TortsProf Blog

Land Possessor Liability in Restatement Third

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. 

Henderson discussed The Status of Trespassers on Land.  He began by noting that he is a process person.  In his on work on the Restatement of products liability, Henderson saw his role as creating a robust motions practice.  In short, he is opposed to legal uncertainty.  He stated that, unlike R3, he would probably have retained the common law status categories.  Given that the categories were not retained, Henderson focused his remarks on R3's use of the term "flagrant trespassers."  The only vestige of the categories remaining in R3 is a type of trespasser deemed flagrant.  The idea is to separate "casual" trespassers from those displaying serious disrespect for property rights.  Henderson argued that the term flagrant was insufficiently defined. 

Sugarman presented Land Possessor Liability in the Restatement Third of Torts:  Too Much and Too Little.  In contrast to Henderson, Sugarman prefers standards to rules.  He argued that the entire section devoted to land possessor liability was unnecessary because traditional negligence principles apply.  In other words, these issues can be resolve with the principles put forth in sections 7A and 7B.  He further argued that an advantage of grouping all negligence issues in the same place is that it would allow us to see and think about common problems in various fact scenarios.  Sugarman offered the example of determining when a warning is sufficient versus having to actually repair something.

Commentary was provided by George Christie (Duke) and Linda Stephens (Judge, North Carolina Court of Appeals). 

You can listen to the panel discussion here.

--CJR

Beyond Negligence: Intentional and Strict Liability in the Third Restatement

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.  

Bublick presented "The Restatement (Third) of Torts:  Liability for Intentional Physical Harms" (pdf). 

Bublick discussed the need for a R3 on intentional torts to persons.  Bublick proposed a binary structure modeled on the R3 for physical and emotional harm - those who intentionally cause physical harm are subject to liability with an accompanying non-liability provision to except cases where liability is inapt.  Bublick anticipated challenges with the trespassory torts, which do not fit within this baseline rule of physical harm, and similar challenges with the false imprisonment & assault torts.   Bublick suggested that perhaps the project could regroup the intentional torts into two categories:  (1) intentional physical injury to persons and (2) intentional dignitary and emotional injuries to persons. 

Simons discussed"The Restatement Third of Torts and Traditional Strict Liability:  Robust rationales, slender doctrines."

Simons examined R3's treatment of strict liability doctrines.  He noted that the R3's comments suggest 5 rationales for strict liability, and he divided the rationales into two broad categories of economic incentives and fairness incentives.  In the economic category, he noted the incentive for the injurer to optimize the level of care, and the incentive for the injurer to optimize the level of activity.  In the fairness category, he placed nonreciprocal risk, nonreciprocal benefit, and "exclusive causation," i.e., the defendant was the exclusive cause of theharm.   Simon also explained that the R3 rejects loss-spreading as a rationale for strict liability.   Simon commented that given these strong rationales, one would expect strict liability to apply in a wide range of circumstances.  He found that the doctrine was not co-extensive with the rationales, and concluded that that a likely reason for the confined scope of the doctrine is that strict liability is palatable only when its burdens and effects are modest.

During the Q&A, Mark Geistfeld (NYU) described strict liability as "the conscience of tort law," and noted that the rationales for strict liability have implications for tort law as a whole.   Geistfeld argued that it was a mistake for the R3 to excise any social values consideration in the strict liability rationales.  He agreed that the R3 was being faithful to the case law in this regard, but urged that the R3 should educate courts.  

During the commentary, Palmer suggested that the R3 consider giving attention to guns under strict liability, and Jacobs urged future work on economic torts.  

You can listen to this panel here.

- SBS

Risk Creation and Foreseeability in Restatement Third

Friday's opening panel included John C.P. Goldberg (Harvard), Ben Zipursky(Fordham), David Owen (South Carolina), and Jane Stapleton (Texas).  Ralph Peeples (Wake Forest) served as moderator.

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.

