AUTHORIZED FOR EDUCATIONAL USE ONLY COPR. (C) WEST 1993 NO CLAIM TO ORIG. U.S. GOVT. WORKS 715 F.Supp. 819 (Cite as: 715 F.Supp. 819) Sheila WATTERS, Individually and as Administratrix, Estate of Johnny Burnett, Deceased, Plaintiff, v. TSR, INC., a/k/a TSR Hobbies, Inc., Defendant. Civ. A. No. C88-0298(P)(J). United States District Court. W.D. Kentucky, Paducah Division. May 31, 1989. Administratrix brought wrongful death action against publisher and manufacturer of role-playing fantasy game "Dungeons & Dragons" on theory that suicide of her son was caused by negligence in publishing and distributing the game materials or by failing to warn "mentally fragile" persons of the possible dangerous consequences of playing the game. On motion to dismiss, the District Court, Johnstone, Chief Judge, held that First Amendment protected the publisher from liability. Motion granted. [1] CONSTITUTIONAL LAW k90(3) 92k90(3) The First Amendment's protection is not limited to political expression or comment on public affairs. U.S.C.A. Const.Amend. 1. [2] CONSTITUTIONAL LAW k90(1) 92k90(1) Whether publication is sold for profit has no bearing on the amount of protection to which the First Amendment entitles it. U.S.C.A. Const.Amend. 1. [3] CONSTITUTIONAL LAW k90.1(1) 92k90.1(1) Publication and distribution of manuals and other material involved in the game "Dungeons & Dragons," whether it be classified as literature or merely a game, falls within the class of publication generally afforded protection under the First Amendment. U.S.C.A. Const.Amend. 1. [3] CONSTITUTIONAL LAW k90.1(6) 92k90.1(6) Publication and distribution of manuals and other material involved in the game "Dungeons & Dragons," whether it be classified as literature or merely a game, falls within the class of publication generally afforded protection under the First Amendment. U.S.C.A. Const.Amend. 1. [4] CONSTITUTIONAL LAW k90(1) 92k90(1) First Amendment extends protection to materials even though they may offend the sensibilities or tastes of some or a majority of members of society, and this rule applies just as strongly where restriction on the materials occurs subsequently through a tort action as where speech is deterred because of a criminal statute. U.S.C.A. Const.Amend. 1. [5] CONSTITUTIONAL LAW k90.1(1) 92k90.1(1) The First Amendment prohibited imposition of liability on manufacturer of game "Dungeons & Dragons," based on the content of the game, for suicide of player, on theory that the game exerted some type of mind control over the player, eventually resulting in his withdrawal from society and his domination by the role-playing fantasy game concept, as such liability would have devastatingly broad chilling effect on expression of all forms. U.S.C.A. Const.Amend. 1. [6] CONSTITUTIONAL LAW k90.1(1) 92k90.1(1) Where the First Amendment protected game manufacturer from liability for suicide of player based on content of the publication, manufacturer likewise could not constitutionally be required to warn its readers of possible consequences of reading or playing the game materials. U.S.C.A. Const.Amend. 1. [7] CONSTITUTIONAL LAW k90.1(1) 92k90.1(1) In each of the types of speech unprotected by the First Amendment, such as obscenity, defamation, and words inciting imminent lawless action, the speech itself either creates an injury or tends to incite an immediate breach of the peace, and the basis for not protecting certain types of speech is not applicable where the injury does not immediately result from the speech itself or where the speech does not incite imminent violence which is likely to occur. U.S.C.A. Const.Amend. 1. [8] CONSTITUTIONAL LAW k90.1(1) 92k90.1(1) The noncommunicative impact of the game "Dungeons & Dragons" was not outside the protection of the First Amendment so as to allow imposition of liability on the manufacturer for suicide of the player of the game. U.S.C.A. Const.Amend. 1. *820 Charles A. Saladino, Paducah, Ky., for plaintiff. Stephen E. Smith, Jr., McMurray & Livingston, Paducah, Ky., for defendant. MEMORANDUM OPINION JOHNSTONE, Chief Judge. Plaintiff Administratrix brings this wrongful death action against Defendant, the publisher and manufacturer of the game "Dungeons & Dragons," on the theory that Defendants' alleged negligence is responsible for her son's suicide. "Dungeons & Dragons" (D & D) is a role-playing game in which players use their imaginations in a fictional medieval world where they pretend their characters are having adventures. The abilities and characteristics of each character consist of numerical values assigned to areas of strength, intelligence, dexterity, constitution, wisdom and charisma. The game characters participate in one or more adventures during the game as described in the various books and manuals published by Defendant. These adventures are narrated and orchestrated by one game participant known as the Dungeon Master. The results of various encounters between characters are determined by using dice and the tables provided in the D & D publications. Plaintiff casts her son as a "devoted" player of Dungeons & Dragons, who became totally absorbed by and consumed with the game to the point that he was incapable of separating the fantasies played out in the game from reality. She states that as a result of his participation in a D & D game "he lost control of his own independent will and was driven to self-destruction." Complaint at 2. Plaintiff claims that TSR breached