Weil Gotshal & Manges, L. L. P., New York City (James W. Quinn and Lynda M. Braun of counsel), for defendants.
Silver & Santo, L. L. P., New York City (George J. Silver of counsel), for plaintiff.
Charles Edward Ramos, J.
This action involves the television game show " Who Wants to be a Millionaire" (the Game). The plaintiff, Robert Gelbman
(Gelbman), commenced this action for breach of contract, and negligent and intentional infliction of severe emotional distress after being eliminated from the game for incorrectly answering a question which, according to Gelbman, was ambiguous. The defendants, Valleycrest Productions, Ltd. (Valleycrest), the Walt Disney Company (Disney) and American Broadcasting Company (ABC), have moved, pursuant to CPLR 3211 (a) (1), (5) and (7), for dismissal on the grounds that plaintiff has failed to state a cause of action, signed a release indemnifying the defendants from any suit by the plaintiff, and upon documentary evidence.
On August 18, 1999, Gelbman was a contestant on the Game. It consists of players answering a series of questions for money. The player is given a question and four possible correct answers and the player must decide which of the four possibilities he or she believes is the correct answer. Each correct answer raises the level of monetary award, i.e., the first question is worth $100, the second $200, the third $300, the fourth $500 and so on. If the player answers 15 questions correctly the prize is $1,000,000. The game ends if any question is answered incorrectly and depending on how many questions the player has answered correctly he or she may win nothing, $1,000 or $32,000. The player may stop at any time prior to answering a question incorrectly, in which case he or she wins the amount assigned to the last correctly answered question.
Gelbman answered the first nine questions correctly. The tenth question he was asked, " Beginning in January, which of the following signs of the Zodiac comes last?" The possible answers were " A) Aquarius, B) Aries, C) Leo, or D) Scorpio." Plaintiff answered (A) Aquarius, while defendants indicated that the correct answer was (D) Scorpio and Gelbman was eliminated from the game and awarded $1,000. Gelbman maintains that the question was ambiguous. Gelbman felt that the question did not clearly state whether they were asking which sign came last in the calendar year or the Zodiac year. Since the Zodiac year begins with the sign Aries, Aquarius would be that last sign. The producers of the show maintained that the question was not ambiguous and declined to change their decision despite Gelbman's complaints.
Before the show, Gelbman signed two documents, the contest release and eligibility form (release) on August 17, 1999, and the official rules (rules) on August 18, 1999, the day of the taping. Both the release and the rules expressly state that the
decisions concerning all matters of the game, including questions and answers, of the producers and ABC are final. The release also holds Valleycrest and all others involved in the production of " Who Wants to be a Millionaire" harmless from " any and all claims arising out of injury and damage to [plaintiff] in any way resulting from [plaintiff's] participation in the Contest and/or Program." (Release ¶ 13.)
Gelbman claims that by not being allowed to continue in the game after incorrectly answering an ambiguous question with two possible answers, the defendants have breached the contract and damaged Gelbman and by their actions have caused him emotional distress. The defendants allege that there is no contract, and that in the alternative no breach has occurred since the terms of the release bar the action. In addition, they allege that ...