Disclaimer: We are not attorneys licensed to practice law in any of the Seven Kingdoms or Essos.
Spoiler Warning: This blog post will contain spoilers for the first 7 seasons of Game of Thrones. The night is dark and full of spoilers.
Game of Thrones is a phenomenon. It’s a landmark series that has separated itself from other shows and grown its audience throughout its run on HBO. Normal people may watch the show and ask themselves “Who will sit upon the Iron Throne?” or “Who is Azor Ahai?” But I am a nerd. And I ask myself what is the tort law system like in King’s Landing? Lord knows there are plenty of people suffering injuries & wrongful death in a World of Ice and Fire. So let’s dive into some specific examples of Game of Thrones injuries and see what would happen in the real world.
Situation #1 – Jaime Lannister pushing Bran Stark from the window
Game of Thrones shrugged off convention in the pilot episode. Young Bran Stark climbs a tower at his castle and catches the Queen in throes of passion with her twin brother (who is also one of the Kingsguard, the Westerosi equivalent of the Secret Service). The twins are rightfully concerned about the repercussions of their tryst being discovered, so Jaime Lannister casually shoves Bran out of the tower window. Bran survives with no memory (at least at the time, but that’s a long story), but he becomes paraplegic as a result of the fall.
Does Bran have a claim against Jaime?
Yes and no.
He definitely suffered a serious injury because of Jaime’s actions and that is legally recoverable. But It was an intentional act and insurance contracts typically do not cover intentional torts. And it’s doubtful that there even is some kind of insurance policy for what happened anyway.
So Bran would be stuck in a situation where he would have to sue Jaime personally to try and get Jaime’s assets. Now even though a Lannister always pays his debts, how much money does Jaime have? His family is the richest on the continent, but does he have actual assets in his name or does his dad just send him an allowance? Because it matters. Bran could secure a judgment of millions of gold dragons but unless Jaime has the cash, the judgment is only worth the paper its printed on unless there is insurance money or assets that can be readily gotten to. If Jaime doesn’t have assets, he could just declare bankruptcy and discharge the debt without paying a dime.
We run into similar situations often where clients are catastrophically injured, but there is limited or no insurance coverage available. It doesn’t make sense to spend the money it takes to go to trial and get an uncollectable judgment.
Does Bran have a claim against the government?
Possibly, but you would have to get creative.
The biggest benefit to Bran of making a claim against the government is that there is potentially another party with a duty to pay for Jaime’s wrongful acts. If Bran were to make a claim against the kingdom for what Jaime did, it would be subject to the Indiana Tort Claim Act. The downside there is that the ITCA limits government liability to $700,000 in damages.
The biggest thing Bran would have to prove in making a claim against the government is that Jaime was acting in the course and scope of his employment as a Kingsguard member, otherwise he’s acting as a private citizen and the claim would fail. On one hand (no pun intended), he was at that particular castle traveling with the King and his job IS to protect the royal family. So his choice to push Bran from the window to protect the lives of the queen and her children might fall into the category of acting in the course of his employment. On the other hand, it’d be hard to imagine that a discreet lovemaking session with the Queen is in his job description.
Bran may also have a separate theory against the government. Instead of framing the issue as a wrongful act resulting in personal injury, he could also wrap in a federal civil rights violation for Jaime’s use of excessive force. He would still have to prove that Jaime was acting as an agent of the government when he pushed Bran. The damages calculations are different with civil rights violations too, because you’re not claiming the value of the physical injury, you’re claiming the value of the violation of your constitutionally protected rights.
How long does Bran have to make a claim?
Generally speaking, the statute of limitations on a civil case is two years. It does get extended if the person is a minor, like Bran, and the two year clock doesn’t start moving until his 18th name day. So Bran will have until he is 20 years old to either settle the claim or file suit.
Situation #2 – Where’d you find this doctor?
Back again to Season 1. Dany’s husband, Khal Drogo, gets wounded in the shoulder when he’s killing one of his men who started talking a little too familiar with the boss. The wound gets infected, so Dany enlists the services of a woman who had just been captured by their army who claimed to be able to heal him. She used some, let’s call them “unconventional” methods of healing, and I’m pretty sure the Khal turned septic.
Dany made a last ditch deal with this healer, Mirri Maz Duur, when she again promised that she could save Drogo. She failed, kinda. Mirri put him through a blood magic ceremony, slitting a horse’s throat spraying everything inside of their tent. I said it was unconventional. Drogo survived but was left in a comatose state. Writer’s Note: What Mirri Maz Duur did was intentional, but for the sake of discussion we’re going to act like she actually did mean to save him.
What is medical malpractice?
It’s a breach of the standard of care, it’s not a bad outcome. Medical procedures have some inherent risks associated with them. Even a routine surgery can be fatal if the patient, for example, has a bad reaction to the anesthesia. It doesn’t necessarily mean that it was malpractice. Another example would be being nicked by a scalpel and bleeding out during hear surgery. It’s a tragedy, but not necessarily malpractice. If the surgeon on the other hand was using a dirty hunting knife to do the surgery, you’d be on to something that rises to malpractice.
