Saturday, April 4, 2009
Yesterday's final panel of a fantastic conference included Keith Hylton (Boston), James Henderson (Cornell), and Stephen Sugarman (Berkeley). The panel was moderated by Simone Rose (Wake Forest). Prior to the discussion, Mike Green noted that land possessor liability was the only section in R3 that was not yet approved.
Hylton presented Tort Duties of Landowners: A Positive Theory. His goal was to describe, using economic theory, the purpose served by the common law status categories. He argued that the categories placed liability for defective land conditions on the party most likely to know of the risk or to avoid the risk. This served the function of regulating the scale of activities. For invitees, who are often visitors for an economic purpose, the landowner is more aware of the risks, and is in a better position to know what the potential costs of the invitee's visit will be (including potential injuries). If the burden of reasonable care is placed on the landowner, s/he will cancel those visits that are not cost-justified. Licensees, who are often social guests, are more likely to know of potentially defective conditions than are invitees. They often have preexisting knowledge of the host. Throwing the cost of injury on licensees forces them to make good decisions about accepting the invitation and the activities undertaken on the premises. Hylton noted he was not arguing for the retention of the categories. He simply stated we should be aware of the function they served, in order to determine what, if anything, should serve the function in lieu of the categories.
The second panel yesterday covered two topics: "Beyond Negligence: Intentional and Strict Liability Torts and An Integrated Third Restatement." Ellen Bublick (Arizona), Ellen Pryor (SMU) and Ken Simons (BU) presented. The panel was moderated by ALI Deputy Director Elena Cappella. Jerry Palmer (Palmer, Leatherman) and Ralph Jacobs (Jacobs & Singer LLC) provided commentary.
Pryor is the co-ordinating reporter for the remaining portions of R3. She discussed "Restatement Third of Torts: Coordination and Continuation" (pdf).
Pryor explained the "coordination project," which addresses the need to reconcile terminology in the 3 completed/nearly complete projects and ensure the same coordination in future projects. Pryor noted that the work is pretty much done on the 3 completed/near complete projects, though not yet approved. Pryor also noted the working group's agreement that the goal should be a full R3 of Torts that will completely supplant the R2. She then identified the major topics that should be included in the R3: accidental physical and emotional harm, products liability, apportionment, damages for accidental physical and emotional harm, intentional torts to persons, economic torts, torts relating to interests in land and water, and defamation & privacy.
The first three are complete or near-complete. Cappella noted that the first 6 chapters of the Liability for Physical Harms project will comprise the first volume of the R3, which will be voted on by the ALI in May.
Friday, April 3, 2009
Goldberg presented an article he co-authored with Zipursky, Intervening Wrongdoing in Tort: The Third Restatement's Unfortunate Embrace of Negligent Enabling . Goldberg voiced his concern that sections 19, 34, and 37 of R3, taken in combination, adopt the theory of enabling torts. The view behind enabling torts is that the negligent enabling of wrongdoing by another is the same thing as personal wrongdoing. Both are simple negligence. Goldberg objected that this can lead to a misattribution of responsibility. He was, however, quick to point out that it is not his position background actors should never be liable. Instead, he argued courts should rely on extant doctrines to handle them. In the paper, Goldberg and Zipursky analyzed cases and found evidence of both disconfirming practices (instances where the enabling theory should lead to liability, but does not) and false positives (cases where there is liability, but not based on enabling reasoning). In the former category, Goldberg cited the failure of negligent entrustment cases, in general, to go past the provider of the dangerous instrumentality to sellers and the widespread rejection of "social host" liability. In the latter category, Goldberg noted that in many cases where a background actor is found liable, it is because there are grounds for attributing the wrongdoer's conduct to her. Goldberg also noted that, in many of the cases, the background actor had an independent and affirmative duty to act reasonably.
Thursday, April 2, 2009
The Wake Forest Symposium on the Third Restatement opened today with a panel on "Duty in the Third Restatement." Jonathan Cardi (Kentucky), Mark Geistfeld (NYU), and Victor Schwartz (Shook Hardy) presented. The panel was moderated by Margaret Taylor (Wake Forest).
Cardi presented "A Pluralistic Analysis of the Therapist/Physician Duty to Warn Third Parties" (pdf).