   

Zipursky discussed his piece entitled Foreseeability in Breach, Duty, and Proximate Cause.  He prefaced his remarks by noting that tort law had been on a roller-coaster ride since the 1960's, swinging back and forth from wildly pro-plaintiff to wildly pro-defendant phases.  The goal of R3, he noted, is to bring stability to torts.  Zipursky stated that foreseeability is present in 3 different tort elements:  duty, breach, and proximate cause.  He was relatively uncritical of R3's use of foreseeability in proximate cause (or "scope of liability" as it is called in R3).  He was more critical of R3's use of foreseeability in breach, stating it was included as part of what is essentially a Hand-type balancing approach.  Zipursky was most critical of R3's non-use of foreseeability relating to duty, and he spent the bulk of his time on that topic.  R3 does not rely on foreseeability in the duty analysis.  Zipursky noted 3 problems with this approach.  First, as a matter of descriptive practice, courts rely on foreseeability in duty.  He stated that, by his research, at least 47 and maybe as many as 49, states use foreseeability in their duty analyses.  Second, he noted that the goal of banishing foreseeability from duty was to make judges' opinions more transparent, a major goal of the Reporters generally.  Zipursky argued this falsely assumes those clearly articulated reasons will not involve foreseeability.  Finally, his third concern is specific to section 37 affirmative duties.  If the background rule in these cases is no duty as opposed to duty, the issue of foreseeability is necessary, if not sufficient, to even consider whether there should be a duty.

Owen presented Figuring Foreseeability.  He began with a comparison between the nature of the universe and tort law.  He noted that foreseeability was the "dark matter" of tort.  It binds all together.  As a doctrinal matter, Owen approved the inclusion of foreseeability in the Hand-type test for breach.  He disapproved of the dulling of the importance of foreseeability in the scope of risk section, and he agreed with Zipursky that it should be included in the duty analysis.  Owen noted that foreseeability grounds tort law in morality.  A harmful action cannot be considered wrong unless the actor was able to foresee the harm.  Unfortunately, Owen conceded, the concept provides little decisional guidance.  However, Owen defended the use of foreseeability by stating its alternatives--justice, fairness, social policy--were equally vacuous. 

Stapleton discussed "Creating" and "Posing" Risks as Organizing Principles in the Third Restatement (Torts).  Stapleton began by emphasizing that the audience for R3 is the bench and bar.  They need a document that is clear and brief (comments that were seconded by Mal Wheeler in his commentary).  She argued that one very significant way to clarify R3 would be to define the crucial phrase "risk" in detail and in an easily accessible place, preferably in the comments to section 7.  Stapleton proposed stipulating definitions of risk in which "creating a risk" was reserved for duty and "posing a risk" would be employed for breach.  All other synonyms would be removed.  Stapleton argued this would increase the analytical coherence, and would make discussions under "scope of risk," formerly proximate cause, easier to follow.

Commentary was provided by Mal Wheeler(Wheeler, Trigg, Kennedy, LLP) and Allen Linden(Canada Federal Court Appeals).  Linden, a student of R2's reporter, William Prosser, lamented the continuation of the no-duty-to-rescue rule.

In the Q&A session, Jonathan Cardi stated that R3 provides better guidance on duty issues.  He asked what is lost by relying on conduct that creates a risk.  Zipursky argued that risk creation does not cover all that is actionable.  Stapleton noted her general approval of R3's approach, stating that duty is appropriately couched in terms of risk.  Goldberg joked he would be apocalyptic, and stated that we will lose sense of the nature of torts.  His follow-up was serious.  If duty is defined in terms of risk-creation, that inspires a regulatory response to risk.  By contrast, tort law is about private rights of action given to people who have been wronged by the conduct of another.

Co-Reporter Mike Green got the last word.  He agreed with Stapleton that a distinction should be made between creating a risk and failing to ameliorate an existing risk.  He articulated R3's goal to produce transparent tort decisions.  He stated that duty is overused, and courts should instead be deciding there is no breach as a matter of law.  While Green acknowledged the importance of foreseeability, he likened it to letting a genie out of a bottle.  He again acknowledged that foreseeability was crucial for morality, but noted that in the law, where the rubber hits the road, there are other significant factors to consider.  Finally, in response to Judge Linden's concern about overturning the no-duty-to-rescue rule, he stated that section 31 takes a very small step in that direction by focusing on criminal statutes that, for example, require the reporting of child abuse. 

You can listen to the panel here.

--CJR

Duty in the Third Restatement

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). 

In his talk, Geistfeld questioned the R3's apparent siding with efficiency proponents.  Geistfeld urged the consideration of social values, which are not dependent on efficiency theory.  He suggested consideration of such values as equality or autonomy and illustrated his point with the social host cases.   Geistfeld further focused on the problem of legal uncertainty, and pointed out that no other element in a negligence claim gets to the interest of legal certainty.    Geistfeld also noted that an institutional question flows from these points:  the role of the judge vs. jury as decision maker. 

