TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, December 9, 2016

Fake News and Defamation

On NPR's All Things Considered, Audie Cornish discussed the recent increase in fake news and possible recourse for it with Derigan Silver, professor of media, First Amendment, and Internet Law at the University of Denver.  NPR's website has the story.

December 9, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, December 6, 2016

Abbott on AI Tort Liability

Ryan Abbott (Surrey Law/UCLA Med) has posted to SSRN Allocating Liability for Computer-Generated Torts.  The abstract provides:

Artificial intelligence is part of our daily lives. Whether working as taxi drivers, financial analysts, or police, computers are taking over a growing number of tasks once performed by people. As this Artificial intelligence is part of our daily lives. Whether working as taxi drivers, financial analysts, or police, computers are taking over a growing number of tasks once performed by people. As this occurs, computers will also cause the injuries inevitably associated with these activities. Accidents happen, and now computer-generated accidents happen. The recent fatality caused by Tesla’s autonomous driving software is just one example in a long series of “computer-generated torts.”

Yet hysteria over such injuries is misplaced. In fact, computers are, or at least have the potential to be, substantially safer than people. Self-driving cars will cause accidents, but they will cause fewer accidents than human drivers. Because automation will result in substantial safety benefits, tort law should encourage its adoption as a means of accident prevention.

Under current legal frameworks, manufacturers of computer tortfeasors are likely strictly responsible for their harms. This article argues that where a manufacturer can show that an autonomous computer is safer than a reasonable person, the manufacturer should be liable in negligence rather than strict liability. This would essentially treat a computer tortfeasor as a person rather than a product. It would create a powerful incentive to automate when it would reduce accidents, and it would continue to reward manufactures for improving safety.

In fact, principles of harm avoidance suggest that once computers become safer than people that human tortfeasors should no longer be judged against the standard of the hypothetical reasonable person that has been employed for hundreds of years. Rather, individuals should be compared to computers. To appropriate the immortal words of Justice Holmes, we are all “hasty and awkward” by comparison.

(Via Solum/LTB)

December 6, 2016 in Scholarship | Permalink | Comments (0)

Friday, December 2, 2016

Senate Bill Introduced Limiting Racial and Gender Discrimination in Damages

A bill was introduced in the Senate yesterday by Senators Booker and Gillibrand seeking to limit the consideration of race and gender in computing damage awards.  The bill will have bipartisan sponsors in the House of Representatives.  Ohio State's Martha Chamallas has been heavily involved in the legislation.  The Washington Post has details.

December 2, 2016 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0)

More on Products Liability as a Capstone Course

This summer I taught Products Liability, and I mused that it was a terrific capstone course.  I received more evidence of this yesterday.  One of the students in that course is graduating early this month.  In  a reception for our December graduates, unprompted by me, he told me that Products was a great course to take right before preparing for the bar exam.  He cited the review of tort and contract principles.  

December 2, 2016 in Products Liability, Teaching Torts | Permalink | Comments (0)

CA: Will the California Supreme Court Reject "Innovator Liability"?

The California Supreme Court is reviewing a case by one of the courts of appeal that adopted "innovator liability" in products cases, the doctrine imposing liability on brand name manufacturers for injuries caused by their generic versions.  Most jurisdictions have rejected the doctrine.  The Pacific Legal Foundation's Liberty Blog urges rejection of the theory:

As we argue in our brief, that decision has no connection to any conceivable rationale normally employed in tort.  Generally, tort law exists to deter unreasonably dangerous behavior, and to compensate wrongful injuries.  But there can be no deterrence where an injury occurs after the generic manufacturer sells the production rights to someone else, and relinquishes control over how the drug is produced and labeled.  Only those entities that can monitor, label, test, or otherwise control a product have an incentive to make that product safer.  The decision is also unfair, because it imposes never-ending liability for statements that generic manufacturers make.  Not even leaving the market and selling the production rights to someone else will relieve a brand drug company from liability.

December 2, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Thursday, December 1, 2016

JOTWELL Torts: Goldberg on Goudkamp & Murphy on Tort Theory

At JOTWELL, John Goldberg reviews James Goudkamp & John Murphy's The Failure of Universal Theories of Tort Law.

