Saturday, December 10, 2011
R3's Co-Reporters, Michael Green (Wake Forest) and William Powers (Texas), defend the Restatement's treatment of indivisible injury in a response to a note by the editor-in-chief of the Texas Law Review, Michael Raupp. You can find it all here.
Friday, December 9, 2011
ABC News/AP reports that the State of Indiana has offered various settlement amounts to victims of the state fair stage collapse. Victims have until Monday to accept the offers. State law caps the state's liability at a total of $5 million.
Thursday, December 8, 2011
In my Torts class, we discuss consent to intentional torts in, among other contexts, sports -- in particular hockey. Given the interesting evident difference between what is technically prohibited and what is generally accepted as part of the game, it's a nice foundation for a conversation. Add to that the New York Times extensively-researched look at hockey through the life, and death, of "enforcer" Derek Boogaard. Certainly worth a read.
Tuesday, December 6, 2011
Ellen Pryor (SMU) has posted to SSRN Peculiar Risk in American Tort Law. The abstract provides:
American tort law includes a significant strand of liability tied to an intriguing concept variously termed “peculiar risk,” “special danger,” and “special risk inherent in the work,” among others. Peculiar risk presents a basis for liability different from other standards or actions that trigger liability in tort law - it is different from intent, recklessness, negligence, nuisance, and abnormally dangerous activity. Both England and the United States endorsed versions of the doctrine in the late nineteenth and early twentieth centuries. Yet, by 1965, American and English tort law had sharply diverged on the doctrine. American courts continued to apply it; meanwhile, the doctrine had been severely limited in England and rejected in several other common law countries.
The divide between the American approach and treatment of the doctrine outside the U.S. is a puzzle. In countries that have rejected or severely limited the doctrine, the critiques have included decisional indeterminacy and shaky historical and normative justifications. Yet a doctrine subject to these criticisms elsewhere has remained well accepted in the United States in the last thirty years - a thirty-year period characterized by extensive tort reform across the bandwidth of tort law.
This Article explores three points about this divide between American tort law and the tort law of other common law countries: when and how the divide occurred; why this doctrine - whose breadth and indeterminacy spelled its disfavor elsewhere - remained well-accepted in America despite the intensity and duration of American tort reform; and whether the American version of the doctrine offers lessons for tort law outside the United States.
Summers v. Tice is an iconic first-year Torts case. Kyle Graham (Santa Clara), guest blogging at Concurring Opinions, visited the California State Archive and reviewed the old case file. His research provides interesting information on the case background:
Moreover, Tice argued that but for the plaintiff’s own negligence, he could have identified his assailant. Specifically, Tice testified that he had been using No. 6 shot, whereas Simonson had been using No. 7½ shot. The two pellets are of slightly different size, and capable of distinction. Summers himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home. These facts, if accepted, place a very different spin on the case. One could no longer say that the defendants were in a better position than the plaintiff was to identify who fired the injurious shot, which of course was a key ingredient to the Summers decision.