Chaos theory

During the original Jurassic Park film, no right-minded solicitor will have failed to laugh at John Hammond’s cries of exasperation when, after failing to impress archaeologists and a chaos theorist with the reality of his dinosaur theme park, he says: ‘I don’t believe it. I don’t believe it! You’re meant to come down here and defend me against these characters, and the only one I’ve got on my side is the blood-sucking lawyer!’

Unfortunately for lawyer viewers, Donald Gennaro’s fate is sealed relatively early on in the film when he is devoured by the film’s star, the T. rex. This leaves legal viewers in the dark, asking who will be taking responsibility for the personal injury claims that are sure to be filed when everyone is safely home: will the park’s insurer cough up to cover the dino damage to property? And what will happen to the reputation of the brand? Luckily, Solicitors Journal has been digging around for some expert analysis.

Peter Forshaw is head of commercial insurance at Weightmans and Stuart Jones head of employment

@Weightmans

www.weightmans.com

Employment and insurance

The latest instalment of the Jurassic Park film franchise has been 14 years in the making and has been heralded a box office success already, becoming one of the biggest grossing films of 2015 so far.

Although we may be some way off a park which offers genetically modified dinosaurs as the main attraction, any lawyers taking a trip to the cinema to see the film recently may well have asked, what if? Once the park inevitably descends into chaos, with dinosaurs on the loose, employee and visitor injuries and deaths, and property damage, the question marks over liability and other legal issues loom large.

So, without further ado, let's assess the legal headache facing Jurassic World's owner, InGen, once the dust settles on Isla Nublar.

Disciplinary action

Any employees who survived the carnage would likely face disciplinary action on their return to work. Any proven serious breaches of workplace policies and procedures could constitute gross misconduct warranting summary dismissal (following a proper investigation).

The park owners might also face claims, though. Placing employees at such serious risk might be a fundamental breach of the employment contract, allowing staff to resign and claim constructive dismissal.

Equally, employees who may not have been directly involved in the disaster but still had to be evacuated may have a claim for stress. A class action claim for stress is likely to be successful and prove very expensive for InGen, as it would be fairly easy for employees involved in the disaster to prove the work and the employer's breach of duty caused or contributed towards psychiatric injury.

The uncertain future of the park might also throw up employment law challenges. Will the owners need to rebuild, perhaps retraining or redeploying existing staff to do the work of their eaten colleagues, or close down for good, resulting in a time-consuming and potentially expensive redundancy exercise? Either way, it's an HR nightmare.

Liability

We turn now to the park's liability to its employees and visitors. If such an event were to occur and a number of employees and/or visitors were injured or killed, what would be the implications for the park and/or their insurers?

As with any large-scale disaster there is a chain of events in Jurassic World which leads to casualties and deaths. It may be argued that some of the events that occurred in that film were not causally linked; however, the counter-argument would be that they flow from the same catastrophic event.

Whether the relevant insurance policies will indemnify would depend on their coverage terms and whether there has been a breach of those terms, such as a material non-disclosure (for example their insurers were not aware of the presence of any particularly dangerous species.

In respect of establishing liability for injuries sustained by employees or visitors, a key factor is likely to be foreseeability. If it was established the park knew or ought to have known the enclosure was not fit for purpose then obviously there is a foreseeable risk of a dangerous species escaping with the devastation that could bring.

The mere fact of escape in itself is likely to give rise to a (albeit rebuttable) presumption that it was not fit for purpose. If so, the park operators would be liable for any deaths or injuries which flowed from the escape of dinosaurs. Evidence of negligence could also be proved by showing any failure to comply with what would, in all likelihood, be stringent licensing conditions set down by the authorities for the keeping of such animals.

Catastrophic events may not only cause physical injuries to employees and visitors but could lead to psychological injuries too, such as post-traumatic stress disorder, which will increase the value of the damages awarded.

Further, the range of potential claimants will be considerable: as Jurassic Park/Jurassic World are intended as holiday resorts, with a number of families staying there, there is a potential for claims for secondary victims to be made by those who may have witnessed a member of their family being killed or injured.

