ModelMayhem 'Failure to Warn' Case Going Back to 9th Circuit

ModelMayhem 'Failure to Warn' Case Going Back to 9th Circuit
Rhett Pardon

PASADENA, Calif. — The 9th U.S. Circuit Court of Appeals will hear for a second time a long-running “failure to warn” case involving defendant ModelMayhem.com, which was sued by a woman who was raped after being lured to a bogus casting call.

The case has roots going back to 2006, when Lavont Flanders and Emerson Callum browsed model-posted profiles on ModelMayhem.com, contacted potential victims using fake identities, posed as talent scouts and lured the victims to South Florida for phony modeling auditions.

Once a victim arrived, Flanders and Callum used a date rape drug to put the victim in a semi-catatonic state, raped her and recorded the rape on videotape for sale and distribution as pornography, according to court records.

Flanders and Callum, as a result, were apprehended and given consecutive life sentences in prison for their activities.

Unnamed plaintiff Jane Doe, an aspiring model who became a member of ModelMayhem, fell victim to Flanders and Callum and later sued the “networking” website for damages.

Doe’s negligence suit against ModelMayhem.com’s parent company, Internet Brands Inc., ended up at the 9th Circuit last year after U.S. District Judge John Walter dismissed it on grounds that her claim was barred by Section 230 of the Communications Decency Act.

But the 9th Circuit reversed Walter’s dismissal of the suit and remanded the case back to his courtroom for further proceedings, concluding that the CDA did not immunize a website from a "failure to warn" claim.

Once the case was back to Walters court, ModelMayhem’s parent company moved to dismiss Doe’s suit — this time on the grounds that it had no duty to warn her of the pair's activities under California law.

Walter agreed with ModelMayhem’s parent company's argument and granted its motion to dismiss Doe's claims.

In his opinion that will be challenged at the 9th Circuit, Walters relied on two California cases: Tarasoff v. Regents of the University of California, which was a case in which the state Supreme Court held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient, and Rowland v. Christian, another case decided by the state Supreme Court that eliminated the categories of invitee, licensee and trespasser when determining the duty of care owed by a possessor of land to the people on the land.

“Although it may have been foreseeable that Flanders and Callum would strike again, Internet Brands only had knowledge of a threat to its member base at large, not to any specific member,” Walters wrote in his November ruling.

“Imposing a 'duty to warn' under these circumstances would, in the court’s opinion, only minimally increase the precautions already taken by website users and would also likely cause website operators to inundate and overwhelm their users with warnings, ultimately diluting the effectiveness of such warnings.”

At post time, the 9th Circuit has docketed Doe’s challenge, but the appellate court has not yet moved on the case.

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