Wednesday, June 20, 2018
Last Friday, the Court of Appeal, Fourth Appellate District handed down a ruling in Coyle v. Historic Mission Inn Corp. The short version of the case is that the court, reversing a trial court's grant of summary judgment, held that a restaurant owner has a duty of care to protect patrons from foreseeable black widow spider bites. Such a holding should surprise no one. The court differentiated between the elements of duty and breach:
If a restaurant were overrun with poisonous spiders, it would be shocking to say the restaurant had no duty whatsoever to protect patrons from the spiders. However, that is what happened in the trial court. The trial court concluded that a restaurant has no duty to use reasonable care in relation to black widow spiders. Because the trial court concluded there is no duty, the trial court created a categorical exception to the general rule that one must exercise due care. (See Cabral, supra, 51 Cal.4th at p. 777 [the exemption concerns the "entire category of negligent conduct"].) We cannot agree with such a conclusion.
It is possible that it will be found that the Mission Inn met its reasonable standard of care—that despite reasonable efforts being made, an accident occurred, which is relevant to breach. However, under the generalized foreseeability analysis that is relevant to duty, because it is reasonably foreseeable that the failure to take any action more than recording the presence of spiders could lead to harm, there is not a good reason in the foreseeability portion of the analysis to create an exception to the general rule that there is a duty to exercise reasonable care. (See Cabral, supra, 51 Cal.4th at p. 775 ["generalized sense of foreseeability pertinent to the duty question"].)
Thanks to Christopher Ng for the tip.
Wednesday, June 6, 2018
In California, the "tort wars" have been quiet recently. That may change due to wildfires and a court decision finding lead paint manufacturers liable for a public nuisance. The state's utilities, potentially on the hook for billions of dollars in damage caused by wildfires, and lead paint manufacturers have sought legislation to protect themselves from damages. The Mercury News has details.
Thursday, May 31, 2018
The Michigan Court of Appeals recently upheld the high standard necessary to overcome the workers' compensation bar to suing an employer in tort. As in other jurisdictions, Michigan makes it difficult for an injured employee to sue his or her employer in tort. A common exception is for intentional torts. Michigan requires the employee demonstrate he or she was injured "as the result of a deliberate act of the employer and the employer specifically intended the injury." In a decision announced last month, Shumaker v. Meritt Tool & Dye, an employee was working with a large press used to cut steel. The employee lost three fingers when the machine unexpectedly double-cycled. The employer had received safety citations a few years prior relevant to the press:
Ultimately, the Court of Appeals held that (1) despite the employer having actual knowledge that the machine could double-cycle, the plaintiff failed to show there was a genuine issue of material fact about whether an injury was "certain to occur" as is required by MCL 418.131; and (2) even if the plaintiff had established that the defendant had actual knowledge that the injury was certain to occur, the plaintiff showed no evidence that the employer "willfully disregarded" such knowledge.
Lexology has the story.
Tuesday, May 22, 2018
Pennsylvania, facing a large budget deficit, attempted to take $200M from a state-created joint underwriting association for medical malpractice insurance. The state passed a law requiring the JUA to give up $200M of its $268M surplus by December 1, 2017 or be dissolved. Judge Christopher Conner of the Middle District of Pennsylvania issued a preliminary injunction to halt the dissolution. Stating the money was private property, Judge Conner has held that the transfer is a seizure of property without compensation and is unconstitutional.
Friday, May 11, 2018
Jill Wieber Lens has published "Recognizing Stillborn Babies Does Not Threaten Abortion Rights" at HuffPost. Here's a sample:
Abortion rights groups rationally ― and rightly ― fight against abortion limits, including bans on abortions after however many weeks of pregnancy and mandatory ultrasounds. But the fight against recognition of stillbirth feels a bit irrational. The Supreme Court in Roe v. Wade specifically recognized that a tort claim for parents after the death of an unborn child does not give the unborn baby any rights. It is the parents’ claim, not the unborn baby’s claim.
Thursday, May 10, 2018
Ohio recognizes an independent tort of intentional, but not negligent, spoliation of evidence. The Supreme Court has further restricted the tort:
In Elliott-Thomas v. Smith, Slip Opinion No. 2018-Ohio-1783, the Supreme Court narrowed the scope of intentional spoliation claims by adding the requirement of actual proof of destruction or alteration of evidence. Further, the Supreme Court held that claims for intentional concealment of, or intentional interference with, evidence are excluded from intentional spoliation claims.
JDSupra has details.
