Friday, March 29, 2013
Many baseball related cases have been decided using a confused analysis based on the argument that people (both participants and spectators) assume the “inherent risks involved in the game,” often referred to by the poorly chosen term “primary assumption of the risk.” Unfortunately, the analysis in most of those cases is not particularly coherent and I continue to be amazed at the fact that after so many years of common law so many courts are still unclear about the concept of assumption of the risk as it relates to sports and recreational activities.
Take the cases involving claims against bat manufacturers for injuries caused by aluminum bats, for example.
In the past few years there have been a number of cases imposing liability on aluminum bat manufacturers because the ball travels off them at a much higher rate of speed putting fielders are at a higher risk of injury. In response, you often hear criticism from defendants and others that are quick to quote the notion that players assume the inherent risks of the game. Using the same argument, some take the rhetoric even further and use it to attack the tort law system itself claiming that the lawsuits are just another example of plaintiffs’ lawyers bringing frivolous claims.
I think those arguments miss the point. Granted; risk, danger and injuries are a part of life, and of baseball. However, tort law is one of the mechanisms we can use to regulate the level of risk we are willing to live with. You can’t play baseball unless the hitters use a bat. But it does not have to be an aluminum bat. Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won’t eliminate all the risk, but it is safer.
The point is that litigation often helps society define the limits of the acceptable level of risk we are willing to take for any given activity. We have accepted the risks of baseball when played with hardballs and solid wood bats. But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game. That is why we now require better helmets and protection. That is why Little League Baseball has banned the use of dangerous aluminum bats and regulates those that are permitted for competition.
Now, some argue the resulting injuries would be the same even if the bats are made of wood. I have no expertise on that question, but I can concede that it may be true in some cases. On the other hand, I am sure it is not true in all cases, and it is those cases that matter.
The risks inherent to baseball have changed over the years and it is perfectly reasonable to find that our tolerance for more risks has a limit.
The cases involving spectators are even more problematic.
Thursday, March 28, 2013
Tomorrow's Guest Blogger is Alberto Bernabe, Professor at The John Marshall Law School in Chicago. After graduating from law school, Alberto Bernabe clerked for Justice Federico Hernandez-Denton of the Supreme Court of Puerto Rico. He later entered private practice, specializing in personal injury, mass disaster litigation, and general media law practice.
Before joining the faculty at The John Marshall Law School in 1992, Professor Bernabe was a teaching fellow at Temple University, where he taught Mass Media Law and collaborated in teaching Torts, Products Liability, and Legal Ethics. He also teaches frequently as a visiting professor at the University of Puerto Rico Law School.
Professor Bernabe teaches Torts and Professional Responsibility and has published articles on many different topics, including the rules of professional conduct, journalism ethics, the Socratic method of teaching, the concept of the marketplace of ideas, tort reform, Puerto Rican tort law, and the relationship between the media and the judicial system.
Wednesday, March 27, 2013
Geoff Rapp (Toledo) has posted to SSRN his contribution to Howard Wasserman's symposium, Suicide, Concussions, and the NFL. The abstract provides:
This contribution to a FIU Law Review symposium on concussions in the NFL explores the state of the science and the possibility that the family of a former NFL player could recover from the NFL in the event that the former player committed suicide. While the link between brain injury, depression and suicide is both logical and supported by some emerging science, the paper suggests that significant legal obstacles would confront any such claim.
Tuesday, March 26, 2013
Nathan Oman & Jason Solomon (W&M) have posted to SSRN The Supreme Court's Theory of Private Law. The abstract provides:In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.
Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or “public law in disguise.”
Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we briefly trace the development of the doctrine surrounding the tension between the First Amendment and private law, particularly tort law, and how it helps lead to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main claim at issue in Snyder, is a particularly poor vehicle for the Court’s theory of private law. A relatively recent tort, it was developed by scholars and judges as a means of redress for plaintiffs who had been wronged, but were left without a remedy.
Part III presents the central claims of the Article. We argue that the conception of private law as government regulation in Snyder arises from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism, specifically in obscuring the plaintiff’s agency and the state interest in redress, and in privileging a particular view of compensation. In Part IV, we present some normative or prescriptive implications of our analysis, and then conclude.
Monday, March 25, 2013