its duty to her son by negligently publishing and distributing D & D game materials, or in the alternative, by failing to warn "mentally fragile" persons such as decedent of the possible dangerous consequences of playing D & D. TSR has moved to dismiss the complaint, on the grounds that its publication of D & D manuals and games are privileged under the first amendment's guarantee of freedom of speech. In the alternative TSR argues that it owed no duty to Plaintiff's son and that decedent's suicide was an intervening superseding cause of death, breaking the chain of causation. THE FIRST AMENDMENT The first amendment is indeed implicated in this case where Plaintiff seeks an award of damages based on the content or effect of TSR's publication. An imposition of liability on TSR for the suicide of Plaintiff's son would have as much and perhaps more of an inhibiting impact on its future publications than fear of prosecution under a criminal statute. New York Times Company *821 v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The infrequency with which courts have allowed encroachments upon the right to speak or express one's viewpoint reflects the cherished place the right of self expression holds in our society. "The right of freedom of speech and press has broad scope. The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. This freedom embraces the right to distribute literature." Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) (Black, J.) (citations omitted). "The safeguarding of these rights to the ends that men may speak as they think on matters vital to them and that falsehoods may be exposed through the processes of education and discussion is essential to free government." Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 740, 84 L.Ed. 1093. [1, 2] The amendment protects the publication of books, magazines, newspapers, and motion pictures, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); and its guarantees are applicable to state action under the fourteenth amendment's due process clause. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). The amendment's protection is not limited to political expression or comment on public affairs. Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1967). The first amendment's protection is broader than that. "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. State of Alabama, supra 310 U.S. at 102, 60 S.Ct. at 744 (1940). "No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression." Bridges v. State of California, 314 U.S. 252, 269, 62 S.Ct. 190, 196, 86 L.Ed. 192 (1941). Whether the publication is sold for a profit has no bearing on the amount of protection to which the first amendment entitles it. Joseph Burstyn Inc., supra 343 U.S. at 501, 72 S.Ct. at 780. [3] Under these principles, the publication and distribution of the "Dungeons and Dragons" material, whether it is classified as literature or merely a game, falls within the class of publication which is generally afforded protection under the first amendment. In Hammerhead Enterprises, Inc., v. Brezenoff, 707 F.2d 33 (2d Cir.1983) the court held that a game satirizing public assistance programs was entitled to first amendment protection. This protection extends to publications such as "Dungeons and Dragons," whether they are disseminated for the purpose of informing the public or merely for providing entertainment. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). Mrs. Watters' objection to the D & D game is that it exerted some type of mind control over her son, eventually resulting in his withdrawal from society and his domination by the D & D concept. The essence of her objection to the game involves both the content of the game and the effect which it allegedly had on her son. Restrictions based on the content of speech and those based on injuries caused by speech must meet separate analytical criteria. See L. TRIBE, AMERICAN CONSTITUTIONAL LAW s 12-2 (2d ed.1988). A. Content-based Restrictions [4] The general rule with regard to restrictions aimed at the content of a particular speech or publication is that "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content...." Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-2290, 33 L.Ed.2d 212 (1972). The first amendment extends protection to materials even though they may offend the sensibilities *822 or tastes of some or a majority of members of society. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). Generally the "choice, between the dangers of suppressing information and the dangers of its misuse if it is freely available" is one which "the First Amendment makes for us." Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770, 96 S.Ct. 1817, 1829, 48 L.Ed.2d 346 (1976). This rule applies just as strongly where the restriction occurs subsequently through a tort action as where speech is deterred because of a criminal statute. See New York Times, supra. In order to survive scrutiny under the first amendment a content-based restriction "must be a precisely drawn means of serving a compelling state interest." Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 540, 100 S.Ct. 2326, 2334, 65 L.Ed.2d 319 (1980). [5, 6] The theories of liability sought to be imposed upon the manufacturer of a role-playing fantasy game would have a devastatingly broad chilling effect on expression of all forms. It cannot be justified by the benefit Plaintiff claims would result from the imposition. The libraries of the world are a great reservoir of works of fiction and nonfiction which may stir their readers to commit heinous acts of violence or evil. However, ideas expressed in one work which may drive some people to violence or ruin, may inspire others to feats of excellence or greatness. As was stated by the second Mr. Justice Harlan, "one man's vulgarity is another man's lyric." Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971). Atrocities have been committed in the name of many of civilization's great religions, intellectuals, and artists, yet the first amendment does not hold those whose ideas inspired the crimes to answer for such acts. To do so would be to allow the freaks and misfits of society to declare what the rest of the country can and cannot read, watch, and hear. [FN1] The court's statements in Zamora v. Columbia Broadcasting System, 480 F.Supp. 199, 205 (S.D.Fla.1979) in the context of television programming is even more apt when first amendment protection for publications is concerned. "[The] right of the public to have broad access to programming and the right of the broadcaster to disseminate should not be inhibited by those members of the public who are particularly sensitive or insensitive." Id. (Citations omitted). FN1. Despite Plaintiff's arguments to the contrary, it follows that TSR is not required to place any warning directed to "mentally fragile" persons on the D & D publications. Because the first amendment protects TSR from liability based on the content of the publication, it likewise cannot constitutionally be required to warn its readers of possible consequences of reading or playing the game materials. The first amendment safeguards the freedom of individuals to express themselves in their own way and leaves to the individual receiving their message the decision whether to accept or reject, emulate or ignore. As Mr. Justice Brandeis stated: Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.... Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. Whitney v. California, 274 U.S. 357, 375-76, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (Brandeis, J., concurring). The first amendment prohibits imposition of liability on TSR based upon the content of the game "Dungeons and Dragons." B. Restrictions Aimed at Noncommunicative Impact [7] Although the D & D publications come within the range of material protected by the first amendment, the right of free speech is "not absolute at all times *823 and under all circumstances." Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Certain classes of speech are subject to limitation under the first amendment, including obscenity, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); "fighting words," Chaplinsky, supra; defamatory invasions of privacy and libel, See New York Times v. Sullivan and Time, Inc., v. Hill, supra; and words "likely to produce or incite imminent lawless action." Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Only in these particular classes of cases has the right of freedom of speech been found to be inferior to the interests of society in limiting such speech. The reason that speech is unprotected in these cases flows naturally from the philosophy behind the first amendment's prohibition on content-based restrictions on speech. The public and the concept of freedom are better served if the ideas expressed in a speech or publication are left to thrive or perish in the open marketplace of public or personal debate rather than by having their message controlled or eradicated by a state censor. Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., joined by Brandeis, J., dissenting). In each of the unprotected types of speech, the speech itself either creates an injury or "tends to incite an immediate breach of the peace." Chaplinsky, supra 315 U.S. at 571-72, 62 S.Ct. at 768-69. Generally the first amendment requires that dangerous ideas be exposed for what they are through the give and take of public discussion or by the listener's intuition. The negative impact such ideas may have on society are remedied through application of "more" speech, not by censorship. In the words of Thomas Jefferson: "We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasonings; these are safer corrections than the conscience of the judge." [FN2] Because in certain instances, "more" speech cannot undo the injury which the "bad words" have caused or there is no time for "more" speech, such speech may be prohibited before it is uttered or punished afterwards. FN2. Cited in the concurring opinion of Mr. Justice Brandeis in Whitney v. California, supra 274 U.S. at 375 n. 3, 47 S.Ct. at 648 n. 3. [8] It is clear from the record that the D & D publications do not fall into one of these unprotected classes of speech. The very manner in which the D & D game allegedly injured Plaintiff's son resolves all doubts as to whether the game is unprotected by the first amendment. Plaintiff does not assert that her son was injured after playing "Dungeons and Dragons" one time or even after a few times. Rather, she asserts that his injury occurred after five years of playing the game. The basis for not protecting the types of speech listed is not applicable where the injury does not immediately result from the speech itself [FN3] or where the speech does not "incite imminent violence and such violence is likely to occur." See Brandenburg, supra. FN3. Although under Plaintiff's pleadings it could be argued that