Friday, January 15, 2016
Out of Kentucky comes a case that may help resolve issues surrounding drones and trespass. A hobbyist whose drone was shot out of the sky while recording video over private property has filed suit for $1,500 in damages. The big question is limits of the ad coelum doctrine. How far above the ground would the drone have to fly not to be a trespasser? Witnesses stated the drone was flying below the level of the trees; the drone owner claims the drone was flying about 200 feet above the ground. Drones also raise issues regarding intrusion upon seclusion. The ABA Journal has the story.
Thursday, January 14, 2016
Jay Feinman has posted to SSRN The Restatement of the Law of Liability Insurance as a Restatement. The abstract provides:
This is an Introduction to volume 68, issue 1 of the Rutgers University Law Review which published papers from a conference on the American Law Institute’s Restatement of the Law of Liability Insurance held on February 27, 2015 at Rutgers Law School in Camden, New Jersey. Sponsored by the Rutgers Center for Risk and Responsibility and co-sponsored by the Institute for Professional Education, the conference engaged academics and practicing lawyers in a discussion of the issues raised by the Restatement.
This Introduction first describes the articles in the symposium, the topics into which they fall, and the papers of other speakers who participated in the conference. Because only a few months prior to the conference the ALI Council had changed the project from a Principles project into a Restatement, many participants framed their analysis in light of the project’s new status as a Restatement. Part II of the Introduction highlights this feature of the articles and discusses the nature of a Restatement and the ALI process that produces Restatements.
The concept of “Restating” the law with a capital “R” has always been controversial, in concept and in application. This Introduction offers four propositions about Restatements, using the Restatement of the Law of Liability Insurance as an illustration: A. Restatements address easy cases and hard cases; B. Precedent matters for a Restatement; C. A Restatement is about weighing, not counting; D. A Restatement is a product of the ALI process.
Wednesday, January 13, 2016
On January 12, 2015 an electrical malfunction caused a Metro train to fill with smoke. Dozens were allegedly sickened and filed individual lawsuits yesterday, the anniversary of the fire:
Attorneys say their clients have suffered ongoing health complications from the smoke inhalation, although a version of the complaint shared with reporters on Monday does not provide details. The lawsuit also says Metro has failed to disclose the chemical compounds that were part of the smoke, which may have impaired treatment for patients.
One woman died and her sons have also filed suit. WJLA in DC has details.
Monday, January 11, 2016
On Friday in New York, the Torts & Compensation Systems Section met; the Section: 1. presented the Prosser Award to Aaron Twerski; 2. conducted a panel on "MacPherson at 100;" and 3. elected a slate of officers for the coming year.
The chair, Tony Sebok, moderated the panel and presented the Prosser Award. In accepting the award, Twerski stated, "It's an incredible honor to be recognized by my colleagues to win this very prestigious award."
The panel consisted of John Goldberg & Ben Zipursky (presenting a paper together), John Witt, Franz Werro, and Anita Bernstein. Goldberg and Zipursky started the discussion by presenting three myths about MacPherson. The first myth: "Cardozo rejected privity because he embraced a nonrelational duty." In reality, Goldberg and Zipursky stated, a duty may be owed to an indefinite class of persons, but it is always a relational duty. The manufacturer owes care to those who will use its product without inspection, and who stand to be injured if the product is made without due care. The second myth: "Cardozo reached a sound result because he reasoned instrumentally, not doctrinally or morally." In reality, Goldberg and Zipursky argued that Cardozo's approach is not instrumental, but one of pragmatic conceptualism. Macpherson's rule is by far the better reading of the precedents, especially as interpreted against the background of prevailing mores. The question is "are users among those to whom manufacturers owe vigilance?" and not "will society benefit if manufacturers are subject to liability?" Third myth: "Cardozo partly effaced the line between negligence and strict liability." Instead, the focus in MacPherson is on duty and breach, but the focus in Greeman is on compensation and deterrence. Goldberg and Zipursky believe that the myths are problematic because they lead to conceptions of tort law that are problematic. A nonrelational conception of duty, they argued, slides easily into a liability rule conception of tort that overlooks the sense in which product manufacturers should regard themselves as duty-bound not to injure consumers. What should be understood as a responsibility comes to be understood as a mere potential cost. An instrumentalist approach--leads judges to analyze tort cases as calling for judicial policymaking, which in turn renders their decisions more vulnerable to overturning by the legislature (tort reform). Finally, if the difference between negligence and strict liability is overlooked, preemption of products liability law becomes more palatable and the special strengths and rationales for strict products liability law are at risk of being obliterated. Goldberg & Zipursky's message: It is mistaken to think that the way to be a progressive in tort law is to be an instrumentalist.
