TortsProf Blog

More Amusement Park Safety in the News

The girl whose feet were severed on a ride at Six Flags Kentucky Kingdom traveled to Washington yesterday to advocate, with her parents, for Rep. Markey's bill adding fixed site amusement parks to the CPSC's jurisdiction.

The longer the family's litigation against Six Flags continues, the more I think it really is at least in part about information gathering and distribution.  The money will almost certainly be there whether they settle now or later (or even if they go to trial, if the facts as they seem to be are accurate), and they're better able to get press in this setting.

--BC

Amusement Safety in the News

Lawyers Weekly USA has a story quoting me on the state of litigation and regulation of the amusement industry.

My support for Rep. Markey's bill to give CPSC oversight of fixed site parks is moderate to say the least.  I think there are likely better agencies to oversee it, and find his discussion of amusement safety to be overblown in many particulars.  As the story notes, I think the industry does an excellent job in almost all situations; I support the bill in the hopes that it will provide better information, both for consumers and for industry.

--BC

Foam Manufacturers Settle RI Nightclub Fire Suit

The ABA Journal reports that several foam insulation manufacturers have agreed to a $30 million settlement in the Rhode Island nightclub fire suit in which a pyrotechnics display during a Great White performance ignited a fire at a Rhode Island nightclub, and killed 100 people.  As USA Today notes, this brings the total settlement to over $101 million.   Remaining defendants include the State of Rhode Island and Anheuser-Busch, Inc.   (For more on the prior settlements, see these prior posts here, here and here). 

- SBS

Apartheid Suit Continues

As MSNBC (via AP) reports, the United States Supreme Court upheld a Second Circuit decision allowing an Alien Tort Claims Act suit to proceed against various banks and corporations based on their alleged "aiding and abetting" of the apartheid system in South Africa by providing loans and goods.   The Supreme Court did not reach the merits of the appeal, but rather was forced to affirm when four Justices recused:

Chief Justice John Roberts and Justices Samuel Alito, Stephen Breyer and Anthony Kennedy provided no explanation for their decision not to take part in the case.

But those justices have ties to Bank of America Corp., Bristol-Myers Squibb Co., Colgate-Palmolive Co., Credit Suisse, Exxon Mobil Corp., Hewlett-Packard Co., IBM and Nestle SA, among nearly three dozen companies that asked the high court to step in.

Kennedy does not hold stock in any affected company, but his son, Gregory, is a managing director at Credit Suisse. Kennedy sat out a case last term involving the investment bank.

The case returns to the lower courts for further proceedings.  In a two-part series on Findlaw, Tony Sebok analyzed the Second Circuit's decision and argued that the win may prove to be a "pyrrhic victory" for the plaintiffs. (Prior posts here and here).

- SBS

No Arbitration for KBR, At Least Not for All Claims

Jamie Leigh Jones's tort suit against KBR (and its former parent Halliburton) will, after the pure workplace claims are resolved, go to litigation.  Details at Forbes (AP story) and TimesOnline; via TortDeform.  Past post here.

The opinion is here: Download KBR.pdf

It's far from a rejection of arbitration, even arbitration of tort suits, or even arbitration of tort suits related to employment (though it's clear that Judge Ellison has concerns about broad arbitration clauses).  He finds the arbitration clause valid and enforceable, rejecting arguments relating to fraud in the inducement, unclean hands, unfair bargaining power, and so on. 

His conclusion is fairly simple and not dependent on any policy arguments: even though the arbitration clause is valid and enforceable, it doesn't reach some of this alleged conduct.  The more pure employment claims are arbitrable, and he stayed the non-arbitrable claims pending the arbitration of those claims.

--BC

Bork Settles

Judge Bork has settled his much-maligned slip-and-fall suit, and Eric Turkewitz has a great overview.

--BC

Sebok on 1993 WTC Bombing

In his latest FindLaw Writ Column, Tony Sebok addresses the recent decision by the New York Appellate Division affirming the jury's verdict against the Port Authority of New York & New Jersey for the 1993 World Trade Center attack.  As Sebok notes, the jury found that the "Port Authority was 68% at fault and the terrorists 32% at fault for the attack."

