"Scratch n' Match" Contest Negligence Claim Dismissed

"I've won, I've won!"

"We regret to inform our readers that there was a mistake in the publication of contest numbers."

"I'll sue - for negligence."

No doubt something similar to the above occurred when the Daily News ran a "Scratch n' Match" contest in its newspaper which led many to mistakenly believe that they had won a $100,000 prize because of a publication error. It is learned by first year law students that contests are governed by contract law principles. If there is a mistake in such a contest can you sue for negligence? In last week's decision in Sargent v New York Daily News, L.P., 2007 NY Slip Op 06104, the Second Department found there was no such negligence claim.

On March 19, 2005, the Daily News published in its newspaper a series of numbers indicating which numbers the participants in its "Scratch n' Match" daily game were to scratch off on their game cards, potentially revealing prizes up to the sum of $100,000. The game's official rules were printed on the reverse side of each game card. The following day, the Daily News published a notice in its newspaper indicating that there had been a mistake in the numbers published on March 19, 2005. The publication of the "incorrect" numbers resulted in a number of participants claiming to have won the $100,000 prize. Under the rules, there was to be one $100,000 prize awarded weekly.The official rules also provided:

If due to a printing, production or other error, more prizes are claimed than are intended to be awarded for any prize level per the above, the intended prizes will be awarded in a random drawing from among all verified and validated prize claims received for that prize level.

In no event will more than the stated number of prizes be awarded. 

In the event of printing, production or other error, or the distribution of an irregular game card occurs, [the Daily News] shall [not] have any liability.

In finding that no negligence claim had been stated, the Second Department stated that the official rules provided for precisely the circumstances giving rise to the action, and that the Daily News performed in the manner required under the rules. Thus, the relationship between parties was totally governed by contractual principles. The Court stated that only if the plaintiff alleged or demonstrated that the Daily News owed a legal duty independent of the contractual duty could a negligence claim exist. However, the plaintiff failed to do so, and thus, the negligence claim was dismissed.