In his talk, Cardi focused on two main points. First, he argued that the R3's "no position" on any duty by non-mental health physicians to warn foreseeable third parties was inaccurate as a descriptive matter. Cardi found "surprising unanimity" in decisions upholding a physician duty to warn, both as to patients and as to third parties. That said, Cardi agreed that, as a normative matter, the R3's "no position" on physician duty to warn was correct. Cardi concluded that neither instrumentalist theory nor corrective justice theory alone described this area of the law well.
Noting that the murder in Tarasoff took place two months after the threat was made to the therapist, Aaron Twerski(Brooklyn) questioned the causal link in the therapist cases, and asked Cardi whether causation should figure into the duty analysis. Cardi agreed that courts have weighed causation as part of their duty analysis in both the therapist cases and physician cases, but argued it should not be included as part of duty.
Also in the Q&A, John C.P. Goldberg (Harvard) noted that the overlap between corrective justice "reasons" and efficiency "reasons" for imposing duty, which Cardi acknowledged.
Geistfeld discussed "Social Value as a Policy-Based Limitation of the Ordinary Duty to Exercise Reasonable Care" (pdf).
Geistfeld discussed "Social Value as a Policy-Based Limitation of the Ordinary Duty to Exercise Reasonable Care" (pdf).
Thursday's second panel covered Negligent Infliction of Emotional Distress. Presenting were Martha Chamallas (Ohio State), Greg Keating(USC), Martin Matthews (Oxford), and Robert Rabin (Stanford). The panel was moderated by David Levi (Duke).
1. Rabin discussed Emotional Distress in Tort Law: Themes of Constraint. He noted that, given the somewhat amorphous nature of the tort, courts have constantly sought to cabin it. They have done so by using both instrumental constraints and the reinforcement of social norms. In the category of instrumental concerns, Rabin enumerated four, though he offered the caveatthat they overlapped. First, the floodgates concern (leading to the "zone of danger" test). Second, the concern over crushing liability (leading to no recovery rules in, for example, asbestos litigation and for "cancerphobia"). Third, the concern about disproportionate liability (leading to rules for bystander recovery). And, finally, the concern over chilling effects (inspiring constitutional limits in defamation). In terms of reinforcing social norms, Rabin noted that courts emphasize the fact everyday life can be harsh. Recovery is limited in many cases because of the social norm that people have to withstand a certain amount of friction in their daily routines. The line between what people are expected to tolerate and excessive incivility is illustrated by the "extreme and outrageous conduct" standard in intentional infliction of emotional distress (IIED) cases.
Ariel Porat mentioned that he would include a contractual relationship between the parties as another limitation, and Rabin agreed with him, telling him he had already added that to his list. Ken Simons questioned the floodgates limitation, asking whether someone pay for all of the damage they had caused. He suggested the possibility of paying more people at lower levels of compensation. Rabin responded that no-fault schemes were based on that premise.
The third panel on Thursday covered the vast topic of negligence. Kenneth Abraham (Virginia), Ariel Porat(Tel Aviv/Chicago), and Aaron Twerski (Brooklyn) presented. The panel was moderated by Lance Liebman (Columbia/Director, ALI).
Abraham discussed his article Custom, Non-Customary Practice, and Negligence. The rule on evidence of custom (either compliance with or departure from) in tort cases is that it is admissible, but not dispositive. Abraham noted that "practice evidence," or evidence of practices in an industry that are not sufficiently widespread to qualify as custom, is, by implication, treated differently. Evidence of the incidence of the practice--how many actors follow the practice--is inadmissible. Abraham answered three questions about custom. First, why do we have a rule on custom? The primary explanation is historical, and the current custom rule was selected over having custom either conclusively establish reasonable care or be excluded as irrelevant. Second, what makes custom relevant? Abraham noted several traditional answers, such as proof of feasibility, and added two of his own. Custom is relevant because it plays a role in educating the jury and it prevents jurors from drawing unwarranted inferences (that the absence of custom evidence would inspire). Third, how should practice evidence be treated? Abraham covered the reasons for and against broader admissibility of practice evidence. He noted his assessment was inconclusive because of a tension in our understanding of negligence itself. Practice evidence (and custom) fits nicely into an understanding that negligence is based on regularly recurring situations whose risks can be addressed by the same precaution. On the other hand, it is less cohesive with an understanding of negligence cases as being very fact-specific. In other words, Abraham notes our view of the usefulness of practice evidence and custom depends on whether we prefer negligence as a body of fixed rules or flexible standards.