On appeal, the Port Authority argued that the jury's verdict was "manifestly unreasonable."   The Appellate Division, however, disagreed.  Sebok points to two competing torts rationales - compensation versus fairness - as an underlying explanation:

From a full-compensation point of view, one might argue that the jury's verdict was reasonable enough, for we should err on the side of giving full compensation for the innocent victims at the WTC in 1993, not on the side of protecting the Port Authority's interest in paying for exactly the harm it caused and not a dollar more. Thus, even if it stretched credulity to deem the Port Authority more at fault than the terrorists, at least it served the interest of full compensation.

The Port Authority, however, contends that the harm to fairness here is too great to be borne. It points out that, even if the court invalidated the jury's finding that it was more than 50% liable (and hence more at fault than the terrorists), it would still have to pay plaintiffs' full economic damages. Only the non-economic (pain and suffering damages) would be apportioned according to fault.

- SBS

"They'll figure out a way to hurt themselves."

So says the owner of a privately-held water park in Illinois:

How do you test your rides to ensure they're safe?

We ride 'em ourselves. When we are ready to fire up, my team and I will get in our fiberglass rides and feel every square inch to make sure there's nothing sharp, abrasive or that would snag a guest or a bathing suit. We wax the daylights out of our slides. Maintenance and safety are number one around here.

Do you have lawsuits filed against you?

We have petty lawsuits every year. People are very creative. No matter what we come up with, they'll figure out a way to hurt themselves.

You must carry a lot of insurance.

As the industry began to learn what privately owned water parks were all about, we began to see decreases in the annual premiums. The experience showed that a well-trained staff at a privately owned water park is approximately 100 times safer than a conventional swimming pool. Insurance is easy to get now. There's a lot of competition out there.

--BC

Lawsuits - One Reason Not To Become A Doctor

Chris has been posting a series on Medical Malpractice:  Actors, Flaws and Reforms.  (Second post in series here).  In an article yesterday, Forbes reported on "Reasons Not To Become A Doctor."  Forbes identifies malpractice lawsuits as one of the reasons:

[G]etting sued by a patient is a major concern. Of course, doctors who make fatal mistakes and who are unqualified should be held responsible. But there's evidence that the bulk of lawsuits brought are frivolous. Of all malpractice lawsuits brought to jury trial in 2004, the defendant won 91% of the time. Only 6% of all lawsuits go to trial; those that aren't thrown out are settled. Only 27% of all claims made against doctors result in money awarded to the plaintiff, according to [Lawrence] Smarr, president of the trade association for medical malpractice companies.

Regardless, doctors need to defend themselves against the possibility of damages--and that's an extremely expensive proposition. It takes about four-and-a-half years from the start of a lawsuit to the end, and the average cost to the defense in legal fees was $94,284 in 2004, according to the American Medical Association.

- SBS

Keanu's Excellent Adventure In Punitive Damages

A photographer has filed a personal injury suit against actor Keanu Reeves based on allegations that Reeves struck the photographer with his car.  The suit brings negligence and assault & battery claims.   The complaint seeks an unspecified amount in compensatory and punitive damages.  Yesterday, Judge Elizabeth Grimes of the L.A. Superior Court denied Reeves's motion to strike the punitive damages claim. 

(Via California Punitive Damages).

- SBS

Roger Clemens, Defamation, and Evidence

The Sports Law Blog has a detailed post on the admissibility (or, more likely, inadmissibility) of evidence relating to Roger Clemens's alleged affairs on his defamation claim against trainer Brian McNamee.  Worth a read if you're following the story.

--BC

Bridge Collapse Deal Reached

Minnesota legislators reached a deal to settle with the victims of last year's bridge collapse, reports the Strib. The default payment cap is $400,000, but a second fund will provide compensation for "extraordinary" losses -- medical expenses above $400,000 and the like. Those accepting the payments will waive future claims. It appears that victims are supportive of the bill.

--BC

Second Circuit Weighs In on NYC Menu-Calorie-Regulation

As noted yesterday, a federal district judge has upheld the NYC regulation requiring chain restaurants to post calorie information.   The United States Court of Appeals for the Second Circuit has now lifted a stay, allowing the law to go into effect.  The city, however, has agreed to delay issuing any fines under the new law until July 18th.   As WNBC reports, yesterday's oral argument on the stay might have foretold at least one Judge's position on the merits:

In arguments earlier Tuesday, [Restaurant Association lawyer Kent] Yalowitz said restaurants believe federal laws pre-empted local efforts to try to regulate how restaurants describe the contents of their food. He said the First Amendment rights of restaurants protected them as well.

