January 12, 2008
Torts in Tennessee: Empirical Data
Over at Day on Torts, John Day is analyzing the 2006-2007 "Annual Report of the Tennessee Judiciary." Day cites some interesting general statistics. For instance, total damages awarded in personal injury and death cases were less than half those awarded in the prior year ($94,500,000 in '05-06, $44,600,000 in '06-07). Also, the total number of tort cases filed has dropped in the last 10 years. About 5% of all tort cases end up going to trial (jury and non-jury). (I believe that is a little higher percentage than some national statistics I have seen in recent years.)
Then Day focuses on medical malpractice cases. There were 584 med mal cases filed in Tennessee in the year covered by the report. Of those, only 15 went to trial. Using national statistics, Day calculates that is far too few cases compared with the number of injuries caused by medical error. By way of partial explanation, Day states that lawyers will not take "small" med mal claims. Those of us who practiced in the area know that is true. The late Gary Schwartz noted that, in 2002, it cost at least $50,000 to hire experts for a med mal case. He stated that a case had to be worth in excess of $100,000 before a lawyer would take the risk of going forward. The rest of Day's analysis is here and here.
Developments in Kentucky Superman Ride Case
Excerpts from a ride operator's deposition have been released, and they suggest that the cable snap (that ultimately severed a girl's feet) occurred before the ride carriage dropped -- at least the operator was clearly attempting to stop the ride, which can't occur when the ride is already dropping. The story also notes that two of Ms. Lassiter's friends reported being struck by the cable as well, with minor injuries.
The cable inspection results are expected next week.
D.C. Automatic Weapons Lawsuit Shot Down
The BLT has the details on the suit. Today, such a suit would clearly be preempted by federal law (which preempts almost all suits for injuries caused by firearms). The story notes that the city might have been able to assert facts that would fit within the exception for complicity in illegal firearm sales, but it didn't.
It also references an act I never heard of in D.C.,
the D.C. Assault Weapons Manufacturing Strict Liability Act of 1990. Under that law, gunmakers, importers, or distributors of assault weapons or machine guns “shall be held strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death” resulting from discharge of the weapons in the District.
The federal act obviously preempts that local statute.
January 11, 2008
USSC Denies Cert in Alienation of Affections Case
In November, I posted about the case from Mississippi in which Johnny Valentine sued Jerry Fitch for alienating the affections of his former wife, Sandra. Valentine won a verdict in excess of $750,000 in compensatory and punitive damages, and the verdict was upheld by the Mississippi Supreme Court. Fitch filed a Motion for Stay of Mandate in the United States Supreme Court, which was denied in late October. This week, the Court denied the cert petition as well. Thus, Mississippi and seven other jurisdictions retain the right to allow state tort suits for alienation of affections.
Two from Legal Theory Blog
Larry Solum at Legal Theory Blog has recently described two articles of interest that have been posted on SSRN. Gregory Keating has posted Personal Inviolability and "Private Law". In the piece, Keating argues that a public law conception of torts is at least as plausible as one from private law, both philosophically and interpretively. The second piece, from Brian Tamanaha, is entitled simply Law. Although it is not necessarily a torts article, Tamanaha's work is always broadly relevant and fascinating.
January 10, 2008
Charitable Immunity and Med Mal in VA: Oral Arguments
Yesterday, the Virginia Supreme Court heard oral arguments to determine if a foundation set up to administer the clinical practices of medical school faculty members should receive charitable immunity. I posted on the case here and here. The Virginia Lawyers Weekly Blog has coverage of the justices' questions, which appeared skeptical of the foundation's position.
January 9, 2008
Massive Claims Relating to Katrina
The AP reports about the massive claims for damages sought by plaintiffs against the Corps of Engineers relating to the levee failures. The article does recognize that the amounts sought are just numbers, with no particular connection to reality or the lawsuits in question. One claim is for $3 quadrillion, which is, well, a lot larger than, for instance, the gross domestic product. (Why limit it to $3 quadrillion? Heck of a question.)
