On April 20th, 2021, a California Appellate Court in the Second District affirmed summary judgment in favor of the producers of the hit show “American Idol.” Ruling against the plaintiff and former American Idol contestant, Michael Simeon Smith (“Smith”), the Appellate Court affirmed the lower court’s decision, holding that the language of the American Idol contestant agreement bars Smith’s claim.
Smith alleged that an American Idol audiologist injured Smith’s eardrum when making an “impression” to fit Smith for an earpiece on December 12th, 2014. According to Smith’s complaint, when the audiologist started making the impression, he almost immediately informed her that it was painful and asked her to remove it. However, the audiologist claimed that the impression could not be removed until the silicone hardened. When the earpiece was finally removed, Smith’s ear began to bleed. He Slater discovered that 80% of his eardrum was “missing.”
Smith argued that the contestant agreement was “unconscionable” and thus unenforceable. The contract contained a waiver of contestants’ right to sue for injuries. Smith argued that this waiver was “hidden,” but the Second District found that each section of the agreement had a heading explaining what it contained and that Smith placed his initials next to each section. The Court of Appeals further found that Smith could not reasonably have been surprised by the waiver because he was allowed to seek legal advice and was given several weeks to review the contract.
More importantly, the Court of Appeals held that the American Idol contestant agreement did not strip Smith of any “unwaivable” statutory rights. California Civil Code § 1688 makes liability releases unenforceable to the extent that they limit or release liability for future gross negligence (or intentional conduct). Gross negligence exists where a party makes “an extreme departure” from safety directions or standard conduct in an industry. But, according to the Second District, Smith did not provide enough evidence to raise a “triable issue” about whether the audiologist’s actions were grossly negligent. In the Second District’s opinion, Smith’s testimony that the audiologist “yanked” the silicone from his ear does not create a “triable issue” by itself.
Smith did not raise the gross negligence argument in the lower court, but he did request that the Court of Appeals allow Smith to modify his original complaint to include gross negligence and send the case back to the lower court. Unfortunately for Smith, the Court of Appeals ruled that no modification made to his complaint would change the ruling.
In my opinion, the audiologist’s conduct was obviously grossly negligent, and as a result, Smith’s claim was wrongfully dismissed.
Smith is represented by Gregory J. Owen, Susan A. Owen, Tamiko B. Herron, and Beau M. Goodrick of Owen Patterson & Owen.
The defendants are represented by Robert P. Wargo and Sharon S. Jeffrey of Manning & Kass Ellrod Ramirez Trester LLP.
The case is Smith v. American Idol Productions Inc., case number B301534, in the Court of Appeals of the State of California, Second Appellate District.
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