Judge Rosemary Pooler noted that cigarette packages contain health warnings. "If we were to adopt your view, no warnings would ever appear on anything," she said.   

- SBS

Would You Like to Supersize?

On April 16th, U.S. District Judge Richard J. Holwell upheld New York City's revised Regulation 81.50, which require restaurants to post calorie information on menus.  As previously reported, Judge Holwell struck down the original regulation last September.  The original regulations only applied to restaurants that already had voluntarily disclosed nutrition information to their customers.  Judge Holwell concluded that the original regs were preempted by the federal Nutrition Labeling and Education Act of 1990 because the NLEA regulated voluntary disclosure of nutrition information by restaurants.   

In his latest opinion, however, Judge Holwell found that the revised regulation "is not preempted by NLEA because that statute explicitly leaves to state and local governments the power to impose mandatory nutrition labeling by restaurants."    Judge Holwell also rejected a First Amendment challenge by the Restaurant Association.  The New York Law Journal (via law.com) has a full report on the decision. 

The new regulations took effect on Monday, April 21st, and only apply to chain restaurants with at least 15 outlets across the country.  WNBC reports that the Health Department will not start fining restaurants until June 1st. 

- SBS

Risks at Basketball Games

A dentist is suing the Chicago Bulls for injuries he suffered at a basketball game, not due to any of the usual game-related risks, but instead due to the mascot, Benny the Bull:

Dr. Don Kalant Sr. alleged he was sitting near courtside on Feb. 12 when he raised his arm to get a high-five from [the mascot]. . . .  Instead of merely slapping Kalant's palm, Anderson grabbed his arm as he fell forward, hyperextending Kalant's arm and rupturing his biceps muscle, according to the lawsuit filed in Cook County Circuit Court.

* * *

The lawsuit claims Anderson was negligent in either "falling forward while grabbing a fan's hand" or "running out of control" through the crowd according to the Chicago Tribune.

Kalant is out of work for up to four months.  I just taught assumption of risk in my final Torts class of the year last night; an interesting question whether this would be in the inherent risk category.

--BC

GAO Report on FDA: Recent Initiatives Have Potential But Weaknesses Remain

In a report [pdf] released yesterday, the Government Accounting Office concluded that "[r]ecent FDA initiatives--some of which have been implemented and others proposed--could strengthen FDA's foreign drug inspection program, but these initiatives do not fully address the weaknesses that GAO previously identified."  For example,

[In November 2007], GAO testified that gaps in information weaken FDA's processes for prioritizing the inspection of foreign establishments that pose the greatest risk to public health. While FDA recently expressed interest in obtaining useful information from foreign regulatory bodies that could help it prioritize foreign establishments for inspections, the agency has faced difficulties fully utilizing these arrangements in the past. For example, FDA had difficulties in determining whether the scope of other countries' inspection reports met its needs and these reports were not always readily available in English.

- SBS 

Happy Earth Day!

To celebrate Earth Day 2008, check out National Geographic's Green Guide, and the "seven simple ideas for change."   

- SBS

Six Flags Kinda Defends Maintenance Practices

The headline in the local paper is that Six Flags defended its maintenance practices, but it really doesn't -- it says its people acted appropriately, but doesn't do anything to actually distance itself from the revelations yesterday that the staff didn't follow the manual's instructions.  Instead, it criticizes the family for releasing material from discovery -- material that's not under a protective order.  It may only give part of the picture, of course, but, at least from the story, Six Flags made no effort to tell the rest of it...which is, of course, the standard approach for defendants.

--BC

Kentucky Kingdom Maintenance Supervisor: Maintenance Ignored

The AP reports that the maintenance staff at Six Flags Kentucky Kingdom failed in several potentially material ways to properly maintain the cables on the drop ride that later severed a girl's feet.  The revelation came in the deposition of the head of the maintenance staff:

John Schmidt, the park's ride-maintenance manager since 1999, said in a deposition in November that technicians for the theme park never performed a hands-on inspection before the accident on any of the 10 cables on the Superman Tower of Power ride.

