TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, October 21, 2016

FAA Preemption

In April, the Third Circuit ruled that the FAA does not preempt state law standards in aviation products liability; FAA standards do not eliminate the possibility of a design defect:

The Appeals Court turned to a federal case, Abdullah v. American Airlines, in which the FAA was found to have jurisdiction in the “field of aviation safety.” But the Appeals Court determined that applied to in-air operational safety issues and “does not include product manufacture and design, which continues to be governed by state tort law.” The court further noted that courts “have consistently applied state law to tort claims arising from airplane crashes.”

The case is being appealed to the Supreme Court.  AIN Online has details.

October 21, 2016 in Products Liability | Permalink | Comments (0)

Thursday, October 20, 2016

Rickard & Behrens on the Need for Transparency in 3rd-Party Litigation Funding

Lisa Rickard & Mark Behrens have a piece in Law360 arguing for disclosure regarding 3rd-party litigation funding.  The conclusion:

The U.S. Chamber Institute for Legal Reform and others have urged the Advisory Committee on Civil Rules to adopt an amendment to Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure that would require disclosure of third-party litigation funding at the outset of a lawsuit. So far, the committee has taken a “wait and see” approach. The Catch-22 is that, because third-party funding of lawsuits occurs in secrecy, the proof needed to support reform is elusive.

Federal judges in individual cases, particularly those managing multidistrict litigations, have the power to bring about transparency regarding the presence of third-party litigation funders in their courts. They should make all case management orders provide for the disclosure of third-party litigation funding. This would improve justice in those courts and give the Advisory Committee the data it needs to determine how best to bring third-party litigation funding into the sunlight.

October 20, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, October 19, 2016

October 18, 1926 the day Oscar Gray was born.  He celebrated his 90th birthday in Baltimore yesterday at a reception put on by his colleagues at the University of Maryland and the publishers of his treatise, Wolters Kluwer.  Happy birthday!


October 19, 2016 in TortsProfs | Permalink | Comments (0)

Tuesday, October 18, 2016

Dorfman on the Asymmetric Standard of Care in Negligence

Avi Dorfman has posted to SSRN Negligence and Accommodation.  The abstract provides:

Whereas the Restatement of Torts as well as leading economic and justice-based approaches to the explanation of the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively-fixed amount of care, whereas plaintiffs are for the most part assessed by reference to a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant’s negligence with a favorable assessment of plaintiff’s negligence, means that the victim gets to fix the terms of the interaction between them. This way of proceeding resonates well with a powerful egalitarian idea of accommodating, rather than overlooking, relevant differences—that is, treating the plaintiff and the defendant differently is necessary for the duty of reasonable care to give effect to the qualitative difference between the life and limb of the former, on the one hand, and the autonomy of the latter, on the other. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, which is to say to relate as substantively equals.

October 18, 2016 in Scholarship | Permalink | Comments (0)

Monday, October 17, 2016

Bloomberg Series on Amusement Park Injuries

Sunday, October 16, 2016

Sandy Hook Lawsuit Against Gun Manufacturers Dismissed

A Connecticut judge dismissed the case filed by parents of children killed at Sandy Hook Elementary School against gun manufacturers.  The parents alleged negligent entrustment in an attempt to get around the Protection of Lawful Commerce in Arms Act.  The judge ruled the plaintiffs did not meet the exception.  WaPo has the story.

October 16, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, October 14, 2016

Galasso & Luo on Tort Reform and Innovation

Alberto Galasso (Toronto-Strategic Management) & Hong Luo (Harvard Business School) have published Tort Reform and Innovation.  The abstract provides:

Current academic and policy debates focus on the impact of tort reforms on physicians’ behavior and medical costs. This paper examines whether these reforms also affect incentives to develop new technologies. We find that, on average, laws that limit the liability exposure of healthcare providers are associated with a significant reduction in medical device patenting and that the effect is predominantly driven by innovators located in the states passing the reforms. Tort laws have the strongest impact in medical fields in which the probability of facing a malpractice claim is the largest, and they do not seem to affect the amount of new technologies of the highest and lowest quality. Our results underscore the importance of considering dynamic effects in the economic analysis of tort laws.

