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Salt and Ice Challenge Part 2: Negligence

In our last post we talked about the most awesome new dare to hit the streets since Double Dare hit television screens years ago. But nowadays Marc Summers hosts a food show and kids pour salt on their skin and rub an ice cube on it to cause a frostbite-like burn.

We also talked about the possible battery claims that a child might have if they were administered the challenge by someone else. So what about those that make the dare, or post the videos, can they be held legally responsible?

The way to obtain damages from someone that indirectly causes damages is through our good friend negligence. Negligence occurs when someone fails to uphold a legal duty. What we don't realize in our day-to-day lives is that everyone owes everyone else the legal duty to act like a reasonable person.

A good example is a person driving a car. If you are driving your car, and not paying attention to anything outside of the car, you are not being reasonable. If you were to hit something, or hurt someone, then you would likely be liable for negligence and have to pay for any harm done.

Here, what we have is a dare that has been promulgated through YouTube and by word of mouth. Is there a breach of the duty to be reasonable by passing along the idea of doing something harmful?

If we did the full negligence analysis, it would probably come out that telling someone how to do something harmful and convincing them that it is fun is negligent. But this is where it gets tricky. Trying to sue someone for something they have said is likely to be blocked by a First Amendment defense.

The First Amendment protects against the government restricting the speech of its citizens. Allowing a negligence claim for something someone said would be a restriction of speech by the government, so there would only be recovery if the speech fell under one of the exceptions.

Two of the exceptions might work here, the "clear and present danger" and the "inciting speech" exceptions. Both exceptions require that the speech be leading to imminent danger by either inciting a fight, or causing a stampede by yelling "fire" in a movie theater.

Here, the people on YouTube are really just showing you how it's done. They aren't usually asking you to also do it, but if they did, it still is not similar enough to starting a fight or yelling "fire" to survive a First Amendment defense.

So, maybe the best remedy here is to watch what your kids are doing, and like your grandparents used to tell your parents, if you hurt yourself doing something dumb like the salt and ice challenge -- it's your own damn fault.

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