TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, November 10, 2009

Court Dismisses Consumer Fraud Claims Against Sears

The Northern District of Illinois has dismissed with prejudice consumer fraud claims in a putative class action against Sears based on an alleged design defect that prevented adequate water drainage and proper self-cleaning.   The court held that plaintiffs' consolidated complaint failed to meet Rule 9(b)'s heightened pleading standards.   Mass Tort Defensehas more (including a copy of the decision).


November 10, 2009 in MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

"Tort Bench and Jury Trials in State Courts, 2005"

The DOJ's Bureau of Justice Statistics has released a new civil justice reports on "Tort Bench and Jury Trials in State Courts, 2005."  This report

[d]iscusses tort cases concluded by a bench or jury trial in a national sample of jurisdictions in 2005. Topics include the types of tort cases that proceed to trial, the differences between tort cases adjudicated by judges and juries, and the types of plaintiffs and defendants represented in tort trials. The report also covers plaintiff win rates, punitive damages, and the final award amounts generated in tort trial litigation. Lastly, trends are examined in tort trial litigation in the nation’s 75 most populous counties, based on comparable data in 1996, 2001, and 2005.

Highlights include the following:

  • Together, bench and jury trials accounted for an estimated 4% of all tort dispositions in 2005.
  • Punitive damages were sought in 9% of tort trials with plaintiff winners. The median punitive damage award was $55,000.
  • In the nation’s 75 most populous counties, the number of tort trials declined by about a third between 1996 and 2005.



November 10, 2009 in Current Affairs, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 9, 2009

Guest Blogger John C.P. Goldberg: What's Wrong with Torts?

What’s Wrong with Torts?


Torts are wrongs.  The word “tort” means “wrong.”  A standard definition of a tort is: “a civil wrong, other than breach of contract, for which the courts will provide a remedy.”   And yet the particular sense in which torts are wrongs turns out to be difficult to pin down.  Likewise, the failure of many modern torts scholars to grasp the distinctive characteristics of tortious wrongs, as opposed to other kinds of wrongs, has produced a good deal of confusion. 


This, at any rate, is the argument of a forthcoming article that Ben Zipursky and I have co-authored.  In this blog entry, I will briefly describe one of our basic claims.  A later blog will describe others.  Of course, any faults in this exposition are chargeable to me alone.  


The Moral/Legal Dilemma 


When we think of “wrongs” we might first think of conduct that is blameworthy for violating a moral norm.  To swindle someone, or gratuitously strike him, is a wrong in this full-blooded sense.  Are torts wrongs of this sort?  Many are, but not all.  Some conduct is tortious notwithstanding the absence of culpable conduct.  Think of the faultless trespass that generated liability in Vincent v. Lake Erie.  Or an injury-producing momentary lapse committed by an inveterately clumsy person. 


One could try to write off these examples as outliers, but they are mainstream.  As such, they seem to undercut the possibility of torts being moral wrongs.  So torts must be “legal wrongs.” And yet the adjective “legal” in the phrase “legal wrongs” seems to suggest that, if torts are wrongs, they are wrongs merely by fiat – that is, only because a lawmaker has decided to attach liability to certain actions.   So understood, the concept of a legal wrong seems vacuous.


Many tort scholars seem to have been gripped by the moral/legal dilemma.  Among them, the dominant response has been to embrace the dilemma’s second horn and treat torts as merely nominal wrongs.  In turn, they argue that tort law is not law that articulates wrongs and permits responses to them, but law that allocates losses in accordance with a notion of fairness or efficient deterrence. 


Our view, by contrast, is that the dilemma is a false one.  Torts are legal wrongs, not moral wrongs.  But it doesn’t follow that anything can count as a tort.  We don’t mean to deny that lawmakers enjoy the power to regulate irrespective of whether someone has done wrong.  (A tax on permissible actions, such as home ownership, is not wrongs-based: the homeowner is not being made to pay for violating a directive to avoid injuring others in certain ways.)  Our point is that there is a cogent and non-trivial conception of “legal wrong” that permits torts to be defined as legal wrongs without thereby sucking the content out of the idea of a wrong.


What is this conception?  Here’s a first stab.  Each tort is a legal wrong in that it: (i) violates a directive issued by a competent authority that (ii) identifies acts toward others (or failures to act) that (iii) are unacceptable insofar as they interfere with (or fail to preserve) certain important interests of others.  A battery is a violation of a judicial directive not to touch others in ways that tend to be harmful, or that are commonly regarded as offensive.   Negligence is primarily the violation of a directive not to cause physical harm to others through conduct that is careless toward them.  A trespass is an intentional touching of land that interferes with the owner’s right of exclusive occupancy.   These torts can sometimes be committed without a moral wrong having been done, yet  they are always legal wrongs because they are always violations of directives of a certain sort.


