May 24, 2008
NYT on Medical Apologies
On Thursday, the New York Times published this laudatory editorial about the effects of apologies for medical errors.
May 23, 2008
The Privacy Torts
Local elected official is accused of rape. Local elected official resigns his office. Local elected official claims he can exonerate himself. Local elected official produces a videotape, surreptitiously taken, of the encounter in question. The videotape allegedly reveals a consensual sexual encounter. The accuser is then accused of filing a false claim.
However, to exonerate himself, local elected official had to reveal that he had set up a multi-camera recording system in his house. He further had to reveal that he had been using this system to record his encounters with, among others, multiple prostitutes he had been hiring.
There has been an investigation into whether the recording violated any criminal statutes. Because my crimprof colleague, Wes Oliver, was asked to talk to a local news channel about the case, he questioned me about the torts angle. I've been researching William Prosser lately, and the privacy torts come to mind.
In his article, Privacy, 48 Cal. L. Rev. 383 (1960), Prosser argued that invasion of privacy was not one tort, but four: 1. Intrusion upon the plaintiff's seclusion or solitude; 2. Public disclosure of embarrassing private facts; 3. Publicity which places the plaintiff in a false light in the public eye; and 4. Appropriation, for the defendant's advantage, of the plaintiff's name and likeness. This division has been widely accepted in the jurisdictions (some of which have codified the privacy torts).
Would any of the privacy torts be available to those taped by the local elected official? It seems to me that three and four aren't even colorable. There's no false impression created by the fact that these people were having sex with the local elected official. Furthermore, appropriation cases tend to deal with a financial advantage (such as using the plaintiff's name or likeness to advertise a product). There are no allegations that the local elected official tried to sell or otherwise make money from the videos.
As for the second tort, public disclosure of embarrassing private facts, I'm not aware that there was a public disclosure of any of the encounters other than the encounter with the accuser. Of course, the accuser put that particular encounter at issue.
That leaves intrusion upon seclusion. In these cases, the intrusion must be offensive or objectionable to a reasonable person and the thing into which there is prying must be private. Surreptitiously videotaping sex strikes me as fitting both of these criteria. Indeed, Prosser cites cases in which the intrusion was accomplished by wire tapping and microphones. For a modern case on-point, see Lewis v. LeGrow, 670 N.W.2d 675 (2003).
Hylton on the Economics of Public Nuisance Law
Professor Keith Hylton (Boston) has posted The Economics of Public Nuisance Law and the New Enforcement Actions on SSRN. Here's the abstract:
In contrast to the traditional legal commentary, I find nuisance law to be a coherent body of rules that serves an explainable function. Nuisance optimally regulates activity levels. Nuisance law induces actors to choose socially optimal activity levels by imposing liability when externalized costs are far in excess of externalized benefits or far in excess of background external costs. The new enforcement actions for lead paint abatement or gun control purposes have an arguable theoretical basis in nuisance law. However, as currently framed, the lawsuits are inconsistent with significant parts of the doctrine and the theory.
May 22, 2008
Oregon Amusement Park Cites Liability Insurance in Closing
Thrill-Ville USA, a small amusement park in Oregon, announced recently that it would not be opening this year, or likely ever at all. The park sits next to the owners' KOA campground, and the owners say in an AP story that increasing liability insurance costs, along with the slowing economy, contributed to the park's closing.
Good Samaritan Laws
I took a CPR course yesterday and was surprised to learn of the scope of many "Good Samaritan" laws (statutes passed to give some form of legal protection to emergency rescuers). I have always considered them solely in the context of rescuers who are professionals in the medical field (physicians, nurses, paramedics, EMT's, etc.). Apparently, many jurisdictions have laws that apply to laypeople, so long as they are "certified." The Red Cross booklet we used (First Aid/CPR/AED for the Workplace) provides:
All 50 states have enacted Good Samaritan laws that give legal protection to people who willingly give emergency care to an ill or injured person without accepting anything in return. These laws, which differ from state to state, usually protect citizens who act the same way that a "reasonable and prudent person" would if that person were in the same situation.
Developed to encourage people to help, these laws require the "Good Samaritan" to 1. Act in good faith, 2. Not be deliberately negligent or reckless, 3. Act within the scope of his or her training, 4. Not abandon the person after starting to give care.
