradine that he would need to make his own arrangements that evening they should have reasonably foreseen that he would be so upset that he would place ropes around his neck and genitals and die? Was the lack of "sufficient assistance" the failure to arrange the services of a hooker, so that Mr. Carradine would not have felt compelled to engage in alternative sexual behavior that would risk his life (more than taking up with a hooker in Bangkok)? Are there some sort of special ropes that the company should have provided that have a quick-release mechanism that could have prevented this death?

Perhaps there are facts here that have not found their way to the press. But I cannot imagine "facts" that are even remotely likely to be true that would give rise to liability under the circumstances as reported by a myriad of articles on the death and the litigation.

There has been lots of litigation over the years concerning auto-erotic asphyxiation. Most of these lawsuits are an attempt to recover accidental death benefits under a life insurance policy, the claimants asserting that the decedent was not engaged in an intentional act likely to lead to death but rather a sexual act. My guess is that there are other cases where people argued that the suicide exclusion in a policy should not be applicable to a death of this type. I understand these lawsuits. But this claim, under the facts as reported, is ridiculous.

Don't get me wrong. I enjoyed David Carradine's work and feel sorry that his life ended so early, particularly in this way. But a wrongful death lawsuit? I just don't see it.

Some might suggest that this case will result in a hung jury, but I doubt it will survive a motion to dismiss.

Full post as published by Day on Torts on June 10, 2010 (boomark / email).