Tuesday, October 21, 2014
GA: Parents May Be Liable for Negligent Supervision in Failure to Have Child Take Down Fake Facebook Page
On October 10, the Court of Appeals of Georgia allowed a claim to go forward against the parents of a middle-school-aged child who created a fake Facebook page for a classmate and posted defamatory statements. In Georgia, parents have a duty to supervise their children with regard to conduct that poses an unreasonable risk of harming others. The court's decision was based on the fact that the parents did not compel their child to take down the fake Facebook page after they became aware of it. The page remained up for approximately 11 months after the parents learned of its existence. The case is Boston v. Athearn.
Thanks to Mark Weber for the tip.
Thursday, October 16, 2014
Yesterday, a federal court in Charleston awarded the family of the former mayor of Cottageville, SC $97M for his shooting death at the hands of a police officer. The award includes $7.5M in compensatory damages, $60M in punies against the town, and $30M in punies against the officer. The State has the story.
Thanks to Susan Raeker-Jordan for the tip.
Wednesday, October 15, 2014
For the seventh straight year, med mal insurance premiums have dropped for 3 bellwether specialties: ob/gyn, internists, and general surgeons. Rates dropped by approximately 1.5% for the specialties combined. Since 2008, rates for the 3 specialties have fallen by approximately 13%. The survey found that internists in 8 states can obtain insurance for less than $5,000. On the other end of the spectrum, ob/gyns in Nassau and Suffolk Counties in New York must pay $214,999 for a policy. One reason for the premium decline is the decline in claims per physician, regardless of outcome. Moreover the amount of awards and settlements has remained flat. Medscape has the story.
Friday, October 10, 2014
Thomas Eric Duncan died of Ebola in Texas on Wednesday. Several news stories have discussed the possibility of success of a hypothetical med mal suit in the case. Experts consider it unlikely. Texas has a "willful and wanton" standard for liability in emergency medicine cases; it also has a cap on non-economic damages. As a result, a case is not likely attractive to plaintiffs' lawyers. This would be especially true given the difficulty of proving causation: Ebola has no known cure. Stories are here: NBC News (quoting Charles Silver and Seth Chandler); EaglefordTexas.com (quoting Joanne Doroshow, Silver and Dallas plaintiffs' lawyer, Les Weisbrod).
Wednesday, October 8, 2014
In a matter of first impression, the New Jersey Supreme Court held that a non-customer of a bank can't bring a common law negligence claim for an improper money transfer made by over the Internet. The court held the legislature intended New Jersey's version of UCC 4A to create the exclusive remedy for an alleged breach of duty when a bank makes an electronic funds transfer.
Tuesday, September 30, 2014
A recent Volokh Conspiracy column analyzed the applicability of various existing laws to the increasing use of drones. Discussed are: intrusion upon seclusion, publication of private facts, battery, assault, negligence, trespass, and nuisance.
Friday, September 26, 2014
A 24-year-old typist at a prison in Bellefonte, PA was brutally raped last year by one of the inmates. The inmate had been convicted three times previously of sex-related crimes and then transferred from a different prison for assaulting a female employee there. Despite this, the inmate had access to the typist's office, even after she states she complained to her bosses about the inmate's behavior toward her. The victim filed suit in federal court against the state Department of Corrections and several individual employees. The AG's office, charged with defending the lawsuit, included in the answer the allegation that the woman "acted in a manner which in whole or in part contributed to the events." In essence, the AG's office was pleading comparative fault, resulting in a political firestorm. The issue was covered on CNN and the Attorney General herself felt compelled to address the filing.
The best defense of the allegation is that it was necessary to preserve a defense of comparative fault for trial. A lawyer has to defend his or her client and FRCP 8 requires the pleading of, among other things, contributory negligence. It seems to me, however, that this should have been handled differently. Given: (1) the sensitive nature of the plaintiff's complaint; (2) the fact that Rule 15 allows liberal amendments; and (3) the fact that the DA in the county fully supported the typist and successfully prosecuted the inmate for rape, apparently without uncovering any evidence that the she contributed to the attack on herself, this allegation should not have been included in the answer.
Wednesday, September 24, 2014
Last week, the Pennsylvania Supreme Court refused to hear an appeal from a Superior Court ruling, leaving in place a holding that general liability coverage providers are required to defend products claims brought against their policyholders. In a series of cases filed against door and window manufacturers, the Superior Court held that because the company's allegedly defective products allegedly led to other damaged property as well as personal injuries, there were "occurrences" under the policy:
In issuing its opinion, the Superior Court specifically rejected the application of the “gist of action” theory to bar tort claims in insurance coverage disputes. In Pennsylvania law, the doctrine serves to prevent plaintiffs from reshaping breach of contract claims into tort claims.
“Ultimately, because the gist of the action doctrine has never been adopted by our Supreme Court in an insurance coverage context, we are convinced that, at this juncture of a duty to defend claim, applying the gist of the action doctrine is inappropriate,” Judge Shogan said.
Law 360 has the story.
Sunday, September 21, 2014
A study with a lead author from the Cleveland Clinic, published in JAMA Internal Medicine, concludes that purely defensive medicine accounts for 2.9% of U.S. healthcare costs. The study is available for purchase here. The L.A. Times's "The Economy Hub" discusses the study here.