Monday, April 30, 2018
Ian McElhaney has posted to SSRN If a Tree Falls in a Roadway, Is Anyone Liable? Proposing the Duty of Reasonable Care for Virginia's Road-Maintaining Entities. The abstract provides:
“If a tree falls in the forest, and there’s nobody around to hear, does it make a sound?” While the answer to that question is “yes,” not all questions involving trees are so easily disposed.
The case of Matthew Cline presents an unfortunate example of such a question. Cline was traveling in Charlottesville, Virginia, “when a tree fell and crushed the roof, windshield and hood of the vehicle Cline was driving. Cline suffered severe and permanent injuries, including fractures of his cervical spine.” In the subsequent suit, Cline alleged that Dunlora, the owner of the tree and land, was responsible on a theory of negligence. The Supreme Court of Virginia disagreed — the court found that the law did not “impose a duty upon landowners to protect individuals traveling on an adjacent adjoining public highway from natural conditions on the landowner’s property...” Thus, a question of law remained unanswered: if a private landowner owes no duty with respect to trees adjacent to the roadway, who, if anyone, does?
Following this case, Cline asserted that liability fell to the Commonwealth of Virginia. The claim, however, resolved on assumption-of-duty grounds, and did not turn to the question of whether a road-maintaining entity has a duty to inspect for or cut down dangerous trees adjacent to the roadways it maintains. The question deserves an answer for safety’s sake in the Commonwealth. This Note calls for an answer in the affirmative: a road-maintaining entity should have a duty of reasonable care to remediate dangerous trees adjoining the roadways it maintains.
Part II of this Note considers whether a duty for road-maintaining entities is tenable under Virginia law. The Part also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities. Part III reviews the various duties other states use with respect to dangerous roadside trees, and concludes that the duty of reasonable care is most appropriate for Virginia.
Sovereign immunity is a companion issue, and is addressed in Part IV. The Part provides a brief overview of the policy arguments for sovereign immunity, before reviewing immunity’s impact at the state, county, and municipal levels. The Part also addresses a government employee’s entitlement to immunity, before considering a potential legislative solution to some of the present difficulties associated with sovereign immunity.
Finally, this Note reviews anticipated impacts in the world of litigation as a result of the duty of reasonable care, before addressing the legal and policy arguments of those who say the impact of such a duty would be negative.
Tuesday, April 24, 2018
The United States Supreme Court has ruled that foreign corporations cannot be defendants in suits alleging human rights violations under the Alien Tort Statute. The question, answered in Jesner v. Arab Bank, has been raised since the 2013 Kiobel case. The ABA Journal has details.
Wednesday, April 18, 2018
In 2011, a Wisconsin woman had all four limbs amputated. A jury determined health care providers were responsible by negligently failing to diagnose an infection and awarded her $25.3M. The non-economic damages portion of the award was approximately $16.5M. WI has a med mal cap on non-economic damages of $750,000. The trial judge ruled the cap was unconstitutional as applied to the plaintiff's case. The intermediate appellate court went further and ruled the cap was unconstitutional. Tomorrow the Wisconsin Supreme Court hears arguments in the case. The Milwaukee Journal Sentinel has the story.
Tuesday, April 10, 2018
The AP's John Seewer has a piece about ride inspectors and liability; the upshot is that states generally protect inspectors and they are almost never included as defendants. This is often done via immunity, public duty rule, or both. The Ohio Fair deaths last summer are a striking example because the ride had been inspected hours prior to the incident.
Updated: A relevant paper from this blog's founder, Bill Childs, from 2006.
Friday, April 6, 2018
In The Regents of the University of California v. Superior Court, 2018 Cal.LEXIS 1971 (March 22, 2018), the Supreme Court of California held that universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities. Thanks to Robert Bohrer for the tip.
Wednesday, March 28, 2018
The same grand jury that indicted the park and former director of operations with numerous felonies has indicted the park's owner and ride designer with reckless second-degree murder:
According to the indictments, Henry [owner] decided in 2012 to build the world's tallest water slide to impress the producers of a Travel Channel show. Henry's desire to "rush the project" and a lack of expertise caused the company to "skip fundamental steps in the design process."
The indictment said, "not a single engineer was directly involved in Verruckt's dynamic engineering or slide path design." The indictment said that in 2014, when there were news reports emerging about airborne rafts, a company spokesperson "discredited" them and Henry and his designer began "secretly testing at night to avoid scrutiny."
The indictment listed 13 injuries during the 182 days the ride was in operation, including two concussions. In one of those cases, a 15-year-old girl went temporarily blind while riding.
The Chicago Tribune has the story.
