Friday, September 26, 2014
A 24-year-old typist at a prison in Bellefonte, PA was brutally raped last year by one of the inmates. The inmate had been convicted three times previously of sex-related crimes and then transferred from a different prison for assaulting a female employee there. Despite this, the inmate had access to the typist's office, even after she states she complained to her bosses about the inmate's behavior toward her. The victim filed suit in federal court against the state Department of Corrections and several individual employees. The AG's office, charged with defending the lawsuit, included in the answer the allegation that the woman "acted in a manner which in whole or in part contributed to the events." In essence, the AG's office was pleading comparative fault, resulting in a political firestorm. The issue was covered on CNN and the Attorney General herself felt compelled to address the filing.
The best defense of the allegation is that it was necessary to preserve a defense of comparative fault for trial. A lawyer has to defend his or her client and FRCP 8 requires the pleading of, among other things, contributory negligence. It seems to me, however, that this should have been handled differently. Given: (1) the sensitive nature of the plaintiff's complaint; (2) the fact that Rule 15 allows liberal amendments; and (3) the fact that the DA in the county fully supported the typist and successfully prosecuted the inmate for rape, apparently without uncovering any evidence that the she contributed to the attack on herself, this allegation should not have been included in the answer.
Wednesday, September 24, 2014
Last week, the Pennsylvania Supreme Court refused to hear an appeal from a Superior Court ruling, leaving in place a holding that general liability coverage providers are required to defend products claims brought against their policyholders. In a series of cases filed against door and window manufacturers, the Superior Court held that because the company's allegedly defective products allegedly led to other damaged property as well as personal injuries, there were "occurrences" under the policy:
In issuing its opinion, the Superior Court specifically rejected the application of the “gist of action” theory to bar tort claims in insurance coverage disputes. In Pennsylvania law, the doctrine serves to prevent plaintiffs from reshaping breach of contract claims into tort claims.
“Ultimately, because the gist of the action doctrine has never been adopted by our Supreme Court in an insurance coverage context, we are convinced that, at this juncture of a duty to defend claim, applying the gist of the action doctrine is inappropriate,” Judge Shogan said.
Law 360 has the story.
Sunday, September 21, 2014
A study with a lead author from the Cleveland Clinic, published in JAMA Internal Medicine, concludes that purely defensive medicine accounts for 2.9% of U.S. healthcare costs. The study is available for purchase here. The L.A. Times's "The Economy Hub" discusses the study here.
Tuesday, September 16, 2014
The First District Appellate Court of Illinois determined the City of Chicago owed no duty to a pedestrian who broke his foot in a pothole that was a few inches outside of a crosswalk. The pedestrian was apparently straddling the line, partially in and partially out of the crosswalk. The court applied settled law that municipalities have a duty to keep streets reasonably safe for pedestrians only in those areas in which pedestrians are permitted to walk. The National Law Review has the story.
Monday, September 15, 2014
In April 2012, a woman was taken to an ER and voluntarily admitted based on a suicide attempt. She later slipped out of the hospital, walked through the woods, and rolled into traffic on a nearby bridge. She was struck and killed by a car; a father was driving and his (then-juvenile) daughter was a passenger. The father and daughter filed suit against the hospital for emotional distress. The trial judge held the hospital had no duty to the plaintiffs based on a lack of foreseeability. The Superior Court affirmed the judge's decision. Now the Pennsylvania Supreme Court has refused to consider the appeal. Pennlive has the story.
A new USC Dorsife/LA Times poll found support for Prop 46 " a mile wide and an inch deep." When likely voters were polled on Prop 46, 61% supported it, 29% opposed it, and 10% were undecided/refused to answer. When those surveyed heard both sides' main arguments, the numbers shifted to 37% in support, 50% opposed, and 12% undecided/refused to answer. The LA Times has the story.
Wednesday, September 10, 2014
Last week, the Third Circuit revived a fraud claim alleging BASF Catalysts, Inc. took part in systematic fraud with the help of its attorneys Cahill Gordon & Reindel to hide the existence of asbestos in its products. The case has been remanded for further proceedings. The Washington Examiner has the story.
Monday, September 1, 2014
There are a lot of stories on the med mal front. First, two from the MICRA fight:
An analysis from the The Fresno Bee finds that the anti-cap increase ads are misleading. Here's a taste:
But the ad goes too far by unequivocally claiming that raising the cap will increase malpractice insurance costs and that the result would certainly be higher costs for consumers. Five health economists contacted by The Bee had mixed opinions on those questions.
An editorial in the The Sacramento Bee urges rejection of the initiative, stating that the cynicism of attaching the drug-testing measure is reason enough to vote against it.
In other news, Law Firm Newswire is reporting that misdiagnosis is the most common form of med mal, surpassing surgical errors and medication mixups. This is described as surprising, but it is consistent with my memory of med mal cases in the period I practiced law.
Finally, in August, HHS ruled that all malpractice payments under state liability laws must be reported to the National Practitioner Data Base. The ruling was meant to address issues raised by recent "early offer"-type programs enacted in Massachusetts and Oregon.
Wednesday, August 6, 2014
In a pleading seeking a lead counsel role in the MDL, Joe Rice revealed that the City of Providence, RI intends to sue General Motors as part of the ignition-switch litigation coordinated in the Southern District of New York. From news reports, it sounds like Providence intends to bring a diminished value claim, similar to claims brought against Toyota a few years ago. (I've written about these kinds of risk-liability suits here).
National Law Journal has the story.