Schmidt, 56, also said that park technicians did not lubricate the cables monthly, and that they applied cornstarch to reduce "cable slippage" from over-lubrication that they believed was coming from the ride's machinery.

It appears that the park also did not do at least one part of the recommended maintenance, using a rag to check for snags:

Schmidt said in his deposition that workers conducted twice-weekly visual inspections, "It was never brought to my attention to check those cables with a rag for snags."

The copy of the manual I have doesn't note the rag method.

--BC

Of Mice and Men, Er, Of Hamsters and Torts

In a torts exam come to life, a woman is suing PetSmart after her husband received a liver from a woman who had been infected by a hamster adopted from PetSmart.

Whew.  Let's just follow the lines:

Hamster gets lymphocytic choriomeningitis.  Sad for hamster.  I suppose.  Maybe it's just a carrier; I admit to ignorance about lymphocytic choriomeningitis.

Hamster sold by PetSmart to an unnamed woman.  That woman dies of an unrelated stroke.  Sad for woman.  Her organs are donated.

Thomas Magee receives liver of unnamed woman.  Good for Thomas!

Or not.  Sad for Thomas: Thomas gets lymphocytic choriomeningitis and dies.  Two other people who received organs from the unnamed woman have allegedly also been infected.

Lawsuit alleging PetSmart was negligent in, I assume, failing to test for lymphocytic choriomeningitis.

--BC

Judge, Lawyers Debate Tort Reform in Texas

A panel discussion becomes a lengthy, informal exchange about the benefits of tort reform in Texas.  The Southeast Texas Record has the details.

--CJR

"The Worst Places To Get Sued In America"

In an article yesterday, Forbes reports on "The Worst Places to Get Sued in America."  Forbes asked the American Tort Reform Association, which compiles an annual listing of "judicial hellholes," to compile "the worst possible places to be a defendant in particular types of lawsuits":

Hit with a personal-injury lawsuit? Better hope it's not in Starr County, Texas. Class actions? Hopefully you won't find out why John Grisham sets so many legal thrillers in Mississippi. Construction suits? Building's not the only thing booming in Clark County, Nev. And journalists hoping to avoid libel suits may wish to avoid courts in Philadelphia, according to ATRA's report for Forbes.

The report also names Palm Beach County, Florida, as the worst for med-mal suits.   The article quotes extensively from Walter Olson at Overlawyered/Point of Law. 

- SBS

Peggy Sue Apologizes

The New York Daily News reports that Nicholas Cage has settled his libel suit against Kathleen Turner.   (Prior post on the suit here).  According to the Daily News:

[Cage's lawyer] said all the defandants apologized to Cage and will pay all of Cage's legal costs. Smith said they will also make a substantial donation to a charity chosen by Cage - The National Adult Protective Services Foundation, which benefits victims of elder abuse.

Cage will not be filing suit in the U.S. "because the publisher is adding a correction statement to future books sold here."   

- SBS

   

Foreign Objects in Food?

Locally we have had several instances of people allegedly finding foreign objects in their food.  Negligence?  Breach of warranty?  Strict products liability?  Those are good doctrinal concerns, but don't be hasty.

In the first case, a woman found what was identified as an herbal supplement in her frozen fish.  A recall was instituted.  Later, one of her children admitted placing the pills in the fish.  Now, a man alleges he found a pill floating in his orange juice.  He reported the incident to the store, and has since been administered multiple lie detector tests by the FDA.  His case is unresolved.  The story (which quotes me for the astute observation that false claims increase scrutiny on subsequent claims) is here. 

--CJR

Complexities in the Bullying Story

The Northwest Arkansas Times (h/t WVC) reports on complexities in the story of Billy Wolfe, the victim of bullying around which the NYT centered a story (earlier post here). In short, while most everyone agrees that Wolfe has been bullied, he's also allegedly been the aggressor in a number of bullying incidents himself.

