August 17, 2012
PA: Is R3:PL the Law or Not?
This week, Amaris Elliott-Engel, of PA Law Weekly, wrote the first of a series of articles on tort law. Her first piece is on the uncertainty in Pennsylvania products law. Twice in the last 3 years, the U.S. Court of Appeals for the Third Circuit has opined that the Pennsylvania Supreme Court would adopt the Restatement Third (Products Liability). However, the state Supreme Court has not directly addressed the issue, although there has been some provocative dicta and one instance in which the justices announced they had improvidently granted allocatur to consider whether section 2 of R3 should replace 402A of R2. Thus, in general, state courts are applying 402A and federal courts are applying R3, though even among federal courts, some apply 402A. As elsewhere, most plaintiffs' lawyers tend to prefer 402A and most defense lawyers tend to prefer R3.
Thanks to Scott Cooper for the tip.
August 07, 2012
"Perfect for a First Year Torts Exam"
On Monday, the United States Court of Appeals for the Ninth Circuit certified three questions to the Washington Supreme Court in a caes "perfect for a first year torts exam." McKown v. Simon Property Group Inc. (pdf) involved a shooting at the Tacoma Mall in 2005. The plaintiff, a store employee at the mall, was injured and sued the mall owner. The Ninth Circuit certified three questions concerning the scope of the mall owner's duty to protect a mall employee from the criminal acts of a third party:
1) Does Washington adopt Restatement (Second) of Torts § 344 (1965), including comments d and f, as controlling law?
2) To create a genuine issue of material fact as to the foreseeability of the harm resulting from a third party's criminal act when the defendant did not know of the dangerous propensities of the individual responsible for the criminal act, must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence?
3) If proof of previous acts of similar violence is required, what are the characteristics which determine whether the previous acts are indeed similar?
Courthouse News Service has more on the case.
August 06, 2012
Missouri Supreme Court Holds Cap on Non-Economic Damages Violates State Constitution
In a decision issued July 31st, the Missouri Supreme Court struck down the state's statutory cap on non-economic damages as violating the Missouri state constitution. Specifically, the court found that the cap violated the right to a trial by jury. A copy of the decision is available here (pdf).
July 31, 2012
OK Med-Mal Judgments At 10 Year Low
The Tulsa World reports that medical malpractice judgments in Oklahoma are at a ten-year low. Both tort reform proponents and opponents attribute the stats to the impact of OK's 2009 tort reform law, but disagree on whether the result is a good thing.
July 24, 2012
Ken Feinberg's New Book: "Who Gets What"
Ken Feinberg has a new book on the market, "Who Gets What: Fair Compensation after Tragedy and Financial Upheaval." From the publisher:
Agent Orange, the 9/11 Victim Compensation Fund, the Virginia Tech massacre, the 2008 financial crisis, and the Deep Horizon gulf oil spill: each was a disaster in its own right. What they had in common was their aftermath—each required compensation for lives lost, bodies maimed, livelihoods wrecked, economies and ecosystems upended. In each instance, an objective third party had to step up and dole out allocated funds: in each instance, Presidents, Attorneys General, and other public officials have asked Kenneth R. Feinberg to get the job done.
In Who Gets What?, Feinberg reveals the deep thought that must go into each decision, not to mention the most important question that arises after a tragedy: why compensate at all? The result is a remarkably accessible discussion of the practical and philosophical problems of using money as a way to address wrongs and reflect individual worth.
NPR recently interviewed Feinberg about the book and his experiences.
July 18, 2012
Chinese Fisherman Sue Over BP Oil Spill
Chinese fisherman who make their living in the Bohai Sea are suing in U.S. courts over the BP oil spill. George Conk has the details, including a copy of the complaint at Torts Today.
July 17, 2012
Mom Sues Justin Bieber For Hearing Loss
An Oregon mother filed suit last week against the singer Justin Bieber for hearing loss allegedly caused by the "frenzy of screams" that Bieber incited in his young fans at his 2010 Portland concert. The complaint alleges that Bieber exacerbated the noise by flying over the crowd in a metal gondola. TMZ has more, including video of the gondola if you are interested.
I'd think this would make a good assumption of the risk hypo in class. I mean concert goers know concerts are loud, right?
July 11, 2012
Culhane Advises Penn State on the Civil Side of Sandusky
John Culhane (Widener) has a piece in Slate advising Penn State how to handle the civil aspects of the Sandusky scandal based on an analogy to the BP oil spill.