Next, John Witt presented an historical angle on MacPherson. He approached it by starting with a case decided five years prior: Ives v. South Buffalo Railway. In Ives, the New York Court of Appeals, speaking through William Werner, entertained the first constitutional challenge to workers' compensation. The court went through what Witt described as a "full-0n" discussion of the values at stake in the Constitution and held workers' compensation unconstitutional. The opinion was not well received; by the time of MacPherson only 2 judges remained from the Ives Court. Cardozo's opinion in MacPherson is internal to the doctrine and does not discuss "regulatory" criteria at all. This is especially striking given that automobile accidents at the time had become a significant issue and were being discussed in the same vein as industrial accidents had been before Ives. Witt wondered why Cardozo stuck to the internal approach. He offered several possibilities. One is that Cardozo was engaged in deception. He decided the case on different grounds than he used in the opinion. He realized he couldn't get away with an explicit statement (especially in light of the reaction to Ives) and so he deceived. A slightly different reason is that "purely legal" decisions have more durability. Thus, Cardozo stuck with the internal to preserve the holding for the long haul. Witt rejected these possibilities. He believes them inconsistent with Cardozo's character. In Witt's opinion, Cardozo's approach is based in a moral modesty. Commissions (like the Wainwright Commission for workers' compensation) will inevitably make mistakes. Cardozo, by not relying on such pronouncements, based his decision on more reliable, less grand, principles.
Franz Werro approached MacPherson from a comparative perspective. What influence did MacPherson have in Europe? Werro indicated MacPherson did not have much of an effect on the Continent (largely because it was not needed). It was, however, particularly important to a significant 1932 Scottish case (later adopted in English law by the House of Lords): Donoghue v. Stevenson, better known as the "Paisley snail" case. In that case, a woman was drinking a bottle of ginger beer (at a café in Paisley) when she discovered a decomposing snail in it. The woman sued the manufacturer directly and asserted a legal duty to, in essence, produce snail-free beer. The case established negligence-based liability by setting out general principles whereby one person owes a duty of care to another. The "neighbor principle" was based on whether harm was reasonably foreseeable. MacPherson served as a basis for the principles announced in Donoghue. Werro closed with 3 observations. First, he said it was striking for a civil lawyer to see how long it took the common law to recognize a general tort of negligence. He attributed this to the power of laissez-faire. Second, he noted the French and German civil codes have been far more generous. Third, he celebrated the adaptability of French law until World War II. Since that time, however, he noted tort lost its place to insurance schemes. Europeans trust regulation and insurance far more than Americans.
Finally, Anita Bernstein focused on the changes in society, and thus law, from the time of MacPherson until today. In a presentation entitled the "Reciprocal of MacPherson," Bernstein noted the holding of MacPherson was that care and vigilance were owed by an auto manufacturer. Although privity offered "comfort and care" to the manufacturer, the holding in MacPherson, coming during the Progressive Era, offered "comfort and care" to consumers. Modern law, however, is producing a shift toward obligations owed to an auto manufacturer. Bernstein referenced Geier (2000) (preemption limits design defect cases); Kumho Tire (1999) (making expert testimony for plaintiffs more costly and harder to find); and BMW v. Gore (1996) (restricting punies against auto manufacturers). She then noted the bailout of the big 3 auto manufacturers, which cost taxpayers roughly $9.26 billion. Moreover, tort reform, Bernstein suggested, extends the reciprocal. The emphasis has shifted from what is owed to consumers to what consumers owe potential defendants.
Papers from the panel will be published in the Journal of Tort Law.