each time decedent played D & D he was incrementally or subliminally injured, where the injury alleged is so uncertain, the rationale for not protecting "words that wound" is absent. A holding which would eliminate first amendment protection for this type of injury would have the effect of dissolving any distinction between content-based restrictions and restrictions based on the non-communicative impact of speech. The injury alleged here is one which can be prevented by "more" speech. The rationale for denying first amendment protection applicable in cases of obscenity, fighting words, libel, and incitement to violence, is absent. A similar claim was also rejected by the court in Zamora v. Columbia Broadcasting System, 480 F.Supp. 199 (S.D.Fla.1979). There the plaintiffs claimed that their son had become addicted to the violent programs broadcast by the three major networks resulting in his desensitization to *824 violent behavior and his killing an 83-year old woman. Id. at 200. The court held the general complaint of continuous exposure insufficient to fall within one of the unprotected classes of speech. Id. at 204. [FN4] FN4. Several cases addressed in Defendant's brief illustrate instances where persons have been injured after reading books or watching a television program or a movie. In each case the court held there to be insufficient "incitement" to justify denying first amendment protection. See DeFilippo v. National Broadcasting Co., Inc., 446 A.2d 1036 (R.I.1982) (where the plaintiff's son hanged himself after watching a stunt performed on "The Johnny Carson Show"); Olivia N. v. National Broadcasting Co., Inc., 126 Cal.App.3d 488, 178 Cal.Rptr. 888 (1982) (where the plaintiff was raped with a bottle by juveniles allegedly acting upon the stimulus of observing an "artificial rape" scene in a television drama); Walt Disney Productions, Inc., v. Shannon, 247 Ga. 402, 276 S.E.2d 580 (1981) (where a child was injured trying to reproduce a sound effect demonstrated on a television program by rotating a BB inside an inflated balloon). The injuries in each of these cases present a stronger claim for redress under the "incitement" theory than that of Plaintiff. In each case, however, the court held the broadcast to be protected by the first amendment. Because the first amendment shields TSR from liability for the death of Plaintiff's son, it is unnecessary to address Defendant's tort-based defenses. For the reasons stated above Defendant TSR's motion for summary judgment is GRANTED. END OF DOCUMENT ------------------------------------------------------------- AUTHORIZED FOR EDUCATIONAL USE ONLY COPR. (C) WEST 1993 NO CLAIM TO ORIG. U.S. GOVT. WORKS 904 F.2d 378 59 USLW 2012, Prod.Liab.Rep.(CCH)P. 12,474 (Cite as: 904 F.2d 378) Sheila WATTERS, Individually and as Administratrix, Estate of Johnny Burnett, Deceased, Plaintiff-Appellant, v. TSR, INC., a/k/a TSR Hobbies, Inc., Defendant-Appellee. Nos. 89-5844, 89-5891 and 89-6021. United States Court of Appeals, Sixth Circuit. Argued April 5, 1990. Decided June 5, 1990. Mother brought wrongful death action against manufacturer of game "Dungeons & Dragons" for the suicide of her son. The United States District Court for the Western District of Kentucky, 715 F.Supp. 819, Edward H. Johnstone, Chief Judge, granted manufacturer's motion for summary judgment, and mother appealed. The Court of Appeals, David A. Nelson, Circuit Judge, held that: (1) manufacturer was not negligent in disseminating the game to "mentally fragile persons"; (2) the manufacturer breached no duty to warn; and (3) the son's suicide was an intervening cause of his death. Affirmed. [1] NEGLIGENCE k1 272k1 Actionable negligence, under Kentucky law, consists of duty, violation thereof, and consequent injury. [2] NEGLIGENCE k4 272k4 Every person owes duty to every other person to exercise ordinary care in his activities to prevent any foreseeable injury from occurring to such other person. [2] NEGLIGENCE k10 272k10 Every person owes duty to every other person to exercise ordinary care in his activities to prevent any foreseeable injury from occurring to such other person. [3] NEGLIGENCE k1 272k1 It is fundamental principle of negligence that there is no liability without fault. [4] PRODUCTS LIABILITY k60 313Ak60 Manufacturer of game "Dungeons & Dragons" was not liable for suicide of player, under Kentucky negligence law, under theory that manufacturer was negligent in disseminating game to "mentally fragile persons"; only practicable way of insuring that game could never reach "mentally fragile" individual would be to refrain from selling it at all. [5] PRODUCTS LIABILITY k14 313Ak14 Kentucky law imposes general duty on manufacturers and suppliers to warn of dangers known to them but not known to persons whose use of product can reasonably be anticipated. [6] PRODUCTS LIABILITY k60 313Ak60 Kentucky mother whose son committed suicide did not have viable negligence claim against manufacturer of game "Dungeons & Dragons" based on theory of manufacturer's failure to warn of dangers of game; there was no evidence indicating that manufacturer had reason to foresee the players would become more susceptible to murder or suicide than nonplayers. [7] DEATH k17 117k17 Under Kentucky law, teenager's suicide was intervening cause of his death, thereby relieving manufacturer of game "Dungeons & Dragons" from any liability in connection with that death; teenager was not known to be suicidal, was