--BC

More Settlements in RI Club Fire Suits

Three more defendants are close to settlements in the Rhode Island nightclub fire suit in which a pyrotechnics display during a Great White performance ignited a fire at a Rhode Island nightclub, and killed 100 people.  According to the report, Audio maker JBL, ABC Bus Inc., and Superstar Services LLC are near settlement.  (Via Overlawyered).   As previously reported, several other defendants have already settled.

In a related note, one would think the Great White fire would have caused performers to steer clear of fireworks displays.   Instead, ABC News recently reported on a fireworks accident at a WrestleMania event in Florida; luckily, only minor injuries were reported:

- SBS

Are Insurers Responsible for High Malpractice Premiums? Updated

That's the view in this op/ed piece in today's Concord Monitor.  On the one hand, the author, Christopher J. Seufert, is a trial lawyer.  He has a financial stake in the argument, and one should take the opinion with a grain of salt.  On the other hand, he does support his argument with some empirical data.  Does he prove his point?

Update:  Martin Grace/RiskProf and Ted Frank/Point of Law aren't convinced.

--CJR

How Much Does One Big Accident Cost?

Quite a number of people were injured on the Son of Beast roller coaster at Paramount's Kings Island in Ohio in 2006 when a timber in the support structure broke. The ride went through extensive reworkings, including the complete removal of the loop (it had previously been the only extant wooden roller coaster in the world with a loop) and major structural changes. In addition, many, if not all, of the riders filed suit for their injuries. Now we know how much, in rough terms, all of that cost.

$20 million.

At least that's how much the park had been awarded in a lower court ruling in its suit against the ride designer's insurer. But the intermediate appellate court reversed, ruling that the kind of damages at issue were not covered.

That's probably about how much the park spent on the coaster when it was initially built.

--BC

Bullying and Litigation

The NYT today has a story about a now-fifteen-year-old boy in Fayetteville, Arkansas, who has been subjected to endless and merciless bullying over the years.  As the story notes, it's not at all clear why he's been targeted the way he has been; at least one school official seems to think he is inviting it in some way.  After several years and what seem to be reasonable efforts to work with the school system, the family has turned to litigation:

The Wolfes are not satisfied. This month they sued one of the bullies “and other John Does,” and are considering another lawsuit against the Fayetteville School District. Their lawyer, D. Westbrook Doss Jr., said there was neither glee nor much monetary reward in suing teenagers, but a point had to be made: schoolchildren deserve to feel safe.

--BC

2003 Photos Show Bends in Minnesota Bridge Gusset Plates

In news that is certain to be central to litigation over the Minnesota bridge collapse, the AP (via the Washington Post) reports that 2003 photos showed bends in gusset plates that are now believed to be among the key failure points in the collapse.

The two photos are believed to have been taken by URS Inc., a San Francisco consulting firm the state hired to examine the bridge from 2003 to 2007.

"URS and the state have both got a lot of explaining to do as far as why (the bending) was not observed, and if it was observed, why that was not immediately investigated," James Schwebel, an attorney representing a group of victims, told the AP on Sunday. "How could it possibly have been missed?"

No lawsuit has been filed, but Schwebel said his engineering experts are studying the information.

Attorney Phil Sieff, who represents another group of plaintiffs, said the deformation could have affected how much weight the gusset plate could hold.

--BC

Torts at the Stadium

A 60-foot escalator allegedly malfunctioned at Giants Stadium in late December, immediately following the Giants-Patriots game.  The Star-Ledger reports that eight people have filed notices to sue the New Jersey Sports and Exposition Authority.  Several of the reported claims are serious.  The potential overlap between products and premises liability can make these claims doctrinally interesting.  Perhaps the potential defendant is taking a cue from the Sorry Works! theory reported by Sheila yesterday:

"While the investigation is ongoing it is inappropriate for us to comment, but the authority management empathizes with those guests of ours who were affected," said John Samerjan, a spokesman for the sports authority, which operates Giants Stadium.

Notice the distinction between an expression of sympathy and an acknowledgment of responsibility.

--CJR

"Sorry Works!" - Apology to Prevent Med Mal Claims

I just read "Sorry Works!" by Doug Wojcieszak, James W. Saxton, and Maggie M. Finkelstein.   I found the book's premise to be very interesting.  The book argues that medical malpratice suits could be avoided through "disclosure and apology" programs.   Sorry Works! posits that "anger - not greed - is what drives most customers to file medical malpractice lawsuits."    Accordingly, the authors recommend that health care providers develop a disclosure and apology program.   

