TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, January 12, 2017

Purposeful Infliction of Bodily Harm

Tentative Draft No. 1 of the Restatement of Intentional Torts includes Section 104 on the Purposeful Infliction of Bodily Harm:

§ 104.     Purposeful Infliction of Bodily Harm

An actor is subject to liability to another for purposeful infliction of bodily harm if:

(a) the actor purposely causes bodily harm to the other, either by the actor’s affirmative conduct or by the actor’s failure to prevent bodily harm when the actor has a duty to prevent such harm … 

Comment b.  … This Section recognizes intentional-tort liability in a small group of cases in which the contact requirement of battery liability is not satisfied but in which the actor’s culpability is especially pronounced.
 
Last month, Kurt Eichenwald, an author at Newsweek and critic of Donald Trump,  experienced an epileptic seizure when someone deliberately tweeted him a flashing yellow and orange starlike image reading, "you deserve a seizure for your posts."  Eichenwald had just finished a contentious interview on Fox News; it is well-known that Eichenwald suffers from epilepsy.   Story here
 
Ken Simons, a Reporter on the project, comments:
 
What is especially interesting about this case is:
 
(a) It is doubtful that battery liability would be recognized on these facts, given the difficulty of proving that the defendant’s interaction with the plaintiff satisfies battery’s contact requirement;
 
(b) It is quite possible that liability would be recognized under Sec. 104 of the Restatement Third, Intentional Torts to Persons (Tentative Draft No. 1, April 8, 2015, approved by American Law Institute):

January 12, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, January 11, 2017

11th Cir: Economic Loss Rule Applied in Products Case

In the National Law Review, Walter Latimer has a column about a recent Eleventh Circuit products case upholding the economic loss rule:

The Economic Loss Rule is a doctrine of law that prohibits a product liability claim being brought against a manufacturer for a defective product that only destroys itself, without harm to other property or to a person. In those instances where the product fails but only damages itself and nothing else, the plaintiff’s only remedy is to sue for breach of contract against the manufacturer of the product. The plaintiff cannot seek recovery from the manufacturer under product liability causes of action. The Economic Loss Rule has historically served as the boundary between tort and contract law. Despite the fact it is part of the basic fabric that makes up tort law, it is still challenged by plaintiffs in product liability actions.

In Eiber v. Toshiba Americas Medical Systems, the plaintiff radiologist tried to sue an international electronics manufacturer for failing to maintain an MRI scanner that was out of date. The manufacturer advised the radiologist that the scanner had reached the end of its useful life, and the manufacturer would no longer provide service to it under contract. The aging scanner eventually stopped working, which the plaintiff claimed was due to negligent repairs rather than a failure of the scanner.

The Eleventh Circuit affirmed the district court's dismissal on the basis of the economic loss rule.

January 11, 2017 in Current Affairs, Products Liability | Permalink | Comments (0)

Wednesday, January 4, 2017

AALS Torts Section in SF

The AALS Section on Torts and Compensation Systems panel information:

"Gun Regulation and Private Law"
Friday, Jan 6, 1:30-3:15 pm
Hilton San Francisco Union Square, Ballroom Level, Continental Parlor 3.
 
Panelists:
Adam Scales, Rutgers Law School
Stephen Sugarman, UC-Berkeley School of Law
Christine Van Aken, San Francisco City Attorney's Office
Leslie Kendrick, Chair of the Section/Moderator, UVa Law
 
The Section is also co-sponsoring the Litigation panel on MDL Problems; it is from 10:30-12:15 on Friday in Golden Gate 7 on the lower level.

January 4, 2017 in Conferences, Current Affairs | Permalink | Comments (0)

Wednesday, December 28, 2016

NJ: Federal Law Does Not Preempt Claims of Failure by a Generic Drug Manufacturer to Update Warnings in a Timely Manner

The National Law Review analyzes New Jersey's ruling that "federal law does not pre-empt state law claims alleging that a generic drug manufacturer failed to timely update the warnings for its product to match those of the brand-name counterpart."

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

Thursday, December 15, 2016

College Basketball Coach Accused of Battering Players During Game

Sean Woods, the basketball coach at Morehead State, has been accused of battering two players during a game last month.  One player said the coach backhanded him in the chest in the locker room at halftime and another player said the coach shoved him during a timeout and in the locker room.  Woods has been suspended, and criminal battery charges have been filed.  The Lexington Herald Leader has the story.  Thanks to David Raeker-Jordan for the tip.