The meeting concluded with the election of the Executive Committee for the year:
Chair: Leslie Kendrick; Chair-elect: Chris Robinette; Secretary: Stacey Tovino; Treasurer: Adam Scales; Member: Scott Hershovitz
Sunday, January 10, 2016
In 1992, Occidental Chemical installed a pH-balancing system on its premises in order to keep its employees from having to haul containers up a ladder. Six years later, the company sold the premises. Eight years after the sale, an employee of the new owner was injured on the system. Is Occidental liable for the injury? The "dual-role theory" would hold owners of property liable in premises liability and as designers of defective equipment. Reversing the intermediate appellate court's opinion for the plaintiff, the Texas Supreme Court wrote:
We conclude, however, that a claim against a previous owner for injury allegedly caused by
a dangerous condition of real property remains a premises-liability claim, regardless of the previous
property owner’s role in creating the condition. Because the previous owner sold the property
several years before the plaintiff’s accident and did not otherwise owe the plaintiff a duty of care
apart from its ownership and control of the property, we reverse the court of appeals’ judgment and
render judgment that the plaintiff take nothing.
Tuesday, January 5, 2016
Don't forget the Torts and Compensation Systems Section Panel this Friday at 1:30: "MacPherson at 100: Perspectives on its Influence and Meaning." Aaron Twerski will receive the Prosser Award at the beginning of the presentation.
Monday, January 4, 2016
In 2003, Juliann Bobbitt was born a quadriplegic and unable to speak. Her parents filed a medical malpractice action in 2005. An expert estimated her lifetime care costs between $8 and $10 million. In 2013, a jury awarded $15 million in damages to her parents. Indiana, however, has a $1.25 million med mal damages cap. To date, Medicaid has paid over $500,000 on Juliann's care, an amount that would have to be reimbursed out of the proceeds of any verdict or settlement. The parents are challenging the constitutionality of the cap. The Elkhart Truth has the story.
Friday, January 1, 2016
Symeon Symeonides has posted his 29th annual choice-of-law survey to SSRN. The abstract provides:
This is the Twenty-Ninth Annual Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside the United States.
This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2015, and posted on Westlaw by December 31, 2015. Of the 1,188 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law—and, particularly, choice of law. The following are some of the cases discussed:
--Three Supreme Court decisions, the first declaring unconstitutional all state laws against same-sex marriages, the second interpreting the commercial activity exception of the Foreign Sovereign Immunity Act, and the third further constricting the range of state law in matters relating to arbitration;
--A Second Circuit decision resuscitating for now that court’s theory that corporations are not accountable for international law violations under the Alien Tort Statute (ATS), and two decisions holding that the violations at issue did not “touch and concern the territory of the United States . . . with sufficient force”;
--Two cases refusing to allow a Bivens action for an extraterritorial violation of the Fourth Amendment and an intra-territorial violation of the Fifth Amendment, respectively, and several cases upholding the extraterritorial application of criminal statutes;
--Several cases refusing (and some not refusing) to enforce choice-of-law and forum-selection or arbitration clauses operating in tandem to deprive employees or consumers of their otherwise unwaivable rights;
--A New York Court of Appeals case explaining why a New York choice-of-law clause in a retirement plan did not include a conflicts rule contained in New York’s substantive successions statute;
--Several cases involving the “chicken or the egg” question of which law governs forum-selection clauses;
--A New Jersey decision ruling on actions for “wrongful birth” and “wrongful life,” and several other cases arising from medical malpractice, legal malpractice, deceptive trade practices, alienation of affections, and, of course, traffic accidents, along with products liability cases involving breast implants and pharmaceuticals;
--The first case granting divorce to a spouse married under a “covenant” marriage in another state, and a Texas case recognizing a Pakistani talaq;
--An Alabama Supreme Court decision refusing to recognize a Georgia adoption by a same-sex spouse on the ground that the Georgia court misapplied its own law regarding subject matter jurisdiction;
--A Delaware case holding that the Full Faith and Credit clause mandates recognition of a sister-state judgment that has recognized a foreign judgment, and does not allow examination of the underlying foreign judgment; and
--A case recognizing a foreign judgment challenged on the ground that the foreign country did not provide impartial tribunals or procedures compatible with due process.