Notably, the authors distinguish between saying "I'm sorry" - which is an "expression of sympathy" and an "apology", which is "an acceptance of responsibility or admission of fault."    The authors provide concrete examples of this difference.   "I'm sorry", for example, could include "I'm sorry about this complication..." or "I'm sorry for your loss."   Apology, on the other hand, includes an admission of fault:  "I'm sorry that I misread your x-ray."   The book recommends that medical providers always offer an "I'm sorry" as a means of showing empathy, diffusing anger, and preventing misunderstanding.   Apologies, on the other hand, should only be offered after investigation has indicated that a true medical error occurred.    Very interesting concepts.   

The book is available through Sorry Works! and major on-line retailers.   More information about the Sorry Works! program can be found on their website, too.

- SBS 

The Pet Food Recalls - One Year Later

Kim Campbell Thornton has an interesting article at MSNBC reviewing the state of the law one-year after the biggest pet food recall in U.S. history:

While pet food safety legislation has been passed and an industry commission has made recommendations to improve the safety and quality standards for pet food, some critics say the efforts, even when they are fully implemented, may not amount to much more than the fox guarding the hen house.

- SBS

Ritter Jury: Defense Verdict

A California jury has just returned a defense verdict in favor of a cardiologist and a radiologist in the 2003 death of actor John Ritter.  Ritter's family had filed a medical malpractice action for $67 million.  CNN has the story.

--CJR

PRI 2008 Tort Liability Index Released

The Pacific Research Institute has released its 2008 Tort Liability Index [pdf].  The report "measures the best and worst tort systems in America."   The top 5 "best" states were, in order: North Dakota, Alaska, North Carolina, Iowa and Virginia.   The 5 "worst" states were Montana, Illinois, New York, New Jersey and Florida at # 50. 

- SBS

Another Celebrity Libel Suit

London's High Court is busy with libel suits by American celebrities.   The latest is a suit by Lisa Marie Presley against the British paper Daily Mail.  As the AP reports, the suit is based on a newspaper article that alleged Presley was gaining weight.   She has since revealed that she is pregnant.    Her suit seeks damages and an apology.   

- SBS

Drugs in Water

The AP found dozens of prescription drugs in the drinking water supplies of various cities. As the story notes, patients' bodies don't absorb all of the relevant compounds (the package insert even specifies absorption, if memory serves), and so some amount of it escapes through urine, and then ends up back in the water system.

Merck's director of environmental technology commented: "There's no doubt about it, pharmaceuticals are being detected in the environment and there is genuine concern that these compounds, in the small concentrations that they're at, could be causing impacts to human health or to aquatic organisms."

No litigation is mentioned in the story, but presumably some folks are poking around thinking about it. Interesting issues of duty and foreseeability.

--BC

Happy Birthday, PI Roundup!

Started by Eric Turkewitz, and now run by Brooks Schuelke, the weekly personal injury law roundup turned one last week. If it's not already weekly reading for you, it should be. It's a good overview of personal injury law developments from the perspective of a thoughtful plaintiffs' lawyer in Austin, Texas.

--BC

Lawsuits Coming in Case of Vegas Clinic Allegations

The AP reports that up to 40,000 received word this week that they may be at risk of illness due to their visits to the Endoscopy Center of Southern Nevada (which has been ordered closed and an appeal denied). Among other things, investigations indicate that the clinic routinely reused syringes and vials, allegedly as a cost-savings measure.

As the AP article notes, suits have been filed already; a Google search for the clinic name comes up with a number of lawyer ads, including one identified as "Nevada Health Alert" (only once you follow the link do you find out that it's a lawyer advertisement).

--BC

OMG, I Just Hit a Car

After noticing that hundreds of people per week find their site while searching "texting while driving," Perlmutter & Schuelke compiled information concerning the topic in this post.  They divided the sources into categories of mainstream news stories, studies, and legal resources/blogs.  One study, perhaps unsurprisingly, found that drivers who were text messaging were 10 times more likely to leave their lane than regular drivers.