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

Wednesday, December 14, 2016

Nanotechnology Tort Litigation

Peter Hayes, of Bloomberg BNA, has a piece on the potential for a new wave of tort suits based on nanotechnology (essentially the technology of really small things).  Nanotechnology can be used to make almost anything, but there have been concerns about health side effects.  Hayes notes many experts predicted such a wave a decade ago, and inquires of several experts whether the predictions were wrong or whether the wave is still coming.  His piece, "Nanotech Tort Litigation:  Potential Sleeping Giant", is here.

December 14, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Friday, December 9, 2016

Fake News and Defamation

On NPR's All Things Considered, Audie Cornish discussed the recent increase in fake news and possible recourse for it with Derigan Silver, professor of media, First Amendment, and Internet Law at the University of Denver.  NPR's website has the story.

December 9, 2016 in Current Affairs | Permalink | Comments (0)

Friday, December 2, 2016

CA: Will the California Supreme Court Reject "Innovator Liability"?

The California Supreme Court is reviewing a case by one of the courts of appeal that adopted "innovator liability" in products cases, the doctrine imposing liability on brand name manufacturers for injuries caused by their generic versions.  Most jurisdictions have rejected the doctrine.  The Pacific Legal Foundation's Liberty Blog urges rejection of the theory:

As we argue in our brief, that decision has no connection to any conceivable rationale normally employed in tort.  Generally, tort law exists to deter unreasonably dangerous behavior, and to compensate wrongful injuries.  But there can be no deterrence where an injury occurs after the generic manufacturer sells the production rights to someone else, and relinquishes control over how the drug is produced and labeled.  Only those entities that can monitor, label, test, or otherwise control a product have an incentive to make that product safer.  The decision is also unfair, because it imposes never-ending liability for statements that generic manufacturers make.  Not even leaving the market and selling the production rights to someone else will relieve a brand drug company from liability.

December 2, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Tuesday, November 29, 2016

PA: Regulation and Litigation in the Trump Era

Joel Berg, editor of the Central Penn Business Journal, discusses in "Regulation is dead; long live litigation?".  

November 29, 2016 in Current Affairs | Permalink | Comments (0)

Monday, November 28, 2016

Can Tribal Employees Avoid Tort Claims?

Two people were injured in an off-reservation  auto accident with a Mohegan Tribe-owned limousine.  The Connecticut Supreme Court ruled that the tribe's sovereign immunity protected the driver from tort claims arising from the accident.  Now the USSC has agreed to hear the case.  Two weeks ago, lawyers for the plaintiffs argued that Native American tribes’ sovereign immunity does not shield tribal employees from tort claims brought against them in their individual capacities.  Law 360 has the story.

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

Wednesday, November 23, 2016

FL: R.J. Reynolds Argues Engle is Preempted, Violates Due Process

R. J. Reynolds is arguing to the Florida Supreme Court that Engle is preempted by FDA v. Brown & Williamson Tobacco Corp. to the extent that Florida state tort law threatens to ban the sale of cigarettes.  Moreover, Reynolds argues that applying Engle to all subsequent cases is a violation of due process.  Florida Record has the story.

November 23, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Monday, November 21, 2016

PA: General Contractor Immune from Drilling Site Death Suit

The Pennsylvania Superior Court affirmed a trial court ruling that a general contractor is immune from suit for the death of a worker at a drilling site.  The subcontractor paid workers' comp to the worker's fiancé on behalf of his son, and the worker's estate filed a negligence suit against the general contractor.  The estate argued that because the general contractor was leasing the land, it should be designated a property owner rather than a general contractor.  The court rejected the estate's argument based on its interpretation of Pennsylvania's workers' comp statute.  Law 360 has the story.

November 21, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, November 17, 2016

Notices of Claim Against East Chicago Officials Over Lead- and Arsenic-Contaminated Soil

Approximately 250 residents of East Chicago, Indiana have filed notices of claim against several officials, including Vice President-elect Mike Pence, alleging the officials knew of lead- and arsenic-contaminated soil but did nothing to prevent future exposure:

The pending lawsuits — filed Oct. 27 — claim city and state officials knew about the pollution at the construction of the 346-unit West Calumet Housing Complex, built in 1972.  

The complex and Carrie Gosch Elementary School sit on about 50 acres of the roughly 400-acre USS Lead Superfund site. Soil testing in the area began decades ago. Two lead smelter operations also once operated on the site of the public housing complex and the school, according to EPA documents.

