March 14, 2009
Hylton on Duty in Premises Liability
Keith Hylton (Boston) has posted on SSRN Tort Duties of Landowners: A Positive Theory. Here is the abstract:
One of the most controversial areas of modern tort law is that of the duty of landowners toward people who visit their land. The common law divided land visitors into three types: invitees, licensees, and trespassers. The highest duty of care was owed to the invitee and the lowest to the trespasser. The distinctions led courts to hand down harsh decisions and to draw formal lines between the categories that seemed to defy common sense at times. This paper explains the incentive-based function of the classical landowner duties. I will argue that the classical duties served useful regulatory functions. The most important was regulating the overall scale of injuries by imposing the risk of latent defective conditions in property to the party who is most likely to be aware of the risk or to take action to avoid the risk.
March 13, 2009
Personal Injury Roundup No. 28 (3/13/09)
Last week was Chris's spring break edition of the Roundup. This week it's mine; I am, depending on when you read this, either en route or at South by Southwest in Austin, Texas. Any central Texas readers who want to get together, send an e-mail.
Reform, Legislation, Policy
- Turkewitz on NY's no-fault law (Turkewitz)
- Still more on CPSIA fallout (Overlawyered)
- Loser pays gone in Georgia (Atlanta Business Chronicle)
- "Sorry Works" having an audio conference on its results at the University of Illinois Medical Center (Sorry Works)
- Suit filed in Denver crash (9news.com)
- Suit seeks to force disclosure of cleaning product ingredients (NYT blog)
Trials, Settlements & Other Ends
- A defamation claim with a plaintiff's verdict but no damages (NY Injury Cases Blog)
- Maine strip search case settles for $290K (Bangor Daily News)
- Liptak on Levine v. Wyeth (NYT)
March 12, 2009
King on Parody and Defamation
Joseph King (Tennessee) has added to his body of defamation work with Defamation Claims Based on Parody and Other Fanciful Communications Not Intended to Be Understood as Fact, 2008 Utah L. Rev. 875. Whether parodies are actionable as defamation depends on whether the statement is deemed factual (actionable) or protected opinion (non-actionable). In the article, King cautions courts against determining the statement as a whole is protected opinion, and, thus, failing to recognize potentially actionable portions of the statement.
King proposes a two-step process for distinguishing actionable from non-actionable statements. First, he identifies four core bases courts use to determine if a statement is protected opinion:
A statement will usually be deemed protected opinion if  it does not contain a provably false factual connotation;  if it cannot reasonably be understood as suggesting the occurrence of actual events;  if it consists of rhetorical hyperbole or an obvious epithet; or,  if it does not express or imply undisclosed, unassumed, or unknown (or not generally well known) defamatory facts.
King suggests courts use these four bases as a guide for analysis.
Second, he proposes courts carefully examine the statement's content:
[W]ith respect to the specific events expressly described in the parody, the court should determine whether the allegedly defamatory events expressly depicted in the parody were protected opinion.
[T]he court should also examine the possibility that imbedded defamatory facts were implied in the parody.
Loser-Pays Loses in Georgia
A bill introduced on behalf of Georgia Governor Sonny Perdue would have created a loser-pays system for cases dismissed at the earliest possible stage. However, that portion of the bill was removed as the Georgia Senate unanimously passed a bill that only tinkered with the discovery process. The Atlanta Business Chronicle has the details.
March 11, 2009
Burris to Direct Public Health Law Research
Temple Law TortsProf Scott Burris will direct a new $19 million program focusing on the intersection of law and public health:
Temple University 's Beasley School of Law has been selected by the Robert Wood Johnson Foundation to manage a new $19 million national program that will fund interdisciplinary research exploring legal and regulatory solutions to pressing health challenges such as chronic diseases, and health emergencies including floods, bioterrorism and epidemics.
Burris and fellow (quasi-retired) Temple TortsProf Frank McClellan co-founded and are co-directing Temple Law's Center for Health Policy, Law, and Practice. (Via Hoffman/CoOp)
A Modern Statute on Alienation of Affections/Criminal Conversation
March 10, 2009
British Sisters Sue Thomas Cook After Egyptian "Holiday Nightmare"
There's a torts exam in here somewhere:
Two sisters who were struck down with an acute gastric bug on a holiday in Egypt are taking legal action against tour operator Thomas Cook. Diane Harris and her sister Wendy Greenwood, from Batley, travelled to the luxury Marina Lodge Hotel in Port Ghalib last December for what they thought would be a relaxing break in the sun. But after a few days at the four star Red Sea resort, the two sisters were stricken with diarrhoea, stomach cramps, vomiting and high temperatures. Miss Greenwood, 37, was so ill she had to be put on an intravenous drip by hotel doctors, and both sisters say they remained ill for weeks on their return to the UK and had to have further medical treatment. Mrs Harris, 50, claimed she was horrified by the standards of hygiene in the hotel. "The cleaner used the same brush to clean the toilet and then clean the sink," she alleged.
From the Yorkshire (U.K.) Post.
New Zealand Law Commission Paper on Privacy
The New Zealand Law Commission has released a 300 page "paper on privacy." Some of the issues being debated include:
- Is there a value in a tort of invasion of privacy by publicity given to private facts? If so, should it be left to the common law?
- Should there be a tort of intrusion into a person’s seclusion? If so, should its development be left to the common law or should it be introduced by statute?
- Should there be any civil or criminal liability for certain uses of surveillance devices when they are used outside the law enforcement arena?
You can download the paper and learn more at Media Law Journal.
March 9, 2009
Drug Effect Compensation Fund Proposed
Congress Considering Reversing Device Preemption
In the wake of the Levine case, Congress is now considering legislation that would reverse Riegel v. Medtronic and eliminate preemption for medical device tort lawsuits. Some views: Nan Aron (Alliance for Justice), Beck & Herrmann (Drug & Device Law Blog), Jane Akre (Injury Board), Sean Wajert (Dechert/Mass Tort Defense Blog).
March 8, 2009
Loss in Lawsuit for Errant Basketball
In August 2007, a couple visited a pier-based amusement park in Ocean City, which included a basketball game among its prize-based attractions. A shot bounced off and, in what the husband called in deposition testimony a "one-in-a-million shot," the ball hit the wife, exacerbating a past spinal condition and allegedly resulting in permanent disability. They sued, alleging failure to warn or protect against such bounces, but last week, a jury found for the park.
NJ Jury Awards $11M in Oral Surgery Med Mal Case
On Friday, a jury in New Brunswick, NJ awarded $11 million in damages to the family of a man who died 12 hours after having his teeth removed:
The jury deliberated less than three hours over two days before finding that [the oral surgeon] committed medical malpractice when he failed to get clearance from Woodbridge patient Francis Keller's medical doctor to remove his wisdom teeth after Keller told him he had an impaired immune system.