NJ Assembly Allows Emotional Harm In Wrongful Death Actions
NJ.com (via the NJ Star Ledger) reports that the New Jersey Assembly has passed an amendment to the state's wrongful death statute allowing claims for emotional harm. Under the present statute, damages are recoverable only for pecuniary loss. A copy of the bill is available here.
Consumer Fraud Suit Filed Against Sears
The New York Times (via Reuters) reports that a new consumer fraud suit has been filed against Sears in Illinois state court. The suit alleges that the lack of privacy protections on Sear's "managemyhome.com" site violate the Illinois Consumer Fraud Act. According to the complaint, the site allows users to view purchase histories of Sears's customers. Sears turned off that feature on Friday after the suit was filed. The complaint seeks class action status.
Brian Krebs at the WaPo's Security Fix Blog has a copy of the complaint.
Tonight on the Daily Show: Tort Law!
Okay, not really, but Jon Stewart last night made a funny reference to tort law:
You know, Jon, if you happen to need a tort related guest once you're no longer behind picket lines, well, we, the TortsProfs, are here for you.
(Thanks to Paul Steven Miller for the tip.)
January 7, 2008
Clemens Sues McNamee (Updated with Complaint)
The AP is reporting that Roger Clemens is suing trainer Brian McNamee for defamation, evidently beating McNamee (who has threatened suit against Clemens) to court. This is despite Clemens's professed hesitation to bring suit:
And then everybody’s talking about sue, sue, sue. Should I sue? Well, yeah, let me exhaust — let me, let me just spend,” he said, gesturing as if he were peeling off bills. “Let me keep spending. But I’m going to explore what I can do, and then I want to see if it’s going to be worth it, worth all the headache.”
Updated: The Smoking Gun (naturally) has the complaint.
Torts at the Zoo, Continued
Chris last month posted an initial set of thoughts about the potential claims arising from the tiger attack at the San Francisco Zoo. Today, Walter Olson collects a number of links discussing the decedent's friends' alleged statements in the ambulance ("Don't tell them what we did").
January 6, 2008
Edwards Focuses (Even More) on Plaintiffs
Former Sen. John Edwards is making what he terms victims of corporate greed a more central part of his campaign. He is now being joined on the trail by family members of a girl who died after her insurer refused to pay for a liver transplant (the insurance company denies that its decision caused her death), by the a man who, lacking health insurance, lived with a cleft palate for half a century, and by one of his former clients, whose daughter was seriously injured in a swimming pool. (What appears to be a pretty thorough discussion of the last case is available here.)
(I gave Edwards some money in 2004 and have given him a little again this year. My support for him is generally speaking based on non-Torts-related issues, if it matters.)
Another Wing Waiver
Jake Melnick's Corner Tap in Chicago has created hot wings with sauce so hot that it requires its customers to sign a waiver prior to eating them. This story has generated a significant amount of national press. If you recall, I posted last month about the Eagle Hotel in Linglestown, PA doing the exact same thing. Although one assumes this is largely a publicity stunt (and a good one), would the waiver be upheld if someone sued a restaurant after signing one of these waivers?
The express assumption of risk/waiver analysis generally consists of two parts. First, is the language clear? Second, even if the language is clear, does the waiver offend public policy? Assuming the language is clear, one of the most significant factors in the public policy analysis is whether the good or service being provided is a necessity. That would depend on the level of abstraction at which the question is answered. Food is a necessity. On the other hand, hot wings are a bar food. At this, arguably more proper level of abstraction, hot wings are hardly a necessity (my colleague, Mike Dimino, being from Buffalo, may differ with me on this point!). Contrast a hot wings waiver with, say, a public hospital waiver, and the necessity factor is extremely clear. Given the importance of the necessity factor in the analysis, it seems to me these waivers should be upheld in the unlikely event they are challenged in court.
Thanks to my colleague, Jill Family, for the tip.