Monday, March 26, 2018
Schlitterbahn Waterpark of Kansas City has been charged with criminal behavior in the death of 10-year-old Caleb Schwab according to WaPo:
Schlitterbahn and Tyler Austin Miles, former director of operations, have been charged with involuntary manslaughter and several counts of aggravated battery, aggravated endangering a child and interference with law enforcement. Investigators say the company knew the waterslide was unsafe and could result in injuries and deaths, but still rushed to open it to the public. Perhaps more disturbing is the allegation that several injuries, from neck pain to concussion, had already occurred before Caleb’s death. Still, investigators allege, Schlitterbahn and Miles kept the ride open to the public — and even hid reports of those injuries and other alarming safety problems from law enforcement officers who were investigating the boy’s death.
Thursday, March 1, 2018
The Supreme Judicial Court of Massachusetts has ruled that the Massachusetts Tort Claims Act insulates school districts from paying damages for injuries suffered by victims of bullying. The case was filed on behalf of a bullied 4th grader who eventually was pushed down the stairs and suffered permanent paralysis. The Boston Globe has the story.
Tuesday, January 30, 2018
The state legislature and Governor Cuomo have reached a deal on Lavern's Law, the only bill remaining from the last session on which Cuomo has taken no action. The Daily News reports:
Gov. Cuomo and state legislative leaders have struck a deal for the medical malpractice bill known as Lavern’s Law to be signed into law.
Cuomo plans to sign the bill this week, after the Legislature votes to amend the version it passed in June. The bill would start a 2 1/2-year window to bring malpractice cases involving cancer when the patient discovers the error. Currently, the clock starts when the mistake occurs — meaning patients may lose their chance to sue before they even find out there’s been an error.
Under the amended version, people whose statute of limitations ran out in the last 10 months will get a six-month window to sue. The bill the Legislature passed offered a window for cases going back seven years.
The changes also make it more clear that the new rules apply only to cancer, not other illnesses.
The full article is here.
Thursday, December 21, 2017
On Tuesday, the Wyoming Supreme Court recognized intrusion upon seclusion. According to the opinion, there is now only one jurisdiction in the U.S. that has not taken a stand on the invasion of privacy torts. Of the other 48 states, only 2 have explicitly refused to adopt intrusion upon seclusion. The case involved allegations that a rent-to-own company installed software on laptops without plaintiffs' knowledge. The software allegedly could be used to remotely access the laptops’ cameras, capture the content of the laptops’ screens and log keystrokes entered on the laptops. KPVI has the story.
Wednesday, December 13, 2017
Tuesday, December 12, 2017
A Columbus, GA woman brought suit against a hospital and one of its physicians based on an allegedly botched neck surgery. After the surgery, among other injuries, the plaintiff went blind, suffered brain damage, and was confined to a wheelchair. Following a two-week trial, the jury awarded $26 million in damages. The Ledger-Enquirer has the story.
Monday, November 27, 2017
Gregory Parks (Wake Forest) has a piece in The Huffington Post about the tort duties of fraternities and sororities with regard to hazing. The issue is relevant in Pennsylvania due to the February death of a pledge at a Penn State fraternity. Stacy Parks Miller, the Centre County District Attorney, has been aggressive in prosecuting numerous members of the now-defunct fraternity where the death occurred. The pledge is on tape (the tape having been recovered by the FBI after allegedly being deleted by a fraternity member) being given 18 drinks in 82 minutes. Other footage shows fraternity members not seeking help during the course of an entire night for the unconscious pledge who suffered several falls.
Parks focuses on tort law. After discussing custom in the "industry," Parks continues:
Regarding hazing, fraternities and sororities have reached a point—and probably did so long ago—when what is expected of them should be heightened. No longer should they be able to say that they’ve done their best or that their approaches are consistent with others in their industry. At its most basic level, what should be expected of fraternities and sororities is that they have harnessed, internalized, and employed the totality of research on hazing. They must also engage with hazing researchers and consultants who employ hazing research and hazing prevention best-practices. You can’t say that you’ve adequately attempted to address hazing and are grossly ignorant of the research on the topic and haven’t engaged with those grappling with the issue.
Friday, November 24, 2017
PA: Federal Judge Issues Preliminary Injunction to Prevent State from Dissolving Med Mal Insurer and Taking its Money
Two weeks ago, I reported that the Commonwealth of Pennsylvania was attempting to use surplus funds from a med mal insurer that was created by state law, but was not a part of state government. Pennsylvania, trying to balance its budget, passed a law requiring the Pennsylvania Professional Liability Joint Underwriting Association (JUA) to turn over $200M of a $268M surplus by December 1. If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance. Now Judge Christopher Conner has issued a preliminary injunction barring the state from carrying out that action. The judge's order puts the issue on hold until a federal trial can be held. PennLive has the story.