June 28, 2012
Assumption of the Risk - Alligators on Golf Courses...
There's a great hypo in here: The Georgia Supreme Court recently ruled that a golf club and homeowners' association was not liable for the wrongful death of an elderly woman killed by an alligator in 2007. Although the Court of Appeals had allowed the suit, the Georgia Supreme Court reversed.
The Supreme Court's majority decision, written by Justice Harold D. Melton, stated that even though no warning signs were posted at the lagoons, the homeowners association had warned residents in its publications and on its website that alligators were present and could be dangerous. Thus, Williams assumed the risk when she went out for an evening walk near the lagoons.
More from Daily Report.
June 26, 2012
A Slip and Fall Case "Worthy of Jerry Springer"
A woman chasing her ex-husband for unpaid alimony slipped and fell at the motel where she found him "holed up" with his girlfriend. The ensuing lawsuit returned a defense verdict.
Daily Report has the full story (which includes outstanding warrants and a pick up truck).
Thanks to Lisa Smith-Butler for the alert.
June 22, 2012
Study: TX Tort Reform Did Not Lower Medicare Costs
A new study conducted by a group of researchers including Charles Silver (Texas) concludes that Texas's 2003 tort reforms did not lower health care costs. The Austin American-Statesman has the details.
June 19, 2012
Rapper Brawl Turns Into Lawsuits
If you like to use current events in your class, this might provide some good hypos: Rappers Chris Brown and Drake were involved in an altercation at a SoHo nightclub. Bystanders apparently were injured in the melee, and one now plans to sue.
Details at NY Daily News.
June 04, 2012
Tort Reform Op Letter in Philly Inquirer
Mark Behrens, a partner at Shook Hardy, authored an opinion letter in Sunday's Philadelphia Inquirer about tort reform in Pennsylvania. While advocating for tort reform, the letter also provides a good overview of recent changes enacted in Pennsylvania, such as the Fair Share Act, and the home venue rule.
May 29, 2012
Missouri Senatorial Candidates Spar Over Tort Reform
St. Louis businessman John Brunner and former State Treasurer Sarah Steelman, both candidates for the U.S. Senate Republican nomination, sparred over tort reform in a debate last week. The News-Leader has more.
May 28, 2012
Happy Memorial Day!
Memorial Day was originally known as "Decoration Day," a reference to the practice of decorating the graves of war veterans. In 1971, Congress declared Memorial Day a federal holiday to be celebrated on the last Monday in May. On May 2, 2000, then-President Bill Clinton issued a memorandum calling on Americans "to pause for one minute at 3:00 p.m. (local time) on Memorial Day, to remember and reflect on the sacrifices made by so many to provide freedom for all."
You can find more information about the history of Memorial Day from the History Channel.
May 26, 2012
PA: Court Rejects "Any Fiber" Theory of Causation for Asbestos
The opinion (pdf) is here: Download DC-#375579-v1-Pa__Betz_Simikian_Supreme_Court_opinion_pdf.
May 22, 2012
47% Decrease In Med Mal Cases in PA
The Pittsburgh Post Gazette reports that the number of medical malpractice cases have dropped 47% in the ten years since two reform measures took effect. In particular, Pennsylvania requires that "cases be brought in the venue only where the cause of action arose and that a certificate of merit be obtained from a medical professional to certify the lawsuit before complaints are filed." The Gazette reports:
Despite the 10-year downward trend, there was a small uptick in the number of medical malpractice filings in Pennsylvania between 2010 and 2011. There were 1,528 filings in 2011 and 1,491 filings in 2010; 2010, meanwhile, had the lowest number of filings since the rule changes
May 18, 2012
Congratulations Class of 2012!
I wanted to take a moment to wish all the best to the Charleston School of Law Class of 2012! One of the hallmarks of our students is their dedication to pro bono. The Class of 2012 contributed 24,557 hours of pro bono service to the local community.
May 17, 2012
NH: Early Offers Bill Approved by House; Goes to Conference Committee
Last week, the House version was amended. Under the Senate bill, if the claimant requested an early offer and then declined it, the claimant would have to prove gross negligence to a clear and convincing standard. In the House version, if the claimant requested an offer and then declined it, the claimant would have to pay the health care provider's attorney's fees if the claimant lost or recovered approximately the same amount of money that was in the early offer. Both bills passed with veto-proof majorities. The Concord Monitor has the story here (scroll down past the first section on sealed bids).
Magliocca on the NFL Concussion Suit
Over at CoOp, Gerard Magliocca examines the suit against the NFL.