Saturday, December 26, 2015
I'm late reporting this, but a few days before Christmas, Houston trial lawyer Joe Jamail died. He was fabulously successful, but known for a bombastic style of lawyering. Coverage: WSJ: here; Brian Leiter: here.
Thanks to David Raeker-Jordan for the tip.
Thursday, December 24, 2015
Veterans Law Review
Call for Submissions
Wednesday, December 23, 2015
Earlier this year the Rutgers Center for Risk and Responsibility hosted a conference on the ALI's Restatement of Liability Insurance (Tom Baker and Kyle Logue, Reporters). The Rutgers University Law Review has now published articles from the conference. Torts and liability insurance being intertwined, there is a strong representation of torts scholars in the lineup, including Ken Abraham, Mark Geistfeld, and Victor Schwartz.
Monday, December 21, 2015
Automobile injuries are pervasive in tort law--over half of tort claims and three-quarters of all payouts. They are not seen as interesting, however, and are rarely discussed. A story out of Las Vegas is receiving uncharacteristic attention. A 24-year-old woman, with a 3-year-old in her car, allegedly ran down 38 pedestrians on the Las Vegas Strip. One person has died and 37 others have been injured. Authorities have concluded she acted intentionally.
From the perspective of compensating the victims, these facts reveal a lot about gaps in the system. First, it appears the driver was a recent arrival in Nevada. She was, therefore, subject to Nevada's financial responsibility, and not compulsory automobile insurance, law. In theory, that means she would only have to provide proof of security after causing an accident of $750 or more. Because only New Hampshire operates solely with a financial responsibility law, the driver was likely coming from a state that required some amount of automobile insurance. Of course, she could have been one of the millions of drivers who operate without insurance regardless of the requirement. Moreover, even if she had been a lawful Nevada resident and purchased insurance pursuant to the compulsory automobile insurance law, the limits are $15,000 per person, $30,000 per occurrence, and $10,000 for property damage. In other words, she may have had as little as $30,000 to compensate for 1 death and 37 injuries, many of them serious.
Additionally, because the driver is alleged to have acted intentionally, the intentional acts exclusion, designed to counter moral hazard, will mean there is no liability insurance money available to the victims. Some jurisdictions have ruled the intentional acts exclusion is invalid in the context of a compulsory automobile insurance law, but most have not. Nevada appears to uphold the validity of the exclusion. Thus, the tort cause of action available to victims would be battery and they would not likely be compensated through liability insurance. The odds that the driver has enough assets to compensate for her wrongs are astronomically long.
Friday, December 18, 2015
Thursday, December 17, 2015
The Fordham Law News just published a conversation among four torts professors: Ben Zipursky, Howard Erichson, Michael Martin, and Jed Shugerman. They answer questions about frivolous lawsuits, efficiency, insurance, and more. Check it out here.
Wednesday, December 16, 2015
On Monday, the Court refused to take up the 9th Circuit's dismissal of an Alien Tort Statute and Torture Victim Protection Act case:
The U.S. Supreme Court on Monday declined to revive a human rights lawsuit against Occidental Petroleum Corp and a security contractor that had accused them of complicity in a deadly 1998 bombing by Colombia's military of a village in the South American country.
The court left intact a November 2014 ruling by the 9th U.S. Circuit Court of Appeals stating that victims' families could not pursue claims against Occidental and Florida-based AirScan Inc under two U.S. human rights laws, the Alien Tort Statute and Torture Victims Protection Act.
These cases have been dismissed on a regular basis since the 2013 Kiobel ruling. Reuters has the story.
Tuesday, December 15, 2015
The Institute for Law Teaching and Learning is having a conference entitled Real-World Readiness at Washburn University School of Law in Topeka, Kansas on June 9-11, 2016. A call for proposals is here: Download CFP Summer 2016 Washburn Conference (1)
Monday, December 14, 2015
Doug Rendleman has posted to SSRN The Triumph of Equity Revisited: The Stages of Equitable Discretion. The abstract provides:
Every judge’s discretion includes equitable discretion. For a symposium in Steve Subrin’s honor, this article examines equitable discretion beginning with Steve’s classic article How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective.
