TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, September 27, 2016

IN: Tort Claim Notice Filed over Death from Chase by Off-Duty Reserve Officer

The family of an 18-year-old killed when his motorcycle crashed into a bean field has filed a tort claim notice against the town that once employed the off-duty reserve officer who chased the teen.  The teen was allegedly driving 120 miles per hour on a motorcycle without a license plate.  According to the town, the off-duty reserve officer, who has since resigned, had no authority to pursue him.  The plaintiff's lawyer made the following statement:

  “To hold the Town of Nashville liable, we must show that Burch was acting in the ‘course of his employment.’ Knowing this and in anticipation of a lawsuit, Nashville is disavowing Leonard Burch and throwing him under the proverbial bus.”

Fox59 has details.

September 27, 2016 in Current Affairs | Permalink | Comments (0)

Friday, September 23, 2016

$3M Shale Verdict: Nuisance or Toxic Tort?

The Parr family in Texas won a $3M verdict alleging they were sickened by fumes from natural gas wells.  They sued using a nuisance theory.  At oral arguments in the Fifth Circuit last week, the defendant driller argued the case did not lie in nuisance, but instead was a toxic tort case.  The key difference between the two is the lower evidentiary burden; the plaintiffs conceded they could not meet Texas's toxic tort standards.  Defendant noted:

[T]he family didn’t introduce expert testimony or other evidence supporting its claim of toxic exposure, didn’t have a doctor testify that their injuries were caused by the alleged pollutants and couldn’t prove their property was irreparably damaged by nearby drilling.

Law 360 has the story (behind a free registration wall).

September 23, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, September 22, 2016

Ford Faces Sunroof Class Action

A suit filed in California alleges some of Ford's sunroofs are dangerous and Ford has been aware of it for nearly a decade.  The suit specifically alleges that as sunroofs have expanded over larger portions of the roof of cars, they have become less safe:

At least 70 owners of Ford vehicles have reported to the National Highway Traffic and Safety Administration that at least 80 panoramic sunroofs have shattered. The complaint alleges Ford has known about this problem since at least 2008 due to complaints to the NHTSA about defective sunroofs shattering in the Ford Edge. Ford has been the subject of an ongoing investigation by the NHTSA on this issue since May 2014.  

AdvantageNews.com has the story.

September 22, 2016 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0)

Friday, September 16, 2016

LA: Study Urges Changes in Consumer Protection Law

Emory's Joanne Shepherd has authored a study, commissioned and funded by the American Tort Reform Foundation, finding Louisiana's consumer protection laws need to be revamped.  She concludes the combination of vagueness and expansive damages has resulted in exploitation by trial lawyers, leading to litigation that costs the consumers the laws were designed to protect.  Louisiana Record has the story.

September 16, 2016 in Current Affairs | Permalink | Comments (0)

Monday, September 12, 2016

Battery Claim on a Law Faculty

I missed this initially, but about 3 weeks ago, the ABA Journal reported that a battery claim between law professors has been dismissed.  The dispute arose out of an encounter in which one professor (and associate and/or interim dean) wanted to speak to another (Torts) professor about a dispute between the Torts professor and a librarian.  Descriptions of the touching that started the encounter differed.  The dean/professor said he placed his hand on the shoulder of the Torts professor; the Torts professor said the dean/professor grabbed his shoulder and began berating him.  The Torts professor filed a battery claim, but the judge dismissed it because the contact was not harmful or offensive.  The story is here.

 

September 12, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, September 6, 2016

Goodman on a Choice Med Mal System

In Forbes, John Goodman, Senior Fellow at the Independent Institute, discusses the well-known shortcomings of the tort system for medical malpractice.  He then proposes an alternative:

Prior to undergoing treatment, patients would be offered voluntary, no-fault insurance as an alternative to the tort system. The base patient compensation would be set by an independent commission and would be paid irrespective of the cause of the adverse event. The rates would be similar to the schedule of payments under workers’ compensation and patients would be free to pay additional premiums out of their own pockets for more generous coverage. Base compensation would be paid by insurers from premium payments by hospitals and physicians—just as they buy malpractice insurance today. The premiums would reflect the individual provider’s (or institution’s) success or failure at reducing adverse events.

Insurance companies, rather than patients and third-party payers, would become the monitors of hospital quality. Providers whose patients experience a lot of adverse events would face high premiums. As the insurance premiums become reflected in hospital and doctor fees, patients and their insurers would become aware of potentially large differences in the cost of care. Price competition would drive patients to lower-cost, higher-quality care.

The entire article is here.