December 1, 2016 in Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, November 30, 2016

Rustad & Koenig on Cybertorts

Mike Rustad and Tom Koenig have published "Rebooting Cybertorts for the Internet of Things" in The Harvard Law Record.  A sample:

This unbalanced cybertort jurisprudence has the effect of padlocking the courthouse door to most Internet-related injuries. After Concepcion and Italian Colors, expect even more one-sided consumer arbitration agreements. Such TOU would be rejected in the European Union, which gives consumers the right to pursue justice in their home courts. These mandatory arbitration agreements are essentially an anti-remedy for Internet users because the cost of arbitration will almost always exceed the monetary amount that is at stake. Plus, with class action waivers, there is no aggregation of claims.

It is time for Congress to step in and protect consumers in cyberspace from a new generation of defective products—driverless cars and other connected devices that are part of the Internet of Things.

Cybertort remedies need to evolve further to provide consumers remedies for runaway cars, inadequate security, and misuses of big data. Driverless cars have the potential to all but eliminate driver error.  However, connected cars also raise numerous privacy and security concerns. If a car manufacturer assembles massive amounts of data, there is an increased risk that this big data may be misused, compromising the privacy of consumers. Security vulnerabilities in autonomous cars may enable attacks on sensors that notify drivers of dangerous road conditions or could be used to disable the vehicles’ steering and brakes. A compromised vehicle could be used to launch denial of service attacks on other vehicles.

November 30, 2016 in Products Liability | Permalink | Comments (0)

Tuesday, November 29, 2016

PA: Regulation and Litigation in the Trump Era

Joel Berg, editor of the Central Penn Business Journal, discusses in "Regulation is dead; long live litigation?".  

November 29, 2016 in Current Affairs | Permalink | Comments (0)

Monday, November 28, 2016

Can Tribal Employees Avoid Tort Claims?

Two people were injured in an off-reservation  auto accident with a Mohegan Tribe-owned limousine.  The Connecticut Supreme Court ruled that the tribe's sovereign immunity protected the driver from tort claims arising from the accident.  Now the USSC has agreed to hear the case.  Two weeks ago, lawyers for the plaintiffs argued that Native American tribes’ sovereign immunity does not shield tribal employees from tort claims brought against them in their individual capacities.  Law 360 has the story.

November 28, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, November 24, 2016

Compliance with ABA Standard 314: Formative Assessment in Large Classes

Institute for Law Teaching & Learning and Emory University School of Law

Spring Conference 2017 

“Compliance with ABA Standard 314: Formative Assessment in Large Classes” is a one-day conference for law teachers and administrators who want to learn how to design, implement, and evaluate formative assessment plans.  The conference will be interactive workshops during which attendees will learn about formative assessment techniques from games to crafting multiple choice questions to team-based learning.  Participants will also learn ways to coordinate assessment across the curriculum.   The conference workshop sessions will take place on Saturday, March 25, 2017, at Emory University School of Law.

Conference Content:  Sessions will address the following topics:

Why Assess: Empirical Data on How it Helps Students Learn

Games as Formative Assessments in the Classroom

Formative Assessment with Team-Based Learning

Creating Multiple Choice Questions and Ways to Using Them as Formative Assessment

Coordinating Formative Assessment Across the Curriculum

Conference Faculty:  Workshops will be taught by experienced faculty: Andrea Curcio (GSU Law), Lindsey Gustafson (UALR Bowen), Michael Hunter-Schwartz (UALR Bowen), Heidi Holland (Gonzaga) and Sandra Simpson (Gonzaga)

Who Should Attend:  This conference is for all law faculty and administrators.  By the end of the conference, attendees will have concrete and practical knowledge about formative assessment and complying with Standard 314 to take back to their colleagues and institutions.

Registration Information:  The registration fee is $225 for the first registrant from each law school.  We are offering a discounted fee of $200 for each subsequent registrant from the same school, so that schools may be able to send multiple attendees.  Registration is here: https://emorylaw.wufoo.com/forms/institute-for-law-teaching-learning-conference/

Accommodations:  A block of hotel rooms for conference attendees has been reserved at the Emory Conference Center Hotel for $159/night; at the Courtyard by Marriott in downtown, Decatur for $99/night; and at the Decatur Holiday Inn for $159/night.  Reservation phone numbers are : Emory Conference Center Hotel: 1-800-933-6679; Courtyard by Marriott Downtown Decatur:  www.marriott.com or 1-404-371-0204; Holiday Inn Hotel Decatur 1-888-HOLIDAY.