Download here:   Download GalassoHong_27Sept16 (1)

October 14, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, October 13, 2016

AR: Supreme Court Strikes Down Ballot Initiative

The Arkansas Supreme Court has just killed the ballot initiative to amend the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery.  The court ruled the ballot title left critical elements, including "noneconomic damages", undefined.  Arkansas Times has the story.

October 13, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Radin Proposes New Tort

At Ralph Nader's "Breaking Through Power" conference two weeks ago, Margaret Jane Radin proposed a new tort:  deceptive deprivation of core legal rights.  Her focus is on the use of fine print boilerplate to take rights away from consumers and she offers a specific example:

“Pre-dispute arbitration clauses that erase class actions and jury trial would be a good candidate, because in cases of widespread small harms — such a $5 per month overcharge by a cable company, for example — no one party can get legal redress, and the company achieves large extra gains by aggregating small losses of a large number of people.”

Corporate Crime Reporter has the story.

October 13, 2016 in Conferences, Current Affairs | Permalink | Comments (0)

Tuesday, October 11, 2016

Stein on the Domain of Torts

Alex Stein has posted to SSRN The Domain of Torts.  The abstract provides:

This Article advances a novel positive theory of the law of torts that grows out of a careful reading of the caselaw. My core insight is that the benefit from the harm-causing activity determines the form and substance of tort liability. This finding is both surprising and innovative, since the operation of the doctrines that determine individuals’ liability for accidents — negligence, causation and damage — is universally believed to be driven by harms, not benefits. The key role of benefits in the operation of our tort system has eluded the searching eye of scholars, even though it is fully consistent with the caselaw, as I repeatedly demonstrate in the Article.

Specifically, I show that our tort system operates in two parallel modes — private and public — rather than just one, as conventional accounts erroneously suggest. Furthermore, the system’s mode of operation and the rules allocating liability for accidental harm are dictated by the type of the benefit sought by the alleged tortfeasor. If the benefit sought by the tortfeasor is purely private, she will be held liable for the harm resulting from her actions whenever she exposes her victim to a nonreciprocal risk. The tort system never allows actors to inflict harm on others when the benefit they seek to derive from their activity is purely private, no matter how significant that private benefit is relative to the victim’s harm. The system consequently does not hesitate to discourage the production of private benefits even when they are economically more valuable than the victim’s safety. That is, in cases of private benefit tort law excludes cost-benefit analysis in favor of the reciprocity and equality principles. When the benefit that accompanies the harm-causing activity is public, by contrast, tort law adopts a strictly utilitarian approach and focuses exclusively on minimizing the cost of accidents and the cost of avoiding accidents as a total sum. Liability in such cases is imposed based on the famous Learned Hand formula (and similar formulations). Accordingly, if the benefit from the harm-causing activity is greater than the expected harm and precautions are too costly, no liability will be imposed. The consequent reduction in the victim’s protection is counterweighted by society’s need not to chill the production of public benefits that the victim enjoys on equal terms with all other members of her community.

This insight has far-reaching implications for tort doctrine and theory. Contemporary scholarly debates about our tort system’s goals interpret the system as promoting fairness and corrective justice or, alternatively, economic efficiency. I demonstrate, however, that this dichotomous view is fundamentally mistaken. Careful analysis of the caselaw reveals that our tort system promotes fairness and corrective justice only when it operates in the private mode, and that when the system switches to the public mode it aims at achieving economic balance between victims’ safety and the production of public benefits. My analysis also demonstrates that tort doctrine is best understood as accident law because it focuses predominantly on individuals’ mutually unwanted interactions, identified as accidents, as opposed to mutually wanted and coercive interactions regulated, respectively, by contract law and criminal law. As I explain in this Article, switches between these regulatory regimes, and between torts and regulatory laws, only occur as a result of doctrinal migrations.