Tuesday, September 16, 2014
The First District Appellate Court of Illinois determined the City of Chicago owed no duty to a pedestrian who broke his foot in a pothole that was a few inches outside of a crosswalk. The pedestrian was apparently straddling the line, partially in and partially out of the crosswalk. The court applied settled law that municipalities have a duty to keep streets reasonably safe for pedestrians only in those areas in which pedestrians are permitted to walk. The National Law Review has the story.
Monday, September 15, 2014
In April 2012, a woman was taken to an ER and voluntarily admitted based on a suicide attempt. She later slipped out of the hospital, walked through the woods, and rolled into traffic on a nearby bridge. She was struck and killed by a car; a father was driving and his (then-juvenile) daughter was a passenger. The father and daughter filed suit against the hospital for emotional distress. The trial judge held the hospital had no duty to the plaintiffs based on a lack of foreseeability. The Superior Court affirmed the judge's decision. Now the Pennsylvania Supreme Court has refused to consider the appeal. Pennlive has the story.
A new USC Dorsife/LA Times poll found support for Prop 46 " a mile wide and an inch deep." When likely voters were polled on Prop 46, 61% supported it, 29% opposed it, and 10% were undecided/refused to answer. When those surveyed heard both sides' main arguments, the numbers shifted to 37% in support, 50% opposed, and 12% undecided/refused to answer. The LA Times has the story.
Wednesday, September 10, 2014
Last week, the Third Circuit revived a fraud claim alleging BASF Catalysts, Inc. took part in systematic fraud with the help of its attorneys Cahill Gordon & Reindel to hide the existence of asbestos in its products. The case has been remanded for further proceedings. The Washington Examiner has the story.
Monday, September 1, 2014
There are a lot of stories on the med mal front. First, two from the MICRA fight:
An analysis from the The Fresno Bee finds that the anti-cap increase ads are misleading. Here's a taste:
But the ad goes too far by unequivocally claiming that raising the cap will increase malpractice insurance costs and that the result would certainly be higher costs for consumers. Five health economists contacted by The Bee had mixed opinions on those questions.
An editorial in the The Sacramento Bee urges rejection of the initiative, stating that the cynicism of attaching the drug-testing measure is reason enough to vote against it.
In other news, Law Firm Newswire is reporting that misdiagnosis is the most common form of med mal, surpassing surgical errors and medication mixups. This is described as surprising, but it is consistent with my memory of med mal cases in the period I practiced law.
Finally, in August, HHS ruled that all malpractice payments under state liability laws must be reported to the National Practitioner Data Base. The ruling was meant to address issues raised by recent "early offer"-type programs enacted in Massachusetts and Oregon.
Wednesday, August 6, 2014
In a pleading seeking a lead counsel role in the MDL, Joe Rice revealed that the City of Providence, RI intends to sue General Motors as part of the ignition-switch litigation coordinated in the Southern District of New York. From news reports, it sounds like Providence intends to bring a diminished value claim, similar to claims brought against Toyota a few years ago. (I've written about these kinds of risk-liability suits here).
National Law Journal has the story.
Friday, August 1, 2014
As previously mentioned here, crews have begun working on Ralph Nader's American Musuem of Tort Law. Just this week, the Winsted Planning and Zoning Commission approved the site application plan for the musuem. The Register Citizen reports:
Exhibits will include historical cases of precedent that built the “edifice of common law of torts,” along with major cases, including judicial decisions in auto safety, tobacco, asbestos and invasion of privacy. Plans were in the works for a website to be set up as well, to extend the reach of the museum’s mission to include contemporary and future developments, according to Nader. The museum could also host events.
Wednesday, July 30, 2014
Most TortsProfs probably don't cover the common law right of publicity, but if you do, here's a good one to use in class: General Manuel Noriega (yes that one) has sued manufacturers of the video game "Black Ops II" for misappropriating his likeness in said video. According to the complaint, Noriega's portyal in the video as "as a kidnapper, murderer and enemy of the state" has damaged his reputation.
Wednesday, July 23, 2014
Here's a good one for your class on negligence:
A California appellate court has held that a man who fell off a cliff while drunk can sue the friends who brought him to the cliff to watch the sunrise after a night of partying. The court found that the plaintiff "created a triable issue of material fact as to whether [the defendant] breached a duty owed to [the plaintiff] by bringing him to the cliff side when she knew he was intoxicated and waiting several hours to call 911 or otherwise summon aid after the fall."
Courthouse News has more.
Tuesday, July 22, 2014
On Monday in my home county, a jury returned a defense verdict in the tragic case of a man who became a quadriplegic in a sprint-car racing accident at the Williams Grove Speedway on September 5, 2008. The plaintiff argued the speedway should have had a device (a catch fence) in place that would have greatly reduced the likelihood of injuries. In addition to denying that allegation, the speedway presented a waiver supposedly signed by the plaintiff. (Like many jurisdictions, Pennsylvania upholds the express assumption of risk doctrine in the recreational context.) Plaintiff argued that the date and witness lines of the waiver form were not filled in and the waiver was, thus, invalid. The jury deliberated 3 hours before determining the waiver was valid and, therefore, reaching a defense verdict. The Patriot-News has details.
Monday, July 21, 2014
Like many, we were stunned to learn of the death of Dan Markel over the weekend. Dan, a professor at Florida State College of Law, was a co-founder of PrawfsBlawg and a prolific scholar in the area of punishment and retributive justice. The local ABC News station reports that Dan was shot at his home on Friday and passed away the following day at an area hospital.
PrawfsBlawg has an on-line memorial for their colleague and friend here.
Paul Caron has collected the news reports on this tragedy here.
- Sheila and Chris