Is there a claim for medical malpractice here?
Um, yeah. I’m not sure where Westeros stands on knowledge of infectious diseases, but I’m pretty sure they understand that horse blood is not an effective antibiotic.
How would a medical malpractice claim play out?
First, Dany would have to make a claim with the Indiana Department of Insurance explaining the medical negligence. If the provider is NOT covered by the Medical Malpractice Act, then it proceeds into litigation like any other case. If the provider is covered, the claim continues on the process. After doing discovery, they’d empanel a medical review panel consisting of three maesters to review both sides’ submissions and the panel would determine whether (1) malpractice occurred and (2) if so, did the malpractice cause injury. The panel opinion isn’t binding on the determination of the case, but it can come up and be presented to the jury.
If there’s no informal settlement, then the case would go into general litigation. When it comes to settlement times, there is a hard cap on medical malpractice cases. Currently, the cap on damages is $1.65 Million, rising to $1.8 Million in July of 2019. The provider is responsible for up to the initial $400k (increasing to $500k in 2019) and the remainder has to be sought through the Indiana Patient’s Compensation Fund which is funded by annual surcharges paid by all qualified health care providers. It’s good for providers by limiting their liability. It’s equally bad for those who suffer serious damages due to medical negligence where even a case where they receive the full cap on damages is not enough to pay for their past and future medical care or in cases where a loved one passes away due to medical negligence.
Situation #3 – What about Bronn?
Bronn has been one of the breakout characters on the show. He’s a mercenary, called a sellsword, who has been hired by a succession of Lannisters from Season 1 to present. Basically, he’s a hired bodyguard/killer. And he hasn’t died up to S8 Ep. 3, so he’s at least proficient at what he does. So what happens if he gets thrown from his horse on his way to Dorne? Does he get work comp? What if has a few too many ales on the way and side swipes someone on the Kingsroad? Does the crown get sued? Will he ever get his castle? The streets are talking…..
What’s his employment status?
The threshold question in a case where someone gets hurt or hurts someone else when on the job is whether they are an employee or independent contractor. An employee gets work comp if he gets injured while acting in the course and scope of employment. Doesn’t matter if it’s his fault or not. Similarly, if an employee is acting in the course and scope of employment, their employee is liable for injuries caused by their employee’s negligent acts. For independent contractors, they’re on their own. Work comp laws don’t apply to them if they get hurt, and absent some specific language that could be in their contract, they’re responsible if they hurt someone else.
Courts use a 20 factor test to determine whether an individual is an employee or contractor. No particular factor is dispositive, but they all get to the general question of how much control does the employer have over the employee. Does the employer withhold taxes? 1099 or W2? Provide benefits? Do they drive a company vehicle or wear a company uniform? Who sets the hours? Are they paid by the job or a regular salary? Can they subcontract the job or are they required to do it? Who provides the tools of the trade? How much expertise is involved?
From everything we’ve seen with Bronn, the evidence points to classic independent contractor. He can walk away any time he wants. Even though he’s been a fixture serving the Lannister’s for 8 seasons, he did turn down Tyrion’s offer to fight for him at his trial by combat against Ser Gregor Clegane. He fights with the Lannister army, but wears his own armor. Even when he commanded the City Watch, he didn’t wear the uniform. His job takes a great deal of expertise and I can’t imagine he’s getting a W2 at tax time. In fact it seems like he just gets paid haphazardly with sacks of gold (not bad work if you can find it). Admittedly, he’s probably not free to subcontract out his killing for hire, but that’s the big knock against the independent contractor designation.
What happens to Bronn if there’s a claim?
Assuming that he’s an independent contractor, if Bronn gets sued, it’s going to be up to him to defend himself. Luckily, Westeros has trials by combat and so he’s got fairly effective defense, so to speak.
If Bronn gets hurt because of some other person’s actions, he wouldn’t qualify for work comp and would have to seek compensation from the at-fault party on his own.
The crown may get sued for something Bronn does, but they would most likely move for, basically, a dismissal of the case against them by seeking a legal determination from the judge that Bronn is an independent contractor and they’re not liable for any damages he caused.
Summary
These are just three examples of how tort law would play into the Game of Thrones universe. There are plenty of other examples on the show like Did Littlefinger cause Sansa Negligent Infliction of Emotional Distress by Giving her to the Bolton’s? What happens if you get bitten by one of Dany’s dragons? Could Tyrion make a claim for defamation for what was said during his trial in King’s Landing? Could Jaqen H’ghar be properly served notice of a lawsuit if a Man is No One?
We’ll how Season 8 plays out and maybe revisit these questions and more in the future.
Be safe out there,
Matt Bigler
Ladendorf Fregiato & Bigler