October 11, 2016 in Scholarship | Permalink | Comments (0)

Monday, October 10, 2016

AR: Constitutional Ballot to the Supreme Court; Recusals?

In November, the people of Arkansas are supposed to vote on a ballot measure amending the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery.  A special judge has determined there are flaws in the petition process; nursing home employees allegedly solicited signatures from nursing home residents.  Family members of the residents question whether the residents were able to understand what they were signing.  The issue now goes to the state supreme court.  A big issue, however, is whether some of the judges should recuse themselves.  The only member of the court not to receive campaign contributions from the nursing home industry is the chief justice. has the story.

October 10, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, October 7, 2016

WA: Expansion of Duty for Engineers

A recent Washington Court of Appeals decision expanded the scope of duty owed by professionals designing structures.  The court held an engineer's duty to developers and property owners includes "the prevention of safety risks" even if no personal injury or property damage has occurred.  Ross Siler at Lexology has details.

October 7, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, October 5, 2016

Doctor Admits He Lied for a Colleague in a Med Mal Case

South Dakota physician Lars Aanning admits he lied to protect a colleague in a med mal case 15 years ago.  He then takes it a step further:

 “In essence, no supporting testimony from a defendant physician’s colleagues can ever be deemed trustworthy, truthful or true—because those colleagues have essentially sworn an oath of loyalty to each other” in their employment contract, Aanning wrote.

The ABA Journal has the story.

October 5, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, October 4, 2016

Culhane on the Justice Against Sponsors of Terrorism Act

John Culhane has published "Time to End 9/11 Exceptionalism" in Politico.

October 4, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, October 3, 2016

Arlen on Economic Analysis of Tort Liability

Jennifer Arlen has posted to SSRN Economic Analysis of Tort Liability for an Imperfect World.  The abstract provides:

Tort liability generally is not justified by the presence of risk-producing activities alone. It tends to be justified by the combination of risk-producing activities and information costs that impede alternative solutions, such as private contracting or ex ante regulation. The observation that tort liability is justified by information costs impacts economic analysis of tort liability. It highlights that economic analysis of optimal tort rules should employ economic models where information is costly. In addition, it reveals the goals of optimal tort liability often should include providing optimal incentives to risk-imposers and others to invest in information needed to identify and provide optimal level of care. This chapter presents economic analysis of optimal tort liability focusing on the use of liability where information is costly. It shows that incorporating endogenous costly information alters tort liability’s optimal structure and incentive effects, both as applied to individual injurers and risk-imposers operating within organizations.

October 3, 2016 in Scholarship | Permalink | Comments (0)

Friday, September 30, 2016

More on Autonomous Vehicles

Autonomous vehicles have made it to Harrisburg.  PennDOT, the City of Harrisburg, and Carnegie Mellon hosted the Pennsylvania Safety Symposium at the Capitol Complex to highlight safety and technology advances.  Fox 43 has the story.  Carnegie Mellon is conducting a lot of research and Pittsburgh is where Uber is piloting its autonomous initiative.  I saw one of their vehicles in a trip to Pittsburgh earlier this month. 

Also, NHTSA has just released guidelines for autonomous vehicles.  Business Insider has the story.  Key takeaways include:

  • Three barriers have been preventing fully autonomous cars from hitting the road: 1) high technological component prices; 2) varying degrees of consumer trust in the technology; and 3) relatively nonexistent regulations. However, in the past six months, there have been many advances in overcoming these barriers.
  • Technology has been improving as new market entrants find innovative ways to expand on existing fully autonomous car technology. As a result, the price of the components required for fully autonomous cars has been dropping.
  • Consumer trust in fully autonomous vehicle technology has increased in the past two years.
  • California became the first US state to propose regulations. California's regulations stipulate that a fully autonomous car must have a driver behind the wheel at all times, discouraging Google's and Uber's idea of a driverless taxi system.