--CJR

Avoiding Recusal-Based Ties at USSC

In light of yesterday's per curiam decision in Kent, Howard Bashman's "On Appeal" column at law.com should be of interest.    Bashman discusses recusal-based ties at the Supreme Court, and proposes allowing federal circuit judges to sit by designation in cases where a Supreme Court Justice recuses. 

- SBS

Updated: On Being Risk Averse

Ted Frank contemplates self-operated amusement park rides overseas, suggesting they're hard to imagine here. Of course, many rides have a significant amount of risk controlled by the rider, especially in the water park context (consider also skiing, roller- and ice-skating, and so on). Rider control was also a theme at New Jersey's Action Park, as I discussed a while back.

But it is certainly true that the care taken to protect patrons from themselves is greater here than in many places. German carnival midways have far less intimidating fencing than their U.S. equivalents, and so far as I know, patrons don't go wandering into the rides' paths with any frequency, while in most years, we hear about at least one death in the U.S. of someone who goes into a ride area to retrieve (for instance) a baseball cap.

Risk averse because of litigation, or vice versa? Good question.

Some more thoughts:

U.S. parks have, for a variety of reasons mostly involving low-cost season passes, a large number of unaccompanied kids, perhaps more than overseas (I've no idea). It may be that the risks of patrons acting foolishly are lower elsewhere at least partially for reasons not related to general societal silliness, but instead due to simple age demographics. That's a rather industry-specific observation, though.

Another industry-specific observation has to do with oversight: there is no federal oversight of fixed-site amusement parks in the U.S., and state regulatory oversight varies a lot (from none to extensive, with most somewhere in the middle). That leaves the decisions about most safety issues to private insurers and attorneys, which presumably means more (too much?) caution. I don't know a lot about regulatory schemes overseas, though I have an inquiry in to someone who will, but I believe there is more reliance on the regulatory side than the civil justice system to encourage safety.

Finally, I think Ted's ultimate suggestion -- that risk averse actions are a luxury item, more or less -- may be right. Amusement parks are all about escapism and feeling carefree; presumably feeling carefree includes feeling that one doesn't have to worry about safety, even to the point of foolishness.

--BC

Defamation and the Internet

The NY Times has an article today discussing the potential influence of anonymous blog postings on the suicide of an advertising executive and, more generally, the responsibility that bloggers and their commenters might have in such a context. For one view, check out the recently-posted-to-SSRN article byBetsy Malloy (Cincinnati), ""Anonymous Blogging and Defamation: Balancing Interests of the Internet" (published in the Washington University Law Review).

--BC

The Virginia Charitable Immunity Decision

Yesterday, the Supreme Court of Virginia unanimously ruled that foundations set up to administer the clinical practices of faculty at public medical schools are not eligible for charitable immunity. 

To be eligible for charitable immunity in Virginia, an entity must prove:  1. that it was organized for a recognized charitable purpose; 2. that it operates in fact in accord with that purpose; and 3. the tort claimant was a beneficiary of the charitable entity at the time of the alleged injury.  The court found the foundation was entitled to a presumption that it was a charitable entity based on its Articles of Incorporation.  However, the court held the foundation does not operate as a charity:

In this case, we find the following four factors determinative of the conclusion that HSF [the foundation] does not operate in fact with a charitable purpose: (a) HSF was created to correct billing and collection problems; (b) the ratio of HSF's revenue compared to the cost of its charitable work is substantially disproportionate [charitable work is .66% of total revenue]; (c) HSF's incentive payment structure is functionally a profit-based bonus system, much like a for-profit enterprise, and (d) HSF does not accept charitable gifts.

As a result of the decision, patients in Virginia's three public medical hospitals will continue to be able to recover for a health care provider's negligence.  The full opinion [pdf] is here.

--CJR

Virginia: No Charitable Immunity for Public Hospital Foundations

The Virginia Supreme Court ruled earlier today that the University of Virginia does not have charitable immunity for medical malpractice cases.  I'll have a follow-up post after I've read the opinion.

--CJR

Alcohol Death; Families Sue Drinker's Friends

Minnesota Public Radio's News Cut blog summarizes the sad case, and litigation aftermath, of Amanda Jax:

Where do we start with the sad case of Amanda Jax, the legal adult who drank herself to death on her birthday? Our time to discuss it intelligently is short. What's happened today is the stuff talk radio hosts dream of and once they awake, well, you know.

