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Vol. 5, Iss. 12
December 7, 2016


Court Holds A Mall Santa Liable:
Damages Owed For Failure To Deliver A Toy Fire Truck



There are certain lawsuits that reflexively get tort reform advocates into a tizzy. The McDonald’s “hot coffee case” is likely at the top of any list. [Actually there is another side to that story that is often not reported – but that’s for another day.] Those who blow a gasket over the McDonald’s case now have another reason to get stirred up and claim that the legal system is broken.

A Montana trial court not long ago found a mall Santa Claus liable for damages for not delivering a toy that had been requested from him. The decision came down over the summer. Despite wanting to share it here earlier – especially with my writer’s block over the past two columns – I resisted the temptation. It is only appropriate that a decision about Santa Claus be addressed in the December issue.

Marcia and Richard Leon, as parents and natural guardians of Timothy Leon v. Shining Mountains Mall, et al., District Court of Montana, 17th Judicial District, No. 15-0253, involves emotional injuries sustained by Timothy Leon, a minor. In December 2014, Timothy’s parents took him to the Shining Mountains Mall, in Chinook, Montana, to tell Santa Claus what he wanted for Christmas. Perched on Santa’s lap in the mall rotunda, a huge Christmas tree in the background and his mother snapping pictures, five year old Timothy told Paul Rose, dressed as Santa Claus, that he wished for Santa to bring him a “fire truck with a long ladder attached to it.” Rose put Timothy down and moved on to greet the next toddler. Significantly, Rose did not tell either of Timothy’s parents what Timothy had asked him for.

On Christmas day Timothy awoke to find a police car with lights and a siren under the tree. Timothy became hysterical that he did not receive a fire truck with a long ladder attached to it. He repeatedly screamed that Santa promised to bring him a fire truck. Timothy’s disappointment did not abate. A month later he was still crying about it and having nightmares about sitting on Santa’s lap. His parents sought psychiatric attention for their son. Some days Timothy was too upset to attend kindergarten.

Timothy’s parents sought legal counsel and filed suit in Montana District Court (state court) against Shining Mountains Mall and Paul Rose, seeking damages for Timothy’s emotional injuries. Their theory of liability was that, when Timothy asked Santa Claus for a fire truck with a long ladder attached to it, Santa provided an implicit promise to Timothy that he would receive the fire truck. Therefore, Santa had a duty to tell (surreptitiously) one of Timothy’s parents what the boy had asked for. By failing to do so, it was foreseeable that Timothy would not receive the fire truck and sustain emotional injuries as a result.

Incredibly, the court found for Timothy. Noting the obvious, that there was no prior case law -- anywhere in the country, for that matter -- addressing these unique circumstances, the court looked for guidance as best it could. It turned to the Montana Supreme Court’s decision in Nelson v. Driscoll, 983 P.2d 972 (Mont. 1999).

In Nelson, the Montana high court addressed a police officer’s liability for stopping Trina Nelson, a suspected intoxicated motorist, not realizing that she was intoxicated (her blood alcohol content was .25) and then failing to prevent her from walking home. She was struck and killed while walking on a highway.

The trial court rejected the claims brought by Trina’s husband. The court concluded that the police officer lacked probable cause to place Trina under arrest. Therefore, no special relationship existed between the police office and Trina which would give rise to a duty to protect her from harm.

The case went to the Montana Supreme Court, which explained that a police officer has no duty to protect a particular individual absent a special relationship. “This rule is derived from the ‘public duty doctrine’ which expresses the policy that a police officer’s duty to protect and preserve the peace is owed to the public at large and not to individual members of the public.” However, “[a]n exception to the public duty doctrine arises when there exists a special relationship between the police officer and an individual. … A special relationship can be established (1) by a statute intended to protect a specific class of persons of which the plaintiff is a member from a particular type of harm; (2) when a government agent undertakes specific action to protect a person or property; (3) by governmental actions that reasonably induce detrimental reliance by a member of the public; and (4) under certain circumstances, when the agency has actual custody of the plaintiff or of a third person who causes harm to the plaintiff.”

For a host of reasons, the Montana Supreme Court found against Trina’s husband on the special relationship issue (but found in his favor based on other theories of liability). However, despite the fact that the Nelson court found that no special relationship existed between the police officer and Trina, the judge in Leon distinguished it, and held that the mall Santa had a special relationship with Timothy – on account of Timothy’s age and lack of appreciation that Santa Claus is not real. [The court took judicial notice that Santa Claus is not real and concluded that there was no need for the presentment of evidence.] Under these circumstances, and stressing the court’s special role to protect children, the court held that Santa’s actions “reasonably induce[d] detrimental reliance” on the part of Timothy that he would be receiving a fire truck with a long ladder attached to it. Therefore, the court found the mall and its Santa liable for the emotional injuries that Timothy sustained. Following a damages trial the court awarded $95,000.

The court was not unmindful of the potential Pandora’s box that its decision was opening. The mall argued, sarcastically, that a child could ask Santa for a Mercedes for Christmas. And, when it does not appear in the driveway on Christmas morning, the mall would be liable for the child’s emotional injuries, based on the child’s detrimental reliance. The court dismissed this slippery slope argument by noting that the mall would be relieved of liability by simply having its Santa whisper the child’s wishes to a parent or guardian. Upon doing so, any unfulfilled expectation of the child is now on account of the actions of its parent or guardian. The court suggested that the mall could hire elves to distract the child after getting off Santa’s lap. With the child’s attention focused elsewhere, Santa could have a quick word with the parent or guardian, thereby relieving the mall of liability.

Ho, Ho, Holy cow, what a decision.

That’s my time. I’m Randy Spencer. Contact Randy Spencer at

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