In the Q&A period, Twerski pointed out that in Hamilton v. Beretta, part of the problem was process oriented:  the court struggled with whether it was the proper agency to reorganize the gun industry.  Geistfeld agreed, and stated that it was not inconsistent with a social norms analysis to recognize the role of other decision makers.  

Also during the Q&A, Ariel Porat(Tel Aviv/Chicago) noted that he was "suspicious" about using legal uncertainty as a reason not to impose a duty.   He argued that uncertainty would gradually disappear after 10 years of development.   Keith Hylton (BU), however, noted that, among other functions, duty doctrine crystallizes what would otherwise occur under proximate cause, and this was beneficial because consideration under duty created legal certainty.    

Schwartz presented "Can Government Impose a New Tort Duty to Prevent External Risks?  The 'No Fault' Theory Behind Today's High Stakes Government Recoupment Suits" (pdf).

In an entertaining talk, Schwartz discussed what he called "government externalization theory," the idea that a manufacturer or service provider whose product creates a risk to society should not be able to externalize that risk.  Schwartz characterized this anti-externalization theory as the "driving force" behind various legal engines used in recent years such as public nuisance suits, parens patriae suits, and consumer protection act suits.  Schwartz argued that this anti-externalization theory goes beyond the scope of the R3's concept of duty as well as the boundaries of tort law.   

Following the presentations, Dan Dobbs (Arizona), Justice Andrew Hurwitz (AZ Supreme Court), and Larry Stewart (Stewart Tilghman) gave their comments. 

Justice Hurwitz commented that the R3 forces judges to justify their no duty decisions.  He further noted that judges are acting in a legislative capacity when finding no duty. Hurwitz further commented that R3 creates a presumption in favor of duty, and therefore the burden falls on the party arguing "no duty" to provide the court with information on the risk/benefit (both moral matters and economic matters) of creating a duty.  

In a point that would be echoed throughout the day, Stewart noted that the R3 does not address the lack of a mechanism to evaluate the various factors proposed by the presenters.  In other words, Stewart asked, how are courts supposed to weigh the competing values (economic favors and corrective justice factors)?  Echoing the ranking question, Jane Stapleton (Texas) noted during the Q&A that other jurisdictions have a high density of appellate case law in this area, but have failed to develop a "holy grail" ordering of the long list of factors.  

Dobbs likewise found it proper, as a normative matter, that judges should consider both instrumental and corrective justice factors, but asked which specific things should be considered, and once identified, how should these factors be weighed?   Dobbs was troubled that a pluralist approach, as Cardi advocated, would be an amorphous list. 

You can listen to this panel or download for later enjoyment here.

- SBS

NIED in the Third Restatement

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.

2.  Chamallas presented material from her forthcoming book (The Measure of Injury:  Race, Gender, and Tort Law, co-authored by Jennifer Wriggins), specifically the chapter entitled Negligence.  Chamallas began by lauding the shift in the Restatement Third ("R3") from whether to when plaintiffs could recover for NIED.  She questioned the prioritizing of physical over emotional injury.  This hierarchy of value has a gender impact; the restrictions on emotional harm hurt women more than men because women are more likely than men to bring those claims.  Chamallas next noted that R3 invites prioritizing the contexts  in which NIED claims are brought, but does not spell out which are the favored contexts.  She offered two:  1. cases of sexual exploitation, and 2. cases involving reproductive injuries.  Chamallas argued that an analogy to constitutional law supports a favored position for these contexts.  Laws infringing on reproductive freedom triggers strict scrutiny.

3.  Keating discussed his piece Existence of Obligation and Extent of Responsibility in the Law of Negligent Infliction of Emotional Distress.  He raised the issue of where NIED falls within the taxonomy of negligence.  Should NIED be regarded as a duty or a proximate cause issue?  Keating argued that NIED is a proximate cause issue because it concerns the extent of liability.  He posited that NIED cases tend to be one of two types:  1. plaintiffs who are physically uninjured, but emotionally traumatized by the negligent imposition of a risk of physical injury, or 2. plaintiffs who have preexisting relationships with the parties whose negligence inflicts emotional harm on them.  In both cases, Keating argued a duty exists independent of the prospect of emotional injury being negligently inflicted.  Thus, NIED involves the line-drawing issues typical of proximate cause cases. 

William C. Powers, Jr., who (with Mike Green) is Reporter for R3, commented that taxonomy was at the heart of the approach to R3.  He stated he and Green took a pragmatic view of the problem, and put NIED in the duty section to force courts to enumerate the policy reasons for decisions.