(nwi.com has the story)

November 17, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, November 9, 2016

Corporate Liability Under the ATS

Plaintiffs in Jesner v. Arab Bank have filed a petition for cert with the USSC, asking for a resolution of the issue whether the Alien Tort Statute permits corporate liability for violations of the law of nations:

The question the Jesner plaintiffs, represented by Stanford Law School and two law firms, now ask the Court to address is the question left unanswered in Kiobel: whether a corporation, as opposed to a natural person, can be found liable under the ATS. The certiorari petition notes that several Courts of Appeal—by a margin of, according to the petition, “four to one”—have decided that the ATS permits corporate liability. Plaintiffs also argue that the Supreme Court’s decision in Kiobel suggests (or appears to suggest) that the ATS contemplates corporate liability. The petition disputes what it describes as the Second Circuit’s outlier position that, following Kiobel’s introduction of the “touch and concern” test, the issue of whether the ATS allows corporate liability will “rarely” matter. In support, and among other arguments, the petition points to another case currently making its way through the Second Circuit, involving terror financing allegations against another financial institution. 

Lexology has details.

November 9, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, November 8, 2016

VA: Rolling Stone Liable for Defamation of UVa Administrator

On Friday, a federal jury in Charlottesville, Virginia determined that Rolling Stone defamed a University of Virginia administrator in its story about the gang rape of "Jackie" at a fraternity party:

The 10-member jury in Charlottesville sided with administrator Nicole Eramo, who claimed the article portrayed her as a villain. Jurors found that journalist Sabrina Rubin Erdely was responsible for libel, with actual malice, and that Rolling Stone and its publisher were also responsible for defaming Eramo.

Eramo claimed the November 2014 article falsely said she discouraged the woman identified only as Jackie from reporting the incident to police. A police investigation found no evidence to back up Jackie's claims.

The Richmond Times-Dispatch has the story.

November 8, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, November 3, 2016

MI: Flint Residents Can Sue State Over Water Contamination

Last week, a Michigan Court of Claims judge ruled that residents of Flint can sue the state for the lead contamination in their water supply.  The Detroit News has the story.

 

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

Friday, October 28, 2016

The Use of Race and Gender to Calculate Damages

The Washington Post ran a story this week about using race and gender to calculate damages.  (See prior coverage here.)  Among others, the story quotes Martha Chamallas and Jenny Wriggins.  Here's a sample:

The practice of using race and gender to determine personal injury damages, which dates back at least a century, has produced some striking results.

The case of the male fetus and 6-year-old girl came in 1996, after a collision between a postal truck and a car left the car’s passengers – the girl and her godmother, a pregnant 33-year-old ­– dead.

In the case, which took place in a federal court in the Southern District of Georgia, both sides agreed the male fetus’s award to be higher than the girl’s, largely because of the difference in how much they were expected to earn over their lifetime, commonly known as “future lost income.” That’s despite testimony that the girl “exhibited a level of intellectual ability and behavior that surpassed that of most other students” and had a college fund in the works. The fetus’s mother had not completed college and the father was unknown, according to court records.

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

Tuesday, October 25, 2016

PA: Why Are Tort Filings Rising in Lackawanna County?

According to data from the Administrative Office of Pennsylvania Courts covering 2012-2014, Lackawanna County has 3.2 filings for every 1,000 residents, second in the state only to Philadelphia.  Why so high?  Lawyers and commentators discuss advertising, the number of lawyers, the presence of multiple courthouses, the presence of governmental organizations with in-house staff, the proximity of major highways, and the lack of tort reform.  The Times-Tribune has the story.

October 25, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, October 20, 2016

Rickard & Behrens on the Need for Transparency in 3rd-Party Litigation Funding

Lisa Rickard & Mark Behrens have a piece in Law360 arguing for disclosure regarding 3rd-party litigation funding.  The conclusion:

The U.S. Chamber Institute for Legal Reform and others have urged the Advisory Committee on Civil Rules to adopt an amendment to Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure that would require disclosure of third-party litigation funding at the outset of a lawsuit. So far, the committee has taken a “wait and see” approach. The Catch-22 is that, because third-party funding of lawsuits occurs in secrecy, the proof needed to support reform is elusive.

Federal judges in individual cases, particularly those managing multidistrict litigations, have the power to bring about transparency regarding the presence of third-party litigation funders in their courts. They should make all case management orders provide for the disclosure of third-party litigation funding. This would improve justice in those courts and give the Advisory Committee the data it needs to determine how best to bring third-party litigation funding into the sunlight.

October 20, 2016 in Current Affairs | Permalink | Comments (0)

Monday, October 17, 2016

Bloomberg Series on Amusement Park Injuries