Clause & Effect: <b>Examining Validity Of Game Show Releases and Rules

Game shows based on contestants giving answers to questions often use releases signed by contestants to build in leeway into how those questions may be structured. What if a question has a mostly correct, but not the absolutely correct, answer? In the case of the TV game show “Who Wants to Be a Millionaire,” Richard Rosner, a contestant presented with this type of question, filed suit after he was eliminated from the show.

The question was: “What capital city is located at the highest altitude above sea level?” Of the four possible answers, Rosner chose Katmandu, the lowest in altitude of the four cities given. La Paz, Bolivia, which wasn't offered as an answer choice, is actually the highest-altitude capital city in the world. Before participating in the program, Rosner had reviewed and signed a contestant release-and-eligibility form, and a copy of the show's rules.

The release contained the following language:

Before appearing on the Contest and/or Program, I have been told the Contest rules and agree to obey them. I agree to cooperate and to follow all directions of [Valleycrest]. [Valleycrest] and ABC Broadcast Standards and Practices decisions on all discretionary matters (including the playing of the game and all decisions relative thereto) shall be final.

I release [Valleycrest], and all others, including, but not limited to … ABC … (“Releasee”) from any and all claims arising out of injury or damage to myself in any way resulting from my participation in the Contest and/or Program, including[,] but not limited to claims for defamation, invasion of privacy, publicity or personality, or from any injury associated with travel in connection with the Contest and/or Program.

The official rules stated in relevant part:

If a technical difficulty, mechanical failure, human error or other abnormality affecting Contest play occurs during the taping of an episode of the On-Air Program, the judges will review the situation on a case-by-case basis and take appropriate action to preserve the integrity of the Contest. If it is determined in the sole discretion of the judges that the technical difficulty, mechanical failure or human error corrupted game play, the question will be discarded and a new question played.

In his suit in Los Angeles Superior Court against the show's producers and the ABC-TV network, Rosner alleged negligence and breach of contract, among other things. The trial court sustained with prejudice the defendants' demurrer to Rosner's negligence claim. The trial court later granted the defendants' motion for summary judgment on Rosner's remaining claims.

Affirming, the Court of Appeal of California, Second Appellate District, Division Three, first noted, in an unpublished opinion, that the contestant release and official rules gave the defendants the “unfettered,” final and binding right to interpret questions and answers on the show, and to determine what action, if any, should be taken. Rosner v. Valley Crest Productions Ltd., B165004. The court of appeal did find that the parties' contract ' the contestant release and official rules – was one of adhesion (ie, a standard one drafted on a take-it-or-leave-it basis by a party in a more powerful bargaining position). But the court ruled that the contract was enforceable because “as a matter of law … in a game show involving written multiple choice questions with four possible answers, it is, and must be, within the reasonable expectation of the parties that issues may arise regarding the interpretation of the questions and answers presented to contestants. … [In any case, i]t is undisputed that at the time he was playing the game, plaintiff understood that he was to choose the highest capital from among the four choices presented.”

Rosner also claimed that the contract was unconscionable. But the court of appeal emphasized, “Plaintiff was not pressured to sign the official rules or contestant release. If he believed the contract was unfair, he did not have to play the game. In fact, at the time he executed these documents, plaintiff believed the provisions were fair. … More significantly, plaintiff has failed to show, based upon any statutory or case law authority, that the contractual provisions which gave defendants the sole and binding authority to interpret questions and the sole authority to determine who is invited back were objectively unreasonable in this case.”

The court of appeal went on to decide that the release Rosner signed was clear and unambiguous. According to the court: “[I]n a multiple choice game show, the conclusion is inescapable that defendants would seek contestants to release any and all claims arising from the drafting or phrasing of questions and answers.” Additionally, the court noted: “There is no evidence that defendants fabricated any answers.”

The case also raised an interesting issue of what impact comments made by a game show host might have on the way contestants answer questions. Rosner claimed that show host Regis Philbin had suggested that the question asked sought the world's actual highest capital city. But the court of appeal concluded: “Philbin's ambiguous comments do not state one way or another whether the question was seeking the absolute highest capital in the world or just the highest capital from among the choices provided. In any event, plaintiff does not dispute that contestants were told [by ABC] not to pay attention to Philbin's comments when answering questions.”