September 6, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, August 18, 2016

PA: Dispute Over Products Jury Instructions

In late 2014, the Supreme Court of Pennsylvania decided Tincher v. Omega Flex, overruling several unusual aspects of state law and declining to adopt R3.  The case created a lot of uncertainty, which has been compounded by recent turnover on the court.  This summer, the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions unveiled the first changes to standard products jury instructions in forty years.  The defense bar and manufacturers are not happy.  In a ten-page letter (Download DC-#626926-v1-Pa__jury_instruction_protest_letter_2016)  sent to the subcommittee's chair, partners from multiple law firms and twenty companies, including Johnson & Johnson; Pfizer Inc.; GlaxoSmithKline; Ford; Shell Oil, and Eli Lilly, raised objections to the proposed standard jury instructions.  The Legal Intelligencer reports:

Chief among those issues, the defense bar said, is the update's failure to include any mention of the requirement under Section 402A of the Restatement (Second) of Torts that a product defect must be "unreasonably dangerous" to support strict liability. The instructions are inconsistent with Tincher's adoption of the "prevailing standard of proof" reflected in the jury instructions of most states that follow Section 402A, and should be rewritten to include an instruction on the issue, the letter said.

The subcommittee chair responded that the subcommittee had taken all perspectives into account when crafting the revisions, but would nevertheless review the proposed instructions again at its next meeting.  The full article (behind a free sign-up wall) is here.

August 18, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Monday, August 15, 2016

NE: Eggshell Plaintiff, Workers' Comp, Battery, and Tort Claims Act

Here is a classic eggshell plaintiff case in which one officer (Lancaster County) gave another (City of Lincoln) a friendly punch on the shoulder in greeting, without knowing that the recipient had recently undergone rotator cuff surgery. The result was $63,418 in medical bills, covered by workers' comp. The City of Lincoln sued Lancaster County for indemnification, but a district judge determined that the punch was an intentional tort (battery) rather than negligence, therefore immunizing Lancaster County from liability under Nebraska's municipal tort claims act.  The Lincoln Journal Star has details.

August 15, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, August 3, 2016

CT: Workers Comp Bars Bystander Emotional Distress Claims

On Monday, the Connecticut Supreme Court ruled that a woman who found her husband crushed to death shortly after a large ATV fell on him cannot sue his employer for bystander emotional distress.  She recovered pursuant to the state's workers comp statute.  The Hartford Courant has the story.

August 3, 2016 in Current Affairs | Permalink | Comments (0)

Monday, July 18, 2016

OH: DuPont Loses "C8" Suit

DuPont has been defending multiple lawsuits over C8, a detergent-like chemical used to make Teflon at a DuPont plant in West Virginia.  DuPont released C8 into the Ohio River and approximately 3,500 plaintiffs from river towns in Ohio and West Virginia allege C8 has caused various types of cancer.  Earlier this month, a jury in Columbus found that DuPont acted with malice when it dumped C8 into the river and awarded a plaintiff with testicular cancer $500,000 in punitive damages.  The Columbus Dispatch has coverage here and here.  

July 18, 2016 in Current Affairs | Permalink | Comments (0)

Monday, July 11, 2016

NJ: Liability in Take-Home Toxic Tort Cases Extends Beyond Spouses

Take-home exposure cases, in which a worker brought home a toxic substance like asbestos on his or her clothes and sickened a spouse, are being expanded in New Jersey.  Last week the court unanimously held such cases were not restricted to spouses.  The facts involve a woman who later became the spouse of a worker bringing home toxic substances.  She was not, however, married to him at the time the exposure began.  The court stated the spousal relationship was not necessary; several factors must be weighed, the most important of which is foreseeability.  NJ Spotlight has the story.

July 11, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Sunday, July 10, 2016

More on Liability for "Self-Driving" Cars

CNN Money has more on liability in the case of the Florida fatality and an accident on the Pennsylvania Turnpike.  Kip Viscusi and John Goldberg are quoted.

July 10, 2016 in Current Affairs | Permalink | Comments (0)

Monday, July 4, 2016

Happy Fourth of July; Careful with the Fireworks

Happy Fourth to our readers in the U.S.  Recent statistics demonstrate that as fireworks laws are liberalized, injuries increase.  Be safe today.

July 4, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, June 29, 2016

IKEA Sued Over Tipping Dressers

At least 6 children have been crushed to death by IKEA dressers, prompting the company to recall approximately 29 million dressers dating to 2002.  Suit filed against IKEA alleges problems with the design and warnings on the products.  ABC has the story.

