Game Stooge

Game Stooge Legal Brief: Spyro Seizure Lawsuit

• Scribbled on March 30th, 2007 by S Holmes
• Filed in Editorial Content, Features, Industry News, Legal Brief, Off Topic, Sony PlayStation 2, WTF

Gamespot is reporting on a New York woman (”plaintiff”) who filed a lawsuit against Sony, Vivendi Games, Sierra Entertainment, and a video game rental store (”defendants”) for alleged injuries her young son suffered as a result of a seizure while playing Spyro: Enter The Dragonfly.

The plaintiff alleges that Vivendi was “negligent, careless, and reckless with regard to the design and manufacture” of Spyro, that the game was dangerous when used in the intended manner, and that Vivendi failed to properly warn consumers of that danger. This is what’s called a “Products Liability” claim. They’re essentially saying that Spyro, as it was made, is inherently defective because it caused a seizure.

I can’t imagine this claim will go anywhere under the theory that the game is defective. The fact that any given product can cause injuries doesn’t make it defective. For the most part, as long as the consumer is warned properly, the responsibility for preventing injury shifts from the manufacturer to the consumer.

Gamers certainly know that game manuals have had epilepsy warnings for a long time, and Spyro is no exception. However, I don’t think the success of this case will hinge on the adequacy of the warnings. A judge may think that a warning should be provided in the game itself or on the disc (and I imagine we’ll start seeing more of those), but for the most part I think it will revolve around whether each defendant (Sony, Vivendi, Sierra, and the rental store) upheld their legal duty to properly warn the consumer of any health hazards associated with using their product. With this is the issue of who is responsible for making the consumer aware of the health hazards in a rental situation (the game manufacturer or rental store?).

My opinion is that this case was filed to try to force a quick settlement out of the defendants. Most plaintiff’s attorneys work on a contingency fee basis which means they only get paid if their client gets paid. Lawsuits are extraordinarily expensive to litigate and nearly unbearable to take to an actual trial. In fact, the national percentage of lawsuits that actually result in a trial is less than 5%. Because of this, plaintiff’s attorneys file cases with the hopes of reaching a quick settlement. The longer the case goes, the more money it costs the plaintiff’s attorney. If it goes to trial and the plaintiff loses, the plaintiff’s attorney is out tens of thousands of dollars (sometimes more). So they only want to force a trial if they believe they have a strong case (which this is not).

On the other side, defendants are sometimes even less inclined to go to trial even if they think they have a strong case because all trial lawyers know one cold hard fact: juries are unpredictable. The shocking verdicts we all hear about (McDonald’s coffee, O.J. Simpson) are the result of jury decisions, not judges. Defendants know there is a huge risk in going to trial and will avoid it at substantial costs even when the law is firmly on their side. Expect the defendants in this case to litigate up until the judge rules on a summary judgment motion. Summary judgment motions are filed in nearly all cases and simply argue to the judge that the case shouldn’t even proceed to a jury because the issues can be resolved by the judge. If the judge does not dismiss the case at that point, then look for the remaining defendants to start serious settlement talks.

Finally, for those of you with a keen eye, although the court this case was filed in is called the New York Supreme Court, this is actually the lowest court in New York and the first place your case is heard when a lawsuit is filed.

[Game Stooge Legal Brief is a regular editorial feature on Game Stooge examining hot topics which bring together the gaming industry and legal system.]