According to a story by MPR's Art Hughes, five of her friends are among those being sued by the Jax family. Their alleged crime? They, not Amanda, bought the drinks for her.

Local accounts indicate that her friends documented the evening of heavy drinking with photographs, including allegedly pictures of Jax, after she became unconscious.  The complaint (filed today) alleges that Jax had the equivalent of seventeen shots.

The family's lawsuit also names the bar that served Jax those shots.

--BC

Updates in AutoAdmit Litigation

The lawsuit for defamation, IIED, and so on against various posters on the AutoAdmit forums continues, with one of the pseudonymous defendants ("AK47"), who declared that people named Jill and another common name "should be raped," seeking to quash a subpoena against his ISP.

--BC

Alaskan Village Sues Energy Companies for Global Warming

The New York Times reports on a suit filed yesterday by the Alaska native village of Kivalina against 20 oil, electric, and coal companies. The village, which is being forced to relocate because of flooding caused by global warming, accuses the companies of creating a public nuisance and also of conspiracy:

“There has been a long campaign by power, coal and oil companies to mislead the public about the science of global warming,” the suit says. The campaign, it says, contributed “to the public nuisance of global warming by convincing the public at large and the victims of global warming that the process is not man-made when in fact it is.”

The suit alleges that the cost for relocating the village is $400 million.

- SBS

 

Crime or Malpractice? In California, Both

The New York Times reports on the prosecution of a California doctor for allegedly hastening the death of a patient in order to retrieve his organs.    According to the criminal complaint, the doctor "ordered excessive doses of morphine and Ativan, an anti-anxiety medicine, both of which are used to comfort dying patients."   The complaint also charges that the doctor introduced Betadine, a topical antiseptic which may cause death if ingested, into the patient. 

“If you think a malpractice lawsuit is scaring surgeons off, wait to see what happens when people see a surgeon being charged criminally and going to jail,” said Dr. Goran B. Klintmalm, president of the American Society of Transplant Surgeons, who added that he considered the case unprecedented.

The patient's mother also has filed a civil suit against the doctor, the donor network, and other doctors in the operating room.   The mother separately settled a civil suit against the hospital. 

- SBS

WSJ Editorial on AGs Outsourcing Legal Work

Yesterday's WSJ includes an editorial, "Lawsuit, Inc.," which addresses the practice of state attorneys general outsourcing lawsuits to private plaintiffs' attorneys.    The editorial notes that the Mississippi Senate recently passed a bill that would require competitive bidding on such contracts of more than $500,000.   But, Mississippi Attorney General Jim Hood reportedly is trying to block passage of the bill in the state house.

The WSJ reviewed various documents from the Hood's office, and found that "Hood retained at least 27 firms as outside counsel to pursue at least 20 state lawsuits over five years."  The WSJ further found that "these 27 law firms -- or partners in those firms -- made $543,000 in itemized campaign contributions to Mr. Hood over the past two election cycles."

- SBS

Two States Consider Increasing Damages Caps

Colorado and Oregon are both considering increases to their damage caps.  Colorado is currently debating a bill that would raise the cap on noneconomic damages in medical malpractice cases from $300,000 to about $450,000.  The bill was voted out of committee on Monday and will now be sent to the Senate floor for debate.  The details are here. 

Meanwhile, Oregon is reacting to a ruling of the Oregon Supreme Court late last year that the cap on damages payable by the state was unconstitutional as applied.  A task force has been set up to study the issue of raising the cap, as was urged in a concurring opinion of last year's case.  The details are here.

--CJR

Class Action Filed Against New England Patriots

It appears a class action has been filed in a federal court in Louisiana against the New England Patriots and Coach Bill Belichick, arising out of alleged videotaping prior to the 2002 Super Bowl XXXVI between the Patriots and St. Louis Rams.  The counts include, among others, tortious interference with contract and common law fraud.  The complaint [PDF] is here:  Download gary20v20patriots20complaint1.pdf.  Thanks to Alberto Bernabe (The John Marshall Law School) for the tip.

--CJR