Welcome to today's ClearCast!
Today, we finally tackle the most pressing issue of this election season: Clown Attacks
At first, it was just single instances in South/North Carolina of folks claiming to have had a clown try to lure him/her into the woods (to what ends, we do not know..).
Now there have been attacks reported in 14 different states, including to multiple Las Vegas Valley high school students late last week.
Are clown people permitted to scare people at will? If you have a genuine fear of clowns, does the law permit you to protect yourself without incurring civil liability?
..We address these questions, and more on today's ClearCast.
Hopefully, now things will finally get back to normal.
'Clown Lives Matter' march planned for October 15 in Tucson.https://t.co/b4CZIoOZt9
— ABC15 Arizona (@abc15) October 5, 2016
Ok, maybe I spoke too soon..
Now creepy clowns are taking over our hurricanes pic.twitter.com/OtaGSlUwva
— Colin Jones (@colinjones) October 5, 2016
Nope, it's confirmed.
Jordan Flake: Hi, welcome to ClearCast. This is Jared Richards, attorney Jared Richards. I'm attorney Jordan Flake. We're with Clear Counsel Law Group. On ClearCast we like to tackle the big issues.
Jared Richards: The really big issues.
Jordan Flake: The really big issues and really big subjects. Recently, Jared, I don't know if you seen this in the news, but apparently there's this craze where people are dressing up like scary clowns.
Jared Richards: Right.
Jordan Flake: Hiding behind buildings and parking structures, in the woods, and waiting for their opportunity to terrify young children.
Jared Richards: It's not as weird as you think. Let me explain.
Jordan Flake: I did wonder. I saw you with some face paint out there the other day.
Jared Richards: Now you know.
Jordan Flake: Anyway, I think the idea is just the thrill of the prank. I seen some of these videos posted on YouTube, things like that. It's kind of a question of on the one hand is it all fun and games. On the other hand, it's all fun and games until someone gets hurt, right?
Jared Richards: Or until some clown gets stabbed.
Jordan Flake: Until some clown gets stabbed in self-defense or shot. There's kind of a whole spectrum of types of situations that could arise. Since we're lawyers, we should give the legal perspective of the different situations.
Jared Richards: Absolutely.
Jordan Flake: Let's just start with the vanilla kind of run-of-the-mill what you would expect from a normal clown attack. That's such a weird sentence.
Jared Richards: In my experience ...
Jordan Flake: In your normal clown attack, what you normally see happening is somebody who dresses up like a clown and scares the [Inaudible 00:01:39] out of these kids.
Jared Richards: Okay.
Jordan Flake: One of the kids goes home, traumatized, and just feels humiliated and they had run all the way home, they're breathing really hard, they have trouble sleeping that night. They actually maybe didn't even stick around the clown to find out long enough that it was a hoax. They're complaining to their mom.
Jared Richards: Maybe it was just a clown that wanted a friend.
Jordan Flake: Maybe the clown just wanted a friend, we don't know. My question is somewhere in that little bundle of facts is there a personal injury claim?
Jared Richards: Yes, sure. Basically, there are two main theories you could go under. First, just general negligence. Negligence says that you have a duty to act as a reasonably responsible prudent person and if you don't do that and you hurt somebody, you're responsible for it. That gets tempered with the doctrine we call the intentional infliction of emotional distress. Intentional infliction of emotional distress, and this is going to be different in every state, but in Nevada, the IED is intentional infliction of emotional distress, is when somebody acts so outrageous that you think that this is beyond all decency and beyond anything that be acceptable in civilized society.
Now, if they do that and as a result somebody gets hurt with emotional damages, then the clown is responsible. Doesn't matter if the clown's even involved, the clown was always responsible. In this case, the clown would be responsible. There are some caveats. We look at kind of a sliding scale of the outrageousness of what happened versus the effect that it had on the person. The less outrageous it is, the more we want the person to actually prove that they're hurt. If you get scared and you don't sleep that night and the next day you're fine, you probably don't have a case.
Jordan Flake: Right.
Jared Richards: If you then need counseling afterwards and all the sudden your hair turns white, that'd be a great ...
Jordan Flake: Can't hold a job.
Jared Richards: You can't hold a job, it's clearly it's the clown. Try to explain that to people. It's the clowns. As far as the general negligence side, if you were to say fall while running away or it was
Jordan Flake: You fall and you hit your head while running away ...
