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Does Miss Colombia have legal claims for her public humiliation?

December 21, 2015

 

My answer is no*.

 

I’m sure you already know about the shocking twist at the end of the 2015 Miss Universe pageant. My role model, and first-time Miss Universe host, Steve Harvey, made the biggest mistake that one can make related to the pageant. He announced Miss Colombia as Miss Universe, she was crowned, given flowers, the crowd cheered…only to come back on stage to regrettably admit that he made a mistake and that Miss Philippines was the actual winner. Yikes! Take a look for yourself:

 

 

So as an attorney, naturally I immediately began to think of the legal claims that Miss Colombia may have for this unimaginable level of public humiliation.

When identifying possible claims for any situation, first, I normally put the incident into one of two categories: intentional or unintentional. Intentional actions (called intentional torts in the legal world) have a list of claims to choose from and unintentional torts usually amount to some form of negligence.

It is pretty safe to say that Steve did not announce the wrong winner on purpose, so we are in the category of unintentional torts and therefore, negligence.

neg·li·gence
ˈneɡləjəns/
noun
failure to use reasonable care, resulting in damage or injury to another.

Next, I look at the harm that was inflicted on the “victim.” There are so many causes of action that may arise from negligence so narrowing down the right claim can be easier by identifying the harm. Here, the harm is primarily emotional distress, so the claim that naturally comes to mind is Negligent Infliction of Emotional Distress (NIED).  For this negligence claim (and any other negligence claim), Miss Colombia would have to prove five elements:

  1. That the defendant had a duty of care to her.

  2. That the defendant breached that duty of care.

  3. That the harm suffered by Miss Colombia was a direct result of the defendant’s breach.

  4. That it is foreseeable that the harm suffered by Miss Colombia would be a result of the defendant’s breach.

  5. That Miss Colombia actually suffered a harm.

Likely, Miss Colombia would sue the owner of the Miss Universe Organization because they are the ones who have a duty of care to her. Who is the owner, you ask? If your answer is Donald Trump…you would be wrong.

In September 2015, after Trump made those controversial comments about illegal immigrants during his 2016 presidential campaign, NBC (who owned 50% of the Miss Universe Organization) ended its business relationship with Trump and stated that they would no longer air the pageant. NBC then sold its stake in the Miss Universe Organization to Trump, who in turn sold the entire organization to talent agency WME-IMG.

In my opinion, a brief review of each element would reveal that: (1) the owner of the pageant has a duty of care to each contestant which is likely to include not subjecting them to this type of immense public humiliation while on stage; (2) that duty was breached by the confusing, small-font script card that Steve was given to announce the winner and/or lack of sufficient rehearsal with the script card:

(3) Miss Colombia’s distress was likely NOT a direct result of the confusing script card, lack of rehearsal (whatever the case may be). In the law, we use the “but for” test which means, but for the confusing script card or lack of rehearsal, Miss Colombia would not have suffered her distress. It would be hard to argue that it was the script card that actually caused Miss Colombia’s harm and not Steve’s human error. (4) Yes, it is foreseeable that the confusing script card could lead to announcing the wrong winner and therefore causing the mistaken winner distress/harm. (5) Harm was incurred in the form of at least emotional distress.

In my opinion, because element 3 is missing, I would say that Miss Colombia would likely not be successful in a claim for negligence. If she decided to sue Steve Harvey instead so that element 3 is met, I believe that element 1 would be lacking because there is a strong argument that Steve does not have a legal duty of care to the contestants (although I can understand an argument that he does).

It is also worth noting that with a claim of negligent infliction of emotional distress (NIED), some states require that there be some sort of physical harm along with the emotional distress. Being that this incident took place in Nevada, a quick review of Nevada caselaw regarding NIED revealed the following:

  • “[I]n cases where emotional distress damages are not secondary to physical injuries, but rather, precipitate physical symptoms, either a physical impact must have occurred or, in the absence of physical impact, proof of “serious emotional distress” causing physical injury or illness must be presented.” Olivero v. Lowe, 116 Nev. 395, 399 (2000).

The whole world could feel the physical impact of this situation! I was merely a viewer of it on Snapchat for the first time and my stomach turned when I saw what happened. It still turns when I think about it. We can only imagine the headaches, nausea, vomiting, loss of sleep, loss of appetite, etc. that Miss Colombia is experiencing already; and with a good attorney, those physical manifestations are likely to be sufficient.

Ok, I’m about to take it a step further for my legal eagles. Let’s say that Miss Colombia’s attorney would argue that this is an intentional tort because the pageant owners intended to print the script card the way it did, therefore, intentionally doing the action that caused the harm. Even so, the claim fails because this new cause of action is called Intentional Infliction of Emotional Distress (IIED) and that requires “extreme or outrageous conduct.” Having a confusing font and layout on a script card is far from extreme or outrageous conduct, so the IIED claim would fail.

I’m sure we all feel so bad for Miss Colombia, and some of us for Steve as well (I do!). But, I wouldn’t be me if I didn’t share my thoughts on the legal implications of this situation. Let’s see how this plays out and if Miss Colombia takes her chances with filing a lawsuit.

 

*Now although it is my opinion based on the facts we know that Miss Colombia’s tort claims would fail, she may have breach of contract claims depending on the terms of the agreement.

Sources: 

http://www.nytimes.com/2015/09/15/business/media/trump-sells-miss-universe-organization-to-wme-img-talent-agency.html?_r=1

Olivero v. Lowe, 116 Nev. 395, 399 (2000)

 

Disclaimer: This post is not intended as legal advice.

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ENTERTAINEUR,  Esq.

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