Academic

christyTV Blogging: The Biggest Loser Meets the Personal Injury Lawsuit

By Gordon Smith, Christine, Hurt, Vic Fleischer, Fred Tung, Lisa Fairfax, David Zaring

So, in order to write this post I have to admit that I love The Biggest Loser.  I'm fairly obsessed with it, actually.  I've never seen any of the other season-long reality shows where people get voted off, so this is my first foray into the strange game theory of the survival reality show.  This season, the contestants were in teams of two (married couples, sisters, cousins, brothers, best friends, engaged couples, parent/child teams).  The point of the show is to exercise a lot with a personal trainer and eat better in order to lose weight each week at the "weigh-in."  The people that lose the least are in jeopardy of getting voted off.  I missed the first part of the season, but by the time that I started watching how this voting off happened varied from week to week.  For awhile, the lowest couple had one of their team voted off.  Then, all couples were either on the Blue or the Black team, and the lowest losing team had to vote one of their own off.  Now, with 8 left this week, the "bigger losers" vote to decide which one of the two "lowest losers" will go home.  The last one standing wins $250k.  At this point, most of the contestants left have lost substantial amounts of weight (100-plus pounds).  The strategy is very interesting.

Anyway, this week poses some interesting Torts questions (spoiler alert below -- I know my friend Tracy McGaugh hasn't watched it yet because she's with Touro law students in NOLA, so Tracy -- stop reading.)

One of the contestants, Laura, has suffered a stress fracture in her hip.  Laura has probably lost the least weight (both absolute and as a percentage) of any of the other viable contestants; however, she was immune from elimination for awhile because she has a very strong partner and then was on the stronger team (Blue), which never lost a weigh-in.  Anyway, much of the TV time that Laura receives focuses on how lazy her trainer thinks she is.  Jillian, the trainer, yells at her and gets in her face and has her other team members tell her that she is the weakest member of their team.  When Laura says she's going to pass out or that she can't breathe, Jillian mocks her.  Jillian often tells the camera in the "monologuing sessions" that Laura obviously has some mental issues to work through.  All that being said, in the last few of the 15 weeks, Laura seems to have turned the corner.  Until this week.

Laura was found to have this stress fracture and told not to do anything that hurt.  This seemed to translate (possibly for good television) into her not walking anywhere and being carried.  So, she gained weight and was booted off my her fellow contestants who told her it was so she could go home and get well.  The host of the show told her that The Biggest Loser was not going to let her go home and face this alone -- she would receive the best doctors, etc., blah, blah, blah.

So, all of you out there thinking about writing Torts exams, is there a cause of action?  I assume that Laura will get much more out of NBC by not suing, but let's play this out.  I'm sure she signed a waiver.  Here is the short-form application with the waiver that applies to just the audition, but I also assume that there are more to be signed once you are a contestant.  And, I'm sure that Laura signed several things before she actually left the Ranch!  (Here is the American Gladiator release, which may be is drafted by the same NBC attorneys.)  Did Laura assume the risk of injury?  What if she relied on Jillian's judgment the way she would a doctor who told her something was not risky?  (I like the way page 24-25 of the AG release affirm that the contestant is solely responsible for deciding whether she is capable of any activity, and that the NBC doctors are no substitute for their own judgment, or the judgment of their own doctors (who of course aren't staying at the Ranch)). 

Full post as published by Conglomerate on April 17, 2009 (boomark / email).