November 24, 2016 in Conferences, Teaching Torts | Permalink | Comments (0)

Wednesday, November 23, 2016

FL: R.J. Reynolds Argues Engle is Preempted, Violates Due Process

R. J. Reynolds is arguing to the Florida Supreme Court that Engle is preempted by FDA v. Brown & Williamson Tobacco Corp. to the extent that Florida state tort law threatens to ban the sale of cigarettes.  Moreover, Reynolds argues that applying Engle to all subsequent cases is a violation of due process.  Florida Record has the story.

November 23, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Tuesday, November 22, 2016

Goldberg & Zipursky on Intermixture of Fault and Strict Liability

John Goldberg & Ben Zipursky have posted to SSRN The Strict Liability in Fault and the Fault in Strict Liability.  The abstract provides:

Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing. We argue that this is a false dichotomy. Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct. We explain this basic insight under the heading of “the strict liability in fault.” We then turn to the special case of liability for abnormally dangerous activities, which at times really does involve liability without wrongdoing. Through an examination of this odd corner of tort law, we isolate “the fault in strict liability” — that is, the fault line between the wrongs-based form of strict liability that is frequently an aspect of tort liability and the wrongs-free form of strict liability that is found only within the very narrow domain of liability for abnormally dangerous activities. We conclude by defending these two features of the common law of tort: the strictness of the terms on which it defines wrongdoing and its begrudging willingness to recognize, in one special kind of case, liability without wrongdoing.

(Via Solum/LTB)

November 22, 2016 in Scholarship | Permalink | Comments (0)

Monday, November 21, 2016

PA: General Contractor Immune from Drilling Site Death Suit

The Pennsylvania Superior Court affirmed a trial court ruling that a general contractor is immune from suit for the death of a worker at a drilling site.  The subcontractor paid workers' comp to the worker's fiancé on behalf of his son, and the worker's estate filed a negligence suit against the general contractor.  The estate argued that because the general contractor was leasing the land, it should be designated a property owner rather than a general contractor.  The court rejected the estate's argument based on its interpretation of Pennsylvania's workers' comp statute.  Law 360 has the story.

November 21, 2016 in Current Affairs | Permalink | Comments (0)

The Liability of Public Authorities in Comparative Perspective

Ken Oliphant has edited a new book, The Liability of Public Authorities in Comparative Perspective:

In recent decades, the liability of public authorities has been one of the main areas of development in and at the edges of tort law in Europe, with major reforms implemented or considered at a national level, and a steady stream of major court decisions. During the same period, ‘Member State liability’ has also been recognised in the law of the EU, and the interplay of principles of national and EU law – and additionally the ‘just satisfaction’ jurisprudence of the European Court of Human Rights – evidently warrants close attention. In this context, the aims of the present study are to contribute to the understanding of the law of extra-contractual liability as it applies to public authorities in the legal systems of Europe (and selected non-European jurisdictions), to facilitate its enhancement where necessary or desirable, and to consider the possibilities for harmonisation in the area – specifically, through the extension and adaptation of the Principles of European Tort Law to cover public authority liability.

Mike Green and Jonathan Cardi describe doctrines in the United States.  The flyer is here:   Download E-flyer liability of public authorities

November 21, 2016 in Books | Permalink | Comments (0)

Friday, November 18, 2016

Damages and Compensation Culture

Hart Publishing announces Damages and Compensation Culture by Eoin Quill and Raymond J. Friel:

The focus of the essays in this book is on the relationship between compensation culture, social values and tort damages for personal injuries. A central concern of the public and political perception of personal injuries claims is the high cost of tort claims to society, reflected in insurance premiums, often accompanied by an assumption that tort law and practice is flawed and improperly raising such costs. The aims of this collection are to first clarify the relationship between tort damages for personal injuries and the social values that the law seeks to reflect and to balance, then to critically assess tort reforms, including both proposals for reform and actual implemented reforms, in light of how they advance or hinder those values. Reforms of substantive and procedural law in respect of personal injury damages are analysed, with perspectives from England and Wales, Canada, Australia, Ireland and continental Europe. The essays offer valuable insights to anyone interested in the reform of tort law or the tort process in respect of personal injuries.