In addition to the coverage issue, the phrasing is interesting. In theory, tort law without a "Good Samaritan" statute should protect people who act as "a reasonable and prudent person."
May 21, 2008
Rodwin & Frank Debate Malpractice Insurance Premiums Research
On Saturday, Chris posted Professor Marc Rodwin's new article "Malpractice Premiums in Massachusetts, A High-Risk State: 1975 to 2005." As Chris predicted, the article has prompted a hot debate.
At Point of Law, Ted Frank criticized Rodwin's article, arguing that "the authors have cherry-picked comparison points," and further arguing that the "study has several fundamental methodological errors."
In a comprehensive post at Point of Law, Professor Rodwin has now responded. His response, in part, states:
Ted Frank accuses the authors of cherry picking. However, our study provides more reliable and comprehensive data than has ever been published before. It reveals rates by specialty of practice, dollar level of coverage and policy type. It reveals the distribution of discounts and surcharges to insurance rates, and the distribution of physicians purchasing different types of policies. It reveals trends over time, showing premium cycles. Ted Frank, in his own cherry picking points out premium rises, ignores their declines, and does not indicate long term trends.
Frank promises a rebuttal over the weekend. Stay tuned!
Sebok on Using Comparative Materials in a 1L Torts Class
Tony Sebok recently posted "Using Comparative Torts Materials To Teach First-Year Torts" on SSRN. The abstract provides:
This article is based on a presentation at the Workshop on Integrating Transnational Legal Perspectives into the First Year Curriculum at the AALS Annual Meeting in 2006. I argue that comparative torts materials can be used to teach tort concepts central to a first year torts class. To be sure, while I an advocate of comparative tort law as a subject of intrinsic interest and importance, this article is about using comparative tort materials to help students learn the law of their own jurisdiction. After offering a theoretical defense of this position, I offer two examples based on German cases involving non-economic damages.
May 20, 2008
Texas Reform Rules! Or Not! One of Those!
Brooks Schuelke, an Austin plaintiff's lawyer, has a post describing two almost simultaneous evaluations of Texas's medical malpractice liability reforms. The first, unsurprisingly positive, comes from one of the legislative architects of the reform, Joe Nixon, in a WSJ op-ed. The second, reaching distinctly different conclusions, was done by a local Fox affiliate.
Global Warming Litigation
David Dana (Northwestern) recently posted "The Mismatch Between Public Nuisance Law and Global Warming" on SSRN. From the abstract:
The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.
Over at Legal Theory, Larry Solum provides his comments on Dana's thesis.
On a related note, the June issue of The Atlantic has an article by Stephan Faris titled, "Conspiracy Theory," which explores the global warming litigation filed by the Alaskan city of Kivalina. (Via Walter Olson at Overlawyered; Olson also links to other reports on the suit). As noted back in February, Kivalina has filed suit against 20 oil, electric, and coal companies. The village, which is being forced to relocate because of flooding caused by global warming, accuses the companies of creating a public nuisance and also of conspiracy.
Becker & Posner on Consumer Protection
May 19, 2008
MySpace Suit Dismissal Affirmed
A minor (referred to as Julie Doe) sued MySpace after being allegedly sexually assaulted by someone she met through MySpace. Her complaint alleged that her assailant ought not to have been able to access her profile, but that he lied about his age. She alleged that MySpace's failure to ensure that he was in fact as young as he claimed was negligence. The suit was dismissed by the trial judge, and the Fifth Circuit affirmed last Friday.
Parents to Sue Bat Manufacturer
A couple of years ago, Steven Domalewski was struck and seriously injured when a baseball he'd pitched was hit back into his chest. His parents are now suing the bat manufacturer, as well as against the retailer and Little League Baseball. They contend that metal bats, given the increased velocity of balls hit with them, ought not be used by Little League players at all. The suit comes a year after New York City banned the bats' use in high school games.
May 18, 2008
Carnival Ride Collapses
Thanks to the many folks who contacted me about the collapse of a carnival ride in California; if you haven't heard about it, this story seems to be pretty thorough, with photos as well. An AP story indicates that an initial investigation suggests a failure in the spinning motion, resulting in the swing chains getting tangled and ultimately leading to the collapse (presumably due to a weight imbalance, but that's just my guess).
The ride is a Chance Yo-Yo; FlatRides.com has good photos. It's a very popular ride with, to my knowledge, a very good record.