Thursday, August 2, 2018
The heartbalm torts--torts used to soothe a spouse's heart if cheated upon--have been abrogated in most jurisdictions. Six jurisdictions, however, retain some version of alienation of affections, criminal conversation, or both: Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. In these states, a cheated-upon spouse can sue the interloper in the marriage, not the other spouse. North Carolina makes the most use of these torts, and this week a man was hit with an $8.8M verdict for conducting a 16-month affair with another man's wife. Most of the verdict was in punitive damages, but $2.2M was in compensatory damages. When the plaintiff learned of his wife's infidelity, his business lost revenue and a valued employee (his wife). CNN has the story.
Monday, July 23, 2018
On July 26, 2017, a ride at the Ohio State Fair catastrophically failed, killing one, seriously injuring four, and injuring 22 others. The "Fire Ball," which has six "arms" that spin riders around, had one arm crack off due to rust. It was later discovered that all six arms had significant corrosion. Ohio Department of Agriculture inspectors had reviewed the ride a few hours prior to the incident. State inspectors, however, have a form of qualified immunity that protects them from liability for negligence. The ride manufacturer is protected by a statute of repose. Several settlements have been reached, including an approximate $1.3M settlement on behalf of the 18-year-old man who was killed. Those settlements are with the ride operator, which has an aggregate $10M insurance policy in place, and a private company that inspected the ride. The Columbus Dispatch wrote a great update piece yesterday (you may need to sign in to obtain access).
Thursday, July 19, 2018
Judge Christopher Conner has issued a preliminary injunction stopping the Commonwealth of Pennsylvania from absorbing the JUA (and its money) into its Insurance Department. In May, Judge Conner ruled Pennsylvania could not take $200M from the JUA in an attempt to balance its budget because the money was private property and such a seizure violated the Takings Clause of the United States Constitution. The current ruling indicates those principles apply equally to an absorption. The May ruling is on appeal to the Third Circuit. PennLive has the story. Thanks to Dan Noon for the tip.
Friday, July 13, 2018
In a case of first impression at the circuit level, the Third Circuit ruled that TSA screeners are not law enforcement officers under the Federal Tort Claims Act; claims related to their conduct are barred by sovereign immunity:
In a statement, U.S. Attorney William M. McSwain said he is pleased with the decision.
“Through the Federal Tort Claims Act, Congress sought carefully to balance the federal government’s sovereign immunity and duty to protect taxpayer dollars against the need to provide a remedy for plaintiffs in certain cases,” McSwain said. “The court rightly concluded that Congress did not provide for suits against the government for the acts of federal employees, including Transportation Security Administration Officers, who are not empowered by law with traditional law enforcement responsibilities.”
Lizzy McLellan of The Legal Intelligencer has the story.
Tuesday, July 10, 2018
Last March, a tragic fire here in Harrisburg killed two girls (a two-year-old and a ten-year-old). The fire allegedly occurred when a LayZBoard hoverboard overheated while it was charging. The families are now suing the manufacturer and seeking more than $500,000 in damages. A further tragedy occurred as a fireman was responding to the call; he was killed when a driver who was high ran a stop sign. The proximate cause implications are exam-worthy. The Tampa Bay Times has details.
Thursday, July 5, 2018
Back in May, Judge Christopher Conner of the Middle District of Pennsylvania ruled that the Commonwealth could not take $200M from the state-created joint underwriting association (JUA) for medical malpractice insurance to balance the budget. The judge ruled it was a seizure of property without compensation and was unconstitutional. (Coverage here) Having been thwarted, the Commonwealth passed a budget that simply absorbs the JUA's operations into the Insurance Department. The JUA has sued again and has filed a motion for a temporary restraining order and preliminary injunction. WITF has the story.
Wednesday, June 27, 2018
A federal judge in San Francisco dismissed public nuisance suits for climate change brought by the cities of San Francisco and Oakland against five of the nation's largest oil companies. The judge accepted the "vast scientific consensus" that fossil fuels cause climate change. However:
“Questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our executive, and at least the Senate,” [the judge] said. “Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.”
The ABA Journal has the story.
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.