This flyer includes a 20% discount:  Download Quill_Friel

November 18, 2016 in Books | Permalink | Comments (0)

Thursday, November 17, 2016

Wells on Heffernan v. City of Paterson

Michael Wells has posted to SSRN What did the Supreme Court Hold in Heffernan v. City of Paterson?.  The abstract provides:

As a favor to his mother, Jeffrey Heffernan picked up a political yard sign. His supervisors demoted him, in the mistaken belief that he had engaged in protected speech. In Heffernan v. City of Patterson, 136 S.Ct. 1412 (2016), the Supreme Court held that a public employee can sue a local government under 42 U.S.C. § 1983 when a supervisor acts for constitutionally impermissible motives, even though he has not in fact exercised First Amendment rights. But the grounds for that holding are unclear. The Court may have ruled that the city, through its police chief, violated Heffernan’s First Amendment rights despite the lack of speech on his part. Or it may have ruled that the City is liable on § 1983 “official policy” grounds, even though it violated no constitutional right. This article examines each of these and argues that neither withstands scrutiny. A more convincing rationale for the outcome is that the Court in effect recognized a constitutional common law right. Alternatively, the arbitrary demotion may support recovery under the Equal Protection Clause on a “class of one” theory, though Jeffrey Heffernan did not pursue that approach and current doctrine seems hostile to it.

(Via Solum/LTB)

November 17, 2016 in Scholarship | Permalink | Comments (0)

Notices of Claim Against East Chicago Officials Over Lead- and Arsenic-Contaminated Soil

Approximately 250 residents of East Chicago, Indiana have filed notices of claim against several officials, including Vice President-elect Mike Pence, alleging the officials knew of lead- and arsenic-contaminated soil but did nothing to prevent future exposure:

The pending lawsuits — filed Oct. 27 — claim city and state officials knew about the pollution at the construction of the 346-unit West Calumet Housing Complex, built in 1972.  

The complex and Carrie Gosch Elementary School sit on about 50 acres of the roughly 400-acre USS Lead Superfund site. Soil testing in the area began decades ago. Two lead smelter operations also once operated on the site of the public housing complex and the school, according to EPA documents.

(nwi.com has the story)

November 17, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, November 15, 2016

The Trump Administration and Preemption

Some thoughts by James Beck at JDSupra Business Advisor.

November 15, 2016 in Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0)

Friday, November 11, 2016

Institute for Law Teaching and Learning Summer 2017 Conference

The Institute for Law Teaching and Learning announces its Summer 2017 Conference, "Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302," at the University of Arkansas at Little Rock William H. Bowen School of Law on July 7-8, 2017:

The Institute invites proposals for workshop sessions addressing how law schools are responding to ABA Standard 302’s call to establish learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession,”  such as “interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.”  The conference will focus on how law schools are incorporating these skills, particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills, into their institutional outcomes, designing courses to encompass these skills, and teaching and assessing these skills.  The deadline to submit a proposal is February 1, 2017. 

Call for Proposals:   Download CFP Summer 2017 Bowen Conference

November 11, 2016 in Conferences | Permalink | Comments (0)

Thursday, November 10, 2016

Baker, Helland, & Klick on Texas Med Mal Settlements

Tom Baker, Eric Helland, and Jonathan Klick have posted to SSRN Everything's Bigger in Texas:  Except the Medmal Settlements.  The abstract provides:

Recent work using Texas closed claim data finds that physicians are rarely required to use personal assets in medical malpractice settlements even when plaintiffs secure judgments above the physician's insurance limits. In equilibrium, this should lead physicians to purchase less insurance. Qualitative research on the behavior of plaintiffs suggests that there is a norm under which plaintiffs agree not to pursue personal assets as long as defendants are not grossly underinsured. This norm operates as a soft constraint on physicians. All other things equal, while physicians want to lower their coverage, they do not want to violate the norm and trigger an attack on their personal assets. This constraint should be less effective when physicians have other ways to shield their assets, such as through large personal bankruptcy exemptions like those available in Texas. Settlement data from the National Practitioner Data Bank indicate that settlements in Texas are abnormally low, just as they are in other jurisdictions with unlimited homestead exemptions in bankruptcy. Consistent with theory, we find that more generous exemptions are also associated with lower insurance prices and lower levels of insurance coverage. These results suggest that the large "haircuts" and low insurance limits observed in the Texas data may be driven by Texas's generous bankruptcy provisions. At a minimum, Texas is not generally representative of other jurisdictions. This weakens the case for extrapolating conclusions from Texas data to other jurisdictions.

November 10, 2016 in Scholarship | Permalink | Comments (0)