September 10, 2010
Personal Injury Roundup No. 79 (9/10/2010)
We're back! Did you miss our rounduppy goodness? We've all started back at our respective institutions, and we're ready to rumble, er, provide a list of links to things happening in tort law.
- Family to sue Extreme World amusement park where daughter critically injured; free-fall ride had no fail-safe to ensure the catch net was in place before patrons were dropped 80 feet. [WFRV]
- Suit follows tea bottles allegedly exploding (linked to largely for the tag "Don't Tazo Me Bro") [Consumerist]
- Burn from hot chocolate at McDonalds results in lawsuit (focus is on lid attachment as well as temperature) [Chicago Tribune]
- Echoing the always-good-for-a-squirm Shoshone Coca-Cola Bottling Co. v. Dolinski, a new lawsuit against Wal-Mart for milk containing a dead mouse. [Justice News Flash]
- A fascinating case involving third-party intervening criminal misconduct; Tennessee appellate court concludes no manufacturer liability when an amusement park operator intentionally bypassed a safety system. [MassTort.org]
- Dismissal of tort suit for torture upheld based on state secrets doctrine [Washington Post]
- Plaintiff's verdict in mesothelioma suit upheld; exposure came from cleaning husband's clothes. [NJ.com]
- Plaintiff's $20.5 million verdict in welding rod suit vacated, remanded for new trial with expert excluded. [Plain Dealer]
Trials, Settlements and Other Ends
- Ford settles faulty-seatbelt case post-$131 million jury compensatory (should there be air quotes there?) verdict, before punitives. [AOL Autos]
- BP's report: "An Exercise in Rebutting Gross Negligence Claims?" [WSJ Law Blog]
- A (defense-oriented) look at the status of global warming litigation. [Mass Tort Defense]
- Bumbershoot would like you not to stage dive or mosh, but if you do, to be aware that it's risky. I think that's what they mean anyway. [Woot.com]
- Do you have kids? Do you know someone who does? You might want to buy this CD, released on a label started by, uh, me. New music from Pete Seeger, Dan Zanes, They Might Be Giants, Jonathan Coulton, and more. Benefiting Haiti relief. [ManyHandsCD.com]
September 8, 2010
Simons on "Statistical Knowledge Deconstructed"
Kenneth Simons (Boston University) has posted to SSRN Statistical Knowledge Deconstructed. The abstract provides:
In a wide range of contexts, especially in criminal law and tort law, the law distinguishes between individualized knowledge (awareness that one’s act will harm a particular victim, e.g., X proceeds through an intersection while aware that his automobile is likely to injure a pedestrian) and statistical knowledge (awareness that one’s activity or multiple acts will, to a high statistical likelihood, harm one or more potential victims, e.g., Y proceeds with a large construction project that she predicts will result in worker injuries). Acting with individualized knowledge is generally much more difficult to justify, and is presumptively considered much more culpable, than acting with statistical knowledge. Yet the distinction is very difficult to explain and defend.
This article presents the first systematic analysis of this pervasive but underappreciated problem, and it offers a qualified defense of the distinction. Acting with statistical knowledge is ordinarily less culpable than acting with individualized knowledge, and often is not culpable at all. Expanding the spatial or temporal scope of an activity or repeating a series of acts might cause the actor to acquire statistical knowledge, but such an increase in scale ordinarily does not increase the level of culpability properly attributable to the actor. I articulate two invariant culpability principles, “Invariant culpability when acts are aggregated” and “Invariant culpability when risk-exposures are aggregated,” that formalize this idea.
Why is acting with individualized knowledge especially culpable? Part of the answer is the special stringency principle (SSP), a deontological principle that treats an actor as highly culpable, and treats his acts as especially difficult to justify, when he knowingly imposes a highly concentrated risk of serious harm on a victim. (Under SSP, speeding to the hospital to save five passengers, knowing that this will likely require killing a pedestrian in one’s path, is much harder to justify than speeding to the hospital to save one passenger, knowing that this creates a 20% chance of killing a pedestrian in one’s path.)
The analysis has a number of implications and is also subject to important qualifications: Notwithstanding the invariant culpability principles, if a faulty actor repeats his unjustifiable acts or expands his activity, that repetition sometimes reveals a new type of culpability: the defiance of moral and legal norms. Accordingly, a retributivist can indeed support a punishment premium for recidivists; in rare cases, when the actor possesses merely statistical knowledge but his conduct is extremely unjustifiable, the actor’s culpability is comparable to that of an actor with individualized knowledge; the higher culpability of acting with individualized knowledge is not explained by a supposed higher duty owed to “identifiable victims,” except insofar as that duty is a crude version of SSP; the decision by an actor to proceed with an activity after conducting a cost-benefit analysis is not, by itself, evidence of culpability, even if that analysis provides the actor with statistical knowledge that the activity will cause serious harm; a legal system can be legitimate even though legal actors within the system know that it will, as a statistical matter, punish the innocent.
Priel on "A Public Role for the Intentional Torts"
Danny Priel (Warwick/Osgoode Hall) has posted to SSRN A Public Role for the Intentional Torts. The abstract provides:
The recent litigation that ended in the House of Lords’ decision in Ashley v. Chief Constable of Sussex Police has brought the intentional torts back to the focus of judicial attention. Most commentary on this decision has focused on a few dicta that purport to support a reading the decision as concerned with private vindication of rights. In this article I examine this decision against a broad shift that has been taking place within tort law, and in particular the tort of negligence, away from ‘private law’ concern with the particular individuals involved in the litigation and towards broader ‘public’ concerns. After describing this shift in the case of negligence, I consider three possible private law interpretations of the role of the intentional torts. I argue that they are all deficient. I then highlight an aspect of Ashley that has been ignored by other commentators and which fits the public interpretation of tort law. I argue that this aspect provides a more convincing explanation for the decision, and one that aligns the intentional torts with the rest of tort law.
September 6, 2010
Happy Labor Day!
From the U.S. Department of Labor, some facts you may not now about Labor Day -
- The first Labor Day holiday was celebrated on Tuesday, September 5, 1882, in New York City, in accordance with the plans of the Central Labor Union.
- In 1884 the first Monday in September was selected as the holiday, as originally proposed, and the Central Labor Union urged similar organizations in other cities to follow the example of New York and celebrate a "workingmen's holiday" on that date.
- By 1894, 23 other states had adopted the holiday in honor of workers, and on June 28 of that year, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.