4.  Matthews presented Negligent Infliction of Emotional Distress:  A View of the Proposed Restatement Provisions from England.  To establish the relevance of the English view, Matthews noted that the law in Great Britain was similar to the R3 approach to NIED.  He voiced his approval of bright-line rules, and offered advice to improve R3.  In English law, a plaintiff must prove s/he has experienced a recognizable psychiatric illness as a result of defendant's negligence.  Matthews prefers this to R3's more malleable "serious emotional disturbance."  He did, however, prefer R3's insistence on simultaneous perception of an injury as opposed to allowing the perception in the English law's more nebulous "aftermath." 

Commentary was provided by Oscar Gray (Maryland) and Wallace Jefferson (Chief Justice, Texas Supreme Court).  Prior to the conference, Gray provided written Commentary.  Gray offered a hypothetical questioning the division of physical and emotional harms.  When combat troops return from Iraq and have fits of uncontrollable rage, he wondered, is it because of a disturbance of their "tranquility" or is it because of a physical injury to their brains?  The hypothetical led to a discussion of how neuroscience will alter our view of tort doctrines.  Ben Zipursky pursued the taxonomy issue by challenging the panelists conceptions of NIED.  Zipursky noted three different views of the interest protected by NIED:  1. rights invasions, 2. visceral impact akin to physical injuries, and 3. psychiatric illness.  He questioned whether the three views can coherently coexist.

To hear the panel, you can click here.

--CJR

Negligence in the Third Restatement

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. 

Porat presented his piece Expanding Liability for Negligence Per Se.  He argued for expanding liability under the doctrine of negligence per se by diminishing the role of the limiting liability conditions.  Porat noted courts enforce two conditions prior to finding liability under negligence per se.  First, the plaintiff must belong to the class of person protected by the statute.  Second, the injury must be of the type the statute is designed to prevent.  Porat argued that, in drafting statutes, the legislature may have taken the background risk into account.  In other words, sometimes there are background risks that would not, in themselves, justify a precaution, but when combined with unusual risks, it makes the precaution worthwhile.  Porat offered an example.  In legislating that workplaces with at least 3 disabled employees have handrails, the legislature may have taken the background risk to able-bodied workers into account prior to passing the law.  Assume the background risk to the able-bodied is assigned a value of 30, the cost of the precaution is 80, and the risk to the disabled is 60.  The two risks together justify the precaution, so why dismiss the suit of an able-bodied worker because the statute was written in terms of the disabled?   

Twerski discussed his article Negligence Per Se and Res Ipsa Loquitor:  Kissing Cousins.  Twerski argued that negligence per se and res ipsa loquitor have a common theme.  In both, plaintiffs seek to prove negligence based on a generalization, and the defendant can only defend by showing that the generalization is inapplicable on these particular facts.  Twerski takes issue with the bright lines drawn in negligence per se in R3.  First, the trial judge should not be commanded, absent excuse, s/he must direct a verdict on standard of care (adopt the statute).  Second, there should not be an exclusive list of excused violations, but a more flexible approach.  Twerski was more complimentary of the res ipsa sections, and specifically applauded the removal of the exclusive control requirement.  Twerski did, however, criticize the draft for allowing a res ipsa case to go to the jury when plaintiff's generalization was countered with plausible direct evidence of a non-negligent cause of the injury-causing event.  In such a case, a jury would simply have no rational way of weighing the generalization against hard evidence.

Commentary was provided by Theodore Boehm (Justice, Indiana Supreme Court) and Ken Oliphant(Bristol/Director, Institute for European Tort Law).  Oliphant noted that the panelists seemed to long for a rule that a breach of a statute is evidence of negligence (but not negligence itself).  He also suggested limiting negligence per se to statutes that specifically set a standard of care.

To hear the panel, you can click here.

--CJR

Causation in the Third Restatement

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.    

- SBS

Torts Prof Phoebe Haddon Named Dean At Maryland

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!

- SBS

Williams v. Philip Morris Cert. Grant Withdrawn as Improvidently Granted

Per curiam opinion here, some analysis here.

--BC

Torts Profs at the Torts Symposium

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. 

- SBS

Texas Senate Passes Bill Requiring Continued Insurance Coverage for Study Participants

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.

- SBS

Orlando Sentinel on Theme Park Lawsuits

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.

--BC

Oklahoma Debate on Tort Reform

Interesting, if a bit anecdote-heavy, story here.

--BC