not placed in care or custody of manufacturer, and there was no showing that teenager would not have committed suicide if he had not played Dungeons & Dragons. *379 Mark Edwards, Charles A. Saladino (argued), Thomas A. Dockter, Paducah, Ky., for plaintiff-appellant. Stephen E. Smith, Jr. (argued), McMurry & Livingston, Paducah, Ky., for defendant-appellee. Before KEITH and NELSON, Circuit Judges; and CONTIE, Senior Circuit Judge. DAVID A. NELSON, Circuit Judge. This is a wrongful death case in which the plaintiff appeals from an order granting summary judgment to the manufacturer of a parlor game called "Dungeons & Dragons." The plaintiff alleges that her late son was an avid player of the game, and that it came to dominate his mind to such an extent that he was driven to suicide. She asserts that the defendant violated a duty of care in publishing and distributing the game materials; that the defendant violated a duty to warn that the game could cause psychological harm in fragile-minded children; and that the boy's death, which was caused by a self- inflicted gunshot wound, was a direct and proximate result of the defendant's alleged wrongdoing. The defendant's motion for summary judgment was based on the First and Fourteenth Amendments and on familiar principles of tort law. Without addressing the common law questions, the district court held that the United States Constitution bars the imposition of liability in a case such as this. Watters v. TSR, Inc., 715 F.Supp. 819 (W.D.Ky.1989). We see no need to reach the constitutional issue, because we believe that the law of Kentucky, on which the plaintiff's claim is based, would not permit recovery on the facts shown here. We shall affirm the district court's judgment on that basis. I Plaintiff Sheila Watters, a Kentucky resident, brought suit against defendant TSR, Inc., in a Kentucky circuit court. TSR, a Wisconsin corporation that has its principal place of business outside Kentucky, removed the case to federal court on diversity of citizenship grounds. TSR's Dungeons & Dragons game is one in which the players assume the roles of characters in "adventures" suggested in illustrated booklets. These adventures, set in an imaginary ancient world, are narrated and orchestrated by a player known as the Dungeon Master. The results of various encounters between characters are determined *380 by using dice in conjunction with tables provided in the published materials. The rules of the game do not call for the physical acting out of any role. The game is usually played at a table or in some other comfortable setting. We have seen no indication in the record that the game's materials glorify or encourage suicide, or even mention it. It does not appear that the materials allude in any way to guns. Many schools and libraries use Dungeons & Dragons as a learning tool and as a means of promoting creativity. More than a million copies have been sold, according to TSR's records, and this figure does not include sales by the several other companies that produce and sell other role- playing games. Mrs. Watters describes her son, Johnny Burnett, as a "devoted" Dungeons & Dragons player who became absorbed by the game to the point of losing touch with reality. She claims that as a result of his exposure to the game, "he lost control of his own independent will and was driven to self-destruction." The record does not disclose Johnny's age at the time of the tragedy. TSR moved for summary judgment on various grounds, including these: (1) the First Amendment, as applied to the states by the Fourteenth Amendment, precludes a Kentucky court from imposing liability on the basis of what the defendant said or published; (2) TSR owed no duty to refrain from distributing the game or to warn of the possible consequences of playing it; and (3) Johnny Burnett having died at his own hand, the suicide was an intervening or superseding cause of his death. Granting summary judgment to the defendant on First Amendment grounds, the district court did not reach any of the state law issues. II "Where there is no need to decide a constitutional question, it is a venerable principle of this Court's adjudicatory processes not to do so for '[t]he Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it." ' Ashwander v. TVA, 297 U.S. 288, 346, 80 L.Ed. 688, 56 S.Ct. 466 [482] (1936) (Brandeis, J., concurring), quoting Liverpool, New York and Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 28 L.Ed. 899, 5 S.Ct. 352 [355] (1885).... Quite simply, '[i]t is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States 196 U.S. 283, 295, 49 L.Ed. 482, 25 S.Ct. 243 [245] (1905)." Webster v. Reproductive Health Serv., [--- U.S. ----, ----], 106 L.Ed.2d 410, 441, 109 S.Ct. 3040, 3060 (1989) (O'Connor, J., concurring.) We see no reason to depart in this case from the venerable and salutary principle that constitutional questions should be decided only where necessary. While the constitutional question was the only one addressed in the briefs on appeal, the underlying common law issues were adequately dealt with in the briefs filed with the district court. The propriety of a grant of summary judgment is a pure question of law, and although it is often very helpful, in diversity cases, for an appellate court to have the benefit of the district court's thinking on questions of state law, we do not believe a remand is called for in the present situation. The governing principles seem clear