June 29, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Tuesday, June 28, 2016

Tribal Jurisdiction Over Tort Claim Affirmed by Default

State-based tort law does not lead to a lot of USSC cases, so we are often left with cases tangentially related to torts.  The Court just affirmed by default (4-4) tribal jurisdiction over an assault (molestation) claim brought by a 13-year old member of the Mississippi Band of Choctaw Indians against a Dollar General store operating on tribal lands.  Courthouse News Service has the story.

June 28, 2016 in Current Affairs | Permalink | Comments (0)

Monday, June 27, 2016

French on Gawker and the $140M Hulk Hogan Verdict

Christopher French has posted to SSRN Sex, Videos, and Insurance:  How Gawker Could Have Avoided Financial Responsibility for the $140 Million Hulk Hogan Sex Tape Verdict.  The abstract provides:

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most people for: 1) the shockingly high verdict amount of $140 million awarded to a celebrity adulterer who was filmed having sex with his best friend’s wife, and 2) the battle between what constitutes the outer boundaries of what is considered “news” under the First Amendment and a celebrity’s right to privacy. The case also should be remembered, however, for the lesson it provides business owners: instead of facing a damage award that forced Gawker to file for bankruptcy and to now seek relief on appeal, Gawker actually could have avoided paying any portion of the damage award. How could Gawker have obtained that result? Insurance. This article debunks the conventional wisdom that insurance does not cover intentional torts such as invasion of privacy or punitive damage awards and that it is against public policy to allow insurance to cover intentional torts and punitive damages. Consequently, if Gawker had purchased appropriate insurance, then it may have been able to avoid paying any portion of the ultimate damage award.

June 27, 2016 in Current Affairs, Scholarship | Permalink | Comments (0)

Wednesday, June 22, 2016

PA: Two Women Sue Altoona-Johnstown Diocese Over Alleged Molestation in the 1970s

Back in March, I posted about a grand jury report detailing the sexual molestation of children in the Altoona-Johnstown Diocese.  Now two women have filed lawsuits alleging that a priest from the parish abused them in the 1970s.  The grand jury report led to a debate in the legislature about extending the statute of limitations and possibly including a window in which expired cases could be filed.  The state House passed a bill that would retroactively extend the civil statute of limitations (from age 30 to age 50).  The state Senate Judiciary Committee held a meeting last week and heard from five experts on the constitutionality of retroactively altering the statute of limitations.  The Pennsylvania Constitution has arguably been interpreted as more restrictive than the United States Constitution on the issue.  Four of the five experts opined that the bill was unconstitutional.  The women's lawsuits appear to make a case for extending the statute based on the alleged concealment of the cover-up by the diocese extending through last year.

June 22, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, June 15, 2016

Tesla: Wheel Detaches; Waivers and Nondisclosure Agreements

I'm teaching Products Liability this summer.  It's a fun course to teach, and I have a sense of relief about many of the products defects we no longer have to deal with on a regular basis.  For example, last night in class we covered a case in which a wheel flew off a car and injured a child.  That seemed to me an antiquated problem.  Yet today one of my students sent me this article about a 2013 Tesla Model S electric car having the same issue.  Moreover, the company sometimes proffers consumers waivers and nondisclosure agreements as part of the repair process.  Nondisclosure agreements are common in lawsuit settlements, but this seems unusual.

June 15, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Thursday, June 9, 2016

3-D Printing as Disruptive to Products Liability

The Pittsburgh Post-Gazette has a Pennsylvania-focused story on 3-D printing.  The disruptive nature of the technology for products liability has been obvious for several years.  There are very few cases, but attorneys have started to ponder the issues.  The story has several takeaway points.  First, attorneys expect the early cases to focus on medical and auto parts. Second, the role of computer-aided design (CAD) software as a blueprint for designs will be important:

Products liability attorney Mihai M. Vrasmasu of Shook, Hardy & Bacon said that, when dealing with companies that use 3-D printing, liability issues can generally be broken down to three categories: when a manufacturer buys or licenses a design that is used to print the product, when a manufacturer modifies that file before printing the product, and when a manufacturer designs the file.

Finally, especially in the early period of uncertainty, it is crucial to use contracts to manage liability.

June 9, 2016 in Current Affairs, Web/Tech | Permalink | Comments (0)

Monday, June 6, 2016

Amtrak Sued for Rail Worker's Death in Chester, PA

On April 3, an Amtrak train traveling from New York to Savannah collided with a backhoe in Chester, PA.  The man operating the backhoe, 61-year-old Joseph Carter, was killed.  Kline & Specter's Tom Kline has filed suit on behalf of Carter's adult children.  The Delaware County Daily Times has the story.  

June 6, 2016 in Current Affairs | Permalink | Comments (0)