Friday, January 25, 2013
Ken Simons (Boston University) has posted to SSRN Victim Fault and Victim Strict Responsibility in Anglo-American Tort Law. The abstract provides:
Anglo-American tort doctrine pays considerable attention to the conduct of the victim as well as the conduct of the injurer. A symmetrical standard of care for victims and injurers is also common: just as injurers are liable for failure to use reasonable care, victims frequently have their compensation reduced insofar as they, too, failed to use reasonable care. The advent of comparative fault, replacing the all-or-nothing rule of contributory negligence, has made the symmetrical approach seem inexorable and unremarkable.
But symmetry is usually the wrong perspective for the legal system to take towards victim and injurer conduct. That perspective also misdescribes legal doctrine. Courts often depart from symmetry, even in comparative fault jurisdictions. Thus, courts recognize several categorical doctrines that permit full recovery without regard to the possible fault of the victim (e.g., where the defendant’s duty is to protect the victim from his own vulnerability or incapacity, or where the defendant is engaged to provide medical care or other services to the victim necessitated by the victim’s own prior fault). Courts also recognize categorical doctrines that automatically preclude any recovery despite the supposed presumptive status of comparative fault (e.g., the illegality doctrine, the mitigation of damages doctrine, and the defense of voluntary assumption of risk).
Moreover, even when victim conduct is compared to injurer conduct, the way in which victim conduct is relevant to tort liability is frequently qualitatively different than the way in which injurer conduct is relevant. Often, when we characterize a victim as being “at fault,” we do not mean that the victim should have acted differently, but only that he should be strictly responsible for his choice or action (e.g. because he justifiably forfeited his right to full damages). Indeed, sometimes, even though a victim has a moral or legal right not to take a precaution, it is appropriate to deny him full damages for the harm that the precaution would have averted.
To be sure, symmetry is sometimes appropriate, especially when the actor’s unreasonable conduct creates substantial risks both to others and to himself. But in many other cases, symmetry is much less defensible, at least if one endorses a nonconsequentialist rather than utilitarian account of tort law. The law could do more to address the unjustifiable use of symmetrical criteria — e.g., the fact-finder could be instructed, or the judge could be advised, to treat risk to others as a more serious type of fault than risk to self.
Thursday, January 24, 2013
Linda Riss Pugach died in New York on Tuesday. In 1959, Linda Riss was blinded in a lye attack by men hired by her jealous ex-boyfriend, Burton Pugach. Pugach went to jail for 14 years and married Riss upon his release. The attack story is told in Riss v. City of New York, a staple on sovereign immunity in torts casebooks. The NYT has an obituary.
Thanks to John Goldberg for the tip.
Wednesday, January 23, 2013
Plaintiff hunter suffered blindness, brain trauma, and extensive scarring. He was injured by another hunter, who had been barred from having a gun because of a prior conviction. The judge awarded over $4 million in damages. The case was argued by Schmidt Kramer's Joe Chapman (Widener Law '08). The story (pdf) is here: Download Hobbins Verdict -- Daily Item, 1-18-13.
Martha Chamallas (Ohio State) will deliver the 2013 Monsanto Lecture at Valparaiso. The speech, entitled "Institutional Responsibility for Sexual Exploitation: Can Tort Law Deliver Social Justice?," will be delivered on April 12, 2013 from 4:00-5:00 p.m. at Wessemann Hall. The official notice is here.
Tuesday, January 22, 2013
Sandra Sperino (Cincinnatti) has posted "The Tort Label" to SSRN. The abstract provides:Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.
While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes created large exceptions to common law ideas of at-will employment, and strong textual arguments militate against prioritizing tort law as source of meaning.
The tort label not only exaggerates the affinity between tort law and employment discrimination, it also overestimates the work that tort law can adequately perform in statutory interpretation. Tort law generally does not have independent descriptive power. It does not cohere around a narrow enough set of theoretical or doctrinal concepts to provide an answer or even a small subset of answers to many
statutory questions. Over time, tort law responds to changing factual and legal landscapes, often while outwardly maintaining the same language.
To date, courts have failed to appreciate the complexity of tort law. Courts use cursory descriptions of tort law that characterize tort doctrine as narrower, more stable, and more consistent than it actually is. They have not considered whether tort concepts can and should be unmoored from the common law tradition, which anticipates that concepts can subtly change over time to fit new situations.
The federal courts view tort law as possessing narrow conceptions of causation and harm. Using this narrow tort frame leads to discrimination law that is primarily concerned with individual remedies, rather
than a broader response to societal discrimination. The move to tort law is thus part of a broader story about the privatization of discrimination law that can be seen in the greater acceptance of private arbitration and the move away from systemic discrimination claims.
The primary problem of the tort label is its effect on discourse about fundamental questions regarding employment discrimination law. The prioritizing of a narrow view of tort law removes textually supportable options from statutory analysis without meaningful discussion about why the courts narrowed the potential statutory landscape. The courts never consider whether their narrow notions of tort causation and harm are reflected in the discrimination statutes’ text, intent or purpose. The
primary aim of this Article is to urge courts to respect the complexity of the judgments at issue by resisting the simple, but also simplistic, allure of the reflexive use of tort law.