enough, even though there is no Kentucky caselaw directly in point. III [1][2][3] "Actionable negligence," under Kentucky law, "consists of a duty, a violation thereof, and consequent injury." Illinois Central R.R. v. Vincent, 412 S.W.2d 874, 876 (Ky.1967), as quoted in M & T Chemicals, Inc. v. Westrick, 525 S.W.2d 740, 741 (Ky.1974). "Every person owes a duty to every other person to exercise ordinary care in his activities to prevent any foreseeable injury from occurring to such other person," Westrick, 525 S.W.2d at 741, and it is "[a] fundamental principle of negligence ... that there is no liability without fault." Id. (Emphasis supplied). *381 Liability without fault, or "strict liability," may sometimes attach where an injury is caused by an inherently dangerous product. As far as we have been able to ascertain, however, the doctrine of strict liability has never been extended to words or pictures. Other courts have looked in vain for decisions so expanding the scope of the strict liability doctrine. See, e.g., Herceg v. Hustler Magazine, Inc., 565 F.Supp. 802, 803 (S.D.Tex.1983), and Cardozo v. True, 342 So.2d 1053, 1056-57 (Fla.Dist.Ct.App.), cert. denied, 353 So.2d 674 (Fla.1977). See also Beasock v. Dioguardi Enterprises, Inc., 130 Misc.2d 25, 29-30, 494 N.Y.S.2d 974, 978 (1985) ("The publications themselves did not produce the injuries and thus cannot serve as the basis for the imposition of liability under a theory of either strict products liability or breach of warranty...."). We are satisfied that there could be no recovery of damages in a case such as this without proof that the defendant was actually at fault--that the defendant violated its duty to exercise "ordinary care" to prevent "foreseeable injury." The plaintiff's complaint alleges that the defendant violated its duty of ordinary care in two respects: it disseminated Dungeons & Dragons literature to "mentally fragile persons," and it failed to warn that the "possible consequences" of playing the game might include "loss of control of the mental processes." To submit this case to a jury on either theory, it seems to us, would be to stretch the concepts of foreseeability and ordinary care to lengths that would deprive them of all normal meaning. [4] The defendant cannot be faulted, obviously, for putting its game on the market without attempting to ascertain the mental condition of each and every prospective player. The only practicable way of insuring that the game could never reach a "mentally fragile" individual would be to refrain from selling it at all--and we are confident that the courts of Kentucky would never permit a jury to say that simply by marketing a parlor game, the defendant violated its duty to exercise ordinary care. [5] As to the supposed breach of a duty to warn, Kentucky law imposes a general duty on manufacturers and suppliers to warn of dangers known to them but not known to persons whose use of the product can reasonably be anticipated. Garrison v. Rohm and Haas Co., 492 F.2d 346, 352 (6th Cir.1974), citing Post v. American Cleaning Equipment Corp., 437 S.W.2d 516 (Ky.1968). [6] Johnny Burnett was certainly one of the class of people whose use of the game could reasonably have been anticipated, and there is no contention that he or his mother, Mrs. Watters, knew of any danger in using it. (An affidavit executed by Mrs. Watters indicates that she knew the game was often played at the public library; that Johnny and his friends played the game constantly after school and on weekends over a period of several years; and that never, either before or during the period when he and his friends were immersed in the game, did Johnny cause his mother any problems.) But if Johnny's suicide was not foreseeable to his own mother, there is no reason to suppose that it was foreseeable to defendant TSR. In moving for summary judgment on the breach of duty question, defendant TSR put Mrs. Watters to her proof on foreseeability and knowledge--on whether TSR knew of some danger that made the suicide foreseeable. Mrs. Watters was not free simply to rest on her pleadings; she was required, by affidavits, depositions, answers to interrogatories, or the like, to "designate 'specific facts showing that there [was] a genuine issue for trial.' " Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), quoting Rule 56(e), Fed.R.Civ.P. This she failed to do. Aside from one vague reference to hearsay about the game's "dangerous propensities"--Mrs. Watters' affidavit concluded with a sentence reading, in its entirety, "I have subsequently read in many publications including the Paducah Sun of the dangerous propensities of the game Dungeons & Dragons"--the record sets forth no "specific fact" showing that the defendant's game was in fact dangerous *382 or that the defendant had knowledge of any danger when the materials that Johnny and his friends had been using for so many years were manufactured and sold. [FN*] FN* We have found two decisions, not cited in the briefs, mentioning claims that Dungeons & Dragons has dangerous propensities. In State v. Molitor, 729 S.W.2d 551 (Mo.Ct.App.1987), where a young woman was tied up and strangled after an all-night houseparty devoted to listening to music, consuming liquor, smoking marijuana and practicing martial arts, the defendant sought to introduce expert testimony suggesting that he had been "desensitized" at some point by playing Dungeons & Dragons. The appellate court