The Personal Injury Shuffle: Post Harlem Shake Gangnam Style

With the popularity of the Gangnam Style horse dance fading in favor of gyrating to the “Harlem Shake”, what might follow on the list of pop culture fads? Enter the “Gallon Smash Prank” – where college age immaturity meets vandalism – which has experienced skyrocketing YouTube views measured in millions and a growing number of imitators.  I’ve dubbed this latest farce “The Personal Injury Shuffle” for reasons that will likely invoke a wry smile and morbid curiosity from most injury attorneys and legal professionals.

Gallon Smash PrankGallon smashers featured in most videos consist of young people carrying one gallon containers of milk in each hand. Suddenly they rush forward, throwing both containers wildly into the air.  They pretend to awkwardly slip and fall in the resulting mess, experiencing a significant and painful personal injury in the process. The appeal of these videos is not just about capturing the ridiculousness of the act. It’s also in observing the shocked expressions of concerned shoppers who don’t realize that this entire fiasco is nothing more than a wasteful, childish prank caught on candid camera.

The Gallon Smash Defense to Personal Injury Claims

There is no question that this is an immensely stupid act of vandalism, replete with a video recording to document and publicize the entire event and its perpetrators using social media. As an attorney, one can’t help but think “slip and fall injury claim” in the back of one’s mind while most others are merely thinking “dumb immature college pledge stunt.” But given what seems to be a growing fad that has yet to slow down, a casual joke between attorney friends prompted some curious thoughts:

  • The times when it would be appropriate to make a jury aware of this rising pop culture fad, which may have a bearing on the veracity of a slip and fall injury claim;
  • Claims that a defendant supermarket should not be negligent for failing to timely clean up and attend to an area that allegedly caused a slip and fall accident, being the victim of a growing number pranks similar to gallon smashing;
  • Liability for injury claims by shoppers which may result from this incident.

There is nothing new that challenges the traditional interpretation and application of the rules of evidence. It’s just that this fad naturally piques the curiosity of some of those involved in the accident and injury claim business.

Accident Staging is Not an Original Concept

One of the most famous and comical staged injury claims took place in David Fincher’s film, Fight Club. Edward Norton plays a formerly meek employee seeking a paid exit strategy out of the risk assessment company that has employed him for many years. In a scene dubbed Jack’s Smirking Revenge, Norton beats himself up into a bloody mess while his boss is on the phone with the building security. And in a perfectly timed moment, a beaten and bloody Norton flings himself at the feet of his boss, begging for mercy as security personnel enter the executive office to investigate the reported incident. As a result of the devastating injuries suffered in the absence of third party eyewitnesses, Norton “now had corporate sponsorship” for his emerging business.

For those of you who have practiced personal injury law – especially auto accident injuries – the notion of fabricating injuries via an orchestrated accident is certainly not new. Early in my career I worked in a multidisciplinary law practice that included a group of injury attorneys who catered specifically to the needs of auto accident victims. As part of the screening process, I was informed that I should be suspect of auto accident claims involving car services, vehicles owned by parties other than the driver, and those concerning a car filled to the limit with passengers. In Law & Order Season 11 Episode 19 entitled “Whiplash”, detectives Briscoe and Green investigate a scam where illegal immigrants stage auto accidents in order to collect money damages from personal injury settlements. As is frequently the case with the original Law & Order episodes, the stories are inspired from actual events and I worked at the law firm long enough to experience several similar examples.

So will the Gallon Smash Prank become the Personal Injury Shuffle? Within a very short period of time I expect the appeal of these videos to fade. Perhaps even the news of prosecution against one of these foolish pranksters might additionally serve as a deterrent. But in the meanwhile, it may be just one of those videos that might appear in a torts related CLE  to break up any boredom.

Michael M Wechsler, Esq.

Founder at TheLaw.com LLC
Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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