TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, September 8, 2015

CA: Gross Negligence Exception to Waiver; Case to Jury

In Chavez v. 24 Hour Fitness, the Court of Appeal, Sixth Appellate District reversed the trial court's dismissal of plaintiff's case against her gym.  Plaintiff was injured while working out; she sued 24 Hour Fitness for, among other counts, gross negligence.  Relying on plaintiff's signed waiver, the trial court dismissed her claims.

The Court of Appeal found that plaintiffs had raised a triable issue of material fact as to whether 24 Hour’s conduct constituted gross negligence.  The evidence showed regular maintenance was not performed and, on that basis, 24 Hour “failed to exercise scant care or demonstrated passivity and indifference toward results.”  In addition, plaintiffs raised other triable issues of fact including the missing brackets and the owner’s manual’s requirement of weekly maintenance.

JD Supra has the story.

September 8, 2015 in Current Affairs | Permalink | Comments (0)

Wednesday, August 26, 2015

TX: High Court Addresses Premises Liability Duties

Texas is the only state in the country that has voluntary workers' compensation; employers can subscribe to it or not as they see fit.  An employee of a non-subscribing employer, Kroger, as part of his duties, was mopping up a very slick substance in Kroger's bathroom.  He slipped and seriously injured himself.

The Fifth Circuit certified the following question concerning the premises liability claim to the Texas Supreme Court:  “Pursuant to Texas law . . . can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy? Put differently, does the employee's awareness of the defect eliminate the employer's duty to maintain a safe workplace?” Importantly, because Texas law forbids an employer who opts out of the workers’ compensation system from asserting an employee’s contributory negligence or assumption of the risk as a defense, if Kroger owed plaintiff a duty of care, and if it breached that duty, it would be liable for the all of the damages, regardless of plaintiff’s negligence or assumption of the risk.   

The court provided the following answer to the certified question:

Under Texas law, an employee generally cannot “recover against a nonsubscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy.” As is the case with landowners and invitees generally, employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee. “The employee's awareness of the defect” does not “eliminate the employer's duty to maintain a safe workplace,” but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an employer to eliminate or warn of dangerous conditions that are open and obvious or otherwise known to the employee. Exceptions to this general rule may apply in premises liability cases involving third-party criminal activity or a necessary use of the premises. If an exception applies, the employer may owe a duty to protect the employee from the unreasonably dangerous condition despite the employee's awareness of the danger, and the [workers’ compensation act] will prohibit a nonsubscribing employer from raising defenses based on the employee's awareness.

The case is Austin v. Kroger Tex., L.P., __ S.W.3d __, 2015 WL 3641066 (Tex. June 12, 2015). Shannon Ramirez at LeClair Ryan has more in Virtual Strategy.

August 26, 2015 in Current Affairs | Permalink | Comments (0)

Friday, August 21, 2015

Ralph Nader Invites You to the Grand Opening of the American Museum of Tort Law

The American Museum of Tort Law in Winsted, Connecticut has the Convocation heralding its grand opening on September 26, 2015 and you are invited:  Download TortMuseumInvitation

August 21, 2015 in Current Affairs, TortsProfs | Permalink | Comments (1)

Tuesday, August 18, 2015

Sebok on Weinstein's Holding on Discriminatory Damages

At New Private Law, Tony Sebok discusses Judge Jack Weinstein's ruling in G.M.M. v. Kimpson that a plaintiff's race is irrelevant when calculating future damages.

August 18, 2015 in Current Affairs, Damages | Permalink | Comments (0)

Wednesday, August 12, 2015

10th Cir: OK Recognizes Exception to Open and Obvious

An Oklahoma oil field worker, employed by one company and contracted out to another, lost his thumb in an accident with a piece of machinery lacking mandatory guards.  He collected workers comp from his employer and sued under the intentional tort exception to workers  comp; he also sued the company for whom he was a contractor for premises liability.  The Tenth Circuit affirmed dismissal of the claim against the employer, but held the premises liability claim could go forward against the contract employer:

“Oklahoma now recognizes an exception to the open and obvious doctrine where the landowner should have reasonably foreseen the harm,” the appeals court ruled.

Business Insurance has the story.

August 12, 2015 in Current Affairs | Permalink | Comments (0)

Thursday, August 6, 2015

Weinstein Rules Ethnicity Irrelevant to Reduce Damages in Lead Paint Cases

Last week, Judge Jack Weinstein rejected a landlord's attempt to use a tenant's Hispanic ethnicity to reduce damages in a lead paint poisoning case.  NYT coverage is here.  Thanks to Jenny Wriggins for the tip.

August 6, 2015 in Current Affairs, Damages | Permalink | Comments (0)

Wednesday, August 5, 2015

Schwartz on How Governments Pay for Claims Against Law Enforcement

Joanna Schwartz has posted to SSRN How Governments Pay:  Lawsuits, Budgets, and Police Reform.  The abstract provides: 

For decades, scholars have debated the extent to which financial sanctions cause government officials to improve their conduct. Yet little attention has been paid to a foundational empirical question underlying these debates: When a plaintiff recovers in a damages action against the government, who foots the bill? In prior work, I found that individual police officers virtually never pay anything towards settlements and judgments entered against them. But this finding begs another question — where does the money come from, if not from individual officers? The dominant view among those who have considered this question is that settlements and judgments are usually paid from jurisdictions’ general funds with no financial impact on the involved law enforcement agencies, and many have suggested that agencies would have greater financial incentives to improve behavior were they required to pay settlements and judgments from their budgets. But, beyond anecdotal information about the practices in a few large agencies, there has been no systematic inquiry into the source of funds used by governments to satisfy suits.

