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ZAMORA v. COLUMBIA BROADCASTING SYSTEM
480 F.Supp. 199 (1979)
Ronny ZAMORA, a minor, by and through his father and next friend, Frank Zamora, Individually; and Yolanda Zamora, Individually, Plaintiffs,
v.
COLUMBIA BROADCASTING SYSTEM, a New York Corporation; American Broadcasting Company, a New York Corporation; and National Broadcasting Company, a Delaware Corporation, Defendants.
No. 78-1718-Civ.-WMH.
United States District Court, S. D. Florida, Miami Division.
November 19, 1979.
Ellis S. Rubin, Nelson A. Faerber, Jr., Charles H. Sinclair, Miami, Fla., for plaintiffs.
William B. Killian, Timothy B. Dyk, Alan N. Braverman, Ronald E. Guttman, CBS, Inc., New York City, Steel, Hector & Davis, Miami, Fla., Wilmer, Cutler & Pickering, Washington, D. C., for defendant Columbia Broadcasting System.
William Snow Frates and James B. Tilghman, Jr., Frates, Floyd, Pearson, Stewart, Richman & Greer, P. A., Miami, Fla., for defendant American Broadcasting Co.
Daniel P. S. Paul, Paul & Thomson, Miami, Fla., Floyd Abrams, Cahill Gordon & Reindel, New York City, for defendant National Broadcasting Co., Inc.
MEMORANDUM OPINION AND FINAL JUDGMENTHOEVELER, District Judge. Ronny Zamora, a minor, together with his father and mother sued the National Broadcasting Company, Columbia Broadcasting System and American Broadcasting Company for damages. Diversity and requisite amount are asserted as the bases for jurisdiction. In brief, the plaintiffs alleged that Ronny Zamora, from the age of five years (he was age 15 when this action was filed) has become involuntarily addicted to and "completely subliminally intoxicated" by the extensive viewing of television violence offered by the three defendants. The defendants are charged with breaching their duty to plaintiffs by failing to use ordinary care to prevent Ronny Zamora from being "impermissibly stimulated, incited and instigated" to duplicate the atrocities he viewed on television. The minor plaintiff, it is further charged, developed a sociopathic personality, became desensitized to violent behavior and became a danger to himself and others. On June 4, 1977, in Miami Beach, Florida, Ronny Zamora shot and killed his 83 year old neighbor, Elinor Haggart. The complaint does not allege the circumstances under which the shooting took place. We must conclude from the complaint (as was a well-publicized fact) that young Zamara was convicted of charges growing out of the killing. The complaint further alleges that he has been deprived of his liberty and imprisoned; has become a sociopathic personality and cannot lead a normal life. The complaint also alleges that both parents have sustained certain losses for which they make claim. There is no allegation that any particular program incited young Zamora to the action in question or that his viewing of one network was more or less frequent than his viewing of others. Neither is there any allegation as to when in the ten-year span referred to the suggested duty (and consequent failure to respond) applied to any one or all of the defendants, nor whether the minor plaintiff's conduct
was the product of pre-duty exposure or post-duty influence. The defendants moved to dismiss the complaint contending variously that to permit the claims as stated would abridge their first amendment rights; that no duty of the type alleged exists by statute or otherwise and that in any event, the complaint wholly fails to set forth a legal or factual basis to support the charge of proximate cause. The Court agrees with these positions. The complaint was dismissed by separate order giving the plaintiffs leave to amend. The plaintiffs have elected not to amend. By the terms of the Court's prior order, this order becomes the final judgment of the Court. I. HAS A CAUSE OF ACTION BEEN STATED? The parties agree that the determination of whether the allegations in the complaint set forth a claim cognizable by the Courts, is essentially one of law. Due to the novel basis for the claim, there is little precedent within which to seek other than general instruction.
1. See, e. g., Gilliam v. Stewart,291 So.2d 593 (Fla.1974); Gibson v. Greyhound Buslines, Inc.,409 F.Supp. 321 (M.D.Fla.1976); Crane v. Loftin,70 So.2d 574 (Fla.1954). Florida does recognize the tort of intentional infliction of emotional distress, but nothing in the complaint is alleged which would support such an action which under Florida law must amount to conduct exceeding all bounds which could be tolerated by society and which is especially calculated to cause mental damage. Slocum v. Food Fair Stores of Florida, Inc.,100 So.2d 396 (Fla. 1958). The only exceptions recognized are manifestly foreseeable criminal acts. Nicholas v. Miami Burglar Alarm Co., Inc.,339 So.2d 175 (Fla.1976); Vining v. Avis Rent-A-Car Systems Inc.,354 So.2d 54, 56 (Fla.1978). 2. The allegations, on the face of the complaint are impermissibly vague and overbroad. See, Erznoznik v. City of Jacksonville,422 U.S. 205, 217-18, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Rosenbloom v. Metromedia,403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Ashton v. Kentucky,384 U.S. 195, 200, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966). 3. Under Florida law a criminal act intervening breaks the chain of causation except where such act is foreseeable. 4. Arnst v. Estes, 136 Me. 272, 8 A.2d 201, alleged joint tort feasors are joint only in that they are joined together. The right of action, if any, rises from separate and disconnected conduct. 5. FCC v. Pacifica Foundation,438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); Columbia Broadcasting, Inc. v. Democratic National Committee,412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772. 6. V. Blasi, The Checking Valve in First Amendment Theory, American Bar Foundation Journal, Volume 1977, Summer No. 3. 7. Counsel for the plaintiffs argued at the hearing on the motions to dismiss that he did not seek to prevent programming of the type in question. Rather, he simply wants damages if properly obtainable. 8. National Broadcasting Co., Inc. et al. v. Olivia Niemi, 434 U.S. 1354, 98 S.Ct. 705, 54 L.Ed.2d 742. 9. Yates v. United States,354 U.S. 298, 322, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). 10. United States v. Paramount Pictures,334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260. 11. Red Lion Broadcasting Co. v. F. C. C.,395 U.S. 367, 390, 89 S.Ct. 1794, 1806-07, 23 L.Ed.2d 371; Columbia Broadcasting, Inc. v. Democratic Nat'l Committee,412 U.S. 94, 102, 93 S.Ct. 2080, 36 L.Ed.2d 772. 12. 47 U.S.C. §§ 303, 326. 13. Columbia Broadcasting, Inc. v. Democratic, etc., Ibid at 412 U.S. p. 110, 93 S.Ct. p. 2090. 14. Erznoznik v. City of Jacksonville,422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125. 15. Pinkus v. United States,436 U.S. 293, 98 S.Ct. 1808, 56 L.Ed.2d 293, the consideration of instructions in a pornography case is of interest here. 16. Kingsley Corp. v. Regents of Univ. of N. Y.,360 U.S. 684, 689, 79 S.Ct. 1362, 3 L.Ed.2d 1512. 17. 412 U.S. 105, 93 S.Ct. 2080. 18. 47 U.S.C. § 326. 19. Erznoznik v. City of Jacksonville, supra. 20. Joseph Burstyn, Inc. v. Wilson,343 U.S. 495, 501, 72 S.Ct. 777, 96 L.Ed. 1098.
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