In How Equity Conquered Common Law, Steve charged that Equity was amorphous, unfocused, and diffuse. This article analyzes equitable discretion in depth to evaluate Steve’s argument, to discover times when a judge needs equitable discretion, to develop principles of confinement, and to prune excesses.
Equity can be analyzed under three headings: substantive, procedural, and, this article’s main topic, remedy. A judge’s equitable discretion may vary depending on the source of the plaintiff’s substantive right, whether found in constitution, statute, or common law. Equitable discretion includes declining a remedy altogether, choosing the remedy, and shaping the remedy.
This article reviews the origins and development of a judge’s equitable discretion both as a technique to adjust the margins and as an ethical default. It summarizes a lawsuit’s stages and equitable decision points: pleadings, motions, discovery, substantive law, place of trial, interlocutory equitable relief, injunction bond, equitable defenses of laches and unclean hands, jury trial, injunction terms, attorney fees, contempt, stay of an injunction on appeal, collection of a money judgment, and the appeal including the scope of review. It reviews the judge’s equitable discretion for adjudicating its main remedy, an injunction, as well as for other Equitable remedies - receiver, specific performance, constructive trust, salvor, rescission-restitution, legal and equitable restitution, subrogation, and declaratory judgment.
The tension between specific, predictable rules and flexible justice for a discrete dispute is inevitable and universal. This article seconds some of Steve’s points; it favors administering the judge’s equitable discretion with principles, standards, and rules except when the judge must consider context to fashion a specific non-precedential remedy for a lawsuit’s facts and circumstances.
Friday, December 11, 2015
Barbara Peters has published The Warnings Compendium (available at Amazon). Topics include:
Designing warnings, deciding when to warn, adequacy, ambiguity, location, conspicuity, attention getting, signal words, color, permanency, cradle-to-grave, audience, intermediaries, complexity, effectiveness, repetition, neurobiology, continuing duty, channels to warn, and legal doctrines affecting warnings.
Thursday, December 10, 2015
Hart Publishing is delighted to announce the publication of
‘Hepple and Matthews' Tort Law’
by David Howarth, Martin Matthews,
Jonathan Morgan, Janet O'Sullivan and Stelios Tofaris
Associate Editor Bob Hepple
We are pleased to offer you 20% discount on the book
To order online with your 20% discount please click on the link below the title and then click on the ‘pay now’ button on the right hand side of the screen. Once through to the ordering screen type ref: CV7 in the voucher code field and click ‘apply’
Alternatively, please contact Hart Publishing’s distributor, Macmillan Distribution Limited, by telephone or email (details below) quoting ref: CV7
Hepple and Matthews' Tort Law
Cases and Materials
by David Howarth, Martin Matthews,
Jonathan Morgan, Janet O'Sullivan
and Stelios Tofaris
Consultant Editor Bob Hepple
New to Hart Publishing, this is the seventh edition of the classic casebook on tort, the first of its kind in the UK, and for many years now a bestselling and very popular text for students. This new edition retains all the features that have made it such a popular and respected text, with extensive commentary, questions and notes supplementing the selection of cases and statutes which form the core of the book. Taking a broadly contextual approach the book addresses all the main topics in tort law, is up-to-date, doctrinally sound, stimulating and highly readable.
David Howarth, Fellow of Clare College and Professor of Law and Public Policy, University of Cambridge.
Martin Matthews, Emeritus Fellow of University College, University of Oxford.
Jonathan Morgan, Fellow of Corpus Christi College and Senior Lecturer in Law, University of Cambridge.
Janet O’Sullivan, Fellow of Selwyn College and Senior Lecturer in Law, University of Cambridge.
Stelios Tofaris, Fellow of Girton College and Lecturer in Law, University of Cambridge.
Sir Bob Hepple QC LLD FBA, former Master of Clare College and Emeritus Professor of Law, University of Cambridge.
November 2015 9781849465557 1248pp Hbk RSP:
20% Discount Price: £35.19
If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount, please click on the ‘pay now’ button on the right hand side of the screen. Once through to the ordering screen type ref: CV7 in the voucher code field and click ‘apply’.
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