In the final panel of today, David Robertson (Texas) and Joe Sanders (Houston) discussed Causation in the Third Restatement. The panel was moderated by Wendy Parker (Wake Forest). Don Cowan (Ellis & Winters) and Steve Gold (Rutgers) provided commentary.
Robertson presented "Causation in the Third Torts Restatement: Three Arguable Mistakes" (pdf).
Robertson noted three disagreements with the R3 in the area of factual causation: (1) the shift from the substantial factor approach of R2's Section 432 to the causal set approach of the R3's Section 27; (2) the move of trivial contribution cases to proximate cause in Section 36; and (3) new comment d, which Robertson views as "jettisoning" the line of cases based on Anderson v. Minneapolis, St. P. & S.S.M. Ry., 179 N.W. 45 (Minn. 1920).
In the Q&A, Jane Stapleton (Texas) was "troubled" by Robertson's approach, and did not believe that rejection of the causal set approach provided a coherent approach where undifferentiated inputs contributed to the one harm.
In the Q&A, Bill Powers (Texas and co-Reporter for the R3) responded to Roberston's point about Anderson. In his view, causation is not a fact that exists in the world, it is the way we think about the world to handle every day problems. Mike Green (Wake Forest and co-reporter for the R3) likewise expressed his concern that we should not use common every day notion of "cause."
Ben Zipursky (Fordham) commented in the Q&A that the R3 does keep the substantial factor standard, but as part of proximate cause in Section 36. As Zipursky explained, "trivial" contributions are really the converse of "substantial:" contributions.
Sanders discussed "The Controversial Comment C" (pdf).
Sanders took on the issue of causation in toxic tort cases. First, Sanders explained the genesis of the controversy as whether to conceptualize specific & general causation as elements of the tort or as indicia of causation to consider. Sanders noted that the R3 takes the position that specific & general causation are not elements, under which each need to be proven. While he noted the truth of the position that there is but one causation element, he argued, that the R3 misleads because, as de facto matter, both need to be proven. Second, Sanders looked at the R3's distinction between admissibility (an evidence question) and sufficiency (a torts question). Disagreeing with the R3, Sanders viewed the issue as a "torts-evidence emulsion," where the two things never come apart. Sanders noted the increasing role of science in decisions on causation.
In his commentary, Gold first addressed Sanders' point on specific vs. general causation. Gold noted that comment c was controversial because it obliquely suggested that the plaintiff might not need to prove both specific and general causation.
Wednesday, April 1, 2009
Phoebe Haddon, a professor at Temple University Beasley School of Law, has been named Dean at the University of Maryland School of Law. Haddon joined the Temple faculty in 1981, and taught torts, products liability, constitutional law, and a seminar on race and ethnicity. She is also a co-author of the torts casebook, "Tort Law: Cases, Perspectives and Problems" from LexisNexis.
Congratulations to Professor Haddon and Maryland!
Tuesday, March 31, 2009
Chris and I will be attending the Symposium on the Restatement Third of Torts at Wake Forest this Thursday and Friday. Unfortunately, Bill can't join us because he is coaching WNEC's team for the National Products Liability Moot Court Competition being held this week, too.
Chris and I will be posting on the various panels throughout both days. If you are also attending, please get in touch as we'd love to get together.
According to the bill history, the Texas Senate passed SB 39 (pdf) last Monday. The bill would require insurance companies to cover routine medical care for insureds enrolled in clinical trials. Two companion bills (HB 390 and HB 2005) are pending in the Texas House. Supporters describe the bill as a "boon" for the state's bio-science industry, while opponents claim it could drive up health care costs for employers. The Austin Business Journal has more.
Monday, March 30, 2009
The Orlando paper published an interesting overview of litigation against Florida theme parks, focusing on the fact that all of the ride-related cases settle (which is nothing new, nor is it limited to Florida) and the relative lack of information about injuries on rides in that state.