In this Article, I report the results of the first nationwide study to examine how cities, counties, and states budget for and pay settlements and judgments in cases against law enforcement. Through public records requests, interviews, and other sources, I have collected information about litigation budgeting practices in 100 law enforcement agencies across the country. Based on the practices in these 100 jurisdictions, I make two key findings. First, settlements and judgments are not always — or even usually — paid from jurisdictions’ general funds; instead, cities, counties, and states use a wide range of budgetary arrangements to satisfy their legal liabilities. All told, half of the law enforcement agencies in my study financially contribute in some manner to the satisfaction of lawsuits brought against them. Second, having a department pay money out of its budget towards settlements and judgments is neither necessary nor sufficient to impose a financial burden on that department. Some law enforcement agencies pay millions from their budgets each year towards settlements and judgments, but the particularities of their jurisdictions’ budgeting arrangements lessen or eliminate altogether the financial impact of these payments on these agencies. On the other hand, smaller agencies that pay nothing from their budgets toward lawsuits may nevertheless have their very existence threatened if liability insurers raise premiums or terminate coverage as a result of large payouts. These findings should expand courts’ and scholars’ understandings of the impact of lawsuits on police reform efforts, inspire experimentation with budgeting arrangements that encourage more caretaking and accountability by law enforcement, and draw attention to the positive role local government finance officials and insurers can and do play in efforts to promote risk management and accountability in policing.

August 5, 2015 in Current Affairs, Scholarship | Permalink | Comments (0)

Friday, July 24, 2015

GA: Non-Parties May Be Apportioned Fault

At JD Supra, Vonnetta Benjamin & Michael Sullivan of Womble Carlyle address a recent Georgia Supreme Court case:

The Georgia law regarding apportionment of liability in tort cases became more clear this month with the Georgia Supreme Court’s decision in Zaldivar v. Prickett, et al.  Before the Court was the question of whether a non-party which is not “liable” to the plaintiff as a matter of law could be considered by the trier of fact as a non-party responsible, in whole or in part, for the “fault” which caused the underlying injury thus reducing the liability of the defendant by the percentage of that fault under O.C.G.A. § 51-12-33, commonly known as the Georgia Apportionment Statute.  The Court’s answer was “Yes”.

The rest of the column is here.

July 24, 2015 in Current Affairs | Permalink | Comments (0)

Thursday, July 23, 2015

American Museum of Tort Law to Open in September

Renovations are complete and the countdown to opening Ralph Nader's project in Winsted, Connecticut continues.  The Litchfield County Times has the story.

July 23, 2015 in Current Affairs, Travel | Permalink | Comments (0)

Tuesday, July 21, 2015

Dernbach on the Netherlands Climate Change Case

John Dernbach is blogging at the American College of Environmental Lawyers about last month's case from The Hague District Court requiring the Netherlands to reduce carbon emissions by 25% below 1990 levels by 2020.

July 21, 2015 in Current Affairs, Weblogs | Permalink | Comments (0)

Thursday, June 25, 2015

NE: No Sovereign Immunity for Accident Caused by Corn Mash on Highway

Political subdivisions involved in the clean up of a corn mash spill onto a highway were denied sovereign immunity in a recent Nebraska case because they were on notice of the incident, had a reasonable amount of time to correct the problem, but failed to do so.  Iowa State's CALT has details.

June 25, 2015 in Current Affairs | Permalink | Comments (0)

Monday, June 8, 2015

Nail Salon Chemicals: A Mass Tort Risk?

The National Law Review discusses here.

June 8, 2015 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0)

Monday, June 1, 2015

TX: $27M Premises Verdict Against McDonald's

The largest premises verdict in Texas in the last decade, for the deaths of two teenagers, was handed down against McDonald's last month.  One of the victims was beaten in a McDonald's parking lot in College Station, Texas, and the other was killed in an auto accident while a friend attempted to get her and the first victim to the hospital.  The theory of the case was lax security; the argument was based, in part, on the fact police had been called to the restaurant at least 20 times in the last year and McDonald's never hired security or installed cameras.  PR Newswire has details

June 1, 2015 in Current Affairs | Permalink | Comments (3)

Tuesday, May 26, 2015

FL: Med Mal Cap Not Retroactive

The Florida Supreme Court ruled last week that Florida's 2003 medical malpractice cap is not retroactive to damage done prior to the law's passage.  WCTV has details.

May 26, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, May 22, 2015

KS: Negligence Standard Reaffirmed for Escaped Livestock

Details at Iowa State's Center for Agricultural Law and Taxation.

May 22, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2015

Culhane on Amtrak Cap

Widener's John Culhane at Slate:  "A Cruel Cap."

May 20, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 19, 2015

Frats are "Major Liability" According to Two-Thirds of Risk Managers

Inside Higher Ed has details.

Thanks to David Raeker-Jordan for the tip.

May 19, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, May 18, 2015

LA: Migration of Chemicals from Spill Not a Continuing Tort for SOL Purposes

A Louisiana appellate court has held a 1983 chemical spill does not constitute a continuing tort that tolls the statute of limitations.  The court also held CERCLA does not preempt the state statute of limitations.  Ned v. Union Pac. Corp. is discussed at JD Supra.

May 18, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, May 15, 2015

Nondisclosure Agreements in Med Mal Settlements

William Sage is lead author on a study of nondisclosure agreements in med mal settlements.  Using the Texas closed-claim database, the authors determined nondisclosure clauses were included in 88.7% of settlements.  This is not surprising to me, but the authors also concluded the clauses were broader than necessary to protect the doctors and hospital, and even broader than needed to avoid attracting other claimants.  Monthly Prescribing Reference has a story, with links to the study.

May 15, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 13, 2015

IL: Court to Decide Duty Question for 911 First Responders

Kirk Jenkins at JD Supra has analysis here.

May 13, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)