TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, January 20, 2012

Burger King, Spit, and Emotional Damages in Products Liability

A suit over a burger, spat upon by an employee of Burger King, resulted in the Ninth Circuit certifying a question to the Washington Supreme Court.  Plaintiff developed an uneasy feeling after receiving a Whopper with cheese.  When he lifted the bun, he saw a "slimy, clear and white phlegm glob" on the burger.  The glob was tested and was a DNA match with one of Burger King's employees, who pled guilty to felony assault.  Plaintiff claims ongoing emotional distress.  The district court granted judgment on the pleadings to Burger King.  On appeal, the Ninth Circuit certified the following question:  “Does the Washington Product Liability Act permit relief for the emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product?”
The case is available here.  (Link has been fixed)
Thanks to Susan Raeker-Jordan for the tip.

January 20, 2012 in Food and Drink, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, January 19, 2012

Licari on Enforcing Punitive Damage Awards in France after Fountaine Pajot

François-Xavier Licari has posted Enforcing Punitive Damage Awards in France after Fountaine Pajot on SSRN. The abstract provides:

In a landmark ruling, the Cour de cassation held that 'an award of punitive damages is not, per se, contrary to public policy,' but that 'it is otherwise when the amount awarded is disproportionate with regard to the damage sustained and the debtor's breach of his contractual obligation.' Schlenzka & Langhorne v. Fountaine Pajot, S.A. involved the failed attempt by American judgment creditors to enforce their California judgment against a French defendant in France. At the same time that the judgment creditors were taking their case through the French legal system, the Cour de cassation, in a different line of cases, liberalized the conditions under which a foreign judgment could be enforced in France. But when the Court opened one door for the American plaintiffs, it closed another by refusing to enforce the judgment because it included disproportionate punitive damages. The Court's reasons were inconsistent with prior interpretations of proportionality and disingenuous to the court's modern approach to the enforcement of foreign judgments. In just a few words, the Court echoed prevailing French and European sentiments about American punitive damage awards. Unfortunately, the prevailing attitudes are dominated more by prejudice than by fact and reason.






January 19, 2012 in Damages, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 18, 2012

Quandaries of Civil Recourse: Calnan Replies to Goldberg & Zipursky

Last month, Alan Calnan posed four quandaries for John Goldberg's and Ben Zipursky's civil recourse theory.  John and Ben responded last week.  Alan now replies:


First, I would like to thank the editors of TortsProf blog for hosting this discussion. In my view, there is no better use of a blog than to provide a forum for robust and immediate debate on important and timely topics. Kudos to Chris, Bill & Sheila for running a great site.

Next, I must thank John Goldberg & Ben Zipursky (G&Z) for taking the time to respond to my prior post. Despite their prolific output as scholars and frequent appearances as speakers and panel presenters, they consistently have answered their critics with diligence and grace. For this alone, they deserve special commendation.

But G& Z also deserve recognition for the candor of their post. In it, they both clarify points raised by their past work, and address new issues previously left unexamined. Unfortunately, their responses do not resolve the quandaries surrounding their civil recourse theory of torts. Instead, their answers only raise more questions; and these questions, in my view, only raise more doubt about the validity of their view as currently constructed.

In this post, I will outline some of the remaining conundrums. For the sake of clarity, my replies will follow each of G&Z’s responses below. I apologize in advance for the length of my reply, but big issues invite big answers.

For Rylands and abnormally dangerous activities, we accept that there is strict liability of a form that can only be categorized as “wrongs-based” if one relaxes the meaning of “wrongs” so greatly as to deprive it of meaning; as to these torts, we accept that a wrongs-based framework is incomplete.   However, we have argued that: (a) all of the other putative areas of strict liability – products, vicarious liability, trespass torts, etcetera -- are actually wrongs-based in a significant sense; (b) the Rylands et al constitute only a very small fragment of all of tort law; (c) even as to Rylands et al., they fall into a hybrid category something like promissory estoppels in contract or strict liability in criminal law, such that there were good reasons for courts to take a position that essentially abandoned a critical feature of the law in a narrowly limited area, while still counting cases as being part of that area.  

