This week a Royal Caribbean passenger was observed dangerously standing on her balcony railing while posing for a selfie. She was booted from Allure of the Seas cruise ship at the next stop. Earlier this month, four members of the same family drowned at a dam in India after slipping into the water while trying to take a selfie.
According to a study in India’s Journal of Family Medicine and Primary Care, some 259 people worldwide have died while taking selfies from October 2011 to November 2017. I think the number is probably a lot higher, especially when you take distracted driving in to account.
As a lawyer who has a pretty good understanding of the law and, social media (have you read my book?), I want to share my thoughts on the risks of taking dangerous selfies and, who may be legally responsible when someone is injured or dies while taking a selfie. You may be surprised by some of the information I share.
Before we dive into the post, please known and understand that while I am a California lawyer, I’m not you’re lawyer. No legal advice is being given in this post or website. The laws are different in each state, so check with a good lawyer in your state if you have questions or legal needs. Now having gotten that out of the way, here are a few quick thoughts about selfies and selfie liability.
Generally speaking, an adult taking a selfie has a duty not to place his safety, or the safety of others, at risk. If he does, and is harmed or killed, or harms and kills someone else, then most state and federal laws will find the person taking the selfie responsible for his injury or death and, for all losses relating thereto.
However, if the person taking the selfie is underage, certain states have modified the law to accommodate the inability of a teenager or young minor to comprehend and assume the risks. For example, in some states, a child under the age of 7 cannot be found to be negligent. If that child is between 7 and 14, some states hold there’s a rebuttable presumption the child could not be negligent, and between 14 and 21, there’s a rebuttable presumption the child was capable of negligence.
Your age and status (employer or employee following instructions) can all play a part in determining liability under the theory of negligence when something bad happens when taking a selfie. But there’s more to know before smiling and pressing the button.
This is a legal concept that typically comes into play where the injury was caused by some unsafe or defective condition on someone’s property. In some states, your status on the property (invitee, licensee, and trespasser) may control the about of care the landowner may owe to your safety.
If you own a property with a beautiful scenic cliff over the ocean, and your cliff is a place where people like to take selfies, then you may have a duty to place warning signs and even fence off the cliff to prevent people from getting too close to the edge. This is especially true if you’re aware of erosion resulting in the edge of the cliff being unstable and breaking off into the ocean.
Yes, there’s an argument that the person taking the selfie should be careful but, he was unaware of the unstable edge of the cliff, and you knew or should have known with a reasonable inspection, precisely how unsafe this part of your property is (this is called legal notice), then you may be exposed to liability, absent an affirmative defense such as a written waiver and assumption of risk contract described below.
Popular selfie spots on ships, bridges, and buildings may also require owners to post warnings or erect barriers preventing people from having access to a particular location and taking selfies.
Some states provide for affirmative defenses to help protect the landowner from obvious dangerous conditions. Other states allow people who are sued in these situations to assert affirmative defenses like contributory negligence, comparative negligence, and assumption of the risk (it’s not the property owner’s fault). The problem with relying upon these defenses is what may seem obvious to you may not be evident to a judge or jury. You never know what’s going to happen.
When it comes to selfies gone bad on federal, state, or local government-owned land, a concept known as “governmental immunity” may provide protection from someone injured while taking a selfie (a tort-based claim). Absent several very limited exceptions, it can be difficult to sue the government for a tort claim.
The best protection for landowners in this kind of situation is to post proper warning signs or fence off the dangerous area of your property. People taking selfies who want to avoid injury or death should pay attention to signs and avoid putting themselves in hazardous situations.
Attractive Nuisance Doctrine
In some states, a landowner may be held liable for injuries to trespassing children if the injury is caused by an object on the land that is likely to attract children (cars, piles of limber, caves, sand, trampolines, swimming pools). This doctrine is designed to protect children who are unable to appreciate the risk posed by the object by imposing liability on the landowner.
The result is that liability exposure to you, the landowner, for injuries to minors or teenagers while trying to take selfies may be higher than simply the liability related to a careless adult who should have known better before falling and harming himself while trying to take a selfie. Again proper warnings will help reduce and possibly even eliminate this liability.
Parents with kids who enjoy taking selfies, please pay attention to what they’re doing. This is especially true while traveling in unfamiliar locations. It seems to me that tourists in search of that lifelong memory seem to take more risk than others.
Yes, taking a selfie while driving is distracted driving. Having passengers taking selfies of you and others in the car is also distracted driving (you’re not paying attention to driving).
Each day, 8-10 people a day are killed, and each year, 600,000 people are injured because of distracted driving. During daylight hours In the United States, about 660,000 people are driving distracted every single second. Sure, most are not taking selfies, but some are.
People taking selfies while driving need to appreciate the fact that while traveling 55 mph, they are diverting their attention from the road ahead of them for 3-5 seconds. At that time and at that speed, that’s like traveling the length of a football field with a blindfold on. If you’re doing this while driving, you will be held liable for the harm and damages you cause others. Please don’t take selfies while driving.
Assumption of the Risk and Waivers
In many states, people who own or control “selfie rich environments” can enter into a written waiver of liability and assumption of the risk with the general public. For example, let’s say you’re planning on shooting selfies during a two-day rock climbing adventure up the vertical cliff known as El Capitan in Yosemite National Park. Before starting your journey and sharing your selfies, you’ll be asked first to sign a waiver and assumption of risk contract. If something terrible happens, during your climb, or while taking a selfie, you assume full responsibility and all damages.
The same types of provisions are now being included in most adventure and travel experiences. I would argue that generally speaking and subject to state law, any injury or death that takes place would probably be covered by a properly written, signed and dated, waiver and assumption of risk.
Because I grew up doing a lot of crazy sports like hang gliding, racing motocross, scuba diving, and windsurfing, I’m in favor of these agreements because they help protect a private or public landowner while allowing us the ability to use their land (dirt tracks, cliffs, private scuba diving beach access). The public policy behind these written agreements works just fine for me. The landowner can share her property with the world, and the general public can take all the risks they want, doing the activities of their choice, while shooting selfies.
Do keep in mind that in most states, minors are unable to enter into binding contracts, and that’s precisely what a waiver and assumption of risk document is. Always have someone with legal capacity (usually a mom, dad, or guardian ad litem) sign and witness properly prepared documents.
As someone who appreciates a good selfie, the first rule of thumb is always to be safe when creating and taking your shot. Do not put your health and the safety of others at risk. Always read all warning signs and respect the property rights of others.
Property Owners: If you’re the owner of property where someone was harmed while trying to take a selfie, immediately report the matter to your liability insurance carrier. Document everything and take as many pictures and videos of the area as possible.
Selfie Victims: If you or someone you know has been injured while trying to take a selfie, and don’t think it was your fault, contact an experienced lawyer in your state to learn what your rights are.
Friends Helping Friends: If you have a friend who is thinking about or actively engaged in pushing the safety envelope while taking a selfie, assert yourself and demand that they stop.
OK. That’s about it for today. Be safe and tag me (@mitchjackson) in your next great, and safe, amazing selfie.