April 22, 2011
Personal Injury Roundup No. 101 (4/22/11)
It's the last day of classes here at the Charleston School of Law, and I am looking forward to summer as much as the students!
- McDonald's tries to dismiss "Happy Meal" lawsuit. (Reuters)
- One year after the Deepwater Horizon Spill, plaintiffs rush to beat the statute of limitations. (WSJ Law Blog)
- Even BP joins in, filing suit against Halliburton. (WSJ Law Blog).
- Florida, however, chooses not to file suit. (Sacramento Bee)
Trials, Settlements and Other Ends
- Medtronic preemption win in Minnesota. (Drug & Device)
- Plaintiffs voluntarily dismiss "beef suit" against Taco Bell. (WSJ Law Blog, ABA Journal)
- The Supreme Court heard oral argument in AEP v. Connecticut (the global warming case). Point of Law collects links. WSJ Law Blog recaps the oral argument.
Reform, Legislation, Policy
- Tennessee lawmakers debate tort reform bill capping punitive damages. (NPR)
- Mass torts lawyer James Ferraro settles five year dispute with the widow of his former law partner. (ABA Journal).
- Curtis Milhaupt (my former Corporation's professor at Was U, now at Columbia) on Tokyo Electric's liability. (Mass Torts Prof)
April 21, 2011
Parents, Bystander File Suit in Illinois Coaster Death
A few weeks ago, a three-year-old boy fell from a roller coaster at the Go Bananas family entertainment center in suburban Chicago. His parents have, as expected, filed a wrongful death suit. In addition, Marion Grant was a witness who says she tried to help the boy, and is now suing for emotional distress, contending that she was in the zone of danger. Reports indicated that he fell from the coaster in a restricted area of the facility.
For those few full-year Torts courses out there, the facts could present an interesting (and tragic) hypothetical for a pure-emotional-distress question.
April 19, 2011
Two by Andy Popper
Andy Popper (American) has posted two pieces to SSRN. First, Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability :
Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.
This paper Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in the Gulf of Mexico. More broadly, it argues that caps on damages undermine the deterrent effect of tort liability and fail to achieve economically efficient and socially just results.
Whatever happened to H.R. 4678, The Foreign Manufacturers Legal Accountability Act? While at first the bill looked like it would sail through, vocal and well-funded opposition from foreign manufacturers and their U.S. representatives placed its future in doubt – and ultimately killed the bill. Gross sales of foreign manufactured goods in the U.S. exceed two trillion dollars annually. Conservatively, there are tens of millions of defective, dangerous, and in some instances deadly goods produced abroad for sale in U.S. markets (e.g., Chinese dry-wall, toxic levels of lead paint on toys, contaminated pet food, allegedly lurching cars, infant cribs that to give rise to the prospect of strangulation, etc.). Because of the complex post-Asahi minimum contacts puzzle, many of those producers are not subject to tort liability in state courts regardless of the fact that their products are dangerous and likely to be sold in the U.S.
H.R. 4678 would have required foreign manufacturers of certain products and component parts to designate a registered U.S. agent to accept service of process in a state where the manufacturer has a substantial connection either through importation, distribution, or sale of its products.
This was a simple, elegant, and appropriate step forward. It would have leveled the civil liability landscape, stripping foreign manufacturers of an unfair advantage over domestic manufacturers and addressing a powerful but understandable anomaly in our legal system. By making possible litigation against those who place into the stream of commerce defective goods, the bill would have triggered the corrective justice incentive mechanisms of the tort system. When you create the realistic possibility for liability, you activate incentives to make safer and more efficient products.
All too many foreign manufacturers selling products in the United States have secured the rich financial benefits of the U.S. marketplace without being subject to U.S tort law. A simple and wise legislative initiative could have changed that, leveled the playing field for U.S. businesses subject to tort law, and in so doing, protected U.S. consumers. Unfortunately, politics and self-interest stood in the way.
Louisiana Parish Files Suit Against BP
Terrebonne Parrish, located on the Gulf Coast in Louisiana, is filing suit against BP and other companies for damages related to the Deepwater Horizon spill. The suit is being financed on a contingency fee basis.
The Tri-Parish Times has more.
April 17, 2011
Guest Blogger Geoffrey Rapp: "Liability for Batted Baseballs"
In honor of opening day in Major League Baseball two weeks ago, I wanted to dedicate my post to the liability of stadiums for batted balls.
Across the land, courts deny recovery to baseball spectators hit by batted balls. Like most torts professors, I teach this rule in my 1L class. My casebook covers the rule in connection with the Jones v. Three Rivers Management Corp. case (which, interestingly enough, allowed recovery where a fan was injured due to the unusual architectural features of a brand-new stadium).
A baseball exhibitor’s only legal duties are to screen the most dangerous areas of the park and to avoid distracting fans from the dangers of batted balls through overly aggressive mascots and other stimuli (sometimes). Batted balls are an “expected” part of the game, and not a proper basis for a negligence claim absent unusual circumstances. Even in some tragic and bizarre circumstances, such as when a young girl had her hand speared by a fragment of a broken bat, courts have denied recovery under some form of assumption-of-risk theory or limited-duty rule.
Why should this well established rule be viewed as the correct one? Who really loses if baseball operators were forced to pay judgments to injured fans? Consider what would happen if the rule were abandoned. Baseball operators would have two choices.
First, they could add more netting, Plexiglas barriers, and the like, to protect fans, or perhaps make baseballs more spongy and less likely to cause injury. This would be a tragic result, no doubt, because fans like to watch the game as it has been played since the days of Abner Doubleday. The chance to catch a batted ball is part of the “fun” associated with attending a baseball game, and can even be profitable for fans if the ball has historic value. Similarly, more prominent and regular reminders of the dangers of flying objects, designed to alert fans, would be viewed by most fans as annoying.
So instead, stadium operators would likely choose not to screen more seating or spongify baseballs. What they would do is purchase broader liability insurance coverage, and pass the cost of such coverage on to fans in the form of higher ticket prices. But isn’t that in fact the just result? If fans want the game to be played the way it always has been, with its attendant risk of injury, should they not also be the ones forced to bear the cost of injury instead of visiting an “overwhelming misfortune” on a single injured spectator? This loss-spreading rationale was the basis for the move to strict liability in products injury cases spurred by Justice Traynor’s concurring opinion in Escola v. Coca Cola Bottling Plant of Fresno California, and I can identify no reason why the principle should not also be applied in the stands.
Yet baseball is so much a part of popular consciousness that courts prefer to have an injured spectator bear the risk of loss. To be sure, baseball fans struck by balls while talking on their cell phones, like this Yankees fan unceremoniously caught on video, should, like drivers who decline to make their cars no-phone-zones, be assigned a fairly large share of the fault under comparative negligence. But it seems to me that juries should be given the chance to weigh the impact of a fan’s inattention against the dangers to which stadium operates expose their audiences.
For more on this topic, see
Adam Epstein, Teaching Torts with Sports
David Horton, Rethinking Assumption of Risk and Sports Spectators
Geoffrey Rapp, Take Me Out to the Ball Game, to be Injured, in New Mexico
Geoffrey Rapp, When Animals Attack…Are Baseball Stadiums Liable?
--Geoffrey Rapp, Professor of Law, University of Toledo College of Law