July 5, 2008
Ferris Wheel Incident at Hersheypark
In honor of Bill's amusement park specialty, here is a "near-miss" incident at our local favorite, Hersheypark, from last week. The article's first paragraph:
A Ferris wheel rider in Hersheypark Saturday evening didn't like the conversation he was having with his female companion, so he got off the ride -- while it was moving.
July 4, 2008
Happy Independence Day
What a country! (As the late Tim Russert would have said.)
Baker, Kritzer, & Vidmar on Jackpot Justice
Tom Baker (Connecticut/Penn), Herbert Kritzer (William Mitchell), and Neil Vidmar (Duke) have posted Jackpot Justice and the American Tort System: Thinking Beyond Junk Science on SSRN. Here is the abstract:
In 2007 the Pacific Research Institute released a report, "Jackpot Justice: The True Cost of America's Tort System," that is widely available on the internet. The conclusion of the report is that America's tort system costs $865.37 billion annually, amounting to an "annual price tag, or 'tort tax' for a family of four in terms of costs and foregone benefits" of $9,827. As our report will demonstrate, the conclusions of Jackpot Justice are without scientific merit and present a very misleading picture of the American tort system and its costs.
Research on the tort system's efficiency, its fairness and other issues are legitimate topics of empirical inquiry and are to be encouraged. Indeed, the three authors of this report have collectively devoted many years to empirical investigation of the tort system. (Summary biographies of the authors appear at the end of this report.) However, when research findings, such as those in Jackpot Justice, are disseminated to the public and are intended to have effects on legislative and other public policy institutions, they deserve careful scrutiny, including close examination of the validity of the theoretical underpinnings, the methodologies used, the quality of the data reported, and the conclusions that are drawn from the analyses. Scrutiny of Jackpot Justice in this way reveals many flaws that strongly contradict the conclusions that the Pacific Research Institute authors have made.
Our report has four sections. In Section I we draw attention to Jackpot Justice's misleading claims about its scientific approach to the data and the claimed scholarly consensus that underlies their research. In section II we present a detailed critique of their analyses and conclusions. In Section III we address a missing part of the equation that Jackpot Justice uses to speculate about the "tort tax": the cost of torts to victims. The analyses we present in this section are simply illustrative of the kind of data that would be needed to assess the costs and benefits of the tort system. We do not claim that our rough estimates are accurate, but they help to point to the reasoning flaws in Jackpot Justice. In section IV we offer examples that are intended to counter general public misperceptions of three topics that are central targets of those who argue the tort system is unfair: medical malpractice litigation, products liability, and punitive damages. These examples are intended to put a concrete face on some of the technical issues discussed in the preceding sections of our report.
A central message of our report is that the tort system needs to be viewed in terms of its benefits as well as its costs. Moreover, our report draws attention to the social and political choices involved in policies directed toward the goals of promoting responsibility, preventing injuries and compensating victims of negligence. We do not contend that the American tort system is flawless. But it is important to be aware that the corporate critics of the tort system frequently use the same tort system in their disputes with other businesses.
(Via Solum/Legal Theory Blog)
July 3, 2008
Hanson & McCann on Situationist Torts
Jon Hanson (Harvard) and Michael McCann (Boston College) have posted Situationist Torts on SSRN. Here is the abstract:
This Article calls for a situationist approach to teaching law, particularly tort law.
This new approach would begin by rejecting the dominant, common-sense account of human behavior (sometimes called dispositionism) and replacing it with the more accurate account being revealed by the social sciences, such as social psychology, social cognition, cognitive neuroscience, and other mind sciences.
At its core, situationism is occupied with identifying and bridging the gap between what actually moves us, on one hand, and what we imagine moves us, on the other. Recognizing that gap is critical for understanding what roles tort law (among other areas of law) serves. Beyond that, a situationist approach helps to make clear the subconscious tendencies and otherwise unappreciated external forces that have shaped tort law and tort reforms. A situationist perspective on tort law, this Article argues, also has significant implications for how tort law is taught.
The Langdellian model of teaching, which has monopolized the law school classroom since the late 19th century, has been the brunt of increasing criticism over the past several decades. Most critics emphasize that the casebook method forces the round complexities of law, lawmaking, and human behavior into the square holes of antiquated legal categories and idiosyncratic appellate decisions. A number of leading law schools are now dramatically reshaping their curricula to address such concerns.
Simultaneously, legal theory is in the midst of its own revolution as legal scholars are beginning to reject the hard-core dispositionism at the foundation of law and to incorporate, or at least acknowledge, emerging insights from the mind sciences.
The curricular and theoretical renovations underway represent what we would call a turn toward the situationist. Those trends have created a hospitable climate for the emergence of a more robust situationist approach to law and law teaching. This Article describes not only those trends and their implications, but also some specifics regarding how situationist torts would be taught and what a situationist torts casebook would look like.
(Via Solum/Legal Theory Blog)
July 2, 2008
Updated: Updates on Six Flags Over Georgia
Couple of things:
The park is being required to enhance its signage and fencing around the ride; officials seemed to emphasize, however, that they considered the prior fencing and signage to be adequate. The new signs have to include the phrase "extreme danger." Update: To see the Department of Labor's press release, go here.