Jared Richards: All of that would be more of a negligence related to the clown. If you wake up the next day and all of your hair's fallen out.
Jordan Flake: Because you're just so stressed out.
Jared Richards: Because you're so stressed out because of the clown.
Jordan Flake: You can no longer go to the circus.
Jared Richards: Then you're talking about IED.
Jordan Flake: Intentional infliction of emotional distress.
Jared Richards: The intentional infliction of emotional distress.
Jordan Flake: What about good old-fashioned assault? Assault doesn't require touching or is that just something they teach you in law school and now it's totally changed.
Jared Richards: Assault is an incomplete battery.
Jordan Flake: Okay.
Jared Richards: Battery is an unwanted touching. Assault is the creation of the belief of imminent.
Jordan Flake: Imminent. If the clown did like take a swipe at their face ...
Jared Richards: Yeah, if the clown actually comes towards you, if the person thinks, "Oooh, I'm about to get hit," and is reasonable in that anticipation.
Jordan Flake: It has to be right there. It can't be that clown is 15 feet away is going to hit me or is that just a question of degree [Crosstalk 00:05:07]
Jared Richards: That's just a question of degrees, exactly.
Jordan Flake: Question for the jury.
Jared Richards: I think that's going to be a question for the jury, but say somebody stalking online and they say, "I'm going to get you next Tuesday," that's not assault, because it's not imminent. Imminent means next ...
Jordan Flake: It could be intentional infliction of emotional distress.
Jared Richards: Absolutely, it could be.
Jordan Flake: That person is just sitting there freaking out ... The funny thing is, this clown thing, so many people are afraid of clowns.
Jared Richards: Right.
Jordan Flake: I think that if you're out there and you're dressing up like a clown and chasing people around secluded dark places, our legal professional advice that you don't even have to pay for is to not engage in that activity. There we go.
Jared Richards: Wow.
Jordan Flake: Free legal advice.
Jared Richards: I was going to give them a forum they could do something, but yeah ...
Jordan Flake: If you have been attacked ... Listen, if you have been attacked by a clown in any way, shape, or form, and have sustained serious damages ...
Jared Richards: Serious injuries.
Jordan Flake: If the extent of your injuries is, "He kind of spooked me out, I'm now freaked out, I don't want to go to circuses anymore," that's probably not a case, but if your hair's falling out or something like that, then give us a call. Not that Jared specializes in clown PI law ...
Jared Richards: We have a whole department on it. For our basis, the person's dressed up, you have to know who it is. If you don't know who it is ...
Jordan Flake: That's true.
Jared Richards: What kind of claim do you have?
Jordan Flake: If the person's still hanging out, if that clown is still hanging out in that area, though, we could pose as little kids and go and ...
Jared Richards: That's your forum, not mine.
Jordan Flake: Walk over there and say, "Hey, who are you? What's your address so we can serve you with this lawsuit?" Anyway, that is, I guess with that, everyone be careful out there for Halloween. I hope we do a few more Halloween-themed real ClearCasts here in the next few weeks.
Jared Richards: Here's the other thing, don't hit the clown.
Jordan Flake: Oh that's right, we were going to get to that.
Jared Richards: Yeah.
Jordan Flake: What happens if the clown jumps out and the person who the clown tried to scare has a baseball bat and just smacks the clown across the face?
Jared Richards: If the clown is actually jumping out at them, it's probably okay. It's all a question of reasonableness. If you actually think the clown is going to get you, then you probably can hit it back. I think there is a special category for both clowns and mimes, so doesn't matter whether they're coming after you, you can just hit them. No, you'd have to wait for the clown. If you really think you're about to get hurt, you can act in self-defense.
Jordan Flake: Great, that's good to know.
Jared Richards: Clowns be careful.
Jordan Flake: Clowns be careful. I wouldn't want to dress up and hide like a clown or something because I'm afraid I'm going to run across the wrong group of people and they'll just trash me or something.
Jared Richards: Right, exactly.
Jordan Flake: All right, that's ClearCast for today. Let us know what you think about this hotly disputed, highly important issue.
Jared Richards: The big topic of the day.
Jordan Flake: Please reach out to us if you've been assaulted by a clown and we'll see what we can do.