Game shows based on contestants giving answers to questions often use releases signed by contestants to build in leeway into how those questions may be structured. What if a question has a mostly correct, but not the absolutely correct, answer? In the case of the TV game show “Who Wants to Be a Millionaire,” Richard Rosner, a contestant presented with this type of question, filed suit after he was eliminated from the show.

The question was: “What capital city is located at the highest altitude above sea level?” Of the four possible answers, Rosner chose Katmandu, the lowest in altitude of the four cities given. La Paz, Bolivia, which wasn't offered as an answer choice, is actually the highest-altitude capital city in the world. Before participating in the program, Rosner had reviewed and signed a contestant release-and-eligibility form, and a copy of the show's rules.

The release contained the following language:

Before appearing on the Contest and/or Program, I have been told the Contest rules and agree to obey them. I agree to cooperate and to follow all directions of [Valleycrest]. [Valleycrest] and ABC Broadcast Standards and Practices decisions on all discretionary matters (including the playing of the game and all decisions relative thereto) shall be final.

I release [Valleycrest], and all others, including, but not limited to … ABC … (“Releasee”) from any and all claims arising out of injury or damage to myself in any way resulting from my participation in the Contest and/or Program, including[,] but not limited to claims for defamation, invasion of privacy, publicity or personality, or from any injury associated with travel in connection with the Contest and/or Program.

The official rules stated in relevant part:

If a technical difficulty, mechanical failure, human error or other abnormality affecting Contest play occurs during the taping of an episode of the On-Air Program, the judges will review the situation on a case-by-case basis and take appropriate action to preserve the integrity of the Contest. If it is determined in the sole discretion of the judges that the technical difficulty, mechanical failure or human error corrupted game play, the question will be discarded and a new question played.

In his suit in Los Angeles Superior Court against the show's producers and the ABC-TV network, Rosner alleged negligence and breach of contract, among other things. The trial court sustained with prejudice the defendants' demurrer to Rosner's negligence claim. The trial court later granted the defendants' motion for summary judgment on Rosner's remaining claims.

Affirming, the Court of Appeal of California, Second Appellate District, Division Three, first noted, in an unpublished opinion, that the contestant release and official rules gave the defendants the “unfettered,” final and binding right to interpret questions and answers on the show, and to determine what action, if any, should be taken. Rosner v. Valley Crest Productions Ltd., B165004. The court of appeal did find that the parties' contract ' the contestant release and official rules – was one of adhesion (ie, a standard one drafted on a take-it-or-leave-it basis by a party in a more powerful bargaining position). But the court ruled that the contract was enforceable because “as a matter of law … in a game show involving written multiple choice questions with four possible answers, it is, and must be, within the reasonable expectation of the parties that issues may arise regarding the interpretation of the questions and answers presented to contestants. … [In any case, i]t is undisputed that at the time he was playing the game, plaintiff understood that he was to choose the highest capital from among the four choices presented.”

Rosner also claimed that the contract was unconscionable. But the court of appeal emphasized, “Plaintiff was not pressured to sign the official rules or contestant release. If he believed the contract was unfair, he did not have to play the game. In fact, at the time he executed these documents, plaintiff believed the provisions were fair. … More significantly, plaintiff has failed to show, based upon any statutory or case law authority, that the contractual provisions which gave defendants the sole and binding authority to interpret questions and the sole authority to determine who is invited back were objectively unreasonable in this case.”

The court of appeal went on to decide that the release Rosner signed was clear and unambiguous. According to the court: “[I]n a multiple choice game show, the conclusion is inescapable that defendants would seek contestants to release any and all claims arising from the drafting or phrasing of questions and answers.” Additionally, the court noted: “There is no evidence that defendants fabricated any answers.”

The case also raised an interesting issue of what impact comments made by a game show host might have on the way contestants answer questions. Rosner claimed that show host Regis Philbin had suggested that the question asked sought the world's actual highest capital city. But the court of appeal concluded: “Philbin's ambiguous comments do not state one way or another whether the question was seeking the absolute highest capital in the world or just the highest capital from among the choices provided. In any event, plaintiff does not dispute that contestants were told [by ABC] not to pay attention to Philbin's comments when answering questions.”