Friday, August 1, 2014
As previously mentioned here, crews have begun working on Ralph Nader's American Musuem of Tort Law. Just this week, the Winsted Planning and Zoning Commission approved the site application plan for the musuem. The Register Citizen reports:
Exhibits will include historical cases of precedent that built the “edifice of common law of torts,” along with major cases, including judicial decisions in auto safety, tobacco, asbestos and invasion of privacy. Plans were in the works for a website to be set up as well, to extend the reach of the museum’s mission to include contemporary and future developments, according to Nader. The museum could also host events.
Wednesday, July 30, 2014
Most TortsProfs probably don't cover the common law right of publicity, but if you do, here's a good one to use in class: General Manuel Noriega (yes that one) has sued manufacturers of the video game "Black Ops II" for misappropriating his likeness in said video. According to the complaint, Noriega's portyal in the video as "as a kidnapper, murderer and enemy of the state" has damaged his reputation.
Wednesday, July 23, 2014
Here's a good one for your class on negligence:
A California appellate court has held that a man who fell off a cliff while drunk can sue the friends who brought him to the cliff to watch the sunrise after a night of partying. The court found that the plaintiff "created a triable issue of material fact as to whether [the defendant] breached a duty owed to [the plaintiff] by bringing him to the cliff side when she knew he was intoxicated and waiting several hours to call 911 or otherwise summon aid after the fall."
Courthouse News has more.
Tuesday, July 22, 2014
On Monday in my home county, a jury returned a defense verdict in the tragic case of a man who became a quadriplegic in a sprint-car racing accident at the Williams Grove Speedway on September 5, 2008. The plaintiff argued the speedway should have had a device (a catch fence) in place that would have greatly reduced the likelihood of injuries. In addition to denying that allegation, the speedway presented a waiver supposedly signed by the plaintiff. (Like many jurisdictions, Pennsylvania upholds the express assumption of risk doctrine in the recreational context.) Plaintiff argued that the date and witness lines of the waiver form were not filled in and the waiver was, thus, invalid. The jury deliberated 3 hours before determining the waiver was valid and, therefore, reaching a defense verdict. The Patriot-News has details.
Monday, July 21, 2014
Like many, we were stunned to learn of the death of Dan Markel over the weekend. Dan, a professor at Florida State College of Law, was a co-founder of PrawfsBlawg and a prolific scholar in the area of punishment and retributive justice. The local ABC News station reports that Dan was shot at his home on Friday and passed away the following day at an area hospital.
PrawfsBlawg has an on-line memorial for their colleague and friend here.
Paul Caron has collected the news reports on this tragedy here.
- Sheila and Chris
Friday, July 18, 2014
About a year ago, we reported that Ralph Nader had purchased an old bank in his hometown of Winfield, Connecticut for his "American Museum of Tort Law."
The Associated Press now reports that construction crews have begun inside demolition work on the building. Nader hopes that the museum will open in Fall 2015.
Thursday, July 17, 2014
In Bostic v. Georgia Pacific Corp., the Texas Supreme Court rejected the "any exposure" or "some exposure" theory of causation, and held that a "substantial factor test" applies to causation in asbestos cases.
Debra J. LaFetra at Pacific Legal Foundation has a full write up of the decision.
Friday, July 11, 2014
TortsProfs' own Chris Robinette is quoted in this Washington Post article about the verdict against the L.A. Dodgers stemming from the 2011 beating of a Giants fan in the stadium parking lot. The victim sued the Dodgers for failure to provide adequate security. On Wednesday, a jury found for the plaintiff, and the Dodgers are liable for nearly $14 million of the verdict.
Thursday, July 10, 2014
So understandably, one bride asked theoperators of the Doubletree Hotel & Suites in historic Charleston to assure her that her courtyard ceremony "would not be disrupted by hotel guests not in attendance."* Not as understandably, the hotel allegedly agreed to this clause. Now, the wedding venue - the hotel's courtyard area - is overlooked by guestrooms, and on the big day, one hotel guest decided to bare all in the window of his room while the wedding ceremony below was in progress. The distraught bride has now sued the hotel for what sounds like an intentional infliction of emotional distress claim, and seeks actual and punitive damages.
Courthouse News has more.
(Photo credit: Doubletree Hotel & Suites. Presumably, this advertising photo is not of the wedding in question...)
*Presumably, there would be no lawsuit if the alleged nudist had been a guest of the wedding itself.
Wednesday, July 9, 2014
A Yankees fan who fell asleep at the April 13th Yankees-Red Sox game is now suing the Yankees, Major League Baseball and ESPN for defamation, following the live airing of the napping fan on ESPN and later posting of the video on mlb.com. The plaintiff is seeking $10 million in damages after the "unending verbal crusade."
Smoking Gun has a copy of the complaint.
PS. The Yankees won, 3-2.
Tuesday, July 8, 2014
Like many jurisdictions, Pennsylvania allows common law bad faith claims to be assigned from the insured/defendant in the tort case to the plaintiff in the tort case. Also like many jurisdictions, Pennsylvania has a statutory component to its bad faith law (42 Pa. C.S.A. 8371, enacted in 1990). The Third Circuit has certified a question to the Supreme Court of Pennsylvania asking it to clarify whether the statutory component, like the common law cause of action, is assignable. Judge John Jones, of the Middle District of Pennsylvania, held statutory bad faith claims are assignable, based on lower state court and prior Third Circuit cases. The issue is whether the tort basis of the statutory claim distinguishes it from the contract basis of the common law claim for purposes of assignability. The case is Allstate v. Wolfe (Docket No. 39 MAP 2014) and we should receive an answer in the coming months.