sustained exclusion of the testimony on relevance grounds and because the defendant's offers of proof made no showing that he had, in fact, been "desensitized." In People v. Ventiquattro, 138 App.Div.2d 925, 527 N.Y.S.2d 137 (1988), a fifteen-year-old boy who killed a companion with a shotgun gave the police several conflicting accounts of how the shooting occurred. In one account he stated that he was playing the game Dungeons & Dragons and shot the victim while fantasizing that it was his job to exterminate evil. Whether this particular account was truthful, and whether TSR ever learned of it, we do not know. The actual content of the materials in question would hardly have given TSR reason to foresee that players of the game would become more susceptible to murder or suicide than non-players. The materials make it clear that Dungeons & Dragons is a "let's pretend" game, not an incitement to do anything more than exercise the imagination. And the imaginary world referred to in the booklets--a world of magical spells, hidden treasures, and fantastic monsters-- does not appear to be a world in which people kill themselves or engage in acts of wanton cruelty toward other people. We are not dealing here with the kind of violence or depravity to which children can be exposed when they watch television, or go to the movies, or read the fairy tales of the Brothers Grimm, for example. Television, movies, magazines and books (including comic books) are far more pervasive than the defendant's games. Were the courts of Kentucky prepared to say that works of the imagination can be linked to a foreseeable danger of anti-social behavior, thereby giving rise to a duty to warn, one would expect to find Kentucky caselaw to that effect in lawsuits involving television networks, book publishers, or the like. There is no such caselaw. And what little authority exists outside Kentucky favors the defendant, not the plaintiff. See for example, Zamora v. Columbia Broadcasting System, 480 F.Supp. 199 (S.D.Fla.1979) (no cause of action stated against three major television networks for allowing the plaintiffs' minor child to become so "intoxicated" by television violence that he was "stimulated, incited and instigated" to shoot and kill an elderly neighbor.) Cf. Herceg v. Hustler Magazine, Inc., 565 F.Supp. 802, supra (absent an allegation of incitement, no claim stated against magazine for publishing a description of "autoerotic asphyxiation" that allegedly prompted plaintiffs' decedent to hang himself). Both Herceg and Zamora stressed that without actual incitement, First Amendment considerations "argue against the liability of a publisher for," as Herceg put it, "a reader's reactions to a publication...." 565 F.Supp. at 804. In the case at bar, as we have noted, the district court rested its decision solely on constitutional grounds. Other courts have done likewise in analogous situations. See, e.g., DeFilippo v. National Broadcasting Co., Inc., 446 A.2d 1036 (R.I.1982) (notwithstanding allegations of negligent failure to give adequate warnings, First Amendment barred recovery against broadcaster in action arising out of a 13-year-old boy's death by hanging after he had watched a mock hanging of Johnny Carson on television); Walt Disney Productions, Inc. v. Shannon, 247 Ga. 402, 276 S.E.2d 580 (1981) (absent "a clear and present danger of injury," First Amendment precluded imposition of tort liability where child hurt self in trying to duplicate sound effect technique demonstrated on television); Olivia N. v. National Broadcasting Co., Inc., 126 Cal.App.3d 488, 178 Cal.Rptr. 888 (1981) (absent incitement, and despite defendant broadcaster's alleged knowledge of studies showing that susceptible persons might imitate television violence, First Amendment barred submission to jury of action filed on behalf of 9-year-old victim of bizarre sexual crime committed by minors allegedly copying *383 similar crime depicted on television), cert. denied, 458 U.S. 1108, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982); Bill v. Superior Court, 137 Cal.App.3d 1002, 187 Cal.Rptr. 625 (1982) (First Amendment concerns required entry of summary judgment for defendants, producers of a violent movie, in lawsuit brought on behalf of girl shot outside theater where defendants' movie was shown). The able opinion of the district court in the present matter shows the seriousness of the constitutional concerns. A Kentucky court considering the application of Kentucky's common law in this situation would obviously be aware of the constitutional problems looming in the background--and if possible, we believe, such a court would avoid applying the common law in a way that would bring the constitutional problems to the fore. The constitutional problems would be avoided, of course, by holding that the plaintiff failed to show a justiciable issue as to any breach of a recognized legal duty--and that is where we think the Kentucky courts would come out. IV [7] By itself, moreover, a breach of duty is not enough to warrant recovery; there can be no liability for negligence if the negligence is not shown to have "caused" the injury complained of. And the courts of Kentucky have long recognized that the chain of causation may be broken by "facts [that] are legally sufficient to constitute an intervening cause." Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780 (Ky.1984). Facts sufficient to constitute an intervening cause "are facts of such 'extraordinary rather than normal,' or 'highly extraordinary,' nature, unforeseeable in character, as to relieve the original wrongdoer of liability to the ultimate victim." Id., quoting House v. Kellerman, 519 S.W.2d 380, 382 (Ky.1974), and Restatement (Second) of Torts ss 442(b), 447. Although Kentucky courts may once have treated the issue of intervening or superseding cause as one that could be resolved by the jury, even in the absence of a factual dispute, the highest court of Kentucky has now held to the contrary: "The question of whether an undisputed act or circumstance was or was not a superseding cause is a legal issue for the court to resolve, and not a factual question for the jury." House v. Kellerman, 519 S.W.2d at 382 (footnote omitted). The fact of Johnny Burnett's suicide is undisputed. The third paragraph of Mrs. Watters' complaint affirmatively avers "[t]hat on the 29th day of September, 1987 the deceased departed this world as a direct and proximate result of a gun shot wound self inflicted by said deceased." Whether that extraordinary and tragic occurrence was or was not a "superseding cause" is thus a legal issue that must be resolved by the court. Courts have long been rather reluctant to recognize suicide as a proximate consequence of a defendant's wrongful act. See, e.g., Scheffer v. Washington City V.M. & G.S.R.R., 105 U.S. 249, 26 L.Ed. 1070 (1882). Generally speaking, it has been said, the act of suicide is viewed as "an independent intervening act which the original tortfeasor could not have reasonably [been] expected to foresee." Stasiof v. Chicago Hoist & Body Co., 50 Ill.App.2d 115, 122, 200 N.E.2d 88, 92 (1st Dist.1964), aff'd sub nom. Little v. Chicago Hoist & Body Co., 32 Ill.2d 156, 203 N.E.2d 902 (1965), as quoted in Jarvis v. Stone, 517 F.Supp. 1173, 1175 (N.D.Ill.1981). There are several exceptions to the general rule. Where a person known to be suicidal is placed in the direct care of a jailer or other custodian, for example, and the custodian negligently fails to take appropriate measures to guard against the person's killing himself, the act of self destruction may be found to have been a direct and proximate consequence of the custodian's breach of duty. Sudderth v. White, 621 S.W.2d 33 (Ky.App.1981). And because Kentucky's Workers' Compensation Act is liberally construed so as to effectuate the beneficent intent of the legislature in enacting it, the suicide of an employee covered by workers' compensation may be compensable if an injury sustained *384 in the course of the worker's employment causes a mental disorder sufficient to impair the worker's normal and rational judgment, where the worker would not have committed suicide without the mental disorder. Wells v. Harrell, 714 S.W.2d 498 (Ky.App.1986). Outside the workers' compensation area, and beyond the situation where someone with known suicidal tendencies is placed in the care of a custodian who is supposed to guard against suicide, exceptions to the general rule have been recognized where a decedent was delirious or insane and either incapable of realizing the nature of his act or unable to resist an impulse to commit it. Restatement (Second) of Torts s 455; cf. Jamison v. Storer Broadcasting Co., 511 F.Supp. 1286, 1291 (E.D.Mich.1981), aff'd in relevant part and reversed in part on other grounds, 830 F.2d 194 (6th Cir.1987), and the authorities there cited. But the plaintiff in the case at bar points to no facts suggesting that the suicide of Johnny Burnett came within any such recognized exception. Johnny was not known to be suicidal, as far as the plaintiff has told us, and he was not placed in the care or custody of defendant TSR. Accordingly, the plaintiff can derive no benefit from cases such as Sudderth v. White. This is not a workers' compensation case, so Wells v. Harrell is not in point. Even under principles of workers' compensation law, moreover, it would have to be shown affirmatively that Johnny would not have taken his own life absent a mental disorder induced by exposure to Dungeons & Dragons. That would be hard to do, and there has been no attempt to do it. The fact is, unfortunately, that youth is not always proof against the strange waves of despair and hopelessness that sometimes sweep seemingly normal people to suicide, and we have no way of knowing that Johnny would not have committed suicide if he had not played Dungeons & Dragons. Finally, of course, it does not appear that Mrs. Watters can show that Johnny was delirious or psychotic, or that he acted under an irresistible impulse or while incapable of realizing what he was doing. On the contrary, Mrs. Watters' affidavit shows affirmatively that Johnny Burnett, who lived in her household throughout his life, never caused Mrs. Watters any problems. He went to school regularly, and he took care of a paper route. The record contains no affidavit from a psychiatrist or similar expert suggesting that he suffered from any psychosis. As far as the record discloses, no one had any reason to know that Johnny Burnett was going to take his own life. We cannot tell why he did so or what his mental state was at the time. His death surely was not the fault of his mother, or his school, or his friends, or the manufacturer of the game he and his friends so loved to play. Tragedies such as this simply defy rational explanation, and courts should not pretend otherwise. The judgment for the defendant is AFFIRMED. END OF DOCUMENT