G&Z purport to offer only a descriptive or interpretive account of the tort system. They seek to explain what tort law is and does, not what it should be. In response to my first quandary, they argue that Torts is a system of wrongs because instances of true strict liability are relatively rare and tangential. This is not a new contention. They argued the same points in their article Torts as Wrongs. In my view, G&Z employ a flawed methodology (not objectively reporting the facts but subjectively and selectively manipulating them) to reach an inaccurate conclusion (that true strict liability is rarer than it actually is). I already have provided detailed explanations of both errors in prior articles (What’s Wrong With Torts as Wrongs [SSRN] and The DisTORTed Reality of Civil Recourse Theory [forthcoming Cleveland State Law Review]), so I will not elaborate on them here.

Nevertheless, two points require special emphasis. Even if true strict liability is relatively uncommon, prevalence alone is an extremely weak metric for determining its importance. The known universe consists of 75% dark energy, 20% dark matter and 5% matter. No scientist (who, like G&Z, seeks to accurately describe and explain the way things are) would dismiss matter as insignificant merely because of its rarity, and no scientific theory that excluded matter would be taken seriously. Matter possesses enormous significance because of its longevity (it’s been around since the Big Bang) and potency (it holds the power to create and sustain life). The same holds true for strict liability. According to conventional wisdom, Torts originated in medieval England from a primitive form of strict liability. The abnormally dangerous version of this theory—i.e., the one G&Z recognize as “true” strict liability—has been around for 150 years and has been adopted by virtually every state in the country. As for its potency, strict liability accounts for one-half of Torts’ bifurcated liability spectrum (which ranges from fault to no-fault) and one-third of its theoretical infrastructure (intentional torts, negligence & strict liability). It also poses the greatest threat to liberty. Unlike negligence, strict liability does not simply regulate the small details of a single act. It burdens and restricts entire categories of human activity. Given the magnitude of its impact, strict liability is a lot like capital punishment: it may not be invoked very often, but everyone always knows it’s there. Indeed, in a wrongs-based system like Torts, its existence should attract special concern. True strict liability destroys fault. When it arrives, wrongs disappear. Where it lives, wrongs die. If wrongs are vital to Torts, shouldn’t the admittedly aberrant but undeniably lethal fault-eating strict liability virus be studied and explained with even greater care and vigor, and not casually dismissed as irrelevant?

According to G&Z, much of strict liability is not antithetical to fault at all, but rather consists of wrongs cloaked in strict liability garb. If this is true, the judges who created tort law must be either unwittingly or willfully responsible for the mislabeling. Are we to believe that jurists from different states and countries intentionally set out to obfuscate the law over a period of centuries? If so, for what purpose? Is it to sow confusion and doubt, increase appeals, and surreptitiously strengthen their imprimatur on the law? Alternatively, must we assume that these same judges consistently mistook wrongs for strict liability without ever discovering their error, or the errors of their predecessors, or ever attempting to do anything about it? Experience and common sense show otherwise. Shortly after adopting strict products liability, many courts recognized that design and warning defect actions were essentially negligence cases in disguise. Rather than continue the charade, they changed the law by abolishing strict liability and permitting only theories of negligent design and warning. The Restatement (Third) of Torts: Products Liability officially eradicated the misbranding just thirty years after it began.

There is only one way to determine whether or why such misbranding occurs, or what the tort system is meant to be. It’s not by counting theories, reinterpreting words, or consulting legal commentaries. Rather, it’s by asking the judges themselves. Their answers may not all be candid, and their sample size may be relatively small (given the larger, historical context of the common law), but they alone control the law’s form and content. Unless and until G&Z tap Torts’ source, how can they claim to know its essence? It’s just as well that they’ve forgone this quest, because I doubt they’d like what they find. I suspect judges, like tort scholars, see Torts not as a unified system of wrongs hidden behind a veil of meaningless and misleading verbiage, but as a multifaceted system with diverse policy objectives and a corresponding, transparent commitment to liability without fault.


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January 18, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)