Also, the 911 call is available; the witness said that the boy "jumped the fence."
His cousin (who was with him) confirmed that, saying that they'd taken a break in the parking lot and jumped two fences to get back into the park.
Update 2: The police department's press release is here (scroll down).
Lead Paint Manufacturers Win in Rhode Island
Yesterday, the Rhode Island Supreme Court rejected the State's public nuisance claim against the lead paint industry. A copy of the decision is available here [large pdf].
Sebok on Exxon Decision
In his latest FindLaw column, Tony Sebok discusses the Supreme Court's punitive damages decision, Exxon v. Baker. Sebok points out that the Ninth Circuit's punitive to compensatory ratio was already within the presumptive "single digit" ratio set by State Farm. Sebok criticizes the Court's rejection of the Ninth Circuit's award as well as the Court's 1:1 ratio solution as "ad hoc." Sebok also makes some interesting points about the voting blocs in Exxon:
BMW’s majority, led by Justice Stevens, included Justices Kennedy, Souter and Breyer. These four were part of the majority in State Farm. But now look at the majority in Exxon: Souter, Roberts, Kennedy, Scalia and Thomas. Stevens and Breyer joined the dissent.
July 1, 2008
Please Disregard That "We're Not Blaming the Park" Thing
The family of the young man killed at Six Flags Over Georgia had said pretty emphatically that they weren't blaming the park (here ("All we know is that we don't blame anybody."). But, well, now they've got a lawyer:
"Attorney Lamar Flatt thinks warning signs and fences placed near the ride weren't enough to prevent this tragic death, citing the death of a maintenance worker who was killed by the same ride in 2002."
Just as a reminder, there was at least one six-foot fence (and reports indicate two), clear signs, and, let's not forget, a multi-ton very loud steel roller coaster all rather prominent in the area. (The manufacturer of the ride, B&M, makes coasters that are sufficiently loud that the phrase "B&M roar" came into existence.) As for the death of the maintenance worker, one assumes that he had access other than over a fence and that the error was in failing to lock out the ride before entering the area rather than a failure of warnings or signage. (A better precedent for the attorney would be the similar incident at a similar ride in the UK or the 1998 death at Paramount's Great America in California, where a young man was killed when he entered the ride area to retrieve his wife's hat.)
But it's hard to see what more could be expected. Razor wire? A shark-infested moat with sharks with lasers?
Update: Welcome Overlawyered readers. Also, please read the comments for some clarification.
First Amendment Precludes Tort Claim for Emotional Distress Caused by Exorcism
Last week, in Pleasant Glade Assembly of God v. Schubert [pdf], the Texas Supreme Court held that the First Amendment precluded a claim for intentional infliction of emotional distress and mental anguish by a young woman who suffered post traumatic stress after a "laying of hands" by church leaders. (The opinion never uses the word "exorcism.").
The plaintiff was awarded $300,000 by a jury, but the Texas Supreme Court reversed and dismissed the suit. The court was splintered in its decision with three dissents by various Justices. The case turned on the fact the plaintiff did not claim any physical injuries, and her psychological expert testified that he could not separate "the damages resulting from [the plaintiff's] physical restraint and the psychological trauma resulting from the discussion of demons at the church." (Op. p. 14). The majority concluded that "the imposition of tort liability for engaging in religious activity to which church members adhere would have an unconstitutional 'chilling effect' by compelling the church to abandon core principles of its religious beliefs." (Op. p. 15).
Please Do Not Place the Sharp Pointy Thing In Your Eye Socket, Thanks
Speaking of potential overwarning at amusement parks (well, Ted was, anyway), I snapped this shot at the wonderful Holiday World amusement park in Santa Claus, Indiana. This is outside the Voyage roller coaster (which, I proudly note, my nine-year-old daughter rode very bravely).
Some background: several years ago, a young woman died at Holiday World after evidently doing exactly what is described in that warning sign -- it appeared that she intentionally evaded the restraints in order to get more "air time." Her family sued; after a number of procedural matters went poorly for the plaintiffs (mostly choice of law issues that ensured that comparative fault would be considered even in the strict liability case, and that excluded punitive damages), the case settled for an undisclosed amount. You can read a lot more about it here.
And, incidentally, they do also have a number of much more general warning signs.
ALI-ABA Webcast on Exxon
ALI-ABA is presenting a webcast/telephone seminar on Exxon: The Supreme Court Rules on Preemption and Punitive Damages on Thursday July 17th from 12pm to 1pm (EST). Panelists include Andy Frey (Mayer Brown), Professor Alexandra Klass (Minnesota), and Professor Jeffrey Stempel (UNLV).
June 30, 2008
Abu Ghraib Detainees Sue Contractors
June 29, 2008
Update on Six Flags Story
Today's reports suggest that the boy had left the park and was attempting to get back in without going to the front gate. His father says that they expect to have their own investigation, but that they "are not blaming the park."