[This Randy Spencer’s Open Mic column appeared in the January 14, 2015 issue of Coverage Opinions. It has a tie to A Christmas Story. Since Turner Broadcasting has a tradition of showing that film for 24 consecutive hours on Christmas, surely I can re-publish this column here.]

A Christmas Story is more than just a movie. Nine-year-old Ralphie Parker’s dream of receiving a Red Ryder Carbine Action 200-shot Range Model air rifle for Christmas, has become part of American pop culture. The movie is most famous for the scene where Flick, in response to a Triple Dog Dare, places his tongue on the school yard flag pole believing that, despite the frigid temperature, it will not stick. We all know that it did. Then the bell sounded, signifying the end of recess, and Flick was left all alone stuck to the pole.

The news is full of stories about kids, wondering if that could really happen, who gave it a try. And some of them learned the hard way that A Christmas Story isn’t all fiction. Doing this, especially the pulling off part, can cause serious injury.

It not at all surprising that one youngster, who was inspired by Flick, filed suit on account of injuries sustained when his tongue became stuck to the tetherball pole in his friend’s backyard? Equally not surprising, the suit gave rise to coverage litigation. I’ve been waiting all year for the “Open Mic” column near Christmas to tell this story.

Six year-old Mitchell Turner slept over his friend Tim Morgan’s house in Burnsville, Minnesota during Christmas break in 2012. The two watched A Christmas Story before going to bed. The next morning they were in Tim’s back yard, the temperature was in the single digits, and Tim dared Mitchell to stick his tongue on the tetherball pole. You can see where this is going. Mitchell did so and it became stuck. He panicked, instinct took over, and he pulled his tongue off, losing a piece of it in the process. The injuries, and long term consequences, are serious.

Mitchell’s mother, as guardian for her son, filed suit against Tim’s parents for failure to supervise the boys in the backyard. She also named the tetherball pole manufacturer for products liability – defective product and failure to warn. The complaint in Gloria Turner, as Guardian for Mitchell Turner v. Barbara and Michael Morgan, et al., District Court of Minnesota, Dakota County, No. 13-7543, alleged that, because Tim’s parents knew that the boys had watched A Christmas Story, it was reckless to let them go outside the next morning, unsupervised, in an area that included a tetherball pole.

The commercial general liability insurer for the pole manufacturer undertook its defense in the underlying Turner suit. The homeowner’s insurer for the Morgan’s, 10,000 Lakes Property Casualty, disclaimed coverage based on no occurrence. The Morgan’s retained their own counsel.

The defendants filed summary judgment on the basis of assumption of the risk. It was not disputed that Mitchell had watched A Christmas Story the night before the incident and saw the scene where Flick got his tongue stuck to the pole. The court granted the motion based on Toetschinger v. Ihnot, 250 N.W.2d 204 (Minn. 1977), where the Minnesota Supreme Court held that, in appropriate cases, children under seven years of age can be held contributorily negligent. Here the court concluded that it applied to Mitchell as a matter of law.

While the case was now over, and no appeal was filed, the Morgans incurred $12,000 in defense costs. They filed suit against 10,000 Lakes P&C, seeking payment of their defense costs and damages for the insurer’s bad faith denial of coverage. At issue in Morgan v. 10,000 Lakes P&C, District Court of Minnesota, Dakota County, No. 13-9862, was whether Mitchell’s injury was caused by an occurrence when the Morgans failed to supervise the boys, knowing that they had watched A Christmas Story the night before and their backyard had a tetherball pole.

The 10,000 Lakes court described the issue as “unique to say the least.” The court undertook an examination of Minnesota law concerning the “occurrence” issue and set out a laundry list of decisions that have confronted whether certain injury-causing conduct was an accident. Following this lengthy examination, the 10,000 Lakes court held that the injury sustained by Mitchell was not caused by an accident.

The court explained its conclusion as follows: “Minnesota courts have long held that, for purposes of a liability insurance policy, an ‘accident’ is an ‘unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.’ Simply stated, the Morgans had to appreciate that six year old boys, with insatiable curiosity, a limitless spirit of adventure and A Christmas Story still fresh in their minds from just twelve hours earlier, would see the tetherball pole and be drawn toward it like moths to a porch light. Despite this, the Morgans did nothing to prevent the inevitable. From the Morgans’ perspective, Mitchell’s loss of his tongue was not an unexpected, unforeseen, or undesigned happening. The Morgans’s conduct speaks for itself.”