Just to be clear, our claim is that torts are one (important) species of legal wrong, not the only one.  (Crimes are another.)  Next time I’ll try to refine our account by identifying some of the hallmarks of tortious wrongs.  


--John C.P. Goldberg

Professor of Law

Harvard Law School


November 9, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Saturday, November 7, 2009

Judge Requests Mass Tort Status for New Jersey Birth Control Suits

New Jersey Judge Donald Volkert Jr. has requested mass tort status for the products liability suits involving the birth control pills Yaz, Yasmin and Ocella.  In his request to the Administrative Director of the Courts, Judge Volkert noted the large number of these cases already pending in NJ state courts, as well as the consolidation of pending federal suits into a federal MDL in Illinois.   The NJ Law Journal (via has more. 


November 7, 2009 in MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, November 6, 2009

Personal Injury Roundup No. 57 (11/6/09)

Reform, Legislation, Policy

  • San Franciso City Attorney does FDA's job? Kellogg's withdraws "immunity banner" from sugary cereals following letter demand from City Attorney.  (TortsProf, The Atlantic).
  • Senators Graham and Chambliss propose "loser pays" rule.  (Torts Prof, Atlanta Journal Constitution, Pop Tort)
  • Health care reform bills include sunshine provisions regarding relationships between doctors and drug companies.  (NY Times)
  • FDA issues draft guidance on what constitutes a tobacco product "ingredient." (FDA Law Blog)

New Lawsuits

  • Robber can sue store he robbed for injuries sustained in robbery.  (CBS Crimesider, MSNBC/AP)
  • Family of Connecticut woman injured by neighbor's chimp seek permission to sue state.  (BBC)
  • Parents of deceased college sophomore sue for Clark Atlanta University for lack of security.  (Atlanta Journal Constitution)
  • Family of Texas student files suit against fraternity for hazing that allegedly caused son's death.  (Fox Houston)
  • Chicago deli sued over turkey sandwich.  (Jonathan Turley)

Trials, Settlements and Other Ends

  • Radio station liable in "Hold your Wee for a Wii" contest.  (Injured)
  • Jury awards $2.5 million in Baltimore lead paint case.  (Bernabe)


  • IL Supreme Court on subsequent remedial measures.  (TortsProf)
  • Texas Supreme Court on damages in legal malpractices actions.  (Day on Torts)
  • Florida appellate court reverses accutane verdict for lack of causation evidence.  (Mass Tort Defense)




November 6, 2009 in Roundup | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 4, 2009

Monday's Guest Blogger: John C.P. Goldberg


John Goldberg is Professor of Law at the Harvard Law School.  From 1995 until 2008, he was a faculty member of Vanderbilt Law School, where he served as Associate Dean for Research (2006-08). Professor Goldberg is an author of a leading tort law casebook, Tort Law: Responsibilities and Redress, now in its second edition. He has also published more than 30 articles and essays. A member of the editorial board of Legal Theory and a senior editor of the Journal of Tort Law, he is serving in 2009 as Chair of the Torts and Compensation Section of the Association of American Law Schools.

After receiving his J.D. in 1991 from New York University School of Law, Professor Goldberg clerked for Judge Jack Weinstein of the Eastern District of New York and for Supreme Court Justice Byron White. He earned his B.A. with high honors from the College of Social Studies, Wesleyan University. He also holds an M. Phil. in Politics from Oxford University and an M.A. in Politics from Princeton University. 

An expert in tort law, tort theory, and political philosophy, Professor Goldberg is probably best known for his creation and espousal, with Professor Benjamin Zipursky (guest blogging on November 23!), of the "civil recourse" theory of torts.


November 4, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Senators Graham & Chambliss Introduce "Loser Pays" Legislation

United States Senators Lindsey Graham (R-SC) and Saxby Chambliss (R-GA) introduced legislation on Monday that would require the loser to pay the winner in some medical malpractice suits. 

The Fair Resolution of Medical Liability Disputes Act of 2009 would require initial nonbinding arbitration for med mal claims prior to going to court.  Either party could reject the arbiter's decision and proceed to trial.  However, by so doing, the loser-pays mandate is activated.  If the court judgment is less favorable than the arbiter's decision for the party rejecting the arbiter's decision, the rejecting party must pay the opponent's attorney's fees from the date of the arbiter's decision.  There is an exception if the court finds such payment would be "unjust."  The goal is to reduce the number of "frivolous" lawsuits.  The story, courtesy of the Charleston Regional Business Journal, is here.