September 30, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, September 29, 2016

JOTWELL Torts: Keating on Ewing on Corporate Responsibiilty and the Structure of Tort Law

Goldberg & Zipursky on the Supreme Court and Tort Law

John Goldberg & Ben Zipursky have posted to SSRN The Supreme Court's Stealth Return to the Common Law of Torts.  The abstract provides:

In its famous 1938 Erie decision, the U.S. Supreme Court deemed itself without power to make general common law. Yet while the rule of Erie remains, the Court has strayed from its spirit. Using two lines of cases as representative of a larger trend – one involving First Amendment limits on claims for defamation, invasion of privacy, and infliction of emotional distress, the other concerning the preemption of state products liability law – we explain how the Court has increasingly empowered federal courts to serve as fora in which repeat-player defendants are offered a ‘second bite at the apple.’ This is precisely the role for federal courts that Erie rejected.

(Via Solum/LTB)

September 29, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, September 28, 2016

Silver et al. on Med Mal Settlements in the Shadow of Insurance

Charles Silver, David Hyman, Bernard Black, and Myungho Paik have posted to SSRN Policy Limits, Payouts, and Blood Money:  Medical Malpractice Settlements in the Shadow of Insurance.  The abstract provides:

In prior research, we found that policy limits in Texas medical malpractice (“med mal”) cases often served as de facto caps on recoveries in both tried and settled cases. We also found that physicians faced little personal exposure on malpractice claims. Out-of-pocket payments (OOPPs) by physicians were rare and usually small. Physicians could reduce their personal exposure to near zero by carrying $1 million in primary coverage ― a standard amount in many states. Finally, the real amount of insurance coverage purchased by physicians with paid claims declined substantially over 1988–1999, consistent with physicians learning over time how low the OOPP risk was and deciding to carry less coverage.

We now revisit our findings, using an extended dataset (1988–2005) that lets us study policies purchased through 2003, which encompasses the period during which Texas experienced a med mal insurance crisis (1999–2003) and adopted tort reform to limit med mal lawsuits (2003). Our updated findings are largely consistent with our original findings: policy limits continue to cap recoveries; physicians still rarely make OOPPs; most OOPPs are modest; and real policy limits continue to shrink. We also find evidence that, at the end of the extended period, physicians often purchased less coverage (i.e., policies with limits of $100,000–$200,000 instead of $500,000–$1 million).

Our findings have important policy implications. If physicians carry less real coverage over time, lawsuits should become less profitable. This will make it harder for injured patients to find plaintiffs’ lawyers willing to handle their cases; shift the cost of medical injuries away from providers and toward patients and first-party health insurers; weaken liability insurers’ incentives to monitor providers; and diminish the (already modest) deterrent effect of tort law. If these findings are representative, they may help explain the nationwide decline in med mal claiming that we document elsewhere. Finally, our findings raise questions about the explanatory power of Baker’s “blood money” norm, at least for med mal litigation.

September 28, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, September 27, 2016

IN: Tort Claim Notice Filed over Death from Chase by Off-Duty Reserve Officer

The family of an 18-year-old killed when his motorcycle crashed into a bean field has filed a tort claim notice against the town that once employed the off-duty reserve officer who chased the teen.  The teen was allegedly driving 120 miles per hour on a motorcycle without a license plate.  According to the town, the off-duty reserve officer, who has since resigned, had no authority to pursue him.  The plaintiff's lawyer made the following statement:

  “To hold the Town of Nashville liable, we must show that Burch was acting in the ‘course of his employment.’ Knowing this and in anticipation of a lawsuit, Nashville is disavowing Leonard Burch and throwing him under the proverbial bus.”

Fox59 has details.

September 27, 2016 in Current Affairs | Permalink | Comments (0)