Foreseeably dangerous animals

It is, in reality, difficult to see how InGen (or their insurers if coverage applied) would escape liability for the injury and property damage sustained by the escape of foreseeably dangerous animals. The only real possible means for the park to avoid liability would revolve around causation or the actions of third parties:

• It might be possible to argue that the primary cause of the injuries or damage was the actions of the employee or visitor themselves, for example contravening instructions and straying from secure areas;

• If the park relied on a contracting third party, who were negligent, for example, in respect of advising about enclosure suitability, or failing to build the enclosure properly, then a recovery action against them or even a full indemnity may be possible, subject to the terms of engagement and contractual dealings; and

• If the creatures escaped due to unforeseen vandalism of the otherwise suitable enclosure by a third party, this may assist the park to escape liability, but again this will depend on many factors, including the resilience of the enclosure, the security measures at the site, and any history of previous security issues.

 

The levels of any compensation awarded will depend on the jurisdiction in which the claimsare brought and the nature and extent of the claimant's injuries.

Corporate sponsorship

Another issue would be one for the park's sponsors to worry about. An integral part of the plot is that the park is keen to recruit more corporate sponsors, with their new dinosaur marketed as the star attraction which should help achieve this.

After the disaster and the inevitable mass of negative global media reports and exposés, the corporate sponsors will have lots of work to do to ensure their own brand value is maintained and they are not swept up in the tide of bad press. Contracts will have to be reviewed; often these sponsorship agreements are watertight and difficult to get out of. For the corporate sponsors, distancing themselves from the tragedy as soon as possible would be important.

There is an almighty legal headache facing InGen. In reality, it is unlikely that we would ever see Jurassic Park reopened, especially with InGen in charge. They would likely be left bankrupt by all the various claims and disqualified from ever keeping dinosaurs again. However, in the world of film, reports that Jurassic World is the first of a trilogy of new films have been confirmed.

 Callum Beamish is a pupil barrister at 8 New Square

 @8NewSquare

www.8newsquare.co.uk

Intellectual property: Has InGen trademarked ‘Indominus’?

The theme park is situated on Isla Nublar, which is off the coast of Costa Rica. Notably, Costa Rica is a signatory to the main international intellectual property (IP) multi-lateral agreements, such as the Patent Cooperation Treaty (PCT), the Paris Convention, the Berne Convention, and the Trade-Related Aspects of Intellectual Property Rights (TRIPS).

This means that InGen could hold, at least, patents, copyrights, and trade marks. Indeed, the theme park would be an IP rights smorgasbord, but for now only patents and trade marks are, under a European and English perspective, considered.

It is questionable for what processes or products InGen could have patent protection. This is because of the biotechnological and genetic nature of the InGen work and the questions which arise concerning the morality of patenting such processes and products.

From a European perspective, at least, there could be an argument that some of these processes would seriously prejudice the environment, or fall under a biotechnology exclusion of being a process for modifying the genetic identity of animals, which is likely to cause them suffering (query whether a dinosaur would count – but there is an argument there).

In any event, whether the processes or products of the dinosaur creation procedure are patented, one must ask whether InGen or Masrani, the founder of Jurassic World, performed sufficient due diligence and considered freedom to operate. Parts of their processes may well be subject to Costa Rican patents. The disaster may draw attention to what has been going on at Jurassic World, and biotech companies and/or patent trolls may review their portfolios to consider whether InGen has infringed any rights they hold – especially with the first ‘genetically modified’ dinosaur being the star attraction.

With the park having opened in 2005, one would assume that the ‘Jurassic World’ mark, whether registered or not, would have built up a significant goodwill and reputation, and may be protected from passing off. Interestingly, the sign doesn’t seem to appear in the film alongside any trade mark notifications. The territorial scope of any goodwill may well be significant, given the park’s world-wide acclaim. But, you have to ask what effect this disaster would have on that goodwill.

If the mark isn’t already registered then InGen/Masrani needs to ensure it is soon. The majority of the world operates a first-to-file system, and someone might register first, causing problems. This would be particularly important if Masrani were looking to sell InGen on, following the disaster. Another interesting question would be whether the InGen/Masrani legal bods would have thought whether to trade mark the name of the newly minted dinosaur, ‘Indominus’, and whether this, along with all other elements of the park, could be licensed elsewhere.

In any event, the disaster will have had a devastating effect on the value of any marks and names and the overall Jurassic World brand. There will be a drop in value of any such asset, or licensing rights, and if Masrani Global Corporation are looking to part ways with InGen, or expand their empire, you can be sure that those assets will be a less powerful bargaining chip following the disaster. SJ