November 4, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

A European Symposium on Guido Calabresi

Larry Solum at Legal Theory Blog is reporting about a symposium dedicated to the work of Guido Calabresi.  Here are the papers:

Roger van den Bergh (Erasmus University Rotterdam (EUR) - Erasmus School of Law), Introduction: The Impact of Guido Calabresi on Law and Economics Scholarship (Erasmus Law Review, Vol. 1, No. 4, 2008)

Roberto Pardolesi and Bruno Tassone (Libera Università degli Studi Sociali (LUISS) Guido Carli), Guido Calabresi on Torts: Italian Courts and the Cheapest Cost Avoider (Erasmus Law Review, Vol. 1, No. 4, 2008)

Claus Ott and H-B. Schafer, The Dichotomy between Property Rules and Liability Rules: Experiences from German Law (Erasmus Law Review, Vol. 1, No. 4, 2008)

Ben Depoorter (University of Miami - School of Law), Property Rules, Liability Rules and Patent Market Failure (Erasmus Law Review, Vol. 1, No. 4, 2008)

Michael G. Faure (University of Maastricht - Faculty of Law, Metro), Calabresi and Behavioural Tort Law and Economics (Erasmus Law Review, Vol. 1, No. 4, 2008)


November 4, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 3, 2009

Iowa Supreme Court on Subsequent Remedial Measures

The Iowa Supreme Court recently addressed the subsequent remedial measures doctrine.  Under this evidentiary rule (adopted in Iowa and other states), evidence of subsequent remedial measures cannot be used to prove negligence but can be used to prove strict liability.  The court held "that evidence of subsequent remedial measures, which a party seeks to introduce in an action based on a design defect claim, a failure to warn claim, or a breach of warranty claim brought under either theory, is not categorically exempt from exclusion . . . because these claims are not strict liability claims. Instead, trial courts must analyze the reason a party seeks to admit such evidence. . . . "  

A copy of the opinion is available here.   More on this decision from Mass Tort Defense


November 3, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (0)

San Francisco vs. Snap, Crackle & Pop

Cocoa Krispies  San Francisco's City Attorney has sent a warning letter to the Kellogg Food Company about the big "Now Helps Support Your Child's Immunity" banner on its Rice Krispie's cereals.   The City Attorney expresses concern that the "Immunity Claims may mislead parents into believing that serving this sugary cereal will actually boost their child's immunity," and asks Kellogg's to provide evidence substantiating the claims. 

A copy of the letter is available here (pdf), and you can read more in The Atlantic.

Thanks to Tony Sebok for the heads-up on this one.


November 3, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, November 2, 2009

Solicitor General's Views Sought in Alien Tort Statute Case

The SCOTUSBlog has the relevant links.  The issue:

Whether Alien Tort Statute (ATS) jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the “high bar to new private causes of action” under the ATS.

(Note: I initially titled this as a cert. grant.  It wasn't.)


November 2, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sex Offenders, Disclosure, and Tort Law

Shelley Ross Saxer (Pepperdine) has posted to SSRN 'Am I My Brother's Keeper?':  Requiring Landowner Disclosure of the Presence of Sex Offenders and Other Criminal Activity.  Here is the abstract:

Under common law principles, landowners do not have a duty to protect or warn others against the criminal activities of others that occur on their premises. However, the modern trend in tort law has been to hold landowners liable for injuries occurring on their premises if the criminal activity is reasonably foreseeable and, in some jurisdictions, also imminent. While quite a bit of case law has developed over recent years as to a landowner’s liability for criminal acts that have occurred on the premises, a landowner’s liability for failing to disclose potential harm from criminal activity to prospective tenants or property buyers has not been established. It has also not been established whether a landlord has the duty to screen prospective tenants to protect other tenants from criminal behavior or a duty to work other tenants of known criminal propensities of an existing tenant. Finally, it is not clear whether a landlord or landowner may refuse to rent or sell to a particular individual or disclose concerns about the criminal propensity of certain individuals to other tenants or property owners without being subject to tort liability or violations of fair housing act statutes.

This Article explores the landowner liability issues of whether to disclose or warn others about future criminal activity that might occur on the premises in the future. Part II describes the historical development and recent trends in tort law of premises liability for the criminal acts of others. Part III addresses the issue of whether landowners have a duty to disclose or warn of premises susceptibility to criminal acts. Megan’s Law legislation, dealing with community notification about the presence of convicted sex offenders, raises a particular troublesome disclosure issue. Part IV examines landowner liability for refusing to rent or sell to individuals with criminal backgrounds or for disclosing to others the criminal propensity of a third party. The Article concluded by suggesting that landowners who are aware of reasonably foreseeable criminal activity against occupiers of their premises should have a duty to disclose this information to either prospective or existing occupiers, particularly when there is a potential danger of harm to children.


November 2, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)