Radio station KHJ, owned by RKO General, ran a summer promotion aimed at its large teenage audience. Its disc jockey, “The Real Don Steele,” drove a conspicuous red car around Los Angeles while the station repeatedly broadcast his location and likely destination. The first listener to find him and satisfy a stated condition won cash and an on-air interview.
After two young listeners missed Steele at one stop, each independently followed his vehicle to reach the next location first. They jockeyed for position at speeds as high as 80 miles per hour. As Steele exited the freeway, either driver forced the decedent’s car onto the center divider, where it overturned and killed him. One contestant then continued pursuing Steele and collected a prize.
The decedent’s wife and children brought a wrongful-death action against the two teenage drivers, KHJ, and the car manufacturer. One driver settled before trial. A jury returned a $300,000 verdict against the other driver and KHJ, while finding for the manufacturer. KHJ appealed from the judgment and the denial of its motion for judgment notwithstanding the verdict.
Issue #1
Whether KHJ owed the decedent a duty of ordinary care in conducting and broadcasting its on-the-road giveaway contest.
Holding
Yes. KHJ’s affirmative conduct created a foreseeable and unreasonable risk of physical harm to motorists, so it owed the decedent a duty to exercise ordinary care.
Reasoning
Duty is principally a question of law and reflects policy judgments about who should receive legal protection. California’s general rule requires every person to use ordinary care to avoid injuring others through that person’s conduct. Foreseeability is a central consideration, although the jury resolves factual disputes bearing on foreseeability.
Substantial evidence supported the jury’s finding that the danger was foreseeable. KHJ deliberately designed an “exciting” promotion for a large teenage audience, offering money and recognition to the first listener to reach a moving disc jockey’s successive locations. The station could reasonably anticipate that disappointed contestants would race to the next stop and neglect highway safety in their hurry to arrive first.
The disc jockey’s own experience reinforced that conclusion: he had seen cars follow him from stop to stop and had observed some of the same contestants at successive locations. The absence of an earlier accident did not eliminate foreseeability; otherwise, the first person injured by a foreseeable danger could never recover.
The risk was unreasonable. A high-speed chase on public roads presents a grave danger of death or serious injury, while the contest’s entertainment and commercial benefits did not justify that danger. KHJ could have promoted its station through safer contest formats without provoking a competitive pursuit on public streets.
Issue #2
Whether the negligent driving of the teenage contestants relieved KHJ of liability as an intervening act of third parties.
Holding
No. The contestants’ reckless driving was a foreseeable response to the contest and therefore did not break the causal connection to KHJ’s conduct.
Reasoning
An actor may ordinarily assume that others will act with due care only when negligent conduct by others is not reasonably to be anticipated. When the likelihood of a particular third-party reaction is itself the hazard that makes the actor negligent, that reaction does not excuse the actor from liability.
Here, the very danger created by KHJ’s broadcasts was that youthful contestants would drive recklessly to beat one another to the next announced destination. The teenagers’ conduct was thus not an independent, unforeseeable event; it was the foreseeable realization of the risk that KHJ’s contest generated.
Issue #3
Whether the lack of a special relationship between KHJ and the teenage drivers or the decedent precluded a duty under Restatement Second of Torts section 315.
Holding
No. Section 315 did not apply because the claim rested on KHJ’s affirmative creation of risk, not on a failure to control third parties or rescue the decedent.
Reasoning
The special-relationship rule is a limit on liability for nonfeasance—mere inaction or a failure to aid or control another person. It reflects the general common-law principle that a person ordinarily has no duty to act as a Good Samaritan.
KHJ was alleged to have committed misfeasance, not nonfeasance. Its broadcasts actively stimulated a dangerous competitive chase and thereby made the decedent’s position worse. Claims based on an affirmative act creating an unreasonable risk are governed by ordinary-care principles, not by the special-relationship limitation.
Issue #4
Whether imposing tort liability for the broadcast impermissibly burdened KHJ’s First Amendment interests or would improperly extend liability to ordinary commercial promotions.
Holding
No. The First Amendment does not immunize a broadcaster from civil liability for speech that foreseeably creates an unreasonable risk of physical injury, and the decision was limited to this unusually dangerous promotion.
Reasoning
The case concerned civil accountability for the foreseeable physical consequences of a broadcast that created an undue risk, not governmental suppression of protected expression. The First Amendment does not authorize the infliction of physical injury simply because the conduct causing the danger is accomplished through words rather than through direct physical action.
KHJ’s parade of hypothetical liabilities—for example, injuries suffered by fans rushing to buy scarce tickets or shoppers responding to a sale—did not resemble this contest. The station did more than offer a limited commodity: it repeatedly urged listeners to be the first to locate a moving prize source, intensifying a live, competitive chase on public streets.
Issue #5
Whether the trial court committed reversible error by recalling the jury during deliberations to give an instruction that had inadvertently been omitted from the original charge.
Holding
No. The instruction and the manner in which it was later delivered did not prejudice KHJ.
Reasoning
KHJ could not challenge the substance of the omitted instruction, which stated that one who undertakes to direct another’s actions must do so with due care. KHJ had itself requested and received a substantially similar instruction concerning a business that directs or influences others’ conduct.
A trial court may recall a jury to provide an inadvertently omitted instruction. Although an isolated instruction given late in deliberations can sometimes receive undue emphasis, the trial judge’s prefatory comments reduced that risk. KHJ also did not request a cautionary instruction or a rereading of the related instructions, forfeiting a later complaint about the procedure.